Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA062530, Darlene E. Schempp, Judge.
David L. Annicchiarico, 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, Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Daniel Vidrio appeals from the judgment entered following his convictions by jury on count 1 – first degree robbery (Pen. Code, § 211), count 2 – first degree burglary, with a person present (Pen. Code, §§ 459, 667.5, subd. (c)(21)), and count 3 – disobeying a court order (Pen. Code, § 166, subd. (a)(4)) with admissions he suffered two prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for four years. 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 established that on July 7, 2009, Hortencia Gonzalez was the mother of appellant and his 14-year-old brother (hereafter, Minor). Minor lived with Gonzalez in her North Hollywood apartment. A 2008 restraining order directed appellant not to come within 150 yards of Gonzalez and to stay away from the apartment.
Minor testified as follows. About 5:00 p.m. on July 7, 2009, Minor and Gonzalez were at home. Appellant went to the apartment’s window, banged on it three times, then loudly said, “ ‘Open the door.’ ” Minor and Gonzalez did not open the front door. Appellant went to the front door. Minor was perhaps 12 to 13 feet from the front door and was sitting on a couch watching television. The front door was open but an outer metal security door was closed and locked. Appellant, using both hands and yelling “ ‘Open the door, ’ ” pulled on the security door and bent it. Minor unlocked it, thinking appellant was going to rip the security door off its hinges. Minor feared appellant would harm Minor or Gonzalez.
Appellant, who was angry, entered the apartment and its living room. Minor stepped aside, thinking appellant was going to “push [Minor] out of the way or something.” After appellant entered, he said “ ‘Somebody give me $20.’ ” Appellant screamed this about five times in a mean tone.
After appellant said, “ ‘Somebody give me $20, ’ ” he began “kicking stuff.” Appellant kicked the television, phone, furniture, and compact discs. Appellant was saying “ ‘Somebody give me $20’ ” as he was kicking these items. Minor was afraid appellant would destroy the house and harm Minor or Gonzalez.
After appellant kicked the items, Minor removed his wallet from his pocket, took out a $20 bill, and showed it to appellant. Appellant walked a couple of feet towards Minor, and approached within perhaps two or three feet of him. When appellant approached Minor, appellant intimidated him. Minor testified he gave the $20 to appellant because Minor thought appellant was “going to destroy the house even more or harm [Minor] or [Gonzalez].” After appellant took the $20, he left.
Minor testified Gonzalez was in the kitchen when “this was happening.” Gonzalez was in the kitchen the entire time. The items appellant kicked were in the living room. When appellant was kicking the items, only appellant and Minor were in the living room. Minor also testified that after appellant started kicking items, Gonzalez entered the living room. Minor further testified Gonzalez came away from the kitchen table when appellant started kicking the furniture. Appellant was in the apartment for only a couple of minutes.
During cross-examination, the following occurred: “Q Had he just started when your mom came out or had he already kicked several things and then she came out? [¶] A No. He came out screaming, ‘Somebody give me twenty dollars.’ And when he didn’t get the $20, he started kicking stuff.”
Gonzalez testified as follows. Appellant came to the apartment at 5:00 p.m. on July 7, 2009. Gonzalez first saw appellant when she was coming back from work. Appellant was right outside the apartment door. Appellant arrived, then barged into the apartment. When Gonzalez entered, appellant entered. Appellant, who was drunk, began yelling. Appellant said he did not want to see Gonzalez.
After appellant entered the apartment, he asked Gonzalez for money. Appellant, in a loud voice, repeatedly said he wanted money. Minor was “around” at the time. Gonzalez, in a low tone of voice, replied she did not have any money. The prosecutor asked what happened next, and Gonzalez testified “My son [Minor] then had some money, so he was going to pull out his money so that he could give [appellant] money so he could leave.” The prosecutor asked whether appellant did anything before Minor gave appellant money, and Gonzalez replied, “Well, [appellant] just kicked the television, the stereo, and knocked down the phone.” Gonzalez also testified she tried to call the police, but appellant knocked the phone down and disconnected it. She further testified the phone was on the wall, appellant grabbed and threw it, then pulled the cable. Minor ended up giving appellant money, and appellant left. Appellant presented no defense evidence.
ISSUES
Appellant claims (1) the trial court erroneously failed to instruct on grand theft of personal property as a lesser included offense of robbery, (2) the trial court erroneously failed to instruct on how to apply circumstantial evidence, and (3) multiple punishment on counts 1 through 3 violated Penal Code section 654.
DISCUSSION
1. The Court Did Not Err by Failing to Instruct on Grand Theft of Personal Property.
The information, as amended by interlineations, alleged, inter alia, appellant committed first degree robbery of Minor (count 1) and first degree burglary, with a person present (count 2), of an inhabited dwelling house occupied by Minor and Gonzalez. Appellant did not ask the court to give, and the court did not give, an instruction on grand theft of personal property (grand theft) as a lesser included offense of robbery.
Appellant claims the trial court erroneously failed to instruct on grand theft as a lesser included offense of robbery. Appellant argues there was sufficient evidence he used force by kicking various items in the apartment, not with intent to take or steal, but only as a temper tantrum resulting from his mother’s refusal to give him money, and that he formulated an intent to steal only after the kicking, i.e., when he saw Minor hold out the $20 bill. We reject appellant’s claim.
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) If the defendant does not harbor the intent to take property from the possessor at the time the defendant applies force or fear, the taking is only a theft, not a robbery. (People v. Burney (2009) 47 Cal.4th 203, 253.) Similarly, the requisite intent to steal must be formed either before or during the commission of the act of force or fear. (People v. Davison (1995) 32 Cal.App.4th 206, 213-214; Rodriguez v. Superior Court (1984) 159 Cal.App.3d 821, 826.)
In the present case, neither Minor nor Gonzalez testified she explicitly refused to give appellant money. Gonzalez testified she replied to appellant that she did not have money. More importantly, there was no testimony explicitly relating appellant’s state of mind at the time he kicked the items. Neither Minor nor Gonzalez testified appellant kicked items as part of a tantrum or emotional outburst.
There was no substantial evidence appellant was any more emotionally upset in degree or extent when he kicked the items than when, earlier, he repeatedly banged on the window, bent the metal security door while trying to tear it open with his bare hands, angrily entered the apartment, and repeatedly screamed for someone to give him $20. There was substantial evidence that before, during, and after appellant’s kicking of the items, he was angry and harbored intent to steal, and that appellant was kicking the items because Gonzalez’s denial that she had money frustrated the accomplishment of his intent to steal, but no substantial evidence that, at the time of the kicking, appellant had a tantrum and not intent to steal.
The trial court did not err, in violation of appellant’s Sixth Amendment right to a jury trial, his due process right to adequate instructions, or otherwise, by failing to instruct on grand theft, because there was no substantial evidence to support such an instruction. (Cf. People v. Verdugo (2010) 50 Cal.4th 263, 293; People v. Duncan (1991) 53 Cal.3d 955, 971.)
Moreover, even if the trial court erred as urged by appellant, it does not follow we must reverse the judgment. Appellant does not challenge the sufficiency of the evidence supporting his burglary conviction. There is thus no dispute that when appellant entered the apartment, he burglarized it, intending to take and steal money. Appellant does not dispute the sufficiency of the evidence of his robbery conviction. There is thus no dispute there was substantial evidence appellant robbed Minor, using force or fear with intent to take and steal money.
Indeed, we believe there was overwhelming evidence appellant so robbed Minor, including (1) on the issue of force (see People v. Wright (1996) 52 Cal.App.4th 203, 210-211), Minor’s testimony that appellant was saying “ ‘Somebody give me $20’ ” as appellant was kicking items, and (2) on the issue of fear, Minor’s testimony that appellant intimidated Minor when appellant approached him, and that Minor gave the $20 to appellant because Minor thought appellant was “going to destroy the house even more or harm [Minor] or [Gonzalez].” Regarding fear, there was overwhelming evidence that “the victim [Minor] was in fact afraid, and that such fear allowed the crime to be accomplished.” (People v. Mungia (1991) 234 Cal.App.3d 1703, 1709, fn. 2.)
Minor’s testimony did not provide substantial evidence appellant formulated an intent to take and steal only after appellant used force or fear. The jury reasonably could have concluded the testimony of Gonzalez, appellant’s mother, concerning the sequence of events supporting any inference appellant used force or fear only as part of a tantrum was biased. There was overwhelming evidence appellant harbored an intent to take and steal when he used force or fear, even if he also engaged in a tantrum.
Appellant’s argument he committed only grand theft implicitly concedes he intended to take and steal money when he took the $20. We believe there was overwhelming evidence appellant continuously intended to take and steal money from the time he entered the apartment to the time he took the $20, and that the jury would have rejected any suggestion appellant entered the apartment with intent to take and steal, later engaged in a tantrum during which he lost that intent, then reacquired it when he took the $20. We note that if, as appellant suggests, his use of force was a tantrum and Minor gave appellant the $20 merely to buy Minor’s peace, appellant arguably should have viewed the $20 as a gift, not as something to steal.
The jury convicted appellant of burglary, implicitly finding appellant did not first formulate an intent to take and steal only after he kicked the items or used force or fear on Minor. Any trial court error in failing to give an instruction on grand theft was harmless under any conceivable standard. (Cf. People v. Melton (1988) 44 Cal.3d 713, 746-747; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] (Chapman).)
2. The Trial Court Did Not Reversibly Err by Failing to Give CALJIC No. 2.01.
a. Pertinent Facts.
The court instructed on direct and circumstantial evidence (CALJIC No. 2.00), weighing conflicting testimony (CALJIC No. 2.22), and the presumption of innocence and the People’s burden of proof (CALJIC No. 2.90). The court did not give CALJIC No. 2.01, concerning the sufficiency of circumstantial evidence generally (or CALJIC No. 2.02, concerning such sufficiency to prove specific intent or a mental state).
CALJIC No. 2.01, states, inter alia, that “if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to [his] [her] guilt.”
Later, during jury argument, appellant commented the jury would get the “circumstantial evidence jury instruction” that discussed “ ‘two reasonable interpretations’ ” of the evidence. Appellant argued to the effect there were two reasonable interpretations of the evidence as to count 1 (the robbery), i.e., one pointing to innocence, the other pointing to guilt. After jury argument, the prosecutor suggested that appellant, during jury argument, had read from CALJIC No. 2.01 even though the court had not given that instruction. The court stated, “Maybe I better give it then.” The court did not subsequently give CALJIC No. 2.01 (or CALJIC No. 2.02) to the jury.
b. Analysis.
Appellant claims the trial court’s failure to give CALJIC No. 2.01 was error because the evidence appellant intended to rob Minor when appellant kicked the items in the apartment was entirely circumstantial and equally susceptible of the reasonable interpretation “appellant merely threw a temper tantrum when his mother refused his request for money, not that he was intending to use force or fear to compel [Minor] to give him money.” We disagree.
A trial court has no duty to give an instruction absent substantial evidence supporting the instruction. (People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 685.) Moreover, when the only inference to be drawn from circumstantial evidence points to the existence of a requisite mental state, a circumstantial evidence instruction need not be given sua sponte. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.) Such an instruction should not be given if the circumstantial evidence is not equally consistent with a reasonable conclusion of innocence. (People v. Heishman (1988) 45 Cal.3d 147, 167.)
We conclude the trial court did not err by failing to give CALJIC No. 2.01 (or CALJIC No. 2.02). As discussed in part 1 of our Discussion, there was no substantial evidence appellant merely threw a temper tantrum when his mother refused a request for money, that appellant, when kicking the items, was not intending to use force or fear to compel Minor to give him money, or that appellant intended to steal only after he saw the $20. The only reasonable inference from the circumstantial evidence in this case was appellant harbored the requisite intent to take and steal when appellant used force or fear on Minor.
Moreover, even if the trial court erroneously failed to give CALJIC No. 2.01, it does not follow we must reverse the judgment. The court gave CALJIC Nos. 2.00, 2.22, and 2.90. Appellant commented during jury argument concerning a circumstantial evidence jury instruction that discussed a situation involving two reasonable interpretations and appellant argued the evidence supported an interpretation that no robbery occurred. In part 1 of our Discussion, we concluded the alleged instructional error at issue there was not prejudicial; most, if not all, of the analysis there regarding the lack of prejudice is equally applicable here. Any trial court error in failing to give CALJIC No. 2.01 (or CALJIC No. 2.02) was harmless under any conceivable standard. (Cf. People v. Rogers (2006) 39 Cal.4th 826, 886-887; Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.) Nor did any cumulative prejudicial instructional error occur.
3. Multiple Punishment on Counts 1 Through 3 Partially Violated Penal Code Section 654.
a. Pertinent Facts.
Count 2 of the information alleged in statutory language that on or about July 7, 2009, the crime of “first degree burglary person present” (capitalization omitted) was committed by appellant, “who did enter an inhabited dwelling house... occupied by [Minor and Gonzalez], with the intent to commit larceny and any felony.” The count also alleged the offense was “a violent felony within the meaning of Penal Code section 667.5(c) in that another person, other than an accomplice, was present in the residence during the commission of the above offense.” The jury convicted appellant on, inter alia, count 2, and expressly found true the allegation as to that count “that in the commission of the crime of burglary, a person was present[.]” (Capitalization omitted.)
On January 22, 2010, the prosecutor asked the court to sentence appellant on count 1 and on a prison prior enhancement, but did not ask the court to sentence appellant on the remaining counts. Appellant later suggested multiple punishment on counts 1 and 2 would violate Penal Code section 654. The court sentenced appellant and, inter alia, ordered that appellant serve his prison sentence on count 2 concurrently with his sentence on count 1 “as this was part of the count 1 event. They were seemingly the same event.” On January 26, 2010, the court vacated that sentence because the court erroneously had imposed a six-year, instead of a four-year, middle term on count 1. The court, without otherwise changing its analysis, resentenced appellant to a four-year middle term in prison on each of counts 1 and 2, and to 180 days in local custody on count 3, and ordered appellant to serve the terms on all counts concurrently.
b. Analysis.
Appellant claims multiple punishment on counts 1 through 3 violated Penal Code section 654. There are two issues: (1) whether section 654 barred multiple punishment on counts 1 and 2, and (2) whether that section barred punishment on count 3 once the court imposed punishment on count 1 or 2.
As to the first issue, there is no dispute multiple punishment on counts 1 and 2 violated Penal Code section 654, unless the multiple-victim exception of that section applied to those counts. Under that exception, even though a defendant entertains but a single criminal objective during an indivisible course of conduct, the defendant may be punished for each crime of violence committed against a different victim. (Cf. People v. Le (2006) 136 Cal.App.4th 925, 932 (Le).) Moreover, there is no dispute robbery (count 1) was such a crime of violence. The issue is whether appellant’s burglary (count 2) was a crime of violence for purposes of the multiple-victim exception. Respondent argues appellant’s burglary was such a crime because appellant’s burglary was a “ ‘violent felony’ ” within the meaning of Penal Code section 667.5, subdivision (c)(21). The issue appears to be one of first impression.
Penal Code section 667.5 provides, in relevant part, that “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] (a) Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c).... [¶]... [¶] (b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;.... [¶]... [¶] (c) For the purpose of this section, ‘violent felony’ shall mean any of the following: [¶]... [¶] (21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.”
We find People v. Hall (2000) 83 Cal.App.4th 1084 (Hall), instructive. Hall observed that our Supreme Court in Neal v. State of California (1960) 55 Cal.2d 11 (Neal) construed Penal Code section 654 to permit separate punishments for an act of violence against multiple victims. (Hall, supra, 83 Cal.App.4th at p. 1088). Hall quoted Neal’s observation that “ ‘The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person....’ [Citations.]” (Hall, supra, 83 Cal.App.4th at pp. 1088-1089, italics added, quoting Neal, supra, 55 Cal.2d at pp. 20-21.)
Hall observed, “A review of the relevant case law since Neal reveals that in each case where a criminal act qualified for the multiple-victim exception, the criminal act--that is, the crime of which defendant was convicted, including any allegations in enhancement--was defined by statute to proscribe an act of violence against the person, that is, as Neal, supra, 55 Cal. 2d at page 20, put it, an act of violence committed ‘with the intent to harm’ or ‘by means likely to cause harm’ to a person.” (Hall, supra, 83 Cal.App.4th at pp. 1088-1089, first and third italics added.)
Hall later observed as follows. Even though burglary holds the potential for violence, burglary, standing alone, is not a violent crime for purposes of the multiple-victim exception. Burglary, as defined, does not require an act of violence committed with the intent to harm or by means likely to harm a person. On the other hand, where the burglary has been committed in conjunction with an act of violence that qualified for treatment as an enhancement, the multiple-victim exception may be satisfied.
Hall gave two examples. Citing People v. Miller (1977) 18 Cal.3d 873, 886 (Miller), Hall noted that a burglary, in the course of which the defendant intended to inflict great bodily injury and did inflict such injury on an occupant of the premises, for purposes of former Penal Code section 461, qualified as an act of violence within the multiple-victim exception. (Hall, supra, 83 Cal.App.4th at p. 1091.) Citing People v. Centers (1999) 73 Cal.App.4th 84, 88 (Centers), Hall noted that burglary is a violent crime for purposes of the multiple-victim exception when a jury finds that, in the commission of the burglary, the defendant personally used a firearm for purposes of Penal Code section 12022.5, subdivision (a) (Hall, supra, 83 Cal.App.4th at p. 1091), because firearm use requires conduct which actually produces harm or which produces a fear of harm, or force, by means or display of a firearm. (Ibid.)
Hall later noted burglary is a crime of significant potential violence since burglary laws are based primarily upon a recognition of the dangers to personal safety created by “the usual burglary situation” (Hall, supra, 83 Cal.App.4th at p. 1092), i.e., the danger the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape, and the danger the occupants will, in anger or panic, react violently to the invasion, thereby inviting more violence. (Ibid.) Hall’s analysis is fully applicable to the first degree burglary (count 2) of the apartment at issue here.
In light of Hall, we believe for the following reasons appellant’s burglary was not a crime of violence for purposes of the multiple-victim exception. First, appellant’s mere burglary, standing alone and apart from any other allegations pertaining to count 2, was not a violent crime for purposes of the multiple-victim exception. (Hall, supra, 83 Cal.App.4th at p. 1090.) Burglary per se is not an act of violence committed with intent to harm or by means likely to harm a person.
Second, although Hall teaches we may consider a crime and its enhancements to determine whether a crime is a crime of violence for purposes of the multiple-victim exception, the Penal Code section 667.5, subdivision (c)(21) allegations, which we have quoted previously, which the jury found true, and upon which respondent relies to argue appellant’s burglary was a crime of violence, do not themselves constitute an enhancement.
The Penal Code section 667.5, subdivision (c)(21) allegations as to count 2 were pled and proven, but that merely established the current burglary was a “ ‘violent felony’ ” within the meaning of Penal Code section 667.5, subdivision (c), permitting imposition of a three-year Penal Code section 667.5, subdivision (a) enhancement if appellant had suffered a prior violent felony. No such prior violent felony was pled or proven in this case, and no Penal Code section 667.5, subdivision (a) enhancement was imposed. (The court imposed Penal Code section 667.5, subdivision (b) enhancements, but such enhancements do not require that a current offense be a “ ‘violent felony.’ ”)
Third, the enhancement in Miller, and in Centers, was a conduct enhancement (not, as with Penal Code section 667.5, subdivision (c)(21), a status enhancement; see People v. Coronado (1995) 12 Cal.4th 145, 156-157) and said conduct at issue in each of those cases was sufficiently opprobrious that the Legislature enacted a statute indicating the mere commission of that conduct during a crime warranted additional punishment. The Legislature did not enact a statutory enhancement indicating the mere fact persons were present during a burglary warranted additional punishment.
Fourth, as discussed below, a defendant who commits a burglary, even with persons present, for purposes of Penal Code section 667.5, subdivision (c)(21), does not commit an act of violence with intent to harm a person or by a means likely to cause harm to a person.
Subdivision (c)(21) does not, by its terms, require that the defendant commit such an act. Nor does Penal Code section 667.5, subdivision (c)(21) imply that a burglary, with persons present, is an act of violence with intent to harm a person or by a means likely to cause harm to a person. As mentioned, Hall teaches burglary per se is a crime of significant potential violence but is not a violent crime for purposes of the multiple-victim exception. Burglary laws seek to prevent dangers of the usual burglary situation that the intruder will harm the occupants and/or that occupants will react violently in anger or panic, thereby inviting more violence.
The very premise of the above dangers of the “usual” (Hall, supra, 83 Cal.App.4th at p. 1092) burglary situation is that occupants will be present. Penal Code section 667.5, subdivision (c)(21), by requiring that persons be present, merely increases the required probability that occupants will be present from (1) the ever-present danger inherent in the “usual” burglary situation to (2) a certainty. We cannot reasonably infer that a defendant who commits a burglary, attended by that minor probability increase, has committed an act of violence with intent to harm a person or by a means likely to cause harm to a person. Such a burglary remains simply a crime of significant potential violence.
Respondent cites no case holding a burglary committed with persons present, for purposes of Penal Code section 667.5, subdivision (c)(21), is also a crime of violence for purposes of the multiple-victim exception, or holding that the mere fact a crime is listed as a “ ‘violent felony’ ” in Penal Code section 667.5, subdivision (c) means the crime is a crime of violence for purposes of the multiple-victim exception. Moreover, notwithstanding respondent’s suggestion to the contrary, the mere fact appellant may have committed the burglary in a violent way does not affect the analysis absent allegations, based on a statute, and pled and proven, that appellant committed an act of violence with intent to harm a person or by a means likely to cause harm to a person.
We conclude appellant’s burglary (count 2) was not a crime of violence for purposes of the multiple-victim exception of Penal Code section 654; therefore, multiple punishment on counts 1 and 2 violated that section. (Hall, supra, 83 Cal.App.4th at pp. 1088-1089, 1090-1092; see Le, supra, 136 Cal.App.4th at p. 932.) We will modify the judgment to preclude punishment on count 2.
As to the second issue, we agree with respondent that Penal Code section 654 did not bar punishment on count 3 once the court imposed punishment on count 1 or 2. Whether Penal Code 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. Its findings will not be reversed on appeal if there is any substantial evidence to support them. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) This includes the trial court’s implied findings. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190.)
In the present case, the trial court reasonably could have concluded the following from Minor’s testimony. Minor and Gonzalez were inside the apartment when appellant disobeyed the court order by coming within 150 yards of Gonzalez and failing to stay away from the apartment. A significant period of time elapsed from (1) the time appellant first came within 150 yards of Gonzalez to (2) the time appellant burglarized the apartment and, still later, robbed Minor. Appellant had a reasonable opportunity to reflect during that period.
After appellant came within 150 yards of Gonzalez and failed to stay away from the apartment, a new risk of harm arose (and was realized): he burglarized the apartment in which Minor and Gonzalez were occupants, vandalized property inside the apartment, and robbed Minor. Appellant’s commission of vandalism and robbery inside the apartment reduced the risk these crimes would be detected and thus increased the likelihood he would be successful in committing them, and his presence inside the apartment similarly increased the likelihood he would be successful in the commission of any additional crime(s) he then might have decided to commit against Minor and/or Gonzalez. Minor’s testimony provided substantial evidence that, as argued by respondent, count 3 was divisible in time from counts 1 and 2 (cf. People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1255; People v. Surdi (1995) 35 Cal.App.4th 685, 689); therefore, multiple punishment on (1) count 3, and on (2) either count 1 or 2, did not violate Penal Code section 654. Gonzalez’s testimony does not compel a contrary conclusion.
DISPOSITION
The judgment is modified by staying execution of sentence on appellant’s conviction for first degree burglary, person present (count 2) pending completion of his sentence on his convictions for first degree robbery (count 1) and disobeying a court order (count 3), 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: CROSKEY, Acting P. J., ALDRICH, J.