Opinion
G052847
06-26-2017
THE PEOPLE, Plaintiff and Respondent, v. ALBERT FLETCHER BROWN, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13HF2959) OPINION Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Albert Fletcher Brown pleaded guilty to five counts of second degree robbery stemming from an armed robbery of a retail store. At sentencing, the trial court denied application of Penal Code Section 654 and sentenced Brown to consecutive sentences for each robbery count. Brown claims the court improperly denied application of section 654 to four of the five robbery sentences and abused its discretion by imposing consecutive rather than concurrent sentences.
All further statutory references are to the Penal Code unless otherwise indicated.
We find that the trial court did not err when it denied application of section 654, as it does not apply to crimes featuring multiple acts of violence against multiple victims. Five counts of armed robbery with five different victims precludes application of section 654. (People v. Miller (1977) 18 Cal.3d 873, 886 (Miller), overruled on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8.)
Moreover, the trial court did not abuse its discretion by imposing consecutive sentences. The court concluded that the crimes Brown committed involved separate acts of violence or threats of violence, thereby satisfying California Rules of Court, rule 4.425. There is ample evidence to support the court's conclusion, and there was no abuse of discretion.
We affirm the judgment.
I
FACTS
In September 2013, Brown and Daniel Bates robbed an AT&T store in Laguna Niguel. Each perpetrator had a distinct role. Bates controlled the employees while Brown gained access to the inventory room. Bates entered first and ordered everyone in the store to get down while brandishing his firearm. Brown entered after and immediately demanded, "I need to get in the back room. Where is the manager?" The manager then stood up and led Brown to the inventory room.
The inventory room was locked via key code. While opening the door, the manager accidently mistyped the key code because she thought Brown was holding a gun to her head. Upon mistyping the code, Brown told the manager to "hurry up, hurry up." Eventually, the manager successfully unlocked the door. The store's stock of new iPads and iPhones was in the inventory room. With the help of the manager, Brown loaded the store's inventory into a large trash bag.
After Brown gained access to the inventory room, Bates forced the remaining four employees into the store's other back room at gunpoint. At one point, Bates nudged an employee in the shoulder with the barrel of his gun because she initially failed to follow his instructions. The two fled in a stolen car after Brown finished cleaning out the inventory room. The police apprehended Bates and Brown shortly thereafter at Mariners Church. No firearms were ever found.
The People charged Brown with one count of unlawfully taking of vehicle and five counts of second degree robbery. (Veh. Code, § 10851, subd. (a); §§ 211, 212.5, subd. (a).) It was further alleged that Brown was subject to the following enhancements: personal use of a firearm (§ 12022.53, subd. (b)), a strike prior (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and a prison prior (§ 667.5, subd. (b)). Prior to trial, Brown pleaded guilty to the five counts of robbery, unlawfully taking a vehicle, the strike prior, and the prison prior.
A jury trial was held to determine whether the personal use of a firearm enhancement applied to each robbery count. At trial, there was witness testimony that both Brown and Bates were armed. Brown denied having a gun. No definitive video evidence showed that Brown was armed during the robbery, but there was pixelated video showing that Brown approached the manager as she was typing the key code and raised his left arm towards her shoulder.
The jury found four of the personal use enhancements not true, and a mistrial was declared on the fifth. The fifth enhancement was later dismissed. Brown was sentenced to a total of 18 years in prison: 10 years for one count of robbery, two years consecutive for each of the remaining four counts of robbery, and three years concurrent for unlawfully taking a vehicle.
II
DISCUSSION
Brown claims that the trial court improperly denied application of section 654 to stay four of the five robbery sentences and abused its discretion by imposing consecutive rather concurrent sentences for the same four counts of robbery. We shall address each claim in turn. A. Application of Section 654
Brown claims the trial court should have applied section 654 to stay four of the five robbery sentences because Brown did not commit multiple acts of violence against multiple parties. Brown is mistaken.
Section 654 states "[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." Generally under section 654, a defendant may only be sentenced once for crimes completed by a single physical act or in pursuit of a single criminal objective. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).)
There are two exceptions to section 654, but only one is relevant in the instant case. Section 654 does not bar multiple punishments "for an 'act of violence' against multiple victims. If the defendant has engaged in an act of violence against two or more people, he may be punished separately for each crime." (People v. Newman (2015) 238 Cal.App.4th 103, 112-113 (Newman); Neal v. State of California (1960) 55 Cal.2d 11, 20-21, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 334.)
At the sentencing hearing, the trial court concluded that section 654 did not apply to the robbery counts and sentenced Brown to five consecutive terms. Brown argues that the court erred in this determination because he did not commit five separate acts of violence against five individuals. Brown claims he was not personally armed. He also contends robbery does not always include a violent act if the robbery is accomplished by fear rather than force. We need not answer such a broad question, however. Brown and his accomplice, Bates, committed five separate acts of violence in the commission of the robbery; therefore, section 654 does not apply to Brown.
First, Brown argues that he was not personally armed during the robbery and therefore the robbery was not an act of violence. The jury found four out of five personal use firearm enhancements not true and a mistrial was declared on the fifth. Brown contends this proves he was unarmed throughout the robbery. The Attorney General, however, argues that Brown was armed. There is testimony from multiple witnesses stating that Brown was armed, but the video evidence does not clearly show a firearm in Brown's possession. For the sake of argument, we will assume that Brown was unarmed. It does not change the outcome.
The jury's determination that four of the five weapon enhancements were not true shows the People failed to prove that Brown was armed beyond a reasonable doubt. (People v. Lloyd (2015) 236 Cal.App.4th 49, 62.) It does not necessarily establish as a matter of incontrovertible fact that Brown was unarmed. If we determined Brown was armed, Miller would apply and application of section 654 would be precluded. (Miller, supra, 18 Cal.3d at p. 886.) --------
"The robbery of a victim at gunpoint has been held to be an act of violence such as to preclude application of section 654 in the case of multiple convictions involving multiple victims." (Miller, supra, 18 Cal.3d at p. 886.) Brown's accomplice, Bates, was armed throughout the robbery, and was convicted on five personal use of firearm enhancements. (People v. Bates (May 26, 2016, G050530) [nonpub. opn.].) He openly brandished his weapon at the beginning of the robbery, used the weapon to corral the employees into the back room, and pushed a store employee with its barrel.
Under law, everyone who participates in the commission of an offense is guilty of that crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) Brown is therefore criminally liable for the actions of Bates, and Bates unquestionably robbed five people at gunpoint. (§ 31.) Section 654 has consistently been applied to actions that are not actually the defendant's, but are treated by law as if they were.
For example, in Corpening, supra, 2 Cal.5th at pages 309-310, Corpening planned a robbery, which was executed by his accomplice. The court considered the accomplice's actions when analyzing the application of section 654 to Corpening's sentences. (Corpening, at p. 314.) It held that the accomplice's actions constituted a single physical act, thereby precluding multiple punishments for Corpening under section 654. (Corpening, at p. 315.) Similarly, Bates's actions can be considered when analyzing Brown's sentences under section 654. Brown, through his accomplice, committed armed robbery and an act of violence against five individual victims. Therefore, section 654 does not apply. (Miller, supra, 18 Cal.3d at p. 886.)
The practical effect of not sentencing Brown for Bates's open threats and acts of violence would be undesirable. Bates and Brown were accomplices and principals in commission of the robbery. If only Bates could be liable for the use a weapon, Brown could escape significant criminal liability for his role in a violent felony where he knew Bates had a gun. In fact, the gun was used to instill fear into the store employees. It was the means by which the two committed their crime. If Brown were not liable for Bates's actions, then an individual could use his accomplice as a legal scapegoat. An individual like Brown could force his accomplice to carry the weapon to threaten victims and receive no criminal punishment for his role in the accomplice's use of force via firearm. The purpose of section 654 is to punish a defendant commensurate with his criminal liability. (Neal, supra, 55 Cal.2d at pp. 20-21.) An individual who is knowingly involved in a crime that involves multiple acts of violence against multiple victims is clearly more culpable than an individual involved in a crime with only one victim. Therefore, section 654 should not apply to Brown, and if it did, it would defeat the purpose of the section.
Next, Brown relies heavily on Newman, supra, 238 Cal.App.4th 103, to argue that commission of a robbery does not automatically preclude application of the multiple victim exception. Newman is distinguishable from the instant case and not as persuasive as Brown contends. In that case, the defendant was convicted of robbery, burglary and two counts of felony false imprisonment, and argued section 654 should apply to stay punishment for both false imprisonment counts. (Newman, at p. 106.) The court in Newman concluded that "whether an act of violence has occurred for purposes of section 654 must be considered in light of the statute defining the crime of which the defendant has been convicted, but it must also be determined by what happened in commission of the crime." (Id. at pp. 116-117.)
Furthermore, Brown argues Newman stands for the proposition that a violent crime, such as robbery, is not necessarily a violent act for the purposes of section 654. In Newman, the court was concerned with categorizing a nonviolent crime, false imprisonment, as an act of violence within the multiple victim exception. (Newman, supra, 238 Cal.App.4th at p. 121.) Because false imprisonment is not violent by definition, the court needed to consider whether the particular facts of the case justified characterizing it as a violent offense. Here, the relevant crime, robbery, is violent by definition. (Id. at p. 117; see People v. Champion (1995) 9 Cal.4th 879, 935 ["[r]obbery is violent conduct"], overruled on another ground in People v. Combs, 34 Cal.4th 821, 860.)
Brown, however, contends that the robbery does not, by definition, include an act of violence. He argues robbery by force may, but does not necessarily, include an act of violence, and robbery by fear is inherently nonviolent. Whether Brown personally used force or fear is simply irrelevant due to the actions of his accomplice, who unquestionably used both force and the fear of being shot to bend the victims to his will. As discussed above, Brown is legally culpable for Bates's actions.
Brown further argues that since robbery is a crime against person and property, the multiple victims exception, which does not apply to crimes against property, should not apply here. Robbery is "defined in terms of an act of violence against the person." (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 352.) Thus, robbery constitutes separate offenses when committed against separate victims. (People v. Hall (2000) 83 Cal.App.4th 1084, 1093, disapproved on another ground in People v. Correa, supra, 54 Cal.4th at p. 343.) The nature of the robbery offense does not change because the focus of Brown's crime was the inventory room, not the individual victims; indeed, the goal of robbery is nearly always to obtain money or property rather than victimizing an individual. Brown still committed five counts of robbery; five crimes defined by an act of violence against a person. We therefore reject this argument, and conclude the trial court did not err by denying application of section 654. B. Consecutive Rather than Concurrent Sentences
Brown also challenges the trial court's decision to sentence him to consecutive rather than concurrent sentences for each robbery count. The court sentenced Brown to a total of 18 years in prison: five years (the upper term) for one count of robbery doubled due to the strike prior, one-year consecutive (one-third the midterm) doubled pursuant to the strike prior for each of the remaining four counts of robbery, and three years concurrent for unlawfully taking a vehicle.
Pursuant to People v. Deloza (1998) 18 Cal.4th 585, 596, the trial court had discretion to impose consecutive or concurrent sentences because the crimes were committed on the same occasion. "In the absence of a clear showing of abuse, the trial courts discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20.)
California Rules of Court, rule 4.425 sets forth the criteria a trial court should consider when exercising its discretion whether to impose concurrent or consecutive sentences. The relevant criterion is whether the "crimes involved separate acts of violence or threats of violence." (Cal. Rules of Court, rule 4.425(a)(2).) "Only one criterion or factor in aggravation is necessary to support a consecutive sentence." (People v. Davis (1995) 10 Cal.4th 463, 552.) The court "need only cite 'reasons' for other sentencing choices (§ 1170, subd. (c)), and the reasons given for imposing a consecutive sentence need only refer to the 'primary factor or factors' that support the decision to impose such a sentence [citations]." (People v. Black (2007) 41 Cal.4th 799, 822.)
The trial court imposed consecutive sentences on four counts of robbery because "pursuant to rule 4.425 subsection (a) subsection (2), the crime involved separate acts or threats of violence." The court's reasoning followed the guidelines set forth in People v. Black, supra, 41 Cal.4th at page 822, by explicitly stating the primary factor that supported its decision. The court needed only one criterion to support a consecutive sentence, which it provided. Furthermore, there is ample support for the court's decision. Brown committed five counts of robbery, five violent felonies, against five separate victims. Concluding that four of those violent felonies, each with separate victims, involved separate acts or threats of violence does not exceed the bounds of reason. Therefore, the court did not abuse its discretion in imposing consecutive sentences.
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. IKOLA, J.