Filed 6/22/16 P. v. Gonzales CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E063783

v.                                                                      (Super.Ct.No. RIF1311577)

JOHN ERNESTO GONZALES,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Modified and affirmed with directions.

         James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and

Respondent.




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       A jury found defendant John Ernesto Gonzales guilty of one count of residential

burglary (Pen. Code,1 § 459; count 1) and one count of assault with a deadly weapon

other than a firearm (§ 245, subd. (a)(1); count 2). The trial court sentenced him to five

years in state prison, consisting of a four-year sentence on count 1, and a consecutive

one-year sentence on count 2. The court also ordered defendant to pay various fines and

fees, as well as restitution.

       On appeal, defendant raises three claims of error. First, he argues that the trial

court erred by refusing to instruct the jury on self-defense. Second, he argues that his

one-year sentence on count 2 should have been stayed pursuant to section 654. Third, he

argues that a $300 restitution fine and a $300 parole revocation fine imposed by the trial

court should both be reduced to $280.

       The People concede that the fines should be reduced. We agree, and will order the

abstract of judgment to be modified accordingly. In all other respects, the judgment will

be affirmed.

                    I. FACTS AND PROCEDURAL BACKGROUND

       On October 12, 2013, the three victims in this case—a husband, a wife, and their

daughter—arrived home from running an errand to see an unfamiliar pickup truck parked

in their driveway. Two individuals, defendant and a younger male accomplice, had

broken into the house through a previously locked door, ransacked the house, and were

loading the truck with the family’s belongings. The husband recognized defendant as an

acquaintance, a friend of his brother, whom he owed a small sum of money (under $50).

       1   Further undesignated statutory references are to the Penal Code.

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       The wife parked their vehicle in front of the truck, blocking it from driving away,

and the family exited their vehicle. Defendant’s accomplice was heard to say “‘I gotta

go. I gotta go,’” and defendant responded “‘Go ahead. Run. I can’t go.’” Instead of one

or both burglars immediately fleeing, however, there was a physical altercation between

them and the victims. During the course of that altercation, the husband, who walks with

a cane, slipped and fell on his back. One of the two burglars—apparently defendant’s

accomplice, though there was some confusion in trial testimony on that point—was

armed with a crowbar; from the ground, the husband was able to ward off repeated blows

from the crowbar with his cane. The other burglar, apparently defendant, was armed with

a screwdriver, and also stood over the fallen husband, menacing him with the weapon.

From the ground, the husband was able to strike defendant in the face with his cane.

Police arrived shortly thereafter. Defendant’s accomplice ran away, but defendant did

not; defendant seemed out of breath, and was bleeding from the blow to his face.

       During trial, defense counsel requested that the jury be instructed on self-defense.

The trial court denied the request.

       The jury returned its verdicts on March 6, 2015. On April 17, 2015, the trial court

imposed a four-year sentence with respect to count one, and a consecutive one-year term

with respect to count 2.

       The court also imposed various fines and fees, including a $300 restitution fine

and a $300 parole revocation fine. During sentencing, the trial court remarked that all of

the fines imposed were “the lowest I can give.”



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                                        II. DISCUSSION

A. The Trial Court Properly Refused to Instruct the Jury on Self-defense.

          Defendant contends the trial court erred by refusing to instruct the jury on self-

defense. We disagree.

          A trial court must give a particular instruction requested by the defendant only

when substantial evidence supports it. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)

Whether the evidence is sufficient to support such an instruction is a question of law.

(Ibid.)

          There is no substantial evidence in support of a self-defense instruction. The

uncontradicted evidence was that defendant and his accomplice stood over a fallen man,

menacing him with weapons. To be sure, the victim managed to strike defendant in the

face with his cane, while defendant apparently failed to succeed in striking the victim.

This circumstance is not substantial evidence that defendant was acting in self-defense, as

he would have it, only that defendant was an ineffectual attacker.

          Defendant makes much of the daughter’s choice of words during her testimony at

trial, describing the events as a “confrontation,” rather than an assault on her father. The

daughter’s testimony, however, was unambiguous: defendant was the aggressor, “coming

at” her father with a weapon. Though she never saw defendant succeed in striking her

father, it was not for lack of trying; she did see defendant “swing at” her father and try to

hit him even after he had fallen, instead of taking the opportunity to disengage. The

daughter’s testimony is not substantial evidence in support of defendant’s theory. Quite



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the contrary, it directly undermines the notion that defendant was only trying to defend

himself.

       In short, the trial court correctly refused to instruct the jury on self-defense,

because there was no substantial evidence in support of such an instruction.

B. The Trial Court Did Not Err By Imposing Consecutive Terms, Instead of

Staying the Sentence on Count 2.

       Defendant argues that his sentence on count two should have been stayed pursuant

to section 654, because his two charges arose from a single, indivisible course of conduct.

We disagree.

       “Section 654 precludes multiple punishment for a single act or omission, or an

indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) “Whether

a course of criminal conduct is a divisible transaction which could be punished under

more than one statute within the meaning of section 654 depends on the intent and

objective of the actor.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) “In the

absence of any reference to Penal Code section 654 during sentencing, the fact that the

court did not stay the sentence on any count is generally deemed to reflect an implicit

determination that each crime had a separate objective.” (People v. Tarris (2009) 180

Cal.App.4th 612, 626-627.) “‘The determination of whether there was more than one

objective is a factual determination, which will not be reversed on appeal unless

unsupported by the evidence presented at trial.’ [Citations] ‘[T]he law gives the trial

court broad latitude in making this determination.’” (People v. Wynn (2010) 184

Cal.App.4th 1210, 1215 (Wynn).)

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       The trial court’s implicit determination that defendant acted with separate

objectives in committing the burglary and the assault is supported by substantial

evidence. It is reasonable to infer that the objective of the burglary was to obtain

property, specifically, the property the two burglars were in the process of loading into

their truck when the victims interrupted them by arriving home. The objective of the

subsequent assault was to avoid being apprehended; defendant apparently was unable to

run away, and both burglars resorted to force. These separate objectives mean that the

crimes are properly punished separately.

       Defendant contends that he had “only one criminal objective—to burgle the home

and escape.” Similar arguments have been rejected under similar circumstances,

however, by a number of courts. (Wynn, supra, 184 Cal.App.4th at pp. 1215-1216

[rejecting argument that defendant’s objective in committing burglary and assaults was

indivisible course of conduct, and collecting cases].) Defendant distinguishes Wynn on

its facts, noting that the victim here was not a police officer or a private security guard.

We are not persuaded, however, that this is a distinction that makes a difference. The

point is that defendant’s objective changed from obtaining property to effecting an

escape, regardless of the identity of the individuals from whom he sought to escape.

       Defendant points to People v. Guzman (1996) 45 Cal.App.4th 1023, in support of

his argument. In that case, the defendant had been convicted of burglary, grand theft, and

robbery; the burglary occurred when the defendant entered a garage to steal a motorcycle,

the grand theft—when he loaded it into his truck, and the robbery—when he beat the

homeowner who tried to stop the theft. (Id. at pp. 1025-1026.) The court of appeal held

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that section 654 required the robbery count to be stayed. (Guzman, supra, at pp. 1028-

1029.) Burglary and robbery, however, are both theft offenses, and in Guzman both

convictions were based on theft of the same object. The circumstances of the present

case are different; defendant’s second conviction is for assault, not robbery or any other

theft offense.

       Other authority on which defendant relies is simply inapposite. Neither People v.

Bodely (1995) 32 Cal.App.4th 311, addressing the scope of felony murder liability, nor

People v. Ramirez (1979) 93 Cal.App.3d 714, considering the application of

enhancements for causing the infliction of great bodily injury on the victims during the

course of a burglary or certain other offenses, has any applicability to the present case.

Defendant’s point, apparently, is that a burglary may sometimes be a part of the same

continuous course of conduct as an assault. That is true enough, but has little bearing on

the issue of whether the trial court’s implicit determination based on the evidence

presented at trial—that defendant acted with separate intents and objectives in the

commission of this burglary and this assault—was supported by substantial evidence. It

was, so we find no error.

C. The Abstract of Judgment Must Be Corrected to Reflect the Correct Amounts

for the Restitution Fine and Parole Revocation Fine.

       The People and the defendant agree, as do we, that the trial court intended to

impose the minimum restitution and parole revocation fines authorized by statute. The

trial court erred, however, in translating that intention into a dollar amount. We will

order the abstract of judgment corrected to give effect to the trial court’s stated intention.

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       The offenses at issue were committed in 2013. The minimum restitution and

parole revocation fine in effect at that time was $280. (§§ 1202.4, subd. (b)(1) [setting

minimum and maximum amounts for restitution fine], 1202.45, subd. (a) [parole

revocation fine shall be same amount as restitution fine].) The trial court erred by

imposing these fines using the current minimum amount of $300, which did not go into

effect until January 1, 2014. (§ 1202.4, subd. (b)(1).)

       We have the authority to correct such errors without remanding for further

proceedings. (People v. Smith (2001) 24 Cal.4th 849, 854.) We find it appropriate to do

so.

                                      III. DISPOSITION

       The judgment is hereby modified so as to reduce both the restitution fine and the

parole revocation fine from $300 to $280. The trial court is directed to modify the

abstract of judgment accordingly, and to send a copy of the corrected abstract of

judgment to the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               HOLLENHORST
                                                                        Acting P. J.
We concur:

       MILLER
                                 J.

       SLOUGH
                                 J.

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