Filed 8/25/14 P. v. Colondres 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NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Nevada)
----
THE PEOPLE, C073793
Plaintiff and Respondent, (Super. Ct. No. SF11-299)
v.
DANIEL LUCAS COLONDRES,
Defendant and Appellant.
Defendant Daniel Lucas Colondres challenges his sentence and conviction
following a jury trial in which he was found guilty of attempted murder, attempted
manslaughter, burglary, multiple counts of stalking, criminal threats, dissuading a
witness, interfering with a communication device, and vandalism. Specifically,
defendant contends (1) we should strike the enhancement for personal use of a deadly and
dangerous weapon on count IV (criminal threats) because the enhancement was not
alleged or instructed on that count; (2) there is insufficient evidence the attempted murder
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was willful, deliberate or premeditated; and (3) defendant’s sentence on count VIII
(interference with communication device) should be stayed because it was committed as
part of a single course of conduct with the same objective as count VII (dissuading a
witness). We agree execution of defendant’s sentence on count VIII should be stayed but
otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant first met Shanti Reynolds when he was a high school student
participating in a program at the hospital where Reynolds worked as a nurse. When his
grandfather died, Reynolds invited defendant to live with her in one of her spare
bedrooms, which he did for several months. Defendant moved out of Reynolds’s house
in early 2006 after they had a disagreement about his attempt to kiss her. Reynolds did
not hear from defendant again until late 2010, when he asked if he could come live with
her again because he was having a difficult time. She allowed him to move back in for
two months so he could find a job and a place to live. The arrangement worked fine in
the beginning, but then defendant became involved with Reynolds’s friend and neighbor,
Kendra Bishop.1
Reynolds originally sent defendant to Kendra’s house to do some fence work, but
Reynolds began to notice that defendant was sneaking out late at night. She eventually
learned defendant and Kendra were having an extramarital affair and Reynolds fought
with defendant and Kendra about it. At that point, Reynolds dropped defendant’s
belongings at Kendra’s house with the intent defendant would no longer live with her and
she asked him to return the key to her house.
1 Multiple witnesses share the same surnames in this case. For clarity and convenience,
we refer to them by their first names. We intend no disrespect.
2
However, throughout early 2011, defendant continued to enter Reynolds’s house on at
least five separate occasions; she believed he was entering through a dog door. In March
2011, he also took her car from her closed garage without permission. After returning the
car, he trespassed onto Reynolds property and entered her locked house without
permission while she was present and proceeded to yell at her. She attempted to call 911
but defendant took the phone from her and refused to let her use it. Reynolds
unsuccessfully attempted to taze defendant. Reynolds eventually pressed the panic
button on her alarm system, and defendant threatened that his gang friends were outside
and would shoot her or anyone coming to the house, including the police. Defendant fled
before law enforcement arrived.
In April 2011, Reynolds began the process of obtaining a restraining order against
defendant, and the court issued that order in May 2011. John Bishop (Kendra’s husband)
served the restraining order on defendant. Reynolds was spurred to initiate the process
after an incident where defendant stole her garden lights and broke into her house while
she was present, wearing a mask, hat, and dark-colored outfit. When she informed him
she had called the police, defendant asked Reynolds to open the door for him so he would
not leave any fingerprints. When she refused, he pulled his sleeve over his hand and used
it to open the door. When law enforcement arrived, he was gone.
In early May 2011, John came to Reynolds’s house to speak with her. Shortly
thereafter, defendant again appeared in her house; this time he wore a black mask, gloves,
and a camouflage jacket, and he carried a hammer and a screwdriver. Defendant said he
wanted to speak with Reynolds and to fight John. When John refused, defendant left and
Reynolds called the police. When officers arrived, they found that two tires on John’s
truck had been punctured and were flat.
Then, in July 2011, Reynolds received a phone call that defendant was making
calls from her residence. She called a neighbor, Jeff Love, who confirmed defendant was
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in her house. Officers were dispatched and contacted defendant in Kendra’s back yard.
Defendant was aware of the restraining order but had gone to Reynolds’s house to wait
for her until she came from work regardless.
On August 19, 2011, Kendra picked defendant up from work and brought him to
her house. They had dinner and both began drinking. Kendra went to bed and awoke to
defendant kneeling next to her bed with a sewing box in his hand. He began swearing at
her and punched the light above her bed. He stormed out and punched holes in the
hallway walls, closets, and cabinets. Before he left, defendant told her he thought her
husband John was at Reynolds’s house and that he was going to go over there and kill
him. Kendra tried to explain to him that John was not at Reynolds’s house and assumed
he was not being serious, but was drunk. Defendant acknowledged he knew John was
not at Reynolds’s house that night. Defendant took two knives from Kendra’s kitchen
drawers before leaving.
Shortly thereafter, Reynolds was awakened by her dog running across her bed.
She looked over and saw a shadow leaning over her paramour, Taylor George, who was
asleep in the bed next to her. Reynolds recognized the figure as defendant, who was
wearing a black hat, black mask, black jacket, black gloves, and black pants. Defendant
held a knife in his hand, which was raised over his head. Reynolds ran across the bed and
began pushing defendant, who started punching George in the head. Reynolds turned on
the light and recognized the knife in defendant’s hand as one from the Bishop residence.
Defendant attacked them both and said “[w]e’re all going to die tonight.”
In the fracas, Reynolds was cut by holding the serrated edge of the knife in her
hand to keep defendant from stabbing her, and was ultimately stabbed in the hand, knee,
and foot. Defendant stabbed George in the chest and back, and George also had
defensive wounds on his hand from holding the blade of the knife. Reynolds screamed
for help, and a few minutes later her neighbor, Pamela Love, came into the room and
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shouted at defendant to leave. But defendant continued to attack George with the knife.
Jeff came seconds later wielding a golf club. Jeff hit the knife out of defendant’s hand
using the golf club, and when defendant continued to attack George and Reynolds, Jeff
hit defendant on the side of the head with the golf club, twice.
Defendant fled from Reynolds’s house leaving behind the bloodied knives. Law
enforcement located him a few hours later, asleep on the floor of Kendra’s laundry room,
smelling of alcohol. When his blood was tested at the hospital approximately an hour
after he was taken into custody, defendant’s blood-alcohol level was 0.24 percent.
Defendant was charged with the willful, deliberate and premeditated attempted
murders of George and Reynolds (Pen. Code, §§ 187, subd. (a), 664, subd. (a)—counts I
& II);2 residential burglary (§ 459—count III) in violation of section 462, subdivision (a);
criminal threats (§ 422—count IV); stalking (§ 646.9, subd. (a)—counts V & VI);
dissuading a witness by force or threat (§ 136.1, subd. (c)(1)—count VII); interference
with a wireless communication device (§ 591.5—count VIII); vandalism (§ 594, subd.
(a)— count IX); and disobeying a domestic relations court order (§ 273.6, subd. (a)—
count X).3 Defendant was also alleged to have personally inflicted great bodily injury
(§ 12022.7, subd. (a)) in committing counts I and II; and to have personally used a deadly
and dangerous weapon (§ 12022, subd. (b)(1) (hereafter section 12022(b)(1)) in
committing counts I through III. It was further alleged that counts I through IV are
serious felonies (§ 1192.7, subd. (c)) and counts I through III are violent felonies
(§ 667.5, subd. (c)). The information also alleged defendant was not eligible for
probation on counts I through IV because of his prior felony convictions. (§ 1203, subd.
(e)(4).) Defendant pleaded not guilty and denied all enhancement allegations.
2 Undesignated statutory references are to the Penal Code.
3 The People ultimately dismissed count X.
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A jury found defendant guilty of attempted murder in count I, and found true the
special allegations of deliberation and premeditation and use of a deadly weapon as to
that count. On count II, the jury found defendant guilty of the lesser included offense of
attempted voluntary manslaughter, and, as to that count, found true only the special
allegation of use of a deadly weapon. The jury also found defendant guilty of first degree
burglary as charged in count III, and found true the special allegations that a person was
present and defendant used a deadly weapon as to that count. On count IV, the jury
found defendant guilty of a criminal threat and found true that defendant used a deadly
weapon in issuing that threat. The jury also found defendant guilty of two counts of
stalking, witness dissuasion, tampering with a telephone, and vandalism (counts V
through IX).
The court sentenced defendant to an aggregate determinate term of 92 months and
a consecutive indeterminate term of 96 months to life, imposed various fines and fees,
ordered defendant to pay restitution to the victims, and awarded defendant 672 days of
presentencing credits (585 actual and 87 conduct days).
DISCUSSION
I. Section 12022(b)(1) Enhancement
Defendant claims the trial court erred in imposing a section 12022(b)(1)
enhancement on count IV (criminal threats) because it was not alleged in the information.
The People argue defendant forfeited his objection by not raising it in the trial court.
Generally, the failure to raise an issue in the trial court precludes raising it on appeal.
(People v. Maury (2003) 30 Cal.4th 342, 427; People v. Ferrel (1972) 25 Cal.App.3d
970, 976.) Even assuming the issue involves unauthorized sentencing error, which may
be raised on appeal (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994)
9 Cal.4th 331, 354), the contention has no merit.
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A person generally cannot be convicted of an enhancement not charged in the
information. (People v. Moore (1974) 11 Cal.3d 790, 792; People v. Ford (1964)
60 Cal.2d 772, 794; In re Hess (1955) 45 Cal.2d 171, 174-175.) However, “where the
information puts the defendant on notice that a sentence enhancement will be sought, and
further notifies him of the facts supporting the alleged enhancement, modification of the
judgment for a misstatement of the underlying enhancement statute is required only
where the defendant has been misled to his prejudice.” (People v. Neal (1984)
159 Cal.App.3d 69, 73.)
We find People v. Riva (2003) 112 Cal.App.4th 981 (Riva) instructive on this
issue. In Riva, the information alleged a section 12022.53, subdivision (d) enhancement
with respect to two counts that charged the defendant with attempted voluntary
manslaughter and assault with a firearm, but not with respect to a count of shooting at an
occupied vehicle. The verdict forms asked the jury to determine the truth of the
enhancement on all three counts. The defendant did not object and the jury found the
allegation true for all counts. The trial court imposed the enhancement even as to the
count for which it was not alleged. (Riva, at pp. 1000-1001.)
The appellate court affirmed, even though section 12022.53, subdivision (j)
requires that for the enhancement to apply it must “be alleged in the accusatory
pleading.” The court’s interpretation of that statute was that it “only requires the facts
necessary to sustain the enhancement be alleged in the information; it does not say where
in the information those facts must be alleged or that they must be alleged in connection
with a particular count in order to apply to that count. In [Riva] the prosecution complied
with the literal language of the statute by alleging the enhancement in the information as
to the charges of attempted voluntary manslaughter and assault.” (Riva, supra,
112 Cal.App.4th at p. 1001, fn. omitted.)
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The appellate court found that by pleading the enhancement in other counts, the
prosecution put the defendant on notice he was being charged with the enhancement.
Nor did the failure to plead the enhancement abrogate the defendant’s ability to challenge
the factual basis of the enhancement; he was on notice from the allegation of the
enhancement in other counts that he had to defend against the allegation that he
intentionally fired a firearm and proximately caused great bodily injury. (Riva, supra,
112 Cal.App.4th at pp. 1002-1003.)
Here, defendant was placed on notice that he would have to defend against the
allegation that he used a knife in the commission of his August 19-20, 2011 crimes
because the enhancement was alleged in counts I, II and III of the information. Also, the
evidence showed defendant used a deadly weapon, a knife, in issuing the criminal threat
to Reynolds and George, “We’re all going to die tonight.” Neither defendant nor the
record suggests defendant would have defended the case any differently if the
enhancements had been alleged as to all four counts. Further, there was no objection to
the court’s giving the verdict forms to the jury for the section 12022(b)(1) enhancement
as to count IV, and the jury found the enhancement true as to that count. Thus, the court
did not err in imposing a sentence on the enhancement as to count IV.
II. Evidence of Attempted Murder of George
Defendant contends “the evidence was insufficient to support a finding that the
attempted murder of Taylor George was done with premeditation and deliberation” as
required by sections 189 and 664, subdivision (a). He does not dispute the attempted
murder verdict but defendant claims there is insufficient evidence of motive to kill
George (as opposed to John), and that the manner of the attack does not indicate the
requisite degree of premeditation. While we accept defendant’s contention that his
expressed desire and motive to kill John cannot be used as evidence of a motive to kill
George (People v. Bland (2002) 28 Cal.4th 313, 327-328; People v. Stone (2009)
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46 Cal.4th 131, 141), we still find substantial evidence to support the jury’s finding that
defendant’s attempted murder of George was willful, deliberate, and premeditated.
“ ‘To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979)
443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) We accord due deference to the
verdict and will not substitute our conclusions for those of the trier of fact. (People v.
Koontz (2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed for insufficient
evidence unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].” (People v. Redmond (1969) 71 Cal.2d
745, 755.)
“Deliberate” means “ ‘ “formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against the proposed course of
action.” ’ ” (People v. Memro (1995) 11 Cal.4th 786, 862-863.) “Premeditated” means
“ ‘ “considered beforehand.” ’ ” (Id. at p. 863.) “Premeditation and deliberation can
occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each
other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ”
(Ibid.) In determining whether the evidence supports an inference that the attempted
murder occurred as a result of preexisting reflection, rather than unconsidered or rash
impulse, appellate courts consider, among other things, evidence of the manner of killing,
motive, and planning activity. (People v. Bolin (1998) 18 Cal.4th 297, 331-332.) And
we consider the evidence in the light most favorable to the judgment. (Id. at p. 331.)
Here, substantial evidence supports the jury’s finding that defendant’s attack of
George was willful, deliberate, and premeditated. Defendant dressed in black, put on
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gloves, and donned a mask to hide his identity before going to Reynolds’s house in the
middle of the night. (See People v. Woods (1992) 8 Cal.App.4th 1570, 1595 [donning a
mask was evidence of planning, showing murder was premeditated and deliberate].) He
armed himself with two knives from the Bishops’ home immediately before going to
Reynolds’s home and attacking George. (People v. Morris (1988) 46 Cal.3d 1, 23
[“Defendant’s possession of a weapon in advance of the killing” showed planning],
disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 544, fn. 5];
People v. Millwee (1998) 18 Cal.4th 96, 134-135 [“ample opportunity . . . to consider
whether and how to use lethal force” showed premeditation].) And George was asleep
and posed no threat to defendant when defendant stood over him holding a knife and
began hitting him in the head. (People v. Lunafelix (1985) 168 Cal.App.3d 97, 102 [“The
utter lack of provocation by the victim is a strong factor supporting the conclusion that
appellant’s attack was deliberately and reflectively conceived in advance.”].)
Additionally, defendant knew John was not at Reynolds’s residence and
recognized that the man in bed with Reynolds was not John, but he proceeded with his
attack anyway. (People v. Stone, supra, 46 Cal.4th at p. 140 [“a person who intends to
kill can be guilty of attempted murder even if the person has no specific target in mind”].)
Further, while it is entirely probable defendant was motivated by jealousy of Reynolds’s
amorous relationship given his escalating pattern of stalking Reynolds, the lack of a clear
motive to kill George is not fatal to our analysis. (See People v. Anderson (1968)
70 Cal.2d 15, 26-27 [premeditation and deliberation found on strong showing of
planning, or on evidence of motive combined with lesser showing of planning or manner
of killing indicating “ ‘preconceived design’ ” to kill].)
Based on the foregoing, we find there was sufficient evidence for the jury to find
defendant committed the attempted murder of George willfully, deliberately, and with
premeditation.
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III. Section 654 Stay of Count VIII
Defendant contends, and the Attorney General agrees, the court should have
stayed execution of defendant’s sentence on count VIII (interference with a
communication device) pursuant to section 654. We concur and modify the judgment.
Section 654 provides, in pertinent part, “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.” (§ 654, subd. (a).) Thus, the
statute bars multiple punishments for multiple acts where those acts comprise an
indivisible course of conduct incidental to a single criminal objective and intent. (People
v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11,
19.) “Whether a course of criminal conduct is divisible . . . depends on the intent and
objective of the actor.” (People v. Beamon (1973) 8 Cal.3d 625, 637, italics omitted.)
“[I]f all of the offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single intent and
therefore may be punished only once.” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Here, defendant prevented Reynolds from reporting his unlawful presence in her
home by taking and breaking her telephone. Both acts were committed simultaneously,
in a single act, with a single objective. Accordingly, we stay execution of defendant’s
sentence on count VIII.
DISPOSITION
The judgment is modified to stay execution of defendant’s sentence on count VIII;
in all other respects, the judgment is affirmed. We direct the trial court to prepare an
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amended abstract of judgment and to forward a certified copy of the abstract to the
Department of Corrections and Rehabilitation.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
HOCH , J.
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