PEOPLE v. SALAZAR

No. A145787.

THE PEOPLE, Plaintiff and Respondent, v. RICHARD RONALD SALAZAR, Defendant and Appellant.

Court of Appeals of California, First District, Division Two.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

STEWART, J.

Defendant Richard Ronald Salazar appeals from a judgment that was issued after he pled no contest to certain charges, contending that the trial court made multiple errors regarding his sentencing and pre-sentence credits. We conclude the court's rulings appealed from must be vacated and these matters remanded to the trial court for further determinations consistent with this opinion.

BACKGROUND

In December 2014, the Mendocino County District Attorney filed an information charging defendant with certain crimes against Jack Bridge, specifically: first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)1; count one); making a criminal threat (§ 422; count two); theft or unauthorized use of Bridge's truck (Veh. Code, § 10851, subd. (a); count three); and false imprisonment (§ 236; count four). It was further alleged regarding count two that defendant personally used a dangerous weapon, a vodka bottle, and personally used a dangerous weapon, a knife, both in violation of section 12022, subdivision (b)(1). It was also alleged that defendant had been convicted of two or more felonies within the meaning of section 1203, subdivision (e)(4).

The court briefly suspended proceedings, and then reinstated them upon finding defendant competent to stand trial. In May 2015, the parties reached a negotiated disposition of the case. The court granted the prosecution's motion to amend count one to dismiss the first degree robbery allegation and replace it with an allegation that defendant committed assault with a deadly weapon, a bottle (§ 245, subd. (a)(1)). Defendant pled no contest to this charge, and also to the other charges in the information. He also admitted to two "personal use of a dangerous weapon" allegations, but it is unclear to what charges these attached under the terms of the negotiated disposition or the court's findings. Defense counsel characterized them as attaching to "the 422 and 236," which can only mean counts two and four, the court characterized them as attaching to counts two and three, and the information states they are attached to count two.

The court found a factual basis for defendant's pleas, which was summarized by the prosecutor at the hearing as indicating that "[o]n November 11, 2014, in the County of Mendocino, the defendant struck the victim, Jack Bridge, in the head with a bottle, threatened him, threatened to kill him [and] put him in fear of his life using a knife. He tied him up using the tops of Walmart bags, bound the victim's hands and feet, and then fled in a vehicle owned by the victim." Defense counsel indicated that she had reports that substantiated the elements of the offenses. Based on her representation, the court accepted defendant's pleas and found defendant to have committed the offenses.

Subsequently, the probation department submitted a sentencing report and recommendation to the court, in which it summarized a police report about the subject events.2 It indicated that at approximately 11:17 p.m. on November 11, 2014, Ukiah police were dispatched to a trailer home regarding a possible stabbing. The responding officer knocked on the trailer door, which was opened by a man, Jack Bridge, who had blood on his face and the back of his head, two lacerations on the back of his head and a large bump, and a blue fabric tied around his ankles. He was wearing a blood-soaked sweatshirt, and there was blood on a mattress and pillows inside the trailer. Bridge told the officer that a man, later identified as defendant, hit him on the back of his head with a glass bottle, hit him on the head and neck with his fists, told Bridge that he was going to "`kill him,'" tied Bridge up and told him not to move, or he would "`kill'" him, and stole Bridge's silver Toyota Tacoma. The officer observed an empty vodka bottle in a paper bag and a second blue fabric piece on top of the bag.

Another officer spoke with a man visiting a friend in the trailer next to Bridge's, who said he looked into Bridge's trailer when the subject events occurred. After hearing a knock on a door, he saw a man, who he identified later that day as defendant, hit Bridge approximately two or three times with a bottle and punch Bridge. The man also saw defendant pointing a knife five or six inches in length at Bridge. Defendant grabbed a backpack and other things from the trailer, walked out to a truck and placed them on the passenger seat, walked back into Bridge's trailer for a "`couple of seconds,'" walked back outside and drove away in the truck.

Bridge told police that the trailer park manager had taken defendant in for a time, but put him out because of defendant's drinking. Bridge felt sorry for defendant and took him in for a couple of days. The day before the attack, defendant, who said he was a mechanic, asked if he could start up Bridge's truck and, later, use Bridge's bicycle, which Bridge allowed him to do. On the day of the attack, defendant had gone outside to smoke a cigarette when Bridge noticed his truck keys and bicycle lock were missing. He went outside and saw his truck door was open. He and defendant went back inside to look for the keys; when Bridge turned his back, defendant hit him in the back of his head with an empty vodka bottle and when Bridge tried to defend himself, defendant punched him in the face. Bridge began to lose consciousness and could not recall how many times defendant hit him or which hand defendant used.

Bridge also told police defendant threw him to the ground, pulled out a knife and bound Bridge's hands and feet, and threw a blanket over him. Bridge was "bleeding `really bad' and [defendant] told him, `Now you stay there or I'll fucking kill you. Do you know how close you are to death right now? I told you, I'm an Army Ranger and I could snap you in a heartbeat.' "Defendant repeatedly told Bridge not to move or make any sounds or he would kill him, left the trailer, came back inside, removed the blanket from Bridge's head, pointed a knife at Bridge's eye and said, "`I'm taking your truck and I'm going south.' Don't call the police or I will come back and kill you.'" He then left in Bridge's truck.

Defendant was taken into custody that same day. According to police, he emitted "the strong odor of an alcoholic beverage" and had dried blood on top of his right thumb, his jacket and his sweatshirt.

The probation department report recommended an eight-year prison sentence for defendant. It listed the two personal use of dangerous weapons allegations (incorrectly stating that each involved a bottle) as attaching to count two.

At a July 2015 sentencing hearing, the court imposed a prison sentence totaling seven years and four months. The sentence consisted of four years for count one—assault with a deadly weapon; consecutive terms of eight months for both count two—making a criminal threat, and count three—theft of Bridge's truck; a concurrent term of two years for count four—false imprisonment of Bridge; and consecutive terms of one year for each of the two admitted weapon allegations. The court indicated its view that "the knife was, basically, used in connection with the 422 [count two] after the completion of the act essentially of hitting [Bridge] on the head with the bottle." It did not indicate to which count the second weapons allegation attached. The subsequent abstract of judgment listed both weapons allegations as attaching to a nonexistent count "3A."

The court awarded defendant 249 days of custody credits and 37 days of conduct credits under section 2933.1, for a total of 286 days of credits. Although the record is not clear, the parties agree that the court capped the credits awarded at 15 percent of defendant's actual period of confinement prior to sentencing under section 2933.1.

Defendant filed a timely notice of appeal.

DISCUSSION

I.

We Vacate the Trial Court's Sentences for Counts Two and Four.

Defendant first argues the trial court erred by imposing sentences for both counts two and four, since section 654 prohibits imposition of two sentences for acts occurring in the same course of conduct and committed for the same objective.

A. The Relevant Proceedings Below

At the sentencing hearing, the trial court stated, "The way I look at Count 2 and Count 4 is that realistically only one of those should add eight months. So the 236 [false imprisonment, count four] and the 422 [criminal threat, count two] are part and parcel of the same heinous actions, as I understood the way this offense went down. So I think probably the way to reach it is I'll add eight months consecutive on the 422, but I'll simply impose the mid-term of two years on the 236 and run it concurrent. So that between those two offenses, it adds eight months to the sentence."

The court then stated that the acts supporting defendant's conviction for count one [assault with a deadly weapon] were completed "before counts 2 and counts [sic] 4 were committed," and that "count 3 [vehicle theft], essentially that's a separate offense. . . . I'm just not seeing how . . . that's part and parcel of the other two crimes. It's separate. It happens later. It's got a separate goal or reason." It imposed separate consecutive sentences for counts one and three.

B. Legal Standards

Section 654 states 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 largest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Thus, section 654 "prohibits `[p]unishment for two offenses arising from the same act.'" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) It has been applied not only for the same act, but also "`"where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654."'" (Ibid.)"

`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." (People v. Latimer, supra, 5 Cal.4th at p. 1208.) "Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment." People v. Alford (2010) 180 Cal.App.4th 1463, 1468 (Alford).)

Generally, "[t]he question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) This applies to implicit court findings as well. (See People v. Osband (1996) 13 Cal.4th 622, 730-731.) We view the evidence in the light most favorable to the respondent and presume in support of the court's sentencing order the existence of every fact that the court could reasonably deduce from the evidence. (Hutchins, at pp. 1312-1313.)

C. Analysis

Defendant argues we must reverse the court's sentences regarding counts two and four as violating section 654 because the trial court's statements indicate it viewed counts two and four as based on the same course of conduct committed for a singular objective. Thus, the court should only have imposed one sentence (§ 654, subd. (a)), and stayed imposition of the other under section 654.

The People argue that we should affirm the court's sentencing decision because there is substantial evidence that defendant acted with separate objectives regarding the count two and count four offenses. Regarding defendant's contention that the trial court found he engaged in one course of conduct with a singular objective, the People argue the court meant something else by its statements. They contend the statements "are better understood as being consistent with California Rules of Court, rule 4.425,3 which provides that a concurrent term may be imposed when the crimes are committed so `as to indicate a single period of aberrant behavior,'" and that we should presume the trial court regularly performed its official duty under Evidence Code section 664. They point out that, even if the trial court did rule under section 654, the Alford court concluded that the imposition of concurrent terms was "an implied finding that the defendant bore multiple intents or objectives, that is, as a rejection of the applicability of section 654." (Alford, supra, 180 Cal.App.4th at p. 1468.)

In our view, the meaning of the trial court's statement that the acts involved in counts two and four (criminal threat and false imprisonment) were "part and parcel of the same heinous actions" is unclear. It could suggest a reference to section 654, in that the court may have intended to find that defendant engaged in one course of conduct, rather than in just the "single period of aberrant behavior" addressed by California Rules of Court, rule 4.425. If so, this would have been an affirmative finding that, once made, would have called for the trial court to stay one of the sentences it imposed for counts two and four under section 654. Such an affirmative finding also would make Alford distinguishable, as that case did not involve any affirmative finding and addressed another issue altogether, that being whether the trial court's failure to impose any sentence at all on one of the counts was in compliance with section 654. (Alford, supra, 180 Cal.App.4th at p. 1472.)

However, it is also conceivable that the trial court here also made its statements about counts two and four with California Rules of Court, rule 4.425 in mind. Given the vagueness of the court's statements and the broad latitude we must afford to its sentencing determinations (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312), we will not attempt to interpret the court's statements. To ensure compliance with section 654, we vacate the sentences imposed for counts two and four and remand these matters to the trial court for further determinations consistent with this opinion. We note that, to the extent the court finds the acts underlying these counts involved one course of conduct and a singular objective, section 654 calls for the court to impose the longest potential term of imprisonment and impose and then stay the other sentence. (§ 654, subd. (a).)

II.

We Remand the Trial Court's Sentences for the Enhancement Allegations.

Defendant also argues the trial court erred by imposing sentences for both "personal use of a dangerous weapon" enhancement allegations because "[i]f the court found the . . . enhancement as to the bottle attached only to count 4 [false imprisonment], the court was required to stay imposition of that enhancement term as part of its required stay of the base count, under section 654. . . ." He further points out correctly that, if the enhancements attached to the same count, the court erred by imposing one-year sentences to both the enhancements because "[w]hen two or more enhancements may be imposed for . . . using a dangerous or deadly weapon . . . in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." (§ 1170.1, subd. (f); see People v. Ahmed (2011) 53 Cal.4th 156, 165 [section 1170.1, subdivision (f) "clearly bar[s] imposing two or more weapon enhancements for the same offense"].)

The People acknowledge that it is unclear from the statements of counsel and the court at the hearings on the negotiated disposition and sentencing to what counts the court understood the sentence enhancements attached. They urge that, "[i]n light of the inconsistencies in the record," we should remand this sentence to the trial court for resentencing.

We agree with defendant that a trial court should stay the sentence for an enhancement allegation if it stays the sentence for the count to which the allegation is attached. (See People v. Guilford (1984) 151 Cal.App.3d 406, 411 [concluding that "an enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed"], fn. omitted.) However, we do not necessarily agree that, therefore, the trial court here should have stayed the enhancement allegation that defendant contends attached to count four because, as the People contend, it is impossible to tell from the record to which counts the enhancement allegations actually attached. Further, in light of our remand of the court's sentencing decisions regarding counts two and four, we cannot state with certainty that the court will ultimately stay count four. Therefore, we follow the People's recommendation and vacate the court's sentences regarding the "personal use of a dangerous weapon" enhancement allegations and remand these matters to the trial court for resentencing consistent with this opinion.

III.

We Vacate the Trial Court's Order Regarding Defendant's Credits.

Defendant contends that since he was not convicted of a violent felony, the trial court should not have limited his presentence custody credits to 15 percent under section 2933.1. The People agree that the court erred in limiting defendant's credits and that they should be recalculated. The parties are correct.

The court awarded defendant credit for 249 actual days served and 37 days good conduct under section 2933.1, which the parties agree the court limited to 15 percent of his time of confinement prior to sentencing.

Section 2933.1 provides in relevant part that, notwithstanding section 4019 or any other provision of law, the maximum credit that a person may earn against a period of confinement in, or commitment to a county jail, "prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a)." (§ 2933.1, subd. (c).) Section 2933.1, subdivision (a) specifically refers to "any person convicted of a felony offense listed in subdivision (c) of Section 667.5." (Id., subd. (a).) Defendant was not convicted of any of the felony offenses listed in that subdivision.4 Therefore, he was entitled to presentence credits under section 4019 without the limitations imposed by section 2933.1. (See, e.g., People v. Thomas (1999) 21 Cal.4th 1122, 1130 [stating that "the trial court properly awarded [defendant] presentence conduct credits under section 4019 rather than section 2933.1"], fn. omitted.)

DISPOSITION

The court's sentences for counts two and four and for the "personal use of a dangerous weapon" enhancement allegations, and its order regarding defendant's credits, are vacated, and these matters are remanded to the trial court for further determinations consistent with this opinion. The court is further instructed that, after making these determinations, it should issue an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

RICHMAN, Acting P.J. and MILLER, J., concurs.

FootNotes


1. All further statutory references are to the Penal Code unless otherwise indicated.
2. The parties indicate defendant's counsel and, therefore, the court, relied on this report as a factual basis for defendant's pleas.
3. California Rules of Court, Rule 4.425 states in relevant part: "Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) . . . [¶] Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior."
4. Section 667.5, subdivision (c) lists 23 "violent felonies," none of which defendant was found to have committed.

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