Filed 1/24/20 P. v. Ramirez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO RAMIREZ, JR.,

Defendant and Appellant.

C087410

(Super. Ct. Nos. 16CF04847, CM038576)

Defendant Armando Ramirez, Jr. entered a no contest plea to personally carrying a loaded firearm in a vehicle in Butte County case No. CM038576. He was convicted of assault with a firearm, two counts of domestic violence battery with injury, child endangerment, dissuading a witness, and possession of a stolen firearm, with firearm enhancements in Butte County case No. 16CF04847. The trial court sentenced defendant to an aggregate term of 24 years eight months in state prison in both cases.

Defendant appeals, arguing the trial court erred in declining to stay the sentence on one of the two counts of domestic violence battery (count 6). Defendant also argues his trial counsel rendered ineffective assistance by failing to request an instruction on voluntary intoxication, and the trial court erred in imposing certain fines and fees without determining whether he had the ability to pay them. Finding no error, we will affirm the judgment.

I. BACKGROUND

This appeal involves two separate cases. We describe each case briefly below, setting forth only those facts necessary to understand and resolve the limited issues before us.

A. Case No. CM038576

On October 11, 2016, defendant entered a plea of no contest to personally carrying a loaded firearm in a vehicle. (§ 25850, subd. (a).) Defendant admitted that the firearm was stolen (§ 25850, subd. (c)(2)), and he was not the registered owner of the firearm (§ 25850, subd. (c)(6)). The trial court sentenced defendant to eight months in state prison, to run consecutive to the sentence in case No. 16CF04847. The trial court also imposed various fees and fines. Defendant filed a timely notice of appeal.

B. Case No. 16CF04847

On February 2, 2018, defendant was charged by second amended information in case No. 16CF04847 with three counts of assault with a semiautomatic firearm (§ 245, subd. (b)—counts 1, 2, and 7), one count of making criminal threats (§ 422, subd. (a)—count 3), three counts of child endangerment (§ 273a, subd. (a)—counts 4, 5, and 9), two counts of domestic violence battery with injury (§ 273. 5, subd. (a)—counts 6 and 8), and one count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)—count 10). As to counts 1 through 7 and 9, the second amended information alleged that defendant personally used a firearm during the commission of the offenses pursuant to section 12022.5, subdivisions (a) and (d). As to count 8, the second amended information alleged that defendant personally used a deadly weapon (a belt) during the commission of the offense pursuant to section 12022, subd. (b)(1). As to all counts, the second amended information alleged that defendant committed the offenses while released from custody on bail on his own recognizance in case No. CM038576 pursuant to section 12022.1. Defendant entered pleas of not guilty to all counts and denied the associated allegations.

The matter was tried to a jury in February 2018. During the trial, the jury heard evidence that defendant and the victim, A.H., had a tumultuous on again, off again relationship. The relationship lasted five years and produced three children.

The jury heard evidence about two altercations between defendant and A.H., only one of which is relevant to the issues on appeal. Defendant, A.H., and their three children, were home on December 6, 2015, when defendant and A.H. started arguing. A.H. pushed defendant. Defendant feinted towards A.H., as if he was going to strike her. A.H. pushed defendant again, causing him to stumble. Defendant responded by punching A.H. in the face.

Defendant “kept punching” A.H. He kicked her in the stomach. He then threw her to the ground and kicked her some more. He then picked her up by the hair, threw her on a chair, and continued hitting her.

A.H. tried to get up. Defendant punched her again, and pushed her against a wall. He produced a gun from the waistband of his pants and hit A.H. with it twice. The couple’s young daughter, M., joined the fray. A.H. threw herself on top of M. to protect her from defendant’s blows. Defendant continued to hit A.H. with the gun, landing blows on her head and shoulder. He then stopped hitting A.H., and started yelling, upset that M. was there in the middle of the fight.

The beating resumed following a brief interlude. Defendant hit A.H. “a couple more times,” and then strangled her until she nearly lost consciousness. Defendant stopped when his brother intervened on A.H.’s behalf. Defendant then removed his belt and struck A.H. with it.

Defendant’s fury eventually subsided. He left the house for a couple of hours, and then returned and went to sleep. A.H. left with the children the next morning, before he awoke.

Later, on December 7, 2015, A.H. received text messages from defendant saying, in substance, “if I snitch he will kill me; if I tell my parents, he will kill me and my family; if I move on he will kill me and my family; and how the hell am I suppose[d] to just leave while he’s asleep and screw up his life, pretty much.” When asked whether she thought that defendant was likely to make good on these threats, A.H. responded there was a 50 percent chance he would follow her to her parents’ house and make a scene if he was using drugs and someone exhorted him to do so, and a 50 percent chance he would leave her alone if he was “completely sober, and [] able to actually think about what he’s doing.”

Defendant testified on his own behalf. Defendant admitted punching A.H. in the face, but denied kicking her, strangling her, or beating her with his belt. Defendant also denied hitting A.H. with a gun or having a gun that day.

Defendant testified that he drank six or seven beers on the evening of December 6, 2015, watched a football game, and went to sleep. He recalled that he woke up the next morning to find A.H. and the children gone. According to defendant, “I got worried, but then I got upset, got mad.” When asked what happened next, defendant answered, “I started drinking, and then I started texting her.” Defendant admitted sending threatening text messages to A.H. However, he explained that he was just venting and did not intend to hurt A.H. or her family. At the time, he said, “I was angry and upset. And then I was drinking too.”

Following argument and instruction, the matter was submitted to the jury. The jury reached a verdict the next day. The jury found defendant not guilty of one count of assault with a semiautomatic firearm (count 1). The jury found defendant guilty of two counts of domestic violence battery with injury (counts 6 and 8), one count of assault with a semiautomatic firearm (count 7), one count of child endangerment (count 9), and one count of dissuading a witness by force or threat (count 10). The jury found true all of the allegations associated with counts 6 through 10. The jury could not reach a decision on counts 2 through 5, or a lesser included offense of count 1. The trial court declared a mistrial as to those counts, and granted the prosecutor’s motion to dismiss counts 1 through 5. The trial court subsequently found the on-bail enhancement allegations to be true.

The trial court sentenced defendant to an aggregate term of 24 years eight months in prison. As relevant here, defendant’s sentence included an upper term sentence of nine years for count 7 (assault with a semiautomatic firearm), with an additional four years for the firearm enhancement, and a consecutive one year sentence on count 6 (one third the middle term for domestic violence battery), with an additional one year four months for the firearm enhancement. The trial court also imposed various fines, fees, and assessments in both cases. This appeal timely followed.

II. DISCUSSION

A. Section 654

Prior to the sentencing hearing, defendant filed a sentencing memorandum arguing the sentence on his conviction for domestic violence battery (count 6) should be stayed under section 654. Defendant argued in the trial court, as here, that punishing him for both domestic violence battery (count 6) and assault with a semiautomatic weapon (count 7) violates section 654’s prohibition on double punishment. The trial court considered the issue “very carefully,” and declined to stay the sentence for domestic violence battery. We perceive no error.

1. Applicable Law

Section 654 provides, in pertinent 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.” (§ 654, subd. (a).) The statute does not prohibit multiple convictions for the same conduct, only multiple punishment. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) “In such a case, the proper procedure is to stay execution of sentence on one of the offenses.” (Ibid.)

Where, as here, a case involves more than a single act, the application of section 654 turns on “whether that course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.” (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) “Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)

Whether a defendant harbored a separate intent and objective for each offense is a factual determination for the trial court, which we review for substantial evidence. (People v. Islas (2012) 210 Cal.App.4th 116, 129.) We review the trial court’s implicit and explicit findings regarding the defendant’s intent and objective in the light most favorable to the judgment and presume the existence of every fact that could reasonably be deduced from the evidence. (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)

2. Substantial Evidence Supports the Trial Court’s Implied Finding that Defendant Harbored Severable Objectives

Defendant argues his criminal acts constituted an indivisible course of conduct motivated by a single intent and objective: To beat A.H. The People respond that substantial evidence supports the trial court’s implied finding that defendant had multiple independent objectives in initially beating and kicking A.H. with hands and feet, and subsequently producing a gun and pistol whipping her with it. We agree with the People.

The evidence suggests defendant initially punched A.H. in the face in retaliation for shoving him. That punch set in motion an initial beating with hands and feet, which continued as defendant threw A.H. to the ground, picked her up by the hair, and threw her on a chair. The nature of the beating changed when A.H. attempted to get up from the chair. Where before, defendant had been content to punch and kick A.H., he now escalated the attack by producing a gun from the waistband of his pants and pistol whipping her with it. The trial court could reasonably conclude that defendant harbored one objective when the beating began (namely, to punish A.H. for shoving him), and another, separate and severable objective when he produced a gun after A.H. attempted to get out of the chair (namely, to establish his dominance over A.H. and let her know that any resistance would be met with overwhelming, and potentially deadly, force).

These severable objectives are illustrated by examining the elements of domestic violence battery and assault with a semiautomatic weapon. A person commits domestic violence battery by: (1) intentionally and unlawfully inflicting a physical injury on a spouse or co-parent; (2) the injury resulted in a traumatic condition; and (3) the defendant did not act in self-defense. (§ 273.5, subd. (a).) By contrast, the elements of an assault with a semiautomatic firearm are: (1) the defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person; (2) the defendant did the act willfully; (3) when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (4) when the defendant acted, he had the present ability to apply force with a semiautomatic weapon. (See People v. Golde (2008) 163 Cal.App.4th 101, 121; CALCRIM No. 875.) Unlike domestic violence battery, a conviction for assault with a semiautomatic firearm does not require proof of an injury or even physical contact. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, superseded by statute on other grounds as stated in People v. Perez (2018) 4 Cal.5th 1055, 1061, 1068; People v. Laya (1954) 123 Cal.App.2d 7, 16 [“The mere pointing of a gun at a victim constitutes an assault with a deadly weapon, whether or not it is fired at all”].) Thus, defendant could have committed domestic violence battery against A.H. without the use of a semiautomatic firearm, and could have committed assault with a semiautomatic firearm without committing domestic violence battery. The trial court could reasonably conclude that defendant harbored separate criminal objectives in committing each violation. (See People v. Nubla (1999) 74 Cal.App.4th 719, 730-731 [section 643 did not preclude multiple punishment where the defendant was convicted of assault with a deadly weapon and corporal injury on a spouse after committing several acts of violence, including pushing his wife onto a bed, causing her nose to bleed, pushing a gun into the back of her head, and then turning her over and putting the gun in her mouth, and the defendant’s “act of pushing his wife onto the bed and placing the gun against her head was not done as a means of pushing the gun into her mouth, did not facilitate that offense, and was not incidental to that offense”].)

Defendant’s focus on the temporal proximity of the two crimes does not change our analysis. “ ‘It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.’ ” (People v. Hicks (1993) 6 Cal.4th 784, 789.) Though the two crimes occurred in quick succession, substantial evidence supported the trial court’s conclusion that defendant’s actions were divisible because each was motivated by a different intent and objective. (Ibid.) The trial court did not err in declining to stay the sentence on the domestic violence battery.

B. Voluntary Intoxication

Next, defendant argues his trial counsel rendered ineffective assistance of counsel by failing to request a jury instruction on voluntary intoxication. We are not persuaded.

To prevail on a claim of ineffective assistance of counsel, defendant must prove by a preponderance of the evidence that his trial counsel’s representation failed to meet an objective standard of reasonableness, and that absent counsel’s deficient performance, there is a reasonable probability the result would have been more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) As to the first prong, our scrutiny of counsel’s performance is “highly deferential” and we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Id. at p. 689.) Further, “[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.” (People v. Gray (2005) 37 Cal.4th 168, 207.)

A jury may consider evidence of a defendant’s voluntary intoxication and its effect on the required mental state to a limited extent. (§ 29.4, subd. (b) [“Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent”].) Defendant argues the jury should have been instructed to consider whether his alleged voluntary intoxication prevented him from forming the specific intent to dissuade a witness by force or threat. (People v. Pettie (2017) 16 Cal.App.5th 23, 68-69 [the crime of dissuading a witness by force or threat requires proof of defendant’s specific intent].) However, trial counsel could well have decided that such an instruction would have been no help to defendant, as there was scant evidence of defendant’s alcohol or drug use at the time he sent the threatening text messages, and no evidence that such alcohol or drug use prevented him from forming the intent necessary for the crime of dissuading a witness.

“A defendant is entitled to . . . an instruction [on voluntary intoxication as a defense to a specific intent crime] only where there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent.’ ” (People v. Williams (1997) 16 Cal.4th 635, 677.) Merely showing that defendant consumed alcohol or drugs before committing a crime, without evidence of their effect on him, would have been insufficient to warrant an instruction on voluntary intoxication. (Id. at pp. 677-678 [even if evidence of the defendant’s voluntary intoxication was “substantial,” the instruction was properly denied because “there was no evidence at all that voluntary intoxication had any effect on defendant’s ability to formulate intent”].)

Here, defendant testified that he drank six or seven beers on December 6, 2015, (the day of the beating) and resumed drinking the next day, upon discovering that A.H. and the children had left. According to defendant, “I started drinking, and then I started texting.” As we have shown, however, the fact that defendant may have consumed alcohol before sending threatening text messages to A.H. is not enough to warrant an instruction on voluntary intoxication. (People v. Williams, supra, 16 Cal.4th at pp. 677-678.) Although there was ample evidence that defendant regularly used drugs and alcohol, and was seldom sober in the months leading up to the attack on A.H., there was no evidence regarding the particulars of defendant’s alcohol consumption on December 7, 2015. As relevant here, there was no evidence that defendant’s alcohol consumption had any effect on him at all, let alone that it affected his ability to form the intent necessary to dissuade a witness. Given the state of the evidence, defendant’s trial counsel could have made a tactical decision not to request an instruction on voluntary intoxication. Had such a request been made, the trial court could have properly denied it. The failure to make a futile or unmeritorious argument is not deficient performance. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092.)

C. Fines, Fees, and Assessments

The trial court imposed the following fines, fees, and assessments in case No. 16CF04847: a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation restitution fine, which was stayed (§ 1202.45), a $200 court operations assessment (§ 1465.8), a $180 conviction assessment (Gov. Code, § 70373), a $200 general fine (§ 672), a $40 court surcharge (§ 1465.7), a $100 state court facilities construction fund fee (Gov. Code, § 70372, subd. (a)), a $200 state penalty assessment (§ 1464), a $140 county penalty assessment (Gov. Code, § 76000), a $20 DNA identification fund fee (Gov. Code, § 76104.6), and an $80 DNA identification fund fee (Gov. Code, § 76104.7). The trial court imposed the following fines, fees, and assessments in case No. CM038576: a $280 restitution fine (§ 1202.4, subd. (b)), and a $280 parole revocation restitution fine, which was stayed (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373).

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant requests that we reverse all fines, fees, and assessments imposed in both cases and remand to the trial court for an ability to pay hearing. The People respond that defendant forfeited his Dueñas challenge by failing to object to any of the challenged fines, fees, or assessments in the trial court.

Appellate courts are divided on the question of forfeiture in these circumstances. (Compare People v. Johnson (2019) 35 Cal.App.5th 134, 138 [no forfeiture] and People v. Castellano (2019) 33 Cal.App.5th 485, 489 [same], with People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [forfeiture] and People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155 [same].) We need not enter the fray, as we join several other courts in concluding that Dueñas was wrongly decided. (See People v. Hicks (2019) 40 Cal.App.5th 320, 325-326, review granted Nov. 26, 2019, S258946 [holding that, contrary to Dueñas, due process precludes a court from imposing fines and assessments only if to do so would deny the defendant access to the courts or result in the defendant’s incarceration]; see also People v. Kingston (2019) 41 Cal.App.5th 272, 280-281 [following Hicks] and see People v. Caceres (2019) 39 Cal.App.5th 917, 926-927 [concluding “the due process analysis in Dueñas does not justify extending its holding beyond” the “extreme facts” presented in that case].)

We agree with the reasoning in Hicks and adopt it as our own. Having done so, we reject defendant’s Dueñas challenge to the above-referenced fines, fees, and assessments.

III. DISPOSITION

The judgment is affirmed.

/S/

RENNER, J.

I concur:

/S/

HULL, Acting P. J.

Mauro, J., Concurring and Dissenting.

I fully concur in the majority opinion except for part II.C. of the Discussion, pertaining to the fines, fees and assessments. As to that portion of the opinion, I dissent.

In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant’s ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas’s legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would remand the matter to give the trial court an opportunity to consider defendant’s ability to pay the fines, fees and assessments.

/S/

_________________________

MAURO, J.