IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
October 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES ARCHIE EUGENE MOORE, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF10184)
The opinion of the court was delivered by: Robie , J.
P. v. Moore
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant James Archie Eugene Moore, Jr., hit his victim in the head with a wooden board and then kicked him after the victim fell to the ground. In the days following the attack, the victim went to the emergency room with migraines, left, and then returned to the hospital where doctors diagnosed him with a cranial bleed. The victim stayed in the hospital for two weeks and ran up a bill that totaled $13,777.38, which Medi-Cal*fn1 covered, plus a $90 share of medical costs that the victim owed.
A jury found defendant guilty of assault with a deadly weapon and assault by means of force likely to produce great bodily injury. The court sentenced him separately on the two convictions, for an aggregate term of 12 years in prison. The court additionally ordered defendant to pay $90 in restitution to the victim for his share of his medical costs and $13,777.38 in restitution to Medi-Cal for the amount of the victim's medical costs Medi-Cal covered. The court ordered that both amounts would accrue 10 percent interest starting March 28, 2010, the day of the crime.
Defendant appeals, contending substantial evidence did not support the conviction of assault by means of force likely to cause great bodily injury and, alternatively, Penal Code*fn2 section 654 applies and requires the sentence for that assault to be stayed. Additionally, defendant asserts the trial court improperly ordered $13,777.38 in restitution to Medi-Cal, that restitution in this amount should not be ordered to the victim, and March 28, 2010, is an improper date for interest to begin accruing on both the restitution amounts.
Although we conclude that substantial evidence supports the conviction of assault by means of force likely to produce great bodily injury, we agree with defendant that section 654 applies and the sentence on the second assault conviction must be stayed. With regard to his contentions pertaining to restitution and interest, we conclude the trial court's orders were improper because defendant should have been ordered to pay all restitution to the victim, not Medi-Cal, and interest could not begin accruing until a financial loss occurred because of defendant's crimes. Accordingly, we will affirm the convictions but remand for resentencing and modification of the restitution order.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case are rather simple: On March 28, 2010, defendant and Christopher Payne were at Lonnie Johnson's house where defendant hit Payne in the head with a wooden board and then kicked him after he fell to the ground. After the attack, defendant said Payne "'deserved it'" as Payne was "out cold" on the ground. Defendant got in a pickup driven by his father and departed.
The only witnesses to defendant's attack on Payne were Cheryl Welch, who saw both the blow to the head and the kick, and Johnson, who saw only the kick.
A few days before the attack, defendant explained to Michael Price that he intended to "physically harm" Payne.
Assault By Means Of Force Likely To Cause Great Bodily Injury
Defendant first contends the jury's verdict on aggravated assault by means of force likely to cause great bodily injury must be reversed because "there was no substantial evidence that [defendant] kicked the victim using force likely to cause great bodily injury." To support this contention, defendant points to the lack of evidence pertaining to the force, placement, and effect of the kick. We disagree.
Under section 245, subdivision (a)(1), it is a crime to assault another with "any means of force likely to produce great bodily injury." "[B]ecause the statute focuses on use of . . . force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial. [Citation.] That the use of hands or fists [or feet] alone may support a conviction of assault 'by means of force likely to produce great bodily injury' is well established." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; see 1 Witkin, Cal. Crim. Law (3d ed. 2000) § 37, pp. 660-661.) For a defendant to be convicted of this crime, the evidence presented must be "reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal [for lack of substantial evidence] is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331, citing People v. Redmond (1969) 71 Cal.2d 745, 755.)
As the record shows, "[defendant] hit [the victim] over the head with [a board]. [The victim] went down. [Defendant] kicked [the victim]." Defendant argues that "given this testimony, there was no reason to believe [defendant]'s kick did any injury to the victim" and "[t]he People presented no evidence regarding the force of the kick, which leg (the dominant leg or the non-dominant), or where the kick was directed, or where the kick fell." First of all, this is of no consequence because "whether the victim in fact suffers any harm [from the kick] is immaterial." (People v. Aguilar, supra, 16 Cal.4th at p. 1028.) Secondly, the kick did not occur in isolation. Defendant kicked the victim as part of an attack in which defendant first hit the victim in the head with a board, then kicked the victim after he fell to the floor, and then said, "'he deserved it.'" It was perfectly reasonable for the jury to conclude that defendant kicked with force likely to cause great bodily injury to the victim.
The trial court held that section 654 does not apply here because "[d]efendant entertained several criminal objectives[.] [W]hen he hit the victim with the piece of wood[,] [h]e intended to disable and render him helpless to act in his own defense. When he kicked the unconscious victim while wearing boots, he intended to apply force likely to commit great bodily injury. There was sufficient time between the acts for [d]efendant to pause and reflect upon what he was doing. A course of conduct divisible in time, even if directed to one objective, may give rise to multiple violations and punishment." Because the trial court found section 654 inapplicable, defendant was sentenced for both assault with a deadly weapon and assault with force likely to cause great bodily injury.
Defendant contends his "punishment [for assault by means of force likely to cause great bodily injury] should have been stayed pursuant to . . . section 654" because he did not have separate objectives when he hit the victim in the head with the board and kicked him. Agreeing with this argument, we will remand the case for resentencing.
Section 654 provides in relevant part: "[a]n 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." In applying this section, our Supreme Court stated, "[w]hether a course of 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 offense, but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19.) "Whether the defendant entertained multiple criminal objectives is a factual question for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to sustain them." (People v. Nubla (1999) 74 Cal.App.4th 719, 730.)
One case which applied the rule announced in Neal is People v. Latimer (1993) 5 Cal.4th 1203. In that case, a defendant kidnapped his victim, drove her to the desert, and raped her. (Id. at p. 1205.) Ultimately, our Supreme Court held that section 654 applied, explaining "[a]lthough the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes." (Latimer, at p. 1216.) In short, because the kidnapping was incident to the defendant's objective of rape, he could be sentenced only for rape and not for kidnapping. (Ibid., applying Neal v. State of California, supra, 55 Cal.2d at p. 19.)
According to the trial court's findings here, defendant had separate objectives when he delivered the blow to the victim's head and when he kicked the victim, because by the blow to the head defendant wanted to disable the victim from acting in his own defense, and by the kick he wanted to injure the victim. These objectives are not separate, however, for purposes of section 654. Rather, what is apparent from the record is that defendant had only a single objective, which was, as he told Price, to "physically harm" the victim. To achieve that objective, defendant hit the victim in the head with a board and then kicked him. Even according to the trial court's findings, defendant hit the victim in the head in order to achieve his ultimate objective of physically harming the victim, because the blow to the head was meant to disable the victim and render him helpless to act in his own defense -- in other words, to make it easier for defendant to physically harm him with a further attack. Viewed in this manner, the two separate crimes defendant committed are similar to the kidnapping and rapes in Latimer because they were committed incident to a single objective, with one crime committed for the purpose of facilitating the other.
The trial court also stated that it did not apply section 654 because defendant had "sufficient time between acts . . . to pause and reflect upon what he was doing." (See People v. Trotter (1992) 7 Cal.App.4th 363, 367-368 [holding section 654 did not apply where the defendant had time to reflect between the three shots he fired at a pursuing police officer].) The trial court, however, made this finding without any evidence showing the time that passed between the blow to the victim's head and the kick. In any event, as we have noted, the trial court essentially found that defendant committed the first assault in order to facilitate commission of the second assault. Such was not the case in Trotter, where the multiple shots were simply separate assaults, and one shot did not facilitate the next.
Because the trial court's findings actually show defendant had a single criminal objective for purposes of section 654, there was only one criminal act, and therefore the sentence for assault by means of force likely to cause great bodily injury must be stayed on remand.
The next issue pertains to the trial court's order for defendant to pay Medi-Cal $13,777.38 in restitution. Defendant argues that under section 1202.4, which requires the trial court to order a defendant to pay restitution to victims of crimes in which the victim suffers an economic loss, restitution to Medi-Cal is improper because Medi-Cal is not a direct victim of defendant's crimes. We, as well as the People, agree with this argument.
Our Supreme Court has held that for purposes of section 1202.4 medical providers and insurers that have furnished services to a victim of a crime may not receive restitution for those services because they are not "direct victims" of the crime. (See People v. Birkett (1999) 21 Cal.4th 226, 229.) Being the functional equivalent of an insurance agency because it covered the victim's medical costs, Medi-Cal was not the direct victim of defendant's crimes. Therefore, defendant could not be ordered to pay restitution to Medi-Cal for the expenses associated with his crime. Rather, he could be ordered to pay only "the individual or entity [he] had directly wronged." (Id. at p. 246, italics omitted.)
Furthermore, defendant contends he does not owe the victim anything beyond the $90 because the victim never suffered an economic loss from the $13,777.38 hospital bill Medi-Cal covered. As we will explain, section 1202.4 requires defendant to pay the victim both the $13,777.38 and the $90 in restitution because a defendant must compensate his victim for the total amount of damages he caused by his criminal actions.
In People v. Hove, supra, 76 Cal.App.4th at page 1266, a defendant, while driving under the influence of a controlled substance, crashed into a victim, thereby committing a crime. (Id. at p. 1268.) As a result of the crash, the victim was hospitalized and incurred hospital expenses in the amount of $286,565.92. (Id. at pp. 1268-1269.) Those expenses were covered by Medicare*fn3 and Medi-Cal. (Id. at p. 1269.) Applying section 1202.4, the trial court ordered the defendant to pay the victim the full $286,565.92 in restitution because "the [L]egislature intended that [the] defendant in a criminal matter pay for the total costs of the damages that that particular defendant caused." (Hove, at pp. 1269, 1273.) On appeal, Division Two of the Fourth District Court of Appeal affirmed the trial court's order, stating, "We . . . find the restitution order proper even though the victim had no direct economic losses, and even though the victim could conceivably profit from recovering restitution if defendant complies with the restitution order and if Medicare and/or Medi-Cal does not pursue reimbursement." (Id. at pp. 1272-1273.)
This case is directly on point. Accordingly, on remand the trial court must modify its restitution order to require defendant to pay all restitution to the victim.
Interest On The Restitution
At trial, defendant never objected to the date on which the court ordered interest on the restitution amounts to begin accruing. Defendant contends the court's order that he pay interest beginning March 28, 2010, the date of the crime, is "an unauthorized sentence because there was no evidence of any loss as of this date." On the other hand, the People contend defendant's "claim regarding the date the interest began accruing is . . . a challenge to the court's exercise of its discretion, and is forfeited by [his] failure to object at sentencing." Neither party's argument is particularly well-developed or supported by citation to authority. In the alternative, however, defendant argues we should review his interest claim because his defense counsel was ineffective when he failed to object at sentencing. Because we must review the merits of defendant's interest claim in assessing whether his attorney was ineffective, we turn to the merits of that claim.
Section 1202.4, subdivision (f)(3)(G) provides that restitution for financial losses caused by criminal conduct may include "[i]nterest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court." Plainly, under this statute, interest may begin to accrue only on the date the victim actually incurs a financial loss or on the date of sentencing.
Here, the victim did not incur any financial loss on March 28, 2010, as a result of defendant's crimes because the only financial loss for which the court ordered restitution was the hospital bills, and no hospital services were provided for the victim's injuries on that date. The date on which the first charges for hospital services were made is not reflected in the record. Nonetheless, it is clear that no hospital visit took place until March 31, 2010. Certainly, neither the $13,777.38 nor the $90 in hospital expenses were incurred before the victim actually visited the hospital. That being the case, there was no substantial basis for the court to order interest to begin accruing as of March 28, 2010, and no legitimate basis for defendant's trial counsel to fail to object to that date. Accordingly, we will remand the matter to the trial court to determine a proper date for interest to begin accruing on the $13,777.38 and the $90 losses consistent with the governing statute.
Defendant's convictions are affirmed but the case is remanded to the trial court to resentence defendant, with the term of imprisonment for assault by means of force likely to produce great bodily injury stayed pursuant to section 654. On remand, the trial court shall also modify its restitution order to make all restitution payable to the victim and shall determine a proper date for interest to begin accruing on the restitution amount.
We concur: NICHOLSON , Acting P. J. MAURO , J.