Opinion
A128145
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. JUAN O. FERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Mendocino County Super. Ct. No. SCUKCRCR 08-82092)
This case is one of two before us arising from the same home invasion robbery targeting money linked to the marijuana trade in Laytonville. Appellant Juan O. Fernandez, who was charged with two other defendants, was the only one to go to trial and the only defendant before us in this case. He appeals on the basis that his sentence violated Penal Code section 654. We affirm.
The second case is People v. Melendez, No. A128913.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 7, 2008, Fernandez was arrested with two other men, Johan Espinoza and Ruben Salazar, on suspicion of having conducted a robbery in the home of Michael Stanley, who had grown marijuana on his 40-acre parcel in prior years.
Espinoza ultimately entered no contest pleas to several counts and agreed to testify against Fernandez in exchange for consideration in sentencing. Salazar also accepted a plea bargain.
On the first day of his testimony, Espinoza testified Fernandez threatened to "get" him that morning before trial, although the deputy who transported Fernandez to court heard no such threat.
Espinoza testified he had met Ryan Whitman, a one-time friend of Stanley's, in Fort Bragg in 2007. In December 2007, Whitman told Espinoza he had been involved with Stanley in the marijuana trade and he believed Stanley owed him "serious money." He therefore asked Espinoza to put together a group who would go to Stanley's house to "recover" what Whitman thought he was owed.
Espinoza recruited Salazar and Fernandez, as well as Anthony Melendez, the defendant in A128913, and a friend of Melendez's known only as "Youngster," to help with the operation. Melendez was Espinoza's uncle by marriage and, along with the other robbers just named, he was a Southern California resident. Whitman and his brother-in-law, Graham Petterson, were also personally involved in the robbery.
Graham's last name was apparently Petterson, but Espinoza did not know that. Whitman and Petterson were not charged in the present case. We have not been informed whether they were separately prosecuted.
The Southern California group met twice with Whitman before carrying out the crime. He advised them to speak only Spanish during the robbery and to use numbers to refer to one another rather than names. Fernandez was "number two," but they forgot to assign numbers to everyone, so the plan did not work. They were told they would not need guns, as Stanley was anti-gun and would not have guns in the house.
The second meeting was at the Pine Beach Inn in Fort Bragg on January 7, 2008, the date of the crime. During the drive up from Southern California, Fernandez showed Espinoza a Taser, and they agreed that was the only weapon they would need. Whitman described the floor plan of the house and told them the money would be hidden under the bed. They initially planned to tie up Stanley and search the house for money and marijuana. Whitman lived locally, and Espinoza and Petterson had local ties, so the three wore masks to avoid being recognized. The men agreed to split whatever they recovered equally.
The robbers drove to Stanley's property in two cars, a green GMC Envoy and a gold Saturn. When they arrived at Stanley's gate, Fernandez, who was a locksmith, handed Espinoza a gun to hold while Fernandez tried and failed to pick the lock on the gate. Fernandez then broke the lock and forced the gate open. Sensing things might "get kind of ugly," Espinoza expressed doubt about going through with the plan. Fernandez called him a "pussy," took back the gun, and led the way to the house.
At about 6:00 p.m., five of the men entered Stanley's home. Also at home were Stanley's wife, Nichole, and their two children, ages six and two. Espinoza and his group were not aware that children would be present. He claimed that he and Whitman searched around the garage and outside the house for money or marijuana while the others went inside.
The men bound Stanley with zip ties, then Melendez—referred to in the transcripts as "gold shirt"—kneeled on him while the others ransacked the house. When their initial search turned up no cash or drugs, the men tried to get Stanley to disclose the location of the money by beating him, using a Taser stun gun on him, pulling down his pants and sticking a fork between his buttocks, poking him behind the ear with the fork, threatening to shoot him in the kneecap with a gun, telling him they had a silencer and "no one's going to hear it," choking him, and hitting him in the head with a metal object. Espinoza, who went into the house briefly, identified Fernandez as the one who pointed the gun at Stanley's kneecap during the assault.
They also tried to get Nichole to tell them where the money was by pulling her hair and threatening her with a Taser while her small children looked on. Fernandez was the one who questioned Nichole about the location of the money. Nichole said she did not know what they were talking about. She took the children into the bedroom and stayed there with them throughout the ordeal, guarded by one of the robbers.
Stanley finally told the intruders the money was hidden outside and agreed to take them to it. Three of the men, Fernandez, Melendez, and Espinoza, began walking him toward the money in his stocking feet in 30-degree temperatures, with sleet on the ground, while the other men stayed behind to guard his wife and children. The three soon decided Stanley was lying about the location of the money and walked him back to his house.
Espinoza denied having been one of the three who kidnapped Stanley. He identified the third kidnapper as Petterson. Stanley, however, identified Espinoza as one of the three men who escorted him to the tree stump.
The three men then took Stanley in his wife's car, driven by Espinoza, to an area where he directed them, parked the car, and walked Stanley over to a tree stump he pointed out as containing the money. They found money hidden in the tree stump in a military ammunition can and a black plastic sewer pipe.
The men then brought Stanley back to the house, threatening to come back if he went to the police. They bound Nichole into a chair, barricaded the children in the bathroom, and hog-tied Stanley. They further looted the house, then took off in Stanley's truck and Nichole's car.
Stanley managed to free himself and his wife, then drove his quad ATV down to his brother-in-law's house on the edge of his property. Lance Mazey, a friend at the brother-in-law's house, had seen two suspicious looking cars parked near Stanley's gate.
Stanley, Mazey, and others from the brother-in-law's house drove in Mazey's truck toward Highway 101. They found the family's two empty vehicles near Stanley's gate with the doors wide open. The robbers had transferred the stolen items from the Stanleys' vehicles into their own two cars before fleeing.
Driving down Highway 101, Stanley and his friends looked for the cars Mazey had seen. They came up behind a green GMC Envoy, which they believed the robbers were driving. They began to pursue the Envoy and simultaneously called 911 to report the robbery.
Sheriff and CHP officers joined in the pursuit of the Envoy, taking the lead and soon pulling it over. Inside the Envoy, Fernandez, who was the driver, told the others they could not get out of the car because they still had the money and the gun. As the officers approached, the Envoy sped off again.
Officers again pursued the vehicle, sometimes at high speeds, this time successfully stopping it with a spike strip and apprehending the three occupants, Fernandez, Espinoza, and Salazar. During the chase Espinoza, at Fernandez's instruction, wiped the fingerprints off the gun and Taser and threw them out of the car along with his ski mask. Salazar and Espinoza began counting the money they had stolen and got up to $117,000 before they started stashing it throughout the car.
Stanley, after the first car stop, went to the sheriff's station and identified Salazar positively and Espinoza tentatively from photographic six-packs. He later identified Fernandez as one of the men who had taken him from the house to the tree stump and Melendez as "gold shirt."
The police recovered from the Envoy and its occupants a total of $37,734, as well as televisions, jewelry, a video game console, a camera, and other electronic equipment that had been taken from the Stanleys' home. They also found the lock pick set that Fernandez had used in attempting to get through the Stanleys' gate. A handgun was found on a freeway exit that the Envoy had taken at one point during the pursuit, and Espinoza identified it as the one he had thrown from the Envoy.
The trio were charged with the following crimes: (1) conspiracy to commit first-degree robbery in concert (§§ 182, subd. (a), 211, 212.5, 213, subd. (a)(1)(A)); (2) robbery in concert of Stanley and Nichole (§§ 211, 212.5, 213, subd. (a)(1)(A)); (3) kidnapping to commit robbery of Stanley (§§ 207, subd. (a), 209, subd. (b)(1)); (4) first-degree burglary (§§ 459, 460, subd. (a)); (5) stun-gun assault on Stanley (§ 244.5); (6) assault with a deadly weapon or by means of force likely to cause great bodily injury (§ 245, subd. (a)(1) (fork assault); (7) firearm assault on Stanley (§ 245, subd. (a)(2)); (8)-(11) four counts of false imprisonment of Stanley, Nichole, and the two children (§§ 236, 237); (12) and (13) child endangerment of each of the two children (§ 273a, subd. (a)), and (14) reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a).) Arming enhancements were alleged with respect to counts two through six and eight through eleven. (§ 12022, subd. (a)(1).) It was further alleged that Fernandez had sustained four prior convictions for which he had served a prison term. (§ 667.5, subd. (b).)
Melendez was apprehended later and was separately prosecuted.
The jury deadlocked on count one (conspiracy), as to which a mistrial was declared, but it convicted Fernandez of all other counts, except it found the false imprisonment counts alleged with respect to the minors to be misdemeanors rather than felonies. The arming enhancements were found true as alleged on counts two through six, eight and nine, and the four prior prison terms were also found true.
On March 26, 2010, Fernandez was sentenced to the upper term of nine years for robbery in concert (count two), plus one year for the arming enhancement. He was sentenced to seven years to life for kidnapping Stanley for robbery (count three), plus one year for the arming enhancement. The four-year sentence for burglary (count four), plus the one-year arming enhancement were stayed under section 654. All of the assault counts, false imprisonment of the adults, child endangerment, and reckless evasion (counts five through nine and twelve through fourteen) were sentenced consecutively. For misdemeanor false imprisonment of the children (counts ten and eleven) defendant was sentenced to one year each, imposed concurrently. The true findings on the prior convictions added four years, for a total determinate term of 22 years, eight months and an indeterminate term of eight years to life, imposed consecutively.
Both parties state in their briefs the determinate term was 26 years, eight months, but the abstract of judgment and the reporter's transcript reflect 22 years, eight months. The latter term is consistent with our calculations.
DISCUSSION
Fernandez claims the sentences imposed on counts five through seven should have been stayed under section 654 because the three assaults and the robbery were part of a single criminal "act" within the meaning of that section. (See Neal v. State of California (1960) 55 Cal.2d 11, 18-19 (Neal).) He further contends the sentences imposed on counts ten and eleven (false imprisonment of the children) should have been stayed because they involved the same conduct as counts twelve and thirteen (child endangerment).
That section provides: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).)
The Attorney General argues the sentencing was proper here because the assaults were separate and gratuitous acts of violence independent of the robbery. He claims the false imprisonment of the children occurred during the entire robbery and the child endangerment occurred when the robbers barricaded the children alone in the bathroom by pushing a reclining chair up against the bathroom door.
Section 654As the Supreme Court has observed, "Few if any crimes . . . are the result of a single physical act." (Neal, supra, 55 Cal.2d at p. 19.) Therefore, the definition of a single "act" under section 654 includes a " 'course of conduct [that] violated more than one statute.' " (Ibid.) Whether such conduct allows for multiple sentencing depends upon the actor's intent: "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Ibid.)
In Neal, supra, 55 Cal.2d at p. 15, for instance, the defendant attempted to murder two people by throwing gasoline into their bedroom and igniting it. Convicted of arson and two counts of attempted murder, he could only be punished for the attempted murders, since the arson was the very means by which he intended to accomplish the murders. (Id. at pp. 20-21.) If, on the other hand, a defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished 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. Beamon (1973) 8 Cal.3d 625, 639.)
In reconsidering Neal more than 30 years later, People v. Latimer (1993) 5 Cal.4th 1203 criticized but nevertheless adhered to the Neal formulation, in large part because of judicial and legislative reliance upon it since its publication. (Id. at pp. 1208-1216.) Latimer also pointed out, however, that the Supreme Court did "not intend to question the validity of decisions finding consecutive, and therefore separate, intents, and those finding different, if simultaneous, intents. . . . Multiple punishment in those cases remains appropriate." (Id. at p. 1216.)
"The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466; see also, People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
The sentencing hearing
At sentencing the court, cognizant of section 654, stayed the sentence on the burglary count because it involved the same conduct as the robbery count.
Defendant's argument heading suggests he also challenges the sentence on the burglary conviction, but that sentence was stayed under section 654.
Defense counsel argued the events all occurred during a one hour period and urged that all subordinate terms should be imposed concurrently. He also argued that Melendez was the worst of the group and Fernandez was mostly involved in "collecting property" from the house and not in "assaulting anybody." He did not argue Fernandez could not be punished for the subordinate convictions but only asked that sentences be imposed concurrently.
The prosecutor said Fernandez had exhibited "lifelong abhorrent behavior." He had seven prior felony convictions and had been discharged from parole only 13 months before the crimes in question. He argued that Fernandez's record alone "justifies the aggravation," and "separate and apart" from that the facts supported consecutive sentencing.
Fernandez had sustained prior felony convictions in 1996 for auto theft and evading a peace officer with injury (Veh. Code, §§ 2800.3, 10851, subd. (a)), in 1999 for grand theft (§ 487, subd. (d)), in 2002 for vehicle theft (Veh. Code, § 10851, subd. (a)), in 2004 for possession of a controlled substance (Health & Saf. Code, §11377, subd. (a)), and in 2005 for burglary and auto theft (§§ 459, 460; Veh. Code, § 10851, subd. (a)). He also had three prior misdemeanor convictions stemming from a hit-and-run accident in 2004.
The prosecutor also pointed out the crime involved prior planning and subsequent flight. The defendants came up from Southern California specifically to commit the crime, and their flight from the police continued until the Envoy's tires were flat and it could go no farther. He noted the robbers also disposed of evidence during their lengthy run from the police.
Under section 654, the prosecutor emphasized that crimes of violence were committed against both Stanley and Nichole. The assaults on Stanley were violent acts, "each . . . committed with a separate intent" formed long after the intent to rob had been formed. Three different weapons were used against Stanley and he was assaulted in "[t]hree different ways, consecutively."
The court sentenced Fernandez to the aggravated term of nine years for robbery in concert (count two) because there was "a great degree of violence and a threat of great bodily harm in the activity." There was also a "high degree of callousness" in that five or six "strangers[,] . . . some of whom were masked, burst into the home and terrorized the occupants over a period of an hour or two hours," including a woman and two children, who were particularly vulnerable. There was also "some degree of planning," including the use of masks and "code names." The robbers also "took items and property of great monetary value."
The court imposed all unstayed felony terms consecutively because, "although they [were] related to the robbery term, they constitute[d] separate acts of . . . violence and there [were] multiple victims involved in many of these . . . various crimes." There was also "a threat of great bodily harm involved in the conduct" and "three of the victims were particularly vulnerable." Fernandez exhibited "significant callousness in his treatment of the . . . victims."
Counts five through seven
The first question is whether the assaults in this case were separate from the robbery so as to allow for separate punishment. The evidence suggests the assaults were not part of the original criminal plan, nor were they incidental to the home invasion robbery. They occurred when the events took an unexpected turn and no money or marijuana was discovered in the house.
An exception to section 654 exists when a single course of conduct involves violence against multiple victims. (People v. Deloza (1998) 18 Cal.4th 585, 592; see generally, People v. Calhoun (2007) 40 Cal.4th 398, 405-408.) Here, the robbery was alleged against both Stanley and Nichole, while the assaults were alleged against Stanley alone. Therefore, the robbers could be sentenced separately for both robbery of Nichole and assault of Stanley, both of which are crimes of violence. (People v. Champion (1995) 9 Cal.4th 879, 935 [robbery]; People v. Hall (2000) 83 Cal.App.4th 1084, 1089-1090 [assault with a deadly weapon].) For this reason alone separate prison terms were permissible, even if the crimes were committed pursuant to a single objective. (People v. Miller (1977) 18 Cal.3d 873, 886 (Miller); see generally, People v. Davey (2005) 133 Cal.App.4th 384, 390-391.)
In re Henry (1966) 65 Cal.2d 330, 331, relied on by Fernandez, is distinguishable. There, the defendants hit a liquor store owner with a gun and then shot him while robbing the store. Although the defendants accosted a sales clerk in the store, pointing a gun at him and demanding money from the cash register, since the information alleged both crimes were committed solely against the store owner, the Supreme Court held the multiple victim exception to section 654 did not apply. (Id. at pp. 332-333.) Rather, it held assault of the store owner and robbery of the store were part of the same indivisible transaction and therefore set aside the sentence on the assault. (Id. at p. 333.) In the present case, as indicated, the information alleged crimes of violence against both Nichole and Stanley, and hence multiple punishment was warranted.
Moreover, the assaults were perpetrated after the robbery had begun and were not necessary to accomplishing the robbers' initial purpose of stealing valuables from the house. The robbers could have simply taken whatever valuables they found in the house and left. Instead they embarked upon a new plan to torture Stanley into telling them where the money could be found. This constituted a new criminal objective in that the goal was, by the application of force, to make Stanley divulge information he did not want to divulge.
The assaults were not only carried out against a man who had been bound and rendered helpless, but they exhibited a degree of callousness that might be considered sadistic. This conduct, divisible from the initial takeover of the house, escalated the level of violence and constituted separately punishable conduct under section 654.
This case is distinguishable from Miller, supra, 18 Cal.3d 873, upon which defendant also relies. In Miller, a defendant and his accomplice entered a jewelry store and announced a holdup. (Id. at p. 878.) Defendant pulled his gun on a security guard, and after a struggle over the gun shot the guard twice. (Ibid.) His accomplice pulled a gun and ordered a salesman to the floor. (Id. at p. 879.) The bandits then made off with $441,000 worth of jewelry. (Ibid.) Convicted of burglary, robbery and assault, the defendant was sentenced concurrently for all three offenses. (Id. at pp. 885-886.)
The Supreme Court modified the judgment, finding that Miller could be sentenced for both burglary of the security guard's premises and robbery of the sales clerk because the crimes, even if part of an indivisible course of conduct with a single objective, involved violence against multiple victims. (Miller, supra, 18 Cal.3d at pp. 885, 888.) He could not be sentenced for both burglary and assault of the security guard, however, because the assault was part of an indivisible course of conduct with the sole objective of stealing jewelry from the store. (Id. at p. 886.)
In the present case, however, the assaults were intended not to force Stanley to part with money on his person or in his house, but to induce him to divulge information. It appears from Espinoza's testimony that the initial intention of the robbers was to enter the home, tie up Stanley, and steal money they believed was hidden under the bed. Once they looked under the bed and otherwise rooted through the house and found no money, their objective changed. They made a new decision to assault and threaten Stanley to get him to disclose the location of the money. The various forms of assault were adopted consecutively in order to locate the cash they wanted to steal, not simply to accomplish their initial purpose. The court was justified in finding this new assaultive behavior constituted separate criminal conduct with a new objective, divisible from the original robbery plan.
The "objective" of a crime may be described broadly (e.g., wrongfully obtaining money) or more precisely (assaulting a helpless man with a fork to force him to talk). The Supreme Court has cautioned against defining a criminal objective too broadly in this context. (People v. Perez (1979) 23 Cal.3d 545, 552.) What started here as a home invasion robbery morphed into a kidnapping for robbery, and the assaults constituted an intermediate step between the two. As such they were separately punishable.
Defendant also cites People v. Medina (1972) 26 Cal.App.3d 809, in which the defendants hit the victim and tied him up in his own home while they stole his wallet and looted the place. (Id. at p. 813.) As they were leaving the shorter man hit the victim over the head with something hard (both men were armed with pistols). (Ibid.) The court found, at least as regarding the taller man, the robbery and assault "constituted a single, indivisible transaction" and held imposing separate sentences for assault and robbery violated section 654. (Id. at p. 824.) There the assault was simply the means by which the robbers accomplished their purpose of stealing from the man and his house. Stanley, too, was knocked to the floor and bound, but that conduct was not separately punished. What was subject to separate punishment was the series of assaults that followed for the evident purpose of getting Stanley to disclose the location of the money.
Defendant also cites People v. Logan (1953) 41 Cal.2d 279, in which a woman was hit over the head with a baseball bat and robbed. (Id. at p. 282.) The court held that multiple punishment was improper because the assault was the means by which the robbery was perpetrated: "the striking of the victim with the baseball bat and the taking of her purse constituted a single, indivisible transaction. The one act of inflicting force with the bat cannot both be punished as assault with a deadly weapon and availed of by the People as the force necessary to constitute the crime of robbery." (Id. at p. 290.) Again, that case is different from ours because the assaults in this case were not the means by which the robbery was committed and were not incidental to the robbery. They occurred later, pursuant to a separate purpose.
The Attorney General attempts to parse the robbers' objectives even more closely. She argues that the initial beating with fists was to make Stanley talk, whereas the assaults with the Taser, fork, and gun were intended to "punish" him for not cooperating. She further points out that Stanley was not actually struck with the metal object (inferably the gun) until he was outside the house. From this she argues the firearm assault occurred after Stanley had already agreed to cooperate with the defendants, and therefore was either an act of gratuitous violence or an act even more distinctly intended to punish Stanley for not cooperating sooner, which constituted a separate and independent objective. From this she argues the firearm assault, at least, had a different objective from the robbery.
The Attorney General likens the case to People v. Nguyen (1988) 204 Cal.App.3d 181, 190, where during a robbery, defendant's accomplice took a market clerk into the back room, made him lie on the floor and then shot him in the back, fortunately not fatally, while he lay helpless and unresisting. (Id. at p. 185.) The court held punishment on both robbery and attempted murder were properly imposed because the violent conduct was not committed in furtherance of the robbery: " 'when the assault is not a means of perpetrating the robbery but is an act that follows after the robbery is completed the defendant is guilty of two punishable acts.' " (Id. at p. 189, quoting Neal, supra, 55 Cal.2d at p. 20.)
The conduct here was too purpose-directed to be regarded as gratuitous violence, as in Nguyen. Fernandez argues the change in purpose proposed by the Attorney General is not supported by the record, and the firearm bludgeoning was simply an additional means of assuring that Stanley would actually lead them to the money. We tend to agree there is no basis for distinguishing the objective that lay behind the various forms of assaultive conduct. Still, we do not think it is possible or necessary to draw such a distinction, because the intent and objective of all the assaults was different from that of the initial home invasion. All the forms of assault were adopted consecutively in order to locate the cash the group wanted to steal, not simply to accomplish their initial purpose of stealing from the house.
Of course, the court imposed not just one assault sentence, but three separate sentences for assault. This decision, too, was supported by substantial evidence. The trial court could properly conclude that each of the individual assaults with various instruments was a separate criminal act within the meaning of section 654, each with a separate criminal intent, even though they all were aimed at getting Stanley to talk. Each time the robbers inflicted some pain or terror on Stanley and failed to get the information they wanted, they chose a new instrumentality and stepped up the violence and threats of violence. These may have been separate acts in pursuit of the same goal, but they were distinct choices to escalate and prolong the violence and they involved divisible criminal acts.
The testimony showed the Taser assault occurred first, the fork assault second, and the firearm assault third. No one testified who wielded the Taser, but Stanley testified it was not Melendez. The Taser, according to Nichole, had been in Salazar's hands moments before. Whoever held the weapon electrocuted Stanley along his torso, waist, hands, and neck six or seven times as he continued to tell them they had the wrong man and the wrong house.
When this infliction of pain failed, the assailants decided to poke Stanley with a fork until he talked. The men pulled down his pants and attempted to insert the fork into his rectum. Thus, they added humiliation to their arsenal. We note they brought the Taser and the handgun with them but presumably found the fork inside the Stanleys' home. Stanley testified it was Melendez who assaulted him with the fork. Melendez's intent in poking Stanley with the fork was separate and divisible from the intent behind the Taser attack.
When the fork attack also failed, they decided to terrorize Stanley with the prospect of death or disabling injury by threatening him with a semi-automatic handgun. Espinoza testified it was Fernandez who pointed the gun at Stanley's knee, impliedly threatening to blow out his kneecap. Someone told Stanley they had a silencer and no one would hear it if they shot him. This combination of tactics produced the results they wanted.
Fernandez, we note, was the one who brought a gun with him even though the bandits had been told they would not need weapons. The stun gun also was his.
Since the gun belonged to Fernandez and he had been wielding it during the knee incident, it may be inferred that Fernandez also struck Stanley in the head with the gun a few moments later, although defendant was convicted of and sentenced for only one firearm assault.
Each escalating form of abuse may reasonably be viewed as a separate criminal act adopted to apply increasing pressure on Stanley to cooperate with the thugs. Indeed, the assailants exercised considerable sadistic ingenuity to inflict increasing pain, humiliation, and terror on the victim. The objective may have been the same in each case (i.e., getting Stanley to talk), but the use of different weapons involved distinctly different conduct within the overall purpose. Each new choice of weapon reflected a distinct criminal intent, especially because a different person appears to have wielded each weapon. With at least two different individuals involved there necessarily were separate criminal intents, evidently formed spontaneously in each of the perpetrators' minds. Each act increased the culpability of the offenders and warranted a separate sentence.
The Attorney General cites People v. Nubla (1999) 74 Cal.App.4th 719. That case involved a man's assault on his wife after she told him she wanted to leave him. He first pushed her face down on the bed, causing her nose to bleed. (Id. at p. 723.) He then placed a gun against the back of her head. (Ibid.) Finally, he rolled her over and pushed the gun into her mouth, chipping a tooth and cutting her lip. (Ibid.) The trial court sentenced defendant on both assault with a deadly weapon and corporal injury to a spouse. (Id. at p. 730.) Defendant argued on appeal that all the assaultive conduct was part of a single indivisible course of conduct with a single objective. The Court of Appeal disagreed because none of the assaults occurred as a means of committing or facilitating any other assault, and none was incidental to the others. (Id. at p. 731.)
Defendant distinguishes Nubla, supra, 74 Cal.App.4th 719 on the basis that it was an assault case with no objective beyond the assault. We find the distinction immaterial. There is substantial evidence to support the trial court's finding that each time the degree of force employed failed to elicit the response they wanted, the bandits devised a new form of persuasion with a new criminal intent. The assaults were performed serially with increasing menace and different weapons by different members of defendant's ensemble. Each constituted a separate act under section 654.
Counts 10 and 11
With respect to counts ten through thirteen, Fernandez claims the same conduct was involved in both the false imprisonment of the children and the child endangerment. We agree with the Attorney General, however, that the robbers' treatment of the children involved divisible conduct with different objectives, although we agree with Fernandez that the question is whether the counts are divisible from each other, not whether they are divisible from the robbery.
Fernandez essentially argues that the children were not falsely imprisoned until they were barricaded in the bathroom. We disagree. The record supports a finding that the false imprisonment began much earlier. The court could reasonably conclude the children were falsely imprisoned from early on, when they were kept in a bedroom with a guard, while the other men tortured Stanley and later took him out to the tree stump. The objective of that imprisonment was to keep the children from interfering with the robbery and to hold them hostage to ensure Stanley's cooperation.
Once the robbers had found the money in the stump and returned to the house, they made a renewed effort to keep the children barricaded in the bathroom. Their evident objective this time was to prevent their escaping and seeking help. The two different objectives justify separate sentences without violating section 654.
Fernandez's role in the crimes
Finally, we take issue with trial counsel's characterization of Fernandez's role as that of a passive gatherer of property during the home invasion. It was Fernandez who supplied both the handgun and the Taser. When Espinoza began to get cold feet, Fernandez pushed forward with the crime, taking a leadership role. Fernandez interrogated Nichole, and he participated in the assaults by pointing the gun at Stanley's knee. Inferably, he was also the one who hit Stanley in the head with the gun, almost knocking him unconscious. Fernandez was one of the kidnappers who escorted Stanley to the tree stump. Finally, Fernandez drove the getaway car, fled from the police, told the others not to surrender, and ordered Espinoza to dispose of evidence. For his very active role in this heinous series of crimes, Fernandez was justly punished.
DISPOSITION
The judgment is affirmed.
Richman, J.
We concur:
Haerle, Acting P.J.
Lambden, J.