Opinion
B226589
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. RENE ANAYA et al., Defendants and Appellants.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant Rene Anaya. Elizabeth A. Missakian for Defendant and Appellant Rene Hedman. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA111987)
APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas I. McKnew, Judge. Affirmed as modified.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant Rene Anaya.
Elizabeth A. Missakian for Defendant and Appellant Rene Hedman.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted Rene Anaya of second degree robbery (count 1) with true findings on the allegation that a principal was armed with a firearm in the commission of the offense. The jury also convicted Rene Hedman, Anaya's father, of second degree robbery (count 1) with true findings on the allegation that he personally used a firearm during the commission of the offense. Hedman was additionally convicted of assault with a firearm (count 2), assault by means of force likely to produce great bodily injury (count 3), criminal threats (count 4), and possession of a firearm by a felon (count 5). The trial court sentenced Anaya to six years in state prison, and Hedman to 31 years. The court ordered Anaya to pay a $30 security fee, and Hedman a $150 security fee. The court also ordered appellants to make restitution jointly and severally to William Lopez in the amount of $1,500, and to Elizabeth Rodriguez in the amount of $5,500.
On appeal, Anaya contends that the trial court abused its discretion in awarding restitution to Lopez and Rodriguez, while Hedman challenges his conviction for assault with a firearm and alleges that the evidence was insufficient to sustain it. Hedman further contends that the imposition of multiple firearm enhancements violated Penal Code section 12022.53, thus requiring that the enhancement attendant to count 4 be stayed.Hedman also alleges that the trial court's imposition of consecutive sentences on counts 3 and 4 was barred by section 654. Finally, Hedman requests that the abstract of judgment be corrected to reflect the court's oral order that Hedman pay $150 as a court security fee.
All further statutory references are to the Penal Code, unless otherwise noted.
We agree with Anaya's claim that the trial court abused its discretion in awarding restitution to Lopez, and we therefore reverse the trial court's order in that regard. We also agree that the abstract of judgment should be corrected to reflect the court's oral order as to Hedman's court security fees. We reject appellants' other claims, and therefore, affirm the trial court's judgment as modified.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In an information filed by the Los Angeles County District Attorney, Anaya and Hedman were charged in count 1 with robbery in the second degree (§ 211). Hedman was additionally charged in count 2 with assault with a firearm (§ 245, subd. (a)(2)), in count 3 with assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), in count 4 with criminal threats (§ 422), and in count 5 with possession of a firearm by a felon (§ 12021, subd. (a)(1)). As to count 1, it was further alleged that Hedman personally used a firearm within the meaning of section 12022.53, subdivision (b), and that a principal in the offense was armed with a firearm within the meaning of section 12022, subdivision (a)(1). As to counts 2 and 4, it was further alleged that Hedman personally used a firearm in the commission of the offense within the meaning of section 12022.5, subdivision (a). As to all counts, it was also alleged that Hedman had suffered a prior conviction for a serious or violent felony within the meaning of section 667, subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d), and that Hedman had served three prior prison terms within the meaning of section 667.5, subdivision (b). As to counts 1, 2, and 4, it was further alleged that Hedman had suffered a prior conviction of a serious felony within the meaning of section 667, subdivision (a)(1). Hedman and Anaya pleaded not guilty and denied the allegations.
A. Prosecution Case
On August 28, 2009, at around 10:30 a.m., Elizabeth Rodriguez (Rodriguez) opened the Imperial Pawn Shop located at 7412 1/2 Pacific Boulevard in Huntington Park. Rodriguez is the owner of the pawn shop. As she was setting up jewelry in a display case, and talking on the phone, Hedman appeared at the shop's door. Hedman was wearing a burgundy long-sleeved shirt and black pants, and Rodriguez thought he was well dressed so she buzzed him into the shop. Hedman began looking at watches, and Rodriguez asked if he wanted to see one. Hedman and Rodriguez were standing on opposite sides of the shop's counter.
Hedman pointed a black gun at Rodriguez and told her to hang up the phone. He then jumped over the counter and grabbed Rodriguez by the neck. Rodriguez grabbed the gun and they began to wrestle over it.
At that point, Hedman's son, Anaya, appeared at the entrance of the pawn shop. Anaya was wearing a white T-shirt, blue jeans, and a blue hooded jacket. Thinking he was a customer, Rodriguez screamed for him to come in. Hedman buzzed Anaya in, but Rodriguez could not get a good look at Anaya's face. Anaya then jumped over the counter and ran to the back of the pawn shop, where the safes were located. Anaya brought two backpacks with him.
As Rodriguez and Hedman continued to struggle for the gun, Anaya removed all the money and jewelry from one of the safes. Hedman hit Rodriguez in the back of the head, knocking her to the floor. He then sat on top of her and pointed the gun at her face.
Hedman called out to Anaya and said "Son, hurry up, hurry up. What are you doing?" As Rodriguez screamed for help, Hedman put a cardboard box over her head and told her not to look at him. He called out to Anaya again, "Son, hurry up. I'm going to blast this bitch." Hedman told Rodriguez to stop screaming because otherwise he would shoot her. Rodriguez was scared for her life.
Anaya returned from the back of the shop and put the jewelry in the display case into a backpack. He then left the store with the two backpacks. Hedman grabbed Rodriguez's hair, dragged her to the back room, and tried to lock her in. Rodriguez opened the back room door in time to see Hedman break one of the showcase displays with his gun and run out of the shop.
Rodriguez pressed the alarm button and ran outside, where she saw Anaya and Hedman enter a blue Jeep Grand Cherokee, which was parked across the street. The Jeep drove away, making a right on Santa Fe Avenue. Anaya was driving; Hedman was in the passenger seat. The Jeep was owned by Anaya's girlfriend, Yesenia Quinonez, who had lent it to Anaya that morning.
At around 10:30 a.m., Vilma Carillo got off the bus near the Imperial Pawn Shop. She saw two men, faces covered with handkerchiefs, run from the pawn shop. One of the men pointed a gun at her and then put it in his waistband. Both men got into the Jeep.
William Lopez (Lopez) was also near the Imperial Pawn Shop on the morning of the robbery. He saw two or three people fighting inside the store, and informed a parking enforcement officer that he thought a robbery was in progress. The parking officer looked down the street and saw two men running. One of the men was wearing a bright maroon, buttoned shirt and the other was wearing a hooded blue sweatshirt. Both men carried backpacks, which they threw into the Jeep before driving away. The parking officer wrote down a partial plate number for the Jeep and used his radio to inform police of the robbery.
In the meantime, Lopez began to follow the Jeep in his car. As he did so, he dialed 911. While on the phone with the 911 operator, Lopez saw the passenger's hand come out of the Jeep, and thought that he might be holding a pistol. He told the 911 operator, "I see a gun." Fearing for his safety, Lopez stopped following the Jeep.
At trial, Lopez testified that while he could see the man extending his hand from the vehicle, he did not know if the man had a weapon. Lopez further stated that he "imagined" that the man had a weapon because he was "nervous."
Los Angeles County Sheriff's Deputy Oscar Barrios and his partner, Sergeant Garcia, were dispatched to the Imperial Pawn Shop pursuant to a report of a robbery in progress. They began searching the area for the suspects' vehicle, and eventually spotted the Jeep in a parking lot on the corner of Pacific Boulevard and Independence Avenue. Deputy Barrios and Sergeant Garcia stopped their vehicle 30 to 45 feet from the Jeep. Deputy Barrios exited the car and immediately drew his weapon.
Hedman, who was sitting in the left rear passenger seat, opened the door, and took off a burgundy dress shirt. Deputy Barrios ordered Hedman to put his hands in the air and walk toward him. Hedman ignored the command, removed a black semiautomatic pistol from the front of his waistband, and tossed it in the back of the Jeep. Hedman then ran away. Deputy Barrios ordered Hedman to stop and lie on the ground. Hedman again ignored the command. Deputy Barrios radioed that Hedman was running north on Pacific Boulevard, while Sergeant Garcia followed Hedman in the patrol car. Hedman was eventually arrested on the porch of a nearby residence. He was wearing a black hat, a white T-shirt, and green nylon athletic shorts.
Meanwhile, Deputy Barrios ordered Anaya to put his hands in the air. He arrested Anaya, and observed the Jeep as it was being searched. Deputy Barrios observed a handgun being recovered from the Jeep's rear passenger compartment. Los Angeles County Sheriff's Deputy Carolina Roman searched the Jeep. She recovered two backpacks from the front passenger seat, and found inside them several pieces of jewelry and layaway tickets which Rodriguez later identified as items taken during the robbery. Another deputy, Dan Whitten, searched Anaya's pockets, and recovered a large amount of cash and five rings. Rodriguez identified these items as having been taken during the robbery.
Los Angeles County Sheriff's Deputy Nancy Zavala was also dispatched to the Imperial Pawn Shop. Inside the shop, she noticed "everything was just disheveled," and saw that a glass counter had been shattered. Deputy Zavala spoke with Lopez, who told her that he had seen a vehicle in front of him, and that a man in a maroon, long-sleeved shirt pulled out a black handgun and pointed it at him.
On August 28, 2009, Los Angeles County Sheriff's Detective Jesus Rojas interrogated Hedman about the Imperial Pawn Shop robbery. The interview was recorded and eventually played for the jury at trial. During the interview, Hedman told Detective Rojas that he was wearing a Cuban hat, black pants, and a long-sleeved maroon shirt when he entered the pawn shop. Hedman admitted to having a gun. He then explained how he told Rodriguez to give him her money, and to go to the back of the store. At that point, Rodriguez tried to grab the gun and almost shot herself. Hedman regained control of the gun, told Rodriguez not to grab it anymore, and repeated that he needed the money. Rodriguez started screaming, which caused Hedman to grab her, throw her on the floor and put a box over her head so that she would not look at his face. Hedman then put Rodriguez inside a back room and ran to the parking lot, where he removed the black pants and the shirt to avoid being recognized.
B. Defense Case
Anaya testified that on August 27, 2009, Hedman asked Anaya to loan him some money. Hedman is Anaya's father. Anaya agreed, and told Hedman that he would get the money the following day from a friend.
The following day, Anaya borrowed his girlfriend's Jeep and picked up Hedman. Anaya parked near the Imperial Pawn Shop, and told his father that he was going to borrow the money from a friend and that he would be back in a few minutes. Anaya approached the pawn shop alone. He was wearing a hat, black pants and a burgundy shirt, and carrying a backpack. Rodriguez buzzed him into the store.
Anaya asked Rodriguez to show him watches. Anaya put his hands into his pockets, then raised them, simulating a gun with his fingers, and jumped over the counter. He grabbed Rodriguez, told her he did not want to hurt her, and put her on the floor. Anaya then put a box over Rodriguez's head and told her not to look at him.
At that point, a man wearing a backpack, whom Anaya did not know came to the door. Anaya buzzed the man in, and asked him to help him out; the man agreed to help. Anaya told the man to grab the jewelry and fill both backpacks; the man did so. Anaya then moved Rodriguez to the back room. There, he took some money in a wrapper and some jewelry from the safe. Anaya shattered one of the display cases by hitting it very hard with his bare hands. The man who had helped Anaya put the backpacks on the counter and left the store. Ten seconds later, Anaya followed, but he did not see the other man when he exited the shop.
As Anaya got into the Jeep, Hedman asked him what he had just done. Anaya told Hedman that he had just robbed the pawn shop and that he was sorry. Hedman wore a white T-shirt and green basketball shorts. Anaya drove away from the pawn shop with Hedman in the back seat. Anaya did not notice that they were being followed and did not put his hand out the window. As they neared the intersection of Long Beach Boulevard and Independence Avenue, the Jeep stalled. Anaya parked the car in the parking lot of a 99 Cent Store. Anaya removed the burgundy shirt and black pants and tossed them in the backseat. Two to four minutes later, police officers arrived. Hedman exited the car and ran toward Long Beach Boulevard.
The blue sweatshirt recovered from the Jeep did not belong to Anaya or his girlfriend. Anaya believes that one of his friends may have left the gun in the backseat of the Jeep. He also believes that Hedman made up his story to Detective Rojas to try to save Anaya. Anaya never told Hedman what he was going to do, and never asked for his help. Hedman, who has a distinctive scar on the side of his face, never entered the pawn shop.
C. Trial, Verdict, and Sentencing
At trial, the jury found Anaya guilty of second degree robbery (count 1), with true findings on the firearm enhancements. The jury also found Hedman guilty of second degree robbery (count 1), assault with a firearm (count 2), assault by means likely to produce great bodily injury (count 3), criminal threats (count 4), and possession of firearm by a felon (count 5), and found true the allegations that he personally used a firearm within the meaning of section 12022.53, subdivision (b), on count 1, and that he personally used a firearm within the meaning of section 12022.5, subdivision (a), on count 4. The jury found the allegation that Hedman personally used a firearm within the meaning of section 12022.5, subdivision (a), on count 2 not to be true. Hedman admitted the prior conviction allegations.
The court sentenced Anaya to six years in state prison, calculated as follows: five years on count 1 plus an additional year for the section 12022, subdivision (a)(1) firearm enhancement. The court also ordered Anaya to pay a $1,000 restitution fine (§ 1202.4, subd. (b)), and a parole revocation fine (§1202.45) in the same amount was imposed and suspended. The court further ordered Anaya to pay a $30 security fee (§ 1465.8, subd. (a)(1)). The court granted Anaya 79 days of presentence custody credits.
The court sentenced Hedman to 31 years in state prison calculated as follows: five years on count 1, doubled pursuant to Hedman's prior felony convictions, plus an additional ten years for the section 12022.53, subdivision (b) enhancement, plus a consecutive one-year term on count 2, plus a consecutive one-year term on count 3, plus a consecutive 8-month term on count 4, plus a consecutive sixteen-month term for the firearm enhancements attached to count 4, plus an additional five years for the section 667, subdivision (a)(1) enhancement, plus an additional two years for the two section 667.5, subdivision (b) enhancements. The court also ordered Hedman to pay a $2,000 restitution fine (§ 1202.4, subd. (b)), and a parole revocation fine (§1202.45) in the same amount was imposed and suspended. The court further ordered Hedman to pay a $150 security fee (§ 1465.8, subd. (a)(1)). The court granted Hedman 393 days of presentence custody credits.
Finally, Anaya and Hedman were ordered to make restitution jointly and severally to William Lopez in the amount of $1,500, and to Elizabeth Rodriguez in the amount of $5,500.
Anaya and Hedman timely filed this appeal.
DISCUSSION
1. THE ASSAULT WITH A FIREARM OF WILLIAM LOPEZ (COUNT 2)
Hedman argues that the evidence was insufficient to sustain his conviction for assault with a firearm. We disagree.
A. Standard of Review
On appeal, criminal convictions may be reviewed for sufficiency of the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one." (People v. Smith (2005) 37 Cal.4th 733, 738 (Smith)?)To determine whether a conviction is supported by sufficient evidence, a reviewing court must examine the entire record in the light most favorable to the judgment, and determine whether the evidence is of such solid value that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509 (Davis).) Reversal is not warranted unless "'it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." [Citations.]'" (People v. Hughes (2002) 27 Cal.4th 287, 370.)
B. Merits
Hedman contends that his conviction for assault with a firearm should be reversed because there was insufficient evidence that he pointed a gun at Lopez from the passenger seat of the Jeep. Hedman argues that because Lopez's testimony at trial was inconsistent with his initial statements to the police about Hedman pointing a gun at him, the evidence of Hedman's assault on Lopez is too weak and inconclusive to support his conviction. We disagree.
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240) To prove that a defendant committed assault with a firearm pursuant to section 245, subdivision (a)(2), the prosecution must establish that the defendant willfully performed an act with a firearm with the present ability to apply force with that firearm. (§§ 240, 245, subd. (a)(2); see People v. Williams (2001) 26 Cal.4th 779, 787.) Pointing a firearm directly at the victim is not required for a conviction of assault with a firearm to be sustained. (People v. Raviart (2001) 93 Cal.App.4th 258, 263.) Indeed, all that is required is that a defendant demonstrate the ability to apply force with that firearm once he "'has attained the means and location to strike immediately.'" (Id. at p. 267.)
Additionally, a witness's inconsistent statements are factors for a jury to consider in assessing the credibility of the witness. (People v. Lewis (2001) 26 Cal.4th 334, 361 (Lewis).) On appeal, we must give substantial deference to the trial court's determinations of witness credibility. (Id. at p. 359.) Even if there are suspicious conflicts and inconsistent testimony, reversal of the judgment is not justified. (Ibid.)
Here, sufficient evidence existed for the jury to conclude that Hedman willfully drew his gun out of the Jeep's window, and had the means to shoot at Lopez when he did so. Although Lopez testified at trial that he saw the Jeep's passenger extend his hand out of the car, but that he was unsure whether that person had a gun in his hand, Lopez's statement to the police, immediately after the pawn shop robbery indicated that a man pointed a gun at him from the Jeep's passenger side. Similarly, as he was following the Jeep, Lopez called 911 and told the operator that he stopped following the Jeep because he saw a man point a black gun at him.
The prosecution properly admitted Lopez's statements at trial, and the jury was free to assess their credibility in comparison to Lopez's trial testimony during which he claimed to have "imagined" the gun because he was "nervous." As respondent properly notes, a jury may consider a witness's prior statements as substantive evidence. (People v. Solórzano (2007) 153 Cal.App.4th 1026, 1038.) Moreover, as the court in Lewis held, weight and credibility are determinations left for the trier of fact. (Lewis, supra, 26 Cal.4th at p. 359.) In Lewis, the court accepted inconsistent declarations from a mentally unstable witness, and held that such inconsistent testimony may be accepted and appropriately weighed by the jury. (Ibid?)This case involves inconsistent testimony from a distressed robbery witness, whose credibility could be properly determined by the jury. As in Lewis, the jury had the necessary evidence to assess the key witness's credibility, and Hedman's culpability. On appeal, our role is "a limited one," and we cannot engage in the weighing of evidence and the determination of witness credibility. (Smith, supra, 37 Cal.4th at p. 738.) Accordingly, all that we must consider is whether, when reviewing the record in the light most favorable to the judgment, substantial evidence exists to support the lower court's judgment. (Davis, supra, 10 Cal.4th at p. 509.)
Here, additional evidence corroborated Lopez's pretrial statements that Hedman had pointed a gun at him from the passenger seat of the Jeep. First, Rodriguez testified that Hedman wore a long-sleeved burgundy shirt and used a black handgun when he robbed her store, thus matching Lopez's description to Deputy Zavala. Hedman himself corroborated Rodriguez's testimony during his interview with Detective Rojas. Detective Barrios also testified that he witnessed Hedman take off a burgundy dress shirt and remove a handgun from his waistband as he exited the Jeep shortly before his arrest. The evidence thus confirmed that Hedman had a gun in his possession both immediately before and immediately after he allegedly assaulted Lopez with a firearm. This evidence substantially corroborates Lopez's pretrial statements that Hedman had pointed a gun at him from the Jeep's passenger seat.
From this evidence, the jury could reasonably conclude that Hedman assaulted Lopez with a firearm. Accordingly, we affirm the trial court's judgment.
2. THE FIREARM ENHANCEMENTS (COUNT 1 AND 4)
The jury convicted Hedman of second degree robbery (§ 211, count 1) and criminal threats (§ 422, count 4), and also found true the allegations that he personally used a firearm within the meaning of section 12022.53, subdivision (b) on count 1, and that he personally used a firearm within the meaning of section 12022.5, subdivision (a) on count 4. Hedman contends that the trial court's imposition of firearm enhancements on both counts 1 and 4 violates section 12022.53, subdivision (f). Specifically, Hedman argues that the enhancement on count 4 should have been stayed because "[t]he course of conduct underlying [that enhancement] was identical to the course of conduct underlying the . . . allegation attendant to Count 1." We disagree.
Section 12022.53, subdivision (f) provides, in relevant part: "[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement pursuant to this section." (Italics added.)
In People v. Palacios (2007) 41 Cal.4th 720, the California Supreme Court upheld the trial court's imposition of three separate firearm enhancements under section 12022.53, subdivision (d) on a defendant convicted of, among other things, attempted murder, kidnapping for robbery, and kidnapping for carjacking, all committed against one victim during the same course of conduct. In Palacios, the defendant forced the victim into his car at gunpoint, made the victim drive to a park, led the victim down a trail, and shot him. (Id. at pp. 723-724.) The court rejected the defendant's argument that the imposition of three firearm enhancements violated section 654's bar against multiple punishment, and instead found that "the intent of section 12022.53, subdivision (f) was to punish the use of firearms linked to the commission of applicable crimes, not discrete acts," and that, therefore, it only limited the imposition of multiple enhancements "based on the crimes committed rather than an analysis of individual acts as called for in section 654." (Id. at pp. 731-732.)
Correspondingly, in People v. Gonzalez, (2008) 43 Cal.4th 1118, the California Supreme Court held that in the event that multiple firearm enhancements are found to be true for the same crime, the court must impose the enhancement with the longest term or imprisonment, while the remaining enhancements must be imposed and then stayed, "making the prohibited enhancements readily available should the . . . enhancement with the longest term be found invalid on appeal." (Id. at p. 1129, italics omitted.)
Here, the jury found Hedman guilty of both second degree robbery (count 1) and criminal threats (count 4), and found the firearm enhancements to be true for both crimes, respectively under section 12022.53, subdivision (b) for count 1, and under section 12022.5, subdivision (a) for count 4. As in Palacios, the trial court in this case imposed two firearm enhancements on the basis of Hedman's commission of two separate crimes. The trial court was thus not required to stay the firearm enhancement on count 4; both enhancements were properly imposed.
3. THE CONSECUTIVE SENTENCES ON COUNT 3 AND 4
Hedman further alleges that the trial court's imposition of consecutive sentences on count 3 (assault by means likely to produce great bodily injury) and count 4 (criminal threats) violated section 654's bar against multiple punishments. Hedman argues that because the acts underlying the robbery (count 1), the assault by means likely to produce great injury (count 3), and the criminal threats "were part of an indivisible course of conduct," the sentences on count 3 and 4 must be stayed. We disagree.
At trial, Hedman's counsel successfully argued that Hedman's conviction for possession of firearm by a felon (count 5) should be stayed pursuant to § 654.
A. Standard of Review
"The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) On appeal, we review the record in the light most favorable to the judgment, and we must uphold the trial court's sentencing order if there is substantial evidence to support it. (Ibid.)
B. Merits
Section 654 prohibits punishment for multiple offenses arising from the same act or series of acts constituting an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)In Neal v. State of California (1960) 55 Cal.2d 11, the California Supreme Court articulated a test to determine the applicability of section 654: "[w]hether 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 offense were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Id. at p. 19.)
Section 654, subdivision (a) provides: "[a]n act or omission that is punishable in different ways by different provisions 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
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On the other hand, "if [the] defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.'" (Harrison, supra, 48 Cal.3d at p. 335, citing People v. Beamon (1973) 8 Cal.3d 625, 639.) For example, in People v. Nichols (1994) 29 Cal.App.4th 1651, 1654 (Nichols),a defendant kidnapped a victim for robbery and threatened to kill him if he "opened his mouth," and the court of appeal concluded that the defendant could be convicted for both acts as there was substantial evidence that the defendant had two different objectives: to hijack the victim's truck by kidnapping and robbing him, and to avoid detection and future conviction by dissuading and intimidating him. (Id. at p. 1657.)
Here, there was substantial evidence for the jury to find that Hedman had different criminal objectives when he committed the robbery (count 1), the assault by means likely to produce great injury (count 3), and the criminal threats (count 4). Unarguably, Hedman's intent in committing the robbery was to take valuables from Rodriguez and the Imperial Pawn Shop. (See § 211; People v. Bacon (2010) 50 Cal.4th 1082, 1117 [robbery is the taking of property by means of force or fear with the specific intent to permanently deprive the owner of that property].)
Hedman committed an assault by means likely to produce great injury (count 3) when he struck Rodriguez in the back of the head, knocking her to the ground. During his interview with Detective Rojas, Hedman described the assault and stated that after Rodriguez started screaming, he "grabbed her, . . . threw her on the floor and . . . put a box over her head so that she [would not] look at [his] face." Rodriguez also testified that Hedman put a cardboard box over her face and told her not to look at him. From this evidence, the trial court could reasonably infer that that Hedman's objective in assaulting Rodriguez was to force her to the ground and cover her face so that she would be unable to identify him. There was, therefore, substantial evidence for the trial court to conclude that section 654 did not require Hedman's sentence on count 3 to be stayed.
Hedman's conviction for criminal threats (count 4) was based on his statements to Anaya and Rodriguez in the course of the robbery. While Anaya was emptying the safe, and as Hedman was sitting on Rodriguez whom he had just knocked to the ground, Hedman screamed at Anaya to hurry up or he was "going to blast this bitch"; he then turned to Rodriguez and told her to stop screaming or he was going to shoot her. On the basis of these statements, the trial court could reasonably conclude that the threats were made for the purpose of silencing Rodriguez so that no one would be alerted that the pawn shop was being robbed. Substantial evidence supported the trial court's conclusion that section 654 did not apply to Hedman's conviction on count 4.
Moreover, as respondent properly argues, there was substantial evidence that Hedman's objective in committing the assault by means likely to cause great bodily injury was distinct from his goal in uttering criminal threats against Rodriguez. As the court in Nichols noted, a defendant's criminal objectives are distinct if the defendant uses different means to achieve them, and the goals are attained at different times. (Nichols, supra, 29 Cal.App.4th at pp. 1657-1658 [defendant's first objective of hijacking the truck was accomplished in two hours by means of threatening the victim with a shotgun, while his second objective of avoiding detection was ongoing and achieved by looking at the victim's driver's license, reading aloud his address, and threatening future harm].)
Here, while Hedman's goal of preventing Rodriguez from alerting others about the robbery was completed when Hedman and Anaya left the pawn shop, his goal of preventing her from identifying him at future court proceedings was ongoing, and continued even after the robbery ended. Further, Hedman used different means to achieve each objective: he used his hand to strike Rodriguez and cover her face in order to prevent later identification, while he prevented her from alerting bystanders by displaying his gun and uttering verbal threats.
As in Nichols, there was substantial evidence for the trial court to find that Hedman harbored distinct criminal objectives when he committed the offenses charged in counts 1, 3, and 4. The trial court therefore properly concluded that section 654 did not preclude imposition of consecutive sentences on counts 3 and 4.
4. THE RESTITUTION AWARDS
Anaya argues that the trial court abused its discretion in awarding restitution to Lopez and Rodriguez, respectively in the amount of $1,200 and $5,500. Specifically, Anaya argues, and respondent concedes, that the trial court's restitution award to Lopez was erroneous because he was not a victim of the crime for which Anaya was convicted. Second, Anaya contends that the trial court's restitution order to Rodriguez was improper because the expenses Rodriguez incurred were for security upgrades. We agree with Anaya's claim that the restitution award to Lopez was erroneous, but we reject his claim regarding Rodriguez's restitution award. Accordingly, we reverse the trial court's restitution order to Lopez, but affirm its order awarding restitution to Rodriguez.
A. Standard of Review
Restitution is constitutionally and statutorily mandated in California. (People v. Mearns (2002) 97 Cal.App.4th 493, 498 (Mearns); Cal. Const., art. I, § 28(b)(13).) This mandate is implemented in section 1202.4, which provides in part that "a victim of a crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." (§1202.4, subd. (a)(1).)
A trial court's restitution order is reviewed for abuse of discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) A restitution order "resting upon a '"demonstrable error of law"' constitutes an abuse of the court's discretion." (People v. Jennings (2005) 128 Cal.App.4th 42, 49 (Jennings).) On the other hand, if there is any "'factual and rational basis'" for the amount ordered, no abuse of discretion is present. (Mearns, supra, 97 Cal.App.4th at p. 499.)
B. Merits
i. The Restitution Award to Lopez
Section 1202.4, subdivision (a)(3)(B) requires the court to order the convicted defendant to pay "[r]estitution to the victim or victims, if any, in accordance with subdivision (f)." In turn, subdivision (f) states, in relevant parts, "in every case in which a victim has suffered economic loss as a result of a defendant's criminal conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." Therefore, under the plain language of section 1202.4, "the court may order restitution only to a 'victim.'" (People v. Slattery (2008) 167 Cal.App.4th 1091, 1095 (Slattery))
Here, Anaya's criminal conviction was limited to the robbery of the pawn shop. California law defines "victims" of robbery as "those persons in either actual or constructive possession of the property taken." (People v. Nguyen (2000) 24 Cal.4th 756, 764.) Undoubtedly, Lopez was not a "victim" of the robbery, as he never possessed any of the property that was taken from the pawn shop. Since the trial court may only order restitution to a victim, Lopez was not entitled to receive restitution from Anaya pursuant to the robbery conviction. (Slattery, supra, 167 Cal.App.4th at p.1095.)
Moreover, although Lopez was the victim of Hedman's assault with a firearm, Anaya was not convicted of that crime, either as a coconspirator, or as an aider and abettor. Anaya cannot be ordered to pay restitution to Lopez for the losses he suffered as a result of Hedman's crime, as a trial court may not order a defendant to pay restitution on the basis of conduct for which he was not convicted. (People v. Woods (2008) 161 Cal.App.4th 1045, 1052-1053.)
Given that we agree with Anaya's claim that Lopez was not a "victim" within the meaning of section 1202.4, we do not reach Anaya's second argument in opposition to the trial court's restitution order. The trial court's award of restitution to Lopez from Anaya was based on a "'"demonstrable error of law"'" and thus constituted an abuse of discretion. (Jennings, supra, 128 Cal.App.4th at p. 49.)
ii. The Restitution Award to Rodriguez
Restitution "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of defendant's criminal conduct, including, but not limited to, all of the following." (§ 1202.4, subd. (f)(3), italics added.) The statute then proceeds to list 11 items, including, under subdivision (f)(3)(J), "[e]xpenses to install or increase residential security incurred related to a crime . . . , including, but not limited to, a home security device or system, or replacing or increasing the number of locks." Hedman argues that, since the statute specifically allows restitution for security improvements to a residence, but makes no mention of commercial establishments, restitution is therefore limited to residential security, and the trial court's award of restitution to Rodriguez for security upgrades was erroneous. Specifically, Hedman contends that "the Legislature . . . intentionally excluded [security] measures taken by commercial enterprises . . . since a commercial enterprises [sic] purchase of security is a cost of doing business." We disagree.
"A victim's restitution right is to be broadly and liberally construed." (Mearns, supra, 97 Cal.App.4th at p. 500.) In addition to compensating the victim, a restitution order is intended to rehabilitate the defendant and to deter the defendant and others from future crimes. (People v. Crow (1993) 6 Cal.4th 952, 957; see People v. Dehle (2008) 166 Cal.App.4th 1380, 1386; People v. Moser (1996) 50 Cal.App.4th 130, 134 (Moser))"Restitution 'is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.' [Citations.]" (Moser, supra, at pp. 135-136.)
Furthermore, by stating in subdivision (f)(3) that restitution was "including, but not limited to, all of the following," the Legislature signaled a clear intent that a trial court has discretion to award restitution for other items not specifically listed in section 1202.4. "Use of those words manifests a legislative intent that the statute not be given an 'expressio unius' construction." (City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d 521, 528.) The nonexclusive list in the statute is not intended to tie the hands of the trial courts. (See People v. Thygesen (1999) 69 Cal.App.4th 988, 994.)
Consistent with the mandate to interpret the restitution statute broadly, courts have upheld awards of restitution for items not specifically enumerated in subdivision (f)(3). In People v. Keichler (2005) 129 Cal.App.4th 1039, the victims of a fight in which the defendant uttered racial slurs were awarded $3,119 for expenses incurred for traditional Hmong healing ceremonies. (Id. at p. 1042.) The Keichler court construed the word "loss" broadly to uphold the legislative intent that every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss, and concluded that because section 1202.4 used the language "including, but not limited to" in describing those enumerated losses, the trial court can compensate the victim for any economic loss that is proved to be the direct result of the defendant's criminal conduct, even if not specifically enumerated in the statute. (Id. at p. 1046.) Thus, the award of expenses arising out of traditional healing ceremonies was proper because it was a result of defendant's conduct. (Id. at pp. 1046-1047.)
Here, as in Keichler, the trial court was not limited to the lists of items enumerated in section 1202.4, subdivision (f)(3) in awarding restitution to Rodriguez. Moreover, Rodriguez presented evidence that the security expenses she incurred following the robbery were the result of Anaya's criminal conduct. Rodriguez owned the pawn shop and was its sole employee. In her letter to the trial court accompanying the invoices for the security upgrades, Rodriguez wrote that the security improvements were necessary because of the extent to which the robbery had "traumatized her," and caused her to not trust anyone who would come through the door of her shop. From these statements, the trial court could reasonably conclude that the security upgrades were designed to restore Rodriguez's peace of mind, which had been severely damaged as result of Anaya's criminal conduct. As in Keichler, the restitution award was proper given that the expenses incurred by Rodriguez in upgrading security in her shop were directly related to Anaya's crime against her. We find no abuse of discretion in the trial court's award of restitution to Rodriguez, and we affirm.
5. THE ABSTRACT OF JUDGMENT
At Hedman's sentencing hearing the trial court ordered Hedman "to pay a court assessment or penalty of $30 for each offense: $150." However, the abstract of judgment reflects a Court Security Fee pursuant to section 1465.8 in the amount of $750. Hedman contends, and respondent agrees, that the abstract of judgment should be corrected to reflect the security fee of $150 ordered by the court at sentencing. We agree.
"[T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the court's oral pronouncement of judgment to the extent the two conflict." (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) Here, because the court at Hedman's sentencing hearing ordered him to pay a $150 security fee, the abstract of judgment which reflects a $750 security fee must be corrected.
DISPOSITION
The trial court is directed to (1) strike its order as to Anaya awarding restitution to William Lopez, and (2) correct the abstract of judgment as to Hedman to reflect the $150 security fee, and to forward the corrected abstract of judgment to the California Department of Correction. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.