Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA064525, Teri Schwartz, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chang L. Mar and William H. Shin, Deputy Attorneys General, for Respondent.
JOHNSON, J.
A jury found Mulji Patel guilty of two counts of assault with a deadly weapon, and found he had suffered one prior felony conviction. The court sentenced Patel to 12 years in state prison, and ordered him to pay $36,250 in victim restitution. Patel argues the trial court erred by refusing to strike a prior conviction, awarding an excessive amount of victim restitution, and sentencing him to concurrent sentences for an indivisible course of conduct with a single purpose. We agree the trial court’s imposition of concurrent sentences violated Penal Code section 654. As to Patel’s remaining contentions of error, we find none has merit.
PROCEDURAL BACKGROUND
Patel was charged with two counts of assault with a deadly weapon, Penal Code section 245, subdivision (a)(1) (counts 1 and 2). As to count 2, it was alleged Patel personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a), causing the offense to become a serious felony. (§ 1192.7, subd. (c)(8).) As to both counts, the information alleged Patel had suffered a prior conviction of a serious or violent felony (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d), and had suffered one prior conviction for a serious felony (§ 667, subd. (a)(1)). Patel denied the allegations, and later entered a second plea of not guilty by reason of insanity.
Statutory references are to the Penal Code.
In a bifurcated trial, the jury first found Patel guilty on both counts, and found the allegations to be true. After a sanity hearing, the jury found Patel was sane at the time he committed the offenses.
Patel moved unsuccessfully to have his prior felony conviction stricken. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court imposed a total sentence of 12 years in state prison. As to count 2, the court imposed the low term of two years, doubled to four years (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)), plus three years (§ 12022.7), plus five years (§ 667, subd. (a)(1). A concurrent sentence of a low term of two years, doubled to four years (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)), was imposed as to count 1. Patel was given custody credit, and ordered to pay various fines and fees, including $36,250 in victim restitution.
FACTUAL BACKGROUND
Prosecution case
In 1983, Mulji Patel filed a worker’s compensation action against Rockwell International, his former employer, seeking compensation for injuries he sustained at work. Patel’s worker’s compensation claim was involved in protracted litigation for over 20 years.
In 1991, Rockwell was represented in the worker’s compensation action by attorney Lynn Peterson. In August 1991, Peterson was at the worker’s compensation appeals board with Patel, who was representing himself. They were alone in the courtroom, waiting for the judge to emerge from his chambers. Peterson heard Patel rummaging in a bag. As she turned to look, she found Patel pointing a.22 caliber semiautomatic handgun at her. Patel told Peterson to go talk to the judge. Peterson shrieked, and the judge emerged from his chambers. Patel placed the gun at the base of Peterson’s skull; she tried to push it away. As she did, the judge dove over a table and tackled Patel, who dropped the (unloaded) weapon. Based on this incident, Patel was convicted in 1992 of felony false imprisonment (§ 236), and a special allegation of personal use of a firearm (§ 12022.5) was found true.
By 1996, attorney Edwin Nepomuceno had taken over the representation of Rockwell (by then, Boeing) in the worker’s compensation action. Nepomuceno attended numerous hearings involving Patel, who regularly insisted on obtaining self-procured medical treatment rather than accepting treatment from preauthorized physicians. Patel was confrontational with Nepomuceno from the outset, repeatedly accusing him of being part of a conspiracy and threatening to kill or shoot him. Nepomuceno feared Patel and took his threats seriously.
In late 2005, Nepomuceno contacted Patel’s physician to arrange a meeting between himself, the doctor and Patel to discuss Patel’s course of treatment and to see if the worker’s compensation dispute could finally be resolved. The doctor invited Nepomuceno to attend Patel’s medical appointment on January 31, 2006. On the morning of the appointment, Nepomuceno and Patel arrived at the building at the same time and rode together in the elevator up to the doctor’s office, making small talk. Patel, who carried a satchel, was pleasant and did not seem surprised to see Nepomuceno.
As the men exited the elevator, Nepomuceno turned aside and headed into a coffee room about 8–10 feet away. As Nepomuceno finished pouring some coffee, he felt a blow to his left shoulder. He turned and saw Patel standing about two feet away, with a “mean look” on his face. Nepomuceno pushed Patel out of the way and ran toward the emergency exit. As he ran, Nepomuceno turned back and saw Patel standing with a hammer in his hand.
Nepomuceno ran too fast and overshot the emergency exit; he ended up trapped near the elevator. Patel ran toward Nepomuceno. Patel held a hammer above his head, and began aiming for Nepomuceno’s head. A witness saw Patel strike Nepomuceno on the head with the hammer at least twice. Nepomuceno tried to block the blows and grappled with Patel, pulling him to the floor. Office staff ran to assist Nepomuceno and restrained Patel until the police arrived. Nepomuceno drove himself to a local hospital where his skull was stapled to close the wound. Nepomuceno was still suffering aftereffects from Patel’s blows at the time of trial in 2009, and expected to undergo neck surgery.
A police officer responding to the scene found Patel lying on an examination table at the doctor’s office. When the officer asked what happened, Patel said, “they have been fucking with me for 23 years.” Subsequently, at the police station after his arrest, Patel told another officer he attacked Nepomuceno with a hammer because he was “angry.” He told the officer that Nepomuceno, an attorney representing Patel’s former employer, was trying to influence the doctor not to allow Patel to obtain a second medical opinion. Patel also believed his money had been stolen and given to judges, and that “all the doctors and attorneys and judges were corrupt.”
Defense case
Patel testified he had been involved in a lengthy, ongoing dispute with his former employer regarding injuries to his back, pancreas and kidney, and depression.
Patel, who had been representing himself at a workers’ compensation hearing in 1991, recalled having been involved in an incident that resulted in his arrest and conviction after that hearing. He did not recall having had a gun (apart from seeing one fall out of some papers he brought to the hearing), or having pointed one at an attorney at that hearing; he had been in a lot of pain.
On unspecified dates, Patel contacted the District Attorney’s office to complain of fraud allegedly perpetrated upon him by his attorney and the company’s counsel in the workers’ compensation action. In one letter he threatened to “kill someone” if he didn’t get an explanation. He did not identify any specific potential victims, and testified at trial that he had not been serious about his threats.
Patel testified he did not know Nepomuceno would be at his doctor’s office on January 31, 2006. He took a bus to the appointment because his car was broken. As he left his home that morning, Patel noticed he had left a hammer on his car; he stuck it into his satchel. The satchel also contained, among other things, documents related to the workers’ compensation dispute, medications, a dose of glucose and a syringe of glucagon in case of hypoglycemic (low blood sugar) attacks (Patel has diabetes). Before leaving for his appointment, Patel ate the same breakfast he ate every weekday, and took his regular dose of insulin.
As Patel got off the elevator at the doctor’s office with Nepomuceno, he felt a diabetic attack coming on, and went into the coffee room to get some sugar. He blacked out, however, before the sugar took effect. He did not recall anything until he awoke and found himself lying on an examination bed in the doctor’s office, and also did not recall having been asked questions by police officers.
An internist, who testified as an expert during the sanity phase, opined that Patel’s behavior on January 31, 2006 was compatible with someone suffering a hypoglycemic attack. A psychiatrist, who also testified as an expert witness, opined that Patel suffered from paranoid psychosis, a reality disturbance in which individuals have unfounded and distorted suspicions about others. The psychiatrist testified that Patel’s condition would not cause him to be legally insane at the time he committed the crimes, but might have rendered him temporarily insane due to a hypoglycemic reaction.
DISCUSSION
1. Trial court’s refusal to strike a strike
Before trial and at sentencing, Patel requested that the trial court strike his prior felony conviction under section 1385 and Romero, supra, 13 Cal.4th 497, arguing the conviction was too remote, and there was insufficient evidence to support a finding the prior conviction qualified as a strike. He contends the court never seriously considered his motion, and its refusal to strike the conviction was the result of an unlawful antipathy toward him and an abuse of its discretion. We conclude otherwise.
The latter contention appears implicitly to have been abandoned on appeal. In any event, we reject any assertion that there is insufficient evidence to support the finding that the prior conviction did not qualify as a strike. After examining the minute orders and a certified copy of the appellate decision affirming Patel’s 1992 conviction, the trial court concluded it was clear Patel was convicted of a violation of section 236 with a section 12022.5 enhancement. The court found there was no basis upon which to conclude the court in the prior action struck the firearm enhancement, or reduced Patel’s conviction to a nonstrike offense, and no basis on which to overturn the jury’s true finding as to the prior conviction.
Section 1385 provides in part: “The judge... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) The court in Romero held that a trial judge has the authority to strike a prior conviction pursuant to section 1385. In deciding whether to do so, the trial court must take into account the defendant’s background, the nature of his current offense and other individualized considerations. (Romero, supra, 13 Cal.4th at p. 531.) The relevant factors a court must consider are “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) Remoteness alone cannot take a defendant outside the spirit of the Three Strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 342.)
To gain reversal under Romero, the defendant must “‘clearly show that the [trial court’s] sentencing decision was irrational or arbitrary.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 978.) Nor is it enough to show that the trial court did not specifically address all of the relevant factors when discussing a defendant’s request to strike a prior conviction. “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The trial court’s decision is reviewed deferentially. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The “trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) The Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances, ” such as where the court was unaware of its discretion or considered impermissible factors. (Id. at p. 378.)
Patel argues his prior strike was incurred many years ago. This is true, but it was a very serious offense, and no case law compels a judge to strike a prior conviction simply based on its age. (People v. Strong, supra, 87 Cal.App.4th at p. 342.) The record demonstrates the trial court was fully aware of its discretion, the pertinent factors it was to consider, and the facts. Prior to trial, the court noted it had “read and considered the submissions by both sides” with respect to Patel’s Romero motion. Those submissions contain Patel’s argument that his prior strike was too aged to be relevant. The pretrial and sentencing memoranda also set forth the facts and law supporting the prosecution’s contention that Patel’s criminal history, particularly the prior felony conviction of false imprisonment by violence against attorney Peterson, and the related charges of unauthorized possession of a firearm, constitute relevant conduct uncannily similar to the crime of which he was convicted here. After considering the parties’ written and oral arguments, the court concluded there was a close “connection between the prior and the current matter, ” and determined the case “definitely [fell] outside the Romero area and... squarely into the spirit and intent of Three Strikes.”
Contrary to Patel’s assertion, nothing indicates that the court’s ruling lacked impartiality. Rather, the record demonstrates the trial court was aware it could dismiss the prior conviction and considered only relevant factors in that regard. Accordingly, Patel has not shown the court erred by refusing to strike his prior conviction.
2. Concurrent sentencing
The trial court imposed concurrent sentences for counts 1 and 2. Patel contends this violates section 654 because both assaults were committed with a single intent and objective, and were part of a continuous course of conduct. He is correct.
Penal Code section 654 states, in relevant part, “(a) 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.” In People v. Kwok (1998) 63 Cal.App.4th 1236, the court stated, “Although section 654 literally applies only where multiple statutory violations arise out of a single ‘act or omission, ’ it has also long been applied to cases where a ‘course of conduct’ violates several statutes. (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Brown (1958) 49 Cal.2d 577, 591.) A ‘course of conduct’ may be considered a single act within the meaning of section 654 and therefore be punishable only once, or it may constitute a ‘divisible transaction’ which may be punished under more than one statute. (Neal v. State of California, supra, at p. 19; People v. Brown, supra, at p. 591.) [¶] [T]he basic test for determining whether a ‘course of conduct’ is divisible was stated in Neal as follows: ‘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.’ [Citation.]” (Kwok, supra, 63 Cal.App.4th at pp. 1252–1253.) Section 654 applies to concurrent sentences. (People v. Deloza (1998) 18 Cal.4th 585, 592.)
The purpose of Penal Code section 654 is to insure that a defendant’s punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Whether section 654 applies in a given case is a question of fact for the trial court. Its findings, express or implied, “will not be reversed on appeal if there is any substantial evidence to support them.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Section 654 applies only to “a course of conduct deemed to be indivisible in time.” (People v. Beamon (1973) 8 Cal.3d 625, 639 & fn. 11.) Thus, if offenses were committed with a single intent and objective, they may be punished separately only if found to have been committed on different occasions. (People v. Kwok, supra, 63 Cal.App.4th at p. 1253.) Among the factors considered in determining the temporal divisibility of offenses are whether the defendant had an opportunity to reflect upon and renew his or her intent before committing the next offense and whether each offense created a new risk of harm. (People v. Gaio (2000) 81 Cal.App.4th 919, 935; Kwok, supra, 63 Cal.App.4th at pp. 1255.)
The record is silent as to the trial court’s reasons for imposing concurrent sentences on counts 1 and 2. Implicit in the sentencing decision is a finding that the two crimes involved more than one objective (People v. Osband (1996) 13 Cal.4th 622, 730), and we must view the evidence in favor of that determination and affirm if the evidence is substantial. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313.)
Respondent argues evidence of diverse objectives may be found in the nature of Patel’s two assaults on Nepomuceno, the first of which was complete after he hit Nepomuceno on the shoulder, and the second which occurred when he chased after the attorney, holding the hammer aloft, poised to strike Nepomuceno in the head as he stood trapped near the elevator. Respondent contends it may be implied that Patel possessed independent motivations for each assault. After inflicting serious injury to Nepomuceno’s shoulder, Patel purportedly had an opportunity to reflect on his actions, and chose to engage in a new pursuit of Nepomuceno, intending to inflict an additional or greater injury to the man’s head. Viewed in the light most favorable to the sentencing order, respondent insists there is sufficient evidence to support a finding that Patel had multiple objectives, and his actions were divisible as to intent and time. (People v. Beamon, supra, 8 Cal.3d at p. 639, fn. 11.) The record does not support this assertion.
After he was struck in the shoulder, Nepomuceno bolted from the coffee room to escape his attacker. Patel immediately pursued Nepomuceno with the same intent and objective—to strike him with a hammer. The record does not indicate the interval of time that passed between the blows. What it does show, however, is that according to the victim and eyewitnesses, everything happened “really fast” from the time Patel attacked Nepomuceno in the coffee area, until Nepomuceno got trapped in the elevator bank 8–10 feet away and Patel ran after him and struck more blows. On this record, we believe it requires impermissible speculation and conjecture to infer that Patel either harbored multiple objectives or that a continuous course of conduct may be carved up into separate volitional acts. (See People v. Tran (1996) 47 Cal.App.4th 759, 772 [no reasonable inference may be founded upon speculation or conjecture].) Even if an inference of an objective of a separate assault may have been reasonable, a trier of fact could just have easily concluded Patel harbored the same goal when he hit his victim in the coffee room, as when he struck him near the elevator. Due to these equally reasonable competing inferences, the trial court’s implied finding must be set aside. (Ibid.) Punishing Patel for independent counts of assault is not commensurate with his culpability. Multiple punishments for an indivisible course of conduct, such as occurred here, particularly in light of the temporal proximity between the two incidents aimed at achieving an identical objective, are precluded by section 654. (Cf. People v. Lopez (2004) 119 Cal.App.4th 132, 138; People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.)
3. Restitution order
The trial court ordered Patel to pay victim restitution to Nepomuceno in the amount of $36,250, $20,250 of which was for lost earnings (and $16,000 of which was for medical bills which are not at issue). This finding was based on a letter from Nepomuceno, and his testimony further explaining the nature of and bases upon which his loss was calculated. Patel contends there is insufficient evidence to support this purportedly excessive restitution award, which he insists constitutes a windfall for Nepomuceno. Patel is mistaken.
Section 1202.4 provides in part: “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim..., based on the amount of loss claimed by the victim... or any other showing to the court.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 1201.4, subd. (f).) Moreover, the amount of restitution awarded “shall be of a dollar amount that is sufficient to fully reimburse the victim... for every determined economic loss incurred as a result of the defendant’s criminal conduct, including, but not limited to...: [¶]... [¶] (D) Wages or profits lost due to injury incurred by the victim....” (§ 1202.4, subd. (f)(3).) The statutory restitution provisions are construed broadly to achieve the goals of public safety, victim compensation and offender rehabilitation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1126–1127; People v. Mearns (2002) 97 Cal.App.4th 493, 500–501.)
We review restitution orders for abuse of discretion. (People v. Mearns, supra, 97 Cal.App.4th at p. 498.) The trial court has broad but not unlimited discretion in making a restitution award. “While it is not required to make an order in keeping with the exact amount of loss, the court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.” (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) That said, if there is a “‘factual and rational basis’” for the amount ordered, no abuse of discretion will be present. (Mearns, supra, 97 Cal.App.4th at p. 499.)
Patel argues the amount of time Nepomuceno claimed to have been unable to work due to his injuries was excessive because, as a partner in his law firm, there is no evidence his earnings were impacted by his injuries, and because there is no evidence he received treatments or underwent testing during hours in which he would otherwise have worked.
Nepomuceno testified he computed the lost earnings over three years following the assaults as follows: He lost one week’s worth of work time immediately after the attack; spent one hour per day, three days per week for the next three months undergoing diagnostic testing and/or physical therapy; and thereafter, continued to undergo testing, but discontinued physical therapy. He multiplied this lost time (40 hours) by the average hourly rate charged by his firm for its partners’ time.
We find the amount of lost earnings awarded by the court was rationally based. The computation was based on documentary and testimonial evidence from Nepomuceno himself. This evidence was sufficient to establish a prima facie case for the requested amount of restitution. Once that showing was made, the burden shifted to Patel to demonstrate Nepomuceno’s estimated loss was inaccurate. (People v. Prosser (2007) 157 Cal.App.4th 682, 691.) Patel presented no evidence to rebut the victim’s evidence. The method of calculation was rational, and “a rational basis... is all that is required in calculating the amount of restitution.” (People v. Ortiz (1997) 53 Cal.App.4th 791, 799.) There was no abuse of discretion with respect to the amount of the victim restitution order.
DISPOSITION
The trial court is directed to correct its sentencing order to reflect that the sentence imposed for count 1 is stayed pursuant to section 654, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.