P. v. Junior





















Filed 6/29/12 P. v. Junior 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NOT TO BE PUBLISHED IN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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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. RODERICK A. JUNIOR, Defendant and Appellant.

G045486 (Super. Ct. No. 10SF1088) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Steven D. Bromberg, Judge.
Affirmed.

Marta
I. Stanton, 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, Scott C. Taylor and
Nguyen Tran, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

This
appeal presents the sometimes tricky problem of ascertaining whether, under
Penal Code section 654,href="#_ftn1"
name="_ftnref1" title="">[1] assaults
committed in the general course of an armed robbery are divisible from the
robbery itself. Assaults committed to
accomplish the robbery are not separately punishable, while assaults committed
not to further the robbery but for some independent objective are separately
punishable. Here, as in >People v. Watts (1999) 76
Cal.App.4th 1250 (Watts), the
assaults occurred well after the robbery was under way, and those assaults were
not “simply a means” of committing the robbery.
(See id. at p. 1265.) The trial court’s conclusion these assaults
were committed for separate objectives was amply supported by the
evidence. We therefore affirm the
judgment.

I

Because
section 654 issues often turn on a close analysis of the sequence of events, we
relate the evidence of the crimes that occurred in this case in “slow motion,”
that is, as the witnesses actually related them in court:

Three
men, each in a distinctive form of disguise, walked into a bank in Lake Forest
just after it opened on the morning of November 10, 2008. We will identify the three by their
disguises: Blond Wig, Ski Mask, and
Sombrero. Appellant Roderick Junior was
subsequently shown to be Sombrero based on DNA evidence.

One of
the three yelled, “Everybody get down.
Everybody, get the fuck down.”
The customers in the bank – there were about 10 to 15 of them – went
down on the floor.

Blond
Wig screamed, “Who’s the manager.”

The
assistant manager said the manager was not there that day. He was the assistant. Blond Wig grabbed him by the collar, shoved a
pistol into the back of his head, and asked, “Where’s the fucking vault?” Seconds later Blond Wig ordered the assistant
manager to “Take me to the fucking vault.”


The
assistant manager explained that two keys were needed to open the vault. “Where is the money?” Blond Wig
demanded. The assistant manager thought
to take Blond Wig to the merchant tellers area, because that is the area where
usually there is the most money on hand.


The
assistant manager took Blond Wig to Matt, the merchant teller. Matt was ducking underneath the counter.

The
assistant manager opened the drawers.
“No, you get the money,” said Blond Wig.
The assistant manager started taking money out of the merchant teller’s
drawer and putting money into the bag that Blond Wig was carrying.

Ski
Mask saw Matt and figured out he had pulled the alarm underneath the
counter. “You hit the alarm, didn’t you,
prick?” (A bank customer heard “You
fucking hit the alarm, didn’t you?”) Ski
Mask hit Matt with the butt of his pistol with a great “whack sound.”

The
assistant manager’s thoughts turned to ways to get Blond Wig as much money as
he could. He thought of the “cow,” a
nickname for a small, secondary vault used to get money to tellers. Even so, the cow required two keys, and the
assistant manager only had one.

But
another teller, named Maha, had her keys in a drawer. The assistant manager got her keys out of the
drawer and opened the drawer to give Blond Wig more money.

Blond
Wig kept looking at his watch. He
started a countdown. “Ten, nine,
eight.”

Meanwhile,
Maha was at the copier. Ski Mask had a
gun to Maha’s head. “Give me the money,
baby. Let’s make it easy,” Ski Mask
ordered. “Okay,” she replied.

“Come
on, open the cash box,” was the response.

“This
is a copier. I have to go to my cash
box” explained Maha.

Ski
Mask grabbed Maha by the arm, gun still pointed at her head. The two went to Maha’s drawer. She tried to open it. “Hurry up” he told her. “I’m trying my best,” she said.

Maha
managed to get the drawers open. “Put
everything in the bag” was the command.
Maha began putting “everything” in Ski Mask’s bag. When Maha looked at the robber, he told her
“Don’t look into my eyes.”

Ski
Mask demanded that Maha open other drawers.
She said she didn’t have the keys.
“Don’t argue, just open them” was the response. She reiterated that she didn’t have the keys.

Maha
heard screaming and yelling coming from the assistant manager. “Please don’t kill me. I have kids.”

Maha
also heard Matt yelling in some sort of “painful” way.

The
next thing she knew, Ski Mask was telling her to go back and lay down close to
the cow. “Get on the floor and don’t
look around.”

“You
guys all seem going to be dead [sic],”
said Ski Mask.

As Maha
was getting on the floor, Ski Mask kicked her with his feet. “Come on, go, go faster.” And then Ski Mask hit her with his gun on her
head, kicked her in her side close to her stomach, and she went down on the
floor. His kick was hard. Maha lay flat on the ground.

For his
part, Matt, already down on the ground, heard “We got to go.” Ski Mask and Blond Wig jumped over the
counter and left through the glass door entry.

All
this time Sombrero was pointing his gun at the customers on the floor. He joined his compatriots as they left the
bank. The three men got away with about
$55,000.

II

Appellant
Junior, whom we have called Sombrero, was charged with eight counts in an
information filed by district attorney’s office on May 9. 2011. He was convicted of all them. They were:

Count
(1): second degree robbery by taking
property from Matt.

Count
(2): second degree robbery by taking
property from the assistant manager.

Count
(3): second degree robbery by taking
property from Maha.

Count (4): second degree robbery by taking property from
Nicole, another bank employee.

Count
(5): assault on Maha with a
semiautomatic firearm.

Count
(6): assault on Matt with a
semiautomatic firearm.

Count
(7): assault on Maha with a firearm.

Count
(8): assault on Matt with a firearm.

Junior’s
total sentence was 13 years, 4 months.
The court found that counts 1 through 6 involved independent objectives
and separate acts of violence. The
court imposed consecutive sentences on counts 1 through 6, making up 12 years
of Junior’s sentence. href="#_ftn2" name="_ftnref2" title="">[2] The balance was in firearm enhancements. The court stayed sentence of counts 7 and 8
as a matter of compliance with section 654, since it was imposing sentence on
counts 5 and 6.

On
appeal, Junior now claims counts 5 and 6 – the assaults on Maha and Matt with
the semiautomatic firearm – should have been stayed under section 654 because
the robbery of the bank constituted a single, indivisible course of conduct.

III

Section
654 precludes multiple punishments under different provisions of law for the
same act or omission.href="#_ftn3"
name="_ftnref3" title="">[3] While interpretations of the statute “have
varied somewhat over the years” (People
v. Mesa (June 4, 2012, S185688) ___ Cal.4th ___, ___, California courts
have been consistent in holding that gratuitous
violence committed after a crime is
well in progress does not come within the rule.
The robbery and subsequent violence may be punished independently.

A
simple example of violence following robbery can be found in >People v. Houghton (1963) 212 Cal.App.2d
864. A gunman entered the “showroom” of
a filling station, brandished a revolver in front of the 16-year old sole
attendant, and ordered the attendant to remove money from the cash register. The attendant was then ordered to take the
money to a restroom in the back of the station.
The gunman followed the attendant into the restroom, took the money from
the attendant, and ordered the attendant to face the wall and put his hands
behind his back. The gunman told the
attendant he wasn’t going to hurt him.
Then he shot the attendant in the back.
(Id. at pp. 867-868.) The attendant lived to testify against the
gunman, and the appellate court held that the robbery and the shooting were >not part of the same criminal venture,
noting the intent to shoot the attendant could have been “formulated” after the
gunman had taken the money. (>Id. at p. 874.)

A more
recent example is Watts, >supra, 76 Cal.App.4th 1250,
involving similar facts to the case before us:
Three robbers entered a restaurant and robbed at gunpoint two
employees. The robbery also involved
multiple assaults: One gunman grabbed a
hostess by her neck, told her he wanted the money in the cash register, then
hit her with a heavy object as she tried to pull away. Another gunman held a gun to a kneeling
employee, trying to get her to open a computer he mistook for a cash register;
she said the machine had no money, but the lady up front would have it. She then got down on the floor and the gunman
struck her with a gun. The bartender was forced to open a cash register, the
gunman took the money from the register and her tip jar, told her to get down
on the floor, then threw a glass at her and threw the tip jar down by her
head. (See id. at pp. 1254-1256.)

The
trial court’s decision that the robberies were separate from the assaults was
upheld. The court noted that in each
case of an assault, each of the victims “was assaulted either as she was
attempting to comply with her assailant’s demand for money or was attempting to
escape.” The hostess was struck as she
attempted to pull away. The kneeling
employee was struck after she told the gunman where the money was. The manager had a gun put to her head after
she took her assailant to a back office and tried to open the safe. The bartender had a glass jar and a tip jar
hurled at her after she had complied
with her assailant’s demands to open the cash register. (Watts,
supra, 76 Cal.App.4th at p. 1265.)
From these facts the Watts
court opined that the evidence showed “the robberies were well under way at the
time the assaults occurred, and thus supports the conclusion of the trial court
that the assaults therefore were not simply a means of committing the
robberies.” (Ibid.) The assault on each
victim “was not merely incidental to the objective of robbing that victim, but
a separate act with a separate objective.”

>Watts is indistinguishable from the case
before us – the assaults here are, if anything, more gratuitous and less
connected to the underlying heist than the ones in Watts. And indeed, Junior
makes no attempt in his reply brief to try to distinguish either >Watts or Houghton.

Here,
as our slow motion recount shows, Ski Mask’s great “whack” of Matt because he
had pulled the alarm came after the assistant manager had already put money
into Blond Wig’s bag. Likewise, Ski Mask
hit Maha with his gun after she had put “everything” into his bag. The necessary dominance to commit the bank
robbery had already been established.
Ski Mask’s use of his gun to strike two prone bank employees after money
was already “in the bag” was thus wholly unnecessary for the bank robbery. The strike on Matt nothing but retaliation
for pulling the alarm. The strike on
Maha was an independent gesture of contempt.


By
contrast, the robbery cases relied on by Junior all involved violence necessary
to accomplish the robbery in the first place.
People v. Beamon (1973) 8
Cal.3d 625 was not a robbery followed by an assault, but, as the court
described events, a “kidnaping for the purpose of robbery and for the
commission of that very robbery,” in that case of a truck making a liquor
delivery. (Id. at pp. 630, 639.) In >People v. Logan (1953) 41 Cal.2d 279,
the victim was first hit with a baseball bat, rendered unconscious, and >then robbed of her purse. (See id.
at pp. 282, 290.) In >People v. Medina (1972) 26
Cal.App.3d 809, hitting the victim as he was being bound and gagged was
itself the very means of effectuating the robbery of his home. (See id.
at p. 824 [“The assault by Morrison was the means of committing the robbery and
was merely incidental to the primary object of robbing Bumb.”].) And in People
v. Flowers (1982) 132 Cal.App.3d 584, as in Logan, the victim was struck first (there, as he was trying to
enter his motel room), rendered unconscious, and then robbed. (>Id. at pp. 587-588 & p. 589 [“On the
contrary, it seems clear that the whole purpose of the confrontation in the
motel room was to commit a robbery.”].)

These
cases do nothing to undermine the conclusion of the trial judge that the assaults
here were independent crimes carried out for independent purposes.

IV

The judgment is
affirmed.













BEDSWORTH,
ACTING P. J.



WE CONCUR:







MOORE, J.







IKOLA, J.