Opinion
B229098
12-23-2011
THE PEOPLE, Plaintiff and Respondent, v. NICK BUSTAMANTE, Defendant and Appellant.
Alex Coolman, 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, Linda C. Johnson, Supervising Deputy Attorney General, Robert M. Snider, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. NA084561, NA084674)
APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed as modified.
Alex Coolman, 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, Linda C. Johnson, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
Nicholas Bustamante was convicted by a jury of one count of felon in possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)), one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), three counts of false imprisonment by violence (Pen. Code, § 236) and three counts of second degree robbery (Pen. Code § 211) arising out of defendant's robbery of a boutique owner, her employee, and a customer that he herded into a back room for purposes of taking their money and jewelry. He contends insufficient evidence supports his conviction of one count of false imprisonment, and that the trial court erred in failing to apply Penal Code section 654 to the false imprisonment counts. We affirm defendant's convictions on all counts, but stay his sentence on the false imprisonment counts pursuant to Penal Code section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 13, 2010, at approximately 5:30 p.m., Deanna Rivera went to the Frances Boutique on Pacific Coast Highway in Wilmington to pick up a blanket that Maria Frances Torres, the owner of the boutique, had made for her. Rivera and Torres were the only people in the front of the store; a seamstress was working in the back of the store. As Rivera was paying, defendant walked by and poked his head in the door and asked Torres if the boutique sold tuxedos. Torres responded the boutique rented them, but did not sell them. Defendant left, and Torres told Rivera she was a little nervous because the man looked unusual.
Within a few minutes, defendant returned with a gun in his hand. Rivera had her back to the door because she was facing the payment counter, and defendant came and put the gun in her back. The gun was medium size and black. Torres saw defendant holding Rivera "from her shoulders" and she saw he was pointing a gun at Rivera's ribs. Rivera only had $3 on her, and she gave it to defendant. Defendant said in a loud angry voice, "'Open the fucking cash register.'" Torres did not know how much cash was in the register, but defendant took it. Defendant pushed Rivera with his right hand around the counter, still holding the gun in his left hand. He ordered Rivera and Torres to kneel down behind the counter because he did not want anyone passing by to see them. Defendant kept yelling at them not to look at him.
Defendant ordered Rivera and Torres to go into the back room. The seamstress, Eva Casillas, was in the back room, and she saw Rivera and Torres come in with defendant behind them, pushing them. Rivera and Frances were crying. Defendant made them lie on the floor so they could not look at him. Defendant was speaking in English, and Casillas, who did not speak much English, did not understand him well. Torres told her in Spanish to get onto the ground, and Torres saw defendant go through Casillas's purse, from which he took $160.
Defendant told the three women to take off their rings. Torres told Casillas what defendant wanted, and Casillas gave her rings to him because she was afraid. He ordered Torres to open her purse and empty the contents onto the floor. Defendant went through her purse and became overtly angry. Defendant stated that if the women did not stop "messing around" and give him some money, that "somebody was going to get shot." Torres did not feel she was free to leave the room because defendant was pointing the gun at them and told them he would shoot them if they did anything.
Defendant left through the front door, although Rivera did not actually see him leave because she had her head down because she was scared. Rivera, Torres, and Casillas identified defendant from a six-pack at the police station and at trial.
Police officers who had no knowledge of the Frances Boutique robbery went to Room 203 at the Crescent Inn motel in Wilmington on January 22, 2010 at approximately 9:00 p.m. The motel is three blocks from the Frances Boutique. Defendant attempted to exit the room through the rear balcony, but then ran back into the room and opened the motel room door. Defendant was in the room with some metal knuckles. In the room police found a glass pipe, a replica firearm, and five hypodermic needles, and on the balcony they found a balloon containing a usable quantity of heroin. Police arrested defendant.
Apparently, police were conducting a parole search of defendant.
The investigating officer of the Frances Boutique robbery saw defendant's arrest report and determined defendant matched the description of the suspect in the robbery. He separately showed the three victims defendant's six-pack photo array, and obtained from each of them a positive identification of defendant.
Defendant's mother Virginia Umana went to the hotel after defendant was arrested on January 22, 2010 and met with police. At that time, she learned he was accused of committing a robbery on January 13, 2010. She recalled that on January 13, in the afternoon, defendant had called saying he needed gas, so she met him at 28th and Figueroa, near their house. After that, they went to their home in Carson. She and defendant had dinner with her husband, and then sat and watched television. Umana had rented the motel room for defendant where he was arrested, and defendant was not staying with her when he was arrested.
Richard Estrada, defendant's stepfather, went to the motel with defendant's mother the night he was arrested. Estrada recalled that defendant was home with them the night of January 13, 2010, from around 5:00 p.m. to 7:00 p.m.
Defendant was charged in a second amended eight-count information with one count of felon in possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)), one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), three counts of false imprisonment by violence (Pen. Code, § 236) and three counts of second degree robbery (Pen. Code, § 211). The amended information further alleged that with respect to each of the counts that defendant had 16 prior serious or violent felony convictions (Pen. Code, § 667, subd. (b)-(i); Pen, Code, § 1170.12, subd. (a)-(d)), 14 of which were further alleged as serious felony convictions (Pen. Code, § 667, subd. (a)(1)) and that defendant had served four prior prison terms (Pen. Code, § 667.5 subd. (b)).
The jury convicted defendant of all eight counts. Defendant admitted he suffered four prior prison terms, the 16 prior strike convictions, and one of the prior serious felony convictions. The court sentenced him to an aggregate term of 208 years to life, consisting of 25 years to life on count one, with three consecutive one-year enhancements for three of the prior prison terms; a consecutive 25-years-to-life sentence on count 2, and consecutive 25-years-to-life sentences on each of the six remaining counts, with a five-year prior serious felony enhancement.
One of the prior prison terms was not used for purposes of enhancement, under the authority of People v. Jones (1993) 5 Cal.4th 1142, 1152 because it was also used as a "strike" to enhance the sentence on this count.
DISCUSSION
I. SUFFICIENT EVIDENCE SUPPORTS DEFENDANT'S CONVICTION ON COUNT 8 FOR FALSE IMPRISONMENT OF EVA CASILLAS
Defendant contends insufficient evidence supports his conviction for false imprisonment of Eva Casillas because the prosecution argued the counts were based on defendant's actions in forcing Rivera and Torres into the backroom and requiring them to get on the floor, but Casillas was already in the back room, and Casillas did not speak English, and so it was Torres who told her to get on the floor. As a consequence, he contends, the evidence does not demonstrate he made Casillas go or stay anywhere, or that he used force or menace to move or restrain her.
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) A victim's personal liberty is violated when he or she is compelled to go where he or she does not wish to go, or to remain where he or she does not wish to remain. (People v. Von Villas (1992) 10 Cal.App.4th 201, 255.) False imprisonment is a misdemeanor unless it is "effected by violence, menace, fraud, or deceit." (§ 237.) Although force is an element of both felony and misdemeanor false imprisonment, felony false imprisonment requires force that is greater than reasonably necessary to effect the restraint. (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.) "When a rational factfinder could conclude that a defendant's acts or words expressly or impliedly threatened harm, the factfinder may find that there is menace sufficient to make false imprisonment a felony. An express threat or use of a deadly weapon is not necessary." (People v. Wardell (2008) 162 Cal.App.4th 1484, 1491.)
In People v. Castro (2006) 138 Cal.App.4th 137, the defendant followed a 16-year-old girl in his car as she walked down the street towards a bus stop on her way to school. (Id. at p. 139.) He called out to her, but she ignored him. Approximately a week later, he drove by her again as she walked to school, asking her whether she wanted a ride and making a lewd suggestion to her. She responded, "'How could you say that? You're a dirty man.'" She kept walking, but the defendant grabbed her arm and pulled her towards him. (Ibid.) She pulled away from the defendant, and started running. (Id. at p. 142.) The court found the force the defendant used to pull the victim to his car was sufficient to establish felony false imprisonment because it was "an act more than what was required to stop her and keep her where she was located." (Id. at p. 143.)
In People v. Wardell, supra, 162 Cal.App.4th 1484, the defendant robbed a bank and escaped in a car with an accomplice. Bank employees had placed a tracking device in the money defendant took from the bank, and police traced the car to a house. (Id. at pp. 1488-1489.) Defendant, who did not know the owners of the house, entered the house through a rear entrance with a gun in his hand. Defendant held the gun pointed at the ground, and followed the victim as he directed him into a bedroom and to a bathroom as defendant disposed of some evidence. (Id. at p. 1489.) Wardell rejected the defendant's argument that the false imprisonment was not felonious because the defendant did not use the gun in a manner to threaten the defendant. "By openly holding a gun in his hands as he directed [the victim] around the house, defendant implied that he was threatening to use the gun." (Id. at pp. 1490-1491.)
In People v. Reed (2000) 78 Cal.App.4th 274, three men held three other persons (two women and one man) captive at gunpoint, and ordered them to lie on the floor. At various times while the gunmen went through the apartment and one of the victim's purses, the gun was placed against each of the victim's heads and was used to pistol-whip the male victim. Both women believed they were going to be killed. (Id. at pp. 278- 281.) The court found this evidence sufficient to support felony false imprisonment convictions. (Id. at p. 281.)
Although Castro and Wardell dealt with the degree of force required to elevate misdemeanor false imprisonment to felony false imprisonment, all of the cases illustrate of the scope of restraint that constitutes false imprisonment in the first instance. Here, defendant complains that because Casillas did not understand English, defendant's conduct in herding the other two victims into the back room would not have the effect of restricting Casillas's movement to the back room of the boutique. We disagree. False imprisonment requires the restraint of a person's movement such that it can be accomplished by forcing them to remain in a place they do not wish to remain. Here, Casillas understood the import of defendant's actions in bringing the other victims into the back room, ordering them onto the floor, going through their purses and taking their rings as a clear sign that she was not free to leave. (People v Babich (1993) 14 Cal.App.4th 801, 806 [menace is a threat of harm express or implied by word or act].)
II. SECTION 654
Defendant contends that his punishment on counts 6, 7 and 8 (the false imprisonment counts) violates the prohibition of section 654 against multiple punishments for a single course of conduct carried out with one objective. He contends the false imprisonments were incidental to the robberies because it was not necessary to move Rivera and Torres into the back room to commit the robberies, and that the trial court improperly relied on an incorrect legal analysis by applying People v. James (2007) 148 Cal.App.4th 446, thereby permitting us to review the matter de novo.
In sentencing defendant, the trial court, relying on People v. James, supra, 148 Cal.App.4th 466, stated that the false imprisonment counts were "not merged," with the three robbery counts because the "false imprisonment by violence, that is by pointing a very good and real-looking replica firearm, was not necessary to the robbery, which was the taking of the wedding rings of the victims, the [money], among other things by instilling fear, before the false imprisonment."
People v. James, supra, 148 Cal.App.4th 466 dealt with the issue of the asportation element in a robbery/kidnapping case under section 209, subdivision (b)(2), and whether the movement of the victim was beyond that merely incidental to the commission of the robbery, and did not directly address section 654.
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A defendant may be convicted of, but not punished for, more than one crime arising out of the same course of conduct. (§§ 654, 954.) Where section 954 permits multiple convictions, but section 654 bars multiple punishments, the trial court stays execution of sentence for those convictions on which multiple punishment is prohibited. (People v. Pearson (1986) 42 Cal.3d 351, 359-360.) Section 654 provides that "[a]n act or omission that is punishable in different ways by different provisions of law 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 . . ." In sum, section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Thus, if all of the crimes committed were merely incidental to or were the means of accomplishing or facilitating a single objective, the defendant may receive only one punishment. (Ibid.) However, if the defendant had several, independent criminal objectives, he or she may be punished for each crime that was committed in pursuit of separate objectives, even where the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) "The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]" (People v. Adams (1982) 137 Cal.App.3d 346, 355; People v. Harrison, supra, 48 Cal.3d at p. 335 [question of whether the defendant harbored a "single intent" is a factual determination made by the trial court].) On appeal we will sustain the court's implied factual determination if supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730.)
Even under the deferential standard of review, substantial evidence does not support the determination that defendant possessed independent criminal objectives when he robbed and falsely imprisoned Torres, Rivera and Casillas at the Frances Boutique. According to the evidence, after taking money from the cash register and $3 that Rivera had in her wallet, defendant ordered Torres and Rivera to the back room, where Casillas, a seamstress at the store, was working. Once in the back room, defendant directed the women to lie on the ground and give him their rings. The three women removed their rings and put them on the floor. He told Torres and Casillas to get their purses, which were located in the back room. Defendant took $160 out of Casillas's purse and a bag of jewelry out of Torres's purse. He then left the store. Based on this evidence, defendant falsely imprisoned the three women in the back of the store so that he could rob them and obtain more than he had from the register and Rivera's wallet. Defendant thus possessed a single criminal objective when he robbed and falsely imprisoned Torres, Rivera and Casillas and, as a result, should not have been punished for both robbery and false imprisonment as to each of the women. Accordingly, execution of the 25-year-to-life sentences imposed on counts 6, 7, and 8 for false imprisonment should have been stayed pursuant to section 654.
DISPOSITION
Defendant's sentence on counts 6, 7, and 8 is stayed pursuant to Penal Code section 654. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
JOHNSON, J. We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.