IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 23, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SHRERON GRANDISON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F05013)
The opinion of the court was delivered by: Raye , P. J.
P. v. Grandison CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Shreron Grandison guilty of attempted first degree murder and assault with a deadly weapon of Ishaq El-Amin, first degree residential burglary of Johana Leach, and misdemeanor child endangerment of Jordyn D. and Meah D. The multiple-victim exception to Penal Code section 654 (section 654) applies in this case because there is substantial evidence to support the trial court's implied finding that defendant burgled his ex-girlfriend's residence armed with at least two, and maybe three, long knives. Based on this evidence, therefore, the burglary was a violent crime justifying the court's imposition of a six-year term for burglary in addition to a life term for the attempted murder of a second victim and various enhancements. We affirm.
Few facts are relevant to the section 654 sentencing issue before us. They can be simply stated.
Defendant lived with Johana Leach for about two and one-half years, and they had a two-year-old daughter, Meah. Johana also had a six-year-old daughter, Jordyn. In May 2008 Johana left defendant and moved into a new apartment. Defendant had never been in the new apartment and was not invited to visit.
At about 10:00 p.m. on June 20, 2008, Johana was in her kitchen with her new boyfriend, Ishaq, while her daughters were watching television in an adjacent room. She screamed when she saw defendant walking down the hallway toward them holding a knife in each hand. She recognized the knives because she had been with defendant when he purchased them. She did not take the knives when she moved out.
Ishaq grabbed a chair to deflect his assailant. Defendant went after him with the knives. He stabbed Ishaq eight times in the back, neck, head, and shoulders. At some point during the altercation, Ishaq grabbed a knife and stabbed defendant in the neck. They fought in the living room and eventually outside. Johana, carrying Meah, ran outside after her daughter, Jordyn. Defendant chased her and said something like he should kill her. He demanded to kiss his baby. He ran off with a knife in his neck. The investigating police officers recovered three knives at the scene, one 11 inches, one 17 inches, and one 27 inches long.
Defendant was charged with attempted murder with a knife and assault with a deadly weapon of Ishaq causing great bodily injury, first degree residential burglary committed against Johana, making a criminal threat against Johana, and misdemeanor child endangerment. A jury found him not guilty of making a criminal threat and guilty of all other counts and enhancements.
The trial court sentenced defendant to an aggregate term of 10 years, plus an indeterminate term of life in prison, calculated as follows: for attempted murder, the determinate term of four years, comprised of three years for the great bodily injury enhancement plus one year for the deadly weapon enhancement, to be served consecutively, and the indeterminate term of life with the possibility of parole; for assault with a deadly weapon, a term of seven years, comprised of three years, the middle term, on the assault with a deadly weapon charge plus three years on the great bodily injury enhancement and one year on the deadly weapon enhancement, all stayed under section 654; for burglary, six years, the upper term, to be served consecutively; and for misdemeanor child endangerment, 180 days, time served.
Section 654, subdivision (a), as relevant here, provides: "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 longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Under the "multiple-victim" exception to section 654, "'even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim.' [Citations.]" (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) "As the purpose of section 654 'is to insure that defendant's punishment will be commensurate with his criminal liability,' when he 'commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,' his greater culpability precludes application of section 654. [Citation.]" (People v. Miller (1977) 18 Cal.3d 873, 885 (Miller).)
Burglary may or may not constitute a violent crime for purposes of the multiple-victim exception depending on whether it was committed in conjunction with an act of violence. (People v. Hall (2000) 83 Cal.App.4th 1084, 1090-1091.) In Miller, supra, 18 Cal.3d at page 886, the defendant, during the course of a burglary committed against Burk, robbed Keating. The Supreme Court explained the section 654 consequences: "In the instant case the victim of the robbery as alleged, proved and found to be true was John Keating who was accosted and threatened at gunpoint. The robbery of a victim at gunpoint has been held to be an act of violence such as to preclude application of section 654 in the case of multiple convictions involving multiple victims. [Citations.] Although a burglary does not necessarily involve an act of violence against any person, sections 459 and 461 define the instant crime as a burglary in the course of which the defendant intends to and does inflict great bodily injury on an occupant of the premises burglarized. Thus the burglary alleged, proved and found to be true is a crime of violence committed against Burk. Defendant being convicted of a second crime of violence against a second victim, section 654 does not preclude the imposition of punishment for both the robbery and the burglary convictions."
Similarly, in People v. Centers (1999) 73 Cal.App.4th 84 (Centers), the defendant argued that the trial court had violated section 654 because it imposed separate and unstayed sentences for both burglary and kidnapping. (Centers, at p. 98.) The court acknowledged that "[b]urglary, standing alone, is not a violent crime for purposes of the multiple victim exception. [Citations.] However, it may be treated as such when there is a finding that the defendant inflicted great bodily injury in the commission of the burglary." (Id. at p. 99.) The same is true when there is a finding that the defendant personally used a firearm in the commission of the burglary. (Ibid.)
Defendant contends the multiple-victim exception does not apply because the prosecution did not charge, and the jury did not find, that he inflicted great bodily injury or that he personally used a firearm or deadly weapon during the commission of the burglary. Absent an express jury finding that the burglary was violent, defendant insists that section 654 bars punishment for the burglary. We disagree.
The trial court is entitled to make any factual findings the jury failed to make in order to determine whether section 654 applies. (Centers, supra, 73 Cal.App.4th at p. 101.) We will uphold the trial court's implied factual finding of multiple victims as long as it is supported by substantial evidence. (Ibid.)
Indeed, in Centers the court dismissed a similar challenge to the application of the multiple-victim exception. The defendant complained that the multiple victims had not been named in the information. As a consequence, the jury did not find that any particular person was the victim of either the burglary or the personal firearm use enhancement. Relying on Miller, supra, 18 Cal.3d 873, the defendant insisted that the multiple victim exception did not apply where there are no jury findings that the defendant committed violent crimes against multiple named victims.
The court was dismissive. "We think this reads too much into Miller. Certainly under Miller, if it has been alleged, proved, and found true that the defendant committed violent crimes against multiple named victims, this is sufficient to invoke the multiple victim exception; but Miller does not hold this is necessary. [¶] We know of no case in which the court declined to apply the multiple victim exception simply because the victims had not been named in the information." (Centers, supra, 73 Cal.App.4th at p. 101.)
Here, as in Centers, it is true the information did not allege, and the jury did not find, that defendant inflicted great bodily injury or used a deadly weapon during the commission of the burglary. The lack of an express jury finding, however, is not fatal as the court can imply factual findings for purposes of section 654. Here, there is ample evidence to support the court's implied finding that there were violent crimes committed against multiple victims.
Indeed, the implied findings are similar to those recounted by the court in Centers. The court concluded: "Finally, the trial court's implied finding of multiple victims is supported by substantial evidence. Indeed, defendant does not argue otherwise. Raines was indubitably the victim of the kidnapping. Grundman was the victim (or at least a victim) of the burglary, because she lived in the home. (See People v. Davis (1998) 18 Cal.4th 712, 720-722, and cases cited [burglary statute protects occupant's possessory interest in building].) Grundman also was a victim of defendant's menacing display of a firearm during the burglary. It could be argued that Raines, too, was a victim of the burglary and the personal firearm use. Nevertheless, there was at least one victim of the burglary and the personal firearm use who was not also a victim of the kidnapping. This was sufficient." (Centers, supra, 73 Cal.App.4th at pp. 101-102.)
We need not imply, as the court did in Centers, that there were multiple victims. The jury expressly found that Ishaq was the victim of the attempted murder and assault with a deadly weapon, and Johana was the victim of the burglary. Moreover, the jury found that defendant inflicted great bodily injury on Ishaq and that he did use a deadly weapon. Multiple victims therefore were alleged and proven. On appeal, defendant does not suggest otherwise.
There is, however, substantial evidence to support the trial court's implied factual finding that the burglary, like the attempted murder and assault with a deadly weapon, was violent. After all, there was evidence defendant climbed into an occupied residence through a window at night wielding two knives and apparently carrying a third ranging in length from 11 to 27 inches. He approached his victims from a dark hallway, scaring Johana with the knives and lunging toward Ishaq. He proceeded to stab Ishaq eight times. Because there were at least two, if not four, victims and the burglary was violent, defendant's enhanced culpability justifies application of the exception to section 654.
The judgment is affirmed.
We concur: BLEASE , J. HOCH , J.
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