P. v Ramirez
Filed 3/5/13
P. v Ramirez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
ISRAEL
RAMIREZ,
Defendant and
Appellant.
G047015
(Super. Ct.
No. 11CF2299)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Dan McNerney, Judge.
Affirmed as modified.
John N. Aquilina, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Sharon L. Rhodes, Deputy Attorney General,
for Plaintiff and Respondent.
* * *
THE
COURT:
Defendant
Israel Ramirez appeals his sentence following his conviction by a jury on charges
of second-degree robbery, use of a deadly
weapon, and assault with a deadly weapon.
His
sole argument on appeal, which the Attorney General concedes, is that the trial
court violated his constitutional right
to due process when it improperly imposed a six-year sentence for assault
with a deadly weapon concurrent with a robbery count, because both acts
constituted an indivisible course of conduct with a single objective. Defendant contends that the court should have
stayed the six-year sentence imposed for the deadly weapon assault count
pursuant to Penal Code section 654.
We
agree with defendant that the sentence on this count should have been stayed
pursuant to section 654, and we affirm the judgment as modified.
I
Facts and Proceedings
Defendant
was convicted by a jury as to count 1 of second degree robbery and personal use
of a deadly weapon. As to count 2, he
was convicted of assault with a deadly weapon.
As to count 1, he was sentenced to seven years, or the midterm of three
years which was doubled under the “Three Strikes†law, plus a consecutive
one-year term for the personal use enhancement.
As to count 2, assault with a deadly weapon, he was sentenced to a
concurrent six-year term. He was also
sentenced to a consecutive five-year term for a prior serious felony, plus an
additional one year for a prior prison enhancement, for a total term of 13
years in state prison.
of the Case
On
August 17, 2011, Lemont Larkins (hereinafter Larkins) parked his vehicle in the
small parking lot located in front of the A&S Market in Santa Ana, and
entered the store to purchase $25 worth of lottery tickets. He purchased his tickets and left the store
holding a $50 bill in his hand. As he
walked towards his car, he saw a man on a bicycle blocking his driver’s side
door. At the same time, defendant walked
up to him and snatched the $50 bill out of his hand.
Larkins
asked defendant for his money back. In
response, defendant struck Larkins in his right eye, and then almost
immediately proceeded to pull out a sharp object from his pocket that was
described by Larkins as being either a screwdriver or a knife. Defendant began jabbing the weapon at Larkins
to stab him. Larkins tried to hold the
defendant back to prevent himself from being stabbed.
While
defendant was jabbing his weapon at Larkins, the man who was on the bicycle
rode away. Then, three other men jumped
out of two separate vehicles and rushed at Larkins in an attempt to “bum rushâ€
or “jump†him to get him down on the ground.
Shortly thereafter, defendant and the other three assailants jumped in
two separate cars and drove away.
Larkins
called the police, and defendant was subsequently apprehended.
II
Discussion
Stayed Pursuant to Section 654
Defendant
contends, and the Attorney General concedes, that the six-year term imposed for
count 2 should have been stayed pursuant to section 654 rather than run
concurrently, because section 654 prohibits punishment for separate crimes
arising out of an indivisible course of conduct sharing the same intent and
objective. We agree.
Section
654 precludes multiple punishments for a single act or indivisible course of
conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) In reviewing a trial court’s sentencing
decision, we give deference to the trial court’s factual findings. “‘The
question of whether the acts of which defendant has been convicted constitute
an indivisible course of conduct is primarily a factual determination, made by
the trial court on the basis of its findings concerning the defendant’s intent
and objective in committing the acts.
This determination will not be reversed on appeal unless unsupported by
the evidence presented at trial.’
[Citation.]†(
1651, 1657.)
To
determine whether a course of conduct is indivisible, courts consider the
intent and objective of the defendant.
If all of the criminal acts were incident to a single criminal
objective, the court may impose punishment only as to one of the offenses
committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-637.) On the other hand, if the evidence discloses
a defendant entertained multiple criminal objectives independent of and not
merely incidental to each other, he may be punished for the independent
violations committed in pursuit of each objective even though the violations
were parts of an otherwise indivisible course of conduct. (People
v. Perez (1979) 23 Cal.3d 545, 551-552; People
v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
Here,
the assault was an indivisible part of the robbery. Defendant snatched a $50 bill out of Larkins’
hand. When Larkins asked for his money
back, defendant responded by immediately punching him in the face and then
pulling out a sharp object which was either a knife or a screwdriver. Defendant jabbed the weapon at Larkins to
perpetrate the robbery, or to prevent him from trying to get his money
back. When an assault is committed as
the means of perpetrating a robbery, section 654 requires the sentence for the
assault to be stayed. (
164, 171.)
Accordingly,
we do so here.
III
Disposition
The judgment is modified
to reflect that the sentence imposed as to count 2 is stayed pursuant to
section 654. As modified the judgment is
affirmed. The trial court is directed to
send a corrected abstract of judgment to the
J., and Thompson, J.
name="_ftn2" title="">[1] All statutory references are to the
Penal Code unless otherwise stated.
