Opinion
D073370
11-30-2018
THE PEOPLE, Plaintiff and Respondent, v. GLORIA ROBLES BERNAL, Defendant and Appellant.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF37625) APPEAL from a judgment of the Superior Court of Imperial County, Marco D. Nuñez, Judge. Affirmed. Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Gloria Robles Bernal of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)) with a true finding that a person was present in the residence at the time (§ 667.5, subd. (c)(21)), making a criminal threat (§ 422, subd. (a)), and being an accessory after the fact (§ 32). The trial court sentenced Bernal to a total determinate term of five years four months in prison, consisting of the middle term of four years for the burglary conviction, one-third of the middle term of two years for the criminal threat conviction (or eight months), and one-third of the middle term of two years for the accessory conviction (again, eight months).
Further statutory references are to the Penal Code.
Bernal appeals. She contends the trial court erred by not staying execution of her sentence for making a criminal threat under section 654. We disagree and affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts are discussed where relevant in the following section. Bernal's convictions arise from two separate events, the beating of Elias M. and the shooting of Edgar T. Bernal's contention on appeal concerns only the former event. We therefore focus our factual summary accordingly.
Bernal lived with her three children in a house in Calexico, California. Elias, who was 65 years old at the time, lived in a studio apartment behind the house. On March 6, 2017, around 2:30 a.m., Bernal went to the apartment with her boyfriend Ali Bahrambeygui and another man. Bernal knocked on Elias's door. Ariana P., who was staying with Elias, asked who was there. Bernal identified herself, and Ariana opened the door. Bernal and the men rushed into the studio. Bernal was holding a beer. Bahrambeygui was holding a shotgun. He pumped the shotgun, pointed it at Elias, and told Elias he was going to "fuck [him] up." Elias was afraid they were going to kill him.
Bernal pushed Bahrambeygui and the other man out of the way. She looked angry. She asked Elias whether he had been damaging her tires, but Elias denied it. Bernal left the studio, followed shortly afterward by the two men.
Ariana was outside. Bernal told Ariana she was sure Elias had damaged her tires. She was angry and agitated. Ariana thought Bernal was drunk. Bernal called Elias a "pervert" and said she was "sick and tired of it."
Bahrambeygui and the other man overheard Bernal talking with Ariana. The two men went back inside the apartment and closed the door. They savagely beat Elias all over his body. Elias was screaming and moaning, but Bernal told Ariana the men were only going to talk to him. Bernal's children heard the screams and yelled at their mother to intervene. She did not help Elias.
The men left Elias's apartment. Bernal went into her house with Bahrambeygui. Bernal's daughter asked what happened, and Bahrambeygui told her that Elias "did your mom wrong." Bernal's daughter understood that Bahrambeygui was referring to the allegation that Elias had slashed Bernal's tires, which Bernal had made earlier in the day.
Elias had suffered multiple injuries, and his eye was swollen shut. An injury to his knee would require surgery. Ariana went back into the studio and saw blood on Elias's bed. He was in the bathroom cleaning blood off his face. He wanted to call police, but he was scared of retaliation from the men. Later, when law enforcement was investigating the shooting described below, Elias told them about the beating.
On March 11, 2017, Bahrambeygui shot Edgar in the knee with a shotgun as Edgar was riding his bicycle down the street near Bernal's house. Bahrambeygui ran into the house, and Bernal told him to get rid of the shotgun. After Bahrambeygui disposed of the shotgun behind the house, Bernal drove him away from the scene in her car. When Bernal returned, Bahrambeygui was not with her. Police arrived and questioned Bernal. She initially denied driving anyone away. She later admitted she drove a man away, but she claimed she did not know who he was.
Bernal was tried jointly with Bahrambeygui. Bahrambeygui testified in his own defense. He denied assaulting Elias and shooting Edgar. He testified he had been hanging out with friends on both occasions. Bernal did not testify.
Following trial, Bahrambeygui was convicted of numerous felonies, including assault with force likely to cause great bodily injury against Elias. (§ 245, subd. (a)(4).) He appealed the judgment against him, but it has proceeded under a separate docket number. (See People v. Bahrambeygui (D073203, app. pending).) No party has requested consolidation.
DISCUSSION
Bernal contends the trial court should have stayed her sentence for her criminal threats conviction under section 654. She argues that punishing her for both the criminal threats conviction and her burglary conviction violates section 654's prohibition on double punishment. She was convicted of making a criminal threat on a theory of aiding and abetting.
At sentencing, Bernal's counsel requested that the trial court order such a stay. He argued that the basis for the burglary conviction was that Bernal went into Elias's apartment with the intent to make criminal threats, so it was duplicative of the criminal threats conviction itself. The trial court declined to stay Bernal's sentence for criminal threats. It explained, "[S]he went into the home with the intent to commit a felony therein. I'm not specifically making a finding that she went into the home with the intent to commit the 422 [i.e., make criminal threats]." The court's jury instructions identified the following possible bases for her burglary conviction: intent to make a criminal threat (§ 422), intent to commit battery with serious bodily injury (§ 243, subd. (d)), intent to commit assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), and intent to commit elder abuse (§ 368, subd. (b)(1)).
We conclude the trial court did not err in declining to stay Bernal's sentence. The court could reasonably have found that Bernal entered Elias's apartment with the intent to commit at least two felonies, making a criminal threat and assault with great bodily injury, on theories of aiding and abetting. Because Bernal's burglary conviction could be based on both intents, it was not impermissibly duplicative of her criminal threats conviction.
Section 654 provides, in relevant part, 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." (§ 654, subd. (a).) The purpose of the statute is to "ensure that defendant is punished 'commensurate with his culpability[.]' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives." (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).)
"At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act." (Corpening, supra, 2 Cal.5th at p. 312.) "Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Id. at p. 313.)
However, because " '[f]ew if any crimes . . . are the result of a single physical act,' " courts in these circumstances must proceed to step two of the analysis. (People v. Correa (2012) 54 Cal.4th 331, 335 (Correa).) "[T]he relevant question [under step two] is typically whether a defendant's ' "course of conduct . . . comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." ' " (Ibid.) " '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 of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (Id. at p. 336.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted, (Perez).)
Because burglary criminalizes the act of entering certain physical spaces with the intent to commit a felony (§ 459), specific issues arise under section 654 when a defendant is convicted of both burglary and the intended felony. It is well settled that section 654 prohibits punishment for both the burglary conviction and the intended felony, in the absence of evidence that the defendant harbored an additional intent or objective beyond the intended felony (or another exception applies). "[O]rdinarily, if the defendant commits both burglary and the underlying intended felony, . . . section 654 will permit punishment for one or the other but not for both." (People v. Centers (1999) 73 Cal.App.4th 84, 98 (Centers) [collecting cases].)
For example, in People v. Radil (1977) 76 Cal.App.3d 702, 713 (Radil), the appellate court determined that a defendant's sentence for both burglary and the subsequent intended assault violated section 654. The court explained, "Respondent concedes that it was improper to sentence appellant for both assault and burglary where the entry for purposes of assault constituted the requisite act for burglary. The entry for purposes of assault and the assault itself formed one continuous transaction. [Citation.] This constitutes a violation of . . . section 654." (Radil, at p. 713.)
On the other hand, the appellate court in People v. Nelson (1989) 211 Cal.App.3d 634, 639 (Nelson), found no error under section 654 where the evidence showed the defendants entered a residence with the intent to commit multiple felonies. It stated, "On this record, it is reasonable to infer, as we assume the trial judge did, that theft was not the burglars' only object and purpose. Rather, they deliberately chose to enter the . . . residence while the victims were at home, knowing as they must that their presence reduced the chances of a successful theft, because separate and apart from thievery they intended to inflict physical harm upon the victims. Therefore defendant is deserving of the more serious punishment without benefit of the mitigating effect of . . . section 654." (Nelson, at p. 639, fn. omitted.) Similarly, in People v. Booth (1988) 201 Cal.App.3d 1499, 1505 (Booth), the appellate court found no error in punishing the defendant for both burglary and one intended felony, where he also intended to commit an additional felony: "The facts of the present case support the determination that defendant entered the victims' homes with the intention of achieving two objectives—to rape and to steal. Such dual intent precludes a finding as to each victim that his entry into their homes and his sexual assaults constituted an indivisible course of conduct to which section 654 is applicable." (Id. at p. 1505, fn. omitted.)
The factual findings necessary to support multiple punishments are implicit in the judgment. (Nelson, supra, 211 Cal.App.3d at p. 638.) "In reviewing the trial court's implicit finding that section 654 does not apply, we determine only whether there [was] substantial evidence to support the trial court's finding." (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005; accord, People v. Saffle (1992) 4 Cal.App.4th 434, 438.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [court] could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "We 'must accept logical inferences that the [court] might have drawn from the circumstantial evidence.' " (Ibid.) If these inferences reasonably support the judgment, we must affirm even if the circumstantial evidence could also support a contrary conclusion. (Id. at pp. 357-358.)
As noted, step one required the trial court to determine whether a single act formed the basis of Bernal's convictions for burglary and making a criminal threat. (Corpening, supra, 2 Cal.5th at p. 312.) The evidence supports the trial court's implied finding that a single act did not form the basis for both convictions. The burglary was complete when Bernal entered Elias's apartment with the intent to commit a felony. The offense of making a criminal threat (which Bernal was alleged to have aided and abetted) was not complete until Bahrambeygui actually threatened Elias. (See § 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Two separate acts formed the basis of the two convictions.
Bernal argues that the "crime of burglary could not have been proven until the threat occurred because there would otherwise have been no evidence of felonious intent." Bernal confuses the issue of proof of a crime with the crime itself. The crime of burglary was complete upon entry into Elias's apartment with the intent to commit a felony therein. The proof of that crime may be found in the evidence of what occurred before, during, and after the moment of completion.
We therefore turn to step two. Step two required the trial court to determine whether Bernal "entertained multiple criminal objectives which were independent of and not merely incidental to each other[.]" (Perez, supra, 23 Cal.3d at p. 551.) The evidence supports the trial court's implied finding here as well. In addition to her intent to aid and abet a criminal threat, the trial court could reasonably have found that Bernal intended to aid and abet an assault on Elias when she entered his apartment.
Viewed in the light most favorable to this finding, the record shows that Bernal was angry with Elias, she was convinced he had damaged her tires, and she rushed into his apartment with two men (one of whom was armed with a shotgun) while drunk at 2:00 a.m. In the apartment, Bahrambeygui pumped the shotgun, pointed it at Elias, and told Elias he was going to "fuck [him] up." Bernal followed up by confronting Elias about her tires. When he denied it, the group left his apartment. But Bernal continued to be upset and agitated. She called Elias a "pervert" and told Ariana she was convinced Elias had damaged her tires. When Bahrambeygui and the other man entered Elias's apartment again a short time later, and savagely beat him, Bernal was not surprised. Instead, she covered for the men. Although she could hear Elias screaming and moaning, Bernal told Ariana the men were only going to talk to Elias. And, when Bernal's children screamed at her to intervene, she did nothing.
Even though Bahrambeygui and the other man did not physically assault Elias when they first entered the apartment with Bernal, Bernal's unsurprised reaction supports the reasonable inference that the group's objective all along was to threaten and assault Elias. The evidence supports the inference that Bernal wanted the assault to occur and that she initially went into Elias's apartment for that purpose. Elias's denial briefly deterred the group from the intended assault, but Bernal's continued agitation led to its eventual completion. Afterwards, Bahrambeygui told Bernal's daughter that the assault occurred because Elias had wronged Bernal; no other reason was given.
Because the trial court could reasonably find that Bernal intended to commit an additional felony, beyond the criminal threat, section 654 does not apply to stay Bernal's punishment for that crime. (See Nelson, supra, 211 Cal.App.3d at p. 639; Booth, supra, 201 Cal.App.3d at p. 1505.) The trial court did not err by declining to impose that stay.
Bernal claims her plan was only to threaten Elias, not to assault him. If that were her only intent, we agree section 654 would likely apply. (See Centers, supra, 73 Cal.App.4th at p. 98; Radil, supra, 76 Cal.App.3d at p. 713.) But, as we have discussed, the trial court could reasonably find that Bernal entertained an additional intent: to aid and abet an assault on Elias. Section 654 does not apply under this circumstance.
Bernal references the concept of temporal divisibility, but that concept is inapplicable here. It limits the application of section 654 where a defendant's course of conduct is divisible in time, even though the defendant harbors the same objective or intent over the entire course of conduct. (See People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Lopez (2011) 198 Cal.App.4th 698, 717-718.) Here, the issue is not whether Bernal harbored the same intent at different times. It is whether Bernal harbored two different intents at the same time, i.e., when she entered Elias's apartment and committed burglary.
Bernal also claims her actions in Elias's apartment were intended to protect him from assault and therefore she could not have intended to aid and abet an effort to harm him. But her interpretation of the evidence runs counter to our standard of review. To determine whether the evidence supports the trial court's implied finding that Bernal intended to commit an assault, we must view the record in the light most favorable to that finding and draw all reasonable inferences to support it. Under the correct standard of review, the evidence supports the trial court's finding.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: O'ROURKE, Acting P. J. AARON, J.