Opinion
E033443.
11-18-2003
THE PEOPLE, Plaintiff and Respondent, v. MARTIN AMEZCUA FERNANDEZ, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda L. Cartwright-Ladendorf, Supervising Deputy Attorney General, and Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.
Following a bifurcated trial, a jury found defendant guilty of second degree robbery (Pen. Code, § 211) (count 1); second degree burglary (§ 459) (count 2); battery (& sect; 242) (count 3); and giving false information to a peace officer (§ 148.9, subd. (a)) (count 4). The trial court thereafter found true that defendant had served two prior prison terms (& sect; 667.5, subd. (b)). As a result, defendant was sentenced to a total term of five years in state prison: the middle term of three years on the robbery conviction (count 1), plus an additional year for each of the prior prison term enhancements; the middle term of two years on count 2, to be served concurrently to count 1; 180 days on count 3, which was stayed pursuant to section 654; and 180 days on count 4, to be served concurrent to count 1. Defendants sole contention on appeal is that his sentence on count 2 should have been stayed pursuant to section 654. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On September 10, 2002, Steve Sanchez, a loss prevention agent at Burkes Outlet in Sun City, was working the surveillance camera when he noticed a female, later identified as Kristen Umathum (defendants friend), with a large black bag that appeared to be empty. Umathum went into the mens department and selected five mens shirts. She then took two of the shirts off their hangers, rolled them up, put them in her bag, and placed the hangers back on the racks. Thereafter, she went to the womens department and the lingerie department and selected various articles of merchandise without looking at sizes or prices. She went into the fitting room with approximately 20 items. Sanchez called the sheriffs department and alerted the store manager.
Umathum is also known as Maria Fernandez.
Eventually, Umathum left the fitting room and placed approximately five items back on a rack. She then walked out of the store without paying for the remaining items. Sanchez examined the fitting room and saw hangers and tags, but no clothes. He also checked the store, where Umathum had been, and did not see the clothes she had taken off the racks. At trial, a videotape that depicted the theft was admitted into evidence and played for the jury.
The store manager followed Umathum as she left the store, memorized Umathums car license plate number, came back into the store, and wrote down the license plate number. Sanchez went outside the store and approached Umathums car, which was parked in the parking lot in front of the store. Umathum was unlocking her car door when Sanchez approached her. He told her that he was a loss prevention officer for the store, showed her his badge, and asked her to come back in the store. She did not comply; instead, she continued to unlock her car and opened the car door. As she tried to get into her car, Sanchez grabbed the bag with the stolen merchandise, which was on Umathums shoulder. Sanchez backed off when Umathum reached into her vehicle because he was concerned there could be a weapon in the car.
At that point, defendant appeared and got in between Sanchez and Umathum. Sanchez identified himself as a loss prevention agent and told defendant to get out of the way. Defendant then punched Sanchez in the face with a closed fist, hitting Sanchezs jaw and causing it to be dislocated. Umathum got into her car and quickly drove away, and defendant ran away.
Deputies Joseph Nardone and Michael Borer responded to the scene. When they pulled into the parking lot of the store, defendant was running in the direction of the patrol vehicle, and looking over his shoulder behind him. Sanchez yelled to the deputies that he had just been robbed. After defendant turned and saw the deputies, he looked startled and began running in a different direction.
Deputy Borer jumped out of the car, started chasing defendant on foot, and ordered him to stop and get on the ground. Following a pursuit, defendant was apprehended and taken into custody. Defendant initially identified himself as Arturo Fernandez and gave the deputies a false date of birth. He had a counterfeit green card with the same false name and date of birth on it.
When interviewed, defendant stated that he went to Burkes Outlet with his girlfriend to steal some clothes; that his girlfriend had bought a big bag to put the clothes in; and that they did not have any money to pay for the clothes. He explained that he remained outside to act as a lookout while his girlfriend went into the store to steal clothes and that he punched Sanchez so his girlfriend could get away.
Defendant testified on his own behalf. He stated that he went with Umathum, who was not his girlfriend, to Burkes Outlet in her car. When they got there, he stayed outside while he called his mother on the pay phone. When Umathum came out of the store, he saw Sanchez pulling on her purse and touching her ribs. He told Sanchez to let her go. When Sanchez failed to do so, he hit Sanchez with his hand. He explained that he ran because he was scared. He testified that he did not go to the store intending to steal anything and that he did not know Umathum had stolen merchandise in the store. Defendant stated that although he was read his constitutional rights, he did not make a statement. He further asserted that he had his brothers green card with him and admitted he gave the deputies his brothers name and a false date of birth.
II
DISCUSSION
Defendant contends the trial court violated section 654 by not staying his sentence on count 2 (the burglary conviction), because that count was based upon an indivisible course of conduct with the same single criminal objective as count 1 (the robbery conviction). We disagree.
Section 654, subdivision (a) 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." Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135; People v. Harrison (1989) 48 Cal.3d 321, 335; and People v. Perez (1979) 23 Cal.3d 545, 551.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. 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. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) 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. Centers, supra, 73 Cal.App.4th at p. 98; In re Adams (1975) 14 Cal.3d 629, 634.)
The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. Each case must be determined on its own facts. (People v. Perez, supra, 23 Cal.3d 545, 551; People v. Beamon (1973) 8 Cal.3d 625, 630-639.) The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to support them. (People v. Coleman (1989) 48 Cal.3d 112, 162; see also People v. Herrera (1999) 70 Cal.App.4th 1456, 1466; People v. Green (1996) 50 Cal.App.4th 1076; People v. Saffle (1992) 4 Cal.App.4th 434, 438.) Where the trial court does not make an express finding, an implied finding that the crimes were divisible inheres in the judgment and must be upheld if supported by the evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
Defendant here contends that the sentence for the burglary must be stayed under section 654 because his intent and objective in aiding and abetting Umathum in committing it were not different from the robbery. Additionally, he claims the burglary was still going on when the robbery was committed. In support, he cites People v. Guzman (1996) 45 Cal.App.4th 1023. In that case, the victim of a burglary gave chase to the perpetrators after he saw them steal his motorcycle from his garage and was physically beaten when he tried to get his property back. (Id . at p. 1028.) Our colleagues in the Second District reversed the trial courts imposition of separate punishment for burglary and robbery, reasoning that (1) the robbery of the victim occurred while the burglary was still in progress, and (2) the burglary was not a crime of violence. (Ibid.)
We find Guzman distinguishable from the instant case. First, the burglary involved in Guzman was residential as opposed to commercial. Second, the burglary and robbery convictions here involved separate victims, whereas the victim in the burglary and the robbery in Guzman was the same. The victim of the burglary here was Burkes Outlet, and the victim of the robbery was Sanchez. Even though the multiple victim exception does not apply here to impose separate punishments (see, e.g., People v. Bauer (1969) 1 Cal.3d 368, 377; People v. Garcia (1995) 32 Cal.App.4th 1756, 1784; People v. Centers, supra, 73 Cal.App.4th 84, 99), Guzman is still, nonetheless, distinguishable from the instant case on this point.
Moreover, defendant here committed an assault to effectuate an escape or as an afterthought. For example, in People v. Vidaurri (1980) 103 Cal.App.3d 450, the defendant, after stealing merchandise from a Sears store, encountered Sears security guards in the parking lot and assaulted them. The defendant argued that "the assaults were committed in an effort to effect a successful escape from the burglary" and that hence, "the various crimes all constitute[d] part of one continuous, indivisible transaction, which may not be separately punished." (Id. at pp. 463-464.) The court held: "It would be arbitrary to reach a conclusion either that escape is always a part of a continuous transaction which includes the principal offense, or that an escape is never a part of one continuous transaction which includes the principal offense." (Id . at p. 464.) Instead, the court concluded, "the burglary and subsequent assaults were not part of one continuous, indivisible course of conduct. On the contrary, the assaults were committed in response to the unforeseen circumstance — the approach of the Sears security guards." (Id. at pp. 465-466.)
The same is true here. The evidence supports the finding that the assault against Sanchez was not part of a series of events connected to the burglary. There was no intent to commit a robbery, or to use force or fear in committing the burglary. Defendant, while aiding and abetting the burglary by acting as a lookout, engaged in a new and different criminal enterprise when he saw Sanchez tugging on Umathums purse. Defendant thereafter intervened and punched Sanchez in the face. Defendants actions were directed not toward facilitating the burglary, but undertaken to discourage Sanchez from stopping Umathum from getting away and taking the purse. We find section 654 did not preclude imposition of separate sentences for the burglary and the robbery.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P.J.
McKINSTER J.