Opinion
B225596
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. SERGIO FLORES, Defendant and Appellant.
Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. PA065635)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Sergio Flores appeals from the judgment following his jury conviction of assault and making criminal threats against two separate individuals. Defendant contends that under Penal Code section 654, subdivision (a) the sentences imposed on the counts of making criminal threats should be stayed as the threats were indivisible from the assaults during which they were made. We conclude that defendant had an independent objective for making the threats and affirm the judgment.
All subsequent references are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
On October 21, 2009, at his home in Los Angeles, defendant confronted his girlfriend Cristal Zavala about a hickey on her neck. During the ensuing argument, he pushed her against the wall. Zavala gave him back a ring he had given her and said she did not want to see him. Defendant always carried a gun in the back of his waistband. When Zavala tried to leave the house, he pulled out his gun, pointed it at her head, told her he was going to kill her and bury her, then put the gun away. At the time, Zavala was afraid for her life. She managed to get outside the house, but defendant kept on pushing her and telling her she was not going to leave. He kicked her from behind as she went through the gate. Out on the street, he followed Zavala down the block, shoving her several times and punching her once in the ribs. He told her again that he was going to kill her and that no one made fun of him. Before he turned back to go home, defendant said, "You're going to die, bitch." At trial, Zavala testified she was still afraid of defendant.
Defendant boarded his horse at a stable on a property in Sylmar where Zavala rented a room. On October 26, 2009, he went to check on the horse. Zavala and her neighbor Joel Gomez were sitting outside. Someone else who lived on the property asked defendant if he was going to let them make fun of him. Defendant then walked up to Gomez and hit him several times, knocking him to the ground and threatening to kill him. He continued to hit Gomez until the landlady intervened and stopped the beating. Gomez was so badly beaten that he was unable to get up without help. When Gomez finally sat up, defendant adjusted his gun and said he was not done; he would send someone over to kill Gomez.
At trial, defendant denied having any physical contact with Zavala or pointing a gun at her. He claimed to have hit Gomez once in self-defense. He denied threatening either of them.
In counts 1 and 2, defendant was charged with assault with a firearm (§ 245, subd. (a)(2)) and making criminal threats against Zavala (§ 422). In counts 3 and 4, he was charged with assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) and making criminal threats against Gomez (§ 422). In count 5, he was charged with being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury convicted him on all counts. Defendant was sentenced to a total of 16 years and 4 months in prison. The sentences on counts 2 to 4 were to run consecutively, and the sentence on count 5 was stayed. This timely appeal followed.
DISCUSSION
Defendant contends the sentences on counts 2 and 4, making criminal threats, should have been stayed pursuant to section 654, subdivision (a). He asserts that each of these counts is part of an indivisible course of conduct with the single intent and objective of punishing each victim. We disagree.
Section 654, subdivision (a) provides: "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 section ensures a defendant's punishment is "'commensurate with his culpability.'" (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison))After Neal v. State of California (1960) 55 Cal.2d 11 (Neal), the section has been applied to crimes that were part of an indivisible course of conduct because they "were merely incidental to, or were the means of accomplishing or facilitating one objective . . . ." (Harrison, at p. 335; see Neal, at p. 19.) Whether the acts of which defendant has been convicted constitute an indivisible course of conduct is a factual determination the trial court makes based on its findings about the defendant's intent and objective in committing the acts. (People v. Lee (1980) 110 Cal.App.3d 774, 786.) We will not reverse this determination on appeal unless it is unsupported by the evidence presented at trial.(Ibid.)
Defendant is incorrect that the evidence on counts 1 (assault with a firearm) and 2 (criminal threats) was undifferentiated. In closing, the prosecutor referenced two separate death threats defendant made against Zavala. The first was the threat he made when he assaulted Zavala with his gun, the second when he parted with her on the street. The court instructed the jury that defendant could not be found guilty on count 2 unless all jurors agreed that he committed at least one of the acts on which evidence was presented at trial. A unanimity instruction is required when there is more than one act supporting a conviction, and the prosecution does not select one act on which to base its case. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) Defendant does not challenge the unanimity instruction or argue that the jury could not have found that the second threat against Zavala supported count 2. At sentencing, the prosecutor argued that defendant had made separate threats to kill the victims after the assaults were over, and the court ruled that section 654 was not at issue. The evidence supported the conclusion that count 2 was not based (or not solely based) on the same course of conduct as count 1. (See People v. Assad (2010) 189 Cal.App.4th 187, 200.)
Making criminal threats is a specific intent crime that occurs when the defendant "willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out . . . ." (§ 422.) The statement, "on its face and under the circumstances in which it is made, [must be] so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby cause[] that person reasonably to be in sustained fear for his or her own safety." (Ibid.) An assault with a firearm occurs when a defendant willfully performs an act with a firearm with the present ability to apply force with it. (§§ 240, 245, subd. (a)(2); see People v. Williams (2001) 26 Cal.4th 779, 787.) The death threat that accompanied the assault with a firearm against Zavala was part of the same course of conduct and was indicative of defendant's intent to put Zavala in an immediate fear for her life based on his present ability to kill her. (See People v. Fierro (2010) 180 Cal.App.4th 1342, 1348-1349 [displaying weapon is evidence of intent that defendant's threat to kill victim be taken seriously; victim's fear is sustained even if it lasts while victim hears threat and sees weapon].) Defendant then put away the gun, ending the assault with a firearm. Had defendant made no threats after that, we would agree that counts 1 and 2 were based on an indivisible course of conduct. But he did not stop there.
Once they were outside the house, defendant pushed, kicked and hit Zavala without drawing his gun again. While he was not charged with any crime for them, these violent acts indicate that he also intended to physically harm Zavala without necessarily killing her. His parting threat that she was going to die showed his intent to make her fear for her life again, this time beyond their immediate encounter. Defendant argues that the earlier assault with a firearm was a circumstance that made the parting threat more credible. Be that as it may, the assault with a firearm was not incidental to the later threat or a means for accomplishing it because section 422 does not require an immediate ability to carry out a threat (People v. Lopez (1999) 74 Cal.App.4th 675, 679-680) or a precise time or manner of carrying it out. (In re David L. (1991) 234 Cal.App.3d 1655, 1660.) The assault with a firearm, at the time when it occurred, already had served the independent purpose of making Zavala fear that her death was imminent at that moment. In contrast, the parting threat was intended to make her fear for her life at some unspecified time in the future. Indeed, Zavala testified at trial that she had an abiding fear of defendant.
Substantial evidence supports the conclusion that defendant made the parting threat with a renewed intent to place Zavala in fear for her life independent of his earlier similar intent. The length of time a defendant has a specific objective may be interpreted narrowly to find similar consecutive objectives permitting multiple punishment. (People v. Latimer (1993) 5 Cal.4th 1203, 1212; see e.g., Harrison, supra, 48 Cal.3d at pp. 336-338 [multiple sexual crimes against the same victim during a single encounter each committed to achieve separate sexual gratification]; People v. Trotter (1992) 7 Cal.App.4th 363, 368 [successive shots at the same person, each fired with "a separate intent to do violence"].) Because the additional threat against Zavala increased defendant's culpability, it was appropriate to impose separate punishment on count 2. (Harrison, at p. 335.)
Counts 3 (assault by means likely to produce great bodily injury) and 4 (criminal threats) were based, respectively, on defendant's beating of Gomez and the threat that he would send someone to kill Gomez. Defendant made this threat after the beating was over. Defendant argues the beating was incidental to the threat because the threat could not have been taken seriously without it. He also argues that his objective to punish Gomez remained the same throughout. As was the case with defendant's parting threat to Zavala, the threat against Gomez was intended to place him in fear for his life beyond the immediate encounter with defendant. This intent was different from the intent behind the beating. To commit an assault by means likely to produce great bodily injury, a defendant need only generally intend to do an act the natural consequence of which is the application of force likely to produce great bodily injury—whether or not the defendant intends to inflict such injury. (People v. Covino (1980) 100 Cal.App.3d 660, 666-667.) But during the beating defendant did not act to simply scare Gomez with the prospect of using force; he actually used force, beating Gomez to the point where he could not stand up without help. Thus, defendant's beating of Gomez exhibited not only an intent to scare Gomez, but also an intent to injure him. Because of this independent intent to injure, the beating was not incidental to the threat that followed it, which was meant only to scare Gomez. (Cf. e.g. People v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1657 [kidnapping and criminal threat had separate purposes of hijacking victim's truck and dissuading victim from reporting the crime].)
While defendant insists that he engaged in a course of conduct intended to "punish" both victims, his own broad description is not conclusive under section 654. (See People v. Lochmiller (1986) 187 Cal.App.3d 151, 153-154.) Substantial evidence supports the conclusion that the criminal threat following the assault on each victim was made with a different intent than the assault. Counts 2 and 4, therefore, need not be stayed under section 654, subdivision (a).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.