Filed 7/31/13 P. v. Lucero CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046841

         v.                                                            (Super. Ct. No. 10CF2760)

ERNESTO LUCERO,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed as modified.
                   Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General,
for Plaintiff and Respondent.
             Ernesto Lucero was found guilty of attempted murder, carjacking, and
aggravated assault. The jury found true allegations he committed these offenses using a
deadly weapon (Pen. Code, § 12022, subd. (b)(1) & (2)),1 and he inflicted great bodily
injury (§ 12022.7, subd. (a)). The court sentenced Lucero to an aggregate prison term of
34 years and 4 months. On appeal, Lucero contends there are four different sentencing
errors. We conclude, and the Attorney General concedes, two of his claims have merit.
Lucero’s remaining two arguments relate to alleged section 654 errors. We conclude one
has merit, and we modify the judgment accordingly. Finding his other argument
meritless, we affirm the remainder of the judgment.
                                             I
             Early one August morning, Lucero was in the Albertson’s parking lot on
Chapman Avenue in the City of Orange. He appeared to be dirty and homeless, wearing
mismatched baggy clothes and having disheveled hair.
             At first, Lucero stood near the entrance to the grocery store and spoke to
several people. Michael Pitts recalled Lucero asked for a cigarette and then offered to
buy one for $1. Pitts said Lucero told him he was waiting for a check but did not answer
when Pitts asked where he worked. Pitts stated Lucero admitted he smoked marijuana
that morning and their conversation made Pitts feel uncomfortable. Pitts believed Lucero
was “messed up on something.”
             Robert Drake bought Lucero a few bags of groceries and they prayed
together for a few minutes that morning. Drake recalled Lucero seemed preoccupied and
he looked continuously into the parking lot. After learning about a carjacking, Drake
went back to the store and saw Lucero had not eaten any of the groceries.
             After spending nearly two hours at the front of the store, Lucero moved and
went to stand by a tree in the parking lot. Shortly thereafter, Lucero approached Anne


1            All further statutory references are to the Penal Code.

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Spangenberg and demanded a dollar as she was putting groceries into her car. When she
told him “No,” using a “defensive tone,” he slowly backed away towards the tree.
              Lucero next approached Kim D.2 as she loaded her groceries into the trunk
of her car. Kim saw Lucero walking towards her at a fast pace and she recalled feeling
very uneasy about it. She tried to quickly finish putting her groceries into the car. Kim
realized she was not going to get all the groceries in the car quickly enough, so she
grabbed her purse from the cart and put her keys in her right hand. She opened her car
door and tried to get inside. But it was too late.
              Lucero gave her an intense stare and said something like, “Can I have a
dollar.” Initially, Kim pulled her purse closer. When Lucero was approximately four
feet away, Kim took her keys and purse and threw the items either on the ground or at
Lucero and said, “‘If that’s what you want, take it.’” Kim said Lucero lunged at her,
punching her chest. Kim did not see a knife. Lucero got into Kim’s car and drove away.
Kim felt lightheaded and dropped to her knees.
              A bystander, Rita Griffitts, saw Lucero approach Kim, and saw Kim hold
her hands in a crisscross position on her chest and shake her head as if to indicate, “No.”
Griffitts did not see how Lucero got Kim’s keys, but she saw Lucero punch Kim in the
chest. Griffitts said, “‘Hey’” after she saw Lucero punch Kim, and she recalled Lucero
looked scared or startled.
              Pitts also saw Lucero walk up to Kim and speak briefly before she handed
Lucero her keys. Pitts stated he thought Kim’s actions did not look right. Next, Pitts saw
Lucero strike Kim in the chest. Pitts was certain Kim gave Lucero the keys “before” he
struck her. Pitts went inside the store and announced there was a carjacking and
mugging. He then ran to Kim’s car, but by that time Lucero was inside and had locked
all the doors. Pitts started beating on the car windows, however, Lucero drove away.

2              The trial court ordered the victim’s last name be redacted. Accordingly, we
will refer to her throughout the opinion by her first name, no disrespect intended.

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              Lucero stabbed Kim twice, once in her right breast and into her right atrium
and once near her left armpit. The breast wound was life threatening, but Kim survived
after several hours of heart surgery and 10 days in the hospital.
              The information charged Lucero with attempted premeditated murder
(count 1), carjacking (count 2), and aggravated assault (count 3). The information
alleged that as to these three counts Lucero personally used a deadly weapon (§ 12022
subd. (b)(1)), and he inflicted great bodily injury (§ 12022.7, subd. (a)). In addition, the
information alleged Lucero had previously been convicted of a prior serious felony
(§ 667, subd. (a)(1)), a prior strike (§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)),
and a prison prior (§ 667.5, subd. (b)).
              Lucero waived jury trial on his prior conviction and admitted the truth of
the strike, the serious felony, and the prison prior allegations. The jury determined
Lucero was guilty of count 1, but did not find the attempted murder to be premeditated.
The jury returned guilty verdicts and true findings on counts 2 and 3 and the other
enhancements.
              The trial court sentenced Lucero to consecutive terms of nine years on
count 1 (doubled to 18 years pursuant to the Three Strikes Law), three years and four
months on count 2, four years total for the deadly weapon allegations, three years for the
great bodily injury allegations, five years for the serious felony enhancement, and
one year for the prison prior. The court stayed the prison term on count 3 and the
remaining enhancements. Lucero’s total prison sentence was for 34 years and four
months.
                                               II
A. Conceded Sentencing Errors
              Lucero argues the trial court erred in imposing a one-year term for his
prison prior under section 667.5, subdivision (b), in addition to the five-year term for his
serious felony conviction. The Attorney General agrees and so do we. (See People v.

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Jones (1993) 5 Cal.4th 1142, 1150, 1153 [court cannot impose five-year prior serious
felony and one-year prior prison term enhancements based on same prior conviction].)
              Lucero also asserts the court erred in staying the term for the deadly
weapon enhancement with respect to count 3 (aggravated assault). The Attorney General
agrees the sentences should have been stricken (not stayed) because Lucero’s use of a
deadly weapon was an element of the aggravated assault charge. We agree.
Section 12022, subdivision (b)(1), expressly provides the one-year enhancement should
not be imposed if “use of a deadly or dangerous weapon is an element of [the underlying]
offense.”
              In summary, we hold the judgment must be modified to strike the one-year
prison prior sentence, and the deadly weapon enhancement on count 3. We remand the
case to the trial court for the limited purpose of correction of the abstract of judgment,
and the forwarding of a corrected abstract to the Department of Corrections.
B. Section 654 Issues
              Lucero maintains his sentence for carjacking (count 2) and the deadly
weapon enhancement accompanying that count must be stayed pursuant to section 654.
He contends the attempted murder (count 1) was incidental to the carjacking offense.
Alternatively, Lucero argues the deadly weapon enhancement on count 1 must be stayed
because section 654 bars multiple weapon enhancements for the use of a single deadly
weapon for counts 1 and 2. We conclude only Lucero’s second argument has merit.
              “It is well settled that section 654 protects against multiple punishment, not
multiple conviction. [Citation.] The statute itself literally applies only where such
punishment arises out of multiple statutory violations produced by the ‘same act or
omission.’ [Citation.] However, because the statute is intended to ensure that defendant
is punished ‘commensurate with his culpability’ [citation], its protection has been




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extended to cases in which there are several offenses committed during ‘a course of
conduct deemed to be indivisible in time.’ [Citation.]” (People v. Harrison (1989)
48 Cal.3d 321, 335 (Harrison).)
               “It is defendant’s intent and objective, not the temporal proximity of his
offenses, which determine whether the transaction is indivisible. [Citations.] We have
traditionally observed that if all of the offenses were merely incidental to, or were the
means of accomplishing or facilitating one objective, defendant may be found to have
harbored a single intent and therefore may be punished only once. [Citation.]”
(Harrison, supra, 48 Cal.3d at p. 335.)
               “If, on the other hand, defendant harbored ‘multiple criminal objectives,’
which were independent of and not merely incidental to each other, he may be punished
for each statutory violation committed in pursuit of each objective, ‘even though the
violations shared common acts or were parts of an otherwise indivisible course of
conduct.’ [Citation.] Although the question of whether defendant harbored a ‘single
intent’ within the meaning of section 654 is generally a factual one, the applicability of
the statute to conceded facts is a question of law. [Citation.]” (Harrison, supra,
48 Cal.3d at p. 335.)
               Lucero maintains, “Although a ‘gratuitous’ act of violence against an
unresisting victim may not qualify, . . . courts have emphasized that a violent offense
committed only to accomplish or facilitate another crime remains subject to section 654’s
prohibition against multiple punishment.” (Fn. omitted.) He asserts the crimes charged
in count 1 and count 2 formed part of a single course of conduct and shared a single
primary objective to take Kim’s car. He maintains the stabbing was not a separate violent
act or series of acts, but was merely part of his effort to accomplish the carjacking. He
points to the prosecutor’s statement in closing argument that Lucero stabbed Kim so he
could obtain her car. He notes the record contains only evidence he intended to kill Kim
to facilitate the carjacking.

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              Lucero relies on People v. Chacon (1995) 37 Cal.App.4th 52 (Chacon).
That case involved two youths (Lopez and Chacon), confined at the California Youth
Authority, who broke from a group, ran to the library, and hit the librarian in the face.
(Id. at pp. 56, 58, 64, fn.5.) Lopez dragged the librarian, held a shank to her neck, and
threatened to kill her. Chacon demanded a pick-up truck and also threatened to kill the
librarian. Lopez then applied pressure to the librarian’s neck, which caused her to pass
out, and Chacon stabbed her in the stomach with a shank. A correctional officer gave the
two youths the truck and they fled with the librarian. (Id. at pp. 58-59.)
              A jury found Chacon and Lopez guilty of eight felonies. Five counts
involved the librarian (assault with a deadly weapon, aggravated kidnapping for ransom,
attempted kidnapping, false imprisonment of a hostage, and false imprisonment by
violence). One count, assault with a deadly weapon, related to another staff member, and
another count, extortion, related to the officer who supplied the truck. (Chacon, supra,
37 Cal.App.4th at pp. 56-58.) The trial court sentenced Chacon and Lopez to life without
the possibility of parole on the aggravated kidnapping count. (Id. at p. 57.) The trial
court imposed separate determinate sentences on each of the other seven counts, staying
four of those sentences pursuant to section 654. (Id. at p. 57.)
              On appeal, Chacon and Lopez argued the sentences on the remaining four
counts relating to the librarian should also have been stayed under section 654. (Chacon,
supra, 37 Cal.App.4th at p. 65.) The appellate court agreed punishment for extortion,
escape by force and violence, and assault on the librarian should have been stayed. (Id. at
p. 66.) It reasoned, “kidnap for ransom, extortion, and escape were part of an indivisible
transaction having a single objective: escape.” (Ibid., fn. omitted.) Citing People v. Nick
(1985) 164 Cal.App.3d 141, 147 (robbery committed after escape completed), and People
v. Bailey (1974) 38 Cal.App.3d 693, 701 (separate punishment for kidnapping and escape




                                              7
proper where escape perfected before kidnapping), the Chacon court noted separate
punishment for those offenses is possible and would have been proper “[h]ad appellants
effected the escape before the kidnapping and extortion . . . .” (Id. at p. 66, fn. 7.) It
noted a separate punishment was permissible for the assault on the other staff member
because that offense involved a separate victim. (Id. at pp. 66-67.) In the Chacon case
the court rejected the Attorney General’s contention the assault on the librarian
represented gratuitous, unnecessary violence that could be punished separately. (Id. at p.
66, citing People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191 [separate punishment
for shooting store clerk after store robbery completed].) The court held that while the
conduct was “atrocious,” the violence was committed to force the officers to supply the
truck while the aggravated kidnapping was ongoing. (Chacon, supra,
37 Cal.App.4th at p. 66.)
              This case before us is distinguishable. In Chacon, the acts of violence
against the librarian were part of an indivisible course of conduct aimed at escaping.
Here, the evidence showed Lucero approached Kim, demanded her keys, obtained her
keys and then rather than taking her car, he stabbed her two times. The stabbing occurred
after Lucero achieved his goal of obtaining access to the car. It was not part of an
indivisible course of conduct aimed at furthering the carjacking. Rather, the assault was a
gratuitous act of violence towards an unresisting victim.
              We conclude that substantial evidence supports the trial court’s finding of
divisibility and decision to punish defendant separately for the assault and the carjacking.
The court aptly stating in its ruling, “that the objectives in this particular case were
independent of each other; they were somewhat separate, although they happened
rapidly.”




                                               8
               Lucero’s alternative argument has merit. He asserts that if section 654 did
not prohibit separate punishments on counts 1 and 2, it would prohibit the imposition of
separate deadly weapon enhancements on those counts. Both enhancements were based
on Lucero’s use of a knife against a single victim on a single occasion. We agree.
               Section 654 applies to enhancements when the sentencing statutes do not
address whether multiple enhancements can be imposed. (People v. Ahmed (2011)
53 Cal.4th 156, 159-161.) In this case, section 12022 does not specify whether separate
enhancements can be imposed on two separate offenses and therefore we must apply
section 654.
               The Attorney General asserts, without citing to any supporting authority,
that Lucero’s “intent and objective” in using the knife to commit carjacking was
independent from his intent to commit attempted murder. It concludes because there
were separate objectives, separate punishments were appropriate and the trial court
correctly imposed separate punishment for the section 12022, subdivision (b)(1),
enhancement on count 1 (attempted murder), and the section 12022, subdivision (b)(2),
enhancement for count 2 (carjacking). This argument overlooks the purpose of section
654 is to proscribe any attempt to impose multiple punishments for the same “act.”
Consideration of a defendant’s “intent or objective” is only relevant to the determination
of whether the transaction of several acts is nevertheless considered indivisible. “[I]f all
of the offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single intent and
therefore may be punished only once. [Citation.]” (Harrison, supra, 48 Cal.3d at p.
335.) There is no case authority supporting the Attorney General’s contention a single
criminal act can be punished multiple times because there may have been multiple
objectives.




                                              9
              We find People v. Reeves (2001) 91 Cal.App.4th 14 (Reeves), instructive.
There appellant was convicted of both burglary and assault of the victim Debra E. (Id. at
p. 56.) Appellant did not challenge the separate punishments for these convictions, but
argued the court’s imposition of two great bodily injury enhancements (§ 12022.7) for a
single act was error. As in our case, the Attorney General in Reeves argued the record
supported two enhancements, “just as it supported the two sentences for burglary and
assault, because appellant harbored multiple criminal objectives that can be punished
independently.” (Reeves, supra, 91 Cal.App.4th at p. 56.) The court rejected this
argument, explaining, “[The Attorney General] directs us to no precedent approving of
multiple sentence enhancements for a single assault against a single victim, even though
the defendant committed additional crimes against that victim. On the contrary, the court
in People v. Moringlane, expressly held that ‘section 654 . . . prohibits the imposition of
multiple enhancements for the single act of inflicting great bodily injury upon one
person.’ (People v. Moringlane, [(1982)] 127 Cal.App.3d [811,] 817; see also People v.
Alvarez (1992) 9 Cal.App.4th 121, 127 [‘[G]enerally only one enhancement for great
bodily injury may be imposed where multiple offenses are committed against a single
victim on a single occasion’]; People v. Culton (1979) 92 Cal.App.3d 113, 117 [‘The
Attorney General has properly conceded that only one enhancement for great bodily
injury is possible’].) [¶] In the absence of any evidence making the assault of Debra E.
divisible (see, e.g., People v. Dominick (1986) 182 Cal.App.3d 1174, 1210 [permitting
two enhancements where defendant committed two separate assaults on a single victim]),
the trial court should not have imposed two great bodily injury enhancements under
section 12022.7.” (Reeves, supra, 91 Cal.App.4th at pp. 56-57.)
              “[M]ultiple objectives do not turn a single act into more than one criminal
act. A single criminal act, even if committed incident to multiple objectives, may be
punished only once. [Citation.]” (People v. Louie (2012) 203 Cal.App.4th 388, 397.)
Here, the two enhancements under section 12022, for personally using a deadly or

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dangerous weapon were based on just one act, i.e., the stabbing of Kim. We agree with
Lucero the judgment must be modified to stay the section 12022, subdivision (b)(1)
enhancement on count 1 (attempted murder).3
                                            III
              The judgment is affirmed. The judgment is modified to strike the prison
prior (§ 667.5, subd. (b)), and the deadly weapon enhancement (§ 12022, subd. (b)(1)) on
count 3, and to stay the deadly weapon enhancement (§ 12022, subd. (b)(1)) on count 1.
The clerk of the superior court is ordered to prepare a corrected abstract of judgment
reflecting these modifications and to forward a copy of it to the Department of
Corrections and Rehabilitation, Division of Adult Operations.



                                                  O’LEARY, P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.



3             In Lucero’s opening brief, he asks the court to stay the enhancement on
count 1 (attempted murder), and in the reply brief, he asserts the enhancement on count 2
(carjacking) must be stayed. There is a difference of two years between the two
enhancements. Section 12022, subdivision (b)(1), prescribes a one-year enhancement for
crimes such as attempted murder (count 1), but section 12022, subdivision (b)(2),
mandates a term of one, two, or three years for defendants convicted of carjacking (count
2). The court selected the upper term of three years. Section 654 mandates, “An act . . .
punishable in different ways . . . shall be punished under the provision that provides for
the longest potential term of imprisonment . . . .” (Italics added.) Accordingly, we
conclude the one-year enhancement on count 1 must be stayed.

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