Opinion
C081423
10-18-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK LAWRENCE BREWER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. NCR93122 & NCR93799)
Defendant Mark Lawrence Brewer entered a guilty plea to infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a); count III), assault with a deadly weapon, to wit, a hammer (§ 245, subd. (a)(1); count IV), first degree burglary (§ 459; count VI), felony evading (Veh. Code, § 2800.2, subd. (a); count VIII), and being a convicted felon in possession of a shotgun (§ 29800, subd. (a)(1); count IX). Defendant also admitted that he personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and used a deadly weapon, to wit, a hammer (§ 12022, subd. (b)(1)) in connection with count III and that he personally inflicted great bodily injury upon a person 70 years of age or older (§ 12022.7, subd. (c)) in connection with count IV. The trial court imposed an aggregate sentence of 18 years eight months.
Undesignated section references are to the Penal Code in effect at the time of the charged offenses.
Defendant contends that the trial court erred by: (1) imposing a full term for the great bodily injury enhancement charged in connection with count IV, assault with a deadly weapon, which was sentenced as a subordinate term; (2) failing to stay execution of the term imposed on count VI, first degree burglary, pursuant to section 654; and (3) imposing domestic violence fines pursuant to section 1203.097, subdivision (a)(5) and (11)(A), that are to be imposed when a defendant is placed on probation. The People concede each contention and we agree.
The judgment is affirmed as modified.
FACTUAL AND PROCEDURAL BACKGROUND
In entering his plea, defendant stipulated to the facts in the police report, which is summarized in the probation report. We take our facts from the probation report. --------
About 2:00 a.m. on December 27, 2014, defendant kicked in the back door to his estranged wife's house. He appeared to be holding an ax (actually a hammer). The wife attempted to call 911 but defendant grabbed the phone and threw it on the floor, breaking it. He swung the hammer and struck his wife on the finger and the side of her head. She locked herself in a bathroom.
The wife's 74-year-old mother heard loud crashes and the wife screaming. The mother went to the kitchen and saw defendant holding what appeared to be an ax, which he swung at her, hitting her in the head and knocking her down. He hit her a second time on the shoulder. The wife heard her mother scream and went to help, finding her on the floor. She then threw herself over her mother. Defendant hit his wife two more times on the head.
When sheriff's deputies arrived, they found the wife and mother on the kitchen floor. Their heads and faces were bloody. The deputies did not find an ax. Instead, they found a hammer with human blood and hair next to the front door. The mother sustained skull fractures, lacerations, and a puncture wound. Her injuries were life threatening. The wife sustained lacerations to her head and a fractured finger.
Defendant had fled the scene after the assaults. Ten days later, defendant was caught after a 22-minute high speed chase, covering over 18 miles in two counties. When he was apprehended, he was in possession of a shotgun.
Defendant entered the pleas and admissions set forth ante in exchange for a sentencing lid of 20 years four months in state prison. The remaining counts and allegations were dismissed.
The court sentenced defendant to state prison for an aggregate term of 18 years eight months, calculated as follows: the upper term of four years plus five years for the great bodily injury enhancement and one year for weapon use on count III, corporal injury on a spouse; one year consecutive (one-third the midterm) plus five years for the great bodily injury enhancement on count IV; 16-months consecutive (one-third the midterm) on count VI, first degree burglary; eight months consecutive (one-third the midterm) on count VIII, felony evading; and eight months consecutive (one-third the midterm) on count IX, felon in possession of a shotgun.
DISCUSSION
I. Full Term on Great Bodily Injury Enhancement for Subordinate Term
Defendant contends the trial court erred in imposing a full five-year term for the great bodily injury enhancement in connection with count IV, which was a subordinate term. The People concede, and we agree.
The term for subordinate terms is one-third the midterm for the offense and "one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (§ 1170.1, subd. (a), italics added; People v. Sasser (2015) 61 Cal.4th 1, 8-9.) The court properly imposed a consecutive one-third the midterm for count IV but erroneously imposed a full consecutive term for the enhancement for that offense. Instead of five years, the term for the enhancement should be "one-third of the term," which is one year eight months. (§ 1170.1, subd. (a).) We will modify the judgment accordingly.
II. Section 654 Stay for Burglary Count
Defendant contends that the sentence on count VI, first degree burglary, should have been stayed pursuant to section 654 because he committed the burglary with the sole intent to attack both victims. Again, the People concede. And again we agree.
Section 654, subdivision (a), provides, in relevant part, that "[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."
" ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends upon 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." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 885.) Whether defendant acted with multiple intents is a question of fact for the trial court which will not be disturbed provided it is supported by substantial evidence. (Id. at p. 886.)
Here, insufficient evidence supports the trial court's implied finding that defendant acted with multiple intents. There is no evidence that defendant entered the house with the intent to commit any offense other than to attack his wife and her mother. Therefore, we must reverse the sentence for this count. (See People v. Hester (2000) 22 Cal.4th 290, 293-294 [concluding that sentence for burglary count should have been stayed pursuant to section 654 where defendant's sole intent in entering his former girlfriend's home was to assault her and her new boyfriend].) Execution of the sentence imposed for count VI, first degree burglary, should have been stayed pursuant to section 654.
III. Unauthorized Domestic Violence Fines
Defendant contends that the trial court imposed two unauthorized fines pursuant to section 1203.097, subdivision (a)(5) ($500), and (11)(A) ($200). The People concede. Because the fines are applicable only when a person is granted probation (§ 1203.097, subd. (a)) and defendant here was sentenced to state prison, we agree that the fines were unauthorized.
DISPOSITION
The judgment is modified, reducing the section 12022.7, subdivision (c), enhancement attached to count IV to one year eight months, staying execution of the sentence imposed on count VI pursuant to section 654, and striking the two fines imposed pursuant to section 1203.097, subdivisions (a)(5) and (a)(11)(A). The resulting aggregate state prison sentence to be served totals 14 years. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
MURRAY, J. We concur: NICHOLSON, Acting P. J. HULL, J.