Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF107672A
ROBIE, J.
Based on defendant Carl Erwin Hill and one to two accomplices engaging in a spree of robberies of businesses in Stockton, a jury found defendant guilty of seven counts of second degree robbery (counts 1-3, 9, 11, 13, 16), three counts of false imprisonment by violence (counts 10, 12, 14), and one count of kidnapping for the purpose of robbery (count 15). As to robberies in counts 9 and 11, the jury found defendant personally used a firearm and as to robberies in counts 1-3, 13 and 16, the jury found he was armed with a firearm. The jury acquitted defendant of three counts of second degree robbery, two counts of false imprisonment, and one count of felony assault.
For the robbery and false imprisonment charges, the court sentenced defendant to a determinate term of 28 years; for the kidnapping for the purpose of robbery charge, the court sentenced him to life with possibility of parole plus one year for the armed enhancement.
We note that the abstract of judgment states that defendant was sentenced for kidnapping to 15 years to life, whereas the sentence the court imposed was a term of life with possibility of parole. We shall direct the trial court to amend the abstract of judgment accordingly.
On appeal, defendant contends: (1) aside from the robbery in count 13, the evidence is insufficient to support any of the firearm enhancements; and (2) the trial court should have stayed, pursuant to Penal Code section 654, the consecutive term imposed for the false imprisonment charge in count 14. We reject defendant’s first contention, but agree with him on the second one. Accordingly, we shall order the sentence on count 14 stayed.
FACTS
Even though defendant and his accomplice(s) were masked during the robberies of which he was convicted, he does not challenge the sufficiency of the evidence supporting the finding he was a perpetrator in those robberies. Because defendant’s contentions relate only to the sufficiency of the evidence to prove the firearms were not real and to his punishment for false imprisonment, we set out the facts only as necessary for resolution of those contentions.
A
Count 1 (Sprint Store)
On November 30, 2006, about 4:00 p.m., defendant and an accomplice, each carrying a handgun, entered a Sprint store. One man pointed a silver gun at assistant manager Robert Dickerson and demanded and received money. After ordering the employees to get on the ground, the robbers fled. Employees Terry Beth and Alberto Medina described the guns used as one silver, one black. Medina testified the robber holding the silver gun cocked it during the robbery.
B
Counts 2, 3 and 14 (Sleep Train Store)
A few stores down from the Sprint store is a Sleep Train store. About 4:00 p.m. on November 30, 2006, defendant and two others, two of whom carried guns, entered the store, pointed the guns at Michelle Hooper and demanded money. Hooper led the men to a room in the store and gave them money from a locked cabinet. One of the men continued to watch her while the other two ransacked the store. Sean Beahm, the assistant manager, entered the store and was ordered at gunpoint to get on the ground and to give up his wallet, which he did. Beahm was then taken to the room where Hooper was being held, the two were ordered not to move or leave, the door was closed, and the men left. Hooper and Beahm described the guns as one silver, one black.
C
Counts 15-16 (Bank of the West)
On December 7, 2006, Paramjit Kaur, an unarmed security guard for Bank of the West, was standing outside the entrance to the bank when defendant and another man got out of a car, put a gun in her back and forced her into the bank. Each man had a handgun which he used to obtain money from some of the tellers. The guns were described as silver, black, or partially black and silver. Tellers Vanessa Velasco and Lupita Nicole described the gun held on Velasco as a black handgun; however, each woman later testified that the black gun looked like the photograph of a black and silver BB gun which had been recovered by the police from the residence of a coperpetrator’s girlfriend.
D
Counts 9-12 (Subway Shop)
On January 8, 2007, at approximately 9:30 a.m., defendant and an accomplice, each carrying a handgun, entered a Subway shop and obtained money from Lady Seemuong and Thyseth Siv. The two women were taken to a room, told to count to 100, a ladder was placed in front of the door and the robbers left. The guns used were described as one silver, one black.
E
Count 13 (TJ Cigarettes Store)
On January 23, 2007, about 4:00 p.m., defendant and an accomplice, each masked and the accomplice carrying a silver, white, or gray handgun, robbed Lynda Pham Lee of money at a TJ Cigarettes Store. Pham Lee’s daughter, Jacqueline Lee, came out of a bathroom and struggled with defendant. As both men were leaving the store, the accomplice fired a shot which ricocheted and a portion of the bullet struck Jaqueline Lee’s leg. The expended bullet was found in the shop. Also left behind were a hat and a headband which were recovered by the police.
DNA found on the hat and the headband left by the robbers at TJ Cigarettes led the police to defendant and Devonya Carson. Carson’s residence was searched and a loaded black and silver.32-caliber revolver was found. A plastic BB pistol and.32-caliber ammunition were found in a search of Carson’s girlfriend’s residence. No guns were found at defendant’s residence.
DISCUSSION
I
Sufficiency Of Evidence Of Firearm Enhancements
Defendant contends that, aside from count 13 in which a gunshot was fired during the robbery at TJ Cigarettes, the evidence is insufficient to support any of the firearm enhancements. He argues that because “the witnesses described seeing weapons that were black or silver handguns, some said they had no cylinder (i.e., semi-automatic), others said they were revolvers. But since no weapon was ever fired, these descriptions did not distinguish the weapons as firearms as opposed to replicas.” Additionally, defendant claims the prosecutor misled the jury when he repeatedly argued that the guns were shown to be real because they could be cocked by pulling back the slide, which is not necessarily true, and because a shot was fired in one robbery. The arguments are not persuasive.
The legal principles governing defendant’s challenge are well established. “‘Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. [Citation.] We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.’” (People v. Wilson (2008) 44 Cal.4th 758, 806.) As used in the charged enhancements, “‘firearm’ means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” (Pen. Code, § 12001, subd. (b).) BB guns and pellet guns are not firearms for purposes of sentence enhancements. (People v. Dixon (2007) 153 Cal.App.4th 985, 1001.)
“Circumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm. [Citations.]” (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1436.) A “‘defendant’s own words and conduct in the course of an offense may support a rational fact finder’s determination that he used a [firearm.]’” (Id. at pp. 1436-1437.)
Monjaras, a case from this court, is illustrative of the application of the above principles. During a late night robbery in a lighted parking lot, Monjaras told a woman, “‘Bitch, give me your purse, ’” pulled up his shirt and displayed the handle of what appeared to be a black pistol tucked in his waistband. (People v. Monjaras, supra, 164 Cal.App.4th at pp. 1434, 1436.) When questioned by defendant’s counsel, the woman conceded that she could not say for certain whether the gun was a toy or real. (Id. at p. 1436.)
On appeal, Monjaras challenged the sufficiency of the evidence to support a firearm use enhancement under Penal Code section 12022.53, subdivision (b). He argued the evidence was insufficient because the victim lacked certainty that the gun was real, that he had not engaged in any conduct indicating he intended to fire the weapon, and that no other evidence was presented to the jury which would support an inference that the gun was real. (People v. Monjaras, supra, 164 Cal.App.4th at pp. 1435-1438.)
We rejected the argument, pointing out: “Common sense and common experience illustrate that little has changed since 1927, when a court astutely observed that criminals ‘do not usually arm themselves with unloaded guns when they go out to commit robberies’ (People v. Hall (1927) 87 Cal.App. 634, 635-636...). If anything, with the proliferation of handguns in America since 1927, robbery has become a more dangerous crime today because of the greater likelihood that victims will protect themselves by using deadly force against the robber. Consequently, it is all the more unlikely today that robbers use toy guns or unloaded or inoperable weapons.” (People v. Monjaras, supra, 164 Cal.App.4th at p. 1437.)
Here, defendant was found to have been armed with a firearm in the robberies in counts 1-3 and 16 and the kidnapping in count 15. He was found to have personally used a firearm in the robberies in counts 9 and 11.
Here, except for the robbery at the Bank of the West where the prosecution conceded the weapon used by defendant was a BB gun and the robbery at TJ Cigarettes where a shot was fired, at each of the other robbery locations the witnesses essentially described the weapons used by defendant and his accomplice(s) as a black gun and a silver gun. Defendant’s and his accomplice’s words and conduct bolstered the conclusion that the guns were real by pointing them at their victims and demanding money. It cannot be put more simply nor stressed enough, when a robber displays to a victim a gun that appears to be a real firearm and demands money and/or other items from the victim, this is tantamount to the robber telling the victim to do as you are told or you will be shot. In other words, the robber is stating that the gun is real. Like the victim, the jury may reasonably infer that the gun is real. Consequently, from defendant’s and his accomplice’s words and conduct, a reasonable inference may be drawn that the weapons were real firearms.
In discussing the sufficiency of the evidence, defendant also argues the prosecutor misled the jury by repeatedly arguing that the use of a slide mechanism to cock one of the weapons proved it was real. This is so, defendant continues, because there was no evidence presented to support the conclusion that only real firearms can be cocked by a slide mechanism, and in fact a replica firearm can also be cocked in the same manner. With respect to the bank robbery, defendant claims the prosecutor’s argument that because “one of the guns was proven to be only a BB gun, the other weapon had to have been a real firearm” was sheer speculation.
Finally, defendant argues the evidence is insufficient to support the finding that he “used a real gun” in the robbery of Lady Seemuong at the Subway shop. Seemuong testified defendant had a black gun. She gave defendant money from the cash register “[b]ecause he told me to. He had a gun. I had to do what they told me to. I don’t want to risk my life so I’m going to give him whatever he wanted.”
Defendant claims Seemuong’s testimony is insufficient as a matter of law because of the prosecutor’s argument regarding the sliding mechanism on a gun proved its reality, and it cannot be ruled out that the black gun was the BB gun used in the Bank of the West robbery.
The bottom line is that these arguments on appeal in no way change the fact that the principles of Monjaras apply here.
Although not presented under a separate heading, any argument that this constitutes prosecutorial misconduct is forfeited since there was no objection in the trial court. (People v. Valdez (2004) 32 Cal.4th 73, 132.)
II
Application Of Penal Code Section 654
Defendant contends the trial court erred when it failed to stay, pursuant to Penal Code section 654, the sentence imposed for the false imprisonment of Michelle Hooper. We agree.
Although defendant did not object to the sentence he now challenges, the issue is not forfeited for appellate review. “Errors in the applicability of Penal Code section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.” (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.)
Hooper testified that the three men, two of whom carried handguns, entered the Sleep Train store and demanded money from her. She told them the money was in a separate room. They took her to that room and she gave them the money. While one man remained to watch her, the other two looked throughout the store for more money. As they were ransacking the store, Beahm, the assistant manager, walked in and was robbed of his wallet. Beahm was then taken to the room where Hooper was being held and she and Beahm were told not to move and the door was shut. Hooper heard one of the men start counting from 10 backward and when he reached zero the men left.
For the robbery of Hooper, the court imposed an consecutive term of one year; for the false imprisonment, the court imposed a consecutive term of eight months. In imposing the latter sentence, the court stated, “I find it not a [Penal Code section] 654 issue because it is a separate course of conduct from robbery.” Contrary to the court’s position, such sentencing is a Penal Code section 654 issue.
Penal Code section 654 provides in part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides 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 were incident to one objective, the defendant may be punished [pursuant to Penal Code section 654] for any one of such offenses but not for more than one.’ (People v. Perez (1979) 23 Cal.3d 545, 551....) If, on the other hand, ‘the [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....)” (People v. Nguyen (1988) 204 Cal.App.4th 181, 189-190.)
Here, it is clear that defendant and his two companions had a single objective -- to rob whoever they found in the Sleep Train store. There simply is no evidence of any other motive. After demanding money from Hooper and being told by her that it was in another room, they took her to that room where they obtained the money from her. They forced her to remain in the room while they continued to look for loot. Hooper was never moved again, nor was she placed in any greater danger than when initially contacted by the robbers. Consequently, her movement was incidental to the commission of the robbery.
The People argue that this case is analogous to People v. Foster (1988) 201 Cal.App.3d 20. We disagree. In Foster, the defendant and an accomplice entered a mini-mart and robbed Sandra Grayson, the clerk, of money. (Id. at pp. 23, 27.) “After Grayson had turned over all the money, ” the robbers forced her and two other victims into the store cooler and blocked their exit by pushing a hand cart against the door. After the robbers left, the victims were able to escape. (Id. at p. 27.)
The defendant was convicted of the robbery of Grayson (count III) and the false imprisonment of Grayson and the other two persons (count IV-VI). (People v. Foster, supra, 201 Cal.App.3d at p. 27.) On appeal, the defendant contended that the false imprisonments violated Penal Code section 654 because they were “merely incidental to the robbery.” (Ibid.) The court found no merit to the contention: “The imprisonment of the victims occurred after the robbers had obtained all of the money, and therefore was not necessary or incidental to committing the robbery. Locking the victims in the store cooler was potentially dangerous to their safety and health. It is analogous to a needless or vicious assault committed after a robbery, which has long been held separately punishable and distinguishable from an assault which is merely incidental to the robbery.” (People v. Foster, supra, 201 Cal.App.3d at pp. 27-28.)
The defendant was also convicted of other counts stemming from other robberies. (People v. Foster, supra, 201 Cal.App.3d at p. 23.)
Foster emphasized that its finding was based on the robbers having obtained “all of the money” prior to putting the three victims in the cooler, a location potentially dangerous to their health and safety. That is not the circumstance here. Hooper was not robbed until after she was taken to the room where the store’s money was located and she had given it to the robbers. One of the robbers forced her to stay in the room while the other robbers continued to look for loot. Since the robbers were still in the process of seeking more loot, their purpose had not ended. Without more, simply closing the door to the room in which Hooper was being confined cannot reasonably be considered as having increased any danger to her. Consequently, Hooper’s false imprisonment was incidental to the robbery, and therefore the sentence on that count must be stayed.
Because defendant has been convicted of a serious felony, to wit, robbery (Pen. Code, § 1192.7, subd. (c)(19)), he is not entitled to the additional presentence custody credits provided by the new amendments to Penal Code section 4019. (Pen. Code, § 4019, subds. (b), (c).)
DISPOSITION
The matter is remanded to the superior court with directions to stay, pursuant to Penal Code section 654, the sentence imposed for false imprisonment on count 14, and to correct the abstract of judgment to reflect that the enhancement to count 15 for use of a firearm pursuant to Penal Code section 12022.53, subdivision (b) was in fact an enhancement for being armed with a firearm pursuant to Penal Code section 12022, subdivision (a)(1). The court is further directed to forward a copy of the amended abstract of judgment reflecting these changes to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HULL, Acting P. J. BUTZ, J.