THE PEOPLE v. CHRISTOPHER BONAGRAZIA (2009)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STATEMENT OF FACTS

On September 29, 2004, 77-year-old Oscar Salguero was at his apartment in Simi Valley when he received a telephone call from appellant.   Appellant identified himself by his first name and said he was the son of Mauricio Bonagrazia, a friend of Salguero's who had committed suicide about 20 years earlier.   Appellant told Salguero he wanted to “come over” and talk about his father.   Prior to appellant's telephone call, Salguero had not spoken to anyone from Mauricio's family since his suicide.   Salguero invited appellant to come to his apartment at about 6:00 p.m. that day, and gave him his address.   Salguero told appellant to call him on his apartment building call box when he arrived so that he could come down and open the security gate.

At 6:30 p.m., Salguero heard his doorbell ring.   He looked through the peephole and saw appellant, who identified himself.   Salguero let appellant in and they both sat on the living room sofa.   Appellant said “right away” that he did not actually want to talk about Mauricio, but had told him otherwise “because I wanted to come into your apartment.”   Although the remark got Salguero's attention, the two men proceeded to talk about appellant's family.

Appellant then told Salguero that he needed help.   Salguero offered to take him to a counselor or church.   Appellant responded, “I don't need any help from psychologists, church or any places that specializes [sic ] in things like that.   I need your help and you have to help me.”   When Salguero asked what kind of help appellant needed, appellant replied that he needed a lot of money and a gun.   Salguero became worried because appellant “was looking around like looking for something.”   Salguero told appellant that he did not have any money or a gun to give him.

Appellant asked for a glass of water and used the bathroom.   Salguero invited him to stay for dinner because he thought it might stop him from doing “something bad.”   After appellant finished eating, he told Salguero “[y]ou have to help me.”   He said the police were following him and “would not leave him alone” because he had been falsely accused of stealing a cell phone.

Appellant repeated his demand for money and a gun several times and said that Salguero had to help him because he was his father's friend.   Salguero reiterated that he had nothing to give.   Appellant's tone grew hostile and he said, “You're going to give me the money one way or another.”   When Salguero once again told appellant that he did not have any money or guns, appellant's expression changed and he accused Salguero of being afraid of him.

Salguero eventually grabbed appellant's arm and attempted to remove him from the apartment.   Appellant removed Salguero's hand and punched him in the head.   As Salguero was hunched over, he hit appellant in the stomach.   Appellant fell back a few steps, then came forward and pushed Salguero in the chest.   As Salguero fell backward, appellant jumped on top of him and began choking him with one hand as he hit him in the face with the other.   Throughout the attack, appellant kept telling Salguero to give him money and a gun.

Salguero tried to defend himself and hit appellant four or five times in the face.   As he was on his back, he attempted to move toward his bedroom so that he could activate the security alarm by pulling the chord near his bed.   When Salguero neared the bedroom door, appellant grabbed him by the neck again.   Salguero begged appellant not to kill him and said he could take anything he wanted, including Salguero's car.   Salguero warned appellant that he had already been filmed on the apartment building's security cameras, and informed him he had notified his son that appellant was visiting.

After Salguero told appellant he would end up in jail, appellant started hitting him harder.   When appellant was not looking, Salguero grabbed him by the neck with one hand, and by the testicles with the other.   Appellant “loosened up a little bit,” which gave Salguero the opportunity to jump onto his bed and pull the alarm chord.   Appellant jumped on top of Salguero, started hitting him again, and pressed a pillow “really” hard over his face.   Although Salguero was unable to breathe, he summoned the strength to punch appellant in the face.   Appellant loosened his grip, and Salguero fell face down on the floor.

As Salguero tried to crawl away on his hands and knees, appellant jumped on top of him, pressed his knees into his back, and pressed him flat onto the floor.   Appellant grabbed Salguero's neck and began hitting the left side of his head “with all his strength.”   When Salguero screamed for help, appellant told him to shut up and hit him even harder.

As Salguero was just about to lose consciousness, William McAtee and his fiancée arrived at Salguero's front door.   McAtee, the apartment building's night monitor, called out to Salguero.   From behind the closed door, McAtee heard Salguero say, “Be careful.   They're killing me, [McAtee].”   McAtee tried to open the door, but appellant ran over and slammed it shut.   McAtee managed to force the door open, and appellant ran out.   McAtee chased after appellant, who tried to punch him.   McAtee blocked the punch, kicked appellant's knee, and placed him in a headlock.   Appellant said, “I give up.”   McAtee's fiancée called the police, who arrived a few minutes later along with paramedics.   Salguero was transported to the hospital, where he was treated and released.   Salguero suffered from multiple face, body, and head contusions, posttraumatic stress, anxiety, insomnia, and a whiplash injury.   He required pain medication for about three years, and was still taking anxiety medication at the time of trial.   As a result of the choking, he had trouble swallowing for over a year.

Appellant testified in his own defense.   According to appellant, he was under the influence of methamphetamine when he went to visit Salguero and was “pretty paranoid.”   He only asked for money once, and never intended to steal from Salguero.   He only asked for a gun after Salguero told him that he had one in his bedroom.   He also claimed that he had merely defended himself after Salguero “started swinging” at him and screaming “[d]on't kill me.”   When Salguero got up and ran into his bedroom, it did not occur to appellant that he could simply leave.   Instead, he thought Salguero was going to retrieve his gun.   Appellant jumped on the bed and grabbed Salguero's legs.   In the ensuing struggle, they both fell to the floor.   Appellant admitted putting a pillow over Salguero's face, but claimed he did so merely to stop him from screaming, “[D]on't kill me.”   Appellant realized “this was going pretty bad,” so he let go of the pillow.   Salguero

kept screaming, so appellant punched him.   He remembered being on top of Salguero, but did not recall grabbing him by the throat.

When appellant was interviewed by the police the day of the incident, he denied attacking Salguero or asking for a gun.   The officer who interviewed appellant concluded that he was not under the influence of drugs.   When appellant was interviewed again the following day, he never mentioned using drugs and claimed Salguero had injured himself by falling down.

DISCUSSION

Appellant contends the trial court violated section 654 by ordering his one-year sentence on the assault count to run consecutive to his seven-year sentence for the attempted murder because his attack on Salguero “was literally one continuous indivisible event, and was also motivated by the same intent and objective,” i.e., “to get money and a gun from Salguero.”   We disagree.

Section 654 precludes multiple punishment for a single act or an indivisible course of conduct.  (People v. Britt (2004) 32 Cal.4th 944, 951-952.)   The purpose of the statute “ ‘is to insure that a defendant's punishment will be commensurate with his culpability.’  [Citation.]”  (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)  “A ‘course of conduct’ may be considered a single act within the meaning of section 654 and therefore be punishable only once, or it may constitute a ‘divisible transaction’ which may be punished under more than one statute.  [Citations.]  Whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is a question of fact for the trial court, and the trial court's findings will not be disturbed on appeal if they are supported by substantial evidence.  [Citations.]”  (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1253.)

In concluding that section 654 did not preclude punishment for both the attempted murder and the assault, the court reasoned:  “I believe these were two separate acts of violence, that the assault with the fist was separate from the action in the bedroom.   They were in two different locations and I don't believe they are 654.”   Appellant asserts

that “this was not the proper analysis” because our Supreme Court has held that “[i]t is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.   [Citations.]”  (People v. Harrison (1989) 48 Cal.3d 321, 335.)   When considered in context, the Harrison decision does not aid appellant.   On the contrary, it supports the trial court's conclusion that appellant committed separate crimes against Salguero that were worthy of separate punishment.

In Harrison, the court held that section 654 did not preclude separate punishment for multiple sex offenses arising out of a single course of conduct.   In so holding, the court reasoned among other things that “there is no legal or logical bar to separate punishment where, as here, each of defendant's ‘repenetrations' was clearly volitional, criminal and occasioned by separate acts of force.   Defendant urges that no greater punishment should befall him simply because the initial offense was interrupted by the victim's struggle.   By the same token, however, defendant should also not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his sexually assaultive behavior.”  (People v. Harrison, supra, 48 Cal.3d at p. 338, italics omitted.)   The court concluded the evidence was sufficient to support the imposition of consecutive sentences because “ ‘[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental’ to any other․  [Citation.]”  (Id. at p. 336.)

In People v. Trotter (1992) 7 Cal.App.4th 363, 367, the Court of Appeal “[saw] no reason to limit Harrison 's reasoning to sex crimes” and accordingly held that a defendant who fired three shots at police officers as he was attempting to flee could be convicted and sentenced on three separate counts of assault with a firearm.   The court stated the issue and its conclusion as follows:  “Defendant, as he was driving, turned back, pointed, and shot his weapon.   He resumed driving, paused for about a minute, turned back, and shot again.   After another few seconds a third shot was fired.   There was thus time prior to each shot for defendant to reflect and consider his next action.   As the court remarked at sentencing, ‘[t]hey were separate acts of violence on different occasions

coming down the freeway and putting different people-putting different officers in danger.' ”  (Id. at p. 368.)   The court added that “this was not a case where only one volitional act gave rise to multiple offenses.   Each shot required a separate trigger pull.   All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible.   None was spontaneous or uncontrollable.  ‘[D]efendant should ․ not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his ․ assaultive behavior.’   (People v. Harrison, supra, 48 Cal.3d at p. 338.)”  (Ibid.)

Here, the court found that appellant committed two separate and distinct acts of violence against Salguero in two different locations, i.e., the assault in the hallway and the attempted murder in the bedroom.   The record supports this conclusion.   The evidence at trial established that appellant first assaulted Salguero in his hallway after Salguero attempted to remove him from his apartment.   After a prolonged attack, Salguero managed to free himself from appellant, run into his bedroom, and pull the security chord.   At that point appellant had the opportunity to walk away.   Instead, he followed Salguero, threw himself on top of him, and attempted to suffocate him with a pillow.   When that attempt failed, appellant jumped on top of Salguero, pressed him flat into the floor, and proceeded to strangle him to the brink of unconsciousness.   Neither crime was committed as a means of committing the other, nor did either crime facilitate the other's commission.   Moreover, neither crime was incidental to the other.   Because appellant did not avail himself of the opportunity to end the assault when Salguero ran into the bedroom and instead chose to escalate his attack into an attempted murder, “his culpability increases and his intent, though the same in kind, can be considered separate and distinct under Harrison.”  (People v. Trotter, supra, 7 Cal.App.4th at p. 368, fn. 4.)

Separate punishment was therefore proper.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Rebecca S. Riley, Judge

Superior Court County of Ventura

Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General, for Plaintiff and Respondent.