P. v. Marquez CA6

Filed 5/22/13 P. v. Marquez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIXTH APPELLATE DISTRICT

H038611 THE PEOPLE, (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F19488)

v.

GERALD PATRICK MARQUEZ,

Defendant and Appellant.

Gerald Marquez appeals from a judgment entered upon his no contest plea to first- degree burglary (Pen. Code, § 459) and two counts of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a) (1)). On appeal, he contends that the court's imposition of separate punishments on the two assault counts violated Penal Code section 654. We disagree and therefore affirm the judgment. Facts The facts are derived from the victim's preliminary hearing testimony on December 6, 2010. Appellant and the victim were involved in an "on and off" dating relationship beginning in late 2009. On a Friday in May 2010, appellant accused the victim of

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"seeing other guys" and told her he did not want to see her anymore. The following day, after coming home from a bar, she entered her house to find appellant standing in her kitchen. She had not given appellant permission to enter her home. Appellant looked "irritated, pissed," and asked "where the fuck you been." When she approached him, appellant hit her on the face and she fell. He then began to kick and stomp on her, from her face down to her legs, while repeatedly asking how she could "do this to [him]" by going out with other guys. Eventually, the appellant stopped his assault to retrieve a text message that had appeared on the victim's phone. After reading the text message and demanding to know who had sent her the message, appellant became "even madder" and resumed hitting and stomping on her. After what seemed like an hour to an hour and a half, appellant stopped hitting her; she then she escaped to her bathroom and locked herself inside. While the victim was inside the bathroom, appellant tried to force the door open. He told her, "[y]ou better let me in. This is only going to get worse for you. Just let me in. It's going to get worse." Then it was quiet, and she believed he had left. However, "the next thing [she] kn[e]w," he began pounding on the door to the bathroom. Eventually, he took the door off the hinges and it fell down on her. At that point, the victim testified, appellant "picked me up and went to slam me into the mirror and I put my arm up . . . . My elbow broke the mirror." The impact cut her forearm. Appellant then told the victim to take a shower and helped her into the bathtub. At that point, she was no longer able to walk. She was in the shower for "quite some time," during which she repeatedly lost and regained consciousness. Appellant then helped the victim into her bed where she remained for the night. She was unable to move and in considerable pain, and she continued to pass in and out of consciousness. For the next two days, the victim experienced shortness of breath, pain in her chest, and difficulty moving. Appellant took her to her primary care physician, who told her to go to the emergency room. The providers at the emergency room informed the 2