Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-061251
HULL, J.Defendant was convicted by a jury of two counts of robbery in concert (Pen Code, §§ 211, 213), and one count each of burglary (id., § 459), false imprisonment (id., § 236), and dissuading a witness (id., § 136.1, subd. (c)(1)). (Further undesignated section references are to the Penal Code.) The jury also found defendant personally used a firearm in connection with the robberies (§ 12022.53, subd. (b)) and was armed with a firearm in connection with the dissuading a witness and false imprisonment offenses (§ 12022, subd. (a)(1)).
Defendant was sentenced to an aggregate state prison term of 29 years 4 months as follows: On one of the robberies, he received the upper term of nine years, plus 10 years for the firearm enhancement. On the other robbery, he received a consecutive term of two years, plus three years four months for the firearm enhancement. For the false imprisonment, defendant received a consecutive term of eight months, plus four months for the firearm enhancement. On the dissuading a witness charge, he received a consecutive term of three years, plus one year for the firearm enhancement. Finally, a term of four years on the burglary count was stayed pursuant to section 654.
Defendant appeals, contending the trial court was also required to stay the term imposed on the false imprisonment charge. We disagree and affirm the judgment.
Facts and Proceedings
On the afternoon of May 23, 2006, Elijah Fejeran, Semisi Vavae, Desario Wilson and defendant drove to Granite Bay in Fejeran’s van for the purpose of committing a robbery. They parked the van in a residential neighborhood, defendant and Vavae got out and walked down the street to one of the homes, and the other two remained in the van. Defendant was armed with a handgun.
Two teenage boys, E.J. and A.J., lived at the home with their mother, and their mother’s cousin and aunt. E.J. and A.J. had just gotten home from school; there were no others in the house.
A.J. was in the kitchen getting something to eat when E.J. heard a knock at the door and went to answer it. E.J. opened the door and saw defendant standing there. Defendant asked for someone by a name E.J. did not recognize, and E.J. told him there was nobody there by that name. Defendant then pulled out a gun and pointed it at E.J. Defendant told Vavae, who was standing behind him, to watch E.J. while defendant went after E.J.’s brother.
Defendant walked into the kitchen and ordered A.J. to lie down on the floor. He then yelled for Vavae to bring E.J. into the kitchen. Vavae took E.J. into the kitchen and told him to lie down on the floor near his brother and put his hands over his head. E.J. complied. The boys were told not to get up.
Defendant gave Vavae the handgun and left him with the boys, while he walked through the house gathering up items to steal. At some point, defendant asked the boys where the money was kept, and A.J. directed him to a jar in the kitchen where their mother had money she was saving to buy them braces. The intruders found the jar, which contained approximately $7,000 in cash. Defendant also asked where their mother kept her jewelry, but the boys did not know.
About an hour and a half after defendant and Vavae departed the van, they called Fejeran and directed him to drive to the victim’s residence. Fejeran did so and backed the van up to the garage.
Defendant and Vavae took the boys into a bedroom, tied their hands behind their backs, and secured them to a dresser. They told the boys that if they told anyone or called the police, they would have their friends blow up the house. Defendant and Vavae then loaded items into the back of the van and departed. The boys heard the garage door close.
After the intruders departed, the boys were able to free themselves within 10 to 20 minutes. However, they did not call the police because of the threat to blow up their house. Instead, they went to a neighbor’s house and called their mother who, at the time, was on her way home. The victim’s mom called the police.
A search of the home revealed that the intruders had taken the cash jar, $50,000 worth of jewelry, a laptop computer, a video game station, a movie projector, an air gun, and an ornamental dagger. Some of these items were later recovered from a pawnshop, where they had been left by defendant and another man two days after the robbery. The dagger was found during a search of defendant’s home.
Defendant was charged with burglary, two counts of robbery in concert, false imprisonment, dissuading a witness, and receiving stolen property along with various enhancements. The receiving stolen property charge was later dismissed. Defendant was tried, convicted, and sentenced as previously indicated.
Discussion
Defendant’s sole contention on appeal is that the term imposed on the false imprisonment charge must be stayed pursuant to section 654.
Section 654 reads 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.” (§ 654, subd. (a).) The purpose of section 654 is to assure a defendant’s punishment is commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551.)
“[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.” (People v. Perez, supra, 23 Cal.3d at p. 551.) On the other hand, “if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment 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. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Whether a course of criminal conduct is divisible within the meaning of section 654 depends on the intent and objective of the actor. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) This is a question of fact for the trial court. (People v. Liu, supra, 46 Cal.App.4th at pp. 1135-1136.)
Here, the trial court made no express finding regarding whether defendant harbored multiple criminal objectives. However, such a finding may be implied from the court’s imposition of multiple, unstayed terms. “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.) We review the evidence in a light most favorable to the trial court’s determination and presume in support of that determination the existence of every fact the trier of fact could reasonably have deduced from the evidence. (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)
Defendant contends “tying up the robbery victims to prevent them from calling the police immediately so the robbers had time to carry away the stolen property to a place of temporary safety, was simply a means of accomplishing or facilitating the single objective of taking property from the victims by force or fear (i.e., committing a robbery).”
The People respond that sufficient evidence supports the trial court’s implied finding of multiple objectives. According to the People, defendant “had already effectuated his objective of robbery when he tied up the victims.” The People argue it was unnecessary to tie up the victims, since they had been fully cooperative and unresisting during the robbery.
In People v. Martinez (1980) 109 Cal.App.3d 851, the defendant was convicted of assault with intent to commit rape and false imprisonment. The defendant had assaulted the victim, dragged her under a bridge and, after desisting from his attempted rape, held her for a few moments in an effort to convince her not to report the matter to the police. (Id. at pp. 854, 858.) The Court of Appeal concluded multiple punishments under these circumstances were prohibited by section 654. (Id. at p. 858.)
In People v. Nguyen (1988) 204 Cal.App.3d 181 (Nguyen), the defendant and two accomplices robbed a store clerk. While the defendant remained at the store’s till, one of his accomplices took the clerk into a back room, robbed him, forced him to lie on the floor, and then shot him. The defendant was convicted and sentenced for both robbery and murder. (Id. at pp. 185, 190.) The Court of Appeal found substantial evidence to support the trial court’s finding of multiple criminal objectives. In response to the defendant’s argument that section 654 barred multiple punishment because the clerk had been shot to eliminate him as a witness or to facilitate escape, the court said: “[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.” (Id. at p. 191.)
In People v. Foster (1988) 201 Cal.App.3d 20 (Foster), the court upheld multiple punishments for robbery and false imprisonment where the defendant and an accomplice robbed a convenience store and locked the clerks and a customer in the store’s cooler. (Id. at pp. 23, 28.) The court rejected the defendant’s claim that the false imprisonment was merely incidental to the robbery, explaining: “The imprisonment of the victims occurred after the robbers had obtained all of the money, and therefore was not necessary or incidental to committing the robbery. Locking the victims in the store cooler was potentially dangerous to their safety and health. It is analogous to a needless or vicious assault committed after a robbery, which has long been held separately punishable and distinguishable from an assault which is merely incidental to robbery.” (Id. at pp. 27-28.)
The People contend defendant here had two alternate objectives for tying up the victims: “First, the victims were tied up to give [defendant] and his accomplices time to escape before [the victims] could call the police.” “Second, the victims were tied up to scare them from ever reporting the incident to police and also in order to avoid [defendant] and his accomplices from ever being prosecuted.”
Regarding the second purported objective, this is the same objective associated with defendant’s conviction for dissuading a witness. Inasmuch as defendant has been separately punished for that offense, additional punishment based on this objective would violate section 654.
As for the objective of giving the perpetrators time to escape, this alone would not suffice to establish a separate intent and objective from the robbery. “In this state, it is settled that a robbery is not completed at the moment the robber obtains possession of the stolen property and that the crime of robbery includes the element of asportation, the robber’s escape with the loot being considered as important in the commission of the crime as gaining possession of the property.” (People v. Anderson (1966) 64 Cal.2d 633, 638.) Hence, “[a] theft or robbery remains in progress until the perpetrator has reached a place of temporary safety.” (People v. Flynn (2000) 77 Cal.App.4th 766, 772.)
However, as in Nguyen and Foster, a defendant’s acts intended to facilitate their escape may cross the line into something that was neither necessary nor incidental to the robbery. The act of tying up the victims created a further risk to them similar to that experienced by the victims in Foster. It was no more necessary to tie up the victims here to give defendant and the others time to escape than it was to lock the Foster victims in the cooler.
Under the circumstances presented here, we conclude there is substantial evidence to support the trial court’s implicit finding that defendant’s intent and objective in committing the false imprisonment was distinct from his intent and objective in committing the robbery. Section 654 therefore does not prohibit multiple punishments.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P. J. ROBIE, J.