People v. Lopez CA4/3

Filed 2/1/21 P. v. Lopez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE

THE PEOPLE,

Plaintiff and Respondent, G058407

v. (Super. Ct. No. 17CF2106)

RICHARD LOPEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Megan
Wagner, Judge. Affirmed as modified. Remanded for resentencing.
David P. Lampkin, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Paige B. Hazard and
Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
 A jury convicted defendant Richard Lopez of torture, aggravated mayhem,
domestic violence-related infliction of traumatic corporal injury, criminal threats, and
arson of personal property. It further found defendant personally inflicted great bodily
injury in committing the first three offenses. The trial court separately found defendant
had served a prior prison term for a domestic violence conviction.
Defendant was sentenced to a “total aggregate [of] seven years plus seven
to life.” Specifically, his sentence comprised: an indeterminate term of seven years to
life on the torture, plus a low term consecutive three years for the great bodily injury
enhancement; an upper term three-year consecutive determinate sentence for the criminal
threats conviction; a one-year consecutive sentence for the prison prior conviction
enhancement; and a two-year concurrent sentence for the arson. Sentences on the
aggravated mayhem and domestic violence convictions were imposed and stayed
pursuant to Penal Code section 654 (undesignated statutory references are to the Penal
Code).
On appeal, defendant contends the trial court made two sentencing errors:
(1) The court improperly imposed a concurrent term for the arson, arguing it too should
have been stayed under section 654; and (2) The one-year prison prior enhancement was
erroneous because defendant’s prior conviction for domestic violence no longer qualifies
for that enhancement. We reject the first claim, but agree with the second. The sentence
is therefore vacated, the prison prior is stricken, and the matter is remanded for
resentencing.
FACTS
Because defendant does not challenge his convictions or their underlying
factual particulars, we need not recite them in extensive detail. Additional facts relevant
to the specific issues he raises on appeal are found in the discussion below.
Defendant had a fractious and abusive relationship with his victim M.G.
Defendant regularly choked M.G., pulled her hair, and threatened her with a knife. Once,

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when M.G. had her infant daughter with her at the motel room where she was living,
defendant threatened the baby by holding a screwdriver to the child’s neck.
One night, after a midnight argument with defendant, M.G. went to her
motel room, fell asleep and, in “the early morning hours,” was awakened by defendant
coming into the room. He told her he did not want to hurt her, but he had to. He started
to choke her and told her he was going to shut her up forever. He released her, but then
began choking her again, and repeated this pattern several times.
Defendant then took M.G.’s and her baby’s clothing from the closet and
threw them on the floor. He proceeded to pour a container of acetone over M.G.’s head,
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her body, the clothes on the floor, the curtains, and the bed. He pulled out a lighter, lit
the pants M.G. was wearing, and she “started to burn.” The flames spread to her blouse
and her hair, and then to the bed, the clothing on the floor, and the curtains. M.G. said
she felt like she was dying.
Defendant tried to put out the fire, and eventually pushed M.G. out of the
motel room. They went to M.G.’s car and defendant drove them to a Walmart to get
something to treat M.G.’s burns. Defendant threatened to kill M.G. if she did not stop
crying or if she ever reported what he had done. Along the way, defendant forced M.G.
to throw the empty acetone can out the window and, when she hesitated, he grabbed her
by her burned shoulder and said if she ever told anyone what had happened, he would
shut her up forever. She said this made her feel like “death.”
In the Walmart parking lot, defendant asked M.G. to forgive him and to
promise not to tell anyone what he had done. M.G. said she was “very injured,” and the
pain was getting worse. She asked defendant to take her to a hospital, but he refused,
telling her they would ask questions and call the police.

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Defendant had purchased a can of acetone at 2:40 that morning. The can was
unopened when defendant came into the room and M.G watched him take the top off
with a screwdriver.

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 At trial, M.G. identified photographs showing burn injuries to her hands,
legs, feet, shoulder, ear, and face. She had suffered second and third degree burns over
large portions of her body, and said she was in pain for about a month after the incident.
It still hurt her to wear clothing and to walk, and the burn scars remained at the time of
the trial.
About a week after she was set afire, M.G. got a phone call from defendant.
He told her she was “worth shit” because she had not answered the phone quickly
enough. He accused her of being with another man, and said that what he had done to her
before could not be compared to what he was going to do now. M.G. said the call made
her feel “[t]hat now [she] was really going to be dead.” In a second call, defendant told
her he was on his way over to her motel room and, when he arrived, he was going to kill
her. She believed him. M.G. finally called 911, and police took her to the safety of a
shelter. When asked why she called 911, she testified that if she “didn’t do it at that
moment[,] he would kill me, and I was no longer going to live.”
DISCUSSION
1. Section 654 Did Not Require a Stayed Sentence on the Arson Conviction
Defendant first contends the three-year concurrent sentence imposed for his
arson conviction should instead have been stayed pursuant to section 654. We are not
persuaded.
A. Legal Background and Standard of Review
Section 654 provides: “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).) It “precludes multiple
punishment for a single act or omission, or an indivisible course of conduct” (People v.
Deloza (1998) 18 Cal.4th 585, 591 (Deloza), and ensures a defendant’s punishment will

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be commensurate with his or her criminal culpability. (People v. Kramer (2002) 29
Cal.4th 720, 723).
Furthermore, a trial court may not impose a concurrent sentence otherwise
precluded by section 654, because a defendant is still subjected to the term of all imposed
sentences, including those that are being served simultaneously. (People v. Jones (2012)
54 Cal.4th 350, 353; Deloza, supra, 18 Cal.4th at p. 592 [“Section 654 does not allow any
multiple punishment, including either concurrent or consecutive sentences”].) Instead, if
a defendant suffers more than one conviction, and punishment for one is barred by
section 654, “that section requires the sentence for one conviction to be imposed, and the
other imposed and then stayed.” (Deloza, at pp. 591-592.)
“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 but not for more than one.” (Neal v. State
of California (1960) 55 Cal.2d 11, 19 (Neal), disapproved on other grounds in People v.
Correa (2012) 54 Cal.4th 331, 334.) Conversely, section 654 does not apply to a course
of criminal conduct where a defendant has separate but simultaneous objectives. (See
People v. Latimer (1993) 5 Cal.4th 1203, 1212, & cases cited there.)
For purposes of section 654, “‘[t]he defendant’s intent and objective are
factual questions for the trial court[.]’” (People v. Coleman (1989) 48 Cal.3d 112, 162
(Coleman); see also People v. Cleveland (2001) 87 Cal.App.4th 263, 268 (Cleveland)
[sentencing court determines the defendant’s intent and objective for purposes of section
654].) Furthermore, when a trial court sentences a defendant for two crimes, without
staying execution of sentence for one, it implicitly finds the acts involved more than one
objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731 (Osband).)
A trial court’s section 654 findings—express or implied—are subject to the
substantial evidence standard of review. (Osband, supra, 13 Cal.4th at pp. 730-731;

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Coleman, supra, 48 Cal.3d at p. 162.) Thus, “‘[w]e review the court’s determination of
[a defendant’s] “separate intents” for sufficient evidence in a light most favorable to the
judgment, and presume in support of the court’s conclusion the existence of every fact
the trier of fact could reasonably deduce from the evidence.’” (People v. Andra (2007)
156 Cal.App.4th 638, 640-641.)
B. Factual Background
Turning to the case before us, even before closing argument and the jury’s
verdicts, the trial court was aware there was an issue whether section 654 would apply to
an arson conviction based on the evidence that had been adduced at trial. The court told
the prosecutor, “I think [your closing] argument [concerning arson] needs to be strictly
limited to the burning of the pile of clothes, not the clothes [M.G. was wearing] because
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otherwise you’re going to have a 654 issue.” (Italics added.)
Later, addressing section 654 in his sentencing brief, the prosecutor tried to
argue that in committing the arson, defendant had separately lit the baby’s clothes on fire.
As a result of this separate act and separate intent, he insisted, it was not necessary to stay
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sentencing on the arson under section 654. Defense counsel’s sentencing brief argued
the arson was “part and parcel” of the torture, mayhem, and domestic violence counts,
and was the “method by which” those offenses “were carried out.”
At the sentencing hearing, the court explained its reasoning for the sentence
it imposed for the arson conviction. First, as to why it decided to impose a concurrent
sentence, as opposed to a consecutive sentence, it found that the torture and the arson

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In his opening brief, defendant discusses what the prosecutor argued to the jury
and how the jury was instructed. For purposes of section 654, this is irrelevant; it is the
trial court, not the jury, that determines whether section 654 applies. (Coleman, supra,
48 Cal.3d at p. 162; Cleveland, supra, 87 Cal.App.4th at p. 268.)
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The prosecutor did not attempt to reconcile this claim with the fact that his
pleadings—and the jury’s verdict form—refer to M.G. as the victim of the arson, not the
baby.

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counts occurred in close spatial and temporal proximity, and defendant poured the
acetone on M.G. and the clothes at “roughly the same movement.” “Furthermore, the
court finds that [the torture and the arson] arose out of the same set of operative facts.
And . . . it appears to the court that the crimes were both accomplished for the objective
of controlling the victim.”
When the court moved on to section 654, it found it was required to stay the
mayhem and domestic violence counts, “because those crimes were based on the same
conduct as [the torture count], [and] were necessarily incidental to the defendant’s intent
to commit the crime of torture.” Notably, the court did not expressly address whether the
arson count should or should not be stayed under section 654. As noted, when a trial
court sentences a defendant for multiple crimes without suspending execution of
sentence, the judge has implicitly found the acts involved more than one objective.
(Osband, supra, 13 Cal.4th at pp. 730-731.) Thus, the question before us is whether this
implied finding of more than one intent or objective under section 654 is supported by
substantial evidence.
C. Analysis and Application
“Arson, [is] a general intent crime, [and] requires only that a person possess
the intent to burn (or cause to be burned) . . . [the] (property); it does not require an intent
to do a further act or achieve a future consequence.” (People v. Booker (2011) 51 Cal.4th
141, 177; People v. Atkins (2001) 25 Cal.4th 76, 87-89 [general intent requirement
“ensures that the setting of the fire must be a deliberate and intentional act, as
distinguished from an accidental or unintentional ignition or act of setting a fire”].)
On the other hand, torture and aggravated mayhem are specific intent
crimes, each with a different requisite mental state. (See § 206 [“intent to cause cruel or
extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any
sadistic purpose”]; § 205 [“intentionally causes permanent disability or disfigurement of
another human being or deprives a human being of a limb, organ, or member of his or her

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body”].) As regards “intents,” therefore, these three offenses have three very distinct
mentes reae, and defendant harbored three separate criminal intents.
As to “objectives,” defendant argues, “[t]he only reasonable interpretation
of the evidence here is that [defendant’s] overriding objective in the burning incident
was, as the jury implicitly found in convicting him of torture, to inflict pain and suffering
on [M.G.] for his own sadistic pleasure, to punish her for what he perceived as her
transgressions, and to persuade her to conform her life to his demands. [Citations.] The
arson of property was incidental to this objective.”
First, this argument is somewhat self-defeating because, as phrased,
defendant identifies three distinct objectives, not one: to inflict pain on M.G. for his own
pleasure; to punish M.G. for her past misbehavior; and to persuade her to unerringly
conform to his wishes in the future. Moreover, even though all three of defendant’s
objectives fall under the more general “overriding” umbrella of defendant and M.G.’s
entire toxic relationship, that does not resolve the section 654 question; it only begs it.
Second, defendant cites no authority for a rule providing that if it is
possible to subsume multiple objectives under one overarching single objective, section
654 must apply; nor have we found any. Indeed, if that were the rule, section 654 would
apply to almost all instances of multiple offenses, because it is always possible to craft a
sufficiently general “objective” to encompass all of a defendant’s crimes and thereby
render them “indivisible.” (Cf. People v. Phung (2018) 25 Cal.App.5th 741, 760 [“A
defendant’s criminal objective should not be defined too broadly and amorphously”].)
Indeed, “‘[t]o accept such a broad, overriding intent and objective to preclude punishment
for otherwise clearly separate offenses would violate [section 654’s] purpose to insure
that a defendant’s punishment will be commensurate with his culpability.’” (People v.
Britt (2004) 32 Cal.4th 944, 953, disapproved on another ground in People v. Correa,
supra, 54 Cal.4th 331.)

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 Defendant analogizes to Neal. Although superficially similar—it too
involved arson and section 654—we find Neal distinguishable.
The full factual background of the Neal case is not found in the Supreme
Court’s opinion, but in the Court of Appeal’s original opinion on direct appeal: “On the
night of June 4, 1949, Mr. and Mrs. Raymond occupied a bed in their home in a room
with a screened window. The foot of the bed was near the window which was open.
About 4:15 a.m. Mr. Raymond was awakened by a dog jumping on his chest, scratching
and growling. He saw a flame coming through the window. In a moment the clothes of
Mr. and Mrs. Raymond, her hair, the bed, and the interior of the bedroom were afire. Mr.
and Mrs. Raymond were severely burned. He was in a hospital eight weeks; she, seven
weeks. [¶] The fire was of incendiary origin. Gasoline had been thrown through the
window across the foot of the bed. The court could reasonably have inferred that a
considerable amount of gasoline had been thrown through the window. The outside of
the house was only slightly burned. The bedroom and the bed were badly burned. A
garbage can which had been in the fire, containing a small amount of gasoline, was found
on the ground about 10 feet from the bedroom window.” (People v. Neal (1950) 97
Cal.App.2d 668, 670.)
The defendant had repeatedly threatened Mr. Raymond in the past, and had
previously told him and other witnesses that a can of gasoline and a match would be a
good way to get back at people. (People v. Neal, supra, 97 Cal.App.2d. at pp. 670-671.)
After the fire, the defendant fled the county and changed his name. He returned a couple
months later, looking for the Raymonds, with a five gallon can of gas on the floorboard
of his car. When arrested a few days later, the five gallon can of gas was still in his car.
He told police the Raymonds “were a bad bunch,” and that “he had several run-ins with
them and fights, and it was just a question of him or them.” (Id. at pp. 671-672.) The
defendant “was sentenced to state prison on each count, the sentences for attempt to

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murder to run consecutively, the sentence for arson to run concurrently with the others.”
(Id. at p. 669.)
On subsequent habeas corpus review of a parole date issue, the Supreme
Court revisited the defendant’s sentence and concluded that because “the arson was the
means of perpetrating the crime of attempted murder[s] . . . . The conviction for both
arson and attempted murder violated [section 654], since the arson was merely incidental
to the primary objective of killing [the victims]. [Defendant], therefore, can only be
punished for the more serious offense, which is attempted murder.” (Neal, supra, 55
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Cal.2d. at p. 20, italics added.)
The facts in the case before us are significantly different from those in
Neal. Unlike the victims in Neal, who were burned by that defendant’s deliberate setting
their bed and bedroom afire—their “dwelling house”—with the intent to murder them,
defendant’s act that set fire to the clothing on the floor did not cause M.G.’s burns or
inflict her pain; nor was it intended to. Rather, it was defendant’s placing his lighter to
M.G.’s acetone soaked pants that caused her the pain and disfiguring injuries he intended
she suffer. Simply put, the separate and collateral arson of the pile of clothes on the floor
was not “the means of perpetrating the crime[s]” of torture and aggravated mayhem.
(Neal, supra, 55 Cal.2d at p. 20.)
The trial court could reasonably conclude defendant harbored divisible
intents and objectives in committing separate offenses—torture and aggravated mayhem
on the one hand, and the arson of M.G.’s and her daughter’s clothing on the other. These

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In Neal, the defendant was convicted of violating then-section 447a, which read,
“‘Any person who wilfully [sic] and maliciously sets fire to or burns or causes to be
burned . . . any dwelling house . . . shall be guilty of arson. . . .’” (Neal, supra, 55 Cal.2d
at p. 23 (dis. opn. of Schauer, J.), italics added; see § 447a (repealed by Stats. 1979, c.
145, p. 338, § 1).) In contrast, defendant here was charged and convicted of violating
section 451, subdivision (d), by “willfully, maliciously, and unlawfully set[ting] fire to,
burn[ing], and caus[ing] to be burned the personal property of [M.G.].” (Italics added.)

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crimes were not committed solely pursuant to a single objective. Rather, and unlike
Neal, the arson of the clothing cannot be viewed as merely incidental to defendant’s
intent to torture M.G. and to cause her permanent disfiguring injuries. In essence,
defendant set two fires: one that burned M.G.’s personal property lying on the floor, for
one purpose; the other to intentionally inflict pain upon and disfigure M.G.’s person. The
trial court found defendant’s “objectives” in causing those two fires were different, even
though they were related. Substantial evidence supports its determination defendant held
multiple intents and objectives during his acetone fueled motel room malevolence.
2. The One-Year Prison Prior Enhancement Must Be Stricken
Defendant’s prior prison conviction enhancement under section 667.5,
subdivision (b) was based on a 2012 conviction for inflicting corporal injury on a spouse
or cohabitant pursuant to section 273.5, subdivision (a). However, effective January 1,
2020, Senate Bill 136 (Stats. 2019, ch. 590, § 1) amended section 667.5, subdivision (b)
and eliminated the enhancement for prison priors based on nonsexually violent offenses.
As an amendment that ameliorated criminal punishment, Senate Bill 136 applies
retroactively to cases like defendant’s which were not final when the amendment took
effect. (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Gastelum (2020) 45
Cal.App.5th 757, 762, 772 [section 667.5, subdivision (b) no longer applies to a section
273.5, subdivision (a) prison prior].) Because defendant’s prison prior offense was not
sexually violent, the one-year enhancement imposed under section 667.5, subdivision (b)
is unauthorized and must be stricken.
However, the trial court imposed a low term sentence on the great bodily
injury enhancement, and a remand for resentencing is necessary because the court still
has discretion to consider imposing a different sentence. (People v. Cruz (2020) 46
Cal.App.5th 715, 739; see People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [a trial
court may “revisit all prior sentencing decisions when resentencing a defendant”]; People
v. Buycks (2018) 5 Cal.5th 857, 893 [“the full resentencing rule”]; cf. People v. Hill

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(1986) 185 Cal.App.3d 831, 834 [“Not limited to merely striking illegal portions, the trial
court may reconsider all sentencing choices”].)
The parties agree this is the appropriate remedy. Thus, we “remand the
matter to the trial court so that it may exercise its sentencing discretion anew, if and to the
extent the court deems resentencing appropriate. We express no opinion concerning
whether or how the court should exercise its sentencing discretion anew on remand, in
light of this one-year reduction to defendant's sentence.” (People v. Cruz, supra, 46
Cal.App.5th at p. 739.)
DISPOSITION
The sentence is vacated. The trial court is ordered to strike the one-year
prior prison commitment enhancement and to resentence defendant to a sentence no
greater than his original sentence. Following resentencing, the court shall amend the
abstract of judgment and forward a copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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