Filed 12/30/19 P. v. Rodriguez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Tehama)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

JORGE RODRIGUEZ,

Defendant and Appellant.

C088417

(Super. Ct. No. 17CR002998)

Defendant Jorge Arturo Rodriguez pleaded guilty to assault with a semiautomatic firearm and kidnapping. The trial court sentenced him to consecutive terms. On appeal, defendant contends the trial court erred in failing to stay sentence on the kidnapping charge pursuant to Penal Code section 654. Disagreeing, we affirm.

BACKGROUND

In October 2017, the victim and a friend visited defendant at defendant’s home. Defendant’s wife and a confederate of defendant were also present. Moments after the victim arrived, defendant pulled a firearm from his waistband and pointed it at the victim, accusing him of stealing defendant’s marijuana plants, and demanding $50,000. The victim denied the theft and told defendant he did not have money to pay.

Both defendant and his confederate held the victim at gun point and threatened to kill him unless he paid the $50,000. Defendant demanded the victim seek the money from his family or employer. The victim made at least one unsuccessful effort at obtaining a loan. Defendant’s wife told him to calm down but, instead, defendant walked the victim 50 yards away to a trailer on the property and made the victim sit in a chair, while defendant’s confederate continued to hold the victim at gunpoint. At defendant’s demand, the victim gave defendant the keys to his pickup truck. Defendant found and took $4,000 in cash from the glove box of the victim’s car and said he would keep the money and pickup as a first payment.

After defendant warned the victim that he would kill him and his family if the victim did not pay the balance owed in a few days, defendant allowed the victim to leave. Later, law enforcement found firearms and live ammunition on defendant’s property.

Defendant pleaded guilty to assault with a semiautomatic firearm (count III), and kidnapping (count VII). (Pen. Code, §§ 245, subd. (b), 207.) At the sentencing hearing, counsel for defendant argued for concurrent sentencing on the two convictions, “because it [was] a single course of events closely related to each other. . . .” Rejecting that argument, the trial court explained, “the kidnapping also is a separate crime and has separate elements, and I don’t find it to be a sentence that should run concurrently.”

The trial court did not explicitly address the applicability of section 654’s prohibition on multiple punishments for a single act, and counsel for defendant stated his opinion that section 654 did not apply.

The trial court sentenced defendant to an aggregate term of 10 years eight months; consisting of nine years for the assault conviction (the upper term), plus a consecutive one year eight months for the kidnapping conviction (one-third of the middle term).

DISCUSSION

Defendant argues his sentence for kidnapping must be stayed under section 654 because the kidnapping and assault were part of an indivisible course of conduct with a single objective. Defendant contends section 654 applies here, because defendant’s single objective was to extract a perceived $50,000 debt from the victim, and there is no evidence that he entertained more than one criminal objective. We disagree. As we explain, we will follow a narrow line of cases that permits multiple punishment where a defendant has an opportunity to reflect and renews his intent and objective before committing the next crime.

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 applies not only where there was one act in the ordinary sense, but also where there was a course of conduct that violated more than one statute yet nevertheless constituted an indivisible transaction. (People v. Perez (1979) 23 Cal.3d 545, 551.) However, if the evidence discloses that a defendant entertained multiple criminal objectives, he may be punished for the independent violations committed in pursuit of each objective. (Ibid.) “ ‘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.)

Here, although the trial court made no explicit findings (as it was not asked to apply section 654), “implicit in the trial court’s concurrent sentencing order is that defendant entertained separate intentions . . . .” (People v. Garcia (2008) 167 Cal.App.4th 1550, 1565.) Therefore, we assume the court implicitly found support for its failure to apply section 654, and we look to the record to support those findings.

“ ‘The defendant’s intent and objective are factual questions for the trial court.’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162.) Trial courts have broad latitude to determine whether a defendant harbored one or more objectives, and we uphold their findings on appeal if there is any substantial evidence in the record to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) “ ‘We review the court’s determination of [a defendant’s] “separate intents” for sufficient evidence in a light most favorable to the judgment, and presume in support of the court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.)

Recognizing the merit of criticisms of the “intent or objective” test, which was “ ‘engrafted onto section 654’ ” as a “ ‘judicial gloss,’ ” our Supreme Court has discussed with approval decisions that have “limited” the test’s reach, thereby “help[ing to] mitigate the concerns regarding the . . . test in specific situations.” (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Our high court explained that one line of cases, which includes People v. Harrison (1989) 48 Cal.3d 321 and People v. Trotter (1992) 7 Cal.App.4th 363, “have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment.” (Latimer, at p. 1211-1212, citing Harrison and Trotter).

“In Harrison . . . the defendant broke into the victim’s home and committed three separate acts of digital penetration. After each penetration the victim was able to pull away. Twice the defendant was able to overpower her and penetrate her again. After the third assault she was able to retreat to a bathroom and lock the door. The entire episode lasted seven to 10 minutes.” (People v. Correa (2012) 54 Cal.4th 331, 341.) Section 654 did not bar multiple punishments in the case, explaining there was “no legal or logical bar to separate punishment where, as here, each of defendant’s [digital penetrations] was clearly volitional, criminal and occasioned by separate acts of force. . . . [D]efendant should also not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his sexually assaultive behavior.” (People v. Harrison, supra, 48 Cal.3d at p. 338, second italics added.)

In Trotter, the defendant fired a gunshot at a police vehicle, fired a second shot about a minute later, and fired a third shot moments after the second shot. (People v. Trotter, supra, 7 Cal.App.4th at p. 366.) The appellate court affirmed imposition of consecutive sentences, explaining that “even under the long recognized ‘intent and objective’ test, each shot evinced a separate intent to do violence.” (Id. at p. 368.)

Recently, the Fourth Appellate District, Division One, relied on that reasoning in Trotter in concluding that section 654 did not bar multiple punishments for evading a peace officer with reckless driving and assault with a deadly weapon on a peace officer, crimes that occurred during a high-speed car chase with police. (People v. Jimenez (2019) 32 Cal.App.5th 409, 413-415, 426.) Defendant drove into the opposing lane of traffic where a law enforcement vehicle was pursuing him, forcing the pursuing vehicle to “swerve out of the way at the last moment to avoid a head-on collision.” (Id. at p. 414; see id. at p. 425 [defendant “drove on the wrong side of the road heading directly toward the second vehicle, resulting in the commission of the assault”].) The court explained that defendant “could have driven on his side of the road or moved rather than driving head on toward [the law enforcement] vehicle. He chose not to do so, aggravating the severity of the situation. [Defendant’s] initial efforts trying to evade the first vehicle, and his subsequent assaultive conduct, ‘were volitional and calculated, and were separated by periods of time during which reflection was possible.’ ” (Id. at p. 426, quoting Trotter.)

Here, although defendant continued his quest for money when he kidnapped his victim, just as Jimenez continued his quest to evade the police when he drove his car directly at the police car, defendant had the opportunity to reflect before resuming and escalating his conduct. For example, defendant could have left his victim with his armed confederate and searched on his own for the money while his victim was secured rather than kidnapping his victim at gunpoint. He chose not to do so, despite an apparent attempt to deescalate by a loved one.

We have held that multiple punishments for dissuading a witness and arson were proper–despite the shared intent to dissuade common to both crimes–where there was a pause of about 15 minutes between those crimes, thereby affording defendants “the time to reconsider and reflect upon their actions, and to renew their intent before” committing the arson. (People v. Louie (2012) 203 Cal.App.4th 388, 399, italics added; see id. at pp. 392-393, 398.) We rearticulated two principles relevant here, explaining: “[W]here a course of conduct is divisible in time it may give rise to multiple punishment even if the acts are directive to one objective. [Citation.] If the separation in time afforded defendants an opportunity to reflect and to renew their intent before committing the next crime, a new and separate crime is committed. [Citation.]” (Id. at p. 399, italics added.)

Here, moments after the victim arrived at defendant’s home, defendant pointed a firearm at the victim, and demanded $50,000. After the victim told defendant he did not have money to pay him, defendant threatened to kill him and made him ask for a loan over the phone. Defendant’s wife told him to calm down. Instead, defendant forced the victim at gunpoint to walk 50 yards away to a trailer on the property and demanded the keys to the victim’s vehicle, where defendant found $4,000 in cash. This constituted multiple separate criminal acts committed by defendant, who we acknowledge appeared to have but one clear ongoing intent and objective–to recover a perceived debt from the victim, using whatever force necessary. But that ongoing intent was segmented by the victim’s efforts to obtain a loan over the phone and defendant’s wife’s statement to defendant to calm down. It was after that interval, which afforded defendant an opportunity to reconsider and reflect, that defendant renewed his intent and kidnapped the victim at gunpoint, and in doing so vastly aggravated the severity of the situation. Therefore, because there is substantial evidence supporting the trial court’s implied finding that defendant had an opportunity to reflect and renew his intent before committing the kidnapping, multiple punishment was permitted.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Robie, Acting P. J.

/s/

Mauro, J.