Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super. Ct. Nos. RIF130328, RIF131885, Thomas H. Cahraman, Judge.
Martin Kassman, 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, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
On appeal from a jury verdict, defendant Pablo Perez argues that his sentence on three different counts violates the proscription in Penal Code section 654 against multiple punishments.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was originally charged with criminal offenses in two separate cases based on two different incidents, but the charges were consolidated into a single case. All of the charges against him from the two separate incidents were then included in a second amended information.
The second amended information charged nine separate counts. Counts 1 through 3 related to a domestic violence incident that took place on or about April 10, 2006, involving a victim identified as Jane Doe (the Jane Doe case). In pertinent part, the second amended information charged defendant with assault with a deadly weapon (§ 245, subd. (a)(1), count 1), corporal injury to a cohabitant (§ 273.5, subd. (a), count 2), and criminal threats (§ 422, count 3). The jury convicted defendant of counts 1 and 2, but found him not guilty of count 3.
Counts 4 through 9 related to a theft incident that took place in and around a Target store on or about August 12, 2006 (the Target case). In pertinent part, the second amended information charged defendant with burglary (§ 459, count 4), battery on a peace officer (§ 243, subd. (c)(2), count 5), resisting a peace officer (§ 69, count 6), robbery (§ 211, count 7), petty theft with a prior (§ 666, count 8), and falsely representing his identity to a peace officer (§ 148.9, subd. (a), count 9). The jury found defendant guilty of counts 4, 5, 6, 7, and 9. No verdict was rendered on count 8 and it was eventually dismissed.
The trial court sentenced defendant to four years four months in state prison. Since defendant’s challenges under section 654 are fact specific, each incident will be discussed separately below.
DISCUSSION
Defendant contends the trial court should have stayed the sentence on both convictions arising out of the Jane Doe case (counts 1 & 2) under section 654 because they were based on a single course of conduct with a single objective. With respect to the offenses arising out of the Target case, defendant contends count 4 (burglary) and count 7 (robbery) were based on a single, indivisible course of conduct. He makes the same argument with respect to count 5 (battery on a peace officer) and count 6 (resisting a peace officer). Defendant therefore seeks a stay of the punishment on counts 2, 4, and 6.
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.” 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.) To the extent the trial court did not make specific factual findings, we can assume the record reflects a determination by the trial court that each crime had a separate objective. (See, e.g., People v. Blake (1998) 68 Cal.App.4th 509, 512.)
“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.)
Jane Doe Case
On April 10, 2006, police responded to a domestic violence complaint at defendant’s home where he had been living with Jane Doe for approximately two years. The responding deputy testified he spoke to Jane Doe at the scene. Jane Doe told the deputy she and defendant had been arguing, and defendant charged her while holding a handsaw. Defendant struck Jane Doe approximately two times with the saw on her arm and shoulder causing abrasions.
As outlined above, the jury convicted defendant of assault with a deadly weapon (count 1) and corporal injury to a cohabitant (count 2). While conveying a tentative sentence, the trial court stated count 2 is “probably 654 to count 1” and noted counts 1 and 2 “arose out of the exact same operative facts.” However, the court then imposed a one-year term on count 1 and a concurrent one-year term on count 2, without staying the term on count 2 under section 654.
Defendant correctly contends and the People agree that the trial court should have stayed the term on count 2 pursuant to section 654 because the convictions on these counts were based on the same incident and the same conduct, striking Jane Doe, with no evidence of more than one objective.
Target Case
Defendant was observed on August 12, 2006, by a loss prevention officer, opening packages of merchandise inside a Target store, placing the packaging back on the shelf, and putting the merchandise in his cart. Police were called after the loss prevention officer saw defendant take a package of razor blades.
The responding deputy sheriff confronted defendant in the garden center of the store and said he wanted to talk to him. Defendant ran toward the exit door and outside the store, ignoring the deputy’s orders to “stop.” As defendant ran through the garden center toward the exit, a Target cashier “tackled” and then grabbed defendant. Although defendant resisted, the cashier was essentially able to delay defendant long enough for the deputy to catch up.
The deputy grabbed defendant just outside the store, and he began “flailing around,” hitting, and kicking in an effort to escape and to prevent the deputy from handcuffing him. Although the deputy was eventually able to contain defendant on the ground using a choke hold, defendant got up and continued to resist. The deputy sprayed defendant with pepper spray, but he kept struggling. The deputy was finally able to handcuff defendant with the assistance of two good Samaritans. After he was handcuffed, the deputy checked defendant’s pockets and found several items identified as merchandise taken from the store.
As noted above, the jury convicted defendant of burglary (§ 459, count 4), battery on a peace officer (§ 243, subd. (c)(2), count 5), resisting a peace officer (§ 69, count 6), robbery (§ 211, count 7), and falsely representing his identity to a peace officer (§ 148.9, subd. (a), count 9). No verdict was rendered on the petty theft with a prior charge (§ 666, count 8), and it was eventually dismissed.
The trial court designated count 7 (robbery) as the principal term and imposed the low term of two years in state prison. On count 4 (burglary), the court imposed a term of eight months, to run consecutive to count 1. On count 5 (battery on a peace officer), the court imposed a term of eight months, to run consecutive to count 4. On count 6 (resisting a peace officer), the court imposed a term of eight months, to run concurrent to count 5.
The trial court concluded the offenses alleged in count 5 (battery on a peace officer) and count 6 (resisting a peace officer) “arose out of the same set of operative facts.” Defendant correctly contends and the People agree that the trial court should have stayed the term on count 6 pursuant to section 654 because the acts alleged in counts 5 and 6 were part of a single, indivisible course of conduct.
The Target Burglary and Robbery Offenses
The only point of contention between the parties is whether count 4 (burglary) and count 7 (robbery) constitute a single, indivisible course of conduct that required the trial court to stay the sentence on count 4 under section 654. The People argue that the offenses are divisible because defendant committed the robbery in response to the pursuit and after the original offense of burglary was already complete. According to the People, the force used in committing the robbery was more than reasonably necessary to complete the burglary. Defendant believes the burglary conviction was based on evidence that he entered the store with the intent to steal merchandise and the robbery conviction was based on evidence that he used force against the cashier to get out of the store with stolen merchandise. He contends the burglary and robbery are indivisible because the evidence shows both offenses were committed with the single objective of stealing merchandise from the store and the force used during the robbery was simply the means toward accomplishing this objective. We agree.
“The proscription against double punishment in 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, supra, 154 Cal.App.4th at p. 1527.) “[I]f property is taken during a burglary and a robbery pertaining to the same property is committed during the escape, the objective is still essentially to steal the property. Admittedly, an additional objective of preventing the victim or another person from taking back the property generally will exist, but may be incidental to, rather than independent of, the objective of stealing the property. At some point, the degree of force or violence used or threatened may evince ‘a different and a more sinister goal than mere successful commission of the original crime,’ i.e., an independent objective warranting multiple punishment. [Citations.]” (Id. at pp. 1526-1527.) For example, in People v. McGahuey (1981) 121 Cal.App.3d 524, 529, 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. (Ibid.)
Here, the force used against the cashier was incidental to, rather than independent of, defendant’s objective of stealing merchandise from the store. Trial testimony indicates the cashier “tackled” defendant using his shoulder as defendant was running toward the exit, which caused defendant to hit the side of a gate. However, defendant continued to run and then jumped over a railing. The cashier grabbed defendant by the belt and shirt, and defendant was “flinging” his arms and “aggressively” trying to get away. The deputy then took over the struggle by grabbing defendant. Under these circumstances, we cannot conclude defendant’s objective in using force against the cashier was anything more than stealing the merchandise found on his person following his arrest. Defendant is therefore entitled to a stay of count 4 (burglary) under section 654.
The evidence does, however, show a new objective of resisting arrest based on testimony indicating that defendant ignored the deputy’s orders to stop and then used force and inflicted injury on the deputy to prevent the deputy from taking him into custody. That is why defendant may be separately punished for battery on a peace officer without offending section 654.
DISPOSITION
The sentences imposed in count 2 (corporal injury on a cohabitant), count 4 (burglary), and count 6 (resisting a peace officer) are stayed under Penal Code section 654. The superior court clerk is directed to correct the abstract of judgment to reflect these changes and to forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RICHLI J. MILLER J.