From Casetext: Smarter Legal Research

People v. Romero

California Court of Appeals, Second District, Seventh Division
Oct 10, 2007
No. B194703 (Cal. Ct. App. Oct. 10, 2007)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JESUS PONCE ROMERO, Defendant and Appellant. B194703 California Court of Appeal, Second District, Seventh Division October 10, 2007

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. GA061430, Zaven V. Sinanian, Jr., Judge.

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Theresa A. Patterson and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

WOODS, J.

Jesus Ponce Romero appeals from his convictions and sentences for willful, premeditated and deliberate attempted murder, criminal threats, burglary and arson. On appeal he claims the court erred in instructing the jury and in sentencing him. Specifically, Romero claims the court erred in refusing to instruct the jury concerning the police authority to take a mentally ill person into custody and also gave a legally inadequate jury instruction CALCRIM 220 concerning the reasonable doubt standard. Romero also asserts the court erred in: (1) failing to stay his sentence on his criminal threats conviction pursuant to Penal Code section 654; (2) imposing consecutive terms on the attempted murder and criminal threats convictions; and (3) failing to award him pre-sentence conduct credits. He also asserts the consecutive sentences violate principles announced in Blakley v. Washington (2004) 542 U.S. 296 (Blakely). As we shall explain, only the claim concerning the pre-sentence conduct credits is meritorious. Romero has not shown that the refusal of his requested instruction resulted in prejudicial error. In addition, CALCRIM 220 adequately conveys the matters for the jury to assess when considering the reasonable doubt standard. Furthermore the court properly sentenced him for the attempted murder and criminal threats convictions. Accordingly, we modify the judgment to award pre-sentence conduct credits, and affirm in all other respects.

All statutory references are to the Penal Code unless otherwise indicated.

FACTUAL AND PROCEDURAL BACKGROUND

On May 9, 2005, at about 8:00pm in the evening, Juan Ortiz, and his two children were at home in their Monrovia duplex. Ortiz and his nine-month-old daughter Maria were in the living room watching a movie while his nine-year-old daughter Claudia was in the bathroom taking a shower.

Ortiz heard a noise of a window breaking in his kitchen and went to investigate. He heard a voice, later identified as that of Romero, yell “Come on, mother fucker, I am going to kill you, you and your entire family.”

Romero’s wife Jean Ponce lived next door to Ortiz. A friend of Ponce, Aundrea Villanueva, who was visiting Ponce at the time, saw Romero. She said that Romero asked her to call 9-1-1 and that he asked Villanueva to take his daughter home with her because he was going to blow the place up. She also saw Romero break Ortiz’s kitchen window and throw a mop, which he had lit on fire, into the kitchen. She heard Romero yell “Fuck you. You think I don’t know what you are doing to my wife? Fuck you, you dog.” A neighbor also heard screaming and stepped outside and saw Romero standing in front of the duplex screaming, “Get out, mother fucker. I will kill you. Get out. Get out dog. I will kill you, you and your family. Get out.” After he saw the duplex catch on fire, the neighbor called police.

Frightened, Ortiz picked up the infant and ran into the bathroom where his older daughter was taking a shower. He then returned to his living room to get his telephone at which point he saw Romero holding a flaming mop and waving it from side to side trying to spread the fire inside Ortiz’s duplex. Ortiz returned to the bathroom and locked the door. Even after smoke began to enter the bathroom, Ortiz was afraid to leave through the door because Romero was still outside. Shortly thereafter a police officer came to the bathroom window and Ortiz and his children were able to escape. The fire department arrived and put out the blaze, but the damage to the duplex was extensive.

At the scene the police observed Romero standing outside the duplex yelling that people were trying to kill his family.

Romero was arrested and charged with three counts of attempted willful, premeditated murder of Juan Ortiz (Count 1), and his two daughters (Counts 2-3); criminal threats against Ortiz and his daughters (Count 4); first degree burglary (Count 5); and arson (Count 6).

Count 4 was amended prior to trial to delete the reference to Ortiz’s daughters.

Among the trial witnesses, Romero’s wife, Ponce testified. She told the jury that she and Romero had been married for 12 years and that while the first part of their relationship was good, Romero’s personality and behavior became erratic and strange the last couple of years. She described Romero’s conduct as paranoid and “schizophrenic.” She explained that he developed strange habits, claimed to hear voices and had stopped working about a year before the fire. Ponce suspected that he might be abusing narcotics and found, what she believed to be, drugs around the house.

Ponce had rented the duplex next to Ortiz about a year before to get away from her husband. But Romero was allowed to move in because he did not have any place to live. Romero’s odd and paranoid behavior continued at the duplex. He took pictures of the walls and said that there were people in the walls that were hurting him. He would disassemble appliances, household items and fixtures, claiming that there were waves coming from them. He ripped up the carpet, and cut the telephone and cable lines.

Ponce testified that she tried to get her husband help. She also stated that she called police three or four times prior to the incident. About a month and a half before the fire she called police and told them about her husband’s narcotic use and his erratic behavior. According to Ponce the police told her that they would take Romero away “if he wasn’t drinking any alcohol” and that he was just “nuts” and she had to deal with it.

The night before the fire Ponce said that Romero was pacing and slamming doors all night and on the day of the fire, Ponce said that Romero was in a weird mood and was “very, scary looking.” She said his body did not look good and she thought about calling an ambulance. She testified that shortly before he started the fire she feared Romero would do something and so she called the police. During Ponce’s 9-1-1 telephone call, the transcript of which was played for the jury, Ponce stated that Romero was acting erratically, was on methamphetamine and had not slept for four days. She also told the operator that Romero was threatening to blow up the house.

Romero was evaluated by a psychologist, Dr. David Jimenez. Dr. Jimenez told the jury that based on his interviews with Romero, Ponce and his review of the records and reports related to the case, it was his view that Romero’s conduct in starting the fire was consistent with someone suffering from mental illness. He opined that Romero suffered from a delusional and psychotic disorder. Romero told the doctor that he thought that his wife was having an affair with a man who lived in the attic and that he believed he was targeting that man when he started the fire. The doctor told the jury that in his view, Romero’s actions were impulsive and disorganized, rather than premeditated. He stated that if Romero had been lucid at the time he started the fire, he did not believe he would have waited around for police to arrive. Dr. Jimenez did say, however, that Romero understood that spraying a flammable liquid on a mop would cause it to light on fire.

In his written report, Dr. Jimenez stated Romero may have been under the influence of illegal drugs and had experienced a substance induced psychotic disorder at the time he started the fire. Romero told the doctor, however, he had not used illegal substances for two years prior to the incident.

The jury found Romero guilty of attempted murder (Count 1), criminal threats (Count 4), burglary (Count 5) and arson (Count 6). He was acquitted of the attempted murder in Counts 2 and 3 pertaining to the Ortiz children.

The court sentenced Romero to a determinate term of two years (the middle term) for Count 4, criminal threats, and to a consecutive indeterminate life term on Count 1, attempted premeditated murder. The court imposed and stayed, pursuant to section 654, the middle term of four years on Count 5 and the middle term of five years on Count 6. The court granted 531 total pre-sentence credits, consisting exclusively of actual time served. The court denied conduct credits because appellant was sentenced to a life term.

Appellant timely appeals.

DISCUSSION

I. Instructional Errors

Romero asserts two instructional errors on appeal. First he claims the court erred when it denied his request to instruct the jury pursuant to Welfare & Institutions Code section 5150, concerning the authority of the police to take a mentally ill person into custody. Second he claims CALCRIM 220 misstates the reasonable doubt standard. We address these contentions in turn

A. The Court Did not Commit Prejudicial Error in Denying Romero’s Instruction Concerning Welfare and Institutions Code section 5150

Romero claims the court erred in failing to instruct the jury that, pursuant to Welfare and Institutions Code section 5150, the police could only take him into custody if they found him to be a danger to himself or others. He claimed this instruction was necessary because it bolstered his wife’s testimony that he was mentally disturbed for at least a year prior to the fire and that such an instruction was necessary and relevant for his defense that he did not have the requisite mental capacity to commit the charged crimes. He asserts that without the proffered instruction, the jury was likely to conclude that his wife was not telling the truth about his mental state, and that the jury would also erroneously conclude that if he was as mentally disturbed as he claimed the police would have taken him into custody.

During cross-examination of Romero’s wife she was asked about whether she ever called the police in an effort to get her husband removed from the home. She said that the police came to the home three or four times and that she told them about his narcotic use and erratic behavior. The prosecutor then asked: “Did you ask the police to take him away?” In response Ponce testified: “The police told me they would take him away if he wasn’t drinking any alcohol, and they also told me, ‘Your husband’s nuts.’ And that was . . . maybe a month and a half before this incident. Okay? The police officer told me, ‘Your husband’s nuts,’ and that I had to deal with it. They didn’t do anything for me.”

Thereafter Romero proposed the following instruction to be read to the jury:

“A peace officer lacks authority to take a person into custody only on the basis that the individual is suffering from a mental disorder unless there exists probable cause for the officer to determine that, as a result of a mental disorder, the person is gravely disabled or presently a danger to himself or others.”

He also asked for the entire text of the statute be read to the jury. He argued that the instruction was necessary to rebut the inference raised during cross-examination that Ponce was not telling the truth about her “experiences” with Romero because she did not do anything about him when she had the opportunity. Romero’s counsel further argued the instruction was “right on point to explain why her efforts were unsuccessful, because [Romero] hadn’t gone off the deep end far enough to justify him being arrested in the opinion of the officers that were there. And without that, [Ponce’s] testimony on this issue is somewhat in a vacuum.”

Welfare and Institutions Code 5150, provides in pertinent part: “When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.”

The court rejected the instruction concluding there was not a sufficient basis for it.

Requested instructions on a defense must be given if they are supported by substantial evidence, rather than “minimal and insubstantial” evidence. (People v. Flannel (1979) 25 Cal.3d 668, 684.) Evidence is substantial if a reasonable jury could find the existence of the particular facts underlying the instruction. If the evidence is substantial, the trial court is not permitted to determine the credibility of witnesses, which is a task for the jury. (People v. Wickersham (1982) 32 Cal.3d 307, 324-325, disapproved on another point in People v. Barton (1995) 12 Cal.4th 186, 201; People v. Strozier (1993) 20 Cal.App.4th 55, 63.) “A criminal defendant is entitled, on request, to instructions that pinpoint the theory of the defense case.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) But “‘[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.’” (In re Christian S. (1994) 7 Cal.4th 768, 783.)

In our view the court did not commit prejudicial error in refusing the proposed instruction. At most the instruction was supported by evidence which was minimal and insubstantial. An instruction under Welfare and Institutions Code section 5150 would require evidence that the police came out to the home and made an assessment of Romero’s mental condition. On the record, however, Ponce’s testimony establishes the police came to the home and made some hearsay statements about Romero and then left. Romero presented no admissible evidence that the police made any kind of reasoned assessment of his condition and having done so determined that there was no probable cause to take him into custody based on his mental condition. In short, Romero failed to establish sufficient factual underpinnings to warrant an instruction under Welfare and Institutions Code section 5150.

In addition, such an instruction would not have served his defense. Romero’s defense was that he was so mentally impaired on the day of the fire that he lacked the mental capacity to commit the crimes. Such a defense is not bolstered by information that the police came out a month and a half before the incident and concluded that he was not a sufficient danger to himself or anyone else. What the police did or did not do weeks before the day at issue is tangentially related to the crimes. In fact, the jury was just as likely to infer, after hearing such an instruction, that because the police refused to take him into custody Romero was not so mentally disturbed or dangerous that he lacked the mental capacity to commit the crimes.

In any event, failure to give such an instruction did not, in our view result in prejudice. We do not agree that absent the instruction the jury would have been less likely to believe Ponce’s testimony concerning Romero’s mental state either before the crimes were committed or on the day he set the fire. Romero’s defense did not turn exclusively on the testimony of his wife. Ponce, Dr. Jimenez, police witnesses and neighbors all provided testimony concerning Romero’s behavior before and after the crimes from which the jury could glean his mental state at the time. In our view the failure to give this instruction did not undermine his defense and had no effect on the verdict.

B. CALCRIM 220 Does Not Misstate the Reasonable Doubt Standard or Deprive Romero of Due Process

We review de novo the validity of the trial court’s jury instructions. (People v. Burch (2007) 148 Cal.App.4th 862, 870.) Defendant argues that the trial court’s use of CALCRIM No. 220 violated his right to due process because the instruction precluded the jury from considering whether a lack of evidence raised a reasonable doubt. We disagree.

CALCRIM No. 220, as given by the trial court, provides in relevant part, “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” CALCRIM No. 222, as given, provides in relevant part, “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. ‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.”

Romero argues that CALCRIM No. 220 requires the jury in deciding whether the People have proved their case beyond a reasonable doubt, to impartially compare and consider all the evidence that was received throughout the entire trial. CALCRIM No. 222 limits “evidence” to “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.” Taken together, defendant contends, these instructions permitted the jury to consider only whether the evidence received at trial gave rise to a reasonable doubt, not whether a lack of evidence gave rise to a reasonable doubt.

Romero did not object to the challenged instructions in the trial court. We may nevertheless review defendant’s claim of prejudicial instructional error. (§ 1259 [“The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”].)

The challenged instruction did not prevent the jury from considering whether the prosecution failed to present sufficient evidence to sustain its burden of proof. Rather, the jury was likely “to understand by this instruction the almost self-evident principle that the determination of defendant’s culpability beyond a reasonable doubt . . . must be based on a review of the evidence presented.” (People v. Hawkins (1995) 10 Cal.4th 920, 963, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110.) The jury was instructed, “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] . . . [¶] Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” The jury was further instructed that the defendant “has an absolute constitutional right not to testify,” and “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” The trial court also instructed the jury that the People must prove all of the elements of the crimes charged. Inherent in the trial court’s numerous instructions to the jury that the prosecution bore the burden to prove defendant’s guilt beyond a reasonable doubt is the notion that the prosecution’s failure to adduce evidence on an element of the charges—that is, a lack of evidence—compels acquittal.

Romero relies on People v. Simpson (1954) 43 Cal.2d 553 and People v. McCullough (1979) 100 Cal.App.3d 169. Neither case is determinative. In Simpson, the defendant argued that the trial court’s instruction on reasonable doubt had shifted the burden to the defendant to prove his innocence. In relevant part, the trial court had instructed the jury, “‘The term “reasonable doubt,” as used in these instructions, means a doubt which has some good reason for its existence arising out of the evidence in the case; such doubt as you are able to find a reason for in the evidence.’” (People v. Simpson, supra, 43 Cal.2d at p. 565.) The Supreme Court held this language was “not necessary” and “could have been confusing” because “reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced.” (Id. at p. 566.) The Court nevertheless concluded that, “under the circumstances here prevailing,” it did not believe “the jury could have been confused, or the defendant prejudiced” by the instruction. (Ibid.)

In People v. McCullough, supra, 100 Cal.App.3d at pages 180-182, the trial court orally answered jurors’ questions regarding the definition of reasonable doubt. A juror asked, “So then the doubt must arise from evidence?” The trial court answered, “Well, I would answer that yes, . . . if your question is—what is reasonable doubt—reasonable doubt is that state of the case which, after a comparison and consideration of all the evidence—that is the evidence introduced in the trial . . . consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (Id. at p. 181.) The court of appeal held that “the trial court misled the jury by telling it that the ‘doubt must arise from the evidence’” because reasonable doubt “‘may well grow out of the lack of evidence in the case as well as the evidence adduced.’” (Id. at p. 182.) The court concluded, however, that the error was harmless. (Id. at p. 183.)

Unlike both People v. Simpson, supra, 43 Cal.2d 553 and People v. McCullough, supra, 100 Cal.App.3d 169, the trial court in this case did not instruct the jury that reasonable doubt must arise from the evidence. Rather, the trial court instructed the jury that, in deciding whether the prosecution met its burden of proof, the jury must “compare and consider all the evidence.” Nothing in the trial court’s instructions communicated to the jury that it could not consider a lack of evidence in deciding whether the prosecution met its burden to prove defendant guilty beyond a reasonable doubt. There is no reasonable likelihood that the jury construed or applied the challenged instruction as Romero maintains.

Finally, we note that our analysis finds support in case law from other districts of the court of appeal filed during the pendency of this appeal. In People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093 the Fifth District, in People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510 the Fourth District, and in People v. Guerrero (Oct. 3, 2007, C052364) ___ Cal.App.4th ___ [07 D.A.R. 15362] the Third District concluded, as we do here, CALCRIM 220 does not violate due process or lessen the burden to prove guilt beyond a reasonable doubt.

II. Alleged Sentencing Errors

Romero also asserts a number of errors with respect to his sentences, including that the court should have applied section 654 to stay his sentence on the conviction for criminal threats and the court abused its discretion by imposing consecutive sentences on the convictions for criminal threats (Count 4) and attempted murder (Count 1). He also claims the imposition of consecutive sentences constituted error under Blakely and that the court erred in failing to award him pre-sentence conduct credits. As we shall explain, only his claim with respect to the conduct credits is meritorious.

A. The Court Did Not Err in Imposing Separate and Consecutive Sentences for the Convictions for Attempted Murder and Criminal Threats

Romero asserts two sentencing errors with respect to his conviction on counts Count 1 (attempted murder) and Count 4 (criminal threats). First he claims the court should have stayed, pursuant to section 654, his sentence for criminal threats because the threat to kill Ortiz happened during the same course of conduct as his setting Ortiz’s apartment on fire and were designed with one criminal objective in mind—to scare his victim. Second, he asserts that because the attempted murder and the threats occurred simultaneously pursuant to a single objective, the court had no discretion to impose consecutive sentences on Count 1 and Count 4. We examine each of these contentions in turn.

1. Section 654

During sentencing the court concluded that section 654 did not apply to the conviction for criminal threats, finding: “[t]he criminal threats were independent of, not incidental to, the crime of attempted murder. The court finds that defendant entertained several criminal objectives, one being the threat of violence. I do not find that this was a single period of aberrant behavior with respect to the criminal threats. ”

Section 654, subdivision (a), provides in pertinent part, “[a]n 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.” Section 654 therefore “‘precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. “Whether a course of criminal conduct is divisible ... depends on the intent and objective of the actor.” [Citations.] “[I]f all 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.]’ [Citation.]” (People v. Spirlin (2000) 81 Cal.App.4th 119, 129; Neal v. State of California (1960) 55 Cal.2d 11, 19.) However, if the defendant harbored “multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Solis (2001) 90 Cal.App.4th 1002, 1021.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.) We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Id. at pp. 1312-1313.)

People v. Solis (2001) 90 Cal.App.4th 1002 (Solis) is instructive. In that case, the defendant left messages on the victims’ answering machine saying he was on his way to kill them and burn their apartment. The victims left their apartment, returned an hour later, and found it in flames. (Id. at p. 1009.) The defendant was convicted of both arson and making terrorist threats. (Id. at p. 1008.) On appeal, the court concluded section 654 was not violated, since the two crimes were chronologically distinct and had distinct objectives: one, intent to frighten; the other, intent to burn. (Id. at p. 1022.)

In this case, as in Solis, Romero had distinct objectives. On the record, it is reasonable to infer that his threats were intended to intimidate and frighten Ortiz and his family, whereas his setting the house on fire was intended to kill him. Defendant argues that his overall intent was to instill fear such that the threats and the attempted murder constituted an indivisible course of conduct. He asserts that if his “objective in making the threat had been different from his objective in setting the fire, that is, if he intended by the threat to instill a fear independent of the fear caused by the fire, he would have separated the threat and the setting of the fire.” This effort to sweep separate crimes under a single intent by characterizing that intent broadly is unavailing. We rejected the same argument in Solis. (Solis, supra, 90 Cal.App.4th at p. 1022.)

The Attorney General claims the court did not err because the threats involved separate victims, namely Ortiz and his family. Romero, however, was charged (and convicted of) with criminal threats against Ortiz, not his children. In determining the applicability of 654 we examine Romero’s intent only from the crimes of which he was convicted, not from uncharged conduct.

In addition, the crimes need not be as chronologically distinct as those in Solis, for it is defendant’s intent and objective, not the temporal proximity of offenses that determines whether a transaction is indivisible. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Moreover his argument assumes that Romero’s intent in setting the fire was merely to instill fear in his victim. The evidence presented at trial raises the reasonable inference that the fire was intended to kill or injure Ortiz, not simply to scare him. Here the criminal objectives are sufficiently distinct to justify separate punishment. (See Solis, surpa, 90 Cal.App.4th at p. 1022; People v. Cleveland, supra, 87 Cal.App.4th at pp. 267-268.)

Finally, prohibiting multiple punishment under the circumstances presented here would not further the policies underlying section 654. Section 654’s purpose is to ensure that punishment is commensurate with a defendant’s culpability. (People v. Cleveland, supra, 87 Cal.App.4th at p. 268.) This concept “works both ways. It is just as undesirable to apply the statute to lighten a just punishment as it is to ignore the statute and impose an oppressive sentence.” (People v. Monarrez (1998) 66 Cal.App.4th 710, 715.)

Accordingly we find substantial evidence supports the trial court’s decision not to apply section 654 to stay defendant’s sentence for attempted criminal threats.

2. Consecutive Sentences

Romero also asserts the court should have imposed concurrent, rather than consecutive sentences on Counts 1 and 4, under section 669 and California Rules of Court, rule 4.425. As with the claim under section 654, his argument here is premised on the notion that Romero harbored only one intent with respective to both crimes.

Under section 669, the court’s decision on whether to impose consecutive rather than concurrent sentences is discretionary. (People v. Morris (1971) 20 Cal.App.3d 659, 666, overruled on another ground People v. Duran (1976) 16 Cal.3d 282, 292.) Rule 4.425 guides the exercise of discretion and provides in pertinent part:

“Criteria affecting the decision to impose consecutive rather than concurrent sentences include:

(a) Criteria relating to crimes

“Facts relating to the crimes, including whether or not:

“(1) The crimes and their objectives were predominantly independent of each other;

“(2) The crimes involved separate acts of violence or threats of violence; or

“(3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425.)

As discussed elsewhere, here we conclude that sufficient evidence in the record supports the finding Romero had multiple and independent objectives with respect to these crimes and that these crimes involved separate acts of violence. Thus we conclude the court did not abuse its discretion when it imposed consecutive sentences on Counts 1 and 4.

B. The Court’s Imposition of Consecutive Sentences Does not Constitute Constitutional Error Under Blakely

Romero claims that because the trial court rather than the jury found the facts necessary to impose the consecutive sentences the trial court violated his constitutional rights and his sentence ran afoul of Blakely.

In People v. Black (2007) ___ Cal.4th ___, ___ 161 P.3d 1130, 62 Cal.Rptr.2d 569, 586 (Black II) our Supreme Court recently concluded that nothing in the United State’s Supreme Court’s opinion in Cunningham v. California (2007) ____U.S. ___, 127 S.Ct. 856 entitled a criminal defendant to have the facts underlying the decision to impose consecutive terms determined by a jury. (Black II, supra, ___ Cal.4th at p. ___, 62 Cal.Rptr.3d at p. 586.) In Black II, the Court equated consecutive sentences with the maximum sentence for an offense. Therefore, the Court reasoned, the jury’s verdict finding the defendant guilty of two or more crimes was enough, by itself, to authorize consecutive sentences for each offense. Whether the defendant actually should serve consecutive sentences 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 . . . .’” (Id. at p. 587, quoting from People v. Black (2005) 35 Cal.4th 1238, 1264 (Black I).) In view of Black II, we reject Romero’s claim.

C. Pre-Sentence Conduct Credits

The trial court gave Romero credit for 531 days of actual pre-sentence custody credit, but it did not grant any good time/work time credits.

Section 4019 provides for the granting of credits for work and good behavior. (People v. Philpot (2004) 122 Cal.App.4th 893, 907.) Absent contrary authority, “a defendant receives what are commonly known as conduct credits toward his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence. [Citations.]” (People v. Thomas (1999) 21 Cal.4th 1122, 1125 (Thomas).)

Thomas held that pre-sentence conduct credits pursuant to section 4019 are properly awarded where the current convictions are not “violent” within the meaning of section 667.5, subdivision (c), and defendant is not subject to solely an indeterminate sentence. Otherwise, “sections 2933.1 and 667.5(c) . . . limit a defendant’s presentence conduct credit to a maximum of 15 percent . . . when the defendant’s current conviction is itself punishable by life imprisonment . . . .” (Thomas, supra, 21 Cal.4th at p. 1130.)

In accordance with the above-cited authority, Romero contends and the Attorney General agrees, that he was entitled to receive 15 percent of his custody credits under section 2933.1. Romero is correct. His conviction for attempted murder qualifies as a violent felony within the meaning of section 667.5, subdivision (b)(12) and thus he is entitled to pre-sentence conduct credits subject to the maximum 15 percent limitation described in section 2933.1. (See Thomas, supra, 21 Cal.4th at p. 1131; People v. Philpot, supra, 122 Cal.App.4th at p. 908.) Romero was awarded 531 actual days of credit and is therefore entitled to receive 79 days of pre-sentence conduct credits.

DISPOSITION

The judgment is affirmed. The superior court is directed to correct the abstract of judgment to show that appellant is entitled to 79 days of pre-sentence conduct credits in addition to the 531 days of actual in custody credit he was granted. The superior court is to forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation.

We concur: PERLUSS, P.J. ZELON, J.


Summaries of

People v. Romero

California Court of Appeals, Second District, Seventh Division
Oct 10, 2007
No. B194703 (Cal. Ct. App. Oct. 10, 2007)
Case details for

People v. Romero

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JESUS PONCE ROMERO, Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Oct 10, 2007

Citations

No. B194703 (Cal. Ct. App. Oct. 10, 2007)