P. v. Mariani

Filed 6/11/07 P. v. Mariani CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LENKO MARIANI,
Defendant and Appellant.
B192553
(Los Angeles County
Super. Ct. No. NA069368)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Gary J. Ferrari, Judge. Affirmed in part, vacated in part, and remanded with directions.
Roderick W. Leonard, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C.
Brenan, Kathy S. Pomerantz and Allison H. Chung, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________

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Lenko Mariani appeals from the judgment entered following his convictions
by jury on count 1 – possession of a flammable substance with malicious intent
(Pen. Code, § 453, subd. (a)) and count 2 – unauthorized taking of a vehicle
(Veh. Code, § 10851, subd. (a)). The court sentenced him to prison for four years four
months, including upper terms on both counts.1
We accept appellant’s claim that imposition of the upper terms was reversible
error in violation of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856].
There was substantial evidence that appellant entered a fuel truck parked in a San Pedro
terminal and drove the truck, loaded with fuel, around the terminal. When detained,
appellant said, inter alia, he had intended to blow up the terminal, get his children, and
blow up the Torrance office of the Department of Child and Family Services (DCFS).
The trial court imposed the upper terms based on the fact that “this conduct is
particularly, since Oklahoma City and other things that have happened in this country, is
just egregious[.]” However, the above fact was not found true by a jury beyond a
reasonable doubt, and the error warrants reversal under a harmless-beyond-a-reasonable-
doubt standard. Moreover, since reversible Cunningham error occurred, there is no need
to reach the issue of whether the trial court abused its discretion by imposing the upper
terms.
We conclude the trial court may have imposed multiple punishment on both
counts in violation of Penal Code section 654. The trial court indicated the offenses
“may not merge pursuant to [Penal Code section] 654,” the court later imposed
punishment on both counts, and there was substantial evidence upon which the trial court
properly could have relied to do so. On the other hand, the court, referring to the offenses
at issue in the counts, stated “it’s all one and the same transaction,” suggesting the court
had concluded the offenses were committed as part of an indivisible transaction.
However, if that was the court’s conclusion, multiple punishment was error. We will
remand the matter to permit the trial court to clarify its ruling and for resentencing.
1 This included sentences on two probation cases discussed below.

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We accept respondent’s concessions that appellant’s sentences in his two
probation cases must be served concurrently to one another, and that appellant is
entitled to additional precommitment credit in those two cases.
FACTUAL SUMMARY
1. Prosecution Evidence
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), about 8:30 a.m. on March 1, 2006, appellant entered the
Evergreen Terminal in San Pedro. Appellant was a casual worker at the terminal.
However, he was not employed to work at the terminal on March 1, 2006, and he had
never been authorized nor qualified to drive a fuel truck.
A fuel truck was parked in the terminal. The truck was full of diesel fuel and
gasoline, with each fuel in a separate compartment accessible by ports on top of the truck.
Natale Fiore, a longshoreman at the terminal, testified there were about 1200 gallons of
diesel fuel and 50 gallons of gasoline in the truck.
Christopher Fantz, another longshoreman at the terminal, saw appellant enter the
fuel truck and drive. Appellant, still in the terminal, stopped the truck, climbed on its top,
and looked inside the ports on top of the fuel truck. Appellant looked suspicious because
he was not wearing customary work clothing. Appellant reentered the fuel truck and
continued driving.
Fantz and Fiore entered Fiore’s pickup truck and followed appellant. Appellant
was driving erratically in the terminal, traveling about 20 to 40 miles per hour. The speed
limit in the terminal was 10 miles per hour. Appellant drove towards an exit gate
congested with other trucks. Appellant approached within perhaps 500 feet of the
congestion. Appellant then backed up the fuel truck and began to drive in another
direction, but Fiore blocked the fuel truck with the pickup truck. Fiore had been
following the fuel truck for about three to five minutes.
Fiore opened the door of the fuel truck and removed its ignition key. Appellant
was in a daze. He exited the truck and began preaching from a Bible. Appellant said he
was Jesus Christ and it was judgment day.

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On the above date, Los Angeles Port Police Sergeant Kenneth Hawkes was
dispatched to the scene. Hawkes approached appellant and asked his name. Appellant
replied that appellant was God. Appellant also said something to the effect that the end
of the world was coming, and he was going to blow up the terminal. When appellant said
the end of the world was coming, he appeared to be very serious. Hawkes later heard
appellant say that appellant was going to drive to his children’s school, pick them up, and
take them and the truck to the Torrance office of the DCFS. Hawkes also heard appellant
say that he was going to threaten to blow it up. Hawkes did not recall seeing appellant in
possession of an igniting device.
Hawkes was a hazardous materials specialist. He testified gasoline was highly
flammable and explosive, and the vapors were explosive. If the vehicle was involved in
an accident, there would be a spill. The hazard was high depending on the quantity of
gasoline in the tank. An empty tanker was more volatile than a tanker containing fuel
because the vapors alone would ignite. Gasoline tankers occasionally overturned on
Southern California freeways. They caused large fires and pollution, and were an
extreme hazard.
Los Angeles Port Police Officer Mark Renteria testified as follows. Renteria
arrived at the scene and asked appellant for his name. Appellant said his name was Jesus
Christ. Renteria later began giving appellant a Miranda admonition. Each time Renteria
asked appellant if he understood, appellant replied yes, but also said things to the effect
that he was Jesus and “judgment day [is] upon us.” Appellant also said “sinners beware”
and similar things. Appellant talked about his children being taken from him, talked
about his former wife, and talked about similar problems. Appellant made statements
about blowing up the terminal and DCFS because, according to appellant, they were
trying to take his children. During cross-examination, Renteria testified appellant said he
was going to blow up the terminal, and “then he said that afterwards he was going to
blow up Torrance [DCFS].” He appeared to be agitated about his perception of his wife
and DFCS. Renteria did not see appellant in possession of any igniting device.

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2. Defense Evidence.
In defense, appellant testified as follows. Around March 1, 2006, appellant was
working as a casual longshoreman. He was dealing with a bitter divorce and with DCFS.
On the above date, appellant went to the terminal. He had an issue with DCFS and his
children. He was not thinking when he went to the terminal, and had no intent to do what
he did. Appellant entered one of the fuel tankers and drove it around. Appellant did not
want to blow up the terminal. He did not know what he was thinking that day. He was
under a great deal of stress. Appellant would never do anything to harm any community.
Appellant’s counsel asked appellant whether, when he took the fuel tanker, he
was thinking that by taking the fuel tanker he was depriving the owner of possession of it.
Appellant replied he never intended to take anything.
Appellant also testified as follows. He said he was going to blow up the terminal,
then said that that was a fantasy, he was a Christian, and Christians would never do that.
Immediately after appellant had said he was going to blow up the terminal, he also said
that that was a delusion. If he had wanted to blow up the terminal he would have driven
the fuel tanker over the pickup truck, but that was not his intention. Once inside the fuel
truck, he had not locked its doors in an effort to prevent persons from entering. He drove
the truck for a maximum of four minutes, then pulled over. He testified he did not
remember backing up the truck and “never found the [exit], thank God.” Appellant did
not look for an exit from the terminal. He did not bring any igniting device. During
cross-examination, appellant testified he drove around in the terminal to “vent[] . . .
steam[.]”
CONTENTIONS
Appellant contends that imposition of upper terms on counts 1 and 2 was an abuse
of discretion, imposition of the upper terms violated his constitutional right to a jury trial
and due process, and multiple punishment on both counts violated Penal Code section
654. He also contends his sentences in two probation cases must be served concurrently,
and he is entitled to precommitment credit in those two probation cases.

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DISCUSSION
1. Cunningham Error Occurred.
Appellant contends that the trial court erred by imposing the upper terms based
on a fact not found by the jury beyond a reasonable doubt, namely, that the crimes were
particularly egregious.
a. Pertinent Facts.
The information alleged, inter alia, counts 1 and 2, in statutory language. A jury
convicted appellant as previously indicated. At sentencing, appellant argued an
appropriate sentence was three years in prison, and Penal Code section 654 barred
multiple punishment on both counts. The People asked for the upper term. The People
argued appellant’s conduct was very serious and dangerous, and appellant was on
probation in two cases when he committed the present offense.
The court stated, “Mr. Mariani, this conduct is particularly, since Oklahoma City
and other things that have happened in this country, is just egregious and I think it’s
meriting because of that of the high term. However, I agree with [appellant’s counsel],
they may not merge pursuant to 654 but it’s all one and the same transaction.” This
finding of particular egregiousness was not expressly referred to during jury argument, in
the court’s instructions to the jury, or in the verdict forms. Nor was it disputed by
appellant at sentencing. The court sentenced appellant to prison for, inter alia, concurrent
three-year upper terms on counts 1 and 2.
b. Analysis.
We cannot conclude beyond a reasonable doubt that a reasonable jury would have
found beyond a reasonable doubt that the offenses were particularly egregious.
As mentioned, the trial court’s criterion for imposing the upper terms was “this
conduct is particularly, since Oklahoma City and other things that have happened in this
country, is just egregious[.]” “In Cunningham v. California (2007) 549 U.S. ___
[127 S.Ct. 856] (Cunningham), the high court held that California’s determinate
sentencing law violates a defendant’s Sixth and Fourteenth Amendment right to a jury
trial to the extent it permits a trial court to impose an upper term based on facts found

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by the court rather than by a jury beyond a reasonable doubt.” (People v. Calhoun
(2007) 40 Cal.4th 398, 406.) Cunningham relied on, inter alia, Blakely v. Washington
(2004) 542 U.S. 296 [159 L.Ed.2d. 403]. (Cunningham, supra, 549 U.S. at p. ___
[166 L.Ed.2d at p. 873].) “Blakely error is reviewed under a harmless-beyond-a-
reasonable-doubt standard. (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d
466].)” (People v. Waymire (2007) 149 Cal. App.4th 1448, 1458.)
The trial court committed Blakely error by imposing upper terms based on its
finding that the crime was particularly egregious, a fact not found by the jury beyond a
reasonable doubt. Moreover, we cannot conclude that a jury necessarily would have
found true, beyond a reasonable doubt that the crimes were particularly egregious.
Further, we cannot find that the trial court’s error was otherwise harmless. None of
respondent’s arguments compel a contrary conclusion.2
2. Multiple Punishment on Counts 1 and 2 May Have Violated Penal Code Section 654.
As mentioned, the trial court effectively rejected appellant’s argument that Penal
Code section 654 barred multiple punishment on counts 1 and 2, when the trial court
imposed concurrent terms on those counts. Appellant claims Penal Code section 654
applies to bar multiple punishment. For the reasons discussed below, we believe the trial
court may have erred, and remand is appropriate to permit the trial court to clarify the
basis for its ruling and to sentence appellant accordingly.
“Penal Code section 654 states in pertinent part: ‘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. . . .’ ‘The proscription against double punishment in [Penal Code] section 654 is
applicable where there is a course of conduct which violates more than one statute and
comprises an indivisible transaction punishable under more than one statute within the
meaning of [Penal Code] section 654. The divisibility of a course of conduct depends
2 In light of the above, there is no need to reach the issue of whether the trial abused
its discretion by imposing the upper terms.

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upon the intent and objective of the actor, and if all the offenses are incident to one
objective, the defendant may be punished for any one of them but not for more than one.’
(People v. Bauer (1969) 1 Cal.3d 368, 376.) ‘The purpose of the protection against
multiple punishment is to insure that the defendant’s punishment will be commensurate
with his criminal liability.’ (Neal v. State of California (1960) 55 Cal.2d 11, 20.)
“. . . ‘Whether [a defendant] maintain[s] multiple criminal objectives is determined
under all the circumstances and is primarily a question of fact for the trial court, whose
finding will be upheld on appeal if there is any substantial evidence to support it.’
[Citation.]” (People v. Williams (1992) 9 Cal.App.4th 1465, 1473.)
Based on the People’s evidence, there was substantial evidence that appellant
committed the offense alleged in count 1 to blow up the terminal and/or DCFS office.
Based on the defense evidence, there was substantial evidence that appellant committed
the offense alleged in count 2 with the criminal objective of depriving the owner of
possession of the truck, merely to “vent[] . . . steam[.]” In sum, there was substantial
evidence that appellant had independent criminal objectives when he committed the
offenses alleged in counts 1 and 2. If so, the trial court could impose multiple
punishment on those counts without violating Penal Code section 654. Such a disposition
would be consistent with the trial court’s comments that “they [counts 1 and 2] may not
merge pursuant to 654,” and the court’s ultimate imposition of multiple punishment.
On the other hand, the trial court stated “it’s all one and the same transaction.”
If the court meant “it’s all one course of conduct but the course of conduct is divisible,”
multiple punishment could be upheld for the reasons discussed in the preceding
paragraph. If, on the other hand, the court meant “it’s all one and the same [indivisible]
transaction,” multiple punishment was error, and the court imposed an unauthorized
sentence. An unauthorized sentence may be corrected at any time. (Cf. People v. Huff
(1990) 223 Cal.App.3d 1100, 1106.) We will remand the matter to permit the trial court
to clarify the basis for its ruling as to whether Penal Code section 654 applied, and to
sentence appellant accordingly. (People v. Garcia (1997) 59 Cal.App.4th 834, 839;

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Pen. Code, § 1260.) We express no opinion as to whether the trial court should conclude
that Penal Code section 654 applies.
3. Consecutive Sentencing on Appellant’s Probation Violation Cases Was Error.
Appellant was convicted of possessing a controlled substance (case No.
NA060721) and possession of a firearm by a felon (case No. NA063375). In
each of those cases, the trial court, in December 2004, sentenced appellant to prison
for the middle term of two years, suspended execution of sentence, and placed him on
formal probation for three years. The court also ordered that appellant serve the
sentences concurrently. On June 9, 2006, the trial court in the present case found
appellant in violation of probation in each of the above two cases based on the evidence
presented at trial in the present case.
On June 12, 2006, the court sentenced appellant to prison for concurrent terms on
counts 1 and 2 in the present case. Moreover, in each of the probation cases, the court
lifted the stay of execution and ordered that appellant serve an eight-month term. The
court ordered that appellant serve each eight-month term consecutively to the sentence in
the present case and consecutively to each other. Respondent concedes the trial court
erred on June 12, 2006, to the extent it ordered that appellant serve the eight-month terms
consecutively to each other. (In re Reeves (2005) 35 Cal.4th 765, 773; Cal. Rules of
Court, rule 4.452(3).) We agree.
4. Appellant is Entitled to Additional Precommitment Credit.
The record reflects that at sentencing in December 2004 in one of appellant’s two
probation cases (case No. NA063375), appellant and the court agreed that appellant was
entitled to 92 days of precommitment credit, consisting of 62 days of custody credit and
30 days of conduct credit. The court sentenced appellant in December 2004 in case
No. NA063375 as previously indicated (suspending execution of sentence) and awarded
him 92 days of precommitment credit. Later that day, during sentencing in the other
probation case (case No. NA060721), the court sentenced appellant as previously
indicated (suspending execution of sentence) but did not award precommitment credit.

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As mentioned, appellant violated probation in the two probation cases and, on
June 12, 2006, the trial court sentenced appellant to prison in the present case and lifted
the stays of execution in the two probation cases. In the present case, as well as in each
of the probation cases, the trial court awarded 104 days of precommitment credit, but
failed to award the above mentioned 92 days of precommitment credit in either probation
case.
Respondent concedes the trial court erred to the extent it failed to award, in the
two probation violation cases, 92 days precommitment credit. (People v. Bravo (1990)
219 Cal.App.3d 729, 731; People v. Smith (1989) 211 Cal.App.3d 523, 527.) We accept
the concession. Moreover, since we are remanding for other reasons, we are confident
the trial court will, following remand, award appellant the appropriate precommitment
credit.
DISPOSITION
The judgment is affirmed, except that appellant’s sentence is vacated and the
matter is remanded for resentencing and an award of precommitment credit consistent
with this opinion. The trial court is directed to forward to the Department of Corrections
an amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
CROSKEY, J.

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