Opinion
H032002
6-24-2008
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND CHARLES QUINONEZ, Defendant and Appellant.
Not to be Published
I. INTRODUCTION
In the fall of 2001, defendant Raymond Charles Quinonez and his coconspirators planted a number of pipe bombs by schools and other public places in the City of Watsonville. They then telephoned authorities to report the bombs and, while law enforcement was occupied investigating the bomb threats, they entered a business in a different part of town, pointed a semi-automatic handgun at the employees, and demanded cash. Defendant was convicted of conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1), count 1), attempted robbery (§§ 664, 211, count 13) and six offenses related to his planting the bombs and later calling in false bomb threats (§§ 12303.2, 148.1, counts 6-11). He was sentenced to 25 years and four months in prison.
Some of the bombs did not have an independent source of ignition but all contained gunpowder. There was a discussion at trial about whether any of the devices could properly be classified as destructive or explosive devices. The distinction has no bearing upon the issues in this case. Our use of the term "bomb" is not intended to incorporate any particular legal definition.
Further statutory references are to the Penal Code.
In his first appeal defendant argued that section 654 prohibited punishment for both conspiracy and for the bomb-related counts that were part of the conspiracy. (People. v. Quinonez (Sept. 7, 2006) H027654 [nonpub. opn.] (Quinonez I).) We agreed and remanded for resentencing.
We have previously granted defendants motion to take judicial notice of the record in Quinonez I.
In this appeal, defendant argues that under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham ), he was entitled to a jury determination of the facts relating to the imposition of consecutive sentences and to the application of section 654. Defendant also maintains that section 654 precludes separate punishment for attempted robbery and the bomb-related counts. We agree, in part, with defendants final point and, therefore, modify the judgment. We reject his remaining assertions and, as modified, affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts, as set forth in Quinonez I, are as follows:
Shortly after midnight on October 30, 2001, an anonymous caller using a fake accent telephoned 911 to report that he had placed an explosive device in an orchard near Green Valley Road in Watsonville. Later that day, calls to 911 and to Watsonville police dispatch reported that explosive devices had been planted at Rolling Hills Middle School and Freedom Elementary School. Before receiving word of the bomb threats, the custodian at Freedom Elementary School had discovered some debris that he threw in the dumpster just before the dumpster was taken to the landfill. Later the same morning, a student gave the principal a device she had found in front of a classroom. The principal thought the device was construction debris and placed it on a shelf in the custodians office. Officers responding to the telephoned bomb threats immediately recognized the device in the custodians office as a pipe bomb. The custodian reported that the device looked like the one he had discarded earlier. The area was evacuated, a remote controlled robot removed the bomb, and a bomb technician detonated it. Another pipe bomb was found in the orchard next to Green Valley and Litchfield Roads.
On October 31, 2001, the day after the first set of anonymous calls, another call was placed to Watsonville police dispatch. This time the caller reported bombs at Freedom Elementary School, Watsonville Community Hospital, and Crossroads Shopping Center. The elementary school was evacuated again. All the locations named in the anonymous calls were searched. While the search was in progress, the caller again telephoned the authorities, apparently monitoring the search on a police scanner, and directed them to where the bomb was supposedly located in the shopping center. Searchers uncovered a pipe bomb in the grass in front of the childrens center adjacent to the elementary school. No bombs were found at any of the other locations mentioned. Meanwhile, as police were searching the schools, hospital, and shopping center, two masked men entered Tropicana Travel on the other side of town and pointed a semi-automatic handgun at the people inside. After discovering that the cash was locked up, the would-be robbers ran out without taking anything.
A jury convicted defendant of one count of conspiracy to commit robbery (§§ 182, subd. (a)(1), 211, count 1), four counts of possession of a destructive device or explosive near a school or other public place (§ 12303.2, counts 6-9), two counts of making a false report of a bomb to a police officer (§ 148.1, subd. (a), counts 10 & 11), and one count of attempted robbery (§§ 664, 211, count 13). The jury found the arming allegation alleged in connection with count 13 to be true (§ 12022, subd. (a)(1)) and the trial court separately found that defendant had suffered one prior strike conviction (§ 667, subds. (b)-(i)), two prison priors (§ 667.5, subd. (b)), and one prior serious felony conviction (§ 667, subd. (a)).
The trial court sentenced defendant to 25 years and four months in prison. The sentence reflected consecutive terms on all counts and enhancements. The court stayed the term for one prison prior as that was used as the basis for consecutive sentences. The court stayed, pursuant to section 654, one of the two bomb-threat counts, concluding that the two counts, which involved the false bomb threats relating to the hospital and the shopping center made on the day of the attempted robbery, represented one objective in a single course of conduct. The court also stayed the attempted robbery count, finding that "the conspiracy did not have any objective, apart from that involved in the attempted robbery, as did all the other crimes."
On appeal in Quinonez I, defendant argued that section 654 prohibited punishment for conspiracy and for the bomb-possession and bomb-threat convictions, which he claimed were also the object of the conspiracy. We agreed with that contention but rejected the additional argument that section 654 precluded separate punishment for each of the bomb-possession and bomb-threat convictions. Since the trial court had stayed punishment for the attempted robbery, we had no occasion to determine how that crime fit into the section 654 analysis other than to say that defendant could not be punished for both the conspiracy and the attempted robbery.
On remand, the trial court stayed the sentence for the conspiracy and for one of the two false bomb threats. The court sentenced defendant to consecutive terms on all remaining counts, including the attempted robbery. The resulting sentence is 25 years.
III. DISCUSSION
A. The Blakely Issues
The Apprendi/Blakely/Cunningham cases held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Defendant argues that this right also applies to the facts supporting a decision to impose consecutive sentences under section 669 and the facts used to decide whether to stay a term under section 654. Defendant concedes that People v. Black (2007) 41 Cal.4th 799 (Black II ), held that the jury trial right does not extend to consecutive sentencing. He raises the issue only to preserve it for further review.
Black II stated that Cunningham "does not undermine our previous conclusion [in People v. Black (2005) 35 Cal.4th 1238 (Black I)] that imposition of consecutive terms under section 669 does not implicate a defendants Sixth Amendment rights." (Black II, supra, 41 Cal.4th at p. 821.) "The determination whether two or more sentences should be served [consecutively] is a `sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not `implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Black I, supra, 35 Cal.4th at p. 1264.) Accordingly, we again conclude that defendants constitutional right to jury trial was not violated by the trial courts imposition of consecutive sentences on all three counts." (Id. at p. 823.) This court is bound by that holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In determining to follow its decision in Black I with respect to concurrent sentences, Black II implicitly approved the conclusion in Black I that a jury was not required for either a section 654 or a section 669 determination. (Black I, supra, 35 Cal.4th at p. 1264.) Indeed, Black I cited with approval the existing law, which is that section 654 "is a discretionary benefit provided by the Legislature to apply in those limited situations where ones culpability is less than the statutory penalty for ones crimes." (People v. Cleveland (2001) 87 Cal.App.4th 263, 270.) The jury trial right does not apply to a section 654 determination because the finding is not a factual determination made by a judge that increases the maximum statutory penalty for the particular crime or crimes. (Id. at p. 271.) Nothing in the Apprendi/Blakely/Cunningham line of cases affects this conclusion. Accordingly, we adopt the reasoning of People v. Cleveland, supra, 87 Cal.App.4th at pages 270-271, and conclude that defendant was not entitled to a jury determination on the application of section 654.
B. Section 654
Defendant also argues that section 654 precludes separate punishment for both the attempted robbery and the bomb-threat and bomb-possession crimes. We agree in part.
In pertinent part, section 654, subdivision (a) provides, "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 initial inquiry in any section 654 application is to ascertain the defendants objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.) " `The defendants intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. " (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Generally, the trial court has broad discretion in determining the factual issue of whether a defendant has multiple objectives for purposes of section 654. On appeal we will uphold the courts express or implied finding that a defendant held multiple criminal objectives if it is supported by the evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.)
We concluded in Quinonez I, that there was evidence to support the trial courts implied determination that defendant had a separate intent and objective with respect to each of the bomb-possession and bomb-threat counts for which he was punished. Defendant now argues that even if the bomb-related crimes may be considered separate from each other, they are not separate from the attempted robbery since all were part of the plan to rob the travel agency. We agree insofar as the argument applies to the false bomb threats. But as to the bomb-possession counts, we disagree.
There is substantial evidence in the record to support the trial courts implied finding that defendants intentions with respect to the bomb-possession crimes were separate from the attempted robbery. A course of conduct, directed toward one objective but divisible in time, may give rise to multiple violations and separate punishments. Separate punishment is permissible where the offenses are temporally separated in such a way as to afford the defendant the opportunity to reflect and to renew his or her intent before committing the next offense, "thereby aggravating the violation of public security or policy already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) Significant factors supporting separate punishment for multiple offenses include the fact that the offenses were committed on different occasions, that the defendant had the opportunity to reflect between the offenses, and that each successive offense created a new risk of harm. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1255.)
In People v. Beamon, supra, 8 Cal.3d at page 639, footnote 11, the Supreme Court stated: "It seems clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment." Courts have since adopted this observation and concluded that even where multiple offenses are aimed at one intent and objective, they may be subject to separate punishment if they were committed on different occasions. (People v. Kwok, supra, 63 Cal.App.4th at p. 1253.) For example, in People v. Williams (1988) 201 Cal.App.3d 439, 441, the defendant burglarized the residence of his in-laws and stole $100,000 in jewels with the intent to use the proceeds to pay someone to kill the in-laws. He solicited the murder several months later and was arrested when the would-be hit man turned out to be an undercover police officer. (Ibid.) The appellate court held that since the defendant committed the burglary in January and solicited murder the following May the crimes were divisible in time and that imposition of separate sentences was permissible. (Id. at p. 442.) Indeed, because the purpose of section 654 is to ensure that punishment is commensurate with culpability, courts have recognized that an offense committed to achieve another offense may "at some point . . . become so extreme [that it] can no longer be termed `incidental and must be considered to express a different and a more sinister goal than mere successful commission of the original crime." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
In the present case, defendant and his coconspirator planted the bombs two or more days before the attempted robbery in separate locations around Watsonville. They alerted authorities to the location of all the bombs on the day before they attempted to rob the travel agency. The lapse of time between defendants commission of the bomb-possession crimes and the attempted robbery certainly allowed for reflection. Furthermore, the crimes were not only separated from the robbery attempt by time, they posed a completely different risk of harm to different victims than the robbery attempt posed. The public as a whole, including the children at the elementary school, were direct victims of the bomb-possession crimes. The evidence supports the conclusion that defendants intent was to incite fear among these victims and disrupt the routine functioning at the locations where the bombs were planted. Even though the crimes were among those contemplated by the conspiracy, defendants intent in planting each bomb is divisible from, not merely incidental to, his intent to rob the travel agency. Separate punishment is not precluded by section 654.
Although the Attorney General does not mention the false bomb threats separately, we think they deserve individualized treatment. Defendant was convicted of making two false bomb threats; one that reported a bomb at the hospital and the other that reported a bomb at the shopping center. He was punished for only one of those based upon the trial courts determination that they were part of the same course of conduct. We agree with defendant that there is no evidence to support the courts implied finding that his intent and objective with respect to these crimes was separate from the attempted robbery. In making these calls defendant was directly involved in attempting the robbery because these false bomb threats were clearly designed only to distract law enforcement at the very time the attempted robbery was in progress. Thus the attempted robbery and the false bomb-threats, which were made during or just prior to the attempted robbery, represent a single course of conduct with but a single intent—robbing the travel agency. Defendant cannot be punished for both.
"When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Such stay is to be effective pending the successful service of sentence for the more serious conviction, at which time the stay is to become permanent." (People v. Miller (1977) 18 Cal.3d 873, 886, overruled on another ground as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8.) Section 654 requires that defendant be punished under the provision that provides for the longest term. The trial court imposed a sentence of one year and four months on both count 10 (the bomb threat) and count 13 (attempted robbery) and added four months to count 13 for the arming enhancement. Since count 13 carries the longer term, we shall stay execution of sentence on count 10.
IV. DISPOSITION
The judgment is modified to stay the execution of sentence on count 10 under section 654. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR:
Rushing, P.J.
Elia, J.