Opinion
F070476
12-30-2016
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant Robert James Dech. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Ashley Marie Allen. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. MF011025A & MF011025B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant Robert James Dech. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Ashley Marie Allen. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Robert James Dech and Ashley Marie Allen (Dech and Allen, respectively; collectively, defendants) stand convicted, following a jury trial, of burglary of an inhabited dwelling, during the commission of which a person other than an accomplice was present in the residence (Pen. Code, §§ 460, subd. (a), 667.5, subd. (c)(21); count 1), assault with a deadly weapon, to wit, a tire iron (§ 245, subd. (a)(1); count 2), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3). Dech was sentenced to a total term of seven years in prison, while Allen was sentenced to a total term of five years in prison. Each was ordered to pay restitution, along with various fees, fines, and assessments.
All statutory references are to the Penal Code.
Jurors were unable to reach a verdict on count 4, which charged defendants with making criminal threats. (§ 422.) The count was later dismissed.
Eugene Russel Franzen was charged, but not tried, with defendants. His case is not before us on this appeal.
On appeal, we hold: (1) Substantial evidence supports Allen's convictions for burglary and assault by means of force likely to produce great bodily injury, but not her conviction for assault with a deadly weapon; (2) Substantial evidence supports Dech's conviction for assault with a deadly weapon; (3) The trial court did not violate section 654 by imposing consecutive terms for Dech's convictions of burglary and assault with a deadly weapon; and (4) The trial court did not abuse its discretion by sentencing Allen to prison instead of placing her on probation. We modify the judgment with respect to Allen by reversing the conviction on count 2 and vacating the attendant sentence, but otherwise affirm as to both defendants.
FACTS
I
PROSECUTION EVIDENCE
As of February 2, 2014, Darell Martin lived in a residence in the 27000 block of Anderson Street, in Boron. On that date, he was in his living room, waiting for a friend to show up to watch the Super Bowl, when he heard noises in his backyard. He walked to the back door to see what was going on. Defendants, Dech's son R., and Franzen were in the backyard. Franzen and Martin were "drinking buddies," and Martin had been friends with Allen for several years. He had only met Dech once or twice, and had never had contact with R.
Unspecified references to dates in the statement of facts are to the year 2014.
When Dech saw Martin, Martin removed the back door from its frame and hinges, and entered the premises. Dech was yelling at Martin, "You stole from me. You stole from me. I'm going to beat your ass." Dech's demeanor was "[e]xtremely aggressive." Allen entered the house with Dech. Her demeanor was "[i]nfuriated." She was saying, "You stole food out of my children's mouths. I'm going to go in this backyard and find a rock and crush your skull with it." Franzen entered the house behind defendants.
Defendants had nothing in their hands when they entered the residence.
Martin stepped backward in an attempt to get away, but tripped and fell. Dech started punching him. Martin was punched primarily in the face and arms. He lost track of the number of times. At the same time, Allen stood next to Dech, punching Martin with her fists. At one point about two or three minutes after the first punch was thrown, she left the residence and got something hard and started hitting Martin with it. Martin did not see the object because he had his hands over his face, trying to protect it, but it was "rather hard." Martin assumed it was a rock.
Martin, who had been drinking that day, estimated the beating lasted five to six minutes. He took no defensive measures except to cover his face. Defendants both were saying, "You broke into my house. I'm going to beat the hell out of you. Why did you do this?" They also called Martin, who is openly gay, derogatory names.
After the five or six minutes, defendants and Franzen left the house. Martin tried to get up, but Dech returned and continued punching him in the face. Allen also came back in. Although Martin did not believe she struck him again, she egged Dech on, saying, "You need to beat the fuck out of him. You need to make him pay for what he did." Martin did not know what she was talking about. He still had not made any aggressive movements, but he told Dech to leave him alone and get out of his house. Martin did not know where Franzen or R. were at this time.
Martin estimated the second beating lasted another five minutes or so. Defendants left the house again, and Martin attempted to get up and get into the living room to use his telephone to call 911. As soon as he got up on his hands and knees, Dech returned and said, "Oh, you want some more?" Someone then kicked Martin in the back, and Dech began pummeling Martin again with his fists.
At some point, Martin believed Dech threatened to kill him. Both Dech and Franzen made statements about a car battery. Martin did not understand what they were talking about.
Dech finally left the house again. Martin made it to his couch in the living room. While he was sitting there, he heard someone come into the house and saw R. standing in the kitchen doorway. R.'s hands were empty. Martin stood up and told him to get out of the house, and he picked up a tire iron that was sitting on a bucket nearby. Martin took approximately three steps toward R., so that they were seven to eight feet apart. Although he held the tire iron in a defensive position, he never swung it at him. The next thing Martin knew, Dech went around R. and demanded of Martin, "Oh, you are going to threaten my son?" Martin dropped the tire iron. Dech punched him again, and Martin landed on the couch. Dech then jumped on him and started punching him with his fists.
Martin curled into a ball on the couch. R. struck Martin with the tire iron one time in the back and lower neck area. R. and Dech then hit Martin with their firsts for several more minutes. After Dech struck Martin in the center of the face, Dech and R. left.
While the final beating was going on, Martin started screaming, as he knew Stephanie Fort, his next door neighbor, would hear him. Fort heard screaming on two occasions this day. The first time, it sounded like people arguing. The second time, it sounded like a male being hurt. She was able to determine it came from Martin's house.
Fort called 911. While she was on the phone, she ran around to the back of Martin's house. She saw Dech's daughter, D., standing in the doorway of the house, and Allen standing at the fence. When they saw Fort, they started yelling for someone to come on, that the cops were on their way. Dech and R. ran out of Martin's house. R. had a tire iron in his hand. Allen and D. had already run out of Martin's yard. The four ran toward the next street, on which Dech lived.
At approximately 2:22 p.m. on February 2, Kern County Sheriff's Deputy Delgado responded to Martin's residence following a call of an assault with a deadly weapon. The residence was all boarded up, except for the back door. It appeared to have been condemned.
Upon Delgado's arrival, he found paramedics assisting Martin, who was strapped to a gurney and wearing a neck brace. It was difficult to communicate with him or to see his injuries, due to blood covering his face and in his mouth. Delgado asked who had done this to him. Martin, who appeared to be in pain and struggling to talk, stated, "Robert Dech's son and his girlfriend, Ashley." Martin was then transported to a hospital.
Meanwhile, Deputy Pitcher spoke to Fort, who was standing with Martin. She appeared to be upset, even frantic. She said Martin had identified R. and Allen as his assailants.
Fort recalled Martin saying, before the ambulance arrived and again while he was on the gurney, that Dech and R. had assaulted him.
About 30 minutes after he responded to Martin's residence, Delgado went to Dech's residence. Franzen, Dech's son R., and D. were present. Franzen was agitated and upset, and appeared to be under the influence of alcohol. There were some scratches, bruising, and a bit of blood on Franzen's knuckles. When R. and D. were detained, handcuffed, and escorted to police cars, Franzen said to leave the kids alone, that "they didn't do shit." Franzen said, "I'm the one that fucked him up. He stole from us and got what he deserved."
D., a female, and R. were both juveniles.
Pitcher transported Fort to the location for an in-field show-up involving Franzen, D., and R. As he was about to read her the standard admonition, defendants walked down the street to their location. Without being asked, Fort identified both of them as being at the scene. She said Allen was outside the house. Fort also identified R. and D. as being there. She said she did not see Franzen, with whom she was acquainted, at Martin's house.
Delgado then detained defendants. He separately advised them of their rights and asked each where he or she had been for the past 30 minutes to an hour. Each claimed to have been asleep with the other. Allen denied knowing Martin.
When Delgado advised Dech that he had been accused of attacking someone, Dech said he had been defending his son. Reminded he had claimed he was in bed with Allen, Dech, who had some blood and minor cuts on his hands that appeared partially scabbed over, said the incident he was thinking of had occurred earlier that morning. Dech stated he was on the way to the store with his son, R., when he was involved in an altercation with Martin. Dech said Martin exited the rear of his (Martin's) residence with a star-shaped tire iron and tried to swing it at R. In response, Dech punched Martin in the face, whereupon Martin retreated into his residence. Dech said he and R. then just continued to the store.
Pitcher transported Dech and Franzen to the sheriff's substation. He heard Franzen say something to Dech along the lines of, "He got what he deserved, and it's not my fault, faggots break easy."
Martin was in the hospital overnight, then went straight to the sheriff's substation in Mojave to make a statement. During his interview with Delgado, Martin identified Franzen and defendants as individuals who were involved in assaulting him. Martin said the incident began when he heard the back door to his residence open. He said nothing about hearing someone tearing the back door off its hinges. Martin also said Allen entered the residence with a large rock in her hand. He did not say anyone came into the house more than once, although he did say there were several gaps in what was generally one continuous altercation. Martin related Dech told him, "You stole from me, you cock sucking faggot," and, "We are going to kill you."
Martin testified he suffered a fracture to the orbital bone above his left eye and a broken nose. He explained that when he spoke about a broken bone, he was not actually talking about the bone, but rather about soft tissue damage causing bleeding.
Martin's medical records were admitted into evidence. In her closing argument, the prosecutor conceded there were no broken bones.
II
DEFENSE EVIDENCE
R., who admitted to criminal conduct in juvenile court proceedings as a result of this incident, testified that Dech injured his head and hands in a bicycle accident on January 31. On February 1, Dech's 12-volt car battery went missing from Dech's house.
On the morning of February 2, R. went to the store by himself. He did not go past Martin's house or encounter Martin. That afternoon, R., Dech, and Franzen — who was staying with the Dechs — were planning to walk to the store to get hot wings for the Super Bowl. Their route took them past Martin's residence. As they passed, Franzen pointed at Martin's house and said "this guy" had Dech's battery. Franzen said to come on, so Dech and R. followed him into Martin's backyard. There was no discussion about doing anything to Martin; the Dechs just wanted their battery back.
Martin was standing in the back doorway. The door was already open and hanging off its hinges. Martin greeted Franzen; he appeared friendly. Franzen led Dech and R. to about two feet from the door. At this time, Allen and D., who had been following Dech and R., were a couple of houses away. Allen never entered Martin's yard.
Franzen stepped out of the way, and Dech asked Martin if they could get their battery back. Martin angrily said no. Martin then stepped out of the doorway and picked up a star wrench or tire iron that was lying on the ground just inside his residence. He raised it, and R. believed Martin was going to hit him with it, because Martin was staring at him.
R. stepped back as Martin was bringing the wrench down. Martin was prevented from bringing the wrench all the way down by Dech, who struck Martin twice with his fist on the forehead and arm. Martin dropped the wrench, and Dech stepped back and started to leave. R. watched Dech walk away, but R. stayed behind because he wanted to see what was going on. R. was upset and angry.
Franzen said nothing to Martin at that point, but Martin suggested to Franzen that they go in the living room and talk. Franzen refused. When Martin asked him why not, Franzen hit him and called him a derogatory term for "gay." Martin said he was going to "spill his guts" and tell everyone about his and Franzen's sexual relationship. Franzen then punched Martin, who tripped over a curb and fell. By now, Martin was inside his house. Franzen followed him inside and continued to attack him. They wrestled around on the ground a bit, with Martin trying to block Franzen's punches. Martin then grabbed for the star wrench, which was outside by R. R. struck Martin three times in the face while Franzen was also hitting him. R. then left and quickly walked away. He left the tire iron, which was never in his hands. When he left, Franzen and Martin were still rolling around in the doorway, fighting. Dech left with Allen and D. about five minutes before R. did and never came back. Neither R. nor Dech ever went inside Martin's house.
After R. left Martin's residence, he went straight home. Dech was not there. When Franzen arrived, he was dragging his ankle and his hands were all bloody. He had not had any injuries before the group went to Martin's house. By the time Dech and Allen returned home, R. had already been handcuffed and placed in a police car.
The parties stipulated that R. was interviewed on September 7, by a private investigator for Dech. R. said Franzen stood at a gate surrounding Martin's residence and began yelling Martin's name. Martin came outside, then he and Franzen went into the residence. Shortly after, Franzen exited, followed by Martin. Martin began yelling that he did not steal Dech's battery, and he ordered all of them to leave his property. Dech struck Martin, who dropped the tire iron. Dech immediately left with Allen and D., but R. remained and physically attacked Martin.
Pitcher testified in rebuttal that he took a statement from R. after R. was advised of and waived his rights. R. told Pitcher that Franzen indicated Martin had stolen some recycling materials from Dech on a prior occasion. Franzen, Dech, and R. went into Martin's residence, and Franzen began punching Martin in the face while Dech and R. stood next to Franzen. When Martin swung his fists and tried to hit Dech, R. grew angry and started hitting Martin in the face. Martin picked up a tire iron, which Dech took away from him. Franzen then grabbed the tire iron and started hitting Martin in the back and torso. During that assault, Dech was also hitting Martin. Dech, R., and Franzen then exited the residence together. R. said nothing about a car battery or about Franzen staying behind at the residence.
Dech testified that early on the afternoon of February 2, he, R., and Franzen headed to the store to buy hot wings. Allen and D. left the house after the men, and so were walking behind them. To Dech's knowledge, Allen never approached Martin's house.
Prior to that day, a car battery and wiring had gone missing from a pickup parked in Dech's backyard. As they walked to the store, Franzen told Dech this was the person who had Dech's battery, and he pointed at Martin, who was exiting his house in response to Franzen's call for him to come out. Franzen and Dech did not talk about doing anything to Martin, and Dech did not intend to beat him up or take anything from him. Dech believed he would be able to get his battery back from Martin without using force; about six or seven months earlier, Martin took salvage from Dech's father's property, but returned it when Dech confronted him and asked him to deliver it back.
Martin denied stealing Dech's car battery or stealing from him before this incident. Martin found some metal in the middle of the desert, and picked it up to turn it in for recycling. When Dech confronted Martin about it and claimed ownership, Martin returned it to him.
When Dech crossed the yard, Martin was partially outside, leaning up against a broken door. Dech asked him for his battery back, but Martin told him no. Martin gave Dech an angry look, then grabbed and raised a star wrench/tire iron. Dech did not know if Martin was going to swing the tool, but he looked like he was going to hit R., who was closer to him than Dech. Martin shouted at Dech to get off his property, and Dech punched him with his fist, because he thought R. was in danger. Dech struck Martin first in the forehead, then, when he still had the weapon, in the forearm. Martin dropped the tire iron, and Dech turned around to walk away. He assumed R. would follow. When Dech got a couple houses away and realized R. was not there, he did not go back for him. He did not see anything that happened after he left.
According to Dech, the door was already broken. Dech did not break it down.
Allen and D. started walking back toward Dech's house before Dech left Martin's residence.
When subsequently told by an officer that he was accused of attacking someone, Dech said he thought his son was in danger and so he hit Martin twice. He denied ever saying he was in bed at the time. The injuries to Dech's hands were from his bicycle accident.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Defendants challenge the sufficiency of the evidence to sustain their convictions on one or more counts. The applicable legal principles are settled. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). " 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357; accord, People v. Bolin (1998) 18 Cal.4th 297, 331.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.) A. Burglary (Allen)
Allen contends substantial evidence does not support her conviction for burglary. We disagree.
Burglary consists of unlawful entry accompanied by the specific intent to commit "grand or petit larceny or any felony." (§ 459; see People v. Montoya (1994) 7 Cal.4th 1027, 1041 & fn. 8; In re Matthew A. (2008) 165 Cal.App.4th 537, 540.) Although evidence of a forced entry is not required (People v. Carter (2005) 36 Cal.4th 1114, 1157), the requisite intent must exist at the time of entry (People v. Holt (1997) 15 Cal.4th 619, 669). The intent element " ' "is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence." [Citation.]' [Citation.]" (Id. at pp. 669-670.)
Here, jurors were instructed they could not convict a defendant of burglary unless they found that defendant intended, at the time of entry, to commit assault with force likely to produce great bodily injury. Thus, the question "is whether the evidence, including that of [Allen]'s conduct during and after [her] entry, supports a reasonable inference that the intent to commit [assault by means of force likely to produce great bodily injury] existed at the time [s]he entered the home of [Martin]." (People v. Holt, supra, 15 Cal.4th at p. 670.)
We conclude that it does. Martin testified Dech removed Martin's back door from its frame and hinges, and defendants then entered the house. Martin described Allen's demeanor as "[i]nfuriated." She accused him of stealing food out of her children's mouths, and threatening to find a rock and crush his skull with it. Defendants both started punching Martin with their fists almost immediately upon entry, and at one point, Allen went outside, retrieved something hard that Martin assumed was a rock, and started hitting him with it. While this was going on, both defendants were saying they were going to "beat the hell" out of Martin.
The California Supreme Court has stated: " '[T]here is no better proof that [defendant] entered the [victim's house] with intent to commit robbery than a showing he did in fact commit robbery after his entry.' [Citation.]" (People v. Abilez (2007) 41 Cal.4th 472, 508.) Martin's testimony, if believed, was more than sufficient to allow a rational trier of fact to conclude that when Allen entered Martin's house, she intended to assault him with such force as was likely to produce great bodily injury. (Cf. People v. Castaneda (2011) 51 Cal.4th 1292, 1326; In re Matthew A., supra, 165 Cal.App.4th at pp. 540-541.) The fact the evidence arguably might support other scenarios "does not render insufficient the evidence supporting the verdict. [Citation.]" (People v. Castaneda, supra, 51 Cal.4th at p. 1326.) Nor does the fact Martin's testimony may have been, as Allen argues, "confusing and contradictory in many important respects." (See People v. Zamudio, supra, 43 Cal.4th at p. 357.) B. Assault by Means of Force Likely to Produce Great Bodily Injury (Allen)
With respect to the burglary count, jurors were instructed on both direct perpetration and aiding and abetting. Because we find the evidence sufficient to uphold Allen's conviction for burglary as a direct perpetrator, we need not determine whether substantial evidence also supports her conviction on an aiding and abetting theory. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
Allen also challenges the sufficiency of the evidence to support her conviction for assault by means of force likely to produce great bodily injury. Again, we find the evidence sufficient.
"The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery." (People v. Colantuono (1994) 7 Cal.4th 206, 214.) Insofar as we are concerned in the present case, what is prohibited is " 'an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.' [Citation.] '[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.]' [Citation.]" (People v. Armstrong, supra, 8 Cal.App.4th at pp. 1065-1066.) "Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied. [Citation.]" (People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749.)
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.]" (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.)
By Martin's account, defendants pummeled him over the course of several minutes in the face, head, and arms with their fists and — in Allen's case — something hard that may have been a rock, while threatening to "beat the hell" out of him. A reasonable trier of fact could conclude the force Allen used during her assault of Martin was likely to produce great bodily injury, regardless of whether it did in fact produce such injury. (See People v. Leonard (2014) 228 Cal.App.4th 465, 487-488.) Allen says "[t]here was simply no reason for her to partake in" the assault, since the dispute was between Dech and Martin. Whether to credit Martin's testimony, however, was a matter for the jury. That the evidence might support the argument Allen now makes does not render the evidence insufficient to support the conviction. (See People v. Castaneda, supra, 51 Cal.4th at p. 1326.) C. Assault with a Deadly Weapon (Both)
Once again, because we find the evidence sufficient to uphold Allen's conviction as a direct perpetrator, we need not determine whether substantial evidence also supports her conviction on an aiding and abetting theory. (See People v. Guiton, supra, 4 Cal.4th at p. 1129.)
Defendants both contend the evidence was insufficient to establish they aided and abetted R.'s assault of Martin with a deadly weapon, to wit, the tire iron. We agree with the Attorney General that Dech's conviction is supported by substantial evidence, but Allen's conviction is not and must be reversed.
It is undisputed R. assaulted Martin with a star wrench/tire iron, which, under the circumstances, constituted a deadly weapon. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) Jurors were instructed defendants were charged with assault with a deadly weapon as aiders and abettors.
"A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 1158, 1164, citing People v. Beeman (1984) 35 Cal.3d 547, 561.) "Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus — a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea — knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus — conduct by the aider and abettor that in fact assists the achievement of the crime. [Citation.]" (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
Applying the foregoing to the present case, in order for us to sustain defendants' convictions as aiders and abettors, the record must contain substantial evidence (a) R. committed assault with a deadly weapon (the perpetrator's actus reus), (b) each defendant knew R.'s intent to assault Martin with the tire iron and intended to assist in that assault (the aider and abettor's mens rea), and (c) each defendant engaged in acts that assisted the assault with a deadly weapon (the aider and abettor's actus reus). (See People v. Thompson (2010) 49 Cal.4th 79, 117.) In addition, any intent to assist in R.'s assault with a deadly weapon must have been formed prior to or during commission of that offense. (People v. Cooper, supra, 53 Cal.3d at p. 1164.) However, aiding and abetting requires neither participation in an agreement to commit an offense (People v. Morante (1999) 20 Cal.4th 403, 433) nor advance knowledge of the perpetrator's intent to commit the offense (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 742).
Although ordinarily mere failure to prevent a crime is not enough to constitute aiding and abetting (People v. Culuko (2000) 78 Cal.App.4th 307, 331), it is among the factors that may be considered in determining aiding and abetting, as are presence at the scene of the crime, companionship, and conduct before and after the offense (In re Juan G. (2003) 112 Cal.App.4th 1, 5; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095). " 'Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.' [Citation.]" (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Martin testified that after the first beating in which defendants both struck him, defendants left the house. Both returned, and Allen egged Dech on as Dech beat Martin again with his fists. Dech returned a third time and continued the beating. The evidence does not suggest Allen was in the house this time. Dech left the house again, but R. entered. Martin picked up the tire iron, whereupon Dech started punching him again. R. picked up the tire iron Martin had dropped and struck him with it, and then R. and Dech both beat Martin with their fists. Fort testified she saw Allen at the fence, about 15 feet from the house. Allen yelled to come on, that the cops were on the way. Dech and R. then ran out. R. had the tire iron in his hand. They all fled.
We conclude this evidence is sufficient to permit a rational trier of fact to conclude Dech had knowledge of, intended to assist or encourage, and engaged in acts that assisted or encouraged, R.'s assault of Martin with the tire iron. Dech clearly had knowledge a tire iron was present, and it reasonably can be inferred he was in close quarters with R. when the latter picked it up. Dech's own assault on Martin was not such as might have prevented him from noticing R.'s actions (see People v. Swanson-Birabent, supra, 114 Cal.App.4th at p. 743), and he neither attempted to stop R. nor broke off his own attack when Martin dropped the tire iron. Instead, he and R. proceeded to beat Martin and then flee the scene together. When they exited the house, R. still had the tire iron in his hand.
The situation is different with respect to Allen, however. There was no evidence she was in the house during this final assault or had any knowledge R. had access to a tire iron until afterward. Assuming her warning to Dech and R. that the police were on the way might constitute aiding and abetting an assault of which she had knowledge (see In re Gary F. (2014) 226 Cal.App.4th 1076, 1080-1081), there was no evidence she had knowledge of, or intended to assist, R.'s assault of Martin with the tire iron. Accordingly, Allen's conviction on count 2 must be reversed for insufficient evidence. Retrial of that count is barred. (Burks v. United States (1978) 437 U.S. 1, 18; People v. Hatch (2000) 22 Cal.4th 260, 271-272.)
We recognize "a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the 'natural and probable consequence' of the target crime." (People v. Prettyman (1996) 14 Cal.4th 248, 261; accord, People v. Beeman, supra, 35 Cal.3d at p. 560.) "A nontarget offense is a ' "natural and probable consequence" ' of the target offense if, judged objectively, the additional offense was reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability ' "is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." ' [Citation.]" (People v. Chiu (2014) 59 Cal.4th 155, 161-162.)
We need not decide whether, on the circumstances of the present case, Allen aided and abetted an assault and, if so, whether R.'s assault with a deadly weapon was a reasonably foreseeable consequence thereof. "Reasonable foreseeability 'is a factual issue to be resolved by the jury.' [Citation.]" (People v. Chiu, supra, 59 Cal.4th at p. 162.) Although jurors were told that "[u]nder some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime," the prosecutor neither relied, nor did the trial court instruct, on the natural and probable consequences theory of liability.
II
SENTENCING ISSUES
A. Imposition of Multiple Punishments on Counts 1 and 2 (Dech)
In preparation for sentencing, the probation officer's report recommended the trial court designate count 1 (burglary) as the principal term, and impose a consecutive term as to count 2 (assault with a deadly weapon), while staying the term imposed on count 3 (assault by means of force likely to produce great bodily injury) pursuant to section 654. At sentencing, Dech argued the court was required to stay sentence on count 2, because all offenses were committed in furtherance of a single objective. The court disagreed, stating: "My view of the evidence in this case is that the recommendation by probation is justified in both matters. Even though it . . . may have seemed like a single incident to the defendants, it certainly didn't seem like that to Mr. Martin. It . . . was discreet. In my view discreet instances of violence after the defendants entered. They were discreet instances. It was brutal." Accordingly, it sentenced Dech to the upper term of six years on count 1 plus a consecutive term of one year (one-third the middle term) on count 2. Sentence on count 3 was stayed pursuant to section 654.
Dech now contends the trial court erred by imposing multiple punishments on counts 1 and 2. We disagree.
The trial court also imposed consecutive terms on counts 1 and 2 as to Allen, who raises the same claim of error. In light of the fact we are reversing her conviction on count 2, her claim is moot and we do not address it.
Section 654, subdivision (a) provides in pertinent part: "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 purpose of this statute is to ensure that punishment will be commensurate with culpability. (People v. Trotter (1992) 7 Cal.App.4th 363, 367 (Trotter).) It "prohibits punishment for two crimes arising from a single, indivisible course of conduct. [Citation.]" (People v. Islas (2012) 210 Cal.App.4th 116, 129, citing People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
"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" (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 334), not the temporal proximity of his or her offenses (People v. Capistrano (2014) 59 Cal.4th 830, 886). "Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Whether a defendant harbored a separate intent and objective for each offense is a factual determination for the trial court, and its conclusion will be sustained on appeal if supported by any substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) On review of this issue, we consider the evidence in the light most favorable to the judgment. (People v. Williamson (1979) 90 Cal.App.3d 164, 172.)
In the present case, the trial court properly stayed, pursuant to section 654, the sentence imposed on count 3, since, under the instructions given, jurors necessarily found the burglary was based on entry with intent to commit assault by means of force likely to produce great bodily injury. (See People v. Islas, supra, 210 Cal.App.4th at pp. 129-130.) Substantial evidence supports the trial court's finding of discreet instances of violence with respect to count 2, however. Specifically, the evidence supports a conclusion the initial entry and assault were in retaliation for Martin's purported theft of Dech's battery, whereas the assault with a deadly weapon was in response to Martin having the temerity to defend himself against R.'s incursion into his home. " '[M]ultiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.' [Citation.] Under section 654, a course of conduct divisible in time, though directed to one objective, may give rise to multiple convictions and multiple punishment 'where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' [Citation.]" (People v. Lopez (2011) 198 Cal.App.4th 698, 717-718.)
Trotter, supra, 7 Cal.App.4th 363, is instructive. In that case, the defendant fought with a taxi cab driver, then drove off in the vehicle. When a police officer gave pursuit, the defendant fired three shots at the patrol vehicle. The first two were only about a minute apart. The defendant was subsequently convicted, inter alia, of three counts of assault on a peace officer with a firearm. (Id. at pp. 365-366.)
On appeal, the defendant claimed he should not have been sentenced consecutively for two of three assaults, because all were committed during a single course of conduct and were incidental to the single objective of avoiding apprehension. (Trotter, supra, 7 Cal.App.4th at p. 366.) The Court of Appeal disagreed, explaining:
"The purpose behind section 654 is 'to insure that a defendant's punishment will be commensurate with his culpability. [Citation.]' [Citation.] Defendant's conduct became more egregious with each successive shot. Each shot posed a separate and distinct risk to [the pursuing officer] and nearby freeway drivers. To find section 654 applicable to these facts would violate the very purpose for the statute's existence.
"Furthermore, this was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. '[D]efendant should . . . not be rewarded where, instead of
taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.' [Citation.]
"Defendant, as he was driving, turned back, pointed, and shot his weapon. He resumed driving, paused for about a minute, turned back, and shot again. After another few seconds a third shot was fired. There was thus time prior to each shot for defendant to reflect and consider his next action. . . .
"Section 654 is applicable when there is a single 'act.' But here, there were three separate acts, not one 'made punishable in different ways by different provisions of [the Penal Code] . . . .' [Citations.]
"But, even under the long recognized 'intent and objective' test, each shot evinced a separate intent to do violence . . . . Accordingly, the court here did not err in punishing defendant separately for two of the three assaults." (Trotter, supra, 7 Cal.App.4th at pp. 367-368, fn. omitted; see People v. Harrison (1989) 48 Cal.3d 321, 335, 337-338.)
So too here, the trial court did not err by finding discreet acts of violence and punishing Dech for each. B. Denial of Probation (Allen)
We recognize that, although whether a defendant harbored multiple intents and objectives is a factual one for the trial court, that court "cannot countermand the jury and make the contrary finding [the defendant] in fact . . . had both objectives." (People v. Bradley (2003) 111 Cal.App.4th 765, 770; compare People v. McKinzie (2012) 54 Cal.4th 1302, 1368-1369, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3, with People v. Jones (2012) 54 Cal.4th 350, 359.) That the prosecutor here did not charge a separate offense for each entry into Martin's house or every assault to which Martin testified, does not necessarily mean, as Dech contends, the prosecutor viewed events as one continuous assault. There are many reasons a prosecutor might not charge every possible offense. Moreover, although the prosecutor argued defendants went to Martin's house with the overall intent of beating Martin up, she also presented the assault with a deadly weapon and assault by means of force likely to produce great bodily injury as separate acts of violence. Under the circumstances, the trial court's factual findings with respect to the application of section 654 did not countermand the jury's determinations.
In preparation for sentencing, the probation officer interviewed Allen, who did not admit culpability. In mitigation, the probation officer's report cited Allen's insignificant record of criminal conduct. In aggravation, it cited Allen's poor prior performance on the Deferred Entry of Judgment Program and probation pursuant to section 1210.1. The report also noted Allen was statutorily ineligible for a probation exception in unusual circumstances (§ 462), and the probation officer declined to cite the case as unusual (Cal. Rules of Court, rule 4.413). The probation officer found Allen to be an unsuitable candidate for probation, although she did not have an extensive criminal record, due to the circumstances of the present offense.
All references to rules are to the California Rules of Court.
The People concurred with the recommendation Allen be sentenced to prison. In her written "STATEMENT IN MITIGATION," Allen cited various purportedly mitigating factors. She also asserted hers was an unusual case in which the interests of justice would best be served by a grant of probation, the terms of which would include electronic monitoring and home confinement, in that she was the mother and sole caregiver for four young children.
At sentencing, defense counsel pointed to the letter Allen wrote, in which she maintained that as they passed Martin's house on the way to the store, Franzen said Martin stole their battery. R. asked Martin if he could have it back. Martin said no and picked up a tire iron, whereupon R. struck Martin twice with his fist. Allen maintained she merely stood back by the fence, then turned to walk away with D. Defense counsel also argued Allen had no record, was a good mother, and at most was on the periphery of the event. Counsel asserted Allen had never done anything like this before and never would again, and he asked for a probationary sentence with a year in jail. The prosecutor responded that the evidence showed Allen had significant involvement in the case, and she also participated in bringing teenagers to the beating. The trial court denied probation and sentenced Allen to prison.
Allen now contends denial of probation constituted an abuse of discretion, in light of the level of her involvement, her lack of criminal history, and the fact she was responsible for the care of a number of children. We find no error.
Because she was convicted of burglary of an inhabited dwelling house, Allen was ineligible for probation "[e]xcept in unusual cases where the interests of justice would best be served" by a grant thereof. (§ 462, subd. (a).) To determine whether this statutory limitation on probation has been overcome, the trial court uses the criteria set forth in rule 4.413(c). (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830 (Du) [discussing former rule 413].) The existence of any of the listed facts may, but does not necessarily, establish an unusual case. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) If the trial court determines the case is an unusual one, it then utilizes the criteria set forth in rule 4.414 to determine whether to grant probation. (Du, supra, at p. 830 [discussing former rule 414].)
Rule 4.413(c) provides: "The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) Facts relating to basis for limitation on probation [¶] A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: [¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. [¶] (2) Facts limiting defendant's culpability [¶] A fact or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including: [¶] (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses."
Rule 4.414(a) sets out facts relating to the crime, which include: "(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and [¶] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime."
Rule 4.414(b) sets out facts relating to the defendant, which include: "(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] (2) Prior performance on probation or parole and present probation or parole status; [¶] (3) Willingness to comply with the terms of probation; [¶] (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history or alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [¶] (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others."
"The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion. [Citations.] The standard is the same for review of an order granting probation." (Du, supra, 5 Cal.App.4th at p. 831.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Clearly, then, "[a] heavy burden is placed on a defendant in attempting to show an abuse of discretion in denying a request for probation. [Citation.]" (People v. Marquez (1983) 143 Cal.App.3d 797, 803.)
In the present case, the relevant criteria were before the court, either by way of the probation officer's report or the pleadings and arguments of the parties. Accordingly, we deem them to have been considered by the court, since the record does not affirmatively reflect otherwise. (Rule 4.409.) Allen fails to convince us the trial court should have found hers to be an unusual case in which the interests of justice would be served by granting her probation. (See People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1226-1227.) Assuming the record supported such a finding, given that rule 4.413 "is not on its face exclusive in its list of circumstances which may take a defendant out of presumptive ineligibility for probation" (Dorsey, supra, at p. 1227), she fails to convince us the trial court acted irrationally in denying probation. At most, she has presented reasons that could cause reasonable minds to disagree. This is not enough.
DISPOSITION
The judgment is affirmed in its entirety as to Dech.
Allen's conviction on count 2, assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1) is reversed, and the sentence (including financial obligations) imposed thereon is vacated. As so modified, the judgment is affirmed as to Allen. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modification, and to forward certified copies of same to the appropriate authorities.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.