P. v. Lewis

Filed 10/19/06 P. v. Lewis CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Antwan Maurice Lewis used a handgun to rob two grocery stores owned by Vons Markets. He was tried before a jury and convicted of five counts of second degree robbery with enhancements for firearm use, discharge of a firearm and a prior conviction of a serious felony. (Pen. Code, §§ 211, 12022.53, subds. (b) & (c), 1170.12, 667, subd. (a).)^[1] Appellant was sentenced to prison for an aggregate term of 66 years 4 months.

Appellant argues that the case must be remanded for resentencing because (1) the court imposed upper term and consecutive sentences based on facts neither admitted by him nor found true by the jury, in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely); (2) the court abused its discretion when it imposed consecutive rather than concurrent sentences on three of the robbery counts; and (3) the court erred when it ordered him to pay victim restitution to Vons Markets based on its payment of workers' compensation benefits to its employee victims of the robberies. We affirm.

FACTS

Kristine Natale met appellant and began dating him while her boyfriend Juan Suarez was incarcerated. Suarez had left several items at Natale's house, including guns and a green pullover face mask. Appellant and Natale talked about robbing Vons supermarkets as a way to get money for methamphetamine.

On the night of September 22, 2001, Natale drove appellant to the Vons on Harbor and Seaward in Ventura. Appellant went into the store carrying one of the handguns that Suarez had left at Natale's house. He purchased liquor from a store employee, who asked appellant for identification and noticed that he appeared nervous. A few moments later, appellant had donned a green face mask and pulled out a gun, yelling, "This is a mother-fucking robbery." Appellant pointed the gun at the store manager, who gave him money from the front desk. Other cashiers were present and appellant ordered everyone to lie down on the floor before he ran out of the store. Appellant returned to Natale's car with about $900.

On the night of September 30, 2001, Natale drove appellant to a Vons on Thompson Boulevard in Ventura. He entered the store wearing a green mask and carrying a gun. Three checkout stands were open and several customers were present. Appellant yelled profanities and initially demanded money from the manager. After the manager gave appellant money from the front desk, appellant went to the checkout stands and demanded money from three cashiers. When one of them could not open her cash drawer, appellant put his gun to her head and yelled at her to hurry up until another cashier took some money from her own stand and threw it at him. Appellant left the store after making everyone lie down on the floor. He fired a shot at the ceiling as he left, and again returned to Natale's car with money.

In November 2001, appellant purchased liquor at the first Vons he had robbed. The clerk was the one who had seen his face during the robbery. He directed another employee to follow appellant to his car and write down his license plate number. Appellant was arrested and the clerk identified his picture in a photographic line-up. Natale's boyfriend Suarez was arrested for a liquor store robbery in Santa Barbara. A green face mask with DNA matching appellant's was found in Saurez' van.

DISCUSSION

Blakely v. Washington

Appellant was sentenced to the five-year upper term on one of the robbery counts, doubled to ten years under the provisions of the Three Strikes law. (§ 1170.12, subd. (c)(1).) On the remaining counts, the court imposed consecutive sentences of one year each (one-third the middle term under section 1170, subdivision (b)), doubled to two years. Appellant contends that under Blakely, the court violated his Sixth Amendment right to a jury trial by relying on aggravating factors that were neither admitted by him nor found true by the jury to impose the upper and consecutive terms. The California Supreme Court rejected an identical argument in People v. Black (2005) 35 Cal.4th 1238. We are bound by that decision and must reject appellant's claim.

Imposition of Consecutive Sentences

Appellant contends the trial court relied solely on an element of the offense--the use of force or fear--when imposing consecutive sentences on three of the counts arising from the second robbery. He argues that this was an improper dual use of facts and asks us to vacate the sentences on those counts. (See Cal. Rules of Court, rule 4.425(b)(iii); People v. Young (1983) 146 Cal.App.3d 729, 733-734.) We are not persuaded.

When explaining its reasons for imposing the consecutive sentences at issue, the court stated, "We have multiple victims threatened separately, and really separate robberies within the one robbery as to each of these victims, where he went from checker to checker. And so, again, I think worthy of consecutive sentences for that reason." Rule 4.425(a)(2) of the California Rules of Court provides that when deciding whether to impose consecutive or concurrent sentences, the court may consider that "[t]he crimes involved separate acts of violence or threats of violence." We construe the court's reference to multiple victims to be a reference to this factor, rather than reliance on the "force or fear" element of robbery. Consecutive sentences may be imposed when, as here, transactionally related counts involve different victims. (People v. Valenzuela (1995) 40 Cal.App.4th 358, 362-365 [consecutive sentences appropriate for two counts of gross vehicular manslaughter where each victim was a passenger in the same car].)

Victim Restitution--Worker's Compensation Payments

Two of the Vons employees robbed by appellant filed workers' compensation claims and were placed on stress leave as a result of their trauma. Vons is self-insured and was charged with over $200,000 in workers' compensation costs. The court ordered appellant to pay this amount to Vons as part of the direct victim restitution it ordered under section 1202.4. We reject appellant's argument that Vons was not entitled to recover this amount because it was not a direct victim of the robberies.

Section 1202.4, subdivision (a)(1) provides, "a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." For purposes of this section, a victim includes, "[a]ny corporation . . . or any other legal or commercial entity when that entity is a direct victim of a crime." (Id., subd. (k)(2).) Whether a party is a direct victim of a crime is a legal issue subject to our independent review. (People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1084.)

To support his contention that Vons does not qualify as a direct victim under section 1202.4, appellant relies primarily on People v. Birkett (1999) 21 Cal.4th 226. In Birkett, the court concluded that insurance companies did not become the direct victims of car theft when they paid out money to the policy holders from whom the cars were stolen. The insurance companies had a contractual obligation to assume such risks in exchange for premium payments and were left to recover their losses through civil remedies. (Id. at p. 246.)

Appellant's attempt to analogize the workers' compensation payments made by Vons to payments by a liability insurer is not apt. Vons is not a simply a third party insurer of the employees who were robbed. The cashiers at whom appellant pointed his gun were Vons employees and agents, and as the owner of the money stolen in the robbery, the company is itself a victim. A corporate entity seeking restitution will be entitled to recover economic losses under section 1202.4 when, as here, it was an object of the crime and does not act as a mere indemnitor. (See People v. Saint-Amans, supra, 131 Cal.App.4th at p. 1084.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Vincent J. O'Neill, Judge

Superior Court County of Ventura

______________________________

Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler, Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

^[1] All statutory references are to the Penal Code.