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The People v. Jose Nunez

October 25, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE NUNEZ, DEFENDANT AND APPELLANT.



Jeffrey G. Bennett, Judge Superior Court County of Ventura (Super. Ct. No. 2010008194)

The opinion of the court was delivered by: Yegan, J.

CERTIFIED FOR PUBLICATION

(Ventura County)

This appeal concerns McNaghten insanity and the Legislature's proscription against multiple punishment as specified in Penal Code section 654.*fn1 This is an intersection that legal scholars may find interesting. If a defendant has been convicted of multiple offenses but was legally insane at the time of the offenses, how does a sentencing judge or an appellate court determine his "intent and objective" in setting a maximum period of potential confinement? Such a defendant is incapable of knowing or understanding the nature and quality of his act, or if he did know or understand, he cannot distinguish right from wrong. (See People v. Skinner (1985) 39 Cal.3d 765; see also Clark v. Arizona (2006) 548 U.S. 735, 747 [126 S.Ct. 2709, 165 L.Ed.2d 842, 858-859.) But such a defendant may still have an "intent and objective." It is just a little more difficult to ascertain.

Section 654 jurisprudence speaks in terms of the "intent and objective of the actor." (See e.g, People v. Rodriguez (2009) 47 Cal.4th 501, 507.) This indicates that the actor's "subjective" intent is the touchstone for the multiple punishment inquiry.*fn2 We question whether a sentencing court, an appellate court, or even a forensic psychiatrist or psychologist can, in reality, reliably determine the subjective intent of an insane person. We nevertheless attempt to do so.

Jose Nunez appeals from an order committing him to Patton State Hospital for a maximum period of 17 years (§ 1026.5, subd. (a)) after he was convicted of carjacking (count 1; § 215, subd. (a)) and assault with a deadly weapon (ADW, count 2; § 245, subd. (a)(1)) with weapon use and great bodily injury (GBI) enhancements (§§ 12022, subd. (b)(2); former 12022.7, subd. (a)). The jury found that appellant was insane when he committed the offenses. (§ 1026, subd. (a).) The trial court, in calculating the maximum period of confinement, computed the maximum sentence as follows: 15 years on count 1 for carjacking and the GBI and weapon use enhancements; plus a consecutive two-year term on count 2 for assault with a deadly weapon and a GBI enhancement. We conclude that section 654 limits the maximum confinement period to 15 years.

On March 3, 2010, appellant was admitted to a mental health inpatient facility at the Ventura County Medical Center pursuant to Welfare and Institutions Code section 5150. Appellant escaped the next day, hit Anthony Perez (hereafter victim) with a hammer outside a convalescent home, and took his Grand Cherokee Jeep. Appellant was arrested hours later after he "rolled" the Jeep on Highway 101 near Santa Maria.

Victim testified that he parked outside the Glenwood Care Center and was sorting out his mother's medication when appellant "slammed" the passenger window and screamed at him. Victim had never seen appellant before and decided to "deal with him" He opened the car door and pushed appellant back a couple of feet. Appellant swung a claw hammer at victim, striking him on the forearm and right hand. Victim lunged at appellant but missed. Appellant got into the Jeep and drove away.

Doctor Joel Leifer, a court-appointed psychologist, testified that appellant suffered from schizophrenia and heard voices that people were trying to kill him. "One voice was telling him, 'Take the car, take the car.' And another voice was telling him, 'Get in the car, get in the car.'" Appellant was "flailing and reacting for the . . . sole purpose of escaping."

Trial Court Ruling

The trial court ruled that the ADW was not incidental to the carjacking for section 654 purposes. It said: "What happened is that he banged on the window with a hammer and the victim got out of the car . . . [Appellant] could have taken the car at that point by simply getting in and leaving, but he chose, instead, to smash the victim with a hammer in the head and in the arm." We question the premise of the trial court's reasoning. It is, at the very least, a debatable proposition that an insane person can make a rational choice. As we shall explain, this ruling is at variance with the uncontradicted evidence. Moreover, the Superior Court has a duty to follow California Supreme Court precedent, i.e. People v. Logan (1933) 41 Cal.2d 279. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Triggs (1973) 8 Cal.3d 884, 891.)

Section 654

Where a defendant is found not guilty by reason of insanity, "the trial court computes the maximum sentence, then imposes that time period as the maximum period of confinement pursuant to section 1026.5, subdivision (a)." (People v. Hernandez, (2005) 134 Cal.App.4th 1232, 1238-1239.)*fn3 Section 654, which bars multiple punishment for an indivisible course of conduct, applies in calculating the maximum confinement period. (Id., at p. 1237; 5 Witkin & Epstein, Cal. Criminal Law (3rd ed. 2011 Supp) ยง 692, p. 480.) " 'Whether a course of criminal 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 ...


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