Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA279836, William R. Pounders, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Condalee Morris appeals from the judgment entered following his convictions by jury on two counts of first degree residential robbery (Pen. Code, § 211) in concert (Pen. Code, § 213, subd. (a)(1)(A)) with personal firearm use (Pen. Code, § 12022.53, subd. (b)) (counts 1 & 2), count 6 – criminal threats (Pen. Code, § 422) with personal firearm use (Pen. Code, § 12022.5, subd. (a)(1)), two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) with personal firearm use (Pen. Code, § 12022.5, subd. (a)(1)) (counts 7 & 9), count 8 – possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and count 10 – attempted first degree robbery (Pen. Code, §§ 664, 211) in concert (Pen. Code, § 213, subd. (a)(1)(A)) with personal firearm use (Pen. Code, § 12022.53, subd. (b)). The court sentenced appellant to prison for 35 years. Appellant contends the trial court committed trial and sentencing errors. We modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that about 1:00 a.m. on March 2, 2005, appellant and three accomplices broke into the Los Angeles home of Heladio and Katherine Rayos. Katherine ran into her bedroom and called 911 for help. One of the accomplices entered Katherine’s bedroom, pointed a shotgun at her head, demanded to know whom Katherine had called, and told Katherine “‘“[i]f you call the cops, I’m going to fucking kill you.’” Katherine replied she had called her mother and not the police.
Appellant later took Heladio and Katherine at gunpoint to Heladio’s bedroom. An accomplice brought Aaron, Katherine’s grandson, into Heladio’s bedroom. The accomplice was holding Aaron by the neck and pointing a gun at his head. Appellant pointed a gun at Heladio’s head while hitting him and asking where the money was. Katherine screamed at appellant to not kill Heladio. Appellant began choking Katherine, put a gun to her head, and told her “‘I’m going to fucking kill you. I’m going to fucking kill you. We know you have two guns in the house.’” Katherine denied possession of guns. Appellant replied, “‘[i]f you don’t give them to me now, I’m going to kill you.’” Appellant put a gun to the head of Matthew, Katherine’s son, and told Matthew that if he said anything, appellant would kill him.
Appellant and his accomplices put guns to the heads of Aaron and Matthew, and told Katherine, “‘If you don’t tell U.S. where the money is at, we’re going to kill them.’” Appellant choked Katherine at gunpoint while his accomplices assaulted Heladio. Appellant robbed Heladio of money that had been in his pants pockets. Appellant robbed Katherine when she surrendered a gun to him. At some point, Denise, Katherine’s daughter, was robbed.
Katherine acknowledged that Katherine had money in a purse, and appellant told a confederate to get it. However, a police helicopter arrived and interrupted the confederate’s efforts to get money from the purse. Appellant grabbed Katherine by the neck and began forcibly walking her out of Heladio’s bedroom and toward the kitchen. Katherine offered herself as a hostage on the condition that appellant would leave her family alone. Appellant told her to shut up, told her she was talking too much, and, using his hand, knocked her down. Appellant fled to the front door and the other assailants later approached the front door. Denise tried to unlock the front door, and appellant, using profanity, yelled at Denise to open it. Appellant still had his gun. Appellant used a cell phone to speak to someone outside.
While appellant and Denise were at the front door, Katherine rushed up to appellant and again offered herself as a hostage. Appellant replied, “‘Shut the fuck up,’” struck her in the face with the gun, and Katherine fell. Appellant’s blow injured Katherine’s lip. The assailants ran to the kitchen but later returned to the front of the house in an unsuccessful effort to avoid capture. Appellant had suffered prior felony convictions.
CONTENTIONS
Appellant contends (1) his conviction on count 6 must be reversed because it was submitted to the jury on an incorrect legal theory, (2) imposition of an upper term on his conviction on count 1 violated his rights to a jury trial and proof beyond a reasonable doubt, (3) imposition of upper terms on firearm use enhancements pertaining to counts 9 and 10 violated his rights to a jury trial and proof beyond a reasonable doubt, (4) multiple punishment on counts 2 and 9 violated Penal Code section 654, and (5) multiple punishment on counts 2 and 6 violated Penal Code section 654.
DISCUSSION
1. The Trial Court Did Not Submit to the Jury An Erroneous Legal Theory as to Count 6.
a. Pertinent Facts.
During opening argument, the People indicated they would discuss the law, facts, and then specific crimes. After the prosecutor later began discussing the facts, the prosecutor argued that when Katherine was calling 911, an accomplice entered the room, asked her whom she had called, and said “‘If you called the cops, I will kill you.’” The prosecutor argued, “So that right there, that is an act by one of the aiders and abettors, and the defendant is guilty of that act even though he didn’t commit it, because they’re all aiding and abetting. They’re all guilty of everything that the other is doing in this enterprise. They’re all equally liable for this. [¶] So right there the defendant is guilty of that criminal threat . . . .”
The prosecutor later said, “let me simplify this. The defendant did it himself later, okay. But if you don’t believe that, then . . . the defendant is also guilty for what his buddy was doing when his buddy committed those acts.” The People conceded the jury could not find true the firearm use allegation as to the offense of criminal threats based on the “buddy . . . using [the firearm].” The prosecutor subsequently said, “But as I’m going to tell you later, [appellant] does it himself with a firearm anyway. So this is just extra.”
The People later argued that Katherine screamed for the assailants not to kill her husband, and appellant grabbed her, put a gun to her head, and said, “‘I’ll fucking kill you. We know you have two guns in the house. If you don’t give U.S. the money or guns, we’re going to kill you.’” The prosecutor said, “So that is the criminal threat that the defendant committed himself, he’s committing it using a gun, . . .”
Later, after the prosecutor began discussing specific crimes and individual counts, the prosecutor discussed the offense alleged in count 6. The prosecutor argued as follows. The offense “happened in a couple of different places.” It “happened by one of the other robbers,” and “it also happened when the defendant came up to her and put a gun to her and said, ‘I’ll fucking kill you. We know you have the guns in the house. If you don’t give U.S. the money or guns, we’re going to kill you.’” The prosecutor, focusing on the latter incident, told the jury, “. . . I want that one to be the criminal threats.” The prosecutor then said, “Let me get a little legal here,” asked the jury to consider the latter incident, and said, “[t]hat’s the criminal threat.” The People argued the Penal Code section 12022.5 allegation pertaining to count 6 required personal use of a firearm. Appellant argued he was misidentified.
The court instructed the jury on criminal threats (count 6) using CALJIC No. 9.94. The court also instructed on accomplice liability using CALJIC No. 3.01. The court instructed pursuant to CALJIC No. 17.19 that the firearm use allegation as to count 6 required appellant to have personally used a firearm. The court also gave a unanimity instruction (CALJIC No. 17.01) as to, inter alia, count 6.
That instruction read: “A person aids and abets the commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”
That instruction read: “The defendant is accused of having committed the crime of Criminal Threats and Assault with a Firearm in Counts 6, 7, and 9. The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts. However, in order to return a verdict of guilty to Counts 6, 7 or 9, all jurors must agree that he committed the same act or acts. It is not necessary that the particular act agreed up on [sic] be stated in your verdict.”
b. Analysis.
Appellant claims “it is not true that appellant could be found guilty of aiding and abetting the threat made by the ski mask robber on the theory that appellant was ‘guilty of everything the other was doing’”; therefore, his conviction on count 6 must be reversed because it was submitted to the jury on an erroneous legal theory. We reject his claim.
In the present case, the threat at issue was the masked confederate’s threat to Katherine, “‘[i]f you call the cops, I’m going to fucking kill you.’” Appellant argues the case was submitted to the jury on a legally inadequate theory because the People argued to the jury that appellant’s accomplice liability for the confederate’s threat was based on the theory that appellant was guilty of everything the confederate did. What appellant is really arguing is that the case was improperly submitted because the People erroneously argued that appellant’s accomplice liability for the confederate’s threat was based on a theory of strict liability, that is, apart from whether appellant had a culpable mental state as to his confederate’s threat.
However, first, the People never made that argument. Indeed, the People did not expressly argue whether appellant’s accomplice liability for the confederate’s threat was based on the theory that (1) appellant intended the confederate to make the threat, (2) the confederate’s threat was a natural and probable consequence of another crime which appellant aided and abetted, or (3) appellant, as an accomplice, was strictly liable for the confederate’s threat. The People simply argued that appellant, as an accomplice, was guilty of the confederate’s threat. The People did not argue on what theory appellant was guilty as an accomplice.
Second, the prosecutor, during his discussion of specific crimes and individual counts, explicitly distinguished two acts of criminal threats against Katherine and expressly elected to prosecute appellant based on the second act. The second act occurred when, as characterized by the prosecutor, appellant came up to Katherine, put a gun to her and said, “‘I’ll fucking kill you. We know you have the guns in the house. If you don’t give U.S. the money or guns, we’re going to kill you.’” During the second act, appellant was the direct perpetrator of a threat, not an accomplice. By electing during opening argument to prosecute count 6 based on the second act, the People abandoned any reliance on the theory that appellant was liable on count 6 as an accomplice.
Third, in any event, to the extent appellant’s claim relies solely on the prosecutor’s jury argument, a case cannot, based on such argument alone, be deemed to have been submitted to the jury on a legally inadequate theory. (People v. Morales (2001) 25 Cal.4th 34, 43 (Morales).
Fourth, appellant does not claim the trial court erred by receiving inadmissible evidence (Morales, supra, 25 Cal.4th at p. 48), nor did instructional error legally mislead the jury (see ibid.). As to instructional error in particular, even if the People’s jury argument suggested appellant’s conviction on count 6 properly could have been based on accomplice liability for the confederate’s threat based on a theory of strict liability, the trial court’s instructions, for the reasons discussed below, did not legally mislead the jury.
CALJIC No. 3.01 instructed the jury only on appellant’s accomplice liability for the crime he intended the confederate to commit. The instruction required the accomplice to know the confederate’s unlawful purpose and share his criminal intent. The instruction did not purport to address accomplice liability based on a theory of strict liability for a confederate’s actions. CALJIC No. 17.01 was a unanimity instruction that applied to, inter alia, count 6. Read together, these two instructions, in pertinent part, told the jury only that appellant’s liability as to count 6 could be based upon multiple acts, including appellant’s accomplice liability for the crime he intended the confederate to commit, and the jury had to unanimously agree on one of the multiple acts. Strict liability was not implicated.
Prior to jury argument and instructions, the People requested that CALJIC No. 17.01 be given because appellant’s conviction on count 9 could have been based on multiple acts. The People acknowledged the court would have to give CALJIC No. 17.01 based on count 6 as well unless the People elected offenses as to that count during jury argument. As mentioned, the People made that election but the court gave CALJIC No. 17.01, including its reference to count 6, anyway.
Finally, even if the jury had been presented with a legally inadequate theory of accomplice liability for the confederate’s threat based on strict liability, the jury was also presented with the legally adequate theory of appellant’s direct perpetration of a threat. As mentioned, the People elected during opening argument to prosecute appellant on count 6 based solely on appellant’s direct perpetration of a threat (the second act).
The doctrine of election protects two procedural rights of the criminal defendant in cases where the evidence tends to show a larger number of offenses than have been charged: the right to be advised of the charges, and the right to a unanimous jury verdict. (People v. Salvato (1991) 234 Cal.App.3d 872, 878.) The prosecution may make such an election during opening argument (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455) and thereby “elect[s] what conduct by defendant amounted to the crime charged.” (Ibid.)
The prosecutor’s election amounted to an advisement that the crime charged in count 6 was a violation of Penal Code section 422 based, not on accomplice liability, but on appellant’s liability as a direct perpetrator, and the jury, by its unanimous verdict, convicted him of that charged crime. That the jury convicted appellant on count 6 based on his direct perpetration of a threat is also demonstrated by the jury’s finding, as to the firearm enhancement pertaining to that count, that appellant personally used a firearm, a finding inconsistent with the theory that appellant’s liability for a criminal threat was solely that of an accomplice to a threat made by a confederate who personally used a firearm. Therefore, even if the jury was presented with a legally inadequate theory, reversal is not required because the jury necessarily found appellant guilty on count 6 on a proper theory. (Cf. People v. Perez (2005) 35 Cal.4th 1219, 1233; People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
To the extent appellant claims he was denied effective assistance of counsel as a result of his trial counsel’s failure to object to alleged prosecutorial misconduct resulting from the People’s jury argument, we reject that claim since, based on the above analysis, appellant suffered no prejudice from any constitutionally deficient representation. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
2. The Court Did Not Err by Imposing An Upper Term on Count 1, or by Imposing An Upper Term on the Enhancement Pertaining to Count 9, Nor Did the Court Err by Imposing the Enhancement as to Count 10.
a. Pertinent Facts.
The amended information alleged as count 8 that appellant committed a violation of Penal Code section 12021, subdivision (a)(2), possession of a firearm by a felon. The amended information alleged as the predicate felony conviction that appellant suffered a 2004 conviction in case No. TA077363 for a violation of Penal Code section 12025, subdivision (a)(2).
The probation report prepared for an April 2005 hearing reflects appellant was born in May 1976. The report reflects the following concerning appellant’s adult criminal history. Appellant suffered a 1997 conviction for a violation of Health and Safety Code section 11377 (possession of a controlled substance), a 2000 conviction for a violation of Penal Code section 273.5, subdivision (a) (corporal injury upon a spouse), and a 2001 misdemeanor conviction for a violation of Penal Code section 148.9, subdivision (a) (impersonating a peace officer). Appellant also suffered a 2001 misdemeanor conviction for a violation of Penal Code section 148, subdivision (a)(1), a 2004 conviction for a violation of Penal Code section 148.9, subdivision (a), and a 2004 conviction for a violation of Penal Code section 12025, subdivision (a)(2) (carrying a concealed firearm) in case No. “TA07736301.”
The August 1, 2005 minute order pertaining to July 25, 2005 proceedings reflects that, on the latter date, appellant and his counsel “stipulate[d] to the fact that the defendant did in fact suffer a previous felony conviction as it relates to count[] . . . 8.”
On August 17, 2005, the court, which read and considered the probation report, sentenced appellant to prison for 35 years. Appellant’s sentences on count 1, on the Penal Code section 12022.5 enhancement pertaining to count 9, and on the Penal Code section 12022.53, subdivision (b) enhancement pertaining to count 10, are the only sentences pertinent here.
In particular, at sentencing, the court imposed the nine-year upper term on count 1 “because of the seriousness of the offense and the violence used in committing it[.]” The court later stated, “Count 9, assault on Katherine Rayos, this is where her teeth were almost knocked out, according to at least the description of her husband. She didn’t describe it as being quite that violent, but that was the physical damage to her face from the assault with a firearm. [¶] And that is a consecutive sentence, a separate infliction of violence on the victim. It was unnecessary. This is as the four individuals are trying to escape the premises after the police responded. [¶] One-third of the mid term of three years on count 9 for one year[.]”
The court expressed uncertainty as to whether the enhancement as to count 9 was a Penal Code section 12022.53 or a Penal Code section 12022.5 enhancement. The court then imposed, as to the Penal Code section 12022.5 enhancement pertaining to count 9, a consecutive subordinate term of 3 years 4 months, as one-third of the upper term.
As to the Penal Code section 12022.53, subdivision (b) enhancement pertaining to count 10, the court imposed a consecutive subordinate term of three years four months (as one-third the 10-year term for the enhancement).
Penal Code section 12022.53, subdivision (b), states, in relevant part, “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years.” Attempted robbery is a felony specified in subdivision (a).
b. Analysis.
Appellant effectively claims the trial court committed Cunningham error when imposing the upper terms on count 1, on the enhancement pertaining to count 9, and on the enhancement pertaining to count 10. We conclude otherwise.
(1) Applicable Law.
“In Cunningham [v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] [Cunningham]], the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), concluded that California’s [determinate sentence law] does not comply with a defendant’s right to a jury trial. ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, 549 U.S. at pp. ___-___ [127 S.Ct. at pp. 863-864].)” (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).)
The Sandoval court later observed, “Apprendi stated, ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ (Apprendi, supra, 530 U.S. at p. 490, italics added.)” (Sandoval, supra, 41 Cal.4th at p. 835.)
In Blakely, the high court concluded that “‘the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ (Id. at p. 303.)” (Sandoval, supra, 41 Cal.4th p. 836.)
In People v. Black (2007) 41 Cal.4th 799 (Black), our Supreme Court stated, “we agree with the Attorney General’s contention that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial.” (Id. at p. 812.) The court also stated, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
Black also stated, “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black, supra, 41 Cal.4th at p. 816.)
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (Sandoval, supra, 41 Cal.4that pp. 836-837.)
(2) Application of the Law to This Case.
(a) Count 1 and the Enhancement as to Count 9.
In the present case, the record reflects that appellant suffered prior convictions. These rendered him eligible for imposition of the upper term on count 1, and on the Penal Code section 12022.5 enhancement as to count 9. (Black, supra, 41 Cal.4th at pp. 812-816.) No Cunningham error occurred when the trial court imposed these upper terms.
(b) The Enhancement as to Count 10.
Appellant claims the trial court erroneously imposed an upper term as to the enhancement pertaining to count 10. We reject the claim. The court did not impose an upper term. The court imposed a consecutive subordinate enhancement term of three years four months based on the single term provided by Penal Code section 12022.53, subdivision (b), namely, a mandatory 10-year term.
In light of our analysis as to appellant’s Cunningham claims regarding count 1, the enhancement pertaining to count 9, and count 10, there is no need to reach respondent’s waiver argument.
3. Multiple Punishment on Counts 2 and 9 Did Not Violate Penal Code Section 654 .
a. Pertinent Facts.
As mentioned, the prosecutor asked the court to give a unanimity instruction as to count 9 (CALJIC No. 17.01; see fn. 3). Later, during opening argument, the People, discussing the law, argued concerning count 9 that Katherine was twice assaulted with a firearm, once “when she was merely threatened and the gun was pointed in her face” and once “when she was pistol whipped.” The prosecutor explained the court would later read an instruction applicable when there were “two separate acts.”
Later during opening argument, the People, discussing specific crimes and individual counts, argued that appellant twice assaulted Katherine with a firearm. One such assault occurred when, according to the prosecutor, “the defendant came up to her and put a gun to her and said, ‘I’ll fucking kill you. We know you have the guns in the house. If you don’t give U.S. the money or guns, we’re going to kill you.’” Another occurred when “she’s pistol whipped with the gun.”
The People argued that the first assault was also a criminal threat, and the People elected to prosecute that act simply as a criminal threat (that is, count 6; see part 1 of the Discussion) and argued to the jury accordingly. The prosecutor subsequently stated, “When the defendant pistol whips her later, that’s the assault with a gun. Let’s do it that way, make it simple. So that assault with the gun would be count 9.”
At sentencing, the People reiterated that they had elected to prosecute count 9 based on the pistol-whipping. The court imposed sentences on, inter alia, counts 2 and 9. When imposing sentence on count 9, the court stated, “Count 9, assault on Katherine Rayos, this is where her teeth were almost knocked out, according to at least the description of her husband. She didn’t describe it as being quite that violent but that was the physical damage to her face from the assault with a firearm. [¶] And that is a consecutive sentence, a separate infliction of violence on the victim. It was unnecessary. This is as the four individuals are trying to escape the premises after the police responded.”
b. Analysis.
Appellant claims multiple punishment on counts 2 and 9 violated Penal Code section 654. We disagree. Penal Code section 654 states, in relevant part, “(a) An 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.” Penal Code section 654, as interpreted by our Supreme Court, prohibits multiple punishment for offenses committed during an indivisible transaction. If all offenses are incident to one objective, the defendant may not be punished for more than one. However, if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the defendant may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Cf. People v. Bradley (2003) 111 Cal.App.4th 765, 769, fn. 3.)
“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.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Finally, “gratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not ‘incidental’ to robbery for purposes of Penal Code section 654. [Citations.]” (People v. Nguyen (1988) 204 Cal.App.3d 181, 190 (Nguyen).) “It is one thing to commit a criminal act in order to accomplish another; Penal Code section 654 applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense. Once robbers have neutralized any potential resistance by the victims, an assault or attempt to murder to facilitate a safe escape, evade prosecution, or for no reason at all, may be found by the trier of fact to have been done for an independent reason.” (Id. at p. 191.) “‘[Even though] the crime of robbery is not actually complete until the robber “has won his way to a place of temporary safety” . . . it cannot mean every act a robber commits before making his getaway is incidental to the robbery.’ [Citation.]” (Id. at p. 193.)
In the present case, the robbery of Katherine was complete, for purposes of the establishment of appellant’s guilt, when Katherine surrendered her gun. The subsequent arrival of the police prevented appellant’s further efforts to rob, and appellant and his accomplices attempted to flee. Later, in a courageous effort to protect her family, Katherine not only failed to resist but offered herself as a hostage. There was substantial evidence that appellant responded with gratuitous violence, unnecessarily assaulting her with a firearm when he pistol-whipped her in the face, knocking her down. Multiple punishment on appellant’s convictions on counts 2 and 9 was proper. (Cf. People v. Coleman (1989) 48 Cal.3d 112, 162-163; People v. Jones, supra, 103 Cal.App.4th at p. 1143; Nguyen, supra, 204 Cal.App.3d at pp. 190-191, 193; see People v. Latimer (1993) 5 Cal.4th 1203, 1212.).
Whether or not, as indicated by the trial court, appellant knocked out Katherine’s teeth does not affect our analysis.
None of the cases cited by appellant, or his argument, compels a contrary conclusion. Appellant’s reliance on People v. Medina (1972) 26 Cal.App.3d 809, is misplaced. In Medina, the codefendant Morrison raised the Penal Code section 654 issue on appeal. Unlike appellant, Morrison assaulted the robbery victim while the victim was being tied and before his property was taken. (People v. Medina, supra, at p. 824.)
Notwithstanding appellant’s suggestion to the contrary, the fact that, in the present case, the People suggested at one point during jury argument that appellant’s conviction on count 9 could be based on either of two acts does not affect the analysis. The People abandoned that argument when they later, during opening argument, elected to prosecute appellant on count 9 based on the pistol-whipping act.
Appellant makes another argument based on two assumptions. First, appellant assumes multiple punishment on his convictions on counts 2 and 9, would be improper if his conviction on count 9 was based on appellant’s act of putting a gun to Katherine’s head and threatening to kill her since, according to appellant, that act was part of the robbery. He also assumes multiple punishment would be proper if his conviction on count 9 was based on appellant’s act of pistol-whipping Katherine Based on those assumptions, and relying on People v. Coelho (2001) 89 Cal.App.4th 861 (Coelho), appellant argues that multiple punishment was improper on those two counts because the trial court failed to determine, beyond a reasonable doubt, on which act the jury relied to convict appellant on count 9. Appellant’s reliance on Coelho is inapposite.
In Coelho, the defendant suffered multiple sex convictions as to which the trial court could have imposed (1) concurrent sentences or discretionary consecutive sentences pursuant to Penal Code section 667.6, subdivision (c), or (2) mandatory consecutive sentences pursuant to Penal Code section 667.6, subdivision (d), depending upon which one of the multiple acts was relied on to support the convictions. In that circumstance, Coelho held that “if the jury could have based its verdicts upon a number of unlawful acts and the court cannot determine beyond a reasonable doubt the particular acts the jury selected, the court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms.” (Coelho, supra, 89 Cal.App.4th at p. 865.)
Coelho is thus distinguishable. Coelho did not involve Penal Code section 654. With Penal Code section 654, the issue is whether multiple punishment is proper at all. Moreover, “Section 654 . . . is a discretionary benefit provided by the Legislature to apply in those limited situations where one’s culpability is less than the statutory penalty for one’s crimes.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1022.) Since the Legislature is not obligated to provide this benefit at all, it is not unfair to require only that the trial court’s findings on a Penal Code section 654 determination be supported by substantial evidence, and not additionally require the trial court to fathom, beyond a reasonable doubt, the act upon which the jury relied to convict.
Moreover, even if Coelho’s reasoning applied to require the trial court in the present case to determine beyond a reasonable doubt the act upon which the jury relied, the People in the present case elected to prosecute count 9 based on the pistol-whipping act. Appellant argued misidentification. Even Coelho acknowledged that when determining which particular acts the jury selected as bases for its verdict, the trial court “may consider . . . the arguments of counsel.” (Coelho, supra, 89 Cal.App.4th at p. 879.)
We note that absent statutory or decisional law to the contrary, proof by a preponderance of the evidence is the standard of proof normally applicable to sentencing decisions. (People v. Ramos (1980) 106 Cal.App.3d 591, 604; Evid. Code, § 115.)
Further, the prosecutor’s election amounted to an advisement that the crime charged in count 9 was a violation of Penal Code section 245, subdivision (a)(2), based on the pistol-whipping incident, and the jury, by its unanimous verdict, convicted him of that charged crime. The jury therefore, beyond a reasonable doubt, relied upon the pistol-whipping act to convict appellant on count 9. The trial court relied on the pistol-whipping alone to impose punishment on count 9. Coelho is unhelpful to appellant.
Appellant argues in his reply brief that the pistol-whipping was not gratuitous because Katherine was resisting appellant by obstructing the doorway. He cites nothing in the record to support his assertion. Moreover, his assertion is apparently belied by his own statement of facts in his opening brief, in which appellant states “Katherine rushed to the door and offered to help appellant get out, and begged him to take her hostage.”
Appellant perfunctorily asserts in his heading that multiple punishment (as to counts 2 and 9) violates the federal double jeopardy clause. We reject the assertion since it is not supported by argument. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; People v. Callegri (1984) 154 Cal.App.3d 856, 865.) Moreover, if one offense contains an element that the other does not, the offenses are not the same for purposes of federal double jeopardy analysis, and the double jeopardy prohibition is inapplicable. (People v. Kelley (1997) 52 Cal.App.4th 568, 576.) Unlike assault with a firearm, robbery requires a taking of property. Unlike robbery, assault with a firearm requires an assault committed with a firearm. The federal double jeopardy clause is inapplicable.
4. Multiple Punishment on Counts 2 and 6 Violated Penal Code Section 654.
a. Pertinent Facts.
At sentencing, the court stated, inter alia, “Count 6, I do find separate and apart from the commission of the offenses themselves, the criminal threats against Katherine Rayos, . . .” Appellant’s sentence included a prison term on count 2, and a prison term on count 6 plus its firearm use enhancement.
b. Analysis.
Appellant claims multiple punishment on counts 2 and 6 violated Penal Code section 654. We agree. As discussed in part 1.b. above, the People elected to prosecute count 6 based on a criminal threat that appellant directly perpetrated. That threat, as characterized by the prosecutor, occurred when appellant put a gun to Katherine and said, “‘I’ll fucking kill you. We know you have the guns in the house. If you don’t give U.S. the money or guns, we’re going to kill you.’” ~(RT/811)~ The prosecutor’s election amounted to an advisement that the crime charged in count 6 was a violation of Penal Code section 422 based on that particular threat, and the jury, by its unanimous verdict, convicted appellant of that charged crime. That is, appellant’s conviction on count 6 was based solely on that particular threat.
“Few if any crimes . . . are the result of a single physical act. ‘Section 654 has been applied not only where there was but one “act” in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.’ [Citation.]” (Neal v. State of California (1960) 55 Cal.2d 11, 19, italics added.)
The two “statute[s]” at issue here are Penal Code sections 211 (count 2) and 422 (count 6). The “violat[ion]” of the latter at issue is solely the above mentioned threat directly perpetrated by appellant, and, therefore, the only violation of the statute of section 422 for which appellant could be “punished” was the violation based on that threat.
The above mentioned threat occurred concurrently with the robbery of Katherine and before its completion since that threat occurred before she surrendered her gun. According to the threat, appellant wanted guns, that is, appellant made the threat with the intent and objective of robbing Katherine of guns. There was no substantial evidence that appellant’s course of conduct in violating Penal Code section 211, and in violating Penal Code section 422 based on the above mentioned threat, comprised a divisible transaction; therefore, multiple punishment was improper and we will modify the judgment to reflect that Penal Code section 654 bars multiple punishment on count 6.
Even if we could ignore the fact that appellant was convicted on count 6 based solely on a particular threat, we could not, as respondent suggests we do, conclude that appellant committed criminal threats merely by pointing a gun at Katherine on various occasions and consider those acts in determining the multiple punishment issue. Penal Code section 422 does not apply to mere nonverbal conduct, even if it is intended to be communicative. (People v. Franz (2001) 88 Cal.App.4th 1426, 1439-1442.)
DISPOSITION
The judgment is modified by staying execution of sentence on appellant’s conviction for criminal threats (count 6) pending completion of his sentence on his remaining convictions, such stay then to become permanent, and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.
We concur: KLEIN, P. J. CROSKEY, J.