People v. Delacruz CA2/3 ( 2014 )


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  • Filed 12/30/14 P. v. Delacruz CA2/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
    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 This opinion has not been certified for publication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
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,                                                          B253873
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. SA079589)
    v.
    RICHARD DELACRUZ, SR.,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County,
    Katherine Mader, Judge. Modified and, as so modified, affirmed.
    Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
    and Appellant.
    Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
    General, Scott A. Taryle and John Yang, Deputy Attorneys General, for Plaintiff and
    Respondent.
    A jury found defendant and appellant Richard Delacruz, Sr. guilty of two counts
    of attempted murder, shooting at an occupied motor vehicle, and assault with a firearm.
    Delacruz contends sentence on one of the counts must be stayed pursuant to Penal Code
    section 654;1 the trial court miscalculated when stating the aggregate term of
    imprisonment; and a great bodily injury enhancement should have been stayed pursuant
    to section 12022.53, subdivision (f), rather than section 654. Delacruz’s contentions have
    merit, and we order the judgment modified accordingly.
    FACTUAL AND PROCEDURAL BACKGROUND
    1. Facts
    In light of the issues presented, we briefly summarize the facts.
    Appellant Delacruz was a member of the Santa Monica 13 criminal street gang
    and acted as a “shot-caller” for the gang. Victim Miguel Villafana was a member of the
    Sotel 13 criminal street gang, and victim Jose Lopez was a Sotel 13 gang affiliate. The
    Santa Monica 13 and Sotel 13 gangs were rivals.
    On November 24, 2011, Lopez drove his Lexus to a 7-Eleven store located in an
    area claimed as the territory of the Sotel 13 gang. Villafana, who was intoxicated,
    accompanied him and was seated in the Lexus’s front passenger seat. A friend of
    Villafana’s sat in the back. Upon arrival at the 7-Eleven, Villafana’s friend went inside
    the store to purchase food. Video surveillance cameras monitored the 7-Eleven.
    Delacruz, driving a black Scion, parked at the 7-Eleven. Delacruz’s two
    passengers went inside the 7-Eleven, while Delacruz paced back and forth outside. When
    his companions returned, Delacruz went to the back of Lopez’s Lexus and fired multiple
    gunshots at the car. Two gunshots hit Villafana in his head and right arm. Bullets also
    struck the right rear door and the driver’s side mirror.
    Officers reviewed the store’s surveillance videotapes and recognized Delacruz as
    the shooter and the Scion as his girlfriend’s car.
    1      All further undesignated statutory references are to the Penal Code.
    2
    According to a gang expert, going into a rival gang’s territory is a sign of
    disrespect. Assaulting a rival gang member in the rival’s territory is a “major sign of
    disrespect.”
    2. Procedure
    The jury found Delacruz guilty of the willful, deliberate, and premeditated
    attempted murders of Villafana and Lopez (counts 1 and 2, §§ 664, 187, subd. (a));
    shooting at an occupied motor vehicle (count 3, § 246); and assault with a firearm
    (count 4, § 245, subd. (a)(2)). It further found that Delacruz personally inflicted great
    bodily injury on Villafana (§ 12022.7, subd. (a)); personally used and discharged a
    firearm, causing great bodily injury to Villafana (§ 12022.53, subds. (b), (c), (d)); and
    committed all the offenses for the benefit of, at the direction of, and in association with a
    criminal street gang, with the specific intent to promote, further, and assist in gang
    members’ criminal conduct (§ 186.22, subd. (b)). The trial court sentenced Delacruz to a
    term of 20 years, plus 95 years to life in prison.2 It imposed a restitution fine, a
    suspended parole restitution fine, a criminal conviction assessment, and a court
    operations assessment. Delacruz appeals.
    DISCUSSION
    1. Sentence on count 3 should have been stayed pursuant to section 654.
    The trial court sentenced Delacruz as follows. On count 1, the attempted murder
    of Villafana, the court imposed a sentence of 15 years to life, plus 25 years to life for the
    section 12022.53, subdivision (d) firearm use enhancement.3 On count 2, the attempted
    murder of Lopez, the court imposed a consecutive term of 15 years to life, plus 20 years
    2     During the sentencing hearing, the trial court mistakenly stated that the total term
    was 20 years plus 115 years to life. We address the court’s misstatement post.
    3       The sentence for willful, premeditated, deliberate attempted murder is life in
    prison with the possibility of parole. (§ 664, subd. (a); People v. Gonzalez (2012)
    
    54 Cal. 4th 643
    , 654.) When a gang enhancement is found true, the minimum parole
    eligibility period is 15 years. (§ 186.22, subd. (b)(5).)
    3
    for the section 12022.53, subdivision (c) firearm enhancement. On count 3, shooting at
    an occupied motor vehicle, the court imposed a consecutive term of 15 years to life, plus
    25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The court
    stayed sentence on count 4, assault with a firearm, pursuant to section 654.
    At the sentencing hearing, defense counsel argued that sentence on count 3,
    shooting at an occupied motor vehicle, should also have been stayed pursuant to section
    654 because Delacruz had acted with a single intent and objective in all the offenses. The
    trial court disagreed. It reasoned that the Legislature “intended it to be a more serious
    crime if you shoot into a vehicle than if you shoot at somebody who is not in a vehicle.”
    Delacruz contends the trial court erred when it failed to stay sentence on count 3
    pursuant to section 654. The People concede the point. We agree with the parties.
    Section 654, subdivision (a), provides that an act or omission 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 not under more than one
    provision. Thus, section 654 bars multiple punishments for separate offenses arising out
    of a single occurrence where all were incident to an indivisible course of conduct or a
    single objective. (People v. McKinzie (2012) 
    54 Cal. 4th 1302
    , 1368; People v. Calderon
    (2013) 
    214 Cal. App. 4th 656
    , 661; People v. Galvez (2011) 
    195 Cal. App. 4th 1253
    , 1262.)
    Whether a course of criminal conduct is divisible depends on the intent and objective of
    the actor. If all the offenses were merely incidental to, or were the means of
    accomplishing one objective, the defendant may be found to have harbored a single intent
    and therefore may be punished only once. (People v. Capistrano (2014) 
    59 Cal. 4th 830
    ,
    885; People v. Sok (2010) 
    181 Cal. App. 4th 88
    , 99; People v. Jones (2002) 
    103 Cal. App. 4th 1139
    , 1143.) However, if the defendant harbored multiple or simultaneous
    objectives, independent of and not merely incidental to each other, the defendant may be
    punished for each violation committed in pursuit of each objective even though the
    violations share common acts or were parts of an otherwise indivisible course of conduct.
    (People v. 
    Jones, supra
    , at p. 1143; People v. 
    Sok, supra
    , at p. 99.) Whether section 654
    applies in a given case is a question of fact for the trial court, and its findings will not be
    4
    reversed on appeal if there is any substantial evidence to support them. (People v.
    
    Capistrano, supra
    , at p. 886; People v. 
    Jones, supra
    , at p. 1143.) To permit multiple
    punishment, “ ‘ “there must be evidence to support [the] finding the defendant formed a
    separate intent and objective for each offense for which he was sentenced.” ’ ” (People v.
    
    Capistrano, supra
    , at p. 886.)
    Here, the trial court did not make a factual finding that Delacruz harbored separate
    intents and objectives in committing the offenses of attempted murder and shooting at an
    occupied motor vehicle. Instead, it declined to stay sentence on count 3 because it
    believed the Legislature intended to punish the crime of shooting at an occupied motor
    vehicle harshly. However, the conduct underlying each of the offenses was identical, and
    nothing in the record suggests Delacruz had multiple objectives. From the evidence
    adduced, the only reasonable conclusion was that Delacruz had a single intent and
    objective during the shooting: to shoot and kill the occupants of the Lexus. (See
    generally People v. 
    Sok, supra
    , 181 Cal.App.4th at p. 100.) Accordingly, Delacruz may
    not be separately punished for count 3.4
    Section 654 therefore requires a stay of sentence on count 3, as well as the related
    enhancements. (See People v. Calles (2012) 
    209 Cal. App. 4th 1200
    , 1221 [“When the
    base term of a sentence is stayed under section 654, the attendant enhancements must
    also be stayed”].) We order the judgment modified accordingly.
    2. Correction of the record
    As noted ante, when orally pronouncing sentence the trial court imposed a
    determinate term of 20 years on count 2 for the section 12022.53, subdivision (c) firearm
    enhancement; three indeterminate terms of 15 years to life for the attempted murders and
    the shooting at an occupied motor vehicle offense (counts 1, 2, and 3); and two
    4      Imposition of sentence on both the attempted murder counts was proper because
    Delacruz fired at two victims in the Lexus. The “multiple victim” exception to section
    654 allows for separate punishment for each crime of violence against a different victim,
    even though all the crimes were part of an indivisible course of conduct with a single
    objective. (See People v. Felix (2009) 
    172 Cal. App. 4th 1618
    , 1630-1631; People v.
    Martin (2005) 
    133 Cal. App. 4th 776
    , 781.)
    5
    indeterminate terms of 25 years to life for the section 12022.53, subdivision (d)
    enhancements on counts 1 and 3. Thus, the total term imposed was a determinate term of
    20 years, plus an indeterminate term of 95 years to life. However, when totaling the
    aggregate term, the trial court either misspoke or miscalculated, and stated that the
    “aggregate term is . . . 20 years determina[te]. And that is served first. And then there is
    a term of 115 years to life, which is served next.” The abstract of judgment does not
    reflect the error. The court’s minute order states that the total term is “115 years to life.”
    The parties agree that the court’s oral statement regarding the aggregate term was
    erroneous. Delacruz requests that we direct that the oral pronouncement of judgment be
    corrected to accurately state the term imposed. The People contend that such action is
    unnecessary because the abstract of judgment is correct. In light of our conclusion ante
    that the consecutive sentence on count 3, as well as the attendant enhancements, must be
    stayed pursuant to section 654, the judgment must be modified in any event. Delacruz’s
    aggregate sentence should be a determinate term of 20 years, plus 55 years to life in
    prison. We order correction of both the minute order and abstract of judgment to so
    reflect, and we deem the corrected minute order to prevail over any contrary statement in
    the reporter’s transcript. (People v. Cleveland (2004) 
    32 Cal. 4th 704
    , 768; People v.
    Thompson (2009) 
    180 Cal. App. 4th 974
    , 978; People v. Contreras (2009) 
    177 Cal. App. 4th 1296
    , 1300, fn. 3; cf. People v. Mitchell (2001) 
    26 Cal. 4th 181
    , 185-186.)
    The erroneous statement in the reporter’s transcript is of no effect. (People v. 
    Cleveland, supra
    , at p. 768; People v. 
    Thompson, supra
    , at p. 978.)
    3. The great bodily injury enhancement imposed on count 1 should have been
    stayed pursuant to section 12022.53, subdivision (f), rather than section 654.
    When pronouncing judgment, the trial court stayed punishment on the section
    12022.7 great bodily injury enhancements attached to counts 1 and 3 without specifying
    the statutory basis for the stay. The court’s minute order states that the enhancements
    were “stayed pursuant to [section] 654.”
    6
    The great bodily injury enhancement on count 1 should have been stayed pursuant
    to section 12022.53, subdivision (f), rather than section 654.5 Subdivision (f) of section
    12022.53 provides, in pertinent part, that an “enhancement for great bodily injury as
    defined in Section 12022.7 . . . shall not be imposed on a person in addition to an
    enhancement imposed pursuant to subdivision (d)” of section 12022.53. We order the
    minute order corrected.
    5      In light of our conclusion that section 654 requires a stay of sentence on count 3,
    the section 12022.7 enhancement attached to that count was properly stayed under
    section 654. (People v. 
    Calles, supra
    , 209 Cal.App.4th at p. 1221.)
    7
    DISPOSITION
    The judgment is modified as follows. Sentence on count 3, including the section
    12022.53 and 12022.7 enhancements, is stayed pursuant to Penal Code section 654. The
    clerk of the superior court is directed to prepare an amended abstract of judgment and to
    forward a copy to the Department of Corrections. The clerk of the superior court is
    further directed to correct the minute order dated January 16, 2014 to reflect that the
    aggregate sentence is a determinate term of 20 years, plus 55 years to life, and that the
    section 12022.7 great bodily injury enhancement on count 1 is stayed pursuant to section
    12022.53, subdivision (f). In all other respects, the judgment is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    ALDRICH, J.
    We concur:
    KITCHING, Acting P. J.
    KUSSMAN, J.*
    *     Judge of the Los Angeles County Superior Court assigned by the Chief Justice
    pursuant to article VI, section 6 of the California Constitution.
    8
    

Document Info

Docket Number: B253873

Filed Date: 12/30/2014

Precedential Status: Non-Precedential

Modified Date: 4/17/2021