Filed 5/22/13 P. v. Marquez CA6

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      SIXTH APPELLATE DISTRICT

                                                                     H038611
THE PEOPLE,
                                                                    (Santa Cruz County
         Plaintiff and Respondent,
                                                                     Super. Ct. No. F19488)

         v.

GERALD PATRICK MARQUEZ,

         Defendant and Appellant.




         Gerald Marquez appeals from a judgment entered upon his no contest plea to first-
degree burglary (Pen. Code, § 459) and two counts of assault by means of force likely to
produce great bodily injury (Pen. Code, § 245, subd. (a) (1)). On appeal, he contends that
the court's imposition of separate punishments on the two assault counts violated Penal
Code section 654. We disagree and therefore affirm the judgment.
                                                          Facts
         The facts are derived from the victim's preliminary hearing testimony on
December 6, 2010.
         Appellant and the victim were involved in an "on and off" dating relationship
beginning in late 2009. On a Friday in May 2010, appellant accused the victim of

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"seeing other guys" and told her he did not want to see her anymore. The following day,
after coming home from a bar, she entered her house to find appellant standing in her
kitchen. She had not given appellant permission to enter her home. Appellant looked
"irritated, pissed," and asked "where the fuck you been." When she approached him,
appellant hit her on the face and she fell. He then began to kick and stomp on her, from
her face down to her legs, while repeatedly asking how she could "do this to [him]" by
going out with other guys.
       Eventually, the appellant stopped his assault to retrieve a text message that had
appeared on the victim's phone. After reading the text message and demanding to know
who had sent her the message, appellant became "even madder" and resumed hitting and
stomping on her. After what seemed like an hour to an hour and a half, appellant stopped
hitting her; she then she escaped to her bathroom and locked herself inside.
       While the victim was inside the bathroom, appellant tried to force the door open.
He told her, "[y]ou better let me in. This is only going to get worse for you. Just let me
in. It's going to get worse." Then it was quiet, and she believed he had left. However,
"the next thing [she] kn[e]w," he began pounding on the door to the bathroom.
Eventually, he took the door off the hinges and it fell down on her.
       At that point, the victim testified, appellant "picked me up and went to slam me
into the mirror and I put my arm up . . . . My elbow broke the mirror." The impact cut
her forearm. Appellant then told the victim to take a shower and helped her into the
bathtub. At that point, she was no longer able to walk. She was in the shower for "quite
some time," during which she repeatedly lost and regained consciousness. Appellant
then helped the victim into her bed where she remained for the night. She was unable to
move and in considerable pain, and she continued to pass in and out of consciousness.
       For the next two days, the victim experienced shortness of breath, pain in her
chest, and difficulty moving. Appellant took her to her primary care physician, who told
her to go to the emergency room. The providers at the emergency room informed the
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victim that her lungs had collapsed and were full of fluid. As a result of the beating, the
victim's jaw was fractured, some of her teeth were chipped, and some of her fillings had
fallen out. By the time of the preliminary hearing, which took place about seven months
after the attack, the victim had a scar from where doctors had drained her lungs, a black
mark on her face where appellant had stomped on it, and bruises on her arms and legs.
She was still experiencing back pain and frequent headaches, and her jaw was "clicking."
                                      Procedural History
         Appellant was charged by information with two counts of assault by means of
force likely to produce bodily injury, in violation of Penal Code section 245, subdivision
(a)(1), and two counts of first degree burglary, in violation of Penal Code section 459.1
Attached to each of the assault charges was an allegation that appellant had inflicted great
bodily injury on the victim, within the meaning of section 12022.7. One of the burglary
charges was dismissed under section 995. On August 18, 2011, appellant pleaded nolo
contendere to the other burglary count and the two assault counts (counts one and three),
and he admitted the enhancement allegation pertaining to the first assault. The court
dismissed the remaining enhancement allegation.
         On October 26, 2011, the trial court sentenced appellant to the upper term of four
years in prison on the first assault count, plus four years for the great bodily injury
enhancement. On the second assault count, the court imposed a concurrent term of four
years and imposed the middle term of four years for the burglary but stayed that
punishment under section 654. This appeal followed. 2
                                          Discussion
1. Section 654

1
    All further statutory references are to the Penal Code unless otherwise indicated.
2
 Defendant's failure to object during sentencing does not preclude this appeal because he
did not agree to a specified sentence. (Cal. Rules of Court, rule 4.412 (b); People v.
Hester (2000) 22 Cal.4th 290.)
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       The only issue on appeal is whether section 654 requires the concurrent term for
the second assault count to be stayed. Section 654 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." (§ 654, subd. (a).)
It is accepted that "[w]hether section 654 applies in a given case is a question of fact for
the trial court, which is vested with broad latitude in making its determination.
[Citations.] Its findings will not be reversed on appeal if there is any substantial evidence
to support them. [Citations.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see
also People v. Andra (2007) 156 Cal.App.4th 638, 640–641, People v. Lopez (2011) 198
Cal.App.4th 698, 717.)
       The purpose of section 654 "is to ensure that a defendant's punishment is
commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.)
Consistent with this principle, "[g]enerally, a person who violates the same statute
multiple times is more culpable than a person who violates the statute only once."
(People v. Sanders (2012) 55 Cal.4th 731, 742.) Moreover, "at some point the means to
achieve an objective may become so extreme they can no longer be termed 'incidental'
and must be considered to express a different and more sinister goal than mere successful
commission of the original crime . . . [S]ection [654] cannot, and should not, be stretched
to cover gratuitous violence or other criminal acts far beyond those reasonably necessary
to accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
       The imposition of concurrent sentences is prohibited by section 654 "because the
defendant is deemed to be subjected to the term of both sentences although they are
served simultaneously." (People v. Miller (1977) 18 Cal.3d 873, 887.) Therefore, when
section 654 applies, "the trial court must stay execution of sentence on the convictions for
which multiple punishment is prohibited." (Correa, supra, 54 Cal.4th at p. 337.)


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       In determining whether section 654 applies to a particular case, a court will
attempt to discern the defendant's objective and intent at the time he committed the
criminal acts. The Supreme Court in Neal v. State of California (1960) 55 Cal.2d 11,
recited the test, or "judicial gloss" (see People v. Siko (1988) 45 Cal.3d 820, 822), that
was followed until June 20123: "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."
(Neal, supra, 55 Cal.2d at p. 19; see also People v. Brown (1958) 49 Cal.2d 577, 591.)
       On the other hand, "[i]f [the defendant] entertained multiple criminal objectives
which were independent of and not merely incidental to each other, he may be punished
for independent violations committed in pursuit of each objective even though the
violations shared common acts or were parts of an otherwise indivisible course of
conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) The trial court's
determination that the defendant had more than one objective is factual and will be
upheld on appeal if supported by substantial evidence. (People v. Saffle (1992) 4
Cal.App.4th 434, 438; People v. Lopez, supra, 198 Cal.App.4th at p. 717.)
       Additionally, even if the defendant harbors but one objective throughout the
commission of the crimes, if his conduct is "divisible in time," it may be appropriate to
impose multiple punishments for the violations. (People v. Gaio (2000) 81 Cal.App.4th


3 On June 21, 2012, the Supreme Court abandoned the Neal test in People v. Correa,
supra, 54 Cal.4th 331. The court stated that contrary to precedent, it would follow "the
language and purpose of section 654" which "counsel against applying it to bar multiple
punishment for violations of the same provision of law." (Id. at pp. 340-341; see also
People v. Sanders, supra, 55 Cal. 4th at p. 743 [simultaneous possession of two firearms
can be punished separately].) However, the court noted that its ruling applies
prospectively only. (Correa, supra, 54 Cal.4th at p. 344.) Therefore, we continue to
follow the Neal test, as it was the law at the time the crime was committed.

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919, 935; People v. Beamon, supra, 8 Cal.3d at p. 639, fn. 11.) "This is particularly so
where the offenses are temporally separated in such a way as to afford the defendant
opportunity to reflect and to renew his or her intent before committing the next one,
thereby aggravating the violation of public security or policy already undertaken.
[Citation.]" (People v. Gaio, supra, 81 Cal.App.4th at p. 935.)
2. Appellant's Argument
       Appellant contends that section 654 applies to the sentencing on the two assault
counts. He insists that the beatings outside the bathroom (count one) and inside the
bathroom (count three) were committed with a single objective—to harm the victim—
and thus were parts of an indivisible course of conduct. Consequently, appellant argues,
section 654 prohibits multiple punishment and the concurrent term on count three should
have been stayed.
       Appellant cites People v. Gaio, supra, 81 Cal.App.4th 919 in order to distinguish
it from the facts here. In Gaio, the defendants were convicted of receiving and giving
bribes over the course of several months and contended that the bribes were
accomplished with the same intent and objective. (Gaio, supra, 81 Cal.App.4th at p.
935.) The Gaio court disagreed with the defendants' arguments that their consecutive
sentences violated section 654. (Id. at p. 936.) The court concluded that because the
bribes were carried out with different intents and objectives and because they were
divisible in time, giving the defendants "an opportunity to reflect and to renew his or her
intent before committing the next one," the imposition of separate sentences for each
offense was appropriate. (Id. at p. 935.)
       Appellant also cites People v. Lopez, supra, 198 Cal.App.4th 698, again to
distinguish it from the case at hand. There, the trial court imposed concurrent sentences
for two counts, using a stolen access card and petty theft of personal property, both items
belonging to the same victim. (Id. at p. 716.) The defendant argued that the trial court
should not have run those sentences concurrently, and that instead the stolen access card
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charge should have been stayed. (Id. at pp. 716-717.) This court disagreed with the
defendant because the trial court "could reasonably have concluded" that the objectives
behind each crime were distinct. (Id. at p. 717.) Additionally, we held that the amount of
time that passed in between the two offenses "was sufficient for him to reflect upon what
he had already done . . . and what he was about to do." (Id. at p. 718.)
       Appellant maintains that unlike Gaio and Lopez, "it cannot be said that appellant
harbored any objective at any time during the commission of these offenses other than to
inflict injury on [the victim]." Furthermore, "the assaults and the burglary were part of a
continuous course of conduct. There was no appreciable break in the action such that it
could be said appellant had an opportunity to reflect on his actions." Appellant argues
that "it cannot be said that appellant had the opportunity to reflect and renew his intent."
3. The Attorney General's Argument
       The Attorney General asks us to uphold the trial court's ruling, contending that the
sentence was supported by substantial evidence and does not violate section 654. In
doing so, she offers three arguments: that appellant had time to reflect between the two
assaults, that the purpose of section 654 supports the trial court's determination, and that
the appellant perpetrated the two assaults with different objectives.
       Citing People v. Surdi (1995) 35 Cal.App.4th 685 and People v. Kwok, supra, 63
Cal.App.4th 1236 for the proposition that a division between incidents can justify
multiple punishments, the Attorney General contends that a "sharp dividing line" between
the two attacks formed when the victim ran into the bathroom. In her view, "there was a
substantial pause between the first series of assaults and the second," and consistent with
Kwok and Surdi, this pause allows for multiple punishment. Because "the trial court
properly inferred that there was a period of cessation of hostility that divided the first
assaults from the later assaults," she argues, the sentence should be upheld.
       The Attorney General further contends that the purpose behind section 654 statute
lends additional support to the trial court's finding. Citing People v. Latimer, supra, 5
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Cal.4th 1203, she reminds us that "section 654 is intended to insure that a defendant's
punishment will be commensurate with his culpability." She further argues that
appellant's "second round of attacks plainly increased his culpability" because they are
"easily distinguishable from his first battery of attacks in the kitchen."
       The Attorney General also suggests that during appellant's second attack on the
victim he showed a different intent and objective. Appellant's first attacks were
"presumably out of outrage over his belief that he had discovered that she had been
unfaithful. However, the second series of attacks seemed to show a different intent, that
of teaching the victim that resistance to his will would be severely punished," as it
"would only make it worse" for her.
4. Analysis
       We agree with the Attorney General and thus find substantial evidence to support
the trial court's imposition of concurrent sentences for the two assaults. Appellant
suggests that "the most reasonable interpretation of these events is that appellant was
quiet for a short period of time in an attempt to lull [the victim] into a false sense of
security so that she would open the door." We are not convinced. The trial court could
have reasonably concluded that the pause outside the bathroom door was evidence of
something other than an attempt to lure the victim into a false sense of security.
       If appellant was, in fact, attempting to instill in the victim a false sense of security,
his ability to do so implies that he had time to reflect on his course of action; he was
pausing to prepare for another attack on the victim and developing his strategy for how to
do so. Moreover, the victim was behind a closed door, out of defendant's sight. There
was silence outside the door. Appellant had an opportunity to refrain from further
harming the victim and chose not to. Instead, he resumed his attack, breaking down the
door and slamming her into a mirror.
       Thus, there was substantial evidence from which the trial court could have
determined that there was an "appreciable break" in appellant's conduct such that he had
                                               8
an opportunity to reflect upon his actions. This fact was sufficient to preclude the
application of section 654 to the separate assaults on the victim.
                                        Disposition
       The judgment is affirmed.




                                          _________________________________
                                          ELIA, J.


WE CONCUR:




______________________________
RUSHING, P. J.




______________________________
PREMO, J.




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