People v. Larraburu CA6

Filed 11/16/22 P. v. Larraburu CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048362
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1804870)
v.
PAUL GABRIEL LARRABURU,
Defendant and Appellant.
A jury convicted appellant Paul Gabriel Larraburu of several offenses arising out
of an altercation at the home of his ex-girlfriend, Loraine S.,1 including the infliction of
corporal injury on a partner while having a prior conviction for the same crime within
seven years (count 2). Larraburu was also charged with assault by means of force likely
to produce great bodily injury (count 1). Though the jury acquitted Larraburu of that
charge, on count 1 it found him guilty of the lesser included offense of misdemeanor
assault. The trial court sentenced Larraburu to eight years in prison.
On appeal, Larraburu claims his conviction on count 1 for assault is barred under a
judicially created exception to Penal Code section 9542 and by constitutional principles of
Loraine S. and Loraine S.’s daughter, Valerea G., are alleged as victims in the
1
information. We refer to the victims and other witnesses by first name and last initial to
protect their privacy interests. (See Cal. Rules of Court, rule 8.90(b)(4), (10)–(11).)
2
Unspecified statutory references are to the Penal Code.
double jeopardy. He observes that simple assault is a lesser-included offense of count 2
and contends the jury’s verdict does not support a finding that separate acts resulting in
separate injuries supported the different counts.
For the reasons explained below, we reject Larraburu’s contentions and affirm the
judgment. We also note an error in the abstract of judgment and direct the superior court
clerk to prepare a corrected abstract.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
In November 2019, the Santa Clara County District Attorney filed a second
amended information (information) charging Larraburu with assault by means likely to
produce great bodily injury upon Loraine S. (§ 245, subd. (a)(4); count 1), infliction of
corporal injury on a former cohabitant, Loraine S., with a prior conviction within seven
years (§ 273.5, subd. (f)(1); count 2), violation of a protective order within seven years of
a prior violation (§ 166, subd. (c)(4); count 3), and misdemeanor battery upon Valerea G.
(§ 243, subd. (a); count 4). The information also alleged that Larraburu had suffered two
prior strike convictions (§§ 667, subds. (b)–(i), 1170.12) for assault with a deadly weapon
(§ 245, subd. (a)(1)) and assault with a firearm (§ 245, subd. (a)(2)).
In December 2019, a jury found Larraburu guilty of all counts as charged, except
for count 1, for which the jury convicted him of the lesser included offense of simple
assault (§ 240). The jury also found true the allegation that Larraburu had suffered a
prior conviction within seven years of the violation of section 273.5, subdivision (a), that
he had suffered a prior conviction within seven years for a violation of a protective order
(§ 166, subd. (c)(1)), and that his conduct in violating the protective order involved an act
of violence. In January 2020, Larraburu admitted suffering the prior strike convictions
alleged in the information.
In July 2020, the trial court sentenced Larraburu to eight years in prison on count 2
and a consecutive term of 16 months on count 3, which the court stayed pursuant to
2
section 654. As to misdemeanor counts 1 and 4, the court imposed concurrent sentences
of 100 days, which it deemed served.
B. Evidence Presented at Trial3
1. The September 2018 Incident
By late September 2018,4 Larraburu and Loraine S. had dated off and on for three
or four years. They had most recently broken up two or three weeks earlier. On
September 25,5 Larraburu contacted Loraine S. to tell her he was going to stop by the
house where she lived with her two adult daughters and two grandchildren. Loraine S.
was home with her daughter, Valerea G., Peter S. (Valerea G.’s boyfriend), and Valerea
G.’s son.
That evening, Larraburu arrived to pick up items he had at the house, including a
toolbox, some clothing, and paperwork. According to Loraine S., she and Larraburu
were both “very short” with each other and “wanted to get it over with.” Larraburu went
to the garage and she went to her room because she wanted to “give him his space.” She
was lying in bed watching T.V. when Larraburu entered and began to gather the rest of
his belongings from the closet and a box beneath the dresser. She asked him to hurry up
and leave. Larraburu asked her to get him the paperwork for a vehicle (a 1964 Riviera)
that they owned together. She told him to leave and they would take care of it later.
Larraburu responded angrily and began yelling and walking toward Loraine S. He
stood over her as she lay on the bed and punched her in the face with a closed fist. The
blow landed in her eye. She tried to get up but Larraburu pushed her down and grabbed
her throat. She tried to scream for her daughter and Peter S. to help her. She was not
3
In addition to the testimony described below, the prosecution presented expert
testimony on intimate partner violence and domestic violence. That evidence is not
relevant to this appeal.
4
Unless otherwise indicated, all dates occurred in 2018.
5
There is some inconsistency in the trial testimony as to the date of the September
2018 incident, which the prosecutor referred to as “September 28,” though the
information and other trial testimony confirms the date was September 25.
3
able to get up off the bed or to overpower him. Larraburu struck her several times on her
arm and head. He was holding her down, “probably” around her neck but she did not
remember if he put pressure on her windpipe. Her daughter, Valerea G., came into the
room and tried to get Larraburu off. Then Valerea G. yelled to Peter S. The next thing
Loraine S. remembered was talking with police officers at the front door.
Valerea G. testified that at the time of the incident on September 25, she was in the
house with her boyfriend (Peter S.) and her son, who was already asleep. Valerea G. and
her boyfriend were in her bedroom when she heard her mother calling for her, but in a
“screeching” or “weird screaming way” that sounded like her voice was being restrained.
Valerea G. ran to her mother’s bedroom. The first thing she saw was Larraburu hitting
Loraine S. in the face with a “full fist.” Loraine S. was lying in the bed. Valerea G. saw
Larraburu hit Loraine S. four or five times. Valerea G. also later saw finger marks on
Loraine S.’s neck.
Valerea G. tried to pull Larraburu off of Loraine S. Larraburu pushed Valerea G.
away toward the windowsill, then hit Valerea G. twice in the back and once in the face.
Valerea G. called for Peter S., who arrived and told Larraburu he needed to leave. Peter
S. began shoving Larraburu out the door. Valerea G. joined Peter S. outside to make sure
Larraburu left. Larraburu punched Valerea G. on the left side of her torso. Valerea G.
told Larraburu she was calling the police, and he left before the police arrived.
Peter S. testified that he was in Valerea G.’s room at the back of the house when
he heard “loud voices,” which he thought was “a normal argument” and ignored. He and
Valerea G. were already getting ready for bed. Valerea G. went to see what Loraine S.
wanted. Peter S. was dozing off when Valerea G. screamed his name to come to her. He
got to the room and saw Valerea G. was upset and telling Larraburu to get out. Larraburu
“kind of” struck Valerea G. with a straight punch and hit her on the face. Peter S.
became “really upset,” told Larraburu he needed to get out, and tried to push him toward
the door. Loraine S. was lying on the bed and starting to get up. Peter S. did not see her
4
face and was focused on getting Larraburu out of the room. Peter S. took Larraburu
outside. The pair exchanged pushes and blows back and forth before Larraburu got in his
car and drove away.
The trial court admitted a copy of a certified restraining order served on Larraburu
on September 13, 2017, which expired on September 13, 2020. The restraining order was
a no-contact order and required Larraburu to stay away from Loraine S.’s house where
the September 2018 incident occurred.
City of San Jose Police Officer Marco Mercado testified that he responded to the
incident and arrived at the house. Loraine S. opened the front door and was holding a
frozen product to her left eye, where he saw a “notable swelling.” The eye was “pretty
much shut.” Officer Mercado also observed contusions and welts to Loraine S.’s left
hand and wrist and forearm area. She appeared calm and said she would seek her own
medical attention.
Officer Mercado testified that one of the standard questions in conducting an
assessment in response to a report of domestic violence is “ ‘Has the person tried to
strangle you?’ ” When Mercado asked this question of Loraine S., she explained that
“ ‘that’s how this whole thing started.’ ” She recounted that Larraburu had “put his hands
around her – tried to choke her, and she [had] pushed him away.” Though Loraine S. told
officers the first thing that happened was Larraburu tried to put his hands around her neck
and choke her, she testified at trial to her belief that the punching occurred first. Loraine
S. also testified that she was certain about what happened but unsure in “what order” the
events occurred. Loraine S. also told officers that Larraburu tried to strike Valerea G.
She did not know how much Valerea G. saw because she (Loraine S.) was “covering up”
to protect her face from being hit.
On redirect, Loraine S. testified that after thinking about it “all night” after the first
day of testimony, she believed she “was laying on the bed when he came towards [her],”
she “put [her] hand and [her] arm up, . . . like, to back [him] up,” and “[t]hat’s when he
5
grabbed [her] throat. And he sa[id], you’re not going to do this to me. And he held [her]
– pushed [her] so [she] couldn’t get up. [She] couldn’t move. He held [her], and then
[she], kind of – [her] foot pushed him off. And that’s when [she] got hit in the eye.”
On a scale of one to 10, with 10 being excruciating pain, Loraine S. testified that
her pain that day was a 10. Her eye was swollen shut. She went to the hospital the next
day for treatment. At the hospital, they cut and drained the eye which relieved the
pressure from the swelling. She required pain medication and was in pain for about one
week. The discoloration on her face lasted about three to four weeks.
Loraine S. left Larraburu voicemail messages after the September incident saying
things like “ ‘I’m going to fuck you up’ ” and “ ‘I’m going to win this one. I love it.’ ”
In another voicemail message, she told Larraburu, “ ‘I’m going to fuck you up for real
this time. No car, no clothes. Nothing you have at my house you get. I’m going to fuck
you up, Paul, you little bitch, punk-ass bitch, motherfucker.’ ”
2. Prior Incidents
Loraine S. testified at trial about prior incidents in which Larraburu was violent
towards her.
In 2013, Loraine S. and Larraburu got into an argument over the 1964 Riviera
vehicle, which they had bought together but which Larraburu had gifted to Loraine S.
She was driving with Larraburu in her car on an expressway when he grabbed the
steering wheel and jerked it. She pulled over, told him to get out, and refused to drive
further with him. He slammed the door and walked away. Later, when he returned to the
house, Loraine S. told him to gather his belongings and get out. Larraburu went into
Loraine S.’s bedroom to look for the Riviera’s keys and registration, which was in
Loraine S.’s name. Larraburu punched Loraine S. on the head and pushed her onto the
bed. Later, in the garage, Larraburu told her that if he could not have the car, no one
could have it. Larraburu then took a pickaxe to the car. He broke four of the car
windows and damaged the rear body. Larraburu then left. The police came and took a
6
report. At the time, Loraine S. told the police officer that before attacking the Riviera,
Larraburu had told her that if he was going to jail, it was going to be “for something.”
At the time of the 2013 incident, Loraine S. did not want to testify against
Larraburu. She transferred title of the Riviera to him at his request so that he would not
be convicted of felony vandalism. Loraine S. and Larraburu also entered into a private
agreement that, once the court proceedings were completed, Larraburu would transfer
title of the car back to Loraine S. Charges were filed against Larraburu, and a protective
order issued preventing him from having contact with Loraine S. In April 2014,
Larraburu was convicted of willfully inflicting corporal injury resulting in a traumatic
condition upon Loraine S., a person with whom he previously had a dating relationship
(§ 273.5, subd. (a)).
Another incident occurred in 2016, when she and Larraburu were not dating and
not living together. Loraine S. went to her car in the evening to get her backpack out of
the trunk. It was dark outside. She heard a hissing noise coming from the left side of the
car, and Larraburu stood up next to the vehicle. Loraine S. assumed he had popped her
tire. She and Larraburu “exchanged words,” and Larraburu tried to pull her out of his
way. Loraine S. called to her daughter, and Larraburu took off running down the street.
Larraburu was convicted of willfully and knowingly violating a protective order or stay-
away order issued pursuant to section 136.2 (§ 166, subd. (c)(1)).
3. Loraine S.’s Prior Convictions
Loraine S. was convicted of misdemeanor welfare fraud in 2001. She testified at
trial that she did not recall whether she was also arrested for domestic violence in 2001
and did not recall two convictions for theft of utilities in San Mateo County in 2003 and
2004. The parties stipulated that Loraine S. was arrested in 2001 but was not charged and
was released from custody.
7
II. DISCUSSION
Larraburu contends that his conviction on count 1 for simple assault (§ 240)
should be reversed and dismissed because simple assault is a lesser included offense of
the crime for which he was convicted on count 2, the infliction of corporal injury on
Loraine S., a former cohabitant (§ 273.5), and he may not be convicted of both offenses.
Larraburu asserts that the offense for inflicting corporal injury is a “continuing offense”
for which multiple convictions “are permissible where separate acts of violence lead to
separate injuries.” He further asserts that “[w]ithout a separate act causing concomitant
injury, the act of holding [Loraine] S. down while striking her becomes subsumed in the
continuing violation of section 273.5.” Larraburu claims that his multiple convictions
violate the judicially created exception to section 954 and the constitutional protection
against double jeopardy.6
The Attorney General responds that the simple assault conviction was proper
because the verdict on count 1 was based on Larraburu’s act of strangling Loraine S. and
that act was separate from his acts of injuring her and causing a traumatic condition that
formed the bases for count 2.
Section 954 sets forth the general rule that defendants may be charged with and
convicted of multiple offenses based on a single act or an indivisible course of conduct.
It provides in relevant part: “An accusatory pleading may charge two or more different
offenses connected together in their commission, or different statements of the same
offense or two or more different offenses of the same class of crimes or offenses, under
separate counts . . . . The prosecution is not required to elect between the different
offenses or counts set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged, and each offense of which the
defendant is convicted must be stated in the verdict or the finding of the court.” (§ 954.)
6
We note that Larraburu makes no argument under section 654 as to his county
jail sentence on count 1.
8
“In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. ‘In California, a single act or
course of conduct by a defendant can lead to convictions “of any number of the offenses
charged.” ’ ” (People v. Reed (2006) 38 Cal.4th 1224, 1226, italics omitted.)
Although section 954 generally allows for multiple convictions, under a judicially
created exception to that doctrine a defendant charged with an offense may not be
convicted of both that offense and a lesser included offense. (See People v. Montoya
(2004) 33 Cal.4th 1031, 1034; People v. Pearson (1986) 42 Cal.3d 351, 355 (Pearson),
rejected on other grounds in People v. Vidana (2016) 1 Cal.5th 632, 651; People v.
Moran (1970) 1 Cal.3d 755, 763.) Nevertheless, “a defendant may be convicted of
multiple crimes—even if the crimes are part of the same impulse, intention or plan—as
long as each conviction reflects a completed criminal act.” (People v. Kirvin (2014) 231
Cal.App.4th 1507, 1518 (Kirvin).)
“Simple assault is the ‘unlawful attempt, coupled with a present ability, to commit
a violent injury on the person of another.’ (§ 240.) The offense of infliction of corporal
injury occurs where a person ‘willfully inflicts corporal injury resulting in a traumatic
condition upon a victim described [in the statute] . . . .” (§ 273.5, subd. (a).) For
purposes of section 273.5, the term ‘willfully’ simply means an intent to commit the act
that results in corporal injury. [Citation.] The term ‘corporal injury’ is unambiguous and
means bodily injury. [Citation.] Finally, the term ‘traumatic condition’ is statutorily
defined to mean ‘a condition of the body, such as a wound, or external or internal injury,
. . ., whether of a minor or serious nature, caused by a physical force.’ (§ 273.5, subd.
(d).)” (People v. Serrano (2022) 77 Cal.App.5th 902, 919 (Serrano); see CALCRIM
No. 840.)
We accept the premise underlying Larraburu’s contention that simple assault is a
lesser offense of infliction of corporal injury. Indeed, “[i]t is evident that a person who
intends to inflict, and does inflict, bodily injury on a person which results in a traumatic
9
condition on that person, necessarily commits an assault. Thus, simple assault is a lesser
included offense of infliction of corporal injury result[ing] in a traumatic condition.”
(Serrano, supra, 77 Cal.App.5th at p. 919.) However, the judicially created exception to
section 954 does not bar convictions for a greater and lesser offense if each is based on a
separate completed criminal act. (See People v. Benavides (2005) 35 Cal.4th 69, 98
(Benavides); Pearson, supra, 42 Cal.3d at p. 355; see also Kirvin, supra, 231 Cal.App.4th
at p. 1519.)
“[T]he crime described by section 273.5 is complete upon the willful and direct
application of physical force upon the victim, resulting in a wound or injury.” (People v.
Johnson (2007) 150 Cal.App.4th 1467, 1477 (Johnson).) Simple assault “requires an act
that by its nature would directly and probably result in the application of physical force to
a person. [Citations.] This is the physical act of assault that creates a potential for harm
to a victim. The crime is complete even if the act does not actually result in a physical
injury to the victim.” (People v. Harring (2021) 69 Cal.App.5th 483, 503 (Harring).)
In the present case, the trial court instructed the jury that to convict Larraburu of
simple assault of Loraine S. in count 1 (as a lesser offense of the greater charged offense
(§ 245, subd. (a)(4)), the jury had to unanimously find that Larraburu “committed that
offense by acts of strangulation” upon Loraine S. The court also instructed the jury that
to convict Larraburu of inflicting corporal injury on Loraine S. as charged in count 2, the
jury had to find unanimously that Larraburu “committed that offense through hitting
[Loraine S.] while she was in her bedroom.” Thus, in accord with the statutory elements,
the simple assault crime was complete when Larraburu strangled Loraine S., having done
so willfully with the present ability to apply force and which act by its nature would
directly and probably result in the application of physical force to a person. (See
Harring, supra, 69 Cal.App.5th at p. 503; see also CALCRIM No. 915.) By contrast,
the infliction of corporal injury offense was complete upon Larraburu’s willful and direct
10
application of physical force upon Loraine S. “through hitting” that resulted in a wound
or injury. (See Johnson, supra, 150 Cal.App.4th at p. 1477.)
Larraburu asserts that because his simple assault conviction did not require that the
jury find a separate injury, the act of strangulation on which his conviction was based
“becomes subsumed in the continuing violation of section 273.5.” We do not agree. The
elements of simple assault do not require the prosecution prove that Larraburu actually
touched someone or that anyone was actually injured by his act. Thus, simple assault
offense was complete regardless of any injury and, critically, was accomplished by an act
that is different than the acts upon which the conviction for infliction of corporal injury
was based.
Consistent with the jury instructions, the evidence supports the jury’s requisite
findings (in light of the specific instructions given here) that Larraburu’s convictions on
counts 1 and 2 were based on separate acts. Loraine S. testified that Larraburu pushed
her down on her bed and grabbed her throat. Though she was not certain whether he had
compressed her windpipe, she was sure that Larraburu had put his hands around her
throat and “strangled” or “choked” her. She told Officer Mercado that Larraburu’s
attempt to choke or strangle her was “ ‘how it started.’ ”
Additionally, Loraine S. testified that Larraburu punched her in the eye and caused
traumatic injury. As a result, she could not open her eye. Larraburu also punched
Loraine S. “about five times” on her arm, wrists, and head. The evidence demonstrates
ample basis for the jury to conclude that Larraburu’s act of strangulation, which was
necessary to convict him on count 1, was separate from his acts of injuring Loraine S. and
causing a traumatic condition, which was necessary to convict him on count 2. (See
Benavides, supra, 35 Cal.4th at p. 98; cf. Serrano, supra, 77 Cal.App.5th at p. 920.)
Therefore, under the circumstances presented here, the counts do not fall within the
judicially created exception to section 954 barring convictions for necessarily included
offenses. Likewise, we decide that Larraburu’s constitutional double jeopardy claim
11
lacks merit. (See Benavides, at p. 98; see also People v. Sloan (2007) 42 Cal.4th 110,
121; Ohio v. Johnson (1984) 467 U.S. 493, 501.)
In support of his argument, Larraburu relies on Johnson, supra, 150 Cal.App.4th
1467 and People v. Thompson (1984) 160 Cal.App.3d 220. Those cases, however, are
inapposite because neither addressed a contention akin to Larraburu’s nor held that any
simple assault offense committed by a separate act during the same course of conduct as
an infliction of corporal injury offense, but which did not result in injury, merges with the
infliction of corporal injury offense.
Although not raised by either party, we observe that the abstract of judgment does
not indicate the length of the punishment imposed and then stayed, under section 654, for
count 3 (violation of protective order within seven years of a prior). Although we affirm
the judgment, we direct the trial court to prepare a new abstract of judgment which
indicates the term imposed (surrounded by parentheses in the “TIME IMPOSED” column
of item No. 1) for count 3 on which the punishment was stayed pursuant to section 654.
III. DISPOSITION
The judgment is affirmed. The superior court clerk is ordered to prepare a new
abstract of judgment which indicates the term imposed (surrounded by parentheses in the
“TIME IMPOSED” column of item No. 1) for count 3 on which the punishment was
stayed pursuant to Penal Code section 654.
12
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Bamattre-Manoukian, Acting P.J.
____________________________________
Wilson, J.
H048362
People v. Larraburu