Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 08CF2562, Maria Hernandez, Judge.
Koryn & Koryn and Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Angela Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Carlos Alberto Martinez of all 11 counts alleged against him pertaining to a home invasion robbery with three individual victims: (1) first degree robbery (Pen. Code, § 211); (2) first degree robbery (§ 211); (3) attempted first degree robbery (§§ 211, 664); (4) false imprisonment (§ 236); (5) false imprisonment (§ 236); (6) false imprisonment of an elderly person at least 65 years of age (§§ 236, 237, subd. (b)); (7) first degree burglary (§ 459); (8) aggravated assault (§ 245, subd. (a)(1)); (9) assault with a firearm (§ 245, subd. (a)(2)); (10) elder abuse of a victim at least 70 years of age (§ 368, subd. (b)(1)); and (11) street terrorism (§ 186.22, subd. (a)).
All statutory references are to the Penal Code.
The jury found true an allegation pursuant to section 12022.53, subdivision (b) that defendant personally used a firearm during the commission of counts 1, 2, and 3 (robbery and attempted robbery). The jury also found true an allegation pursuant to section 12022.7, subdivision (a) that defendant personally inflicted great bodily injury during the commission of count 10 (elder abuse). Finally, the jury found true allegations pursuant to section 186.22, subdivision (b) that counts 1, 2, 3, and 7 (the robbery, attempted robbery, and burglary counts) were gang related. With regard to counts 4, 5, 6, 8, and 9 (the false imprisonment and assault counts), the jury failed to mark either true or not true with regard to section 186.22, subdivision (b) allegations, and such allegations were therefore deemed not true.
The court, after finding true in a bifurcated proceeding that defendant had suffered a prior serious and violent felony conviction, sentenced defendant to 117 years to life in state prison. The court stayed execution of sentence pursuant to section 654 with regard to count 7 (burglary) and count 11 (street terrorism).
Defendant contends on appeal: (1) there is insufficient evidence in the record to support the jury’s findings that counts 1, 2, and 3 (the robbery and attempted robbery counts) were subject to section 186.22, subdivision (b) enhancements; and (2) the court should have stayed execution of sentence pursuant to section 654 with regard to counts 4 through 6 (the false imprisonment counts) and 8 through 10 (the assault and elder abuse counts). We agree with regard to staying execution of sentence on counts 4, 5, 6, and 9, but otherwise affirm the judgment.
Defendant does not mention count 7 in his appellate briefs.
FACTS
The Incident
The events at issue occurred at approximately 5:30 a.m. on December 18, 2007, inside a Santa Ana, California apartment. Three females - 78-year-old Felicitas Anguiano, Anguiano’s daughter, and Anguiano’s granddaughter - prepared breakfast and got ready for their respective days.
Suddenly, two men entered the apartment. The men wore ski masks and one held a gun. The men screamed at the women, explaining they only wanted money and would not harm them. Anguiano called for help; the man holding the gun hit her four times on the head with the gun and told her to shut up. Anguiano fell down and bled from her head. The men tied up both Anguiano and her daughter, who were in the kitchen when the men entered the apartment. The man with the gun slapped daughter in the face and kicked her in the chest during the struggle to tie her up.
The men repeatedly demanded money from Anguiano and her daughter, and searched the apartment while the two victims were tied up. Daughter told the men to take the money from her purse (approximately $40 or $50). Daughter noticed a tattoo in “old kind of letters” on the neck of the man with the gun.
Anguiano’s granddaughter was in the shower when she heard screaming. A man in a ski mask opened the shower curtain and handed granddaughter a towel. Granddaughter gave the man all of the jewelry and money (about $30) she could find. Granddaughter did not see a gun. Granddaughter was not tied up or touched. The ordeal lasted approximately 15 to 30 minutes.
The Investigation
A police forensic specialist took swab samples from various locations in the apartment, including the door handles. Assuming there was one major contributor and two minor contributors to DNA found on an interior door handle in the apartment, the DNA of one of the minor contributors was consistent with the DNA profile of defendant. Moreover, a sample from the exterior door handle, if assumed to include one major female contributor and one minor male contributor, did not exclude defendant as the minor contributor. The profile established for the minor contributor to the exterior door handle was “a very rare profile, and it calculated to be approximately one in one trillion.”
Based on the forensics results linking defendant to the incident, a police detective contacted and interrogated defendant in July 2008. An audio tape of the interview was played for the jury. In the interview, defendant admitted he participated in the home invasion robbery. He admitted he “pistol whipped” one of the victims. Defendant’s tattoo on the left side of his neck was consistent with the description of the tattoo provided by one of the victims. Defendant refused to identify his accomplice.
The officers asked, “What was this supposed to be?” Defendant responded, “For me, a come up. You know what I’m saying? I’m trying to come up.” Defendant agreed he had “Put in time.” The officer followed up by asking, “Put in time, put in work. So it wasn’t about the cash.” Defendant replied, “It was about that, probably a little of both.” Defendant admitted he was a member of Santa Nita gang. When asked why he, someone in his twenties, would still be “putting in work, ” defendant replied: “I want to be somebody.” One of the police interrogators responded, “Oh, you want to climb a little.” Defendant agreed, “Yeah, I want to climb. I don’t just want to be in there.”
In a prior police interview (in March 2008) conducted by officers unaware of the December 2007 incident, officers asked defendant about his affiliation with the Santa Nita street gang. Defendant admitted he was a member of Santa Nita and had been so since age 14. Defendant described the importance of guns to gangs and admitted he had purchased guns for Santa Nita. Defendant admitted he had used guns to commit robberies for the gang, and had used stolen property to pay for membership in the gang, to purchase additional guns, and to pay for personal expenses.
Gang Expert Testimony
Officer Jeff Launi, possessing 20 years of experience as a gang investigator, testified as a gang expert. Launi testified about the history and criminal activities of Santa Nita. He also testified about police records and other evidence (such as tattoos and defendant’s statements at his interrogation) establishing defendant’s longstanding affiliation with Santa Nita.
Launi testified the phrase “put in work” refers to “doing things for the gang, conducting gang business or doing things that benefit the gang in some way.” Launi commented on defendant’s stated reasons for committing the crimes at issue: “And those statements were to the effect of he committed these crimes to elevate himself further in the gang or bring himself up further in the gang; in other words, to elevate his status... and reputation in the gang, to further bring himself up within his own gang structure.” Launi found defendant’s comments about wanting to “be somebody” and putting “in work” to be consistent with an individual committing crimes for the benefit of a gang. Based on defendant’s comments during his police interrogations and all of the other evidence Launi considered, he opined (in the context of a “hypothetical” question) that crimes committed like those at issue in this case would be committed for the benefit of a criminal street gang.
DISCUSSION
Gang Enhancements
Defendant first challenges the sufficiency of the evidence supporting the jury’s true findings as to gang enhancements on counts 1, 2, and 3. Defendant does not dispute his membership in Santa Nita or that Santa Nita is a criminal street gang. Instead, defendant claims there is insufficient evidence that the particular crimes at issue in this case were related to defendant’s gang. To wit, section 186.22, subdivision (b) applies only if a crime is committed: (1) “for the benefit of, at the direction of, or in association with any criminal street gang”; and (2) “with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
We must review the entire record in the light most favorable to the judgment in determining whether it contains substantial evidence from which a rational trier of fact could have found the charged enhancements true beyond a reasonable doubt. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
Defendant points to cases holding that a defendant’s gang membership, plus expert opinion testimony pertaining to a gang’s general culture, habits, and criminal profile, is insufficient (without more) to establish a particular crime is subject to a section 186.22, subdivision (b) enhancement. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 661-665 [expert opinion that carjacking was gang related, which rested on defendant’s gang membership and fact that the crime involved car theft, was insufficient to support enhancement]; People v. Ramon (2009) 175 Cal.App.4th 843, 851 [deeming speculative an expert’s testimony related to whether crime was committed by defendant and his accomplice on their own behalf or on behalf of the gang]; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [no substantial evidence for gang enhancement when only evidence of specific intent was expert’s opinion that possession of knife provides protection against rival gang members]; People v. Killebrew (2002) 103 Cal.App.4th 644, 652-659 [improper to allow gang expert to testify to defendant’s subjective knowledge and intent, as opposed to explaining general expectations and understandings of gang members].)
But here, defendant himself provided the best evidence for the conclusion that the crimes at issue were committed “for the benefit of, at the direction of, or in association with any criminal street gang” and “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b).) Defendant stated he was trying to “come up, ” “put in time, ” and “put in work;” defendant wanted to “be somebody” and “climb.” As explained by the gang expert, this terminology refers to gang obligations and status. And defendant admitted in a separate interview that he had used guns to commit robberies for the gang, and had used stolen property to pay for membership in the gang and to purchase additional guns.
The jury was free to accept defendant’s admissions, along with the expert testimony explaining the importance of defendant’s admissions, in concluding the crimes at issue were gang related and punishable under section 186.22, subdivision (b). (See, e.g., People v. Mendez (2010) 188 Cal.App.4th 47, 56-58.) This is not a case in which the judgment rests on speculation by experts on ultimate issues.
Section 654Defendant also posits the court erred by failing to stay execution of sentence on counts 4 through 6 (the false imprisonment counts) and 8 through 10 (the assault and elder abuse counts). The court sentenced defendant to serve terms imposed on counts 4 through 6 concurrently to count 3, noting it was doing so “as a result of the finding of the same operation of facts and circumstances [of] the false imprisonment with regard to the robberies that occurred in counts 1 through 3....” The court ran counts 8 through 10 consecutively without explanation. The court, without explanation, stayed execution of sentence pursuant to section 654 on count 7 (burglary) and count 11 (street terrorism).
Section 654, subdivision (a) provides in relevant 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.”
By its plain terms, section 654 operates to bar multiple punishments of a single, physical act. (Neal v. State of California (1960) 55 Cal.2d 11, 18-21 [single act of setting fire to residence cannot be punished as arson and attempted murder].) Section 654 also prohibits multiple punishments for an indivisible course of conduct, even though such conduct violates more than one statute. (People v. Hicks (1993) 6 Cal.4th 784, 789; People v. Latimer (1993) 5 Cal.4th 1203, 1205-1207.) “‘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.’” (Latimer, at p. 1208.)
This is a course of conduct case; defendant’s illegal conduct did not consist of a single act. Over the course of 15 to 30 minutes, defendant entered the apartment with the intent to commit a felony, demanded personal property from its inhabitants, struck two of the inhabitants, tied up two of the inhabitants, and searched the residence for personal property.
Whether defendant had multiple criminal objectives is a factual question and its resolution will be upheld on appeal if supported by substantial evidence. (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299.)
The People concede “that sentences for [defendant’s] false imprisonment convictions should be stayed pursuant to section 654... as these crimes were incidental to [defendant’s] intent to commit robbery.” We agree there is not substantial evidence in the record to support the trial court’s implied finding that defendant had a different intent and objective in falsely imprisoning the victims than his intent and objective to rob the victims. The liberty of the victims was violated (§ 236) during the course of the robbery, but defendant did not impose any additional restraints on the victims’ freedom of movement after the robbery was completed. (Compare People v. Foster (1988) 201 Cal.App.3d 20, 27-28 [locking victims in grocery store cooler after completion of robbery was separately punishable].)
The People also concede “one of [defendant’s] two sentences imposed for his convictions of assault with firearm (count nine) and elder abuse (count ten) may be subject to being stayed under section 654 because the convictions are based on [defendant] rapidly striking victim Anguiano at least three times about her head with his gun.” We agree that these two convictions (§§ 245, subd. (a)(2), 368, subd. (b)(1)) are based on the same physical attack on the same victim, Anguiano. The sentence of two years imposed on count 9 must be stayed pursuant to section 654.
The remaining issue is whether counts 8 (for which defendant received a two year consecutive term) and 10 (for which defendant received a two year consecutive term, plus a five year enhancement) must be stayed pursuant to section 654.
In general, assaults committed “in the course of conducting a robbery” cannot be punished separately. (People v. Brown (1989) 212 Cal.App.3d 1409, 1427, disapproved on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.) “[O]ne who uses a deadly weapon in the commission of first degree robbery simultaneously assaults the victim with such weapon but clearly may not be punished for both the robbery and assault with a deadly weapon.” (People v. Beamon (1973) 8 Cal.3d 625, 637.) This rule holds true even when the victim is actually harmed by a deadly weapon and not merely threatened with use of the weapon. For instance, striking an unaware and defenseless victim in the back of the head with a baseball bat, then immediately taking the prone victim’s purse and fleeing, cannot be punished as both assault with a deadly weapon and robbery. (People v. Logan (1953) 41 Cal.2d 279, 283-284, 290-291 (Logan).) In one cursorily analyzed case, an appellate court held the defendant could not be punished for both assault with a firearm and robbery, even though the victim was shot during the home invasion robbery. (People v. Brown, supra, 212 Cal.App.3d at pp. 1415, 1426-1427.)
Applying an outdated understanding of section 654, the Supreme Court in Logan actually reversed the conviction (rather than simply staying execution of sentence) for assault with a deadly weapon because the assault and robbery were “a single, indivisible transaction.” (Logan, supra, 41 Cal.2d at pp. 290-291.)
One exception to this rule is clearly inapplicable to the case before us: “When there is an assault after the fruits of the robbery have been obtained, and the assault is committed with an intent other than to effectuate the robbery, it is separately punishable.” (In re Jesse F. (1982) 137 Cal.App.3d 164, 171.) The assault and elder abuse in this case occurred during the robbery and attempted robbery of the victims.
But there is another exception according to two more recent cases: Gratuitous violence against a helpless or unresisting victim is not incidental to a robbery, at least when it rises to the level of attempted murder. (People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272 [repeatedly hitting 66-year-old victim on head with two-by-four while taking victim’s electronic device can be punished as attempted murder and robbery because the force used was more than necessary to achieve single objective of robbery]; People v. Nguyen (1988) 204 Cal.App.3d 181, 190-193 [defendant could be punished for attempted murder and robbery because accomplice shot helpless victim of robbery].) “[A]t some point the means to achieve an objective may become so extreme they can no longer be termed ‘incidental’ and must be considered to express a different and a more sinister goal than mere successful commission of the original crime.” (Nguyen, supra, at p. 191.)
The Cleveland court mischaracterized Logan, supra, 41 Cal.2d 279, claiming that the issue in Logan was whether “the evidence supported a conviction for only one crime” and that “Logan does not involve the application of section 654.” (Cleveland, supra, 87 Cal.App.4th at p. 271, fn. 5.) As noted above, Logan utilized an outmoded remedy in its application of section 654, but it applied section 654 nonetheless.
We conclude substantial evidence supports the court’s implied findings that defendant’s violent acts toward Anguiano and her daughter were not merely incidental to the robberies. Although the violence committed by defendant occurred contemporaneously with the robbery, his tactics (hitting Anguiano multiple times in the head with a gun and kicking daughter in the chest) were unnecessarily severe. There is no evidence in the record that any of the victims tried to resist defendant or could have provided anything more than token resistance. There is support in the record for a finding that the violence perpetrated upon Anguiano and her daughter in reaction to Anguiano’s cries for help and daughter’s noncompliance with defendant’s efforts to subdue her was excessive and gratuitous. Thus, we reject defendant’s assertion of error with regard to sentencing on counts 8 and 10.
DISPOSITION
We modify the judgment as follows: The four year (concurrent) terms imposed on counts 4 and 5 (false imprisonment), the six year (concurrent) term imposed on count 6 (false imprisonment of an elderly individual), and the two year (consecutive) term imposed on count 9 (assault with a firearm) are ordered stayed pursuant to section 654. Defendant’s total sentence now amounts to 115 years to life rather than 117 years to life.
The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and forward it to the Department of Corrections and Rehabilitation. Otherwise, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.