Opinion
A128913
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY TONY MELENDEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 09-92748)
Defendant Anthony Melendez was charged in a 13-count information with two counts of robbery of an inhabited dwelling in concert with at least two others (Pen. Code, §§ 211, 212.5, 213, subd. (A)(1)(a)), kidnapping to commit robbery (§§ 207, subd. (a), 209, subd.(b)(1)), burglary (§§ 459, 460, subd. (a)), assault with a stun gun (§ 244.5, subd. (a)), assault with great bodily injury (§ 245, subd. (a)(1)), assault with a firearm (§ 245, subd. (a)(2)), four counts of false imprisonment (§§ 236, 237, subd. (a)), and two counts of child endangerment (§ 273a, subd. (a)). Defendant pled guilty to one count of first degree robbery in concert and one count of kidnapping to commit robbery and was sentenced to 16 years to life in prison. His sole challenge on appeal is the court's imposition of consecutive sentences on the two counts of conviction. We affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
This case is one of two before us arising from the same home invasion robbery targeting money linked to the marijuana trade in Laytonville. A group of at least five men, some wearing masks, entered the home of a marijuana grower, located on an isolated 40-acre plot of land, with the intent to rob him of cash they believed he had. Also at home were his wife and two children, ages six and two. The men bound the husband with zip ties, then one man—called "gold shirt" in the transcripts—sat on him while the others looted the house. Gold shirt was not wearing a mask and was ultimately identified by the marijuana grower as defendant Melendez.
The second case is People v. Fernandez, No. A128145.
The men tried to get the husband to disclose the location of the money by beating 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 is going to hear it," and using a Taser stun gun on him. They also tried to get the wife to cooperate by pulling her hair and threatening her with a Taser while her small children stood nearby.
The husband finally told them the money was hidden half a mile away. Three of the men began walking him toward the money in his stocking feet, with temperatures in the 30's and sleet on the ground, while the other men stayed behind to guard the wife and children. Defendant was identified by the husband as one of the men who took him out of the house. The three men soon decided the husband was lying about the location of the money and walked him back to his house.
They then took him in his wife's car to an area where he directed them, parked the car and walked him over to a tree stump he pointed out as containing the money. This required him to walk over a slippery makeshift single-beam bridge, where he feared falling into the rocky creek six to eight feet below. The men found the money hidden in the tree stump in a military ammunition box and a black plastic sewer pipe.
The men then brought the husband back to the house, threatened him further if he went to the police, bound his wife into a chair, barricaded the children in the bathroom, and attempted to bind the husband in a way that would prevent him from easily extricating himself. They further ransacked the house, then took off in the husband's pickup truck and the wife's car.
The husband managed to free himself and his wife, then drove an ATV down to his brother-in-law's house on the edge of his property. Someone in the brother-in-law's house had seen two suspicious looking cars parked nearby and described the cars to the victim.
The victim and the others from his brother-in-law's house drove toward Highway 101. They found the family's two empty vehicles along the road with the doors wide open. Driving down Highway 101, they looked for the cars the friend 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. The officers pulled over the Envoy, but as they approached the car it pulled off again. They resumed pursuit, and after a 40-mile chase, sometimes at high speeds, they stopped it with a spike strip and apprehended the three occupants.
The male victim, who broke off pursuit after the first car stop, went to the sheriff's station and identified, positively or tentatively, photographs of two of the five men involved in the crimes. He later identified defendant as one of the men who had actively participated in trying to get him to divulge the location of the cash and one who had taken him from the house to the tree stump. He claimed defendant was the man referred to in the transcripts as "gold shirt," who acted in a lead role during the robbery and kidnapping. The other defendants also identified Melendez as the one who made the decisions. Defendant denied he was "gold shirt" at the time he entered his plea but admitted participating in the crimes.
The police recovered from the Envoy and its occupants a total of $37,734, as well as televisions, jewelry, a video game console, video games, compact discs, a camera, and other electronic equipment taken from the marijuana grower's home. A handgun was also found on a freeway exit that had been taken by the Envoy at one point during the pursuit.
Defendant was not in the Envoy and was not arrested until some 21 months later, having been identified by a co-defendant and the husband as one of the robbers.
In addition to the charges listed above, the information alleged handgun arming enhancements on ten counts (§ 12022, subd. (a)(1)) and two prior strike convictions. (§§ 667, subd. (d); 1170.12, subd. (c).) Defendant initially waived a preliminary examination and pled not guilty to the charges, but he subsequently changed his plea to guilty of robbery in concert of the wife and kidnapping for robbery of the husband. He submitted the matter for sentencing based on the transcript of the preliminary examination in the Fernandez case. (See fn. 2, ante.)
On June 18, 2010, defendant was sentenced to the upper term of nine years for the robbery and a consecutive term of seven years to life for kidnapping for robbery, for an aggregate term of 16 years to life.
DISCUSSION
The sole issue on appeal concerns the post-plea exercise of sentencing discretion. For that reason we discuss the sentencing hearing in some detail.
The sentencing hearing
The probation report identified eight aggravating factors: (1) the crime involved great violence and a high degree of callousness; (2) the victims were vulnerable, including young children; (3) the crime demonstrated planning and criminal sophistication; (4) the crime involved the taking of great monetary value; (5) defendant engaged in violent conduct indicating a serious danger to society; (6) he had a "horrendous" prior criminal record; (7) he had served prior prison terms; and (8) his prior performance on parole and probation was poor. (Cal. Rules of Court, rule 4.421.)
Citations to rules are to the California Rules of Court.
Defendant has a 24-year criminal history, having previously been convicted of the following felony offenses: robbery in 1985 (§ 211); assault with a deadly weapon in 1986 (§ 245, subd. (b)); vehicle theft in 1990 (Veh. Code, § 10851); possession of a prohibited weapon in prison in 1992 (§ 4502); possession of a controlled substance in 2005 (Health & Saf. Code, § 11377, subd. (a)); carrying a concealed dirk or dagger in 2007 (§ 12020, subd. (a)(4)); and possession of a controlled substance in 2009 (Health & Saf. Code, § 11350, subd. (a)), as well as six misdemeanors including drug and weapons offenses, a 1984 burglary (§ 459), and a 2008 domestic violence offense (§ 243, subd. (e)(1)).
The court denied probation, for which defendant was presumptively ineligible (§ 1203, subd. (e)(4)), because he was an active participant in the robbery, perhaps even in a leading role, and was one of the three men who kidnapped the husband. Although defendant claimed he had only come to Laytonville to buy marijuana, the court noted that all of the robbers had pre-planned the home invasion at a motel prior to the crime, and defendant therefore knew in advance that he would be involved in criminal activity. The court also cited defendant's long criminal history, as well as the fact that he was on probation when he committed the current offenses.
Defendant's attorney next argued the two crimes were subject to section 654 in that both the home invasion and the kidnapping were part of a single indivisible transaction with a single criminal objective: stealing money from the marijuana grower. (See Neal v. State of California (1960) 55 Cal.2d 11, 18-19.) He asked the court to stay the sentence on the robbery conviction and to sentence defendant only to seven years to life on the kidnapping for robbery.
The district attorney argued there were different victims of the two crimes, which occurred in two different locations. He pointed out that the robbery involved personal items stolen from the house, while the kidnapping for robbery involved the detour to the tree stump and the cash stolen from that location. The prosecutor requested the upper term on the robbery based in part on the defendant's prior criminal history.
The court imposed the upper term of nine years on the robbery due to the "egregious" nature of the crime. The home invasion occurred during the evening meal time, when the perpetrators might have expected the whole family to be home. It was committed with small children present, and even if they did not view the ill treatment of their father, they must have heard and known what was going on. The court noted the robbers "ransack[ed]" the house and "rough[ed] up and torture[d]" the husband. They used a firearm and at one point threatened to shoot him in the kneecap. They then engaged in separate criminal acts by taking the husband out to the woods to search for the money. The court called the crimes "heinous" and "frightening" and noted that the robbers showed "no regard whatsoever for the physical [or] psychological welfare" of the family members. In light of defendant's prior record of convictions and history of failure on probation and parole, the court believed the upper sentence was appropriate on the robbery count and the two sentences should run consecutively.
The children were following their mother from their bedroom into the kitchen when the men grabbed her by the hair and threatened her with the stun gun. During the interrogation of the husband, the six-year-old kept asking what the men were doing to his father, which confirms the court's view that the children were aware of the mistreatment. Following the crime the family moved from the house and required counseling to help them recover from the events.
Defendant's claim on appeal
Defendant contends the trial court abused its discretion in choosing to impose consecutive sentences for the crimes of which he was convicted. He acknowledges that a violation of Penal Code section 654 is not before us on appeal. He cites cases decided under that section nevertheless, claiming they have persuasive value in determining whether the court abused its discretion in sentencing him consecutively on the two counts to which he pled guilty.
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).)
No abuse of discretion
We cannot agree there was an abuse of discretion. (People v. Bradford (1976) 17 Cal.3d 8, 20.) The counts of conviction were the robbery of the wife and the kidnapping of the husband for robbery. The prosecutor told the court when it accepted defendant's plea that a Harvey waiver was not necessary because the counts were all "transactionally related." (People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey).)
Harvey held that counts dismissed by plea agreement generally may not be considered in determining the sentence for an admitted count. (Harvey, supra, 25 Cal.3d at p. 758.) It made an exception, however, where the dismissed counts were "transactionally related" to the counts of conviction. (Ibid.; see also, People v. Calhoun (2007) 40 Cal.4th 398, 406-408 (Calhoun).)"Hence, the Harvey rule 'must yield when its application would prevent a court from considering all of the factors necessary to make an informed disposition of the admitted charge or charges.' " (People v. Sturiale (2000) 82 Cal.App.4th 1308, 1315.) Crimes are transactionally related if they involve "facts from which it could . . . be inferred that some action of the defendant giving rise to the dismissed count was also involved in the admitted count." (People v. Beagle (2004) 125 Cal.App.4th 415, 421.)
Here the prosecutor was correct that the dismissed counts for burglary, various forms of assault, false imprisonment, and child endangerment were all part of the same overall transaction that underlay the robbery and kidnapping of which defendant was convicted. Therefore, the entire factual scenario could be used by the court in determining the appropriate punishment.
Precisely because of that transactional relationship, though, defendant claims consecutive sentencing was improper because the overall objective of both the robbery and the kidnapping was the same, namely to find and steal the money he and his comrades believed the husband had in his home as proceeds of his marijuana growing business.
The "objective" of a crime, however, may be described broadly (e.g., stealing money) or more precisely (committing a home invasion robbery). The Supreme Court has cautioned against defining a criminal objective too broadly in this context. (People v. Perez (1979) 23 Cal.3d 545, 552.)
When defendant's objective is described more precisely, it becomes clear there were two separate objectives involved in the two counts of which he was convicted. Though the acquisition of stolen goods or cash was the ultimate goal in both crimes, the defendants could have abandoned the robbery when the husband convinced them there was no large amount of cash in the home. Instead, they expanded and escalated their crimes by embarking on a new mission of forcing him to lead them to the stashed money. This separately and hurriedly hatched plan took them on two forays outside of the house, involved the use of additional force or threats of force, and led them to transport the man a substantial distance in their search for the cash. By expanding their intent from that of entering a house and conducting a strong-arm robbery to actually transporting the husband to a separate location where they ultimately found the money, they committed a crime separate from the home invasion.
The probation report recommended consecutive sentencing based on rule 4.425(a)(1), specifically that "[t]he crimes and their objectives were predominantly independent of each other," and because the "crimes involved separate offenses on multiple victims."
Rule 4.425 provides as follows: "Criteria affecting the decision to impose consecutive rather than concurrent sentences include:
"(a) Criteria relating to crimes
"Facts relating to the crimes, including whether or not:
"(1) The crimes and their objectives were predominantly independent of each other;"(b) Other criteria and limitations
"(2) The crimes involved separate acts of violence or threats of violence; or
"(3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.
Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except:
"(1) A fact used to impose the upper term;
"(2) A fact used to otherwise enhance the defendant's prison sentence; and
"(3) A fact that is an element of the crime may not be used to impose consecutive sentences."
In imposing consecutive terms, the court stated, "I believe that these are sufficiently separate acts in that the robbery of [the wife] was in terms of personal property in the house. And the kidnapping of [the husband] was to remove him from the house and to steal the cash. I think under those circumstances they are not part of the same transaction. For that reason the Court will impose the terms as a consecutive rather than concurrent . . ." sentence.
We agree with the superior court that the two crimes of conviction were separate acts of violence with separate objectives (see rule 4.425(a)(1) & (a)(2)), despite the fact that they were "transactionally related." Crimes that are "transactionally related" for purposes of the Harvey rule do not necessarily constitute an indivisible course of conduct so as to prohibit the imposition of separate sentences under section 654.
Preliminarily, we note again that we deal not with the strict statutory prohibition on separate punishment for a single act, but rather with the discretionary decision whether to impose two sentences concurrently or consecutively. The following cases, upon which defendant relies, were decided under section 654 and are not technically controlling.
People v. Lewis (2008) 43 Cal.4th 415, 519 (Lewis)was a death penalty case involving a crime spree in which several of the crimes consisted of approaching individuals in their cars and threatening them with a gun, then kidnapping the victims and stealing the cars along with whatever valuables they could get from the victims, including in several cases forcing victims to withdraw cash from an ATM, before releasing or killing them. (Id. at p. 432, 435-438.) A similar crime pattern was executed against six different victims, three of whom were also murdered. (Id. at pp. 431, 434-438.)
In applying section 654, the court discussed whether the crimes of kidnapping for robbery and robbery could be separately punished with respect to the same victim. (Lewis, supra, 43 Cal.4th at p. 519.) It held the crimes against each victim were part of an indivisible course of conduct with a single criminal objective and therefore held defendant could be convicted of both robbery and kidnapping for robbery but could only be punished for one of those offenses. (Ibid.)
But our case is different in that the counts of conviction involved two separate criminal acts and intents, as well as two different victims. Defendant and his friends robbed the wife by stealing electronic equipment and jewelry from the house. Three of them also kidnapped the husband and robbed him of the money found in the tree stump. This case is not like Lewis, where the criminal objective from the start involved kidnapping and robbery, with the stayed counts having been perpetrated against the same victim in each incident.
People v. Wiley (1994) 25 Cal.App.4th 159, 162-163, involved a situation where defendant kidnapped a victim and attempted to force him to withdraw cash from his ATM. When the ATM did not work, defendant forced the victim to call his wife and have her bring $300 to their location. (Id. at p. 162.) When she could not withdraw cash on her expired ATM card, the kidnapper told her to drive to her home and get the cash, where he agreed to meet her with her husband and release him if she complied. (Ibid.)The court held defendant could be convicted of both kidnapping for robbery and kidnapping for ransom but could be punished for only one offense because the objective of each crime was to unlawfully obtain the victim's money. (Id. at pp. 162-163) Again, however, the case involved crimes committed against a single kidnapped individual.
People v. Velarde (1962) 201 Cal.App.2d 231, 233-234 stayed sentence on two robbery counts committed during the kidnapping of each of two individuals. The defendants were convicted of two counts of robbery and two counts of kidnapping where two men were robbed inside a store, and the kidnapping convictions resulted from the robbers' forcing the two to move from the front of the store to a back room. (Id. at pp. 232-233.) The court concluded, with respect to each individual, both the kidnapping and robbery offenses could not be separately punished under section 654. (Id. at pp. 233-234.) Our case is entirely different in that it involves the robbery of the wife and the kidnapping of the husband, two separate offenses against different victims.
People v. Latimer (1993) 5 Cal.4th 1203, 1208, involved a defendant who kidnapped a woman with the intent to rape her. Convicted of both kidnapping and rape, he successfully argued he could be punished only for the rape, since the sole purpose of the kidnapping was to perpetrate the rape. (Id. at p. 1216.) The court, while questioning the Neal formulation, nevertheless adhered to it. (Id. at pp. 1208-1216.) It also pointed out, however, that it 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.)
Such is the case here. The two crimes of conviction were perpetrated against different victims and involved "consecutive, and therefore separate, intents." (People v. Latimer, supra, 5 Cal.4th at p. 1216.) For these reasons separate and consecutive sentencing was proper.
Even defendant's own description supports the imposition of consecutive terms. He argues, "[T]he robbers entered the . . . home looking to rob the home. They believed that part of what they would find was a large amount of cash from [the husband's] marijuana cultivation business. It was only when [the husband] informed them that the cash was located outside the house that the robbery morphed into a kidnapping, i.e., the robbers did not enter the home with the intention of kidnapping [the husband]. It is clear from the facts presented that the kidnapping was an afterthought that developed when it was determined that the object of the robbery—the cash—was not located inside the house."
This is precisely why consecutive terms were proper. Defendant and his confederates thought about what to do when the money was not found in the house, and they decided to commit yet another crime. This "afterthought" was separately and consecutively punishable because it increased defendants' culpability and the risk and trauma to the victims.
Additionally, even under section 654 separate sentencing is allowed when crimes of violence are committed against separate victims. (People v. Deloza (1998) 18 Cal.4th 585, 592.) Robbery is a crime of violence (ibid.; People v. Champion (1995) 9 Cal.4th 879, 935), as is kidnapping for robbery (People v. Centers (1999) 73 Cal.App.4th 84, 99-100). For this reason alone separate prison terms were permissible. (People v. Miller (1977) 18 Cal.3d 873, 886; In re Wright (1967) 65 Cal.2d 650, 656; People v. Davey (2005) 133 Cal.App.4th 384, 390-391; People v. Hall (2000) 83 Cal.App.4th 1084, 1090.)
The decision to impose them consecutively was not an abuse of discretion. In Calhoun, supra, 40 Cal.4th at pp. 406-408, the Supreme Court discussed several cases in which transactionally related dismissed counts were considered for sentencing purposes, and specifically where consecutive sentences were imposed because there were multiple victims. Here, as in Calhoun, the multiple-victim factor justifying consecutive sentences was disclosed by the counts of which defendant was convicted, even without considering the dismissed counts. (Id. at p. 408.)
The multiple-victim factor has not appeared in the California Rules of Court relating to aggravation and consecutive sentencing since 1991. (Calhoun, supra, 40 Cal.4th at pp. 405-406 & fn. 4.) But Calhoun held it nevertheless still may be considered for either imposing the upper term or imposing consecutive sentences, but not for both purposes. (Id. at p. 408.)
Defendant claims the court did not cite multiple victims as a reason for imposing consecutive sentences. True, the court did not use the phrase "multiple victims," but it did note the crimes were committed against two named individuals. It therefore clearly had the multiple-victim factor in mind, which allows for consecutive sentencing even when the victims are named in separate counts. (People v. Caesar (2008) 167 Cal.App.4th 1050, 1059-1061, disapproved on another ground in People v. Superior Court (Sparks)(2010) 48 Cal.4th 1, 18.) Indeed, there were multiple victims of the home invasion robbery itself, which further justifies consecutive sentences, as does the court's observation that the crimes occurred in different places. (Rule 4.425(a)(3).)
Defendant properly was sentenced consecutively. The aggregate sentence was not excessive considering the heinous nature of the crimes, the emotional damage inflicted on the entire family, and the wide-ranging theft of items from both the house and the tree stump. The court did not abuse its sentencing discretion.
DISPOSITION
The judgment is affirmed.
Richman, J. We concur: Kline, P.J. Haerle, J.