Opinion
E052576 Super.Ct.No. RIF145400
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. SHAWN DAVID YATES, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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OPINION
APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Shawn David Yates appeals from a jury conviction to challenge enhancements imposed for the personal infliction of great bodily injury on the victim as to his convictions for attempted murder (Pen. Code, §§ 664, 187) and robbery (§ 211). Defendant believes the injuries to the victim were part of a single course of conduct, so the great bodily injury enhancement on the robbery count must be stayed under section 654. He also challenges fines imposed by the trial court under sections 290.3 and 1202.5 without a finding of his ability to pay.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
By indictment of the criminal grand jury, defendant was charged as follows:
Count 1: attempted premeditated murder (§§ 664, 187) with personal infliction of great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and personal use of a knife (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23));
Counts 2 and 3: rape (§ 261, subd. (a)(2)) with burglary (§ 667.61, subd. (e)(2)) and kidnapping during the commission of the offense (§§ 207, 209, 209.5, 667.61, subd. (e)(1)), including movement of the victim, which substantially increased the risk of harm (§ 667.61, subd. (d)(2)), personal infliction of great bodily injury (§§ 12022.7, 12022.8, 667.61, subd. (e)(3)), use of a pellet gun (§§ 12022, 12022.3, 12022.5, 667.61, subd. (c)(4), 667, 1192.7, subd. (c)), and tying and binding of the victim (§ 667.61, subd. (e)(6));
Count 5: forcible oral copulation (§ 288a, subd. (c)(2)) with burglary (§ 667.61, subd. (e)(2)) and kidnapping during the commission of the offense (§§ 207, 209, 209.5, 667.61, subd. (e)(1)), including movement of the victim, which substantially increased the risk of harm (§ 667.61, subd. (d)(2)), personal infliction of great bodily injury (§§ 12022.7, 12022.8, 667.61, subd. (e)(3)), use of a pellet gun (§§ 12022, 12022.3, 12022.5, 667.61, subd. (c)(4), 667, 1192.7, subd. (c)), and tying and binding of the victim (§ 667.61, subd. (e)(6));
Count 6: kidnapping for the purpose of robbery, rape, or oral copulation (§ 209, subd. (b)(1)) by instrument (§ 289) with personal infliction of great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and use of a pellet gun (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23); and
Count 7: robbery (§ 211) with personal infliction of great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and use of a pellet gun (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)).
Pursuant to a defense motion under section 1118.1, the court dismissed count 4.
At trial, the victim testified she was a real estate agent. In early March of 2008, she was contacted by defendant, who indicated he and his wife wanted to look at a particular home. She made plans to meet them at the home on March 7, 2008, at 10:00 a.m. When she arrived, defendant said his wife was unable to make the appointment because she had to work. Defendant and the victim entered the home through the front door, and she told him to '"Go ahead and check out the house.'" She waited outside for 10 or 15 minutes and went back inside as defendant was coming down the stairs.
While defendant and the victim were standing by the front door, defendant shut the door behind her, pulled out a gun, put it up to her head, and told her to get on the floor. He taped her wrists and ankles together. He then put his knee on her chest to hold her in place and asked her where her purse was. She told him it was in the car. After grabbing her keys and phone, defendant went outside and got her purse.
While defendant was outside, the victim was able to stand up and remove the tape. Defendant became angry when he reentered the home and saw her. He cursed at her and told her to get back down on the floor. He put the tape back on her hands and asked her for the pin numbers for her ATM cards. She gave him the numbers and he wrote them down. Hoping he would just rob her and leave, the victim told him to take everything, including her purse, watch, and necklace. She then began telling him she had a little boy and just wanted to go home because he did not have anyone but her.
Defendant directed her upstairs to a walk-in closet inside one of the bedrooms, and she complied. With the gun pointed at her, defendant told the victim to take off her clothes and she complied. Although she had some difficulty recalling the exact sequence of events, she believed a sexual encounter began when he performed nonconsensual oral sex on her. She then performed nonconsensual oral sex on him. Next, defendant penetrated her from behind while she was on her hands and knees. She recalled seeing the gun on her left side. He used a lubricant she believed he had in his pocket, and penetrated her vagina two or three times. Although he achieved penetration, the victim indicated defendant was frustrated because he was not able to maintain an erection. At times he became angry and hit her in the head with the gun.
When the sexual intercourse ended, defendant told the victim, '"I am going to kill you now.'" He began hitting her face and head with his fists and the butt of the gun. She wondered why he did not shoot her. She began fighting back. The encounter moved from the closet out into the bedroom. He was hitting her hard. She was hitting, scratching, pulling his hair, choking him, and he was doing the same to her. She also recalled biting defendant on the arm. At some point, she saw pieces of the gun coming apart and realized the gun was no longer in his hand.
Next, the victim recalled they were tired from fighting and both were breathing heavily. She was standing against a wall. He stepped back about 10 feet away from her. She watched, wondering what he would do next. He pulled out a knife, came towards her, and started stabbing her with it. With her left hand, she was trying to block him from stabbing her, and with her right hand, she was trying to stop the hand with the knife. At one point, he had the knife at her throat, and she had her hands on the blade to prevent it from going into her throat.
During the struggle, she was able to get the knife away from defendant and she used it to stab his arm or leg. She then ran into the bathroom and tried to close the door and keep him out, but he pushed hard from the other side and knocked her backwards into the bathtub. In the bathtub, she realized her right middle finger was seriously injured; she could see the bone. There was a lot of blood from lacerations all over her body.
Although she was still conscious, she was having trouble breathing and could not fight anymore. Defendant pulled her out of the bathtub and back onto the floor of the closet. He stood over her shaking his head. He called her a "'Stupid bitch.'" She told him to leave her alone so she could pray. She said, "Let me die." Then she did not see him anymore, but she could hear him somewhere else in the house picking things up. A minute or two later, defendant came back and stabbed her on the neck and on the side of her stomach. She pretended to be dead and did not move.
When she could tell defendant was no longer there, she got up and walked down the stairs, leaning against the wall. She walked out the front door and collapsed on the trunk of her car. She was completely nude. In an attempt to reach a house across the street, she took a few more steps but collapsed. She yelled, "'Help me. Help me.'" She heard a voice say someone was coming. She was taken to the hospital by ambulance. Blood splatters quickly led police to a nearby home, where defendant had been living. Bloodstained clothing, a gun, and other evidence were found in and around the home. Police determined the gun was not an actual firearm but a pellet, or BB gun. A folding knife with blood and hair on it was also found in the home.
The victim testified she had a large laceration on her head and wounds on her neck, stomach, hands, and knee. The worst of the stab wounds were on her left hand, and she had multiple surgeries over the last two years; she sustained major nerve damage. At the time of trial, she was unable to bend her fingers and could not feel her hand. She had three discs taken out of her neck and now had a titanium plate there. She suffered from anxiety and headaches, as well as pain in her neck and hands. A nurse who was present in the trauma room of the hospital photographed the wounds and identified them for the jury. The injuries were more extensive than the victim could recall. The nurse said the victim was covered with blood and had lost enough blood to require a transfusion. In her vaginal area, the victim had a tear consistent with sexual penetration.
In addition to the victim's testimony, the prosecution was able to play a portion of a videotaped interview between defendant and a police officer, which took place shortly after the incident. During the interview, defendant gave police a narrative of the events, which was to some extent consistent with the victim's testimony.
On September 20, 2010, the jury reached a verdict; on September 21, 2010, the jury found defendant guilty as charged and also found all enhancements to be true. However, the jury found defendant did not commit count 1 (attempted murder), with willful premeditation and deliberation.
Defendant was sentenced by the court on December 14, 2010. On count 1 (attempted murder), the principal count, the court imposed the upper term of nine years plus three years for the great bodily injury enhancement and another year for the knife enhancement, for a total determinate term of 13 years. On counts 2 and 3 (rape), as well as count 5 (oral copulation), the court imposed consecutive indeterminate terms of 25 years to life on each count because of the special finding the victim was moved resulting in increased risk. The court then added three years for the great bodily enhancement and one year for the use of a weapon. However, the enhancements on each count were stayed under section 654, because they were used to increase the sentence on other counts. The court imposed these counts consecutively based on a finding they were separate and distinct acts of violence. On count 6 (kidnapping for the purpose of robbery, rape, or oral copulation), the court imposed but stayed a seven-years-to-life sentence. The court also imposed but stayed the three year great bodily injury enhancement and the one year weapon enhancement. On count 7 (robbery), the court imposed a determinate term of one year plus one year for the great bodily injury enhancement and four months for the weapon use enhancement, for a total of two years, four months, to be served consecutively to count 1.
DISCUSSION
A. STAY UNDER SECTION 654
Pursuant to section 654, defendant challenges imposition of the great bodily injury enhancements on both count 1 (attempted murder) and count 7 (robbery). He believes the one year great bodily injury enhancement on count 7 should be stayed under section 654. According to defendant, multiple sentencing enhancements cannot be imposed for a single act of inflicting great bodily injury upon one person, even if the defendant committed more than one crime against the same victim. He believes section 654 required the court to stay the great bodily injury enhancement on count 7, because the injuries inflicted on the victim with the gun and the knife were part of a single, indivisible course of conduct. Defendant further believes the victim's injuries were not connected to the robbery, because no beating or stabbing occurred in order to gain control over the stolen items from the victim.
Section 654, subdivision (a), provides as follows: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." Section 654 applies to enhancements as long as they relate to the commission of the current offense rather than the defendant's status as a recidivist offender. (People v. Coronado (1995) 12 Cal.4th 145, 156-159; People v. Douglas (1995) 39 Cal.App.4th 1385, 1392 [Fourth Dist., Div. Two].)
Here, the trial court did not make any specific findings on the application of section 654 to the challenged enhancements during the sentencing hearing. As a result, we assume the record reflects a determination by the trial court that each crime had a separate objective. (See, e.g., People v. Blake (1998) 68 Cal.App.4th 509, 512.) On appeal, we will uphold such a determination if there is substantial evidence to support it. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
"The purpose of [section 654] is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission— the offense carrying the highest punishment. [Citations.]" (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) However, if the acts were independent and none were merely incidental to another, the defendant may be punished separately for each offense even if the acts were committed closely in time and space. (People v. Hicks (1993) 6 Cal.4th 784, 789.)
"It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.) Likewise, multiple punishments may be imposed where the defendant commits two crimes in pursuit of two independent objectives, even if the objectives are simultaneous. (People v. Douglas, supra, 39 Cal.App.4th at p. 1393.)
Here, there is substantial evidence in the record to support the trial court's decision to impose great bodily injury enhancements on count 1 (attempted murder) and count 7 (robbery). First, the jury made a special finding that defendant inflicted great bodily injury on the victim with a knife. The jury also made a special finding that defendant inflicted great bodily injury on the victim with a pellet gun in connection with the robbery. It is well established that a robbery continues until the robber reaches a place of temporary safety with the stolen property. (People v. Navarette (2003) 30 Cal.4th 458, 502.) As outlined more fully below, the evidence shows the robbery was still in progress when defendant injured the victim with the butt of the gun.
Second, based on the evidence in the record, the trial court could reasonably conclude defendant had distinct objectives when he used the pellet gun to repeatedly strike the victim, and when he attacked the victim with the knife. Defendant first used the pellet gun by pointing it at the victim's head in order to force her to turn over her valuables. According to defendant's own account, he initially taped the victim's hands and feet so he could escape the scene of the robbery without her following him. However, the victim resisted when she removed the tape while defendant was getting her purse out of her car. This made defendant angry, and he attempted to subdue her once again by reapplying the tape. However, the evidence suggests the victim continued to resist. While defendant accomplished his sexual agenda, it is reasonable to infer defendant continued to maintain the objective of subduing the victim so he could escape the scene undetected with the victim's valuables. However, the victim continued to fight and resist, so defendant became even more agitated and began hitting and injuring the victim with the butt of the pellet gun.
Third, the victim's testimony indicates there was a distinct break in the struggle, when both were tired from fighting. At this point, the victim was standing up against a wall and defendant backed away from her about 10 feet. She watched and wondered what he was going to do. The victim's testimony indicates reflection on defendant's part about what to do next. He could have simply retreated, given up the fight, and run from the house with the stolen items. Instead, it appears he formed a new and different objective. As the jury's verdict indicates, defendant at this point had the intent to murder the victim. He removed a knife from his pocket, and his actions from that point forward make it indelibly clear his intent was to inflict fatal wounds on the victim in order to eliminate her as a witness. His intent to murder her was over and above what was necessary to accomplish his initial objectives of robbing her, sexually abusing her, and escaping the scene. Under these circumstances, the trial court could reasonably conclude the injuries inflicted by the knife were divisible from those inflicted by the gun, because they were accomplished based on different objectives. We therefore conclude substantial evidence supports the trial court's implied conclusion section 654 did not apply, and enhancements could be imposed for personal infliction of great bodily injury on both counts 1 and 7.
B. FINES IMPOSED UNDER SECTIONS 290.3 AND 1202.5
Defendant argues the trial court should not have imposed a fine of $1,300 under section 290.3, because the statute requires a finding defendant has the ability to pay, and the court either impliedly made this finding or imposed it based on insufficient evidence of his ability to pay. He therefore believes the fine is unauthorized and should be stricken.
Subdivision (a) of section 290.3 states as follows: "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Italics added.)
As with the fine imposed under section 290.3, defendant argues the trial court should not have imposed a $10 fine under section 1202.5, because the statute requires the court to make a finding the defendant has the ability to pay, and the court either impliedly made this finding or imposed it based on insufficient evidence of his ability to pay. Defendant therefore contends the fine should be stricken as unauthorized.
Subdivision (a) of section 1202.5 states as follows: "In any case in which a defendant is convicted of any of the offenses enumerated in Sections 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution. (Italics added.)
Preliminarily, we must disagree with defendant's contention the trial court impliedly made a finding defendant did not have the ability to pay the fines imposed under sections 290.3 and 1202.5. As we read the record, the court concluded defendant did not have the ability to pay restitution in excess of the minimum amount of $200 per offense, for a total of $1,200, under subdivisions (b) and (c) of section 1202.4.
"An unauthorized sentence may be corrected at any time whether or not there was an objection in the trial court. [Citation.]" (People v. Burnett (2004) 116 Cal.App.4th 257, 260.) However, a sentence is not unauthorized simply because the trial court did not make a finding of a defendant's ability to pay even if nothing in the record shows the defendant had an ability to pay. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) Unless the statutory language indicates an ability-to-pay finding is a condition precedent to imposing a fine, the trial court is generally not required to determine sua sponte that the defendant has the ability to pay, particularly where the fine was recommended in the probation report. Rather, it is the defendant's burden to argue affirmatively against the fine and demonstrate why it should not be imposed. (People v. McMahan (1992) 3 Cal.App.4th 740, 748-750.) In McMahan, the appellate court concluded based on the construction of the statute, that an ability-to-pay finding is not a condition precedent to imposing a fine under section 290.3. (McMahan, at p. 749.) Our reading of section 1202.5 leads us to the same conclusion.
Here, as we read the record, it is silent as to any finding by the trial court of defendant's ability to pay the fines required under sections 290.3 and 1202.5. The probation report recommended these fines in the amounts imposed. Defendant did not object to the fines at the time of sentencing. Under these circumstances, we presume the trial court made the requisite findings to support its judgment. We therefore conclude the fines imposed pursuant to sections 290.3 and 1202.5 do not render the sentence unauthorized so that it may be corrected on appeal.
We also reject defendant's alternative argument that his counsel was ineffective for failing to object to these fines. A cognizable claim of ineffective assistance of counsel requires a showing "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." (Strickland v. Washington (1984) 466 U.S. 668, 687.) "[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsel's performance prejudiced his defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) Because a defendant must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds counsel's performance was reasonable or the claimed error was not prejudicial. (Id. at p. 687.)
"Because we accord great deference to trial counsel's tactical decisions, counsel's failure to object rarely provides a basis for finding incompetence of counsel." (People v. Lewis (2001) 25 Cal.4th 610, 661.) Such claims must be rejected on direct appeal if the record does not affirmatively show why counsel failed to object, and the circumstances suggest counsel could have had a valid tactical reason for not objecting. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Here, it is unclear why counsel did not object to these amounts, and it is possible counsel did not object to the fines because he did not believe an objection would have altered the outcome. "Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387.) Nor has defendant shown the results of the proceeding would have been different if counsel had objected to the challenged fines.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.