P. v. Vasquez
Filed 1/18/13 P. v. Vasquez
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
EDGAR VASQUEZ,
Defendant
and Appellant.
E054991
(Super.Ct.Nos. RIF1101662 & RIF1101838)
OPINION
APPEAL from the Superior Court of
County. Gordon R.
Burkhart, Judge. (Retired judge of the
Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as to case No. RIF1101662. Affirmed in part, reversed in part with directions
as to case No. RIF1101838.
John L. Dodd, 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, Lilia E. Garcia, and Joy Utomi, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and
appellant Edgar Vasquez appeals his conviction on 10 counts arising from the
business. He contends that Penal Code
sentences on a number of counts. He also
contends that a conviction for false imprisonment as to one victim must be
reversed because as to that victim, he was also convicted of kidnapping, and
included lesser offense.
The Attorney
General agrees with defendant to a great extent. However, she contends that section 654 does
not apply to the kidnapping count or to one count of false imprisonment
pertaining to a different victim.
We agree with
defendant, except that we conclude that section 654 does not apply to the
kidnapping count.
PROCEDURAL HISTORY
Defendant was
charged with three counts each of robbery (§ 211; counts
1-3), false imprisonment (§ 236; counts 5-7) and assault with a
firearm (§ 245, subd. (a)(2); counts 8-10). Defendant was also charged with one count of
kidnapping (§ 207, subd. (a); count 4).
Each count alleged personal use of a firearm. The jury found defendant guilty as charged on
all counts and (apparently) found the firearm use allegations true.
term of 47 years.
name="_ftnref3" title="">[3] Defendant filed a timely
notice of appeal.
name="_ftnref4" title="">[4]
FACTS
Maria Ortega owned
a business in Perris called “Cash Money Services,†which sold cell phones, sent
money, paid bills, and provided other services.
When she arrived at her shop around 7:30 a.m. on February 18, 2011, she noticed that she was being watched by a man wearing a hooded
sweater that covered his face. His hands
were in his pockets. He asked her if she
was about to open. She said that she
was. At that point, a customer she knew,
named Francisco Hernandez, came up to her and said he wanted to buy a
phone. She and Hernandez went into the
shop.
Defendant and
another man, also wearing a hooded shirt or sweater, entered the shop. Defendant pointed a gun at Ortega and
demanded money. One of the two men took
Ortega to the back room
name="_ftnref5" title="">[5] to open the safe. Finding no money in the safe, the man took
Ortega back to the cash register and took the money which was in the register,
about $200. While at the register,
Ortega pushed the silent alarm button.
About the time
Ortega got to the register, a man from a neighboring business, Francisco Doe, came
into the store. Defendant pointed his
gun at Doe. He knocked him down and then
searched him. Hernandez was also ordered
to get down on the floor. Defendant took
Hernandez’s fanny pack. Ortega did not
see if anything was taken from Doe, except possibly his cell phone. The accomplice then asked Ortega where her
purse was and went into the back room to retrieve it. The men took her purse, which contained $20
and Ortega’s identification and credit cards, and left the store. Ortega then called 911.
On March 11, 2011, defendant was arrested in an unrelated matter. Ortega identified him from a photo lineup.
LEGAL ANALYSIS
1.
DEFENDANT’S CONVICTION ON COUNT 7 MUST
BE REVERSED
In count 4,
defendant was charged with kidnapping Francisco Doe. In count 7, defendant was charged with
falsely imprisoning Francisco Doe.
Defendant contends that because false imprisonment is a necessarily
included lesser offense of kidnapping, the conviction on count 7 must be
reversed. The Attorney General agrees,
as do we.
A defendant may not
be convicted of both a greater offense and a necessarily included lesser
offense. (People v. Medina (2007) 41 Cal.4th 685, 700.) False imprisonment is a necessarily included
lesser offense of kidnapping. (
52, 65.) Accordingly, defendant’s
conviction on count 7 must be vacated. (
Under the same
heading, defendant contends that his conviction on count 7 must be reversed
because the trial court failed to instruct the jury that count 7 was a lesser
included offense of count 4 and that defendant could not be convicted on both
counts. Because we will reverse the
conviction on count 7 as stated above, we need not address this contention.
2.
SECTION 654 REQUIRES THAT SENTENCE ON
SOME COUNTS MUST BE STAYED
Section 654,
subdivision (a) provides: “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.†Judicial interpretation holds that section
654 also bars multiple punishment for separate offenses which are committed
during an indivisible course of conduct, i.e., with a single criminal intent or
objective. “‘Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act
within the meaning of section 654 depends on the intent and objective of
the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one.’
[Citation.]†(
1208.)
Here, defendant was
convicted of multiple offenses against each of the three victims. He contends that because his objective was
robbery, and because the commission of the remaining offenses was incidental to
and for the purpose of achieving that objective, he can be sentenced only for
the robberies of Ortega and Hernandez and only for either kidnapping or robbery
as to the third victim, Doe.
We accept a trial
court’s finding that the defendant harbored a separate intent and objective for
each offense, if the court’s findings are supported by substantial evidence. (People
v. Williams (2009) 170 Cal.App.4th 587, 645 [Fourth Dist., Div. Two].) Here, the trial court based its conclusion
that section 654 did not apply solely on the fact that there were multiple
victims. It is undisputed that section
654 does not bar multiple punishment for an act of violence against multiple
victims. (People v. Latimer, supra,
5 Cal.4th at p. 1212.) However, the
trial court did not address defendant’s argument that section 654 applies to
the multiple crimes committed against each
victim and made no factual findings pertinent to that contention. Nevertheless, when a court imposes sentence
rather than staying it, it is normally deemed an implicit finding that the
defendant harbored more than one objective.
(See People v. Tarris (2009)
180 Cal.App.4th 612, 626 [Fourth Dist., Div. Two].) Where the facts are in dispute, we uphold the
trial court’s implicit finding if it is supported by substantial evidence,
viewing the evidence in the light most favorable to the judgment. (Id.
at pp. 626-627.) However, the
applicability of the statute to conceded facts is a question of law. (Id. at
p. 627.)
10)
The Attorney
General concedes that defendant and his accomplice committed assault with a
firearm as to each victim solely to facilitate the objective of robbery. Accordingly, she agrees that imposition of
sentence on counts 8, 9 and 10 must be stayed.
We agree as
well. A separate sentence may not be
imposed for a crime which is committed solely as the means of accomplishing or
facilitating the commission of another crime.
(People v. Latimer,
1216-1217.) Accordingly, where the
defendant uses a weapon only to facilitate the robbery, section 654 bars
multiple punishment. (
637.) In contrast, where the defendant
assaults the robbery victim only after having achieved the objective of
obtaining the victim’s property, the acts may be deemed to have been committed
in furtherance of multiple objectives, and multiple punishment is
permissible. (People v. Nguyen (1988) 204 Cal.App.3d 181, 191, implicitly
disapproved on another ground in People
v. King (1993) 5 Cal.4th 59, 79, as recognized in People v. Perry (2007) 154 Cal.App.4th 1521, 1527.) Here, it is undisputed that the assaults were
committed solely to facilitate the ultimate objective of robbery.
Similarly, false
imprisonment is not separately punishable if it is done solely to facilitate
the robbery. (See People v. Foster (1988) 201 Cal.App.3d 20, 27-28.) The Attorney General concedes that defendant
held the two male victims at gunpoint solely to facilitate the robbery, both by
preventing their escape from the shop and by preventing their resistance to the
taking of their money. She agrees that
counts 6 and 7 are subject to section 654.
(We have previously determined that the conviction on count 7, false
imprisonment of victim Doe, must be reversed.)
As to Ortega,
however, the Attorney General contends that section 654 does not bar separate
sentences for robbery and false imprisonment.
She contends that as to Ortega, the false imprisonment consisted not of
detaining her in the store at gunpoint but of forcing her to accompany one of
the robbers to the back room to retrieve her purse. She contends that “sequestering†Ortega in
the back room, out of sight of anyone looking in the front window of the store,
increased the risk of harm to Ortega and therefore rendered section 654
inapplicable. The cases she cites,
however, do not support her position.
In
convenience store. After having obtained
all of the money, the defendant locked the victims in the store’s cooler,
apparently to facilitate his escape and to prevent their calling the
police. (Id. at p. 23.) Although the
court noted that locking the victims
in the cooler posed a risk to their safety, the court actually held that the
false imprisonment was separately punishable because it was not incidental to
committing the robbery, which had already been accomplished. (Id.
at pp. 27-28.)
Similarly, in
murder of a store robbery victim which occurred after the robbers had obtained
the victims’ property was separately punishable because it did not facilitate
the robbery, but was merely gratuitous.
(Id. at pp. 189-193.)
Finally, in
905, the court held that two counts of criminal threats (§ 422,
subd. (a)) could be punished separately because although both took place on the
same day, they were separated by two hours.
One was made in person to the defendant’s former girlfriend and her
current boyfriend, and the second was made to the former girlfriend alone by
telephone. (Felix, at p. 909.) In
response to the defendant’s argument that both threats were part of a pattern
of anger against his former girlfriend, the court held that because the acts
were separated in time and because the defendant had time to reflect between
the two acts, the trial court could properly conclude that the defendant
intended the second threat to cause “new emotional harm†to his former
girlfriend. (Id. at pp. 915-916.) This
situation bears little, if any, similarity to an ongoing robbery in which the
robber detains a victim within a structure and causes the victim to move around
in order to obtain money from different locations within the structure. We see no factual basis for concluding that
moving Ortega to the back room in order to obtain whatever money was in her
purse was in any sense divisible, either in time or in intent and objective,
from defendant’s objective of robbing the individuals in the store of any money
they possessed. Accordingly, section 654
bars imposition of sentence on count 5 as well.
& 4)
Finally, the
Attorney General contends that section 654 does not bar imposition of separate
sentences for the kidnapping and robbery of Doe because the evidence showed
that defendant had different objectives.
She contends that defendant was already in the process of robbing Ortega
and Hernandez when he saw Doe standing outside the store. Defendant then opened the door and pulled Doe
inside to prevent him from calling the police.
Although Ortega testified that Doe walked into the store on his own and
that defendant then grabbed him and made him get down on the floor, the store’s
surveillance video evidently showed that Doe opened the door and that defendant
then grabbed him and forced him into the store.
Defendant then pushed Doe to the floor and robbed him of his
wallet. This evidence is ambiguous as to
defendant’s intent with respect to Doe:
His intent might simply have been to rob him, or it might have been, as
the Attorney General contends, to prevent him from calling the police before he
and his accomplice could complete the robbery and escape. Viewed in the light most favorable to the
judgment, the evidence does support the inference that defendant forced Doe
into the store to prevent him from calling the police and then developed the
intent to rob him as an afterthought.
Accordingly, section 654 does not bar imposition of a separate sentence
on count 4.
Section 654 bars
imposition of unstayed sentences on counts 5, 6, 8, 9 and 10, including any
associated enhancements and/or fines or assessments.
DISPOSITION
The judgment in
case No. RIF1101662 is affirmed.
As to case No.
RIF1101838, the conviction on count 7 is reversed. The judgment is affirmed as to the
convictions on the remaining counts and as to true findings on any enhancements
associated with the remaining counts.
The cause is
remanded for further proceedings, as follows:
Within 30 days
after finality of this opinion, the superior court shall hold a new sentencing
hearing. Upon resentencing, the court
shall stay imposition of sentence on counts 5, 6, 8, 9 and 10, including any
associated enhancements and/or fines or assessments. The court shall dismiss count 7. The court shall state on the record the
disposition of all enhancements alleged in the information as to the remaining
counts. The court shall provide a copy
of the minutes of the new sentencing hearing and an amended abstract of
judgment to the parties and to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All statutory citations refer
to the Penal Code.
name="_ftn2" title=""> [2] We say “apparently†because
the record contains the finding forms only as to counts 1 through 7, and the
sentencing minutes use designators for the enhancements which are not explained
(“D2,†“B1†& “UFâ€).
