Opinion
E042779
7-1-2008
THE PEOPLE, Plaintiff and Respondent, v. MANUEL FELICIANO ONTIVEROS, Defendant and Appellant.
Phillip I. Bronson, 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, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Kristine A. Gutierrez, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
A jury found defendant Manuel Feliciano Ontiveros guilty of robbery (Pen. Code, § 211, count 1), dissuading a victim from reporting a crime by force or by an express or implied threat of force or violence (§ 136.1, subd. (c)(1), count 2), and attempting to elude a peace officer. (Veh. Code, § 2800.2, count 3.) The jury found the allegation that defendant personally used a firearm in the commission of the robbery to be untrue. (§ 12022.53, subd. (b).) The trial court sentenced defendant to a total term of three years in state prison, consisting of the midterm of three years on count 1, a concurrent three years on count 2, and a concurrent two years on count 3.
All further statutory references will be to the Penal Code, unless otherwise noted.
The record reflects that the jury found defendant "guilty of a violation of section 136.1, subdivision (b), subsection (1) . . . as charged under count 2 of the information," (italics added) and that the jury made a separate finding that he acted maliciously and used or threatened force during the commission of the offense charged in count 2, within the meaning of section 136, "subdivision (c), subsection (1)." (Italics added.) We note that defendant was actually only charged with a violation of section 136.1, subdivision (c)(1) in count 2 of the information. Section 136, subdivision (c)(1) includes the acts described in subdivision (b)(1).
On appeal, defendant argues: 1) there was insufficient evidence to sustain his conviction in count 2; and 2) his sentence in count 2 should be stayed under section 654. We affirm.
FACTUAL BACKGROUND
On April 29, 2006, at approximately 9:45 p.m., John Wheeler (the victim) had just finished shopping at a grocery store. After he put his groceries into his car, he was approached by defendant and his cohort. Defendant said something to get the victims attention. Defendant opened his coat and showed the victim a pistol. Defendant then "cocked it or pulled back the slide." The victim said the pistol sounded like "metal on metal" when defendant racked the slide. The victim knew he was being robbed and felt very scared since he thought defendant was going to take his car or physically injury him. Defendant told the victim to show him his wallet and to act like they were friends having a conversation. The victim opened his wallet and showed defendant that he had $20. Defendant asked if he had any more money. The victim rummaged through his pockets and car, but did not find any more money. The victim gave the $20 to defendants cohort, and defendant and his cohort started walking away. The victim got into his car, started the engine, and began backing the car up. Defendant said, "`Wait," and walked back over to the car. Defendant told the victim to stop, and the victim complied. Defendant then said, "`Youre not going to do anything stupid, like call the cops?" The victim felt that defendants question was a threat. He was afraid that a further altercation might happen and replied, "`No, Im not. Im going home." The victim drove home and did not call the police because he thought something would happen to him if he did.
A grocery store employee, Jacqueline Figueroa, who had been in the parking lot collecting carts when defendant approached the victim, observed the incident. She heard a loud noise, which she described as sounding like a gun, and thought that the victim was getting mugged. Figueroa returned to the store and called 911.
Officer Jerry Osterloh responded to the call. Figueroa gave the police a description of defendant and his cohort, and of the car she saw them driving. Using the stores surveillance tapes, Officer Osterloh was able to identify and track down the victim that night The victim told the police that he would be able to identify the robber.
Meanwhile, Officer Michael Wayman was on patrol a short distance away, when he observed defendant driving a car in the middle of the street with its lights off. The car was similar to the general car description provided by Figueroa, as to the car defendant was driving. Officer Wayman positioned his patrol car behind the car, and defendant started accelerating. The police pursued the car and eventually apprehended defendant.
The police later took the victim to the police station, and he immediately identified defendant as the person who had robbed him.
DISCUSSION
I. There Was Substantial Evidence Defendant Threatened to Use Force in Count 2
Defendant argues that there was insufficient evidence to sustain the jurys finding that he used or threatened to use force, within the meaning of section 136.1, subdivision (c)(1), when he advised the victim not to contact the police. Specifically, defendant contends that his statement to the victim was ambiguous. He further asserts that he did not brandish a weapon when he made the statement, he did not utter any gang references, and he did not use any words of violence. He also points out that the jury found that he did not use a firearm during the robbery. We conclude that there was sufficient evidence to support the conviction.
A. Standard of Review
"In deciding the sufficiency of the evidence, we ask whether `"after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.)
B. The Evidence Was Sufficient
Section 136.1, subdivision (c)(1) makes it a felony to knowingly and maliciously attempt to dissuade a crime victim from reporting the crime to a peace officer. The act of dissuading must be "accompanied by force or by an express or implied threat of force or violence." (§ 136.2, subd. (c)(1).)
At the outset, we note that "as a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 656.) "An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict. [Citations.]" (Ibid.) Moreover, "`[s]ufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. [Citations.] This review should be independent of the jurys determination that evidence on another count was insufficient. [Citation.]" (Ibid.)
We have conducted an independent review of the record and have determined that, even though the jury found the firearm allegation not true, there was substantial evidence from which it could have concluded that defendant dissuaded the victim from contacting the police by an express or implied threat or force. At trial, the victim testified that defendant opened his coat, showed him a pistol, and then racked the slide on the pistol. The victim testified that he was familiar with guns and that he had "no doubt at all" that what defendant was holding in his hand was a firearm. Figueroa similarly testified that she saw defendant make a motion and then heard a noise that sounded like a gun. Moreover, the victim testified that when defendant asked him whether he was going to call the police, he took it as a threat and was afraid "that a further altercation might happen." Therefore, the victim told defendant he would not call the police and that he was just going home. The victim testified that after he got home he did not contact the police because he thought defendants threat might materialize. Thus, he actually was dissuaded by defendants statement to him.
Defendants contentions that his words were ambiguous, that he did not brandish a weapon when he made the statement, that he did not utter any gang references, and that he did not use any words of violence, are of no moment. There is no requirement that a defendant must say, "Dont call the police or I will shoot you," in order to commit the charged offense. (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 (Mendoza ), superseded by statute on other grounds, as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442.) There is no requirement that a defendant brandish a weapon or utter gang references either. As long as his words and/or actions support the inference that he attempted by threat or force to prevent the victim from reporting the crime to the police, defendant was properly convicted of a violation of section 136.1, subdivision (c)(1). (See Mendoza, supra, 59 Cal.App.4th at p. 1344.)
Thus, based on the evidence presented at trial, a rational trier of fact could easily find that defendants words and actions dissuaded the victim from contacting the police. Accordingly, we conclude that substantial evidence supported defendants conviction in count 2.
II. The Court Was Not Required to Stay Defendants Sentence on Count 2 Under Section 654
Defendant argues that the trial court erred in ordering the sentence on count 2 (dissuading a witness) to run concurrent to the sentence on count 1 (robbery), rather than staying the sentence on count 2 under section 654. He argues that the robbery and the dissuading of a victim were part of an indivisible course of conduct, with the one purpose of enabling him "to escape to a temporary or relative place of safety with the proceeds of the robbery." We disagree.
A. Section 654 and Standard of Review
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.]" (People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza).) "Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. [Citation.]" (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) If a 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.)
B. Defendant Had Multiple Objectives
Defendant specifically argues that he could not be punished for both crimes since the robbery was not complete at the time he made the threat. He asserts that he had not reached a place of temporary safety yet. Although defendant is correct that the crime of robbery is not complete until the robber has reached a place of temporary safety (People v. Milan (1973) 9 Cal.3d 185, 195), the test, for purposes of section 654, is whether he had multiple objectives. The evidence supports a reasonable inference that defendant had separate intents in robbing the victim and in dissuading him from contacting the police. The robbery was a distinct act from the act of dissuading the victim. Defendant robbed the victim of $20 while they stood in the parking lot. Defendant then started to walk away. His intent in committing the robbery was to take money from the victim. Subsequently, after the victim got in his car and was about to drive away, defendant stopped him and essentially warned him not to call the police. Defendants objective in dissuading the victim was to prevent the police from catching him. Defendants course of criminal conduct did not share common acts and were not parts of an indivisible course of conduct.
The court, therefore, was not required to stay the sentence on count 2 under section 654.
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J.
KING, J.