Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Gary E. Daigh, Judge, Los Angeles County Super. Ct. No. TA086550
Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
In this appeal, Francisco Briseno claims the evidence was insufficient to support the firearm allegations found true by the jury. He also claims the court should have stayed punishment on count 4, dissuading a victim from reporting a crime, pursuant to Penal Code section 654, and that imposition of the upper term violated his right to jury trial and to proof beyond a reasonable doubt. We find no error and affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
On September 11, 2006, Mirian Rodriguez sat in her living room while her children played in the bedroom. The front door was partially open because it was a hot day. As she watched television, a man entered the house with a black stocking and a wool cap covering his face with cutouts for his eyes and mouth. He pointed a gun at her head and asked for money. Ms. Rodriguez told him she had no money, but he repeated his demand. He told Rodriguez to give him a bracelet she was wearing, which he placed in a trash bag he was carrying. Then he asked for her car keys. Ms. Rodriguez called out to her older son, Nery, to bring her the keys. He brought the keys to his mother. The intruder pulled twice on a chain Nery wore around his neck. The chain broke and the man put it in the trash bag. He pulled wires out of the home theater system, and warned Rodriguez not to call the police. He put other things into the bag, including a DVD player, a watch, and $500 in cash. During all this, the man kept pointing the gun at Ms. Rodriguez.
The man then went to the telephone and ripped it out. He told Ms. Rodriguez “he didn’t want to see any police there because if he did, he was going to kill me and my family.” He took the telephone and threw it outside. Then he left. Rodriguez later learned that her car had been taken.
Ms. Rodriguez and her children stayed inside with their heads down. After about 15 minutes, she retrieved the telephone and called her husband, who called the police.
When police arrived, Ms. Rodriguez identified appellant as the perpetrator. She had recognized him while he was pulling on her son’s chain. He was a neighbor she knew only as “Frankie.” She recognized him by his voice, his beard and eyes, and the fact that he asked her about her husband, referring to him as “your boyfriend.” In several previous contacts with Ms. Rodriguez during the two months preceding this incident, appellant had referred to Ms. Rodriguez’s husband as “your boyfriend.”
Police went to appellant’s house and brought him outside. Ms. Rodriguez identified him as the intruder. He was arrested and charged with two counts of robbery (§ 211), one count of residential burglary (§ 459), and one count of attempting to prevent or dissuade a witness from making a report to police (§ 136.1, subd. (b)(1)). It was alleged that appellant personally used a handgun in the commission of the crimes, and that he had suffered a prior conviction and failed to remain free of prison custody for five years.
The jury found him guilty as charged, and found the gun use allegations to be true. The court found the prior conviction allegation to be true. The court sentenced appellant to a term of 26 years 8 months in state prison. The court imposed and stayed sentence on the burglary conviction and related gun enhancement pursuant to section 654, and struck the punishment for the prison prior. This is a timely appeal from the judgment of conviction.
DISCUSSION
I
Appellant claims the gun enhancements must be stricken “because all the evidence established was that the gun was nothing more than a toy or replica.” When a defendant challenges the sufficiency of the evidence, the appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) The focus of the substantial evidence test is the whole record of evidence, not “‘“‘isolated bits of evidence.’”’” (Ibid.) That standard is satisfied in this case.
For purposes of the firearm enhancements set forth in sections 12022.5, subdivision (a) and 12022.53, subdivision (b), a firearm is “any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” (§ 12001, subd. (b).)
Los Angeles Police Officer Manuel Gomez, who had received firearm training, was asked whether the process is the same for chambering a bullet into a semiautomatic and into a revolver. He said it was not, explaining that a semiautomatic handgun has a top portion which recoils and slides back. Asked what kind of noise occurs during that process, he said it was a “[m]etal shifting sound with a clicking sound.” In contrast, with a revolver there is no top portion to rack; there is just the rotation of the cylinder at the base of the weapon, which makes a clicking sound. He was then asked about similar action in a BB gun. “Depending on the BB gun, some are just there. You pump the action on the BB gun and it creates an air sucking sound or a suction sound.” There is no type of sliding movement on top of a BB gun.
Ms. Rodriguez testified that appellant pointed a gun at her. The barrel of the gun was wrapped in a fabric. She believed the gun was real because appellant loaded it as if he were preparing to shoot. Asked to describe what appellant did with the gun, she explained: “Well, he had the gun in his hand. He had it pointed like this at me (Indicating). Well, and then I wanted to get up to see, like, if I could escape or something or get help, and then he did something like—not putting a bullet in it, but like cocking it so it could shoot.” According to Ms. Rodriguez, appellant slid something back on the gun, and it made a noise.
Nery testified that he saw appellant do something with the gun. He was asked to demonstrate with his hands, and Nery explained: “Like he pulled the thing and getting ready to start shooting.” The prosecutor described the motion: “[C]an the record reflect that the witness has taken his right hand, moved it on top of his left fist and with his right hand moved it in a backwards motion.” Nery said he heard some type of noise when appellant performed that action. On cross-examination, Nery testified that the gun was wrapped in something like a black towel, but that he could see “the circle and the thing you push for it to shoot.” Asked if that was the trigger, Nery explained, “No. It was the other thing that you pull when you’re about to shoot.” He further explained that the gun had a round part where the bullet comes out from the front of the pistol.
The testimony of the two eyewitnesses was consistent with Officer Gomez’s description of a semiautomatic handgun. The fact that neither Ms. Rodriguez nor Nery testified about the precise sound the gun made as it was being racked does not undermine the balance of their testimony about the gun. There is sufficient evidence to support the jury’s conclusion that the gun appellant pointed at Ms. Rodriguez was not a BB gun or a toy gun, but a real firearm.
II
Appellant claims the trial court violated section 654 by imposing sentence on count 4, dissuading a witness from reporting a crime, because the threats were incidental to the robbery. We disagree.
Section 654 precludes a court from imposing multiple punishment where a defendant engages in a course of conduct that violates more than one statute and comprises an indivisible transaction punishable under more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The critical question is whether the defendant acted pursuant to a single intent and objective; if so, the defendant may only be punished for one of the offenses. (Ibid.) This is primarily a factual determination to be made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) A trial court’s finding that multiple punishment for separate convictions is appropriate will not be reversed on appeal if supported by the evidence. (Ibid.; People v. Osband (1996) 13 Cal.4th 622, 730-731.)
In this case, appellant first took property from Ms. Rodriguez and Nery by force or fear, pointing a gun at Ms. Rodriguez, tearing the chain from Nery, and warning them not to call the police. He said “[r]ude things, like words that I shouldn’t call the police. Rude words. That the police shouldn’t come.” According to Ms. Rodriguez, after appellant placed the chain, bracelet, DVD player and other items into the trash bag he was carrying, “it was just a question of minutes, and then he went to the telephone and he ripped it out, and he said not to call the police. And he said he didn’t want to see any police there because if he did, he was going to kill me and my family.” “When that happened, that’s when he left the house. He grabbed the phone and threw it outside.” She clarified that appellant did not take the telephone with him; “[h]e took it outside to smash it against the wall so I couldn’t call the police.”
Separate objectives may be found, even where the conduct is almost simultaneous. In People v. Nichols, supra, the defendant and others kidnapped a truck driver and hijacked his loaded tractor trailer. During the kidnapping, appellant looked at the victim’s driver’s license and warned him: “‘If you open your mouth we are going to kill you. I know where you live.’” (People v. Nicholas, supra, 29 Cal.App.4th at p. 1654.) The court rejected defendant’s claim that he could not be punished for kidnapping the victim and threatening to kill him because the crimes were part of an indivisible course of conduct with one intent and objective, within the meaning of section 654. The court found defendant harbored two separate objectives: “(1) to hijack the truck by kidnapping and robbing the victim and (2) to avoid detection and conviction by dissuading and intimidating the victim. [¶] The first objective was accomplished in two hours. The second was ongoing. . . . [¶] The means of achieving each objective was also different. A shotgun pressed against the victim’s stomach achieved the first. Looking at the victim’s driver’s license, reading aloud his address, and threatening future harm achieved the second.” (Id. at pp. 1657-1658.)
Just as in Nichols, appellant in this case harbored two separate objectives: first, to obtain property, and second, to avoid detection by dissuading the victims from calling the police. The first objective was accomplished with the use of a gun and the initial warning not to call the police. Then he pulled out the telephone, smashed it, and warned the victims that he would kill their family if they called the police. As the trial court observed, appellant’s intent was “not to take the property of the phone. The intent is to insure that he gets away with his prize, puts so much fear in her for her husband or her son that she will never testify which, fortunately, she elected to do.” Substantial evidence supports the trial court’s conclusion that the crimes did not constitute an indivisible course of conduct within the meaning of section 654.
III
Appellant claims that under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the trial court erred by imposing the upper term of six years for robbery based on facts that were neither found by the jury nor admitted by him. The Supreme Court explained in Cunningham: “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Id. at p. ___ [127 S.Ct. at p. 860].)
“Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. . . . Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that 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.” (People v. Black (2007) 41 Cal.4th 799, 815-816; see Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) [right to a jury trial does not apply to the fact of a prior conviction].)
In this case, the court relied on the following circumstances in aggravation: “The fact that the defendant was on parole, apart from the fact that he went to prison, the fact that 34 or 35 days after he got out of prison, he committed this crime is certainly an aggravating factor. And his criminal record, . . . he was originally put on probation for the sales case and within six months picked up a theft misdemeanor. He was put on three years probation on that. And within 11 months he picked up a 148. And within, jeez, it looks like six months he picked up a grand theft. So his record is terrible and that’s an aggravating factor that clearly outweighs any mitigating factors of which there are none.”
Appellant testified at trial that he was on parole at the time of the crime; that was his explanation for giving police a false name when they came to his house. This single factor rendered him eligible for upper term sentencing. (See People v. Yim (2007) 152 Cal.App.4th 366, 371.) The trial court also could rely on appellant’s criminal history, which showed he had been convicted of numerous crimes within a short period of time. (See Apprendi, supra, 530 U.S. at p. 490.) The factors that supported imposition of the upper term sentence were recidivism related, and thus fell within the Apprendi exception to the right to jury trial. Appellant’s Sixth Amendment rights were not violated.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.