Filed 9/24/14 P. v. Lagrimas CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



THE PEOPLE,                                                                                  C069412

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF114042A)

         v.

DAVID LEON LAGRIMAS,

                   Defendant and Appellant.




         Defendant David Leon Lagrimas shot at an inhabited dwelling and also attempted
to murder Adrian Arista, who was outside the dwelling. Convicted of both crimes and
sentenced to consecutive terms for the crimes, he appeals. He contends that punishment
for both crimes was prohibited by Penal Code section 654. (Further code citations,
though unspecified, are also to the Penal Code.) The contention is without merit because
the facts supported the trial court’s implicit finding that defendant committed the two
crimes with separate objectives.



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                                     BACKGROUND
       Defendant and Julia Arista, whom he had previously dated, got into a dispute
about the ownership of a laptop computer that defendant had in his possession. Julia’s
father, Adrian Arista, whose nickname was “Night Owl,” went to defendant’s home to
retrieve the computer. Later, defendant, whose arm was in a sling, told someone that
“Night Owl” had jumped him and broken his arm. The broken arm prevented defendant
from working.
       Several months after the computer incident, defendant tried to run Julia over with
his car while she was riding a bicycle. He hit her, and she hit another car and injured her
arm. Defendant accused her of being a snitch relating to another matter.
       Julia lived with her father and several others. Later on the same day defendant hit
Julia on her bicycle, Julia left her residence and went to a nearby store. On her way back,
she saw defendant get out of the driver’s side of his brother’s truck, point a gun at her
residence, and fire several shots. At the time of the shooting, four people were in the
residence, and several bullets penetrated the residence with one of them lodging in an
exhaust fan in the kitchen.
       Moments after the shooting, Julia saw her father, Adrian, banging on the door of
the residence. He said, “That fucking dude just shot [at] me.” He also said he had been
on his bicycle and had difficulty getting off the bicycle when the shooting started.
Someone else heard Adrian say, “That punk ass bitch David. He missed.”
       One month after the shooting at the residence, Adrian was shot and killed as he
rode his bicycle in front of a house a few blocks from his home. (Defendant was charged
with murder and shooting at an inhabited dwelling in connection with Adrian’s murder,
but the jury was unable to reach a verdict on those counts, which were dismissed in the
interest of justice on the prosecution’s motion.)
       A jury convicted defendant of attempted premeditated murder (§§ 664, 187, subd.
(a)) and shooting at an inhabited dwelling (§ 246). The jury also found, with respect to

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the attempted murder count, that defendant personally and intentionally discharged a
firearm (§ 12022.53, subd. (c)) and, with respect to the shooting at an inhabited dwelling
count, that defendant personally used a firearm (§ 12022.5, subd. (a)).
       The trial court sentenced defendant on the attempted murder count to an
indeterminate term of life with possibility of parole, with a consecutive determinate term
of 20 years for the firearm enhancement. The court also imposed a consecutive
determinate term of one year eight months for shooting at an inhabited dwelling, and the
court imposed but stayed the firearm enhancement as to that count. The aggregate
sentence was 21 years 8 months, plus life with possibility of parole.
                                      DISCUSSION
       Defendant’s sole contention on appeal is that the trial court erred by imposing an
unstayed term of one year eight months for shooting at an inhabited dwelling. He argues
that the attempted murder and shooting at the dwelling were part of one continuous
course of conduct having the same objective, and, therefore, punishment for both violated
section 654. The contention is without merit because the evidence supports a finding that
defendant harbored separate objectives in shooting at Adrian and at the dwelling.
       Section 654, subdivision (a) provides in relevant part: “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. . . .” Section 654
has been interpreted to prohibit multiple punishments for a single act or an indivisible
course of conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on
other grounds in People v. Correa (2012) 54 Cal.4th 331, 334.) “Whether a course of
criminal 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. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.” (Neal v. State of California, supra, at p. 19.)

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On the other hand, if the evidence discloses that a defendant entertained multiple criminal
objectives independent of and not merely incidental to each other, the trial court may
impose punishment for independent violations committed in pursuit of each objective
even though the violations shared common acts or were part of an otherwise indivisible
course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Cleveland
(2001) 87 Cal.App.4th 263, 267-268.)
         “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. [Citation.] The factual finding that there was more than one objective
must be supported by substantial evidence. [Citation.]” (People v. Saffle (1992) 4
Cal.App.4th 434, 438.) “We review the trial court’s determination in the light most
favorable to the respondent and presume the existence of every fact the trial court could
reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139,
1143.)
         At the sentencing hearing, defense counsel argued that the trial court was required
to stay the sentence on the shooting at an inhabited dwelling count because defendant’s
sole objective was to shoot Adrian and that striking the residence was only incidental to
that objective. The prosecutor responded that there was a separate objective to shoot at
the residence and that it may have been defendant’s primary objective to shoot at the
residence after which he shot at Adrian who happened to be out front. The court did not
comment on the arguments before imposing the unstayed term for the shooting at an
inhabited dwelling count.
         On appeal, defendant claims his “single intent and objective was to shoot Adrian
in retaliation for breaking [defendant’s] arm while trying to repossess his daughter’s
laptop. The evidence at trial indisputably showed that the residence . . . was only
incidentally struck by shots fired at Adrian while he was alone in front of his residence.”
In his reply brief, defendant claims “[t]here is no suggestion [in the evidence] that

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[defendant] intended to fire into that house for any purpose.” That claim is patently false.
Defendant actually fired into the house, and that constituted substantial evidence that he
did exactly what he intended to do. That defendant intended only to shoot at Adrian is
but one interpretation of the evidence. Because several of defendant’s shots penetrated
the residence, another reasonable interpretation of the evidence is that defendant intended
to shoot at the residence, as well as at Adrian. He certainly had a motive to shoot into the
residence, as Julia lived there. Therefore, substantial evidence supports the trial court’s
implicit determination that defendant harbored separate objectives in shooting at Adrian
and at the dwelling.
       Defendant also argues that he cannot be separately punished for shooting at the
dwelling because it was the method by which he attempted to murder Adrian. (See Neal
v. State of California, supra, 55 Cal.2d at p. 20 [defendant could not be punished for
arson and attempted murder when arson was means of attempting murder].) Again, this
view of the evidence is inconsistent with the trial court’s determination that defendant
harbored separate objectives in committing the two crimes. The facts support a
conclusion that, in addition to intending to kill Adrian, defendant intended to victimize
those inside the dwelling. In other words, shooting at the dwelling was not the means of
attempting to murder Adrian.
       While the trial court’s determination that defendant harbored separate objectives in
shooting at Adrian and at the dwelling was sufficient to support imposing unstayed terms
for both crimes, we also conclude that the multiple victim exception to section 654
applies here.
       “There is a multiple victim exception to Penal Code section 654 which allows
separate punishment for each crime of violence against a different victim, even though all
crimes are part of an indivisible course of conduct with a single principal objective.
[Citation.] An assailant’s greater culpability for intending or risking harm to more than



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one person precludes application of section 654. [Citation.]” (People v. Felix (2009) 172
Cal.App.4th 1618, 1630-1631 (Felix).)
       The attempted murder was directed at Adrian, while the shooting at an inhabited
dwelling was directed at other victims – the occupants of the residence. In this regard,
Felix is dispositive. In Felix, the trial court imposed concurrent sentences for attempted
murder and shooting at an inhabited dwelling. Relying on People v. Anderson (1990)
221 Cal.App.3d 331, 338-339, the court in Felix concluded that the houseguests were
victimized by the shooting into the dwelling although they were “not named victims in
any other count. It follows that the trial court properly declined to stay the sentence on
count 2 (shooting at an inhabited dwelling) because it is governed by the multiple victim
exception to Penal Code section 654.” (Felix, supra, 172 Cal.App.4th at p. 1631; see also
People v. Garcia (1995) 32 Cal.App.4th 1756, 1782.) Here, the occupants of the
residence were not the victims of the attempted murder charge. Therefore, the
consecutive sentence for the conviction of shooting at an inhabited dwelling did not
violate section 654.
                                      DISPOSITION
       The judgment is affirmed.



                                                        NICHOLSON             , J.


We concur:



      RAYE                  , P. J.



      HOCH                  , J.


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