Filed 4/19/17 P. v. Allen CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES RICHARD ALLEN,
Defendant and Appellant.

A146748

(Sonoma County
Super. Ct. No. SCR663378)


Defendant James Richard Allen pled guilty to committing robbery and criminal threats, and was sentenced to consecutive terms for the two offenses. He contends the trial court erred in not staying sentence for the criminal threats pursuant to Penal Code section 654. We shall affirm the judgment.
I. BACKGROUND
Defendant entered a bank located inside a supermarket in May 2014. He demanded cash from the teller, Noemi Garcia, and told her he had a weapon. Defendant’s right hand was in his jacket pocket, and he gestured that he had a weapon. Garcia gave him all the money in her cash drawer, and he put it in a bag he had brought with him.
Before she gave defendant the money, Garcia caught the attention of the manager, Julio Delgado-Perez, who approached. Defendant said to him, “[T]his is for real. Don’t take another step. I have a gun.” After he put the money in the bag, defendant turned away and left the bank. As he was leaving, he told Garcia and Delgado-Perez not to follow him or he would kill them. He then left the building.
Defendant was charged with felony second degree robbery from Garcia (§ 211, count one) and felony criminal threats against both Garcia and Delgado-Perez (§ 422, count two). Pursuant to a negotiated disposition, he pled guilty to both counts. In his plea form, defendant acknowledged that the maximum penalty for count one was five years and for count two was three years, that the maximum total punishment was five years eight months, and that his plea was conditioned on receiving a sentence of no more than five years.
The trial court sentenced defendant to the midterm of three years for robbery (§ 213, subd. (a)(2)) and a consecutive eight-month term for criminal threats (§ 422, subd. (a)). The court explained its reasons for imposing consecutive, rather than concurrent, sentences as follows: “Now, as to concurrent and consecutive sentencing. You know, I’ve gone through the prelim [sic] transcript as well, again in preparation for this sentencing, the criminal threats of both victims. [¶] They actually could have been separate crimes, separately charged crimes to each were above and beyond and separate from the actual robbery. . . . [¶] You had time to pause. You had time where you didn’t have to make those criminal threats. It was not part of the robbery, factually. It was in addition to it.”
II. DISCUSSION
Defendant contends he cannot be punished both for robbery and for criminal threats because they were part of an indivisible course of conduct and were incident to a single objective, that is, to take the money from the bank. (§ 654; People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
“ ‘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. [¶] . . . [¶] ‘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.]” (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005 (Rodriguez).) If the trial court does not make an express finding under section 654, we uphold an implied finding that the crimes were divisible if it is supported by substantial evidence. (Ibid.; People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
We find substantial evidence to support the trial court’s finding on two independent bases. First, in deciding whether to impose consecutive or concurrent sentences, the trial court concluded the threats were not part of the robbery. The trial court could reasonably conclude that the intent and objective of the robbery (to obtain money) were divisible from those of the threats (to avoid capture). “[A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654. If the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate.” (People v. Nguyen (1988) 204 Cal.App.3d 181, 193 (Nguyen).) Here, defendant had obtained the money and was leaving the bank when he threatened Garcia and Delgado-Perez. (See People v. Navarette (2003) 30 Cal.4th 458, 502 [although crime of robbery continues as long as loot is being carried away to place of temporary safety, for purposes of establishing guilt, the asportation element of robbery is initially satisfied by evidence of slight movement].) The evidence supports an implied finding that defendant’s motive in making the threats was not to steal the money but to avoid capture, and that the crimes were therefore divisible. (See People v. Nichols (1994) 29 Cal.App.4th 1651, 1656, 1657-1658 [separate objectives in (1) kidnapping and robbing victim and (2) avoiding detection and conviction by threatening to kill him]; Rodriguez, supra, 235 Cal.App.4th at pp. 1005-1007 [defendant properly sentenced both for robbery and for evading arrest by reckless driving].)
Defendant tries to avoid this rule by arguing that the robbery was not complete at the time of the threats because he was still engaged in taking or asporting the money. We reject this contention. “ ‘Under the escape rule, as applied in the context of the felony-murder doctrine and certain other ancillary consequences of robbery, “robbery is said to continue through the escape to a place of temporary safety, whether or not the asportation of the loot coincides with the escape . . . .” ’ [Citation.] The purpose of the escape rule is to measure the duration of a robbery, in order to determine whether a killing or some other act has occurred in the perpetration or commission of the robbery. [Citations.] [¶] However, whether an evading arrest crime occurred during the commission of a robbery is not determinative of whether section 654 applies. That is because it is well established that a defendant may harbor ‘separate and simultaneous intents’ in committing two or more crimes, for purposes of section 654. [Citation.]” (Rodriguez, supra, 235 Cal.App.4th at p. 1007; accord Nguyen, supra, 204 Cal.App.3d at p. 193 [“If the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate. This is so notwithstanding that for purposes of the felony-murder rule the robbery is still considered to be ongoing.”].)
The second basis for upholding the sentence is the presence of two victims. “ ‘The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person . . . This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not “. . . applicable where . . . one act has two results each of which is an act of violence against the person of a separate individual.” [Citations.]’ [Citation.]” (People v. Solis (2001) 90 Cal.App.4th 1002, 1023; accord People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) Defendant was convicted of robbing Garcia, but of committing criminal threats against both Garcia and a second victim, Delgado-Perez. His crimes fall within the multiple-victim exception to section 654.
III. DISPOSITION
The judgment is affirmed.


 

_________________________
Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Streeter, J.




























People v Allen (A146748)