Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIF129838 & RIF132693, J. Thompson Hanks, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Deborah La Touche, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
On appeal from a jury verdict, defendant Medardo Andres Sanchez argues the trial court should have stayed the sentence on his conviction for witness dissuasion pursuant to Penal Code section 654, because it was incidental to and indivisible from his robbery offense.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted by a jury of second degree robbery in violation of Penal Code section 211 (count 1) and dissuading a witness in violation of Penal Code section 136.1, subdivision (c)(1) (count 2). The trial court sentenced defendant to three years on count 1 and to one year on count 2, to be served consecutively, for a total of four years in state prison.
At trial, the victim testified he regularly sells clothing out of his van on a certain street corner in Riverside with the help of a female assistant. On October 7, 2006, two male customers approached his van. While he was assisting these two men, he heard noise coming from the front of his van and felt the van move. He walked toward the front of the van and saw defendant holding his portable generator and walking away with it. The victim asked defendant several times to put the generator down, but he did not, so the victim started walking toward defendant. Defendant reached toward his back and told the victim he had a gun. Although the victim did not actually see a gun, he testified defendant kept his hand in back of him as if he had a gun. While this was occurring, the victim realized defendant was not alone because one of the male customers started yelling to defendant. He also noticed one of the male customers walking towards him, along with two other men who were about half a block away.
Defendant put the generator down and swung his fist at the victim, hitting him two or three times in the face, causing the victim to have a black, swollen eye. The victim pulled his cell phone out and said he was going to call the police. Defendant pulled the cell phone out of the victim’s hands and said “you call the police and I’ll kill you.” One of defendant’s associates then picked up the generator, and defendant and his associates started walking away. After they were some distance away, the victim was able to borrow a cell phone to call police. However, police did not arrive for 30 to 40 minutes, and by that time witnesses were no longer there.
The victim said he typically parks his van in this location for about an hour each week, and he immediately recognized defendant because he had seen him standing at the corner many times before with his friends. Two days after the incident, the victim drove through the area in a different vehicle and saw defendant standing on the corner where he had seen him many times before. The victim drove around the area until he found a police officer. He explained to the officer what had happened two days before. Police were then able to locate a suspect who matched the description given to them by the victim. A few hours later, police called the victim on his cell phone and directed him to a house, where the victim immediately recognized and identified defendant.
Defendant’s identity was an issue at trial because he has a twin brother. The victim was questioned by both the prosecutor and defendant’s attorney to determine whether defendant could have been mistaken for his twin brother. The victim essentially testified the two brothers have distinguishing characteristics, and he was certain defendant was the one who robbed him on October 7, 2006.
DISCUSSION
Defendant contends the evidence presented at trial shows he had the single objective of taking the victim’s generator during the entire course of events so his convictions for robbery and dissuading a witness are part of an indivisible transaction. He therefore argues the sentence on count 2 should have been stayed pursuant to Penal Code section 654.
Penal Code section 654, subdivision (a), provides as follows: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” During the sentencing hearing, the trial court indicated it was imposing a one-year consecutive term as to count 2, dissuading a witness, because the offense involved “separate conduct.” We therefore presume the trial court did not stay the sentence on count 2 pursuant to Penal Code section 654, because it determined each crime had a separate objective. On appeal, we will uphold such a determination if there is substantial evidence to support it. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
“The purpose of [section 654] is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission—the offense carrying the highest punishment. [Citations.]” (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) However, if the acts were independent and none was merely incidental to another, the defendant may be punished separately for each offense, even if the acts were committed closely in time and space. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Where there was a course of conduct that violated more than one statute, the focus of inquiry is whether the defendant entertained single or multiple criminal objectives. (People v. Macias (1982) 137 Cal.App.3d 465, 470.) “[E]ach case necessarily turns upon its own particular facts.” (People v. Perry (2007) 154 Cal.App.4th 1521, 1526.)
Here, substantial evidence supports the trial court’s conclusion defendant’s crimes against the victim were not incident to a single intent and objective. Rather, the evidence supports the trial court’s finding that defendant’s intent or objective changed as events unfolded at the scene. The facts suggest defendant’s original plan was for his friends to distract the victim while he took the generator. However, the plan was foiled when the victim discovered defendant leaving with the generator in hand. We know from the victim’s testimony that defendant was not acting alone and he had several associates nearby, which effectively neutralized any potential resistance by the victim. Despite the relative safety provided by the presence of his associates, defendant did not simply leave with the generator in hand when the victim saw him and attempted to persuade him to put the generator down. To intimidate the victim, defendant first pretended to have a gun. He then put the generator down in order to strike the victim in the face two or more times with his fist.
We also know based on the victim’s testimony that he immediately recognized defendant because he had seen him in this general area many times before. In other words, defendant and the victim were familiar with one another, so we can reasonably infer defendant would have been aware it would not be difficult for the victim to identify him to authorities. When the victim pulled his cell phone out and said he was going to call the police, defendant not only grabbed the cell phone out of the victim’s hands, he said “you call the police and I’ll kill you.” Thus, from all of the circumstances, the trial court could reasonably infer defendant had a separate, independent objective to evade prosecution, which was not incidental to the robbery. We therefore conclude substantial evidence supports the trial court’s finding that Penal Code section 654 did not preclude it from imposing separate, consecutive sentences for the separate crimes of robbery and dissuading a witness.
Defendant argues we should be persuaded to conclude the robbery is indivisible from the dissuasion offense based on the holding in People v. Niles (1964) 227 Cal.App.2d 749 (Niles). According to defendant, the facts of Niles are closely analogous to the facts of his case. The defendant in Niles entered the victim’s premises and took clothing from a closet. The victim discovered an open door and stepped outside to discover the defendant standing in the backyard with the clothes. The victim grabbed the clothes away from the defendant and brought them back inside. He then went back outside, where he found defendant still standing in the yard. When the victim threatened to call the police, defendant said, “ ‘You are not going to call no God damn law.’ ” (Id. at p. 753.) Defendant then pretended to have a gun and threatened to shoot the victim if he called the police. The two men scuffled, and defendant hit the victim with a piece of pipe that was lying on the fender of a car. (Ibid.) The court in Niles concluded the defendant’s actions “comprised an indivisible transaction in which the offense of assault was merely incidental to but one objective, to burglarize [the victim’s] premises and avoid being apprehended by the law.” (Id. at p. 755.) However, we do not find defendant’s citation to Niles persuasive. First, the facts are distinguishable in that the defendant in Niles acted alone and was charged with burglary and assault, not robbery and dissuasion of a witness. More importantly, the holding in Niles has been discredited by more recent cases that have recognized that the Penal Code section 654 prohibition against double punishment for a continuous course of conduct does not extend to assaults or other criminal acts committed for gratuitous purposes or to facilitate an escape or evade prosecution. (People v. Coleman (1989) 48 Cal.3d 112, 162. See also People v. Nguyen (1988) 204 Cal.App.3d 181, 189-193.)
We are also not persuaded by defendant’s citation to cases such as People v. Guzman (1996) 45 Cal.App.4th 1023, People v. Le (2006) 136 Cal.App.4th 925, and People v. Perry, supra, 154 Cal.App.4th 1521. In these cases, violence or an implied threat of violence was used during the course of a theft as the means necessary to remain in possession of stolen property, and there was an absence of evidence to show a separate intent or criminal objective. We agree with respondent’s contention the facts of this case are more closely analogous to those at issue in cases such as People v. Nichols (1994) 29 Cal.App.4th 1651 and People v. McGahuey (1981) 121 Cal.App.3d 524, in which more than one criminal intent or objective was apparent based on the particular facts of the case. In Nichols, the defendant and accomplices kidnapped a truck driver and hijacked his tractor trailer, which was loaded with saleable merchandise. (Nichols, supra, 29 Cal.App.4th at p. 1654.) During the kidnapping, the defendant looked at the truck driver’s license and said, “ ‘If you open your mouth we are going to kill you. I know where you live.’ ” (Ibid.) The court concluded there was sufficient evidence to support two separate objectives to rob the victim and “to avoid detection and conviction by dissuading and intimidating the victim.” (Id. at p. 1657.) In McGahuey, the defendant burglarized a house and was discovered by the victim as he was leaving the scene. When the victim picked up the telephone to dial police, the defendant threw a hatchet at her through a closed window, evidencing a new intent to evade detection and prosecution. (McGahuey, supra, 121 Cal.App.3d at pp. 528-529.)
During oral argument, defendant’s appellate counsel attempted to convince us the threat made by defendant after the victim pulled out his cell phone to call police was not a separate offense motivated by a different objective but simply part of the force or fear applied to the victim in order to complete the robbery offense. At this point in time, counsel contends, the robbery was incomplete because defendant had not yet reached a place of temporary safety, and the victim was still actively attempting to regain control over the generator. As a result, counsel argued defendant’s threat was simply part of a continuing application of force applied for the purpose of maintaining control over the generator so it could be carried away.
To support his argument, counsel referred us to our Supreme Court’s recent decision in People v. Gomez (2008) 43 Cal.4th 249. The defendant in Gomez challenged the sufficiency of the evidence to support his conviction for robbery. (Id. at p. 254.) As part of its analysis, the Supreme Court reiterated the following well-established principles related to the elements necessary to prove a robbery. First, robbery “is a continuing offense. All the elements must be satisfied before the crime is completed.” The offense is not complete “until the perpetrator has reached a place of temporary safety.” (Id. at pp. 254-255.) Second, the felonious taking of property “must be accomplished by force or fear.” (Id. at p. 254.) Third, “no artificial parsing is required as to the precise moment or order in which the elements [of robbery] are satisfied.” (Ibid.) In other words, the force or fear element is satisfied whether the application of force or fear occurs during the taking of property or while the property is being asported to a place of temporary safety. (Id. at pp. 254, 259.) In any case, “ ‘[t]he events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose.’ ” (Id. at p. 259, quoting People v. Estes (1983) 147 Cal.App.3d 23, 28.)
In our view, the threat made by defendant after the victim pulled out his cell phone to call police evidenced a temporary break in the link of the events constituting the robbery. In other words, it is apparent defendant had a single purpose in mind—to steal the generator—until the victim pulled out his cell phone to call police. At this point in time, the evidence indicates defendant’s purpose was briefly interrupted in reaction to the victim’s act of taking out his cell phone to call police. In response to the victim’s act, defendant could simply have picked up the generator and continued on his way, particularly given the relative strength of his position based on the presence of his cohorts. Instead, he made the type of threat the law recognizes as a separate offense with a different objective—dissuading a witness from reporting a crime. “The proscription against double punishment in [Penal Code] section 654 is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute. . . . The divisibility of a course of conduct depends upon the intent and objective of the actor. . . .” (People v. Bauer (1969) 1 Cal.3d 368, 376.) “The moment at which a defendant committed all of the elements of an offense is immaterial in applying Penal Code section 654.” (People v. Perry (2007) 154 Cal.App.4th 1521, 1527.) In other words, the focus of divisibility is not with the temporal point at which one crime begins and another ends. We therefore do not believe Penal Code section 654 insulates defendant from punishment for the second offense of witness dissuasion simply because the initial robbery offense may not technically have been completed when he developed and implemented a new and separate objective of dissuading a witness in order to evade prosecution for the ongoing robbery. As a result, we conclude substantial evidence supports the trial court’s conclusion the witness dissuasion offense involved “separate conduct” and its implied decision not to stay the sentence on count 2 pursuant to Penal Code section 654.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., KING, J.