Filed 8/29/16 P. v. Larson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063619

v.                                                                       (Super.Ct.No. FVI1404408)

RICHARD TERRY LARSON,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed.

         Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and A. Natasha

Cortina, Deputy Attorneys General, for Plaintiff and Respondent.




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                      FACTUAL AND PROCEDURAL HISTORY

       A.      PROCEDURAL HISTORY

       On April 16, 2015, a jury found defendant and appellant Richard Terry Larson

guilty of two counts of assault with a deadly weapon under Penal Code1 section 245,

subdivision (a)(1). In a bifurcated trial, the trial court found true the allegations that

defendant had three strike priors under sections 677, subdivisions (b) through (i), and

1170.12, subdivisions (a) through (d); three prior serous felony convictions under section

667, subdivision (a)(1); and three prison priors under section 667.5, subdivision (b).

       On May 14, 2015, the trial court sentenced defendant to 84 years to life as follows:

25 years to life for each of the assault with a deadly weapon convictions, five years for

each prior serious felony, and two years for each prison prior.

       Defendant filed a timely notice of appeal.

       B.      FACTUAL HISTORY

       On December 1, 2014, defendant broke into his sister Elizabeth Punton’s home to

get some food. First, defendant tried to enter by slicing the screen door with a knife.

When that did not work, he broke a window. Punton had been next door where her

daughter, Wendy Faber, lived with her husband and children. When Punton returned, she

found defendant in her backyard. He appeared angry and told Punton to let her dog run

loose. Punton asked defendant to leave and the two of them started to argue loudly.




       1   All further statutory references are to the Penal Code unless otherwise indicated.


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       Faber heard yelling and screaming from next door and ran over because she knew

that defendant was not welcome at her mother’s home. When Faber arrived, she too

asked defendant to leave. Defendant told Faber to “shut up . . . I’m not talking to you.”

Defendant was belligerent. He shoved Faber then tried to punch her. The women

warned defendant that they would call the police if he did not stop. Punton then

attempted to step between defendant and her daughter. Defendant stopped momentarily,

said he had something for Faber, and headed to the carport in the front yard.

       Punton and Faber quickly tried to close the gate between the front and back yards

to prevent defendant’s return. It was an eight-foot high chain-link gate with about two-

inch holes in it wherein people could clearly see through the fence. It did not have a

locking mechanism so Punton and Faber held onto it to secure the gate. When defendant

returned a few minutes later, he tried to push through the gate. After that did not work,

he pulled out a knife and stabbed at the two women’s hands as they tried to hold on.

Because the fence was chain link; defendant could clearly see that he was attempting to

stab both his sister and niece. Punton and Faber had to keep moving their hands around

in order to avoid being stabbed and still hold onto the gate. At some point, Faber ran

back to her home to call 911. Although still angry, defendant stopped stabbing at

Punton’s hands and left.




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                                       DISCUSSION

       Defendant contends that the trial court abused its discretion in imposing

consecutive 25-years-to-life sentences for his two assault with a deadly weapon

convictions.2

       “It is well established that a trial court has discretion to determine whether several

sentences are to run concurrently or consecutively.” (People v. Bradford (1976) 17

Cal.3d 8, 20; see also People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) This

discretion stems from section 669, subdivision (a), which states: “When a person is

convicted of two or more crimes, . . . the second or other subsequent judgment upon

which sentence is ordered to be executed shall direct whether the terms of imprisonment

or any of them to which he or she is sentenced shall run concurrently or consecutively.”

(Rodriguez, at p. 1262 [absent an express statutory provision to the contrary, § 669

provides that a trial court shall impose either concurrent or consecutive terms for multiple

convictions].)

       Where a defendant has been convicted of a number of serious felonies, each of

which independently would subject the defendant to a life term under the habitual

offender statute, the trial court has discretion to order that the life terms be served either

concurrently or consecutively. (People v. Jenkins (1995) 10 Cal.4th 234, 254-256;

People v. Clancey (2013) 56 Cal.4th 562, 579.) “In the absence of a clear showing of

       2 Defendant also contends the trial court erred when it reasoned that concurrent
sentences would not provide any relief for defendant. We need not address this argument
because, as will be discussed below, we find that the court properly imposed consecutive
sentences because he was convicted of two separate crimes with different victims.


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abuse, the trial court’s discretion in this respect is not to be disturbed on appeal.

[Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the

circumstances being considered.” (People v. Bradford, supra, 17 Cal.3d at p. 20; People

v. Caesar (2008) 167 Cal.App.4th 1050, 1059.)

       Criteria affecting the decision to impose consecutive rather than concurrent

sentences include facts relating to the crimes, including whether or not the crimes

involved separate acts of violence or threats of violence. (Cal. Rules of Court, rule

4.425(a)(2)). Also, the presence of separate victim names in separate counts will justify a

consecutive sentence. (People v. Caesar, supra, 167 Cal.App.4th at pp. 1060-1061,

citing People v. Calhoun (2007) 40 Cal.4th 398, 408.)

       In this case, defendant claims the court abused its discretion in imposing

consecutive sentences for the two assaults because the court misunderstood the facts at

trial. Defendant contends that contrary to the court’s belief, “the evidence at trial

established that the assaults were committed ‘so closely in time and place as to indicate a

single period of aberrant behavior.’ (Cal. Rules of Court, rule 4.425(a)(3).)’”

       At the sentencing hearing, the trial court advised the parties of its intent to impose

consecutive indeterminate terms and attendant enhancement to count 2 for a total of 84

years. Defense counsel asked the court to consider concurrent sentences, and the

prosecutor responded by arguing against concurrent sentences. She acknowledged that

the court had discretion but urged that the existence of two separate victims warranted the

imposition of consecutive terms. The trial court imposed consecutive sentences. The

court explained, “The court is not going to run Counts 1 and 2 concurrent because, in


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reality, it doesn’t provide any relief for the defendant, but what it does do is to send a

message that one victim will be considered and the other victim would not.” The court

then asked whether the facts of violence occurred at different times, asking counsel,

“both victims were not behind that fence at the same time; is that correct?” Defense

counsel advised the court that both victims were at the fence at the same time until one

left. The prosecutor confirmed the court’s recollection that one of the victims left the

fence to call 911 then returned. The court then mentioned some confusion on its part

about timing and then reiterated its initial reason for imposing consecutive sentences and

rejecting defendant’s request for concurrent sentences. The court stated: “So it’s not that

clear cut, and for the reason I’ve stated, I’m not going to exercise my discretion in that

area.”

         Defendant claims that because the assaults were committed so closely in time and

place, consecutive sentencing was an abuse of discretion. We disagree. The evidence in

this case shows separate acts of violence against both defendant’s sister and niece.

Although defendant may have been more angry at his niece than his sister, both women

described how they each had to keep moving their hands around to avoid being hurt by

defendant’s knife. The gate was a standard chain-link fence so defendant was able to see

the two different victims. There is nothing in the record to indicate that defendant had

only targeted Faber, and not Punton, his sister. Defendant stabbed at both women’s

hands; both Faber and Punton testified that they had to keep moving their hands around

in order to avoid being stabbed. The evidence clearly supports that defendant intended to

hurt both victims and took actions to carry out his separate intentions.


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       Therefore, because the evidence showed that defendant was convicted of two

counts where there were two separate victims named in two separate counts, the trial

court’s imposition of consecutive sentence is not an abuse of discretion. (People v.

Caesar, supra, 167 Cal.App.4th at pp. 1060-1061, citing People v. Calhoun, supra, 40

Cal.4th at p. 408.)

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       MILLER
                                                                                       J.


We concur:


McKINSTER
                       Acting P. J.


SLOUGH
                                   J.




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