P. v. Ceren
Filed 5/7/08 P. v. Ceren CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. JAIME CEREN et al., Defendants and Appellants. | B198117 (Los Angeles County Super. Ct. No. YA065277) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Vincent Okamoto, Judge. Abstract of judgment ordered corrected and judgment affirmed.
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant Jaime Ceren.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Rene Soriano.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
______________
Defendants Jaime Ceren (Ceren) and Rene Soriano (Soriano) appeal from a judgment entered after a jury convicted them and their codefendant Wilber Rodriguez (Rodriguez)[1]of count one, second degree robbery of victim Jorge Paraza (Pen. Code, 211)[2], and count two, assault by means likely to produce great bodily injury against victim Jorge Paraza ( 245, subd. (a)(1)).[3] The jury found true as to both defendants that as to counts one and two a principal in the offense was armed. ( 12022, subd. (a)(1).) The jury found not true that Soriano personally inflicted great bodily injury with respect to counts one and two. ( 12022.7, subd. (a).)
Ceren was sentenced to five years in state prison, which consisted of: (1) the midterm of three years as to count one, plus one year for the firearm enhancement, and (2) one year (one-third the midterm) as to count two, with the firearm enhancement being stayed. Ceren was awarded 397 days of custody credit, which consisted of 265 days of actual custody plus 132 days of conduct credit. Ceren was ordered to pay a $200 restitution fine ( 1202.4, subd. (b)) and a suspended $200 parole revocation fine. (1202.45.) Soriano received an identical sentence.
CONTENTIONS
Ceren and Soriano contend that the trial court violated section 654 by imposing consecutive sentences based on a robbery and an assault committed to facilitate the robbery. Soriano also urges that the abstract of judgment must be amended to reflect the proper form of the assault conviction. Both join in the arguments advanced by the other.
FACTS AND PROCEDURAL HISTORY
On June 18, 2006, at 10:30 p.m., Jorge Paraza (Paraza) was working as a security guard assigned by his company to a massage parlor in Inglewood. Paraza, who was seated at the buildings entrance, wore a security guard uniform and was armed with a .38-caliber gun. A young woman, identified later as a friend of the defendants and Rodriguez, walked up and asked if the massage parlor was open. When Paraza stood up, Ceren, Soriano, and Rodriguez approached him from behind. Rodriguez held a gun and warned Paraza not to move or he would shoot him. Rodriguez asked Paraza if he had a gun and Paraza replied that he did not. Rodriguez searched Paraza and took his gun away from him. Paraza offered no resistance because he was held at gunpoint. Paraza sat down in his chair.
Soriano began punching Paraza in the face. Meanwhile, Rodriguez continued to point his gun at Paraza. Soriano knocked Paraza off the chair and to the ground, grabbed one of his hands and ordered Ceren to grab Parazas other hand. Soriano punched Paraza in the mouth, breaking his teeth. Ceren and Rodriguez began kicking Paraza. Soriano grabbed Parazas head and hit it against the ground.
At some point, someone took Parazas baton and hat, but Paraza was so bloodied that he could not see who took the items. Rodriguez handed Parazas gun to Ceren. Ceren and Rodriguez then went upstairs to the massage parlor while Soriano remained downstairs with Paraza.
Ceren and Rodriguez came back down. Inglewood Police Officer Paul Devlin arrived in response to a radio call. He ordered the three men to stop and lie on the ground. Soriano immediately lay down on the ground, but Ceren tossed a gun over a fence. Soriano was apprehended with Parazas hat in his possession. Paraza sustained a broken nose and broken teeth. He suffered vision impairment after the assault.
DISCUSSION
I. The trial court properly imposed consecutive sentences for the robbery and assault convictions
Ceren and Soriano contend that the robbery of Paraza was an indivisible part of the larger robbery of the massage parlor, and therefore the trial court improperly imposed consecutive sentences for the robbery and assault convictions. Ceren alternatively urges that some of the items were taken from Paraza only after he was beaten and disabled, and therefore the assault was indivisible from the robbery of Paraza. We disagree.
Section 654 provides that [a]n 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 protection of section 654 has been extended to cases where a single act or omission has occurred, or where there are several offenses committed during a course of conduct deemed to be indivisible in time. (People v. Le (2006) 136 Cal.App.4th 925, 931-932.) It is defendants intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] (People v.Harrison (1989) 48 Cal.3d 321, 335.) The defendant may be found to have harbored a single intent if the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, resultingin the defendant being punished only once. (Ibid.) If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (Ibid.) Whether the facts reveal a single objective is a factual matter; the meaning of section 654 is a legal matter. (People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.) A trial courts 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. [Citation.] (People v.Blake (1998) 68 Cal.App.4th 509, 512.)
If the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v.Green (1996) 50 Cal.App.4th 1076, 1084-1085.)
Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ( 211.) Section 654 does not preclude sentencing where the assault is not a means of perpetrating the robbery but is an act that follows after the robbery. (Neal v. State of California (1960) 55 Cal.2d 11, 19-20). That is, section 654 does not apply where the defendant has essentially completed a robbery prior to committing an assault. (People v. Coleman (1989) 48 Cal.3d 112, 162-163 [section 654 does not bar separate punishment where defendant robbed victim, then forced her to lie on the floor and stabbed her after murdering second victim].)
In People v. Nguyen (1988) 204 Cal.App.3d 181, 193 (Nguyen), disapproved on other grounds as stated in Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 458, an accomplicetook a store clerk into a rear bathroom, removed money and a passport from his pockets, and forced him to lie down on the floor. The defendant remained in the front of the store, opened the cash register, and shouted a Vietnamese battle phrase used when someone was to be killed. The accomplice then kicked the clerk in the ribs and shot him in the back. The court held that the trial courts implied finding of divisibility was supported by substantial evidence because the shooting of the clerk was an act of gratuitous violence against a helpless and unresisting victim, which has traditionally been viewed as not incidental to robbery for the purposes of section 654. (Nguyen, supra, 204 Cal.App.3d at p. 190, citing People v. Cardenas (1982) 31 Cal.3d 897 [robber shot one victim in the back for no apparent reason while another victim opened safe]; People v. Massie (1967) 66 Cal.2d 899 [robber shot victim for looking at him strangely]; In re Chapman (1954) 43 Cal.2d 385, 387 [assault following robbery]; In re Jesse F.(1982) 137 Cal.App.3d 164 [victim assaulted after robbery while attempting to escape from assailants]; People v. Williamson (1979) 90 Cal.App.3d 164 [victims assaulted after money already taken and gun put away]; People v. Hopkins (1975) 44 Cal.App.3d 669 [victim struck after she was tied up]; People v. Johnson (1969) 270 Cal.App.2d 204 [robber gratuitously fired gun at victim during flight from scene]; see also People v. Sandoval (1994) 30 Cal.App.4th 1288, 1295-1296 [attempted robbery distinct from attempted murder after victim refused to comply with defendants demands and defendant then shot victim].)
The evidence supports the implied finding that Ceren and Soriano harbored different intents in their confrontation with Paraza. Rodriguez accosted Paraza at gunpoint and asked Paraza if he had a gun. After Paraza denied having a gun, Rodriguez searched him and removed his gun. Paraza sat back down in his chair, surrounded by three men, at least two of whom were armed. He never offered any resistance. The men had no need to further disable Paraza in order to grab his hat and baton. Therefore, the severe beating that followed was gratuitous and did not further the robbery. Rather, the beating began after Rodriguez found the gun and removed it. A fact finder could reasonably infer that the men became angry upon finding the gun and exacted revenge by beating him.
We are not persuaded by Cerens contention that he and his companions had the single intent to rob the massage parlor upstairs, and that the robbery of Paraza was an indivisible part of the larger robbery of the massage parlor. First, the robbery charges based on the robbery of Maria Granados in the massage parlor were dismissed by the People, and her testimony was stricken. Therefore, Ceren cannot now urge that the robbery and beating of Paraza was incidental to an unproven larger robbery. And, as previously discussed, the beating of Paraza was born of a separate intent to punish Paraza, triggered by Paraza denying that he had a gun, and Rodriguezs subsequent search of Paraza.
Soriano claims that he did not continue to beat Paraza once his weapons were removed, after the other two men went upstairs to the massage parlor. Thus, he reasons, the beating was necessary to disable Paraza from resisting the robbery of himself and of the massage parlor. But, Sorianos argument does not persuade us that the severe beating of Paraza was merely incidental to the robbery of him and the massage parlor. Paraza never offered resistance when Rodriguez took his gun from him. Paraza was effectively rendered helpless against the three men, two of whom were armed. The beating, which left him looking like a monster, was not incidental to the robbery.
II. The abstract of judgment shall be corrected
The People concede that the abstract of judgment should reflect a conviction on count two of assault with force likely to produce great bodily injury, rather than an assault with a deadly weapon with respect to both defendants. (People v. Winters (2001) 93 Cal.App.4th 273, 276-280 [assault with a deadly weapon is a serious felony, and assault by means of force likely to produce remodeling injury is not a serious felony; People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment should be corrected to conform to the oral pronouncement of judgment].)
DISPOSITION
The abstract of judgment is ordered corrected to reflect that defendants Ceren and Soriano were convicted of assault with force likely to produce great bodily injury on count two. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________, J.
ASHMANN-GERST
We concur:
________________, Acting P. J.
DOI TODD
________________, J.
CHAVEZ
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[1] Rodriguez is not a party to this appeal.
[2] All further statutory references are to the Penal Code unless otherwise indicated.
[3] Count three for second degree robbery of Maria Granados ( 211), and count four for assault by means likely to produce great bodily injury against victim Maria Granados ( 245, subd. (a)(1)) were dismissed on the Peoples motion.
