Filed 11/3/14 P. v. Vasquez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSIE ARTURO VASQUEZ,

Defendant and Appellant.

F066953

(Super. Ct. No. BF140216A )

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. 

Twisselman II, Judge.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Harry 

Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2

A jury convicted appellant Jessie Arturo Vasquez of making criminal threats (Pen. 

Code,1 § 422; counts 1, 5, & 6), misdemeanor driving while under the influence of 

alcohol (Veh. Code, § 23152, subd. (a); count 2), first degree residential burglary (§ 460, 

subd. (a); count 4), and misdemeanor vandalism (§ 594, subd. (b)(2)(A); count 7); the 

jury acquitted Vasquez of assault with a deadly weapon (§ 245, subd. (a); count 3). With 

respect to count 4, the jury found true the allegation that another person was in the 

residence during the burglary (§ 667.5, subd. (c)(21)). In addition, the court found true 

the allegations that Vasquez had served three prior prison terms (§ 667.5, subd. (b)). The 

court sentenced Vasquez to a total prison term of six years four months as follows: the 

middle term of four years for count 4, plus one year for the prior prison term; a 

consecutive eight-month term for count 1; and a consecutive eight-month term for count 

5. Vasquez was sentenced to a concurrent two-year term for count 6, and two concurrent 

30-day terms for counts 2 and 7. Vasquez’s sole contention on appeal is the court should 

have stayed, pursuant to section 654, the terms it imposed for counts 5, 6, and 7. We 

agree and modify the judgment to correct the sentencing error. As modified, the 

judgment is affirmed. 

FACTS2

On December 14, 2011, around 6:00 p.m., Alba Linares was at home in her 

bedroom and her cousin, Malky Gonzalez, was in the living room watching television, 

when Linares heard something that sounded like somebody knocking on the door. When 

she heard the knock again, she went out to the living room and asked Gonzalez if the

sound was coming from the television. After she went into the living room, Linares 

heard a breaking noise and saw Vasquez had broken the window. He was holding an ax 

 

1 Further statutory references are to the Penal Code unless otherwise specified.

2 Our summary sets forth facts pertinent to counts 4, 5, 6, and 7, which are the subject of 

Vasquez’s claim of sentencing error. We have omitted a summary of the facts underlying the 

remaining counts because we need not refer to them to resolve the issue on appeal. 
3

in one hand and a gun in the other. Linares testified that Vasquez leaned into the house 

and “told me if I happened to help my son get out of prison that he was going to kill me” 

and “not to forget that he was the devil; that he was going to return and kill me; that I had 

to move from there because he wanted to kill me.” A man and two women soon arrived 

in a white truck and took Vasquez with them. As he was leaving, Vasquez hit Linares’s 

van with the ax and left the ax embedded in the van. 

Gonzalez similarly testified he was in Linares’s living room watching television 

when he heard somebody knock twice on the door. When Linares came out of her 

bedroom to ask him if it was the television, the window was broken and Gonzalez saw 

Vasquez standing in front of him, holding a hatchet. In his other hand, Vasquez was 

holding a gun and pointing it at Gonzalez. Vasquez asked for Linares’s son and 

threatened to kill Linares and Gonzalez if her son was not there. 

When Deputy Sheriff Jacob Freeborn interviewed Linares about the incident, she 

told him she heard banging on her door and thought someone was kicking it. She came 

out of her bedroom and saw Vasquez through the window. She was not going to open the 

door because she did not know who he was, but then Vasquez broke the window and 

stuck his head inside the window frame. Vasquez looked around and pulled out a gun. 

Vasquez was holding something in his other hand, which Linares thought was the same 

hatchet she later found outside after she heard glass breaking on her car. Linares did not 

speak English well, but Freeborn understood her to say that Vasquez threatened her and 

wanted her to give up her son. 

DISCUSSION

Vasquez contends section 654 bars separate punishment for his convictions of first 

degree residential burglary, making criminal threats against Linares and Gonzalez, and 

misdemeanor vandalism on counts 4 through 7, because they were part of a continuous 
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course of conduct with a single objective, namely, to commit the crime of making a 

criminal threat. This contention has merit.

“Section 654 precludes multiple punishment for a single act or indivisible course 

of conduct punishable under more than one criminal statute. Whether a course of 

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. [Citation.] If all of the 

offenses are incident to one objective, the court may punish the defendant for any one of 

the offenses, but not more than one. [Citation.] If, however, the defendant had multiple 

or simultaneous objectives, independent of and not merely incidental to each other, the 

defendant may be punished for each violation committed in pursuit of each objective 

even though the violations share common acts or were parts of an otherwise indivisible 

course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-

268.)

Whether the defendant possessed multiple objectives and intents within the 

meaning of section 654 is a factual question. We will uphold a trial court’s explicit or 

implicit finding if it is supported by substantial evidence. The trial court’s determination 

is viewed in the light most favorable to the People and we presume the existence of every 

fact that could reasonably be deduced from the evidence. (People v. Jones (2002) 103 

Cal.App.4th 1139, 1143.) The absence of a timely objection during sentencing does not 

forfeit a section 654 claim. (People v. Le (2006) 136 Cal.App.4th 925, 931.)

Section 459 defines burglary, in relevant part, as follows: “Every person who 

enters any house ... with intent to commit ... any felony is guilty of burglary.” The jury 

here was instructed that, to convict Vasquez of burglary, it must find beyond a reasonable 

doubt that he entered the victim’s house with the specific intent to commit the crime of 

making a criminal threat. The court further instructed the jury that “[i]f anything 

concerning the law said by the attorneys in their arguments or at any other time during 
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the trial conflicts with my instructions on the law, you must follow my instructions.” We 

presume the jury followed the trial court’s instructions. (See, e.g., People v. Avila (2009) 

46 Cal.4th 680, 719; People v. Bennett (2009) 45 Cal.4th 577, 596.) Furthermore, during 

closing argument, the prosecutor told the jury the People’s theory was that Vasquez 

committed burglary by “going through the window to threaten Alba Linares, to threaten 

Malky, to threaten anybody who was in the home.” By convicting Vasquez of the 

burglary, the jury necessarily found the felony underlying the burglary was the crime of 

making a criminal threat. 

Because the residential burglary and criminal threats were committed with a single 

intent and objective, Vasquez can only be punished for one crime. The terms imposed 

for making criminal threats on counts 5 and 6 must be stayed pursuant to section 654.

We reach the same conclusion with respect to the term imposed for misdemeanor 

vandalism on count 7. Vasquez’s acts of vandalism were incidental to the burglary and 

criminal threats. Count 7 was specifically predicated on Vasquez’s acts of breaking 

Linares’s front window with the ax at the beginning of the burglary and then thrusting the 

ax into her car as he was leaving her house. We see no evidence the breaking of the 

window was done with any intent or objective other than to effectuate the burglary by 

allowing Vasquez to enter the house and threaten the people inside. We agree with 

respondent that Vasquez’s subsequent act of embedding his ax in Linares’s car as he 

walked away from the house evidenced an intent “to intimidate and frighten” Linares and 

Gonzalez by demonstrating “that he could—and would—carry out his threats.” 

Respondent’s argument, however, does not establish multiple objectives for the crimes so 

much as it highlights their interrelatedness. As already discussed, the burglary was 

committed with the single objective of committing the crime of making criminal threats. 

Vasquez’s acts of vandalism, which effectuated the burglary and reinforced the criminal 
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threats which were the target of the burglary, constituted an indivisible course of conduct 

and, therefore, the terms imposed for these crimes must be stayed.

DISPOSITION

The judgment is ordered modified to reflect that the consecutive eight-month term 

for count 5, the concurrent two-year term for count 6, and the concurrent 30-day term for 

count 7, are stayed pursuant to section 654. As so modified, the judgment is affirmed. 

The trial court is ordered to send a certified copy of the corrected abstract of judgment to 

the appropriate authorities.

_____________________

HILL, P. J.

WE CONCUR:

_____________________

LEVY, J.

_____________________

DETJEN, J.