Opinion
2d Crim. No. B228185
12-27-2011
THE PEOPLE, Plaintiff and Respondent, v. LISA LYNN GONZALES, Defendant and Appellant.
Barbara O'Neill Ferris, under appointment by the Court of Appeal, for Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2008050181)
(Ventura County)
Lisa Lynn Gonzales appeals her conviction, by jury, of first degree residential burglary (Pen. Code, § 459), two counts of first degree residential robbery (§ 211), assault with a deadly weapon (§ 245, subd. (a)(1)), two counts of false imprisonment (§ 237, subd. (a)), and two counts of dissuading a witness. (§ 136.1, subd. (c)(1).) The jury further found that, in committing the burglary, appellant personally used a knife, a deadly and dangerous weapon. (§ 12022, subd. (b)(1).) Appellant was sentenced by the trial court to a total term in state prison of 14 years. She contends the sentence violated the prohibition against multiple punishment imposed by section 654 in three respects: First, the burglary and robberies were part of an indivisible course of conduct. Second, the enhancement for weapon use and the assault with a deadly weapon were based on her use of the same knife. Third, the false imprisonment and dissuasion of witness convictions were part of an indivisible course of conduct. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
In September 2008, Alicia Caballero-Robles rented a house on D Street in Oxnard. She sub-let rooms in the house to tenants, so that a total of 12 people were living there. Cynthia Epley and Douglas Cockrell slept in the laundry room which had two doors: one connected it to the kitchen; the other opened to the backyard.
On the morning of September 4, appellant and her companion, Max Castro, came to the house and asked Caballero-Robles to buy some wine from them. She declined, saying she did not have any money. Appellant returned later that afternoon, asking Caballero-Robles for $20 and to use the phone. Caballero-Robles allowed appellant to use the phone but did not give her any money. Appellant left. At about 6:30 p.m., appellant appeared in the back yard of the house. She told Caballero-Robles that she was tired and needed a place to rest. Caballero-Robles told her to leave. Appellant grabbed her by the hair and the two women fought briefly. Appellant eventually left.
At about 2:00 a.m. on September 5, Cynthia Epley woke from her sleep in the laundry room to find Douglas Cockrell arguing with Castro. Castro was asking Cockrell for money; Cockrell was denying that he had any. Epley told Cockrell to just give Castro their last $30, so he would go away. Cockrell got a backpack from the foot of the bed; Castro took it from him and began rifling through it to find their money. Just then, appellant came into the room. She was carrying a small axe, a knife with a large blade and another metal object similar to a putty knife. Epley grabbed her cell phone. One of the assailants took it from her.
Appellant stabbed Cockrell with the larger knife, saying that she was giving him "something to remember me by." She ordered Epley and Cockrell to go outside to the back yard, where she stabbed Cockrell a second time, in the shoulder. Appellant told Epley and Cockrell they'd "better not call the police" because, "you know what I'm capable of." Appellant and Castro tried to leave the fenced-in back yard by the gate, but it was locked. They tried to cut the lock off with the axe but could not, so they escaped over the fence.
Cockrell was bleeding profusely. He went in to the house to wake up Caballero-Robles. Someone called for help and an ambulance and the police responded. Cockrell recovered from his wounds.
The jury convicted appellant of burglary, two counts of robbery, assault with a deadly weapon, two counts of false imprisonment and two counts of dissuading a witness. It further found that she personally used a deadly weapon in committing the burglary. Appellant was sentenced to a total term in state prison of 14 years. The trial court calculated that sentence as follows: six years for the burglary plus one year for the personal weapon-use enhancement, 16 months for each robbery, one year for the assault, eight months for each false imprisonment and one year for each dissuading a witness conviction. All of the terms run consecutively; none was ordered stayed pursuant to section 654.
Discussion
Appellant contends that various aspects of her sentence violate section 654 and its prohibition on multiple punishments for a single criminal act or course of conduct. In People v. Galvez (2011) 195 Cal.App.4th 1253, we summarized the controlling legal principles: " 'Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]' (People v. Hester (2000) 22 Cal.4th 290, 294.) ' "Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor." ' (People v. Latimer (1993) 5 Cal.4th 1203, 1208 . . . .) '[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored "multiple criminal objectives," which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." [Citation.]' (People v. Harrison (1989) 48 Cal.3d 321, 335.) [¶] ' "The question whether . . . section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them." [Citation.] . . . ' "We must "view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" [Citation.]' [ Citation.]" [Citation.]' (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)" (People v. Galvez (2011) 195 Cal.App.4th 1253, 1262-1263.)
Appellant first contends that her consecutive sentences for burglary and the two robberies violate section 654 because there is no substantial evidence that she entered the house for any purpose other than to commit robbery. We are not persuaded. There was substantial evidence that, on September 4, appellant tried unsuccessfully to get money from Caballero-Robles and then fought with her. Given the hostility demonstrated between the two women earlier in the day, a reasonable jury could infer that appellant entered the house that night with the intent to again assault Caballero-Robles. This is a separate intent or objective from the intent to rob Epley and Cockrell. Because substantial evidence supports a finding that appellant had at least two distinct criminal objectives, section 654 does not prohibit separate punishment for the burglary and robberies. (People v. Galvez, supra, 195 Cal.App.4th at pp. 1263-1264.)
Appellant next contends the trial court violated section 654 when it imposed separate terms for her conviction of assault with a deadly weapon and the one-year enhancement to her sentence for burglary based on her personal use of that weapon. Relying on People v. Wynn (2010) 184 Cal.App.4th 1210, appellant contends the enhancement term should have been stayed because it was it based on the same indivisible course of conduct as the assault with a deadly weapon count. There was no error.
In People v. Wynn the defendant shoplifted a carton of cigarettes from a Walmart store. When confronted in the parking lot by a security guard, the defendant dropped the cigarettes, pulled a nunchaku from his pocket and used it to assault that guard and others who arrived to subdue him. The court held that section 654 did not bar separate sentences for burglary and assault because the two crimes had separate objectives. "[S]ubstantial evidence supports a finding that Wynn's objective during the burglary was to obtain the cigarettes, but his objective during the assault was to avoid being arrested for the theft." (Id. at p. 1216.) Section 654 did, however, bar imposition of separate terms for the assault and an enhancement for personal use of a deadly weapon. "[T]he trial court was required to stay the one-year sentence for the section 12022, subdivision (b)(1) enhancement, as the conduct that gave rise to the enhancement was the identical conduct that gave rise to the assault convictions . . . . The weapons enhancement was based on the same indivisible course of conduct as the assault with a deadly weapon counts, and thus, section 654 dictates that the sentence on the enhancement should be stayed." (Id. at p. 1221.)
Here, by contrast, substantial evidence demonstrated that appellant took the knife from the victims' kitchen and then displayed it while her partner robbed them. She stabbed Cockrell for the first time only after her partner had obtained the money and the cell phone. She then used the knife to force Epley and Cockrell into the back yard where she stabbed Cockrell for the second time and threatened both victims before leaving. While the defendant in People v. Wynn, supra, displayed his weapon immediately before using it to assault the security guards, appellant here displayed the weapons to assist in the robbery and only later used it to stab Cockrell. These separate objectives -- robbery and assault -- justify separate punishments.
Appellant's final contention is that section 654 barred separate sentences for false imprisonment and dissuading witnesses. She contends both offenses were committed to discourage Epley and Cockrell from summoning their housemates or the authorities for help.
In People v. Galvez, McChesney saw the appellant and others others beating another man. McChesney, an off-duty deputy sheriff, used his cell phone to call law enforcement. One of the assailants saw McChesney make the call and asked if he was calling the police. When McCheseny said he was, the group began to assault him as well. As the beating began, McChesney dropped his cell phone. Another off-duty police officer displayed his badge and yelled at the assailants. They fled, taking McChesney's cell phone with them. On these facts, we held that section 654 barred multiple sentences for robbery and witness dissuasion because appellant and his companions robbed McChesney of his cell phone to prevent him from reporting the first assault. (People v. Galvez, supra, 195 Cal.App.4th at p. 1263.) We reached a different result with respect to the assault on McChesney. The evidence showed that he dropped his phone before the assault on him began. Thus, it was reasonable to infer that the objective in assaulting McChesney "was to enhance the gang's reputation for violence, not to dissuade or prevent him from using his cell phone to call the police. These distinct acts of violence were not incidental to the attempted witness dissuasion. They were gratuitous, extra, and may be separately punished without offending section 654." (Id.)
Here, appellant and Castro robbed Epley of her cell phone before ordering Epley and Cockrell to go into the back yard. After the victims were outside, appellant stabbed Cockrell the second time and warned them both not to call the police. It is reasonable to infer that appellant and Castro took the phone and forced the victims into the back yard to prevent them from alerting their housemates before appellant and Castro could escape. The second stabbing and the threat about calling police were gratuitous, or extra, inflicted to intimidate the victims and prevent them from reporting the crime to police after appellant and Castro left the yard. There were two separate objectives: to prevent the victims from summoning their housemates before appellant and Castro could leave and to prevent the victims from reporting the crime to the police. Section 654 did not prohibit separate sentences for these offenses.
Conclusion
The judgment is affirmed.
YEGAN, Acting P.J.
We concur:
COFFEE, J.
PERREN, J.
Patricia M. Murphy, Judge
Superior Court County of Ventura
Barbara O'Neill Ferris, under appointment by the Court of Appeal, for Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.