Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36149
Premo, J.
The juvenile court found G.V. (minor) to be a person described by Welfare and Institutions Code section 602 (wardship for violation of law) in that he had committed three counts of robbery, three counts of felony false imprisonment, and one count of resisting a peace officer. It set minor’s maximum time of confinement at nine years and four months by aggregating consecutive terms for each robbery, each false imprisonment, and the resisting. It also imposed two standard gang conditions of probation. On appeal, minor contends that the trial court imposed (1) improper multiple punishment (Pen. Code, § 654 [prohibiting multiple punishments for a single act or course of conduct]), and (2) unconstitutional gang-related conditions of probation. We affirm the judgment.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
Minor and three friends approached and greeted a group of five who were on the Willow Glen High School football field watching a meteor shower. They asked whether the group had any beer, drugs, or money to buy beer or drugs. The group answered negatively. Two of minor’s friends and two of the group left the gathering. Minor sat down and, after an interim, announced that he was going to rob the three remaining group members. When one of the members challenged minor, minor displayed a knife. Minor then asked for money. The three denied having money and emptied their pockets. One of the three began to use a cell phone but threw it to minor upon minor’s demand. The two others also gave minor cell phones after minor’s demand. During the encounter, which lasted 30 to 45 minutes, minor kept holding the knife while he asked questions such as where members of the group lived. When the police arrived nearby, minor told the group to pretend friendship with him. He threw away the knife and returned the cell phones. When the police arrived on the scene, one of the group members told an officer what had happened and minor resisted when the officer searched him for the knife.
MULTIPLE PUNISHMENT
Minor contends that his maximum time of confinement should be reduced by two years. Two years corresponds to the terms for three counts of false imprisonment. He urges that he committed the three offenses during a course of conduct that was indivisible from the underlying robbery conduct. He specifically argues: “Here, the focus of the confrontation was the robberies. During the conflict between [minor] and the victims, [minor] repeatedly asked each member of the group for money. There was no gratuitous violence or threats of violence. In fact, [minor] repeatedly apologized to the victims for his actions. The restraint on the victims’ liberty was part and parcel of the robberies and had no independent objective. [Minor] intended to relieve the victims of their property and only confined them as part of his effort of carrying out this goal. The false imprisonments were incidental to the criminal objectives of the robberies, and as such, could not be separately punished.” Minor’s analysis is erroneous.
Section 654, subdivision (a) provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
The purpose of this provision is to ensure that a defendant’s punishment will be commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551.) “The statute ‘literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the “same act or omission.” [Citation.] However, ... its protection has been extended to cases in which there are several offenses committed during “a course of conduct deemed to be indivisible in time.” [Citation.]’ [Citations.] [¶] ‘It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.]... [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ ” (People v. Hicks (1993) 6 Cal.4th 784, 789.)
Ascertaining a defendant’s intent and objective is primarily a question of fact for the trial court whose express or implied finding that the crimes were divisible will be upheld on appeal if there is substantial evidence to support it. (People v. Osband (1996) 13 Cal.4th 622, 730.)
While the crime of robbery is not actually complete until the robber “ ‘has won his way to a place of temporary safety’ ” (In re Jesse F. (1982) 137 Cal.App.3d 164, 171), not every act committed by the robber before making his getaway is incidental to the robbery. Once the fruits of the robbery are secure and escape is assured, a gratuitous act that is unnecessary to effectuate the robbery will be treated as a separate act. (Ibid.)
Thus, the courts have held that violence or other crimes committed after money has been obtained, are unnecessary to facilitate the robbery and may be separately punished. (See, e.g., People v. Nguyen (1988) 204 Cal.App.3d 181, 191 [“Once robbers have neutralized any potential resistance by the victims, an assault... 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”]; People v. Foster (1988) 201 Cal.App.3d 20, 28; see also People v. Saffle (1992) 4 Cal.App.4th 434, 439-440 [holding false imprisonment was not incidental to the commission of sex offenses where the victim was subjected to threats of future bodily injury after the sex offenses were completed and the defendant sought to prevent the victim from reporting the incident].)
In People v. Foster, supra, 201 Cal.App.3d 20, imposition of consecutive sentences for robbery and false imprisonment was upheld where the defendant and his accomplice robbed a convenience store and, after obtaining all the money, forced the three victims into the store cooler and blocked their exit with a cart. The reviewing court rejected the defendant’s claim that the false imprisonment of the victims was merely incidental to the robbery. “The imprisonment of the victims occurred after the robbers had obtained all of the money, and therefore was not necessary or incidental to committing the robbery. Locking the victims in the store cooler was potentially dangerous to their safety and health. It is analogous to a needless or vicious assault committed after a robbery, which has long been held separately punishable and distinguishable from an assault which is merely incidental to robbery.” (Id. at pp. 27-28.)
We find Foster dispositive. Here, minor robbed the three victims of cell phones near the beginning of a 30- to 45-minute encounter. After obtaining the property, he stayed with the group displaying a knife and, ultimately, sought to prevent the victims from reporting the incident by telling them to lie to the police. Defendant could have fled after he obtained the cell phones. Instead, he subjected the victims to further risk of harm by confining and threatening them. Had one of the victims attempted to escape, he or she risked being pursued by minor wielding a knife.
Minor is not aided by People v. Martinez (1980) 109 Cal.App.3d 851. There, the court held that only one sentence may be imposed for assault with intent to commit rape and false imprisonment by force and violence where the defendant assaulted his victim, dragged her under a bridge and, after desisting from the attempted rape, held her for a few moments to convince her not to complain to the police. Momentarily holding the victim to convince her not to report the assault is clearly incidental to the attempted rape, and unlike in the present case, it did not subject her to any additional risk of harm. (Id. at p. 858.)
In short, the trial court was entitled to conclude from the evidence that the false imprisonment offenses were not incidental to the corresponding robberies and therefore were separately punishable. Defendant offers no more than his interpretation of the facts that the trial court implicitly rejected.
PROBATION CONDITIONS
Minor contends that the conditions of his probation are unconstitutionally vague and overbroad. He specifically objects to conditions 24 and 25, which require that he not “knowingly possess, display, or wear any insignia, clothing, logos, emblems, badges, or buttons, or display any gang signs or gestures which [he] knows to be gang-related, ” and “knowingly post, display, or transmit any symbols or information that [he] knows to be gang-related.”
Minor, however, did not raise this issue below. The People urge that minor has forfeited the point, and we agree with the People.
In the case of In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.), the California Supreme Court resolved a conflict among appellate courts concerning whether the failure to raise a constitutional objection to probation conditions forfeits that claim on appeal. There, the minor claimed for the first time on appeal that a probation condition prohibiting association with persons disapproved of by the probation department was unconstitutionally vague and overbroad because it did not require knowledge of who was disapproved. The appellate court not only addressed the issue but also agreed with the claim and then cured the constitutional defect. In affirming the appellate court’s judgment, the Supreme Court opined that to resolve the minor’s claim, the appellate court did not have to review the facts and circumstances underlying the condition but needed only to consider abstract and generalized legal concepts. It observed that a “ ‘facial challenge’ ” to the “phrasing or language of a probation condition” “does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts--a task that is well suited to the role of an appellate court.” (Id. at p. 885.) It reasoned: “An obvious legal error at sentencing that is ‘correctable without referring to factual findings in the record or remanding for further findings’ is not subject to forfeiture.” (Id. at p. 887.) The court cautioned, however, that its “conclusion [did] not apply in every case in which a probation condition is challenged on a constitutional ground” such as where the issue could not be resolved without reference to the sentencing record developed in the trial court. (Id. at p. 889.)
Unlike the defect in Sheena K., the alleged defects in minor’s gang conditions cannot be determined or potentially corrected based on abstract and generalized legal principles and without reference to the particular facts and circumstances of this case. This follows because minor’s claim is not based solely on the wording of the conditions, which simply and clearly commands that minor refrain from knowingly possessing, etc., gang indicia.
Minor instead claims that the conditions are vague because “There is no evidence the present crimes were gang related or that the minor associated with any criminal street gang.” Similarly, minor claims that the conditions are overbroad because they “have not been narrowly tailored to serve the purpose of the underlying condition, i.e., presumably to prevent [minor] from engaging in specific future criminal behavior.”
To determine whether minor’s crimes were gang related, whether minor was associated with a gang, and what was the purpose of the gang conditions would require us to look beyond the language of the conditions to underlying facts that were not litigated below because minor failed to raise the issue. Since minor’s claims are not facial constitutional challenges, he forfeited them by not raising them below. (Sheena K., supra, 40 Cal.4th at pp. 887, 889.)
Stated another way, despite minor’s labeling of his claims as facial constitutional defects, the claims are, in reality, contentions that the gang conditions are not reasonable. (See § 1203.1, subd. (j) [“court may impose and require... reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer”]; People v. Lent (1975) 15 Cal.3d 481, 486 [“a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality”].) We review questions of reasonableness only when the challenge was first raised below. (People v. Welch (1993) 5 Cal.4th 228, 237 [rule of forfeiture applies where defendant fails to timely challenge a probation condition on Lent grounds].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.