People v. Rutkowski CA2/6 ( 2015 )

Filed 12/1/15 P. v. Rutkowski CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B259316
(Super. Ct. No. TA131783)
Plaintiff and Respondent, (Los Angeles County)
v.
SKIPPY CHARLES RUTKOWSKI,
Defendant and Appellant.
Skippy Charles Rutkowski appeals his conviction, by jury, of assault
on a peace officer (Pen. Code, § 245, subd. (c))1, and battery with injury on a peace
officer. (§ 243, subd. (c)(2).) Appellant personally inflicted great bodily injury in
the commission of each offense. (§ 12022.7, subd. (a).) He was sentenced to a total
term of six years in state prison, comprised of the low term of three years on count
4, the assault conviction, plus three years on the great bodily injury enhancement.
The trial court also imposed a concurrent term of 16 months on count 5, the battery
conviction, plus three years on the great bodily injury enhancement associated with
that conviction. Appellant contends the term and sentence enhancement imposed
for the battery conviction should have been stayed pursuant to section 654. He
1
All statutory references are to the Penal Code unless otherwise stated.
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further requests that this court review the sealed transcripts from the in camera
hearing held on his motion for discovery of the arresting officer's personnel files.
(Pitchess v. Superior Court (1974) 11 Cal. 3d 531, 536-537.) Respondent contends
additional mandatory fees must be imposed under section 1465.8 and Government
Code section 70373.
Our independent examination of the in camera proceedings discloses
no abuse of discretion in the trial court's discovery order. (People v. Mooc (2001)
26 Cal. 4th 1216, 1232.) We agree, however, that the concurrent term imposed on
count 5 violates section 654 and that the trial court should have imposed the fees
identified by respondent. Accordingly, we order the judgment modified to reflect
that the sentence on count five is stayed pursuant to section 654. In addition, we
order the judgment modified to impose a court security fee of $40 (§ 1465.8, subd.
(a)(1)), and a court construction fee of $30 (Gov. Code, § 70373, subd. (a)), on
count 5. As so modified, the judgment is affirmed.
Facts
Los Angeles County Sheriff's deputy Clinton Randall was driving his
patrol car on Long Beach Blvd. in Compton when he was flagged down by a
pedestrian. The pedestrian was very agitated and gestured toward appellant, who
was seated on a bicycle nearby. She reported that appellant had stabbed her two
weeks earlier. Randall parked his patrol car in the center median and asked
appellant to meet him at the curb. When Randall tried to open the car door, he
found that appellant was blocking it with his bicycle. Randall asked him to move
and appellant complied, moving back just far enough to permit Randall to open the
door. Just as Randall put his left foot outside the door, appellant struck him on the
head with a plastic bottle that was filled with juice. The blow was so forceful, it
burst the bottle. Juice poured all over Deputy Randall and the inside of the car.
Randall was stunned and fell backwards into the car seat. Through the open
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window, appellant again struck Randall on the forehead. A few seconds later,
Randall noticed appellant was hitting him again, this time with a box cutter.
Appellant used a "downward, stabbing motion" to inflict numerous blows to
Randall's left arm.
Randall's ride-along passenger, Deputy Martin Dominguez, got out of
the patrol car, pulled appellant off Randall and backwards onto the ground.
Appellant continued to fight with Dominguez and Randall. Randall struck appellant
several times because appellant ignored Randall's direction to stop resisting.
Eventually other deputies arrived and appellant was taken into custody.
Discussion
Pitchess Motion
On appellant's motion, the trial court conducted an in camera review
of the personnel files of both Deputy Randall and Deputy Dominguez. It ordered
disclosure of one complaint involving issues of dishonesty. In a subsequent in
camera hearing, the trial court concluded no further discovery of the officers'
personnel records was required. We have reviewed the sealed transcripts of these
proceedings and conclude that the trial court's discovery orders were not an abuse of
discretion. (People v. Hughes (2002) 27 Cal. 4th 287, 330; People v. Mooc, supra,
26 Cal.4th at p. 1232.)
Section 654
Appellant contends the trial court erred when it imposed concurrent
terms for the battery conviction on count 5 and the associated great bodily injury
enhancement, rather than staying that term under section 654. Respondent contends
the trial court made an implied finding of fact, which is supported by substantial
evidence, that the two offenses involved multiple criminal objectives, so section
654 did not apply. We are not persuaded.
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"Section 654 precludes multiple punishment where an act or course of
conduct violates more than one criminal statute but a defendant has only a single
intent and objective. (People v. Liu (1996) 46 Cal. App. 4th 1119, 1135.) In such
circumstances, the court must impose but stay execution of sentence on all of the
convictions arising out of the course of conduct except for the offense with the
longest sentence. (People v. Alford (2010) 180 Cal. App. 4th 1463, 1466.) On this
issue, we review the court's explicit or implicit factual resolutions for substantial
evidence. (Liu, supra, 46 Cal.App.4th at p. 1136; People v. Coleman (1989) 48
Cal. 3d 112, 162.)" (People v. McCoy (2012) 208 Cal. App. 4th 1333, 1338. See also
People v. Hester (2000) 22 Cal. 4th 290, 294 [statute "precludes multiple
punishments for a single act or indivisible course of conduct."].)
Acts that occur closely together in time may still be divided by
multiple criminal objectives. (People v. Garcia (2008) 167 Cal. App. 4th 1550,
1565.) As our Supreme Court has explained, "It is defendant's intent and objective,
not the temporal proximity of his offenses, which determine whether the transaction
is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental to, or
were the means of accomplishing or facilitating one objective, defendant may be
found to have harbored a single intent and therefore may be punished only once.
(Neal v. State of California (1960) 55 Cal. 2d 11, 19.) [¶] If, on the other hand,
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.' [(People v.
Beamon (1973) 8 Cal. 3d 625, 639].)" (People v. Harrison (1989) 48 Cal. 3d 321,
335.)
Appellant was convicted of assault on a police officer (§ 245, subd.
(c)) and battery with injury on a peace officer. (§ 243, subd. (c)(2).) The trial court
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made no express findings regarding section 654. Respondent contends the
imposition of concurrent terms was an implied finding that appellant acted with two
distinct criminal objectives. First, appellant hit Deputy Randall with the juice
bottle, to prevent him from exiting the patrol car and arresting appellant. Second,
appellant slashed at Randall with the box cutter, to injure him. Because appellant
acted with two objectives, to avoid arrest and to harm the officer, respondent
contends, multiple terms were appropriate. We disagree.
Appellant slashed at Deputy Randall with the box cutter only
moments after hitting him with the juice bottle. The two assaults were part of a
single, continuous course of conduct, intended to injure the deputy. Our review of
the record discloses no substantial evidence supporting respondent's theory that
appellant harbored two different criminal intents or objectives: first, to escape and
then to injure. Appellant did not run or ride his bicycle away from the patrol car
immediately after hitting Deputy Randall with the juice bottle, as we would expect
if he committed the assault to prevent Randall from arresting him. Instead,
appellant stayed next to the car, drew his box cutter and began slashing at the
deputy. The only reasonable inference is that appellant engaged in both acts for the
purpose of harming Deputy Randall.
Because the assault and the battery were separate parts of an
indivisible criminal transaction, section 654 bars imposition of concurrent terms for
these offenses. The trial court should have imposed and stayed the entire sentence
on count 5, to comply with section 654. (People v. Alford (2010) 180
Cal. App. 4th 1463, 1468-1469.)
Imposition of Mandatory Fines
At sentencing, the trial court imposed one court security fee of $40
under section 1465.8, and one court construction fee of $30 under Government
Code section 70373. Each statute, however, mandates that the fine it authorizes
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"shall be imposed" for each felony conviction, even if the sentence for that
conviction is stayed pursuant to section 654. (People v. Sencion (2012) 211
Cal. App. 4th 480, 484; People v. Roa (2009) 171 Cal. App. 4th 1175, 1181.)
Appellant was convicted of two felony offenses. He should have been assessed two
fees under section 1465.8 and two fees under Government Code section 70373,.
We will order the judgment modified to impose each fee on each count. (People v.
Mitchell (2001) 26 Cal. 4th 181, 185.)
Disposition
The judgment is ordered modified to reflect that the term imposed on
count 5, battery with injury on a peace officer, and the sentence enhancement for
that court, are stayed pursuant to section 654. The judgment is also modified to
impose a court security fee of $40 (§ 1465.8, subd. (a)(1)) and a court construction
fee of $30 (Gov. Code, § 70373) on count 5. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Paul A. Bacigalupo, Judge
Superior Court County of Los Angeles
______________________________
Danielle Charles, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret
E. Maxwell, Supervising Deputy Attorney General, Tasha G. Timbadia, Deputy
Attorneys General, for Plaintiff and Respondent.
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