Opinion
F071045
04-07-2017
THE PEOPLE, Plaintiff and Respondent, v. JAVAR DEVON LEE, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF153064A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
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The charges in this matter arose from a traffic collision in which a car driven by defendant Javar Devon Lee crashed into another car. Epifanio Aguilar was driving the other car, in which his sister, Raquel Duarte, was a passenger.
Lee was convicted of the attempted murder of Aguilar, assault with a deadly weapon upon Aguilar, and dissuading Aguilar as a witness. Lee was also convicted of dissuading Duarte as a witness and threatening to commit a crime against Duarte. Lee does not challenge his convictions. Rather, he challenges a premeditation sentence enhancement associated with the attempted murder charge and his sentence for dissuading Aguilar as a witness.
As to the premeditation enhancement, Lee argues this enhancement must be stricken from the judgment and the matter remanded for resentencing because the prosecution improperly refiled this enhancement after its dismissal by the magistrate at the preliminary hearing. Specifically, Lee argues the magistrate made a finding of fact that was fatal to the enhancement and barred its refiling in the information. We agree.
Lee argues, in the alternative, that the jury's true finding on the premeditation enhancement was not supported by sufficient evidence.
Lee further argues that the sentence for his conviction for dissuading Aguilar as a witness must be stayed under Penal Code section 654. We also agree with this contention. The record reveals that the offenses against Aguilar—attempted murder, assault with a deadly weapon, and dissuading a witness—were all incident to one objective, i.e., to prevent Aguilar from calling the police, and accordingly represent an indivisible course of conduct for which multiple punishment is prohibited under section 654. The trial court was therefore required to stay the sentence for this conviction.
Subsequent statutory references are to the Penal Code unless otherwise specified.
In light of our resolution of Lee's claims, we strike the premeditation enhancement and remand the matter for resentencing consistent with this opinion.
PROCEDURAL HISTORY
A five-count information, filed in Kern County Superior Court, on February 27, 2014, charged Lee with committing several offenses against Aguilar and Duarte during an incident that occurred on January 30, 2014. Lee threatened Aguilar and Duarte and attacked Aguilar during the incident.
Counts 1, 2, and 3 pertained to Lee's attack on Aguilar: count 1 charged him with the attempted murder of Aguilar, with a premeditation enhancement; count 2 charged him with assault with a deadly weapon, i.e., a tree branch, upon Aguilar; and count 3 charged him with dissuading Aguilar as a witness. (§§ 664/187, 189; 245, subd. (a)(1); 136.1, subd. (b)(1).) The information further alleged a deadly weapon sentence enhancement in connection with counts 1 and 3 and a great bodily injury sentence enhancement in connection with all three counts. (§§ 12022, subd. (b)(1), 12022.7.)
Counts 4 and 5 related to Lee's intimidation of Duarte: count 4 charged him with dissuading Duarte as a witness and count 5 with making a credible threat to commit a crime against her. (§§ 136.1, subd. (b)(1), 422.) The information alleged a deadly weapon enhancement in connection with both counts.
The information had initially also included allegations, as to counts 4 and 5, that defendant inflicted great bodily injury on Raquel Duarte. Subsequently, the trial court granted a defense motion, under section 995, to set aside the great bodily injury allegations as to both these counts.
Criminal proceedings were temporarily suspended on April 2, 2014, to resolve concerns about Lee's competence to stand trial but were subsequently reinstated. The case proceeded to jury trial. The jury found Lee guilty on all counts. The jury also found true the premeditation enhancement allegation associated with count 1, the great bodily injury enhancement allegations associated with counts 1, 2, and 3, as well as the deadly weapon enhancement allegations associated with counts 1, 3, 4, and 5.
The court imposed an aggregate term of life with the possibility of parole after 19 years. For the premeditated attempted murder of Aguilar, the sentence was life with the possibility of parole after seven years, plus three years for the great bodily injury enhancement and another one year for the deadly weapon enhancement; the sentence on the assault with a deadly weapon conviction was stayed; for dissuading a witness (Aguilar) the sentence was three years, along with an additional three years for the great bodily injury enhancement and one year for the deadly weapon enhancement; for dissuading a witness (Duarte) the sentence was eight months, along with an additional four months for the deadly weapon enhancement; and the sentence for making a credible threat to commit a crime against Duarte was stayed.
FACTS
At about 2:00 a.m., on January 30, 2014, Lee's sister, Shawntrelle, called 911 because Lee, who was at her house, was acting strange while watching "the church channel." He was talking to himself and referring to himself as Jesus, much to Shawntrelle's alarm. Earlier that evening, Lee had argued with Shawntrelle's son; at that time, Shawntrelle also heard him say he was Jesus.
Deputies Karena De La Garza and Kenneth Watson were dispatched to Shawntrelle's house in response to her 911 call. As they knocked on the door, Lee left the house. While the deputies were talking to Shawntrelle, they heard the screeching of tires nearby, a little to the south. The deputies also received a bulletin regarding a traffic collision two or three blocks from Shawntrelle's house that the California Highway Patrol was dealing with. The collision involved Lee's car and the one driven by Aguilar.
Aguilar and Duarte were driving westbound on Flower Street (Flower), near its intersection with Haley Street, in Bakersfield. They saw a car emerge from one of the streets that crossed Flower, take a left turn onto Flower, and proceed in an eastbound direction on Flower. The car, with headlights off, was weaving dangerously, going from one edge of the street to the other edge. Given the extreme weaving, Aguilar was convinced it would crash into his car, so he pulled over, preemptively, to the side of the street. Even so, within a few seconds, the oncoming car hit Aguilar's car, striking it near the front headlight and wheel well on the driver's side and causing the airbags to deploy. Both cars sustained "minor front end collision damage." Neither Aguilar nor Duarte were injured in the crash but Aguilar felt "stunned."
Duarte testified that right after the collision, she saw Lee emerge from his car with a "stick." Lee hit the side of Aguilar's car with the stick and told Aguilar and Duarte not to call the police. He threatened to kill them in three seconds if they did not comply, and, although Aguilar responded, "there [is] no problem," Lee immediately began hitting Aguilar with the stick. Duarte testified that Lee hit Aguilar four times: on the face, arms, hands, and head. After the last hit, to Aguilar's head, Aguilar collapsed and lost consciousness. For his part, Aguilar testified that he had exited his car and walked around to the passenger side when Lee approached with the "stick." This was the first time Aguilar saw the stick. Aguilar sat down in the passenger seat but Lee pulled him out and immediately hit him in the head. Aguilar felt one blow and lost consciousness. Aguilar also testified that he did not know whether Lee said anything to him or Duarte before Lee hit him, because Aguilar was already "stunned" from the accident.
After Aguilar collapsed, Duarte told Lee to stop hitting her brother. Lee turned his attention to Duarte and asked her, "You want me to leave him, then, you're next." Duarte then ran into the street where she flagged down a passing motorist. Lee walked away from the site of the collision towards some houses where people had gathered and were calling to him. In terms of the passage of time from the moment the cars first collided until Lee walked away from the site, Duarte testified, "it was something fast." She testified, "[It was] [f]rom seven to 10 minutes, it was something fast. I wouldn't be able to tell you exactly how long it was, but it was something fast." Regarding the attack on Aguilar, Duarte testified, "It was something that happened very fast. He would hit him one and then the next one." Neither Duarte nor Aguilar spoke English and both testified through a Spanish interpreter. They testified that although Lee spoke in English, they were able to understand his threats to kill them if they called the police (albeit Aguilar initially could not decipher what Lee was saying).
California Highway Patrol Officer David Harris reported to the site of the collision at 2:15 a.m. He found Duarte and Aguilar by the side of their car; Lee had left the scene. Aguilar was disoriented and bloodied from "apparent head trauma," and Duarte "wasn't fluent in English" so it was hard to communicate. An ambulance was called to transport Aguilar to the hospital; Aguilar had sat up and vomited. A woman sitting outside her residence across from the collision site reported that shortly after the crash, a man had walked away from the scene. A little later, Harris saw Lee emerge from the side yard of this same residence carrying a "tree branch," "yelling," and "making some unusual statements." Lee complied with a command to drop the stick and Harris and his partner took him into custody without incident. Lee said his name was Jesus; he also said he "just returned from hell" and "was looking for demons." Lee's demeanor at the time was fluctuating: "At times he would be very calm and mellow, and actually jovial, laughing, and other times, he was very agitated."
Harris was a certified drug recognition expert. Harris noted that Lee had "resting nystagmus," an "involuntary jerking of the eyes" often caused by "depressants, annihilates, or dissociat[ive] anesthetics" such as PCP, Ketamine, and DXM. Harris concluded Lee was under the influence of a combination of cannabis and a dissociative anesthetic. Lee also told Harris he was using marijuana and PCP at the time, and had last used PCP about three or four days ago. The parties stipulated that an analysis of the blood drawn from Lee on the night of the incident revealed the presence of cannabis but not PCP or phencyclidine. Harris nonetheless testified that the effects of PCP can linger for several days, with users experiencing "flashbacks" or reliving the "high."
Deputy De La Garza also reported to the accident site. She testified the tree branch recovered from Lee was about four feet long and three inches in diameter but was unable to estimate the weight of the tree branch as she had not personally held it. De La Garza transported Lee to jail. Lee said he wanted to crash into cars along the way. De La Garza recalled that Lee also said, "why didn't the guy just get up and walk off and why isn't he dead, because I'm Jesus." Lee further said no one could kill him because he was Jesus.
The People introduced two pages of Aguilar's medical records into evidence. The records revealed that Aguilar had a three-centimeter-long laceration on his left cheek, a five or six-centimeter-long scalp laceration on the left side of his head, and a four-centimeter-long scalp laceration on the back of his head. The cuts to the scalp were closed with staples and the cut to the cheek with stitches, with no complications.
Lee testified in his own defense. He explained he went over to Aguilar's car to see whether its occupants needed assistance. He picked up a stick lying by the car in case it was needed to break a window. Aguilar got out of the car and "socked" Lee. Lee reflexively reacted by hitting Aguilar with the stick. Lee then punched Aguilar, causing Aguilar to fall to the ground. As Aguilar fell, he struck the back of his head on an open car door.
DISCUSSION
I. Determinations made by magistrate as to premeditation sentence enhancement
Lee argues that factual determinations made by the preliminary hearing magistrate were fatal to the deliberation and premeditation sentence enhancement alleged in association with the attempted murder charge, barring refiling of the enhancement in the information. The People respond that, in discharging the premeditation enhancement, the magistrate simply found the evidence insufficient to show probable cause to bind Lee over for trial on the enhancement—this was a legal, as opposed to a factual, determination, which, in turn, did not foreclose refiling of the enhancement in the information.
While it is correct that the magistrate ultimately concluded the evidence was insufficient to show probable cause that Lee had acted with deliberation and premeditation in the commission of the attempted murder, the question is whether that determination was premised on a stated factual finding that was fatal to this enhancement and barred its refiling in the subsequent information. Although distinguishing factual determinations from legal conclusions is sometimes a tricky task, we agree with Lee that a proper reading of the magistrate's ruling indicates the magistrate made a finding that, on the evidence presented, deliberation and premeditation were factually precluded. Consequently, refiling of the enhancement in the information was barred.
A. Background
A six-count complaint filed in this case charged Lee, inter alia, with the attempted murder of Aguilar. The complaint further alleged, as a sentence enhancement, that Lee had acted with deliberation and premeditation in the commission of this offense.
At the subsequent preliminary hearing, Deputy De La Garza testified about a statement she took from Duarte (through a Spanish-speaking deputy), regarding the incident underlying the charges in the complaint. Duarte explained that on the night in question, she was riding in a car driven by Aguilar when they saw an oncoming car with no headlights. The oncoming car was swerving all over the roadway and driving across all the lanes, including the lane that Aguilar was driving in. Although Aguilar pulled over to preempt a collision, the oncoming car hit their car on the driver's side. Lee was the driver of the other car.
Lee emerged from his car, took out a tree branch from the back seat, and said, several times, "If you call the cops, I'm going to kill you." (Some capitalization omitted.) He then opened Aguilar's door, told him to step out, and said, "you have three seconds 'til I kill you, you fucking Mexican." (Some capitalization omitted.) As Aguilar stepped out of the car, Lee hit him in the head three times with the stick. When Duarte told Lee to stop, Lee asked her whether she wanted him to kill her next. As Lee started walking towards Duarte, she attempted to flag down a car heading in their direction. At that point, Lee walked away in an eastbound direction. These events happened in quick succession. The time between the collision and Lee hitting Aguilar on the head was only a matter of seconds. Deputy De La Garza arrived at the site of the incident within "a few minutes" of the collision, but the California Highway Patrol had arrived even earlier.
After presentation of the evidence, defense counsel disputed the propriety of the attempted murder charge. The People countered, with reference to Lee's many threats to kill Aguilar and Duarte, that Lee's own statements clearly revealed he harbored an intent to kill. The magistrate noted, and the prosecutor agreed, that Lee had made "conditional statements" (capitalization omitted) to the effect that "if you call the police, then I'll kill you," (capitalization omitted) so as to dissuade Aguilar and Duarte from calling law enforcement. The magistrate ultimately concluded that Lee's actions in conjunction with his statements showed that he had the intent to kill Aguilar and bound Lee over for trial on the attempted murder charge.
Defense counsel further argued for dismissal of the premeditation enhancement associated with the attempted murder charge. Counsel contended the facts did not square with deliberation and premeditation: "Here, we have an incident that occurred in a matter of seconds following a traffic collision. I don't think - although the amount of time required for deliberation and premeditation doesn't necessarily have to be a lengthy amount of time -the [CALCRIM] instruction 601 does note a decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated." (Some capitalization omitted.) The prosecutor countered that the facts showed that "plenty of time is passing here" and that "the defendant had plenty of opportunity to think about what he was doing." (Capitalization omitted.) The prosecutor expatiated on this point: "[Lee's] vehicle struck the victims' vehicle. He got out of his car. He went out to the back of his car, pulled out the branch, walked over to the victims' car. When he engaged in a conversation with the victim and the driver of the vehicle, clearly, he had enough time to reflect upon what he was doing." (Some capitalization omitted.)
After the People's argument, the magistrate observed, "[Lee] was just mad" because to his mind "these other people were driving in his lane." (Some capitalization omitted.) The magistrate further noted that he did not see deliberation and premeditation on Lee's part because "the time between the accident and the encounter was all of one in a matter of seconds." (Some capitalization omitted.) The magistrate then referenced defense counsel's point that a rash or impulsive decision to kill is not deliberate and premeditated, and concluded that the evidence was insufficient to show probable cause that defendant acted with deliberation and premeditation in attempting to murder Aguilar. Consequently, the magistrate dismissed the enhancement allegation.
The People subsequently refiled the premeditation enhancement in the information. The defense responded with a motion under section 995 to set aside the premeditation enhancement. A superior court judge denied that motion. At trial, Lee was convicted of attempted murder and the jury found true the premeditation enhancement.
B. Analysis
In California, felonies are prosecuted "either by indictment or, after examination and commitment by a magistrate, by information." (Cal. Const., art 1, § 14.) The procedure for charging by information is addressed in section 739, which provides, in relevant part:
"When a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information against the defendant which
may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed."
In Jones v. Superior Court (1971) 4 Cal.3d 660 (Jones), the California Supreme Court analyzed the scope of section 739. Noting that the "'purpose of the preliminary hearing is to weed out groundless or unsupported charges,'" Jones held that in filing an information after a preliminary hearing, "the district attorney [is not permitted] to ignore material factual findings" that a magistrate makes when he "weigh[s] the evidence, resolve[s] conflicts and give[s] or withhold[s] credence to particular witnesses." (Id. at pp. 666, 667, 668.) Thus, although the district attorney may "challenge the magistrate's ultimate finding that the evidence is legally insufficient to show that the charged offense or offenses occurred, that challenge must be made within the context of the magistrate's findings on the evidence." (Id. at p. 666, italics added.) When a magistrate's findings on the evidence indicate that an offense was "not shown by the evidence to have been committed," then that offense cannot be included in the information. (Ibid.) In Jones, the magistrate had dismissed rape, oral copulation, and sodomy charges upon finding that the complaining witness had consented to intercourse and that oral copulation and sodomy had not occurred. Jones held the charges could not be refiled in the information because the magistrate's factual determinations were conclusive. (Ibid.; see People v. Uhlemann (1973) 9 Cal.3d 662, 675, fn. 4, Mosk, J. dis. ["magistrates do not ordinarily enter formal findings of fact" but, as in Jones, they "often set forth in informal fashion the grounds for their decision to dismiss the charges, including their resolution of material conflicts in the evidence"].)
On review, a magistrate's "findings of fact must be sustained if supported by substantial evidence." (People v. Slaughter (1984) 35 Cal.3d 629, 639.) However, when a magistrate fails to render factual findings in dismissing a charge, "the reviewing court cannot assume that he has resolved factual disputes or passed upon the credibility of witnesses. A dismissal unsupported by findings therefore receives the independent scrutiny appropriate for review of questions of law." (Id. at p. 638.) In sum, "[t]he character of judicial review under section 739 depends on whether the magistrate has exercised his power to render findings of fact. If he has made findings, those findings are conclusive if supported by substantial evidence." (Ibid.)
If the magistrate makes factual findings that are fatal to the assertion that a particular offense has been committed, the prosecutor may file a new complaint in hopes of persuading another magistrate otherwise. (People v. Uhlemann, supra, 9 Cal.3d at p. 669.) However, if the People elect to proceed under section 739 or section 871.5 (reinstatement of complaint), neither the superior nor appellate court may ignore those findings. (Slaughter, supra, 35 Cal.3d at p. 638.)
Under section 995, the defendant may move to dismiss an information on grounds "the defendant ha[s] been committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) "[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court ... sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate." (People v. Laiwa (1983) 34 Cal.3d 711, 718.) "On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate" at the preliminary hearing. (Ibid.)
Here, Lee's argument turns on whether the magistrate's determinations in support of discharging the premeditation enhancement allegation represent conclusive factual findings. The crux of the dispute between the parties, as to this allegation, was whether defendant had an opportunity to deliberate and premeditate or simply acted rashly and impulsively in the immediate aftermath of the collision. With explicit reference to Deputy De La Garza's testimony, the defense highlighted both the fact that Lee attacked Aguilar after a sudden traffic collision, as well as the rapidity of the ensuing events. The prosecutor countered that, in light of the entire sequence of events that took place, Lee had "enough time to reflect upon what he was doing." (Some capitalization omitted.) Although the magistrate ultimately dismissed this allegation on the basis of insufficiency of the evidence to show probable cause that the enhancement applied, the question is whether the magistrate's ultimate conclusion was premised on a factual determination that was fatal to the premeditation enhancement allegation. More succinctly, did the magistrate find that deliberation and premeditation "[were] not shown by the evidence to have been [present]?" (Jones, supra, 4 Cal.3d. at p. 666.)
Here the magistrate had to weigh the evidence in light of the parties' arguments. In doing so, he determined that "[Lee] was just mad because [he thought] these other people were driving in his lane." (Capitalization omitted.) The magistrate further clarified that he did not see deliberation and premeditation because "the time between the accident and the encounter was all of one in a matter of seconds." (Capitalization omitted.) The magistrate then referenced defense counsel's point that a rash or impulsive decision to kill is not deliberate and premeditated, and concluded that the evidence was insufficient to show probable cause that defendant acted with deliberation and premeditation in attempting to murder Aguilar. Accordingly, the magistrate dismissed the premeditation enhancement allegation.
This record indicates the magistrate found that deliberation and premeditation were not present because "the time between the accident and the encounter was all of one in a matter of seconds," foreclosing the possibility of requisite reflection. In other words, the magistrate found Lee had acted rashly and impulsively. The magistrate's determination constituted a factual finding, based on De La Garza's uncontroverted testimony about the nature and brevity of the entire incident, that was fatal to the deliberation and premeditation enhancement allegation. (See Walker v. Superior Court (1980) 107 Cal.App.3d 884, 887, 890 (Walker) [setting aside murder charge refiled in information after dismissal by magistrate because magistrate made findings, based on the defendant's uncontroverted statement, that negated malice on the defendant's part].) As a logical consequence of his finding, the magistrate ultimately dismissed the enhancement allegation on grounds that the evidence was insufficient to show probable cause that defendant acted with deliberation and premeditation in attempting to murder Aguilar. (See Jones, supra, 4 Cal.3d at p. 666 [although the district attorney may "challenge the magistrate's ultimate finding that the evidence is legally insufficient to show that the charged offense or offenses occurred, that challenge must be made within the context of the magistrate's findings on the evidence." (Italics added.)].)
For the magistrate's factual determination to be conclusive, it must be supported by substantial evidence. Here, the magistrate's finding was supported by substantial evidence. Deputy De La Garza testified the encounter between Lee and Aguilar occurred immediately after the collision and acknowledged the time between the collision and Lee hitting Aguilar on the head was a matter of seconds. Moreover, according to De La Garza, Lee was swerving clear across the roadway, indicating he had no sense of lane boundaries whatsoever. Therefore, the magistrate properly could conclude that Lee got angry at Aguilar because he subjectively blamed the latter for being in the wrong lane and causing the collision. Indeed, the prosecutor concurred that Lee may have been angry at Aguilar for this reason.
We conclude the superior court improperly denied the defense's motion to set aside the deliberation and premeditation enhancement allegation. The magistrate weighed the evidence and made a conclusive determination that deliberation and premeditation were factually precluded, a finding that was fatal to the deliberation and premeditation enhancement. (Walker, supra, 107 Cal.App.3d at p. 889 ["if the factual findings made by the magistrate are 'fatal to the asserted conclusion that a particular offense was committed,' that offense may not be included in the information"].) The superior court, as a reviewing court, could not reweigh the evidence and substitute its own judgment for that of the magistrate. (People v. Laiwa, supra, 34 Cal.3d at p. 718 [for purposes of § 995 motion, "it is the magistrate who is the finder of fact" and the superior court "cannot substitute its judgment as to ... the weight of the evidence for that of the magistrate"].) Accordingly, we will strike the deliberation-and-premeditation sentence enhancement and remand the matter for resentencing consistent with this opinion. In light of our conclusion, we need not address defendant's alternative argument that the jury's true finding on the premeditation enhancement was not supported by sufficient evidence. II. Applicability of section 654 to conviction for dissuading Aguilar as a witness
Lee next contends that the trial court prejudicially erred by failing to stay, under section 654, the sentence for his conviction on count 3, i.e., dissuading Aguilar as a witness. We agree that, under section 654, the trial court was required to stay the sentence for dissuading Aguilar as a witness because the dissuasion of Aguilar and the attempted murder of Aguilar constituted an indivisible course of conduct in which Lee had the same objective, i.e., to prevent Aguilar from contacting the police.
We review the trial court's application of section 654 under the deferential "substantial evidence" standard. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.) Section 654, subdivision (a), provides, in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute has been interpreted to bar multiple punishments not only for a single criminal act, but also for a single indivisible course of conduct in which the defendant had only one criminal intent or objective. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) When reasonable minds can differ as to whether a course of conduct comprises a divisible transaction, we apply the "intent and objective" test set forth in Neal: "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal, supra, at p. 19.)
Counts 1, 2, and 3 all related to Lee's attack on Aguilar. Count 1 charged Lee with the attempted murder of Aguilar (along with a premeditation enhancement), count 2 charged Lee with assault with a deadly weapon upon Aguilar, and count 3 charged Lee with dissuading Aguilar as a witness. A great bodily injury enhancement was alleged with respect to all three counts and a deadly weapon enhancement was alleged with respect to counts 1 and 3. The jury convicted Lee on all three counts and found all associated enhancements to be true. The trial court imposed consecutive sentences on counts 1 and 3, including on the enhancements associated with each count.
The record reveals that Lee told Aguilar not to call the police, threatened to harm him if he called the police, and then hit him with the tree branch in an attempt to murder him. These events unfolded in quick succession. To ascertain whether section 654 applies to Lee's sentences for the offenses resulting from this conduct, we must first ascertain whether the offenses represent divisible offenses or an indivisible course of conduct. Neal instructs: "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal, supra, 55 Cal.2d at p. 19.) The record indicates that Lee's actions were incident to a singular objective, i.e., to prevent Aguilar from calling the police. Therefore, under Neal, his offenses represent an indivisible course of conduct. The trial court's determination to the contrary, i.e., that the dissuasion of Aguilar as a witness and the attempted murder of Aguilar were divisible offenses, is not supported by substantial evidence. Under section 654, the trial court was required to stay the sentence on count 3. Accordingly, we will remand the matter for resentencing consistent with this opinion.
We are not persuaded by the People's argument that Lee initially assaulted Aguilar, causing great bodily injury, in order to dissuade him from turning a witness, and then, in a separate attack, attempted to murder him. Regarding the attack on Aguilar, Duarte testified, "It was something that happened very fast. He would hit him one and then the next one."
In light of our conclusion, we need not address Lee's alternative argument that, at a minimum, the sentence for the great bodily injury enhancement associated with count 3 must be stayed. --------
DISPOSITION
The judgment of conviction is affirmed. The premeditation enhancement is stricken and defendant's sentence is vacated. The matter is remanded for resentencing consistent with this opinion.
/s/_________
SMITH, J. WE CONCUR: /s/_________
KANE, Acting P.J. /s/_________
FRANSON, J.