Filed 6/2/15 P. v. Donley 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067912
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. SCR013509)
                   v.

SHAWN ARLIN DONLEY,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
         Jan B. Norman, 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, Stephen G. Herndon, Deputy
Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Cornell, J. and Poochigian, J.
       A jury convicted appellant Shawn Arlin Donley of assault with a deadly weapon
(count 1/§ 245, subd. (a)(1))1 and two counts of felony vandalism (counts 2 & 3/§ 594,
subd. (b)(1)). In a separate proceeding, the court found true four prior prison term
enhancements (§ 667.5, subd. (b)). On appeal, Donley contends his sentence violates:
(1) section 654’s prohibition against multiple punishment; and (2) the constitutional
prohibition against double jeopardy. We will find merit to Donley’s first contention and
modify his sentence accordingly. In all other respects, we affirm.
                                         FACTS
The Trial
       Donley was Angela Floyd’s ex-fiancé and was involved in a relationship with her
for almost three years. By January 2013, the relationship had ended and Floyd was living
alone in Ahwahnee, in a studio apartment that was attached to the garage of a house
belonging to Marius Crisan, a retired police sergeant.
       On January 17, 2013, Donley made several calls to Floyd during which he told her
he wanted to take Floyd a file cabinet that belonged to her. Floyd told him not to come
over, that she did not want to be with him anymore, and that he was not welcome on the
property. Nevertheless, at around noon that day, Donley drove his truck to see Floyd.
Crisan overheard Donley arguing with Floyd in her room and told him to leave, which he
eventually did.
       At approximately 1:00 p.m., Donley returned to Floyd’s residence with her file
cabinet in the back of his truck and pushed the cabinet off the truck. As Donley yelled at
Floyd through a closed door, Crisan again confronted Donley and told him to leave.
Donley replied, “Are you going to make me go, old man?” Crisan replied, “Well, if I
have to, I will.” Donley got angrier and started walking toward Crisan, which prompted
Crisan to pull out a gun and point it at Donley. After a few more comments were

1      All further statutory references are to the Penal Code.


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exchanged, Donley got in his truck. Instead of leaving, however, Donley drove his truck
in reverse over the file cabinet and got stuck. When he managed to get free, he drove
about 400 feet to the end of the driveway and stayed there for approximately 20 minutes
yelling at Floyd.
       After dark, while Roger Clark was visiting Floyd, Donley called again asking her
to let him come over. Within seconds after Floyd told Donley that Clark was there,
Donley appeared in his truck in Crisan’s driveway with his bright lights on. Floyd went
outside her studio with Clark, saw Donley ram Clark’s truck with his truck, and ran back
to her studio. As she stood in the doorway, Floyd heard Donley say he was going to kill
her. He then drove his truck full throttle at the studio, put on his brakes, and slid 20 feet
into the doorway where Floyd had been standing, breaking the frame. Floyd managed to
avoid being hit by doing a “back flip” over her bed. Meanwhile, Donley put the truck in
reverse, hit Clark’s truck again, and drove off.
       Donley was arrested later that night at his mother house.
Sentencing
       The assault that Donley was convicted of in count 1, was based on Donley’s
conduct on January 17, 2013, in driving his truck at Floyd as she stood in the doorway of
her studio apartment. The vandalism charge in count 2, was based on the damage Donley
caused to Clark’s truck when Donley struck it with his truck. The vandalism charged in
count 3, was based on the damage Donley caused to Floyd’s studio apartment when his
truck struck the doorway after Floyd got out of the way.
       On August 9, 2013, at Donley’s sentencing hearing, defense counsel argued that
section 654 prohibited the court from imposing sentence on counts 2 and 3 because
everything occurred quickly and the assault was “interwoven with the other two counts.”
The court, however, noted that the three counts involved separate victims and imposed an
aggregate prison term of nine years four months: the aggravated term of four years on
count 1; a consecutive eight-month term on count 2; a consecutive eight-month term on

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count 3 (one third the middle term of two years); and four one-year prior prison term
enhancements.
                                      DISCUSSION
The 654 Issue
       Donley contends section 654 prohibited the court from imposing punishment on
count 3 because the assault of Floyd and the damage to the studio owned by Crisan
occurred during an indivisible transaction with a single intent and objective of assaulting
Floyd. Respondent contends that the court did not err in imposing sentence on count 3
because the assault and destruction of Crisan’s property were separate acts, Donley had
multiple objectives, and the counts involved different victims. We agree with Donley.

               “Under section 654, subdivision (a), ‘[a]n 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.’ [Citation.] ‘[S]ection 654 applies not only
       where there was but one act in the ordinary sense, but also where there was
       a course of conduct which violated more than one statute but nevertheless
       constituted an indivisible transaction. [Citation.] ... [Citation.] If all the
       offenses were incident to one objective, the defendant may be punished for
       any one of such offenses but not for more than one.’ [Citation.] ‘If [a]
       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.] The application of section 654, thus, ‘turns
       on the defendant’s objective in violating’ multiple statutory provisions.
       [Citation.] Where the commission of one offense is merely ‘“a means
       toward the objective of the commission of the other,”’ section 654 prohibits
       separate punishments for the two offenses. [Citation.]

              “Where ‘section 654 prohibits multiple punishment, the trial court
       must stay execution of sentence on the convictions for which multiple
       punishment is prohibited.’ [Citation.] We apply a substantial evidence
       standard of review when determining whether section 654 applies. ‘The
       determination of whether there was more than one objective is a factual
       determination, which will not be reversed on appeal unless unsupported by


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       the evidence presented at trial.’” (People v. Kurtenbach (2012) 204
       Cal.App.4th 1264, 1288-1289 (Kurtenbach).)
       In Kurtenbach, the defendant solicited his employee to burn the defendant’s rental
house so that the defendant could collect the insurance proceeds. The employee used
gasoline to burn the house and was killed in the fire. The fire also caused $100,000 in
damage to a neighboring house. (Kurtenbach, supra, 204 Cal.App.4th at pp. 1271-1272.)
       A jury deadlocked on a murder charge but convicted the defendant of conspiracy
to commit arson (§ 182, subd. (a)(1)), arson causing great bodily injury (§ 451, subd. (a)),
concealing or knowingly failing to disclose an event affecting an insurance benefit (§
550, subd. (b)(3)) and vandalism of the neighboring house (§594, subds. (a), (b)(1)).
(Kurtenbach, supra, 204 Cal.App.4th at p. 1270.) The court imposed a prison sentence of
15 years eight months that included a terms for the defendant’s arson and vandalism
convictions. (Ibid.)
       In finding that section 654 prohibited punishment for both the arson and vandalism
convictions, the Kurtenbach court rejected the People’s contention that punishment for
both offenses was properly imposed because the crimes had two different victims:

       “[T]he multiple-victim exception to section 654 only applies to crimes of
       violence against persons, not crimes against property. [Citation.] ‘Section
       654 is not … “applicable where ... one act has two results each of which is
       an act of violence against the person of a separate individual.”’ [Citations.]
       As our Supreme Court has explained, ‘[a] defendant who commits an act of
       violence with the intent to harm more than one person or by a means likely
       to cause harm to several persons is more culpable than a defendant who
       harms only one person.’ [Citation.] Further, the multiple-victim exception
       to section 654 only applies when both of the crimes at issue are crimes of
       violence against a person. [Citation.]

              “We must look to the statutory definition of the crimes at issue,
       including any allegations in enhancement, to determine whether those
       crimes were crimes of violence against a person within the meaning of the
       multiple-victim exception to section 654. [Citation.] The crime of arson
       causing great bodily injury is indisputably a crime of violence against a
       person, as it includes the element of great bodily injury. [Citation.]
       However, vandalism is not a crime of violence against a person. The


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         vandalism statute under which Kurtenbach was convicted criminalizes the
         act of causing damage or destruction ‘with respect to any real or personal
         property not his or her own.’ (§ 594, subd. (a).) It does not require injury
         to a person, and instead describes a crime against property. Accordingly,
         the multiple-victim exception to section 654 does not apply because
         vandalism is not a crime of violence against a person.” (Kurtenbach,
         supra, 204 Cal.App.4th at pp. 1290-1291.)
         Here, Donley’s assault conviction and the vandalism conviction involving the
studio apartment owned by Crisan were based on Donley’s conduct in driving his truck
into the doorway of the studio. Further, since vandalism is not a crime of violence
against a person, section 654 prohibited the court from imposing sentence on that count
even though the victim of the vandalism was Crisan and the victim of the assault was
Floyd.
         Respondent contends that section 654 did not bar punishment for Donley’s
vandalism conviction because the assault and the vandalism conviction were based on
different acts and Donley had separate objectives in committing each offense. According
to respondent, the assault was complete when Donley gunned his truck, spun by Clark’s
truck and headed towards Floyd and the vandalism occurred when Donley slammed on
his brakes and slid into the apartment. Respondent further contends that each of these
acts had separate objectives: the objective of the assault was to make Floyd fearful so
that she would return to him, whereas the objective of the vandalism was retribution
against Crisan for his conduct earlier that day. We disagree.
         Donley’s conduct in revving the motor on his truck and driving into the studio’s
doorway took only seconds and is not divisible as respondent suggests. Further, during
closing argument, the prosecutor argued that the assault occurred when “the truck was
floored. The truck was gassed. The truck was full throttle. The truck spun up a bunch of
gravel. The truck slammed into the door through which Angela Floyd ran.”
         Moreover, “‘[t]he defendant’s intent and objective are factual questions for the
trial court; [to permit multiple punishments,] there must be evidence to support a finding


                                               6
the defendant formed a separate intent and objective for each offense for which he was
sentenced.’” (People v. Islas (2012) 210 Cal.App.4th 116, 129.) Donley may have had a
motive to vandalize Crisan’s property because Crisan ran him off his property earlier that
day. However, respondent does not cite any evidence that supports an inference that
Donley’s objective in slamming into the studio was to get even with Crisan and his
abrupt application of the brakes suggests he tried to avoid hitting it. Accordingly, we
conclude that the court violated section 654 when it imposed a consecutive eight-month
term on Donley’s vandalism conviction and we will stay this term.
The Double Jeopardy Claim
       Donley contends that by imposing sentences on his assault and vandalism
convictions, the court violated the double jeopardy clauses of the state and federal
constitutions. This contention is moot in light of our decision to stay the term imposed
on Donley’s vandalism conviction.
                                     DISPOSITION
       The eight-month term the court imposed on Donley’s vandalism conviction is
stayed and his sentence is reduced from 15 years four months to 14 years eight months.
The trial court is directed to issue an amended abstract of judgment that incorporates this
modification and to forward a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.




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