Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA039645 Lisa M. Chung, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, David C. Cook and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
Defendant, Christian Josue Bercian, was convicted of second degree robbery (Pen. Code, § 211) (count 1) and five counts of assault with a machine gun (§ 245, subd. (a)(1)) (counts 3-7). This is an appeal following resentencing. We affirm the judgment.
All further statutory references are to the Penal Code.
II. BACKGROUND
The robbery victim and his friends were standing in the street when a red car approached. Defendant was a passenger in the vehicle, which was driven by a fellow gang member. When the robbery victim walked toward the car, the driver pointed an AK-47 assault rifle out the window. Defendant or the gunman ordered the victim to empty his pockets. After the victim handed over all of his property, while the AK-47 was still pointed at him, the gunman asked the victim, “Do you bang?’” Defendant said to the gunman, “‘Should we smoke ‘em?’” The gunman replied, “no” and drove away.
Defendant was originally sentenced to 30 years, 4 months in state prison. However, on a previous appeal, we struck the imposition of a gang enhancement (§ 186.22, subd. (b)(1)(C)) as to count 1. We held the trial court improperly imposed both the gang enhancement and a firearm use enhancement (§ 12022.53, subd. (e)(1)) where defendant was not found to have personally used a firearm. (§ 12022.53, subd. (e)(2); People v. Brookfield (2009) 47 Cal.4th 583, 590.) We remanded to allow the trial court to exercise its discretion in selecting the principal term pursuant to section 1170.1, subdivision (a). (People v. Pena (Apr. 2, 2010, B215191) [nonpub. opn.].) On remand, the trial court resentenced defendant to 24 years, 4 months in state prison.
Counts 1 (robbery) and 3 (assault) involved the same victim. When Judge Lisa M. Chung first sentenced defendant, the court imposed a 25-year sentence on count 1 and imposed but then stayed (§ 654) a 20-year sentence on count 3. When Judge Chung resentenced defendant, on remand, the court observed that count 3 involved the same victim as count 1, then imposed a 25-year sentence on count 1 and a concurrent unstayed 20-year sentence on count 3.
III. DISCUSSION
Defendant contends the trial court should have stayed the sentence on the assault charged in count 3 pursuant to section 654. We find substantial evidence supports the trial court’s implied finding defendant and the gunman harbored a separate intent and objective when, after the robbery was complete, while continuing to hold the victim at gunpoint, they sought to determined whether the victim was a gang member who should be “smoked.”
Section 654, subdivision (a) precludes multiple punishments for a single act or indivisible course of conduct. (People v. Coleman (1989) 48 Cal.3d 112, 162.) “‘The divisibility of a course of conduct depends 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.’ [Citation.]” (Ibid.) Error in the application of section 654 is subject to correction on appeal regardless whether it was raised by objection in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.)
Our review is for substantial evidence to support the trial court’s implied finding defendant harbored a separate intent and objective. (People v. Coleman, supra, 48 Cal.3d at p. 162; People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) “Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
In the specific context of robbery and assault, “[t]he rule is that when a defendant is responsible for both an assault and [a] robbery, he can be punished for both crimes if the assault was not incident to the robbery and was motivated by a separate criminal objective [citation], but if the assault was committed in order to accomplish the robbery, then the defendant can be punished for only one of the crimes. [Citations.]” (People v. Martinez (1984) 150 Cal.App.3d 579, 606, disapproved on another point in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.) In People v. Coleman, supra, 48 Cal.3d at pages 162-163, for example, there was evidence of a separate intent and objective when, following a completed robbery, the defendant stabbed the victim. (See also, People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300 [after attempted robbery was complete, defendant shot victim]; People v. Nguyen (1988) 204 Cal.App.3d 181, 189-193 [after robbery was complete, defendant’s crime partner shot victim]; People v. Johnson (1969) 270 Cal.App.2d 204, 208-209 [following completed robbery, perpetrators fired shot from departing automobile].)
The trial court impliedly concluded the intent and objective of the gunman and defendant changed over the course of the encounter with the victim. At first, the intent and objective was to use the gun to accomplish a robbery. After the robbery was accomplished, the record reflects the intent and objective, while the victim was being held at gunpoint, was to determine whether (a) the victim was a gang member, and (b) the victim should be “smoked.” Thus, the trial court could have reasonably concluded the post-robbery assault carried a distinct intent and objective from the assault during the commission of the robbery. “[S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.” (People v. Nguyen, supra, 204 Cal.App.3d at p. 191.) The post-robbery assault could reasonably be characterized as a gratuitous act of violence that falls outside the scope of section 654.
IV. DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, ACTING P.J., MOSK, J.