Filed 5/6/13 P. v. Rincon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E053475
v. (Super.Ct.No. SWF021729)
JOSE JUAN RINCON et al., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark E. Petersen,
Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant Jose Juan Rincon.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant Dominick Haning, Jr.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
1 This case involves two defendants, Jose Juan Rincon (Rincon) and Dominick
Haning, Jr. (Haning). A jury found Rincon and Haning guilty of the same crimes:
(1) first degree burglary (Pen. Code, § 459);1 (2) shooting at an occupied aircraft (Pen.
Code, § 246); (3) shooting at an inhabited dwelling (Pen. Code, § 246); (4) fleeing a
pursing peace officer and disregarding the safety of others while driving (Veh. Code,
§ 2800.2); (5) exhibiting a firearm with the intent of preventing arrest (§ 417.8);
(6) driving a stolen vehicle (Veh. Code, § 10851, subd. (a)); and (7) being a felon or
drug addict in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)).
In regard to one count of shooting at an aircraft (§ 246), the jury found true the
allegations that Rincon and Haning personally used a firearm during the commission of
the offense (§ 1192.7, subd. (c)(8)). Haning admitted suffering (1) one prior strike
conviction (§ 667, subds. (c) & (e)(1)); (2) one prior serious felony conviction (§ 667,
subd. (a)); and (3) one prior conviction for which he served a prison term (§ 667.5,
subd. (b)). The trial court sentenced Rincon to prison for a term of 13 years. The trial
court sentenced Haning to prison for a term of 32 years.
Rincon raises two issues on appeal. First, Rincon asserts the evidence supporting
his burglary conviction does not meet the substantial evidence standard. Second,
Rincon contends the trial court erred by not staying the sentences for various
convictions. (§ 654.) Haning contends the trial court erred by not staying the sentences
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 for some of his convictions because the crimes involved an indivisible course of
conduct. (§ 654.) We affirm the judgments.
FACTUAL AND PROCEDURAL HISTORY
On June 12, 2007, at approximately 7:00 p.m., Haning and Brian Guzman
(Guzman) went to the Cahuilla Casino together to drink. Haning brought a gun with
him. While in the casino parking lot, Haning smoked methamphetamine. When Haning
finished smoking, the two men went into the casino. Haning and Guzman stayed at the
casino playing at the slot machines and watching sports while Guzman drank beers.
At approximately 10:00 p.m., Haning and Guzman left the casino. Haning drove
the two toward Temecula. After driving for approximately 15 minutes, Haning stopped
the vehicle in a rural area, near a group of residential mailboxes. Haning exited the car
and tried opening the mailboxes. At that point, Deputy Bales drove by the mailboxes.
Haning reentered the vehicle. Bales made a U-turn to go back by the mailboxes. Bales
made eye contact with Haning, at which point Haning started the vehicle and drove
away. Bales followed Haning and Guzman. Bales gave the license plate number of
Haning‟s vehicle to dispatch and learned the vehicle, a Dodge Durango, was stolen.
Bales turned on his patrol car‟s red and blue lights. Haning slowed the Durango,
and then sped up “a few times.” Haning told Guzman he was not stopping because of
prior strike convictions and not wanting to be incarcerated. Eventually, Haning stopped
the vehicle. Haning gave Guzman a handgun, which he took from under or behind the
seat, and instructed Guzman to shoot the deputy when he approached the vehicle‟s
window. Guzman told Haning he could not kill the deputy. Bales exited the patrol car,
3 Haning looked at Bales, and then Haning “took off” at a high rate of speed. Bales
reentered his patrol car and pursued Haning.
As the pursuit continued, Haning‟s and Bales‟s vehicles were traveling
approximately 100 miles per hour. Haning asked Guzman to dial a telephone number
for him. Guzman dialed the number and handed the telephone to Haning. Haning
referred to the person with whom he was speaking on the telephone as Jose. Guzman
heard Haning tell Jose he was in a police pursuit and gave his location on the freeway.
Haning and Jose were figuring out a place to meet.
Eventually, Haning once again stopped the Durango. It appeared Haning was
going to allow Guzman to leave the vehicle, because Guzman was asking to go home.
At that point, backup patrol units began arriving. Bales exited his patrol vehicle.
Haning saw the multiple patrol cars and “took off again,” with Guzman still inside the
Durango. Haning proceeded through stop signs without stopping and continued driving
at approximately 100 miles per hour through a residential area. Bales followed Haning.
A helicopter was also following Haning from overhead.
Haning entered Interstate 15, heading north. Haning then proceeded on Interstate
215 north toward Perris. Deputies placed a spike strip along Interstate 215 near the
transition to Highway 74. The Durango ran over the spike strip. At that point, the
Durango‟s tires began falling apart. The Durango came to stop near the intersection of
Interstate 215 and Highway 74. Four to six police cars were stopped near the Durango.
Haning continued talking on the telephone to Jose, telling him his location.
4 Deputy Gasparini instructed Haning to exit the vehicle with his hands up.
Haning picked up a firearm. After approximately 30 seconds, Haning exited the
Durango and ran toward Highway 74—away from the law enforcement officers.
Haning had a gun in his hand as he ran. Sergeant Dittenhofer removed Guzman from
the Durango, and Gasparini placed Guzman in handcuffs. Inside the Durango,
Gasparini found a semi-automatic pistol and a Glock pistol.
As Guzman was exiting the Durango, a Volkswagen Jetta, being driven by
Rincon, traveled down the left shoulder of the freeway passing the law enforcement
vehicles. Haning stopped running and “jump[ed] into the passenger window of the
Jetta.” Rincon “drove off” in the Jetta. Deputies in patrol cars began chasing the Jetta.
The Jetta that Rincon was driving was stolen.
The Jetta travelled east on Highway 74 and then turned onto Palomar Road.
Deputy Adams followed the Jetta with his patrol car‟s siren and red and blue lights
activated. The Jetta passed through stop signs without stopping. The Jetta travelled
approximately 100 miles per hour along Highway 74, but slowed along Palomar where
the road becomes dirt. Rincon and Haning (defendants) eventually reached the end of
Palomar Road; the road dead-ends into a rocky area with hills and power lines.
At the end of the road, Rincon stopped the Jetta; defendants exited the car and
ran into the hills. Defendants hid behind boulders and shot at the law enforcement
helicopter hovering above them. It appeared one of the defendants had a rifle.
Defendants fired approximately 10 shots at the helicopter; one round struck the
helicopter‟s skid. After shooting at the helicopter, defendants ran to a residential area.
5 Defendants ran onto a property containing trailers and several sheds. Hector
Diaz (Diaz) lived on the property with his extended family. Diaz shared a trailer with
his cousin Pedro, and Pedro‟s wife and children. Diaz was in his bedroom when he
heard gunshots. Diaz looked out the window and saw defendants shooting at a
helicopter. Diaz saw defendants run toward his trailer. Defendants went toward the
area where Diaz‟s family parked their trucks. Defendants moved from the truck area to
the trailer, shot the door of the trailer two times, and entered the trailer. Defendants
went into Pedro‟s bedroom with guns in their hands. Pedro customarily left his truck
keys hanging on a wall inside his bedroom. Defendants were inside the trailer for
approximately two minutes. When defendants left the trailer, Pedro seemed scared and
Pedro‟s wife was crying.
Defendants returned to the truck area and drove away in Pedro‟s truck. Rincon
was in the truck‟s driver‟s seat, while Haning was in the passenger seat. Rincon drove
the truck down the dirt driveway. Sergeant Hoxmeier was standing outside the front
gate, on a group of rocks. Hoxmeier tracked the truck with a rifle equipped with a
flashlight. Haning appeared to be holding a rifle. Hoxmeier shot into the truck‟s cab
five times. Haning was shot in both thighs, and Rincon was shot in his upper right arm.
The truck “rammed through the [property‟s] fence” and then collided with a patrol car.
Law enforcement officers removed defendants from the truck. Two handguns and a
rifle were found inside the truck.
6 Defendants presented evidence related to their methamphetamine consumption,
and an expert opinion concerning methamphetamine induced psychosis and delirium.
Haning‟s blood reflected 457 nanograms of methamphetamine per milliliter of blood.
Dr. Zorick, a psychiatrist, concluded “it would be very normal to see at the very least a
psychotic state, if not a delirious state,” given the level of methamphetamine in
Haning‟s blood. Rincon‟s blood reflected a methamphetamine level of 162 nanograms
per milliliter. Dr. Zorick concluded at 162 nanograms per milliliter “a sensitive
individual could be suffering either from psychosis or a methamphetamine-induced
delirium . . . .”
In rebuttal, the People presented the testimony of Maureen Black, a toxicologist.
Black worked for Bio-Tox Laboratories. In Black‟s work, she found most people‟s
methamphetamine tests have results in the range of 100 to 500 nanograms per milliliter,
which Black described as a “recreational” level. Based upon her training, Black
concluded a person would need a methamphetamine level above 1,000 nanograms per
milliliter to reach a psychotic or delirious state.
Also in rebuttal, Detective Bodmer testified that the morning after the truck
crash, Haning spoke to a deputy and provided his name and date of birth. Haning
appeared “very sharp [and] precise with providing his name, his date of birth, [and] the
city . . . he came from.”
7 DISCUSSION
A. SUBSTANTIAL EVIDENCE
Rincon contends the evidence supporting his burglary conviction (§ 459) does
not meet the substantial evidence standard because there was no proof that Rincon had
the intent to permanently deprive Pedro of his truck keys, which is an element of
larceny. We disagree.
“„“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.] “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” [Citations.]‟” (People v. Castaneda (2011) 51 Cal.4th 1292, 1322.)
A burglary is committed when a person enters a house or inhabited camper “with
intent to commit grand or petit larceny or any felony.” (§ 459.) Every burglary
involving an inhabited house or trailer coach is first degree burglary. (§ 460.) During
closing arguments, in regard to the burglary charge, the prosecutor asserted defendants
entered Pedro and Diaz‟s trailer with the intent to commit theft, which was evinced by
defendants “end[ing] up with the car keys belonging to someone else and with a truck
that belonged to someone else.”
8 “[I]ntent or intention is manifested by the circumstances connected with the
offense.” (§ 29.2, formerly § 21, subd. (a) eff. Jan. 1, 2013.) Theft is the stealing,
taking, or carrying away of another person‟s personal property. (§ 484.) “„California
courts have long held that theft by larceny requires the intent to permanently deprive the
owner of possession of the property.‟ [Citation.] An intent to temporarily deprive the
owner of possession may suffice when the defendant intends „to take the property for so
extended a period as to deprive the owner of a major portion of its value or
enjoyment[.]‟ [Citation.] As [our Supreme Court] noted, taking a diamond ring for two
weeks is one thing; taking fresh strawberries for two weeks is another. [Citation.]”
(People v. MacArthur (2006) 142 Cal.App.4th 275, 280.)
The offense at issue in this case took place on June 12, 2007. The Jetta that
Rincon was driving was reported stolen on March 15, 2007. The Durango that Haning
was driving was reported stolen on May 26, 2007. It can be inferred from this evidence
that defendants tend to retain the cars they have stolen, rather than simply taking them
for brief joyrides and then returning them to the owners.
When defendants entered Diaz‟s property, they went to the area where the trucks
were parked, then entered the trailer with guns, and then returned to the area where the
trucks were parked. Pedro kept his truck keys in the room defendants entered and
defendants were in the room for approximately two minutes before returning to the
trucks and driving away in Pedro‟s truck. It can be inferred from this evidence that
defendants did not know how to start a vehicle‟s engine without a key, because if they
did, then they would not have had a reason to leave the truck area and enter the trailer.
9 The evidence defendants ran to the trucks and then ran inside the trailer for only two
minutes reflects defendants needed a key to start the truck. Thus, a fact finder could
reasonably conclude defendants entered the trailer with the intent of taking the keys for
the truck. Further, as set forth ante, it can reasonably be concluded that defendants did
not customarily return the stolen items they used with any sort of timeliness. Therefore,
there is support for the finding that defendants entered the trailer with the intent to
deprive Pedro of his truck keys permanently or for an extended period of time.
Rincon asserts there is insufficient evidence of an intent to permanently deprive
because (1) there was no evidence the truck keys were in Pedro‟s bedroom when
defendants entered the trailer, (2) there was no showing regarding how defendants
obtained the truck keys, and (3) it was unclear whether defendants actually took the
keys. Rincon further argues that the burglary evidence was insufficient because the jury
failed to reach verdicts on the robbery and carjacking counts. As set forth ante, a
burglary occurs when a person enters a home with the intent to commit a larceny.
(§ 459.) There is no requirement that the larceny be completed in order to find a person
guilty of burglary. Accordingly, the lack of evidence highlighted by Rincon is not
persuasive because it goes to whether the larceny was completed, not whether Rincon
had the intent to commit a larceny when entering the trailer. As explained ante, a trier
of fact could reasonably conclude Rincon entered the trailer with the intent of taking
keys to a truck and permanently depriving the owner of those keys.
Next, Rincon advances the argument that defendants did not enter the trailer to
commit larceny, rather, they entered the trailer to “escape from the police.” Rincon‟s
10 argument is unpersuasive because he is not presenting the evidence in the light most
favorable to the judgment. When conducting a substantial evidence review this court
must look at the evidence in the light most favorable to the judgment. (People v. Hatch
(2000) 22 Cal.4th 260, 272.) As set forth ante, when looking at the evidence in this
light, there is reasonable, credible, and solid evidence from which a trier of fact could
conclude Rincon entered the trailer with the intent of permanently taking truck keys.
Thus, we find Rincon‟s argument to be unpersuasive.
B. SECTION 654
1. LAW
“„[S]ection 654 precludes multiple punishment for a single act or omission, or an
indivisible course of conduct.‟ [Citation.] „“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 were incident to
one objective, the defendant may be punished for any one of such offenses not for more
than one.” [Citation.]‟ [Citation.]” (People v. Lopez (2011) 198 Cal.App.4th 698,
717.) “Under section 654, a course of conduct divisible in time, though directed to one
objective, may give rise to multiple convictions and multiple punishment „where the
offenses are temporally separated in such a way as to afford the defendant opportunity
to reflect and renew his or her intent before committing the next one, thereby
aggravating the violation of public security or policy already undertaken.‟ [Citation.]”
(Id. at pp. 717-718.)
11 We review the court‟s explicit or implicit factual resolutions concerning the
application of section 654 for substantial evidence. (People v. McCoy (2012) 208
Cal.App.4th 1333, 1338.) “[W]e consider the evidence in the light most favorable to
respondent and presume the existence of every fact the trier could reasonably deduce
from the evidence. [Citation.]” (People v. Martin (2005) 133 Cal.App.4th 776, 781.)
2. RINCON
a) Procedural History
At Rincon‟s sentencing hearing, the trial court addressed the applicability of
section 654 and expressly concluded the statute did not apply. The trial court gave the
following explanation for its conclusion: “It is clear from the evidence that the
defendant and his co-defendant entered the home of [Diaz and Pedro] as alleged in
Count 4 [burglary] with the intent to not only evade the police, but to obtain a means of
escape by obtaining the keys to a vehicle and taking the car through intimidation and
fear. This is a separate and distinct criminal objective from the other crimes.
“Regarding Count 8 [driving dangerously while fleeing an officer], the
defendants were clearly attempting to evade officers and flee apprehension by any
means possible. [¶] Regarding Count 9 [exhibiting a firearm to prevent arrest], the
defendant and his co-defendant, by brandishing a firearm[] attempted to resist arrest,
caused the police to retreat or refrain from further acts in arresting the defendant. And it
should be noted that in many of these counts, the victims were different as well. As an
example, Count 4 involved the family of [Diaz and Pedro], while Counts 8 and 9
involved the police officers and different ones at different times.
12 “So as a result, the Court‟s intention, once again, is to sentence the defendant to
the total aggregate term of 13 years based upon the calculations as previously noted.”
The principal term in Rincon‟s sentence was firing at an occupied aircraft (Count 6).
(§ 246.)
b) Analysis
(1) Counts 4 and 6 through 9
Rincon contends his sentences for burglary (Count 4), shooting at an occupied
aircraft (Count 6), shooting at an occupied dwelling (Count 7), driving dangerously
while fleeing an officer (Count 8), and exhibiting a firearm to prevent arrest (Count 9)
“were committed during a continuous course of conduct with the single objective of
escape” and therefore the trial court erred by not staying Rincon‟s sentences on Counts
4, 7, 8, and 9. We disagree.
We begin with Count 4—the burglary of the trailer. Count 6, is the principal
count and involves shooting at the helicopter. Rincon shot at the helicopter and then ran
toward Diaz‟s residence. Defendants jumped over Diaz‟s fence, and then proceeded to
the area where Diaz‟s family‟s trucks were parked. After those tasks, defendants
entered the trailer and completed the burglary comprising Count 4. The evidence
supports a finding that the burglary was separated from the shooting at the helicopter by
both physical space, in that it occurred in a different location; and temporal space, in
that time to reflect elapsed between the two incidents. In other words, the shooting at
the helicopter (Count 6) and the burglary (Count 4) were divisible acts because they
were temporally and physically separated in such a way as to afford Rincon an
13 opportunity to reflect and renew his intent before committing the burglary.
Accordingly, we conclude the trial court did not err by not applying section 654 to
Count 4.
Next, we address Count 7—shooting at an occupied dwelling. The record
reflects that Diaz watched defendant through a window in his bedroom. Diaz heard
glass breaking around the same time defendants entered the trailer. Diaz identified the
glass as a window. Given that the evidence reflects defendants could have entered the
trailer via a broken window, the evidence supports a finding that shooting into the trailer
was done for the purpose of scaring the residents—to make them frightened and
therefore more likely to comply with commands. The shooting into the house was not
simply a means of entry, rather, it was a show of force completed for the purpose of
gaining compliance from the inhabitants. Accordingly, the trial court did not err by not
applying section 654 to Count 7 because there was an independent purpose or intent for
committing the crime.
Third, we consider defendant‟s argument related to Count 8—driving
dangerously while fleeing an officer. Count 8 was comprised of Rincon‟s act of driving
away from the Interstate to the dead-end at Palomar Road. Rincon‟s act of driving was
the beginning of his involvement in these crimes. After stopping the car at the end of
Palomar Road, Rincon ran into the hills and hid behind boulders before firing at the
helicopter. Once again, the driving is separated from the other crimes by a physical
space and temporal space. After stopping the car, Rincon had an opportunity to reflect
on his actions. However, it appears Rincon renewed his intent by choosing to run into
14 the hills and find a hiding place behind a boulder. Thus, the record supports a finding
that section 654 does not apply to Count 8 because driving was an act divisible in time
from the other offenses.
Fourth, we address Count 9—exhibiting a firearm to prevent arrest. Count 9
consisted of Rincon exiting the Jetta at the end of Palomar Road, running behind the
rocks, and exhibiting a firearm prior to shooting at the helicopter. Rincon was observed
by deputies running into the hills and hiding behind rocks. While Rincon was running
into the hills, Adams positioned himself behind his car door with his gun drawn.
Sergeant Brown was also present at the end of Palomar Road, watching Rincon run into
the hills. Deputies were overhead in the helicopter, also watching Rincon run into the
hills and hide behind rocks.
Rincon stopped the car at the end of Palomar Road. At that point his dangerous
driving came to an end. Rincon could have stopped his criminal activity, but he decided
to continue. Rincon ran into the hills with a firearm. Rincon could have stopped at that
point as well, but he continued on. Rincon shot at the helicopter. The point here is that
these crimes did not take place simultaneously. The crimes were a string of incidents
that could have ended at any point, but Rincon continually chose to move forward with
another crime—to a new location with a renewed purpose. Given this evidence, the
record supports a finding that section 654 does not apply to Count 9.
Rincon contends his sentence for Count 9 must be stayed because he was
exhibiting the firearm (Count 9) at the same time he was shooting at the helicopter
15 (Count 6). Therefore, Rincon asserts the criminal acts were simultaneous and
indivisible. A transcript of law enforcement audio traffic reflects the following:
“Dispatcher: Approaching Palomar.
“Unknown: He‟s turned north on Palomar.
“Dispatcher: Northbound Palomar.
“Marlatt: Okay, northbound Palomar. We‟re gonna stick with the passenger
when he bails and uh you guys deal with the driver later.
“Unknown: 139, there‟s two other firearms inside the vehicle. The suspect is in
possession of a handgun.
“Dispatcher: Copy, two other firearms inside the vehicle and the suspect does
have position to grab them.
“Marlatt: Star 9-1 copy. If we have a foot bail, we‟re sticking with the
passenger. And we‟re coming up on Palomar, coming up to Watson now, on the dirt
portion now.”
The audio traffic goes on to describe Rincon running into the hills and then shots
being fired. This evidence supports a conclusion that the firearms were not displayed
solely at the moment shots were being fired at the helicopter. Rather, firearms were
displayed prior to Rincon shooting at the helicopter. Accordingly, it appears the
offenses were not simultaneous—exhibiting the firearm took place before the shooting.
Next, Rincon argues he shot at an inhabited dwelling (Count 7) for the purpose
of burglarizing the home (Count 4), and therefore, both crimes were committed for “the
sole objective” of escaping from law enforcement officers. Rincon‟s argument is not
16 persuasive because, as set forth ante, the evidence supports the finding that shooting the
trailer was not simply a means of entry, e.g., there was a broken window that could have
possibly served as an entry point. Rather, the shooting was a show of force completed
for the purpose of gaining compliance from the inhabitants.
3. HANING
During Haning‟s sentencing hearing, the trial court addressed the applicability of
section 654. The trial court said, “I firmly believe that Penal Code section 654 does not
apply to this case. [¶] Here the defendant did have multiple criminal objectives for
each of the crimes for which he is convicted. I‟m going to go through those right now.
It is clear from the evidence that the defendant and his co-defendant entered the home of
[Diaz and Pedro] as alleged in Count 4 with the intent to not only evade the police, but
to obtain a means of escape by obtaining the keys to a vehicle and take the car through
intimidation and fear. This was a separate and distinct criminal objective from the other
crimes.
“Regarding Count No. 8, the defendants were clearly attempting to evade
officers and to flee apprehension by any means possible. [¶] Regarding Count No. 9,
the defendant and his co-defendant, by brandishing a firearm, attempted to resist arrest,
caused the police to retreat or refrain from further acts in arresting the defendant. [¶] It
should also be noted that in many of these counts, the victims were different as well.
Count 4 involved the family of [Diaz and Pedro] while Counts 8 and 9 involved
different police officers at different times and different locations.” The trial court
17 designated the sentence for Count 6—shooting at an occupied aircraft—as the principal
term.
(1) Counts 4 and 7
Haning contends Counts 4 and 7—burglary and shooting at the trailer—form an
indivisible course of conduct with a single intent because he shot at the trailer to gain
entry to it so as to escape from law enforcement. We disagree.
If “„a defendant had several independent criminal objectives, he may be punished
for each crime committed in pursuit of each objective, even though the crimes shared
common acts or were parts of an otherwise indivisible course of conduct. [Citation.]‟”
(People v. Phong Bui (2011) 192 Cal.App.4th 1002, 1015.)
Haning did not enter Diaz‟s home to hide from deputies. Haning entered the
home to commit larceny. Haning had an independent intent in burglarizing the home—
to find a means to start one of the vehicles on the property. When Haning shot at the
door, he displayed force. Haning had been running, he could have kicked the door or
knocked, but he shot at it. A window broke before defendants entered the trailer,
therefore, they possibly could have entered the trailer through that broken widow, but
they shot at the door. The trial court could reasonably conclude from this evidence that
Haning shot at the door to instill fear in the occupants and gain their compliance. Thus,
our review of the record reveals substantial evidence supports the conclusion that
section 654 did not apply to Counts 4 and 7 because Haning had independent objectives
at the time he committed the offenses.
18 Haning argues that he “simply” “shot at the door to gain access to the home in an
attempt to steal the truck keys inside the home,” which was all part of his intention to
evade law enforcement. Haning‟s sentence supports our conclusion. If Haning‟s only
intention was to evade law enforcement then he would have hidden inside the trailer
upon gaining entry. However, Haning had a second, independent intention, which was
to obtain keys to start a vehicle. Accordingly, we find Haning‟s argument to be
unpersuasive.
(2) Counts 6 and 9
Haning contends Counts 6 and 9—shooting at an occupied aircraft and exhibiting
a firearm—form an indivisible course of conduct with a single objective of fleeing from
arrest. We disagree.
The audio traffic evidence set forth ante, reflects, “The suspect is in possession
of a handgun.” It can be inferred that “the suspect” is Haning, since he was the original
target of the pursuit. Deputies then observed defendants run from the car into the hills.
Defendants began firing shots after hiding behind rocks. This evidence supports a
finding that the two crimes did not occur simultaneously. Rather, Haning exhibited the
firearm, found a place to hide, and then renewed his objective before shooting at the
helicopter. The divisibility of the crimes is supported by the record and therefore we
conclude the trial court did not err.
19 DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
KING Acting P. J.
CODRINGTON J.