P. v. Threat

Filed 10/27/06 P. v. Threat CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Wesley R. Mason, Judge. Affirmed.

Dallas Threat pleaded guilty to eight counts of robbery (Pen. Code^[1] § 211, counts 1, 3, 5 through 10), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 2), and forcible false imprisonment (§§ 236, 237, subd. (a), count 4). Threat admitted personal use of a deadly weapon, a box cutter, in four counts, and a knife, in one count (§ 12022, subd. (b)(1)); one prior prison term (§667.5, subd. (b)); one prior serious felony conviction (§ 667, subd. (a)(1)); and two strike priors (§§ 667, subds. (b)-(i), 668, and 1170.12). The trial court struck one of Threat's strike priors and sentenced him to prison for 34 years and 8 months as follows: the upper term of 5 years for count 1, and consecutive one-third middle terms on the remaining counts, each term doubled for the strike prior; a one-year term for the knife enhancement attached to count 1; and consecutive four-month terms for the remaining knife enhancements. The court also imposed a consecutive five-year term for the serious felony prior.

Threat contends that under section 654, the court erred by failing to stay both the consecutive sentence for assault in count 2, and the sentence enhancement for personal use of a deadly weapon in count 4.

FACTUAL AND PROCEDURAL SUMMARY

Counts 1 and 2

On January 28, 2003, Threat entered a store in Chula Vista, where Nidge Lange was working. Lange assisted Threat as he asked about various prices, and followed him to the back of the store. When Lange looked up to check the price of an item, Threat grabbed her, held a box cutter to her throat, and threatened to cut her if she screamed. Threat kept the box cutter to Lange's throat while he directed her to the cash register. He threatened to cut her if she hit the panic button, and demanded money. Lange opened the register and Threat took approximately $100. He asked Lange for the front door key, which she removed from her key ring and gave to him. Threat continued to hold the box cutter to Lange's throat, walked her to the front door, and locked it. Threat forced Lange to the back of the store and into the bathroom. Lange, free for a moment from the box cutter, pounded on the bathroom wall and screamed for help from her neighbor, John, in the adjoining store. Threat hit her repeatedly and told her to "shut up." Lange then told Threat that no one would see him if he went out the back door, and he left. Lange suffered a cut above her eye, which bled profusely, and bruises on the entire left side of her face and on part of the right side.

Counts 3 and 4

On October 10, 2003, Marisela Smith was working in her flower shop in National City when Threat came in and asked about the prices of flowers and gifts. When Smith went to the register, Threat moved behind her, put a box cutter to her throat, and demanded money. Smith opened the register and Threat took out the bills while instructing her to put the coins in a bag. After Smith handed him the bag, Threat put the box cutter to Smith's throat again, and forced her into the bathroom at the back of the store. Threat hit Smith with his chest, causing her to fall on the toilet. When she turned, he hit her again and she fell backwards. Threat grabbed her and pulled up on her blouse and shirt, leading Smith to believe he intended to rape her. She tried to convince him to stop, given that he already had the money. After several minutes Threat ordered Smith to stay in the bathroom for ten minutes and walked out, leaving Smith in the bathroom.

DISCUSSION

I.

The court did not err by imposing separate sentences in counts 1 and 2 because it found that Threat's robbery and assault "basically had different objectives." Section 654 bars multiple punishment when a defendant had the intent for or objective of carrying out a single act or indivisible course of conduct, which violates more than one statute. (Neal v. State of California (1960) 55 Cal.2d 11, 18.) If all the offenses were incident to one objective, the defendant may be punished for any one offense but not for more than one. (Id. at p. 19.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551.) Whether a defendant held multiple criminal objectives presents a question of fact, and is reviewed under the substantial evidence test. (People v. Arndt (1999) 76 Cal.App.4th 387, 397.)

Here, substantial evidence supported the finding that Threat's robbery and assault were motivated by separate and independent objectives. Threat's assault of Lange in the bathroom was not necessary to complete the robbery and occurred after he had accomplished his objective of obtaining money. "[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." (People v. Nguyen (1988) 204 Cal.App.3d 181, 193) Lange was cooperative and did not resist during the robbery. Threat's decision to lock the front door, walk Lange to the back of the store and force her into the bathroom, despite her cooperation and after he had already obtained the money, showed he had an independent objective. After Threat forced Lange into the bathroom she "felt like he wasn't finished," and only then started to resist.

Lange suffered extensive bruising and bleeding as a result of Threat's assault, during which he struck her at least five times. Threat's violence exceeded any action necessary to complete the robbery. Section 654 cannot "be stretched to include gratuitous violence beyond that reasonably necessary to accomplish the original offense." (Nguyen, at

p. 191.)

Threat relies on language in People v. Harris (1984) 36 Cal.3d 36, to argue that his assault of Lange was committed to effectuate his escape, and thus was part of a single objective to commit the robbery. A plurality of the court in Harris stated that, "[t]o accomplish that objective [robbery], defendant and his companions entered the apartment of the victims, committed the robbery, and murdered the victims to avoid detection. Were this not a case involving special circumstances, the prohibition against double punishment would be clearly applicable." (Harris, supra, 36 Cal.3d at p. 65.) However, this court found the language was dicta, not supported by a majority, and declined to follow it. (People v. Nguyen, supra, 204 Cal.App.3d at p. 191.) Threat's assault of Lange in the bathroom was committed with a separate and independent objective from the robbery and, moreover even if the assault was intended to effectuate his escape, it was a gratuitous act of violence and not merely incidental to the robbery. Accordingly, the trial court did not err by failing to stay the sentence for assault.

II.

The court did not err by imposing enhancements for personal use of a deadly weapon in counts 3 and 4. A split of authority exists in the appellate courts, unresolved by the California Supreme Court, as to whether section 654 applies to enhancements.^[2] (People v. Coronado (1995) 12 Cal.4th 145, 157.) However, when the underlying offenses are separately punishable under section 654, deadly weapon enhancements may be separately imposed for each offense.^[3] (People v. King, supra, 5 Cal.4th at p. 79.) Threat admitted personal use of a box cutter in the robbery and false imprisonment offenses, and he does not contest the imposition of separate sentences for the robbery and false imprisonment, nor the finding that the offenses were committed with separate and independent objectives. Substantial evidence showed that Threat used the box cutter with intent to commit robbery, and after he had obtained the money from the unresisting Smith, used the box cutter again to force her into the bathroom with the separate objective of sexually assaulting her. Accordingly, the trial court did not err by imposing weapon use enhancements for counts 3 and 4.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McINTYRE, Acting P. J.

IRION, J.

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

^[2] The issue of whether the multiple punishment bar of section 654 applies to sentence enhancements is currently pending before the California Supreme Court in People v. Palacios (111 P.3d 920 2005) 28 Cal.Rptr.3d 645, review granted May 11, 2005, No. S132144.

^[3] Threat relies on In re Culbreth (1976) 17 Cal.3d 330, to argue that because his offenses occurred during a "single melee," the court may not impose multiple enhancements for weapon use, even though the underlying offenses were separately punishable. However, the California Supreme Court has overruled the single occasion rule of Culbreth. (People v. King (1993) 5 Cal.4th 59, 79.)