Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA057276, Joseph A. Brandolino, Judge.
Marilee Marshall & Associates, Inc. and Marilee Marshall, 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, Zee Rodriguez and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Christopher Cruz appeals the judgment entered following his conviction by jury of attempted willful, deliberate and premeditated murder in which he personally inflicted great bodily injury and personally used a dangerous or deadly weapon, first degree robbery in which he personally inflicted great bodily injury and personally used a dangerous or deadly weapon, four counts of first degree burglary, one count of second-degree burglary and one count of unlawfully taking a vehicle. (Pen. Code, §§ 664/187, 12022.7, subd. (a), 12022, subd. (b)(1), 211, 459; Veh. Code, § 10851, subd. (a).)
Subsequent unspecified statutory references are to the Penal Code.
Cruz contends section 654 prevents imposition of punishment for attempted murder (count 1) and robbery (count 3) and prevents imposition of multiple enhancements for the personal infliction of great bodily injury and the personal use of a dangerous or deadly weapon. We conclude Cruz inflicted great bodily injury upon a single victim during a single incident and physically attacked the victim only during the commission of attempted murder. Based on these facts, only one great bodily injury enhancement may be imposed. (People v. Reeves (2001) 91 Cal.App.4th 14, 55-56.) We reject Cruz’s remaining contentions and affirm the judgment as modified to stay the great bodily injury enhancement imposed with respect to count 3, robbery.
FACTS AND PROCEDURAL BACKGROUND
1. Overview of Cruz’s offenses.
On November 4, 2007, Cruz drove a stolen car to an apartment complex in North Hollywood. He burglarized three separate apartments, then entered Leslie Stone’s apartment and robbed her, then attempted to kill her by stabbing her with a knife and fork and strangling her. Cruz escaped with Stone’s property but was arrested the next day attempting to use her credit card.
2. The offenses committed against Leslie Stone.
On November 4, 2007, sometime after 5:00 a.m., Leslie Stone, a 35-year-old high school teacher, was awakened by a noise in the bedroom of her apartment. Stone opened her eyes and saw Cruz standing at the foot of the bed with a knife. Stone told Cruz, “Whatever you want, take it.” Cruz responded, “What do you got?” Stone handed Cruz two laptop computers and offered him her car keys and credit cards which were in a bowl in the living room. Stone said, “Take my car.” Stone also told Cruz to “take my credit cards” and gave him the PIN number. Cruz demanded more property but Stone said she had nothing else.
Cruz then said he could not leave any witnesses and asked if Stone wanted “to see heaven?” Stone replied, “yes, sir, but not tonight.” Cruz then stabbed Stone behind her right ear with the knife. Stone held Cruz’s wrists, got off the bed and attempted to get out of the bedroom. Cruz struck Stone with a laptop computer, knocked her to the ground and began strangling her. Stone kicked Cruz off of her and continued to attempt to escape. Stone recalled Cruz approaching her with forks in his hand. Cruz told Stone, “Put your hand down. It’ll be faster.” Stone continued to struggle and Cruz again struck Stone with a computer. At one point, Stone got to her knees and screamed. Cruz stabbed Stone in the hands with the forks. Stone heard voices outside her apartment. She crawled to the front door and found her neighbors were there. Residents of Stone’s apartment complex attempted to detain Cruz at the scene without success.
Stone was hospitalized for four days. She suffered facial paralysis after the attack that has since resolved. Her pupils now dilate at different rates. She received stitches for wounds to her neck and ear. The strangling resulted in a disarticulated arytenoid from which she continues to suffer.
3. Sentencing.
At the time of sentencing, the trial court indicated it believed count 4, first degree burglary of Stone’s apartment, should be stayed pursuant to section 654 because it was “related in some respects to counts 3 [robbery] and 1 [attempted murder], in the sense that... entering the home... was... a prerequisite to... the other two crimes.” The trial court indicated it did not think the robbery and the attempted murder charges “merge[d]” but the burglary did. The trial court indicated it was giving Cruz the benefit of the doubt even though it believed the maximum possible sentence was appropriate.
The trial court selected the robbery of Stone as the principal term and imposed the upper term of six years plus three years for the personal infliction of great bodily injury and one year for the personal use of a deadly weapon for a total of 10 years. The trial court imposed a consecutive indeterminate term for attempted murder plus three years for the personal infliction of great bodily injury and one year for the personal use of a deadly weapon. The trial court imposed consecutive terms on the remaining counts for a total unstayed term of 19 years and 8 months plus a consecutive term of life in state prison.
CONTENTIONS
Cruz contends the trial court violated section 654 by sentencing him both for the attempted murder and the robbery of Stone. He also contends section 654 prevents both counts from being enhanced with great bodily injury and personal use of a deadly weapon enhancements.
DISCUSSION
1. General principles.
Section 654, subdivision (a) provides, in pertinent part, “[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.” Section 654 is intended “to insure that a defendant’s punishment is commensurate with his [or her] culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552.) The statue bars multiple punishment for both a single act that violates more than one criminal statute and multiple acts, where those acts comprise an indivisible course of conduct incident to a single criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) Conversely, where a defendant commits multiple criminal offenses during a single course of conduct, he or she may be separately punished for each offense that he or she committed pursuant to a separate intent and objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-639.)
Whether multiple convictions were part of an indivisible transaction is primarily a question of fact for the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review a challenge under section 654 for substantial evidence to support the trial court’s determination. (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
2. Imposition of sentence for both robbery and attempted murder of Stone does not violate section 654
Cruz contends he harbored a single intent and objective, namely, the robbery of Stone, when he committed attempted murder in count 1 and robbery in count 3. Cruz argues these offenses were part of an indivisible course of action in which Cruz committed attempted murder to prevent Stone from identifying him and the attempted murder was the means of perpetrating the robbery. Also, Cruz wanted to gather items he intended to take, some of which were in the living room in a bowl, without Stone’s interference. Cruz concludes the term imposed for robbery must be stayed pursuant to section 654 because the attempted murder was committed to facilitate the robbery.
We readily conclude the trial court correctly determined that Cruz entertained one objective during the robbery and a separate objective during the attempted murder. Gratuitous acts of violence against an unresisting robbery victim repeatedly have been held to support separate and additional punishment under section 654. (See, e.g., People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272 [gratuitous beating of nonresistant robbery victim not committed with the same objective as the robbery]; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1296, 1300 [“ ‘[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, 190-191 [shooting an unresisting store clerk divisible from robbery].)
This rule properly is applied here. Stone immediately surrendered her property to Cruz and was an unresisting victim until Cruz indicated he needed to eliminate witnesses and began to attack Stone. Thus, the attempted murder of Stone was an act of gratuitous violence against a helpless and unresisting victim, which was not an act incidental to robbery for the purposes of section 654. Consequently, the evidence supports the trial court’s conclusion section 654 did not bar imposition of sentence for both robbery and attempted murder.
3. Although multiple deadly weapon enhancements are proper, only one great bodily injury enhancement may be imposed.
The trial court imposed enhancements for the personal use of a deadly weapon (§12022, subd. (b)(1)) and the personal infliction of great bodily injury (§ 12022.7, subd. (a)) with respect to both the robbery and the attempted murder counts. Cruz contends the enhancements imposed with respect to the robbery count must be stayed pursuant to section 654 because the robbery and the attempted murder were committed against a single victim in a single course of conduct. (People v. Arndt (1999) 76 Cal.App.4th 387, 396; People v. Myers (1997) 59 Cal.App.4th 1523, 1530; People v. Akins (1997) 56 Cal.App.4th 331, 338; People v. Moringlane (1982) 127 Cal.App.3d 811.)
Whether section 654 generally applies to enhancements has not been resolved by the California Supreme Court. (See People v. Palacios (2007) 41 Cal.4th 720, 728; People v. Oates (2004) 32 Cal.4th 1048, 1066, fn. 7; People v. Coronado (1995) 12 Cal.4th 145, 157.) The California Supreme Court has addressed the issue by analyzing the language of the specific enhancement statute (People v. Palacios, supra, 41 Cal.4th 720) or by examining the nature of the particular enhancement (People v. Coronado, supra, 12 Cal.4th 145). Palacios held three section 12022.53 firearm enhancements should be imposed, despite section 654, because section 12022.53 expressly states the enhancement shall be applied as an additional and consecutive term of imprisonment notwithstanding any other provision of law. (Id. at pp. 726-728.) Palacios reasoned this language demonstrated a legislative intent to override section 654. (Id. at pp. 728-730.)
People v. Coronado held section 654 did not bar the use of a single prior felony drunk-driving conviction and resulting prison term both to elevate a current drunk-driving conviction to a felony and to enhance the sentence under section 667.5. (People v. Coronado, supra, 12 Cal.4th at pp. 149, 158.) Coronado drew a distinction between status enhancements that pertain to the nature of the offender and conduct enhancements that pertain to the nature of the offense. (Id. at pp. 156-158.) Coronado concluded a prior prison term enhancement, which related to the defendant’s status as a repeat offender, did not implicate multiple punishment of an act or omission, making section 654 inapplicable. (People v. Coronado, supra, at p. 158.)
Unlike the statute at issue in Palacios, neither section 12022 nor section 12022.7 contains language similar to that of section 12022.53. Thus, there is no indication the Legislature intended to require the imposition of these enhancements in addition to other enhancements, or to except these enhancements from the application of section 654. Further, unlike in Coronado, the enhancements were based on Cruz’s conduct of personally using a deadly weapon and personally inflicting great bodily injury, not on his status. Thus, Coronado is not dispositive.
As observed in Coronado, “enhancements... exemplified by those authorized under sections 12022.5 [use of firearm] and 12022.7 [great bodily injury], arise from the circumstances of the crime and typically focus on what the defendant did when the current offense was committed. [Citation.]” (People v. Coronado, supra, 12 Cal.4th at p. 157, fn. omitted.) Applying this authority, we look to the facts of the case under review to determine whether section 654 applies to the deadly weapon and great bodily injury enhancements at issue.
With respect to the enhancement for the personal use of a deadly weapon, Cruz used the knife in the commission of both offenses. He displayed the knife at the outset of the robbery to obtain Stone’s property and he stabbed Stone with the knife during the commission of attempted murder. Thus, it is appropriate to impose the deadly weapon enhancement twice.
However, a different result obtains with respect to the enhancement imposed for the personal infliction of great bodily injury. Cases with facts similar to the circumstances presented here have permitted only one great bodily injury enhancement. People v. Reeves, supra, 91 Cal.App.4th 14, found section 654 applied to a great bodily injury enhancement the trial court applied twice, once as to an assault conviction involving a single victim, and again as to a burglary conviction based upon the same incident. (People v. Reeves, supra, at p. 56.) Finding “no precedent approving of multiple sentence enhancements for a single assault against a single victim, even though the defendant committed additional crimes against that victim,” Reeves held “ ‘ section 654... prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person.’ ” (Id. at pp. 56-57, quoting People v. Moringlane, supra, 127 Cal.App.3d at p. 817.)
Reeves found Coronado’s distinction between types of enhancements significant, because “[m]ultiple enhancements for the same criminal conduct run directly counter to section 654’s rule against multiple punishment in a way offender-status-based enhancements do not.” (People v. Reeves, supra, 91 Cal.App.4th at p. 56.) Reeves held, “In the absence of any evidence making the assault... divisible [citation], the trial court should not have imposed two great bodily injury enhancements under section 12022.7.” (People v. Reeves, supra, 91 Cal.App.4th at p. 57; see also, People v. Arndt, supra, 76 Cal.App.4th at p. 397; People v. Myers, supra, 59 Cal.App.4th at p. 1530; People v. Moringlane, supra, 127 Cal.App.3d at p. 817.)
On the facts of this case, we find this reasoning persuasive. Cruz inflicted great bodily injury upon a single victim and only in connection with the attempted murder. Indeed, the robbery of Stone was essentially complete when Cruz decided to attack Stone to eliminate witnesses. We therefore conclude the circumstances of this case permit only one great bodily injury enhancement.
The People argue multiple enhancements are proper for the same reasons sentence on both counts is proper. However, imposition of sentence for both robbery and attempted murder is based on the fact Cruz entertained separate intents in the commission of the offenses. These separate intentions do not address the fact Cruz inflicted great bodily injury against a single victim and only in connection with the attempted murder. We therefore conclude the enhancement for the personal infliction of great bodily injury imposed with respect to the robbery count must be stayed.
The rule suggested by the People applies with respect to criminal street gang enhancements. Where substantive offenses are not subject to section 654, “gang enhancements pursuant to section 186.22, subdivision (b)(1) are also not subject to section 654.” (People v. Akins, supra, 56 Cal.App.4th at p. 340.) This rule is consistent with the legislative intent expressed in enacting the criminal street gang enhancement that existing laws should be utilized to the fullest extent possible to deter criminal gang activity. (Id. at p. 341.) As noted above, there is no indication of a legislative intent that great bodily injury enhancements be imposed notwithstanding any other provision of law.
DISPOSITION
The judgment is modified to stay execution of the enhancement imposed pursuant to section 12022.7, subdivision (a) as to count 3. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: CROSKEY, J. ALDRICH, J.