People v. Surdi

35 Cal. App. 4th 685, 41 Cal. Rptr. 2d 314, 95 Cal. Daily Op. Serv. 4088, 1995 Cal. App. LEXIS 502

• Court: California Court of Appeal
• Decided: May 31, 1995
• Docket: G015755
• Status: Published

Opinions

Opinion

SONENSHINE, Acting P. J .

Kenneth Luis Surdi was convicted of aggravated mayhem (Pen. Code,² § 205), torture (§ 206), kidnapping (§ 207, subd. (a)), attempted murder (§§ 664, 187), and conspiracy to commit second degree murder (§§ 182, subd. (a)(1), 187). He was sentenced to consecutive terms of 15 years to life and life on the conspiracy and mayhem counts, plus 10 years and 8 months for the attempted murder and kidnapping counts.³ On appeal, he contends the court erred in (1) refusing his proffered duress instructions, (2) failing to instruct sua sponte on the defense of necessity, (3) failing to stay sentence on the attempted murder and kidnapping counts, and (4) imposing the upper term on the attempted murder count. We agree the attempted murder count must be stayed and modify the judgment accordingly. In all other respects, we affirm.

I

Surdi associated with a group known as the Family Mob (Mob). One evening, Surdi and other Mob members were partying at Victor Lomeli’s house when Mob rival Ruben Sanchez was spotted walking down the street. Sanchez was confronted by Mob members and told to choose one of them to fight. He declined but nonetheless was hit in the face and beaten.

The Mob members returned to Lomeli’s house and told him what happened. Lomeli, who had been drinking and was known to be violent when drunk, suggested the Mob should “go kick [Sanchez’s] ass some more.” They agreed, and although Surdi initially indicated he wanted to stay behind, he joined the others after Lomeli told him to.

The Mob beat Sanchez again and hauled him inside a van where Lomeli told Surdi to hold Sanchez down. Surdi was scared but strapped a seat belt around Sanchez’s neck so Lomeli could continue stabbing Sanchez with a screwdriver. Eventually, they took Sanchez to a riverbed, where Surdi helped drag Sanchez to a dirt area.

When they realized Sanchez was still alive, Lomeli told Surdi to break his neck. Surdi said he did not know how, so Lomeli gave the screwdriver to Hector Alvarez, who stabbed Sanchez in the heart. Brandon Ortega then took a turn at stabbing, while Surdi kicked Sanchez. After the Mob abandoned Sanchez in a ravine, Lomeli admonished the group not to implicate each other and said they would have to “take care of’ anyone who ratted.

Sanchez survived somehow but is permanently disabled and does not remember the incident. Surdi told police the Mob intended only to beat Sanchez, not kill him. At trial, Surdi maintained he acted out of fear of Lomeli. He said he did not want to get in the van, but Lomeli, who was holding a screwdriver, grabbed his arm and told him he could go home later.

II, III

*

IV

Surdi next submits separate punishments for attempted murder and kidnapping are prohibited under section 654.⁵ The Attorney General agrees the attempted murder count must be stayed. (See People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616 [233 Cal.Rptr. 645] [defendant cannot be punished for both conspiracy and target offense of conspiracy].) That leaves only the kidnapping count for discussion.⁶

Surdi avers the kidnapping was for the sole purpose of beating Sanchez, which encompassed both the mayhem and torture counts. And since the court stayed sentence on the torture count, it necessarily should have stayed the mayhem count because the two crimes were incident to a single object and based on the same acts. However, for reasons explained in People v. Trotter (1992) 7 Cal.App.4th 363 [8 Cal.Rptr.2d 648], we believe Surdi harbored multiple intents thereby rendering section 654 inapplicable. (See People v. Ratcliffe (1981) 124 Cal.App.3d 808, 817-819 [177 Cal.Rptr. 627] [kidnapping evincing multiple intents permits multiple punishment].)

In Trotter, the defendant was pursued by police after commandeering a taxi at gunpoint. During the freeway chase, the defendant fired three shots at the squad car behind him, the second shot coming about a minute after the first, and the third moments after the second. The issue we faced was whether he could be separately punished for each of the three assaults.

We started our analysis by examining People v. Harrison (1989) 48 Cal.3d 321 [256 Cal.Rptr. 401, 768 P.2d 1078], in which the Supreme Court found the defendant harbored separate intents to obtain gratification with each sexual penetration he committed. Harrison determined criminal acts committed pursuant to independent multiple objectives may be punished separately even if they share common acts or are part of an indivisible course of conduct. Finding “no reason to limit Harrison’s reasoning to sex crimes,” we ruled, “. . . 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. ‘[Defendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.’ [Citation.]” (People v. Trotter, supra, 7 Cal.App.4th at pp. 367-368.) Because each shot increased the defendant’s culpability and evinced a separate intent to do violence against the pursuing officer, we determined the defendant could be separately punished for each assault. (Id. at p. 368.)⁷

Like Trotter, the offenses presently under review did not arise from a single volitional act. Rather, they were separated by considerable periods of time during which reflection was possible. Lomeli’s initial stabbing attack was interrupted in the van to permit Surdi to strap down Sanchez with a seat belt. There was also a break in the action when the group stopped at a school and discussed whether to abandon Sanchez there. After ample time to consider their actions, the group resumed the attack while taking Sanchez to the riverbed, where Mob members took turns stabbing Sanchez until they thought he was dead.

The fact Surdi assisted multiple stabbing episodes, each of which evinced a separate intent to do violence, precludes application of section 654 with respect to the offenses encompassed within the episodes. Therefore, Surdi was properly punished for committing kidnapping and mayhem, despite the court’s decision to stay the torture count.

The judgment is modified to stay sentence for the attempted murder (count 5) and as modified is affirmed in its entirety.

Crosby, J., concurred.

2 All statutory references are to the Penal Code.

3 The torture count was stayed pursuant to section 654.

See footnote 1, ante, page 685.

5 That section provides in pertinent part as follows: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one[.]”

6 Staying the attempted murder count moots Surdi’s claims regarding imposition of the upper term on that count.

7 Our concurring colleague criticizes Trotter as an improper extension of Harrison to nonsex offenses. However, in People v. Latimer (1993) 5 Cal.4th 1203 [23 Cal.Rptr.2d 144, 858 P.2d 611], the Supreme Court did not distinguish between sex and nonsex cases in its review of section 654. Instead, the court described Trotter and Harrison as decisions which “have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment.” (5 Cal.4th at pp. 1211-1212, original italics.) In addition, the court expressly approved both decisions. (Id. at p. 1216.) Thus, our concurring colleague’s narrow reading of Harrison and contempt for Trotter are not shared by the Supreme Court. (See generally, People v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1658 [35 Cal.Rptr.2d 478] [citing Harrison and Trotter in nonsex case].)