Filed 1/6/14 P. v. Anderson CA5
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
AMBER VIRGINIA
ANDERSON,
Defendant and Appellant.
F064733
(Super. Ct. No. F11904013)
THE PEOPLE,
Plaintiff and Respondent,
v.
ISAAC VANDRELL
BROWN,
Defendant and Appellant.
F064786
(Super. Ct. No. F11904013)
Fresno County
APPEAL
from a judgment of the Superior Court of
Fresno County. Arlan L. Harrell,
Judge.
Marilyn
G. Burkhardt, under appointment by the Court
of Appeal, for Amber Virginia Anderson, Defendant and Appellant.
Michael
B. McPartland, under appointment by the Court of Appeal, for Isaac Vandrell
Brown, Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Stephen G. Herndon and Kevin L. Quade, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendants
Amber Virginia Anderson (Anderson) and Isaac Vandrell Brown (Brown) stand
convicted of multiple offenses arising from a crime spree they allegedly perpetrated
in the summer of 2011.
name="_ftnref1" title="">[1] They were accused and
convicted of robbing multiple victims over a span of several days.
The only
substantive dispute
name="_ftnref2" title="">[2] between the parties on appeal relates to whether the sentencing
court violated Penal Code
name="_ftnref3" title="">[3] section 654 in imposing prison terms on two firearm enhancements. We conclude the court did not violate section
654.
In accordance
with two concessions offered by the Attorney
General, we order modifications to the abstract of judgment and to Anderson’s
sentence on count 6. We otherwise
affirm.
BACKGROUND
Case No. F064733
A
jury convicted appellant Anderson of two counts of second degree robbery
(counts 4 and 8; § 211); two counts of assault with a firearm (counts 5
and 9; § 245, subd. (a)(2)); one count of dissuading a witness from
reporting a crime (count 6; § 136.1, subd. (b)(1)), and one count of
receiving a stolen vehicle (count 11; § 496d, subd. (a)). The jury also found the following
enhancements true: on count 8, Anderson
personally used a firearm within the meaning of section 12022.53, subdivision (b);
on count 9, Anderson personally used a firearm within the meaning of section
12022.5, subdivision (a)(1); on counts 4 through 6 and 11, a
firearm within the meaning of section 12022, subdivision (a)(1).
The court
imposed an aggregate prison term of 20 years 4 months. The sentence included a term of four years on
count 6.
Case
No. F064786
The
same jury convicted appellant Isaac Vandrell Brown (Brown) of three counts of
second-degree robbery (counts 1, 4 and 8; § 211); two counts of being a
felon in possession of a firearm (counts 2 and 7; § 12021, subd. (a)(1);
one count of making a criminal threat (count 3; § 422); two counts of
assault with a firearm (count 5 and 9; § 245, subd. (a)(2)); one
count of dissuading a witness from reporting a crime (count 6; § 136.1,
subd. (b)(1)); two counts of unlawfully taking a vehicle (counts 10 and
12; Veh. Code, § 10851, subd. (a)); and two counts of receiving a
stolen vehicle (counts 11 and 13; §496d, subd. (a)). The jury could not reach a verdict on an
additional count of being a felon in possession of a firearm (count 14; § 12021,
subd. (a)(1)). The jury also found
the following enhancements
true: on counts 1 and 4, Brown used a
firearm within the meaning of section 12022.53, subdivision (b); on counts 3, 5,
and 6, Brown used a firearm within the meaning of section 12022.5, subdivision (a)(1);
as to counts 7, 8, and 11, a principal used a firearm within the meaning of
section 12022, subdivision (a)(1); Brown had suffered a prior conviction for
receiving a stolen vehicle within the meaning of section 666.5. The jury was unable to reach a finding on two
additional weapons enhancements on counts 12 and 13. (§ 12022.5, subd. (a)(1).) The court declared a mistrial as to these two
enhancements and as to count 14; the prosecutor subsequently dismissed all
three.
The
court imposed an aggregate prison term of 29 years.
FACTS
On the afternoon of July 4, 2011, Lourdes
Ventura (Ventura) was returning home from work.
Alone, Ventura walked towards her apartment. She observed a man kicking her door. Ventura approached the man and asked why he
was kicking her door. In court, Ventura
identified the man as defendant Brown.
Brown
pulled out a gun and pointed it at Ventura’s forehead. He told her to “not say nothing [
Ventura called 9-1-1 on her cell phone. Brown told Ventura hang up the “f**king†phone,
or he would kill her. Ventura did not comply,
and Brown grabbed the phone and disconnected the call.
Brown continued
to kick the door to the apartment. Brown
asked Ventura for the keys. She
responded that she did not have the keys.
A woman exited a
nearby Jeep and approached Ventura.
Ventura identified the woman at trial as defendant Anderson. Anderson said, “ ‘Give me your bag,
B*tch’ †and snatched Ventura’s lunch bag from her shoulder. Anderson told Ventura that if she screamed,
they would shoot her.
Brown and
Anderson got into the Jeep. Brown told
Ventura not to scream or say anything, otherwise he would return and shoot
her. Brown and Anderson then left in the
vehicle, while Anderson still had Ventura’s lunch bag.
Later, Ventura
met with a police detective and positively identified Brown and Anderson in
photographic lineups.
The Ventura
incident gave rise to the robbery charge against each defendant in count 4 and
the dissuasion charge against each defendant in count 6.
DISCUSSION
I.
THE TRIAL COURT
DID NOT VIOLATE SECTION 654
Each defendant
was charged with, and convicted of, one count of robbery (count 4) and one
count of dissuading a witness from reporting a crime (count 6) in connection
with the assault on Ventura. The jury
found weapons enhancements as to both counts true,
enhancements. Each defendant contends
this was error under section 654. They
contend that both firearm enhancements were based on a single physical act: Brown’s use of a firearm during the crimes against
Ventura. The Attorney General argues
that section 654 does not apply and was not violated.
Section 654,
subdivision (a) states, in 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.…â€
This provision
prohibits multiple punishments for: (1)
a single act; (2) a single omission; or (3) a single indivisible course of
conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.)
All
three parties cite People v. Ahmed (2011)
53 Cal.4th 156 (Ahmed) in their
discussion of this issue. But, “[i]n
how section 654 applies to the imposition of multiple enhancements for a single
crime.†(People v. Calderon (2013) 214 Cal.App.4th 656, 662, original
italics, fn. omitted.) Here, we are
dealing with multiple enhancements for multiple, separate crimes (i.e., robbery
and dissuasion). The analysis is
different when considering two enhancements attached to different underlying
crimes.
“[S]eparate
enhancements – even under the same statute – may be imposed for each conviction
arising out of a separate criminal act.
[Citations.]†(
121, 130-131 (Wooten).) “So long as the conduct giving rise to the
convictions of separate substantive offenses … arises from separate … acts,
neither section 654 nor Ahmed,
staying of the [punishment on the] attached enhancements.†(Wooten,
supra, 214 Cal.App.4th at p. 131.)
Here, the
dissuasion and robbery convictions arise from separate criminal acts.
from the physical act of taking Ventura’s bag from her person by means of force
or fear (see § 211), while the dissuasion conviction arose from the physical
act of smashing Ventura’s cell phone to prevent her from reporting a crime.
Because these are separate acts, the
supra, 213 Cal.App.4th at pp. 130-131.)
Section 654 does not require punishment
on either enhancement be stayed. (
II.
WE MODIFY
ANDERSON’S SENTENCE ON COUNT 6
Anderson
contends the court erred in sentencing her to four years on count 6, rather
than three years. Respondent concedes
this issue. We agree, and accept the
concession.
Under section
1170.15, the “subordinate term†for an applicable dissuasion conviction “
Thus, when the one-year enhancement under section 12022, subdivision (a)(1)
is added, the sentence on count 6 should have been three years, not four.
We order Anderson’s
sentence on count 6 modified to reflect a sentence of three years. (§ 1260.)
III.
THE ABSTRACT OF
JUDGMENT SHOULD BE AMENDED
The parties
concur that the abstract of judgment should be amended. We agree and order the abstract of judgment
modified to separately list the base term, enhancements and enhancement terms
for counts 4, 8, and 11 for defendant Brown and counts 4 and 11 for defendant
Anderson.
DISPOSITION
Anderson’s
prison sentence on count 6 is modified from four years to three years. The matter is remanded to the trial
and enhancement terms as to both defendants, and (2) reflect a modified prison
term of three years on count 6 as to defendant Anderson only. The court is directed to transmit certified
copies of the amended abstract to all appropriate parties and entities. In all other respects, the judgment is
affirmed.
_____________________
Poochigian, J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Detjen, J.
defendant Brown’s appeal is our case number F064786. On our own motion, this court consolidated
the two appeals.
General.
