Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County Super Ct. No. BF114746A. John I. Kelly, Judge.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
On May 1, 2007, the Kern County District Attorney filed a consolidated second amended information in superior court charging appellant as follows:
On February 13, 2007, the court had declared a mistrial after a jury was unable to reach a verdict in a trial on an earlier version of the information.
Counts 1 and 2—first degree robbery (Pen. Code, §§ 212.5, subd. (a), 1192.7, subd. (c)(19)) with personal use of a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)).
Further statutory references are to the Penal Code.
Count 3—first degree burglary (§§ 460, subd. (a), 1192.7, subd. (c)(18)) with personal use of a firearm (§ 12022.5, subd. (a)).
Counts 4 and 5—kidnapping (§§ 207, subd. (a), 1192.7, subd. (c)(20)) with personal use of a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)).
Counts 6 and 7—false imprisonment (§ 236) with personal use of a firearm (§ 12022.5, subd. (a)).
Counts 8 and 9—assault with a firearm (§§ 245, subd. (a)(2), 1192.7, subd. (c)(8)) with personal use of a firearm (§ 12022.5, subd. (a)).
Counts 10 and 11—first degree burglary (§§ 460, subd. (a), 1192.7, subd. (c)(18)).
Two prior strike convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), two prior serious felony convictions (§ 667, subd. (a)), and four prior prison terms (§ 667.5, subd. (b)) were alleged as to each count.
Jury trial commenced on May 2, 2007. On May 17, 2007, appellant waived his right to a jury trial of the enhancement allegations involving prior convictions. On the same date, the jury returned verdicts finding appellant guilty of counts 1, 3, 6, 7, 8, 9, and 11 and not guilty on counts 2, 4, 5. The jury found the personal use allegations relating to counts 1, 6, 7, 8, and 9 to be true. The jury was unable to reach a verdict on count 10. The trial court conducted a bifurcated hearing and found all of the prior conviction allegations thereafter to be true.
A previous trial had resulted in a deadlocked jury.
On October 26, 2007, the court sentenced appellant to a total indeterminate term of 129 years to life and a total determinate term of 62 years. On motion of the district attorney, the court dismissed count 10.
On October 29, 2007, appellant filed a timely notice of appeal. He contends the trial court erred in admitting evidence of an identification from an unduly suggestive photographic lineup and that the court committed sentencing error. We disagree.
FACTS
Count 11/Burglary of the Collins Residence
Donald Collins, a resident of Harvard Drive in Bakersfield, left his home on the afternoon of April 23, 2006. When he returned home, he found the garage door forced open and the lock punched out. Collins noted a number of items missing from his residence. These items included DVD players, videocassette recorders, a television, compact disks, personal jewelry, audio books, travel bags, an antique sewing machine, a broom, and Chinese zodiac figurines. Collins said he did not know appellant or give him permission to enter his home.
On April 24, 2006, Bakersfield Police Officer Lynn Martinez found a beer mug in a bedroom of the Collins’ residence and dusted it for fingerprints. One of the prints matched appellant’s left index finger. Bakersfield Police Detective Glen Anderson interviewed appellant in custody on May 15, 2006. Appellant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 and told Anderson he had been staying with Ely and Celia Zuniga on Cottonwood Road in Bakersfield. Appellant told the detective, “I am not innocent.” As to the fingerprints in the Collins home, appellant said, “‘It just can’t be. It must be a mistake.’”
Anderson went to the Zunigas’ apartment and searched a bedroom that he thought belonged to appellant. Anderson located a Tom Clancy CD-audio book inside that room and Chinese zodiac figurines in the living room of the apartment. Collins later identified these items as his property.
Counts 1-9/Robbery of the Eagleson Household
On May 13, 2006, Patricia Eagleson and her son lived on Panorama Drive in Bakersfield. At 9:00 a.m. two young men pounded on their front door and demanded entry. Mrs. Eagleson opened the door and saw a Caucasian male and a Hispanic male. The White male grabbed her arms and demanded to know the location of money. He also pointed a gun in her face. Eagleson went to the dining room and pulled out a bag containing $12,000 in cash. The Hispanic male put the cash in a backpack.
Mrs. Eagleson’s son was in a pool room near the garage of the residence. The son was age 46 and suffered from Down Syndrome. The White male went to the pool room and brought Mr. Eagleson to the dining room. Mrs. Eagleson gave the Hispanic male her Seiko watch and the White male pulled the wedding ring from her swollen finger. The Hispanic male then tied her up with a sheet and the White male took her car keys. The two assailants ran out the front door. Mr. Eagleson untied his mother and she called the police.
After police arrived at the scene, Mrs. Eagleson gave them a description of the two suspects. A police artist prepared a drawing of the White male suspect but Mrs. Eagleson said it was only 60 percent accurate. Kern County Deputy Sheriff Dean Marshall compiled a photographic lineup of six men that included a picture of appellant. On May 18, 2006, he showed the photographic lineup to Mrs. Eagleson and she identified appellant’s picture as that of the White male suspect. She subsequently identified appellant in court as the White male suspect.
Sometime after the robbery, law enforcement officers returned a watch and wedding ring to Mrs. Eagleson and she identified them as property that had been taken in the robbery. On May 15, 2006, appellant’s parole agent placed him under arrest. The agent searched appellant’s room in an apartment he shared with several other people. The agent recovered marijuana and a pipe from appellant’s room. While the agent placed appellant under arrest, appellant gave a watch to his fellow resident, Celia Zuniga.
Ramona Soto knew appellant and his apartment mates, Celia and Ely Zuniga. Soto saw appellant on May 13, 2006. He seemed to be in a hurry and gave her a ring to sell. Soto sold the ring to a local jeweler for $480 in cash. Sometime later, police officers contacted Soto about the ring and she took them to the jewelry store where she had made the sale. At that point, the jeweler had already dismantled the ring she sold to him.
On May 17, 2006, appellant was in court, contacted a deputy sheriff, and told him he wanted to speak privately with him. Appellant told the deputy he wanted leniency and that he had information about a recent home invasion robbery. The deputy told him the information would have to be unique because the crime had been reported in the news. Appellant told the deputy the victim was a woman with a “retarded son” and the suspects used a bed sheet to tie up the woman. Appellant also told the deputy the suspects were a Hispanic man named Manuel and Manuel’s brother-in-law, a White male. Appellant also reported that both suspects were armed with .45-caliber semiautomatic handguns. Appellant also said the two men took a wedding ring off of the woman’s finger and $15,000 cash during the robbery. Upon questioning by the deputy, appellant said he had been at a “drug party” when Manuel told him about the robbery.
DISCUSSION
I. Did the Trial Court Commit Federal Constitutional Error by Admitting Evidence of an Unduly Suggestive Photographic Lineup?
Appellant contends the photographic lineup containing his picture was unduly suggestive and tainted the Eaglesons’ subsequent identifications.
A. Specific Contention
He specifically argues:
“A close examination of the photographic lineup here shows that appellant’s photograph is different from most of the other photographs in the lineup. Appellant is clean shaven, but the photograph of the man in position #1 has a mustache and goatee. The photo of the man in position #5 has a long face with a high forehead, and dark hair and eyes. Photo #6 is of a man considerably older than appellant.
“[A]ppellant was the only man in the lineup with blue eyes, and the victim was very definite about the white male suspect having blue eyes. [Citations.] Appellant was also the only one in the photos who was wearing a blue-and-white checkered shirt that was similar to that described by Ms. Eagleson as being worn by the white male suspect. [Citations.] Appellant’s photograph is also somewhat different from the sketch compiled by the artist after interviewing Ms. Eagleson, as the sketch depicts a man with a longer face than appellant has in his photograph. [Citation.]
“When looking at the totality of the circumstances surrounding the lineup and identification process, the lineup was unduly suggestive and unnecessary; and it rendered the subsequent identifications unreliable and tainted the subsequent in-court identifications of appellant. [Citation.]”
B. Events Leading to the Photographic Lineup
On May 13, 2006, the date of the offenses, Mrs. Eagleson told officers that one assailant was White and one was Hispanic. She believed she could identify the White assailant but probably not the Hispanic assailant. Mrs. Eagleson described the White assailant as very thin, having a very white face, blue eyes, and tan hair. She also said he wore a tan cap, baggy blue jeans, and a blue-and-white checkered, collared shirt. Mrs. Eagleson met with a sketch artist who drew a composite picture of the assailant and she believed the sketch was 60 percent accurate.
On May 17, 2006, appellant was in custody at the Kern County Courthouse. He initiated a conversation with Deputy Sheriff Larsen in an effort to obtain leniency in another case. Deputy Larsen contacted Deputy Lopeteguy, who in turn requested that Larsen forward appellant’s jail identification cards. Deputy Lopeteguy gave appellant’s name to Detective Marshall, who pulled appellant’s photograph. He then compared appellant’s photograph to the composite sketch of the White assailant. Marshall considered the sketch similar to appellant’s photograph and entered appellant’s arrest record number into the PictureLink computer system. Marshall said the program automatically generated photographs of individuals who had attributes similar to those of appellant. Marshall did not enter any of the physical descriptions offered by Mrs. Eagleson. After the program produced a number of photographs, Marshall selected five of them to place in a photographic lineup with appellant’s picture.
On May 18, 2006, Marshall and Lopeteguy went to Mrs. Eagleson’s home and read her an admonishment on the photographic lineup card. Marshall gave her the card, she reviewed all of the photographs, and she promptly identified appellant’s picture. She circled appellant’s photograph and wrote her initials below it. Only Marshall, Lopeteguy, and Mrs. Eagleson were present in her kitchen when she made the identification. Neither deputy advised Mrs. Eagleson about which picture she should choose.
C. Pretrial Motions to Exclude
On or about January 16, 2007, in anticipation of his first trial, appellant filed a motion to exclude eyewitness identification based upon a suggestive photographic lineup. Appellant maintained his photograph was the only one in the lineup that “more closely matches the description provided by the eyewitnesses.” He particularly noted that only his photograph depicted blue eyes and a blue-and-white checkered dress shirt, attributes described by Mrs. Eagleson to police officers. On January 18, 2007, the court conducted an evidentiary hearing on the motion. Sheriff’s Detective Dean Marshall testified he prepared the photographic lineup by using a computer program. Marshall submitted information about the physical characteristics of appellant and the program produced photographs resembling the individual who robbed the Eaglesons. Marshall explained he actually selected the five other photographs in the lineup but the computer formatted and created the lineup in its final form.
Although the motion is file-stamped February 13, 2007, the defense served the motion on the prosecution on January 16, 2007, and the hearing on the motion took place on January 18 and 19, 2007.
Detective Marshall said he met with Mrs. Eagleson and her son, read them a standard admonition regarding photographic lineups, and showed them the six-picture lineup. Both mother and son selected photograph No. 3, a picture of appellant. Marshall acknowledged that appellant’s photograph was the only one in the lineup that depicted a blue-and-white checkered shirt, the clothing described by Mrs. Eagleson to police officers.
Mrs. Eagleson testified that Detective Marshall did not make any threats or suggestions with respect to her viewing or selection from the lineup. She described appellant’s photograph as depicting a “very white face” and blue eyes. She also said the blue-and-white checkered shirt in the photograph was similar to but not the same as the shirt worn by the White male assailant on the day of the robbery. The court heard arguments from both counsel. Defense counsel again noted that appellant’s photograph was the only one that depicted a clean-shaven White male with light brown hair and blue eyes. He also noted that only appellant’s photograph depicted attire similar to that worn by the White male assailant on the date of the robbery. The court denied the motion on January 19, 2007.
On April 25, 2007, after the court declared a mistrial, appellant filed a second motion to exclude eyewitness identification based upon suggestive photographic lineup. This motion was essentially identical to the defense motion of January 16, 2007. On April 26, 2007, prior to the second trial, the court conducted a hearing on the motion. The parties submitted the matter based on evidence presented at the hearing of January 18-19, 2007, and the exhibits introduced in support of that motion. On May 1, 2007, the court denied the motion, stating: “[T]he Court is going to make a finding that those [referring to the photographic lineup] were properly carried out and allow them to be presented and leave it to the jury to make a determination.…”
D. Law Governing Photographic Lineups
The United States Supreme Court has established the applicable test:
“[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Simmons v. United States (1968) 390 U.S. 377, 384.)
“Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable. [Citations.]” (People v. Yeoman (2003) 31 Cal.4th 93, 123.) The court must determine whether the identification procedure was suggestive and, if so, whether the identification was nonetheless reliable under the totality of the circumstances. (People v. Gordon (1990) 50 Cal.3d 1223, 1242, disapproved on another point in People v. Edwards (1991) 54 Cal.3d 787, 834-835.) The defendant bears the burden of showing that the identification procedure resulted in such unfairness that it abridged his or her due process right. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1051.)
Under California law, there is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. Further, a photographic lineup is not considered invalid simply where one suspect’s photograph is different from the others in the lineup. (People v. Brandon, supra, 32 Cal.App.4th at p. 1052.) Both California and federal courts have repeatedly found that photographic lineup pictures are not unduly suggestive where the defendant’s photograph is unique in some minor detail. (See People v. Hicks (1971) 4 Cal.3d 757, 764 [mix of color and black-and-white photos not suggestive]; People v. Johnson (1992) 3 Cal.4th 1183, 1217 [differences in background color and image size between photos not suggestive]; People v. Gordon, supra, 50 Cal.3d at pp. 1241, 1243 [tallest in lineup where witness identified suspect as “like a football player,” tall and well built].) In People v. DeSantis (1992) 2 Cal.4th 1198, for example, the victim recalled the suspect had a red jacket. The defendant contended the photographic lineup was too suggestive because only he wore a red shirt and only his photograph featured a dark background. The court found the lineup acceptable, as the red shirt was not the same as a jacket, and the “hardly uncommon apparel” could not be termed a badge of identity. (Id. at pp. 1222-1223.)
“‘It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominately legal mixed question) and, as such, subject to review de novo.’” (People v. Johnson, supra, 3 Cal.4th at p. 1216.)
E. Analysis
Whether we review the trial court’s finding deferentially or independently, appellant’s contentions lack merit. (People v. Carter (2005) 36 Cal.4th 1114, 1163.) The six pictures in the lineup have the same dimensions. Each picture depicts the head, neck, and a portion of the shoulders of a White male. The head depicted in photograph No. 5 is slightly larger than the others; the head depicted in photograph No. 6 is slightly smaller than the others. All six subjects are wearing collared shirts. Two of the subjects, depicted in photograph Nos. 5 and 6, are wearing white or light-colored shirts. Two of the subjects—appellant (depicted in photograph No. 3) and the male depicted in photograph No. 1—are dressed in plaid checked shirts. The subject depicted in photograph No. 2 appears to be dressed in a Polynesian print shirt and the subject depicted in photograph No. 4 appears to be wearing a striped shirt.
As respondent points out, all six subjects share the same general features. They are middle-aged Caucasian males. Appellant and four others have similar hairlines and no facial hair; the subject depicted in photograph No. 1 has a moustache and closely-trimmed goatee. All six have somewhat similar head shapes, hairlines, and jaw lines. In sum, all of the photographs are of White males, generally of the same age, complexion, and build, and generally resembling each other. Appellant’s photograph does not stand out and the identification procedure was sufficiently neutral. (See People v. Johnson, supra, 3 Cal.4th at p. 1217.)
Nevertheless, appellant contends the lineup was suggestive because only his photograph depicted a subject with blue eyes. As respondent notes, however, appellant actually has hazel-colored eyes that appeared to be blue to Mrs. Eagleson both during the robbery and in the photographic lineup. The PictureLink computer program generated photographs of individuals with hazel—not blue—eyes. All of those pictured in the lineup had hazel eyes. Although Mrs. Eagleson was told that appellant’s eyes were hazel, she testified she stood by her description of appellant’s eyes as blue.
In view of the foregoing facts and circumstances, we cannot say the photographic lineup was so impermissibly suggestive as to give rise to a likelihood of irreparable misidentification. (People v. Johnson, supra, 3 Cal.4th at p. 1215.) The trial court properly denied appellant’s motion to exclude eyewitness identification and reversal is not required.
II. Did the Trial Court Err in Imposing Consecutive Sentences on Counts 6 and 7?
Appellant was convicted of six counts as a result of the offenses that occurred at the Eagleson residence: Count 1, robbery of Mrs. Eagleson; count 3, burglary; counts 6 and 7, false imprisonment of Mrs. Eagleson and her son Joseph Eagleson; and counts 8 and 9, assault with a firearm against the same two victims. The trial court stayed sentence on counts 3 and 8, pursuant to section 654, but imposed consecutive sentences on the other four counts. Appellant contends this was error.
Though appellant’s brief is not a model of clarity, it appears he argues four different aspects of error. First, he claims the trial court “jumped the gun” in failing to examine whether consecutive sentencing was required under section 667, subdivision (c) and, instead, proceeding to consider the criteria listed in California Rules of Court, rule 4.425. Second, he argues that because the of Mrs. Eagleson (count 6) overlapped with the robbery (count 1), and the false imprisonment of Joseph Eagleson (count 7) overlapped with the assault against him (count 9), the trial court abused its discretion in choosing to sentence consecutively rather than concurrently on counts 6 and 7. Third, he argues alternatively that the trial court should have stayed sentence on counts 6 and 7 pursuant to section 654. Fourth and finally, he argues that trial counsel was ineffective in failing to object. We disagree with all four points.
Further references to rules are to the California Rules of Court.
A. Section 667, Subdivision (c)
Subdivision (c) of section 667 does mandate consecutive sentencing for each current offense “not committed on the same occasion, and not arising from the same set of operative facts ….” (§ 667, subd. (c)(6); see § 667, subd. (c)(7).) “‘By implication, consecutive sentences are not mandatory under’” these provisions for offenses that were “‘“committed on the same occasion” or “aris[e] from the same set of operative facts.”’” (People v. Deloza (1998) 18 Cal.4th 585, 591.)
There is, however, nothing in the record here to indicate that the trial court sentenced consecutively pursuant to either subdivision (c)(6) or (c)(7) of section 667. Instead, as revealed by the court’s comments at the sentencing, quoted below, it appears from the record that the court selected consecutive sentences based on criteria listed in rule 4.425. Thus, it appears that the court made a discretionary selection. And thus, it appears that if appellant is correct that the trial court “jumped the gun” in failing to recognize that consecutive sentencing was not required under section 667, subdivision (c), no harm to appellant occurred.
B. Rule 4.425
The trial court stated the reasons for its sentencing choices as follows:
“… Punishment is imposed on counts one, six, seven, nine and 11. The punishment on count three should be stayed pursuant and will be stayed pursuant to … Section 654 … in that it is transactionally related to the course of conduct charged in count one.
“Punishment on count eight should be stayed and will be stayed pursuant to … Section 654 in that it alleges assault with a firearm on the same victim noted in count one …. [¶] … [¶]
“Consecutive sentencing as to the counts six and seven is justified for the following reasons: One, the crimes involve separate acts of violence; two, the crime in count seven represents a separate victim.”
Rule 4.425 states in part:
“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;
“(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.”
Appellant contends the trial court erred in selecting consecutive sentencing because (1) it had already imposed consecutive sentences based on multiple victims in counts 1 (robbery of Mrs. Eagleson) and 9 (assault on Joseph Eagleson). Presumably, appellant means that count 6 should have been concurrent to count 1 and count 7 should have been concurrent to count 9.
Appellant also contends:
“The court also erred by not imposing concurrent sentences under the three criteria of rule 4.425(a). The objectives of counts 6 and 7 were not ‘predominantly independent’ of the robbery and assault with a firearm counts, as the victims were obviously detained to facilitate the ultimate objective of robbery. Second, the false imprisonment counts were not based on separate acts of violence, as counts 6 and 7 were based on the same acts as counts 8 and 9. And third, the false imprisonment counts were committed at the same house during a short period of time, which indicated a single period of aberrant behavior. Therefore, the court abused its discretion by not imposing concurrent sentences on both counts 6 and 7.”
The trial court must state the reasons for its sentence choice on the record at the time of sentencing. (§ 1170, subd. (c); People v. Coelho (2001) 89 Cal.App.4th 861, 886.) The provisions of rule 4.425 are merely criteria affecting the decision to impose consecutive rather than concurrent sentences. They are guidelines and not rigid rules that courts are bound to apply in every case. Acts of violence against different victims may be charged and punished separately even though they occur on the same occasion. When violent crimes against the same victim on one occasion have separate motives, consecutive sentencing is proper. (People v. Calderon (1993) 20 Cal.App.4th 82, 86-87.) Here, the trial court expressly cited separate acts of violence as a basis for its choice of consecutive sentences. As respondent points out, appellant robbed Mrs. Eagleson for monetary gain (count 1) and falsely imprisoned her (count 6) to facilitate his escape. Moreover, as respondent notes, appellant pointed a gun at Mrs. Eagleson’s son to terrorize him (count 9) and moved him from the pool room to prevent him from summoning help (count 7). Thus, appellant had separate intents and objectives for the two offenses, and the trial court did not err in imposing consecutive sentences.
C. Section 654
Section 654 states in relevant part:
“(a) 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.”
California law recognizes a multiple victim exception to section 654. Under that exception, even though a defendant entertains a single principal objective during an indivisible course of conduct, he or she may be convicted and punished for each crime of violence committed against a different victim. (People v. Le (2006) 136 Cal.App.4th 925, 931-932.) Thus, it was proper to sentence on both counts 6 and 7, rather than staying punishment on one of them
The purpose of section 654 is to ensure punishment is commensurate with a defendant’s culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) In determining the applicability of section 654, the court must consider whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of the section. This, in turn, “‘depends on the “intent and objective” of the actor.’ … A defendant may be punished only once for all offenses incident to a single objective, but where the defendant had more than one objective, ‘the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Retanan (2007) 154 Cal.App.4th 1219, 1229; see also In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
On appeal, the determination of whether the defendant harbored more than one intent and objective, under section 654, is a factual determination which should be affirmed if supported by substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
Thus, the first section 654 inquiry is whether appellant had one or more than one objective and intent in committing counts 1 and 6 against Mrs. Eagleson. (People v. Retanan, supra, 154 Cal.App.4th at p. 1229.) Appellant’s argument that count 6 (false imprisonment) “overlaps” with count 1 (robbery), constituting double punishment under section 654, is foreclosed by People v. Foster (1988) 201 Cal.App.3d 20. There, the defendant robbed a convenience store. After the clerk handed over the money, Foster forced the clerk and two other victims into the store cooler and blocked their exit. (Id. at p. 27.) He was convicted of robbery of the clerk and three counts of false imprisonment effected by violence. (Ibid.) The trial court imposed consecutive sentences on all counts. On appeal, he contended the false imprisonment of the three victims was incidental to the robbery and, therefore, section 654 required the stay of execution of sentences for the false imprisonment counts. (People v. Foster, supra, at p. 27.)
The court rejected Foster’s argument: “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.… Moreover, each false imprisonment count was punishable as a crime of violence against a separate individual.” (People v. Foster, supra, 201 Cal.App.3d at pp. 27-28.)
In this case, appellant’s false imprisonment of Mrs. Eagleson was driven by a separate intent and objective than the robbery. Although the robbery lasted more than 20 minutes, appellant did not tie up Mrs. Eagleson until after he had the money and jewelry and just before he fled. Thus, he robbed Mrs. Eagleson for monetary gain, falsely imprisoned her to facilitate his escape, and the false imprisonment was not “necessary or incidental to committing the robbery.” (People v. Foster, supra, 201 Cal.App.3d at pp. 27.) Therefore, the court’s imposition of sentence on count 6 consecutive to count 1 did not violate section 654.
The second section 654 inquiry is whether appellant had more than one intent and objective in committing false imprisonment (count 7) and assault with a firearm (count 9) against Joseph Eagleson. He did.
Assault with a firearm is an “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240; see 245, subd. (a)(1); People v. Maldonado (2005) 134 Cal.App.4th 627, 633-634.) In other words, an assault occurs “whenever ‘[t]he next movement would, at least to all appearance, complete the battery.”’” (People v. Williams (2001) 26 Cal.4th 779, 786.) On the other hand, felony false imprisonment is the unlawful violation of another’s personal liberty effected by violence, menace, fraud, or deceit. (§§ 236, 237; People v. Wardell (2008) 162 Cal.App.4th 1484, 1490.) To prove false imprisonment, the defendant must have intentionally and unlawfully restrained, confined, or detained an individual by violence or menace and made the other person stay or go somewhere against his or her will. (§§ 236, 237; CALCRIM No. 1240.)
There is substantial evidence supporting the trial court’s conclusion that the false imprisonment and assault with a firearm had separate intents and objectives. (People v. Saffle (1992) 4 Cal.App.4th 434, 438; People v. Osband (1996) 13 Cal.4th 622, 730.) After Mrs. Eagleson retrieved money for appellant, appellant asked if anyone else was present in the house. She said her son was in the pool room. Appellant left the living room and returned with Joseph Eagleson, pointing a gun to his back. Appellant’s assault of Joseph Eagleson was complete the moment he pointed the gun at him. (See People v. Williams, supra, 26 Cal.4th at p. 786.) Appellant’s intent in assaulting Mr. Eagleson was to terrorize him. The false imprisonment, on the other hand, did not occur until appellant forced Mr. Eagleson to move to the living room. (§§ 236, 237; CALCRIM No. 1240; People v. Wardell, supra, 162 Cal.App.4th at p. 1490.) Appellant moved Mr. Eagleson from the pool room to prevent him from calling for help.
Moreover, appellant’s assault of Joseph Eagleson was separate in time from the false imprisonment, allowing appellant to reflect on his crimes. (People v. Trotter (1992) 7 Cal.App.4th 363, 368 [each of defendant’s three trigger pulls, the first two 1-minute apart and the third a few seconds later, “were separated by periods of time during which reflection was possible,” and he had separate intents and objectives].) Thus, while appellant’s acts may have been part of one robbery, each act against Mr. Eagleson was committed pursuant to distinct intents and objectives. While appellant may have pursued the two objectives close in time, the objectives were nevertheless independent of each other. (In re Jose P., supra, 106 Cal.App.4th at p. 471.) Thus, imposing a sentence on count 7 consecutive to count 9 did not violate section 654.
D. Competence of Counsel
Lastly, appellant accuses defense counsel of incompetence in failing to object to the imposition of consecutive sentences on counts 6 and 7. We reject this contention because we have found no error to which defense counsel was required to object. Further, nothing in the record leads us to conclude that, had defense counsel requested concurrent sentences, there is a reasonable probability the request would have been granted. Thus, appellant has failed to show both incompetent representation and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Williams (1997) 16 Cal.4th 153, 214-215.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., HILL, J.