Filed 11/3/14 P. v. Vasquez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F066953

         Plaintiff and Respondent,                                           (Super. Ct. No. BF140216A )
                v.

JESSIE ARTURO VASQUEZ,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
         Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.


                                                        -ooOoo-
       A jury convicted appellant Jessie Arturo Vasquez of making criminal threats (Pen.
Code,1 § 422; counts 1, 5, & 6), misdemeanor driving while under the influence of
alcohol (Veh. Code, § 23152, subd. (a); count 2), first degree residential burglary (§ 460,
subd. (a); count 4), and misdemeanor vandalism (§ 594, subd. (b)(2)(A); count 7); the
jury acquitted Vasquez of assault with a deadly weapon (§ 245, subd. (a); count 3). With
respect to count 4, the jury found true the allegation that another person was in the
residence during the burglary (§ 667.5, subd. (c)(21)). In addition, the court found true
the allegations that Vasquez had served three prior prison terms (§ 667.5, subd. (b)). The
court sentenced Vasquez to a total prison term of six years four months as follows: the
middle term of four years for count 4, plus one year for the prior prison term; a
consecutive eight-month term for count 1; and a consecutive eight-month term for count
5. Vasquez was sentenced to a concurrent two-year term for count 6, and two concurrent
30-day terms for counts 2 and 7. Vasquez’s sole contention on appeal is the court should
have stayed, pursuant to section 654, the terms it imposed for counts 5, 6, and 7. We
agree and modify the judgment to correct the sentencing error. As modified, the
judgment is affirmed.
                                            FACTS2
       On December 14, 2011, around 6:00 p.m., Alba Linares was at home in her
bedroom and her cousin, Malky Gonzalez, was in the living room watching television,
when Linares heard something that sounded like somebody knocking on the door. When
she heard the knock again, she went out to the living room and asked Gonzalez if the
sound was coming from the television. After she went into the living room, Linares
heard a breaking noise and saw Vasquez had broken the window. He was holding an ax

1      Further statutory references are to the Penal Code unless otherwise specified.
2      Our summary sets forth facts pertinent to counts 4, 5, 6, and 7, which are the subject of
Vasquez’s claim of sentencing error. We have omitted a summary of the facts underlying the
remaining counts because we need not refer to them to resolve the issue on appeal.
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in one hand and a gun in the other. Linares testified that Vasquez leaned into the house
and “told me if I happened to help my son get out of prison that he was going to kill me”
and “not to forget that he was the devil; that he was going to return and kill me; that I had
to move from there because he wanted to kill me.” A man and two women soon arrived
in a white truck and took Vasquez with them. As he was leaving, Vasquez hit Linares’s
van with the ax and left the ax embedded in the van.
       Gonzalez similarly testified he was in Linares’s living room watching television
when he heard somebody knock twice on the door. When Linares came out of her
bedroom to ask him if it was the television, the window was broken and Gonzalez saw
Vasquez standing in front of him, holding a hatchet. In his other hand, Vasquez was
holding a gun and pointing it at Gonzalez. Vasquez asked for Linares’s son and
threatened to kill Linares and Gonzalez if her son was not there.
       When Deputy Sheriff Jacob Freeborn interviewed Linares about the incident, she
told him she heard banging on her door and thought someone was kicking it. She came
out of her bedroom and saw Vasquez through the window. She was not going to open the
door because she did not know who he was, but then Vasquez broke the window and
stuck his head inside the window frame. Vasquez looked around and pulled out a gun.
Vasquez was holding something in his other hand, which Linares thought was the same
hatchet she later found outside after she heard glass breaking on her car. Linares did not
speak English well, but Freeborn understood her to say that Vasquez threatened her and
wanted her to give up her son.
                                      DISCUSSION
       Vasquez contends section 654 bars separate punishment for his convictions of first
degree residential burglary, making criminal threats against Linares and Gonzalez, and
misdemeanor vandalism on counts 4 through 7, because they were part of a continuous



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course of conduct with a single objective, namely, to commit the crime of making a
criminal threat. This contention has merit.
        “Section 654 precludes multiple punishment for a single act or indivisible course
of conduct punishable under more than one criminal statute. Whether a course of
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. [Citation.] If all of the
offenses are incident to one objective, the court may punish the defendant for any one of
the offenses, but not more than one. [Citation.] If, however, the defendant had multiple
or simultaneous objectives, independent of and not merely incidental to each other, the
defendant may be punished for each violation committed in pursuit of each objective
even though the violations share common acts or were parts of an otherwise indivisible
course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-
268.)
        Whether the defendant possessed multiple objectives and intents within the
meaning of section 654 is a factual question. We will uphold a trial court’s explicit or
implicit finding if it is supported by substantial evidence. The trial court’s determination
is viewed in the light most favorable to the People and we presume the existence of every
fact that could reasonably be deduced from the evidence. (People v. Jones (2002) 103
Cal.App.4th 1139, 1143.) The absence of a timely objection during sentencing does not
forfeit a section 654 claim. (People v. Le (2006) 136 Cal.App.4th 925, 931.)
        Section 459 defines burglary, in relevant part, as follows: “Every person who
enters any house … with intent to commit … any felony is guilty of burglary.” The jury
here was instructed that, to convict Vasquez of burglary, it must find beyond a reasonable
doubt that he entered the victim’s house with the specific intent to commit the crime of
making a criminal threat. The court further instructed the jury that “[i]f anything
concerning the law said by the attorneys in their arguments or at any other time during

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the trial conflicts with my instructions on the law, you must follow my instructions.” We
presume the jury followed the trial court’s instructions. (See, e.g., People v. Avila (2009)
46 Cal.4th 680, 719; People v. Bennett (2009) 45 Cal.4th 577, 596.) Furthermore, during
closing argument, the prosecutor told the jury the People’s theory was that Vasquez
committed burglary by “going through the window to threaten Alba Linares, to threaten
Malky, to threaten anybody who was in the home.” By convicting Vasquez of the
burglary, the jury necessarily found the felony underlying the burglary was the crime of
making a criminal threat.
       Because the residential burglary and criminal threats were committed with a single
intent and objective, Vasquez can only be punished for one crime. The terms imposed
for making criminal threats on counts 5 and 6 must be stayed pursuant to section 654.
       We reach the same conclusion with respect to the term imposed for misdemeanor
vandalism on count 7. Vasquez’s acts of vandalism were incidental to the burglary and
criminal threats. Count 7 was specifically predicated on Vasquez’s acts of breaking
Linares’s front window with the ax at the beginning of the burglary and then thrusting the
ax into her car as he was leaving her house. We see no evidence the breaking of the
window was done with any intent or objective other than to effectuate the burglary by
allowing Vasquez to enter the house and threaten the people inside. We agree with
respondent that Vasquez’s subsequent act of embedding his ax in Linares’s car as he
walked away from the house evidenced an intent “to intimidate and frighten” Linares and
Gonzalez by demonstrating “that he could—and would—carry out his threats.”
Respondent’s argument, however, does not establish multiple objectives for the crimes so
much as it highlights their interrelatedness. As already discussed, the burglary was
committed with the single objective of committing the crime of making criminal threats.
Vasquez’s acts of vandalism, which effectuated the burglary and reinforced the criminal



                                             5
threats which were the target of the burglary, constituted an indivisible course of conduct
and, therefore, the terms imposed for these crimes must be stayed.
                                      DISPOSITION
       The judgment is ordered modified to reflect that the consecutive eight-month term
for count 5, the concurrent two-year term for count 6, and the concurrent 30-day term for
count 7, are stayed pursuant to section 654. As so modified, the judgment is affirmed.
The trial court is ordered to send a certified copy of the corrected abstract of judgment to
the appropriate authorities.



                                                                 _____________________
                                                                             HILL, P. J.
WE CONCUR:


 _____________________
LEVY, J.


 _____________________
DETJEN, J.




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