Filed 4/17/14 P. v. Sanchez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048436

                       v.                                              (Super. Ct. No. 12NF1080)

DANIEL NAMBO SANCHEZ,                                                  OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, W.
Michael Hayes, Judge. Affirmed as modified.
                   Erica Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Perter Quon, Jr., and
Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.


                                             *               *               *
              A jury convicted defendant Daniel Nambo Sanchez of two counts of assault
with a firearm (Pen. Code, § 245, subd. (a)(2); all further statutory references are to this
code; counts 1 and 2) and making a criminal threat (§ 422; count 3.) It also found true
defendant personally inflicted great bodily injury (§ 12022.7, subd. (e)) as to count 1, and
personally used a firearm (§ 12022.5, subd. (a)) as to counts 2 and 3, although it found he
did not personally use a firearm during the commission of count 1. The trial court
sentenced defendant to seven years in prison, consisting of the middle term of three years
on count 2, plus a consecutive four years for his personal use of a firearm.
              Defendant contends his conviction under count 1 should be reversed for
insufficiency of the evidence. He also asserts the concurrent sentence ordered on count 3
and its accompanying enhancement for personal use of a firearm should have been stayed
under section 654, and that the court improperly imposed a $4,200 restitution fine on both
count 1, for which a stay was imposed, and count 3, for which he claims a stay should
have been imposed. The Attorney General agrees the court should have excluded count 1
in its calculation of the fine and further asserts it should have used $240 as the basis for
calculating the fine under the version of section 1202.4, subdivision (b)(1) in effect at the
time defendant committed the crimes. We agree with the Attorney General and reduce
the fine to $3,360, but in all other respects affirm the judgment.


                                           FACTS


              The trial court deemed defendant’s girlfriend, Yullizet Pineda, to be an
unavailable witness and allowed the prosecution to read her preliminary hearing
testimony to the jury at trial. According to that transcript, Pineda and defendant were in
the bedroom of her apartment when she told him that she wanted to end their relationship,
causing defendant to act “desperate” and cry. Not wanting any problems, Pineda went
into the bathroom to wait for defendant to leave.

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              While in the bathroom, Pineda sent several text messages to her roommate
Jeanet Mellin, who was in the kitchen or living room of the apartment. One of the
messages informed Mellin that defendant had not left the apartment and warned her not
to enter the bedroom until he left because Pineda was “afraid he’s going to do something
to [her].” In another message, Pineda stated, “‘I’m afraid . . . that he might come in
because he wanted to use the gun. And he told me that if I call the police, he was going
to get everyone.’” Pineda also asked Mellin to tell her when defendant left the apartment
and to call the police.
              At defendant’s request, Pineda came out of the bathroom to talk to him.
She told defendant she did not want to continue the relationship “regardless of what was
going to happen.” Defendant then pulled out a gun, “cocked it and gave it to [her], telling
[her] to kill him or else he would kill [her] family” because “he would rather die if he
couldn’t have [her].” Pineda grabbed the gun and placed it by her side. She told him she
did not want to kill him but that “he had to pack his clothes and leave.” After “talking to
him for a while,” Pineda tried to back out of the bedroom to give the gun “‘to someone to
prevent some injury to [her] or someone else.’” Defendant told her to give the gun back
to him and reached for it. As he did so, Pineda tripped and fell with defendant on top of
her. The gun fired and a bullet struck her left hand. Pineda did not know how she got
shot, who shot the gun, how it went off, or where it went.
              Pineda was taken to the hospital where she told a police officer she went
into the bathroom to get away from defendant because they were having an argument and
she feared “he was going to shoot himself and possibly shoot her.” At some point during
the argument, defendant had produced a gun, pointed it at Pineda, and said “he was going
to shoot her, . . . her family, and then . . . himself.” The statement scared Pineda and she
took it seriously. Defendant thereafter gave the gun to Pineda and told her to shoot him
because he was upset about breaking up. After taking the gun, Pineda tried to leave but
defendant grabbed her arm and they struggled over the gun. Pineda did not want to give

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the gun back to him because she was afraid he would shoot her. During the struggle, they
fell to the ground and the gun went off.


                                       DISCUSSION


1. Sufficiency of the Evidence on Count 1
              The difference between the two charges of assault with a firearm is that
count 1 concerns “the struggle over the firearm” whereas count 2 involves “the physical
act of pointing the gun.” Defendant contends the evidence is insufficient to show he had
the necessary mental state to support his conviction in count 1. We disagree.
              “‘In assessing the sufficiency of the evidence, we review the entire record
in the light most favorable to the judgment to determine whether it discloses evidence
that is reasonable, credible, and of solid value such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this
ground is unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].”‘“ (People v. Wilson (2010)
186 Cal.App.4th 789, 805.)
              The crime of assault with a firearm is an assault committed “upon the
person of another with a firearm.” (§ 245, subd. (a)(2).) Section 240 defines assault as
“an unlawful attempt, coupled with a present ability, to commit a violent injury on the
person of another.” Although “mere recklessness or criminal negligence is . . . not
enough” “[a]ssault is . . . a general intent crime” (People v. Williams (2001) 26 Cal.4th
779, 788 (Williams)) that “does not require a specific intent to cause injury or a subjective
awareness of the risk that an injury might occur. Rather, assault only requires an
intentional act and actual knowledge of those facts sufficient to establish that the act by
its nature will probably and directly result in the application of physical force against
another.” (Id. at p. 790.) “‘The pivotal question is whether the defendant intended to

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commit an act likely to result in such physical force . . . .” (Id. at p. 785.) A defendant
may be guilty of assault even if he or she believed the act was not going to result in the
infliction of force on another if “a reasonable person, viewing the facts known to
defendant, would find that the act would directly, naturally and probably result in a
battery.” (Id. at p. 788, fn. 3.)
               Here, defendant knew the following: (1) he had given a loaded gun to
Pineda, who had just broken up with him, and instructed her to shoot him or he would
shoot her and her family; (2) she did not comply with his demand to kill him, instead
telling him she did not want to shoot him and for him to pack up his clothes and leave;
(3) she refused to give the gun back when he asked for it; and (4) when she tried to back
out of the bedroom, he reached for the gun, grabbed her arm, and struggled with her over
the gun. A reasonable person viewing these facts would find defendant’s act of
struggling to wrest possession of a gun from a woman, who most likely would fight hard
to maintain possession of it due to defendant’s threats to her family and her life if she did
not do what he asked, would naturally and probably result in the gun going off. To this
end, Pineda admitted telling a police officer that she was “afraid that [defendant] was
going to shoot [her] or himself and that’s why she struggled for the gun[.]” Given
defendant’s ultimatum threatening to shoot Pineda and her family if she did not shoot
him, we reject his assertion it must be assumed “he wanted the gun to shoot himself”
only.
               Defendant maintains his conduct in “[r]eaching for a loaded gun” was
“nothing more than reckless and negligent.” But he did more than just reach for the gun.
“Although reckless conduct alone does not constitute a sufficient basis for assault or for
battery even if the assault results in an injury to another, ‘when an act inherently
dangerous to others is committed with a conscious disregard of human life and safety, the
act transcends recklessness, and the intent to commit the battery is presumed; the law
cannot tolerate a deliberate and conscious disregard of human safety.’” (People v.

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Martinez (1977) 75 Cal.App.3d 859, 863-864 [fact-finder could infer the defendant
“acted with a wanton and willful disregard for human life” by throwing a beer bottle that
bounced off police car and struck officer and shattered, even if the defendant did not
intend to strike officer].) Here, a reasonable jury could conclude defendant acted with
wanton and willful disregard for human life and safety by grabbing Pineda’s arm and
struggling for possession of the loaded gun after she refused to comply with his demand.
              Defendant’s reliance on People v. Cotton (1980) 113 Cal.App.3d 294
(Cotton) is misplaced. First, Cotton reversed the defendant’s conviction of assault with a
deadly weapon after he collided with a police car during a high speed chase because the
trial court erroneously relied on the doctrine of transferred intent and “simply transposed
an intent to drive recklessly into an intent to commit a battery.” (Id. at p. 302.) That did
not happen here. Second, Cotton is based on the principle “that intent to commit a
battery, i.e., attempted battery, is an element of assault with a deadly weapon[,]” which
has been “fatally undermine[d]” by Williams, supra, 26 Cal.4th at p. 788. (People v.
Aznavoleh (2012) 210 Cal.App.4th 1181, 1190 [under Williams, “a defendant need not
intend to commit a battery, or even be subjectively aware of the risk that a battery might
occur . . . [but] need only be aware of what he is doing”].)


2. Section 654
              The imposed sentence of seven years consisted of three years on count 2
(assault with a firearm based on defendant’s act of “pointing the gun”) and a consecutive
four-year term for the personal use of a firearm enhancement. The court also ordered a
two-year sentence on count 3, plus a consecutive four-year term for the attached personal
use of a firearm enhancement, to run concurrent to the sentence on count 2. Defendant
argues the court erred in not staying the sentence on count 3 and its accompanying
enhancement under section 654.



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              Under section 654, subdivision (a), “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 statute bars multiple
punishment for separate offenses arising out of a single occurrence where all of the
offenses were incident to one objective. (People v. McKinzie (2012) 54 Cal.4th 1302,
1368.) “‘“‘A trial court’s [express or] implied finding that a defendant harbored a
separate intent and objective for each offense will be upheld on appeal if it is supported
by substantial evidence.’”‘“ (Ibid.) The court here found “count 3 is not subject to the
provisions of [section] 654.”
              Defendant asserts this was error because his conduct in “pointing a firearm
at Pineda while, at the same time, threatening to kill her and her family . . . arose from a
single act with a single intent and objective,” which was to “scare Pineda at the inception
of the incident” into changing her mind about ending their relationship and then to
“strengthen the severity of his threat” by pulling out the gun after Pineda said she would
not change her mind “regardless what was going to happen.” The Attorney General
responds that this alone shows defendant had two separate objectives. We need not
decide whether it does or not because that was not the only time defendant made criminal
threats against Pineda.
              Before the “pointing the gun” incident, Pineda had gone into the bathroom
when defendant began to act “desperate” and cry after she told him she wanted to end
their relationship. While in the bathroom Pineda sent several text messages to Mellin,
including one stating she was scared defendant would use his gun and that he had told her
“‘he was going to get everyone’” if she “‘call[ed] the police.’” Thus, defendant made a
criminal threat against Pineda before the subject incident.
              Then after Pineda came out of the bathroom, at defendant’s request, he
pointed the gun at her and threatened to kill her and her family if she did not shoot him

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first. The trial court could have reasonably found defendant’s intent and objective before
Pineda went into the bathroom was to “‘get everyone’” if she called the police and that
when he pointed the gun at Pineda, he harbored a new and separate intent to injure Pineda
if she did not comply with his request to shoot him or continue their relationship. Thus,
substantial evidence supports the court’s finding that defendant had separate intents and
objectives when he made his criminal threat before Pineda entered the bathroom and
when he committed assault with a firearm in pointing the gun at her after she came out of
the bathroom. (People v. Nubla (1999) 74 Cal.App.4th 719, 731 [section 654 did not bar
separate sentences for assault with deadly weapon and corporal injury to spouse where
“act of pushing his wife onto the bed and placing the gun against her head was not done
as a means of pushing the gun into her mouth, did not facilitate that offense and was not
incidental to that offense”].)
              Moreover, “‘under section 654, “a course of conduct divisible in time,
although directed to one objective, may give rise to multiple violations and punishment.
[Citation.]” [Citations.] 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.’” (People v. Andra (2007) 156 Cal.App.4th 638,
640.) Here, the criminal threats made before Pineda entered the bathroom were
physically and temporally separate from the ones defendant made after she came out into
the bedroom, allowing defendant time to reflect in between. (People v. Trotter (1992) 7
Cal.App.4th 363, 368 [the defendant had separate intents and objectives in firing three
shots, where the first two, committed one-minute apart, and the third a few seconds later,
“were separated by periods of time during which reflection was possible”]; see also
People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022 [consecutive sentences not
barred under section 654 for terrorist threats and arson where “crimes were divisible” in
time and also “had distinct objectives”].) Although the amount of time Pineda remained

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in the bathroom is unclear, it was long enough for her to send several text messages and
for defendant to reflect. “‘[D]efendant should . . . not be rewarded where, instead of
taking advantage of an opportunity to walk away from the victim, he voluntarily” (People
v. Trotter, at p. 368) and subsequently assaulted her with a firearm and made additional
threats.
              Defendant acknowledges “the record supports a theory that [he] threatened
Pineda prior to removing the gun from his waistband and pointing it at her. However,
[he] harbored a singular objective during the entire encounter in Pineda’s apartment that
day,” i.e., “holding on to his failing relationship.” In essence, defendant urges this court
to disregard the factual inferences the trial court implicitly made and instead make
inferences more favorable to him. That is not our role on appeal. Because substantial
evidence supports the trial court’s determination that defendant had separate objectives,
no error occurred under section 654.


3. Restitution Fine
              Section 1202.4, subdivision (b)(2) authorizes a court to impose a restitution
fine on a person convicted of a felony by using a statutory amount “multiplied by the
number of years of imprisonment the defendant is ordered to serve, multiplied by the
number of felony counts of which the defendant is convicted.” (People v. Urbano (2005)
128 Cal.App.4th 396, 406.) Under section 1202.4, subdivision (b)(1), “If the person is
convicted of a felony, the fine shall not be less than two hundred forty dollars ($240)
starting on January 1, 2012.” Restitution fines may not be based on counts that “were
stayed pursuant to section 654, subdivision (a).” (People v. Sencion (2012) 211
Cal.App.4th 480, 483; People v. Carlson (2011) 200 Cal.App.4th 695, 710.)
              In this case, the trial court imposed a restitution fine of $4,200, “computed
as $200 for every year of imprisonment times the number of felony counts,” apparently
using the prior statutory amount of $200, which was increased to $240 “starting on

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January 1, 2012.” (§ 1202.4, subd. (b)(1); Stats. 2012, ch. 868, § 3, p. 7181.) Defendant
contends this was error because the court had stayed the sentence on count 1 under
section 654 and should have also stayed the sentence on count 3. The Attorney General
agrees as to count 1, as do we. We also agree with the Attorney General that a fine for
count 3 was appropriate because section 654 does not bar a separate sentence on that
count, and that the amount of $240 should have been used in the calculation instead of
$200 because defendant’s crimes occurred in April 2012. The restitution fine is thus
modified to $3,360.


                                      DISPOSITION


             The judgment is modified to reduce the restitution fine from $4,200 to
$3,360 for defendant’s conviction for assault with firearm in count 2. The clerk of the
superior court is directed to prepare an amended abstract of judgment reflecting the
change and forward it to the Department of Corrections and Rehabilitation. As so
modified, the judgment is affirmed.




                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



IKOLA, J.


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