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People v. Campbell

Court of Appeals of California, Second Appellate District, Division Two.
Nov 25, 2003
No. B166032 (Cal. Ct. App. Nov. 25, 2003)

Opinion

B166032.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. MARCELLUS CAMPBELL, Defendant and Appellant.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.


Marcellus Campbell appeals from the judgment entered upon his conviction by jury of three counts of attempted second degree robbery and three counts of assault with a firearm, each offense committed with personal use of a firearm (Pen. Code, §§ 664/211, 245, subd. (a)(2), 12022.53, subd. (b), 12022.5, subd. (a)(1)), and upon findings of three prior convictions within the meaning of the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1). He was sentenced to 25 years to life with a 10-year firearm use enhancement and a five-year prior serious felony conviction enhancement on one count of attempted robbery, with concurrent terms on the remaining five counts.

Unless otherwise specified, all further statutory references are to the Penal Code.

Appellant contends that (1) the trial court abused its discretion in denying his motion to strike his prior strike convictions, and (2) the trial court violated section 654 in imposing concurrent terms on the assault counts. We modify the judgment to stay the sentences for the assault counts and otherwise affirm.

FACTS

The evidence established that in the early morning hours of May 17, 2002, four employees of a Los Angeles McDonalds restaurant had finished cleaning and were about to leave. Two, Emiliano Gutierrez and Alvaro Orozco, were still inside the premises, while the other two, Fernando Ruiz and Pedro Chan, had already gone out to their vehicles. Appellant approached Chan as he sat in his truck, pointed a handgun at him, and ordered him to open his window. Chan refused. Appellant struck the window with his gun, breaking the glass. He grabbed Chans tie, hit him in the back of the head, and dragged him back to the restaurant. Appellants companion, Travion Glover, brought Ruiz back to the restaurant at gunpoint. Gutierrez was ordered to open the door. Chan yelled to Gutierrez not to open it, but appellant struck Chan with the gun, telling Chan not to look at him. Gutierrez opened the door.

Glover is not a party to this appeal.

Inside the restaurant, appellant and Glover put on ski masks. Glover ordered Ruiz and Gutierrez to lie face down on the floor. Someone tried unsuccessfully to remove Gutierrezs wallet from his pocket. While appellant held his gun on Gutierrez and Ruiz, Glover dragged Chan to the office of the restaurant, struck him with his gun, ordered Chan not to look at his face, and ordered him to open the safe. When Chan stated that he was unable to do so, Glover threatened to shoot him if he did not open it by the count of five. Glover then dragged Chan to a cash register and ordered him to open it. Chan opened the drawer but there was no money inside. Glover became angry, knocked Chan down, kicked him and struck him on the back of the head. He told Chan that he would kill the three of them if they did not open the safe. Glover yelled for appellant to bring Gutierrez and Ruiz over to open the safe. Gutierrez and Ruiz were taken to the cash register. Appellant and Glover, apparently believing that Gutierrezs house keys would unlock the safe, tried to take his keys from him.

It is unclear where Orozco was during the robberies. At some point, someone, apparently Orozco, called the police.

Just then, a police helicopter was heard overhead, and appellant and Glover fled. Appellant and Glover were separately taken into custody after a chase involving two helicopters, officers on the ground, and K-9 units. Officers recovered three latex gloves and a nylon stocking with holes cut out at a location where Glover had been seen discarding items during the chase. A loaded semiautomatic handgun was recovered during a search of the area around the shed where appellant was apprehended. Pantyhose with holes were found on the sidewalk outside the front door of the restaurant.

DISCUSSION

I. The trial court did not abuse its discretion in refusing to strike appellants prior convictions.

The trial court found, as alleged within the meaning of the three strikes law, that appellant suffered three robbery convictions in 1990. Appellant contends that the trial court failed to fairly consider his motion to strike two of the three prior strike convictions. This contention is without merit.

Prior to sentencing, defense counsel asked the trial court to strike some or all of appellants strike convictions. He argued that the strike offenses occurred approximately 13 years earlier and appellant was only 20 years of age at the time, that appellant had "never done more than a few years in custody at any one stretch," that he had committed no violent offenses between the strikes and the instant crimes, and that no one was seriously injured in this incident.

The prosecutor argued against striking the strikes, stating that the prior convictions were three separate robberies which appellant committed with a companion over the course of two days, in which appellant used a gun in robbing one victim and the companion used a gun in robbing the other two victims. After his release from prison on the robberies, appellant was convicted of possession of cocaine and was again sentenced to prison. The prosecutor further argued that the present offenses were sophisticated, in that appellant and his companion were lying in wait for the employees and brought guns, masks and gloves. He pointed out that since Glover had no record, it appeared that appellant was the instigator, and that two of the victims had been pistol whipped. He asserted that the arrival of the helicopter was perhaps the only reason appellant was not charged with special circumstance murder as well as robbery.

The trial court declined to strike any of the prior convictions, stating, "First of all, just to keep the record clear, I cannot speculate as to special circumstance murders or whatever. Armed robberies unfortunately take place all the time. You cant just speculate that this would have generated into someone being killed. [¶] I think based upon the cross-examination [by defense counsel] it was really not completely clear who was hitting who[m]. And also, there was then — this was planned, but it certainly wasnt sophisticated, just so that the record is clear. [¶] The [section] 667.5(b) prior, the court on its own can strike that allegation thats been alleged, but thats the only striking the court will do . . . . And your request for Romero [People v. Superior Court (Romero) (1996) 13 Cal.4th 497] and the courts denial is something that will have to be reviewed further at the Court of Appeal. I think [the prosecutors] record was substantial enough for that."

A prior felony conviction for which appellant served a prison term was alleged pursuant to section 667.5, subdivision (b). Prior to sentencing, the trial court dismissed that allegation on motion of the prosecutor.

In ruling on a motion to strike a prior conviction in furtherance of justice under section 1385, the trial court must take into consideration the defendants background, the nature of his current offense, and other "`individualized considerations." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) "[P]reponderant weight must be accorded to factors intrinsic to the [three strikes] scheme, such as the nature and circumstances of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (People v. Williams (1998) 17 Cal.4th 148, 161.) In deciding whether to strike a prior conviction, and in reviewing a trial courts ruling, "the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Ibid.) The defendants criminal history is among the relevant factors to be considered. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979.)

"`The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.)

The issue of the appropriate standard of appellate review of a trial courts decision declining to dismiss a prior conviction for purposes of sentencing under the Three Strikes law is currently pending before the Supreme Court. (People v. Carmony, review granted May 21, 2003, S115090.)

In support of his claim on appeal, appellant argues the same factors enumerated by defense counsel at trial. He further asserts that it appears from the record that he has a drug problem that was never properly treated and that this prompts his commission of crimes, that he was doing well on parole, maintaining employment and not testing dirty for narcotics, and that he only watched over the other victims while Glover struck Chan and threatened to shoot him. He claims that his criminal history is analogous to that of the defendant in People v. Bishop (1997) 56 Cal.App.4th 1245, where the reviewing court affirmed the trial courts decision to strike two of the three strike priors.

We cannot conclude that the trial court abused its discretion in its implied determination that appellant was not outside the spirit of the three strikes law. Appellant is not like the defendant in People v. Bishop, supra, whose current offense was a nonviolent petty theft. (56 Cal.App.4th at p. 1251.) Appellants current convictions were armed robberies and assaults with a firearm. As the trial court observed, the robberies were planned rather than spur-of-the-moment crimes, and the crimes involved violence insofar as appellant smashed Chans window, dragged him back to the restaurant, and struck him with his gun, and held his gun on the other two victims. Although the strike offenses occurred 12 years prior to the instant offenses, appellant had spent a considerable amount of that time in prison. After appellant served his prison term for the prior robbery convictions, he violated parole by committing another crime, for which he was again sentenced to prison. However, these periods of incarceration did not deter him from reoffending. His performance on parole after the latter offense cannot be said to be a factor in mitigation, given his commission of the current offenses while on parole and the fact that he had previously violated that parole in 2000. On this record, the trial courts ruling on appellants Romero motion was well within the sound exercise of discretion. (People v. Cline (1998) 60 Cal.App.4th 1327, 1337; People v. Gillispie (1997) 60 Cal.App.4th 429, 435.)

II. The concurrent sentences for assault must be stayed pursuant to section 654.

Appellant was convicted of robbing Chan, Gutierrez and Ruiz and of assaulting these victims with a firearm. During his argument to the jury, the prosecutor argued that the evidence proved appellant guilty of the robberies, stating, "I dont think you have any questions that there was enough to take the money by force or fear. Force by pistol whipping, fear by threatening with guns." To establish the commission of assault, the prosecutor argued that the crime was established by the pistol whipping or the holding of the victim down at gunpoint.

At sentencing, the trial court indicated its intent to impose concurrent rather than consecutive terms. The prosecutor observed, "I think as a practical matter counts 1, 2 and 3 merge with counts 4, 5 and 6 under 654," and stated that the question was whether the trial court should sentence concurrently or consecutively in view of the three separate victims. After ruling on appellants Romero motion, the trial court imposed six concurrent terms. The trial court did not order any of the sentences stayed pursuant to section 654.

Appellant contends that the sentences for the assaults, counts 4, 5 and 6, should have been stayed pursuant to section 654 because the robbery and the assaults were part of one indivisible transaction and involved a single intent, to commit robbery. We agree.

Section 654 provides, in pertinent part, "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." "If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)

As respondent points out, "a separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654." (People v. Nguyen (1988) 204 Cal.App.3d 181, 193.) However, as the prosecutor argued to the jury, appellants conduct in assaulting the three victims with a gun constituted the force or fear necessary to accomplish the robberies. Accordingly, as the prosecutor acknowledged at sentencing, the concurrent sentences in counts 4, 5 and 6 should have been stayed. (People v. Brown (1989) 212 Cal.App.3d 1409, 1427, disapproved on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)

DISPOSITION

The judgment is modified to reflect that the concurrent sentences of 25 years to life for assault in counts 4, 5 and 6 are stayed, the stays to become permanent upon completion of the sentences in counts 1, 2 and 3. In all other respects, the judgment is affirmed

We concur: BOREN, P.J. and ASHMANN-GERST, J.


Summaries of

People v. Campbell

Court of Appeals of California, Second Appellate District, Division Two.
Nov 25, 2003
No. B166032 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Campbell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARCELLUS CAMPBELL, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division Two.

Date published: Nov 25, 2003

Citations

No. B166032 (Cal. Ct. App. Nov. 25, 2003)