P. v. Coyazo

Filed 4/18/07 P. v. Coyazo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed in part, reversed in part and remanded.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Antonio Muratalla Coyazo was convicted of six counts involving the attempted murder, kidnapping and carjacking of one victim, and the robbery or attempted robbery of four others. He claims a number of errors, including the improper admission of his confession and hearsay evidence, the lack of sufficient evidence on several charges, and sentencing errors. The only contention with any merit is defendants claim that he was erroneously sentenced to the upper term pursuant to Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham). The case is therefore remanded for a new sentencing hearing. In all other respects, the judgment is affirmed.

I

FACTS^[1]

In January 2002, defendant and his friend Mynor Rolando Cordon-Suchtiz (known to defendant as Chivo) were walking in Santa Ana when Paul Janosik allegedly whistled at them from a car. Janosik offered the two men a ride, which, despite not knowing Janosik, they accepted. Janosik indicated he would like to engage in sexual relations with defendant and Cordon-Suchtiz and attempted to touch defendant. Defendant told Janosik not to touch him. When Janosik dropped them off, Cordon-Suchtiz gave Janosik his phone number and the two kept in touch over the next month.

On February 5, 2002, Cordon-Suchtiz arranged a meeting with Janosik. Cordon-Suchtizs girlfriend, Brenda OCampo, dropped off defendant, Cordon-Suchtiz, and a third man, Marcos Monroy, at a gas station in Santa Ana. Janosik was under the impression that he would engage in sexual relations with defendant and Cordon-Suchtiz. Defendant, Cordon-Suchtiz and Monroy got into Janosiks car and began driving.

At some point, Janosik began to touch Cordon-Suchtiz and stated that he wanted to have sex. Cordon-Suchtiz pulled out a gun and told Janosik he wanted to drive and Janosik pulled over. Cordon-Suchtiz had shown defendant the gun two or three days prior, at his home. Cordon-Suchtiz bound Janosiks hands with duct tape. As he was taping Janosiks hands, Cordon-Suchtiz put the gun down on the car seat, next to defendant.

Cordon-Suchtiz got on the freeway and drove to Riverside. They pulled into a parking lot surrounded by orange groves. Everyone got out of the car, and Cordon-Suchtiz ordered Janosik into the orange grove, told him to lie down, and shot him. Janosiks credit cards were later found in Cordon-Suchtizs wallet. Defendant later told police that Cordon-Suchtiz had shot Janosik for the car, I dont know.

After the shooting, the three men got into Janosiks car and headed back to Santa Ana. Defendant called his girlfriend on Janosiks cell phone. They made a stop in Garden Grove and stole license plates, replacing the ones on Janosiks car.

At the orange grove, a student named Danica Carillo was returning to the parking lot when she saw Janosik. He was bleeding all over. He was drenched in blood. She called 911, and after, presumably, dispatching help, the operator told Carillo to ask him questions. She asked him what happened, and he said that three men had beaten him and stolen his car.

Janosik was taken to the hospital. He suffered very severe injuries. One gunshot caused extensive skull and facial fractures, including fractures to his skull and both eye sockets. He was permanently blind in one eye and suffered bleeding in the brain. He was also shot in the elbow.

On February 7, defendant and Monroy committed a series of armed robberies and attempted armed robberies while victims were near their vehicles. They robbed Robert Rosales, Steve Tran, and Chang Tang, and attempted to rob David Bella.

Later that night, Santa Ana Police Officer Raul Rivera noticed a car that would not pass him, no matter how much he slowed his car. He looked back and noticed the car did not have a front license plate. The car eventually did pass him and he followed the car a bit further. Once he activated his lights to initiate a vehicle stop, he heard a loud bang and metal crashing on metal, prompting the officer to believe something had been thrown from the vehicle. Later, Rivera returned to the area and located a .45 caliber semiautomatic handgun in the bed of a parked truck.

The car stopped, and the driver, later ascertained to be defendant, started to get out of the car. Rivera told him to get back in the car. Rivera learned from dispatch that the license plate and had been reported lost or stolen, and other officers responded to the scene. The police recovered shell casings from a .45 caliber gun from the car, along with bank receipts, social security cards, and similar items belonging to other people.

Defendant and Monroy, who was in the passenger seat, were arrested. On February 8, defendant was interviewed by Garden Grove Police Department detectives. Defendant was read his rights and stated that he understood them. Defendant made a lengthy statement which included information about the Janosik shooting. They contacted the Riverside Police Department, and a sergeant traveled to Garden Grove to interview defendant. Defendant was asked if he remembered his rights and was still willing to waive them, and he responded that he was. Defendants later motion to suppress his statements on the grounds he did not expressly waive his rights was denied.

Defendant, Monroy and Cordon-Suchtiz were charged by the district attorney on December 8, 2003, in an amended information. They were charged with attempted premeditated murder (Pen. Code, 664, 187;^[2]count one); kidnapping for robbery ( 209, subd. (b), count two); kidnapping for carjacking ( 209.5, subd. (a), count three); carjacking ( 215, subd. (a), count four); and robbery ( 211, count five). Counts one through five referred to the assault on Janosik. Defendant and Monroy were also charged with three counts of robbery ( 211, counts six, seven and eight) and one count of attempted robbery ( 664, 211, count nine.) Those counts referred to the robberies of Tran, Rosales, and Tang, and the attempted robbery of Bella. The information also alleged several firearm enhancements. ( 12022, subd. (a)(1)).

Defendant was tried separately from his codefendants. The court declared a mistrial as to count one, attempted murder. Counts four and five were not submitted to the jury. Those three counts were later dismissed by the prosecution. Defendant was found guilty of counts two (kidnapping), three (carjacking), and four through nine (the four robberies and attempted robberies). The jury also found the allegation regarding the enhancement true.

On count two (kidnapping) the court sentenced defendant to life with the possibility of parole plus one year for the arming enhancement. Defendant received the same sentence, to be served concurrently, on count three (carjacking). On the robbery charges, as to the Tran robbery (count six), defendant was sentenced to the upper term of five years, plus a one year for the arming enhancement. On counts seven through nine, the other robberies and attempted robbery, the court sentenced defendant to one-third the middle term with the arming enhancement stricken, to be served consecutively. In total, defendant was sentenced to life with the possibility of parole plus one year, plus a determinate sentence of eight years and eight months.

II

DISCUSSION

Defendants Confession

Defendant claims that his confession was in violation of the precepts set forth in Miranda v.Arizona (1966) 384 U.S. 436 (Miranda). Although couched in terms of education and cultural understanding, he essentially argues that although the police

read him the Miranda warnings, they did not seek an express waiver of defendants constitutional rights, and his waiver was therefore invalid.

We need not belabor this issue. The fact that the detectives mentioned they had to read him his rights, like on TV, and that defendant was a Mexican immigrant, who may or may not have been familiar with American television, was irrelevant. While defendant argues he was not literate in English he cites no record reference in support of this point. Moreover, the interview was conducted primarily in Spanish. Thus, there is nothing to suggest that despite defendants answer of yes when asked whether he understood his rights, that he did not understand them, or that he did not understand what he was saying later when the second detective asked him if he still wanted to talk about the case.

Defendant was indisputably informed of his rights and asked if he understood those rights. After defendant responded that he understood the warning, the detective began asking questions, and defendant answered. A valid Miranda waiver can be express or implied, and a defendants willingness to answer questions after acknowledging an understanding of his rights constitutes an implied waiver. (People v. Whitson (1998) 17 Cal.4th 229, 247-248 (Whitson).

While the facts here may differ from Whitson, the same principle applies. Defendant was read his rights and answered affirmatively when asked if he understood them. By contrast, this case bears no resemblance whatsoever to the authority defendant cites, Tague v. Louisiana (1980) 444 U.S. 469, in which the police officer delivering the Miranda warnings could not later remember whether he had asked the defendant if he wished to waive his rights. Defendants conduct constitutes a valid implied waiver of his rights under Miranda.

Kidnapping

Defendant argues there was insufficient evidence to demonstrate a kidnapping occurred, or that he should be held liable for it as an aider and abettor. Because the same evidence applies to both arguments, we discuss them together.

Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jurys verdict. [Citation.] By this process we endeavor to determine whether any rational trier of fact could have been persuaded of the defendants guilt. [Citations.] (People v. Olguin (1999) 31 Cal.App.4th 1355, 1382.)

The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support it. (People v. Redmond (1969) 71 Cal.2d 745, 755; People v. Bolin (1998) 18 Cal.4th 297, 331.)

To establish that no kidnapping occurred, defendant ignores the rule that a defendant arguing the insufficiency of the evidence has the burden of demonstrating there is no substantial evidence to support the challenged findings. To do so, a defendant cannot rely on a self-serving recitation of only the evidence in his favor. Defendants are required to set forth in their brief all the material evidence, otherwise, the error is deemed waived. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) While defendants one-sided briefing should result in a waiver, in the interests of justice, we consider the merits of his argument.

Defendant relies entirely on a version of the facts most favorable to him, beginning with citations to his own statement to the police that Janosik volunteered his hands to be tied. He next relies on Janosiks statement to the police at the Riverside parking lot taken while he was bleeding and his lower arm was hanging from his elbow that he did not know if he had been kidnapped. Whether a kidnapping occurred is a legal conclusion and Janosiks opinion is irrelevant.

Defendant further argues that Janosik was initially driving, therefore any asportation was initially voluntary. He cites to law stating that the gravamen of kidnapping is compulsion, and that kidnapping by fraud is not sufficient. According to defendant, [T]he $64,000 question here is whether the People proved compulsion in getting Mr. Janosik to sit in the back seat and getting his hands tied with tape and in transporting him against his will. Did the People prove compulsion in moving Janosik to the parking lot?

Assuming defendants statement of the law is correct, he completely ignores the fact that even if Janosiks initial movement from Orange County was consensual, defendants own statement indicates that when they arrived in Riverside, Cordon-Suchtiz took out the gun and ordered Janosik out of the car. This is sufficient compulsion and asportation to demonstrate that a kidnapping took place. Defendants own statement is sufficient evidence, and his claim that the finding that a kidnapping occurred relies entirely on the fact that Janosiks hands were taped is faulty. Other statements the defendant made indicate the gun was pointed at Janosik at an earlier point, but in either case, the evidence is sufficient to establish kidnapping.

As to defendants culpability, as either a principal or as an aider and abettor, he claims he was a mere bystander. The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citation.] (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)

Defendant spends much of his briefs, unfortunately, emphasizing the victims sexual preference and his assertions that the reason Janosik was kidnapped and ultimately shot was because three heterosexual men found Janosiks advances repulsive. In short the three men were entirely innocent, had contacted Janosik for some unrevealed yet completely benign reason, and were so shocked and appalled by Janosiks unwanted sexual advances that they were driven to steal his car and attempt to kill him.

The jury was free to believe this version of events. They were also free to believe that all three men knew of Janosiks orientation and took advantage of it in the most calculated manner imaginable, using the promise of sex to lure Janosik into a situation where they could rob him and take his car, and then attempt to murder him to eliminate the witness to their crimes. There was more than sufficient circumstantial evidence to support this theory, beginning with defendants own admission that Janosik believed they were going to have sex with him, but defendant knew they would not be doing so. If defendant knew he would not be having sex with Janosik, it is a reasonable inference that the promise of sex was a ruse to get Janosik into the car.

Defendant told police that when Janosik tried to touch Cordon-Suchtiz, he told Janosik not to touch him and subsequently tied Janosiks hands. This permits the reasonable inference that in addition to defendant, Cordon-Suchtiz, too, had no intent of engaging in sexual activity, but had arranged the meeting with Janosik for other reasons. It was thus a reasonable inference that all three men had the joint intent of using the promise of sex to lure Janosik into a situation where he could be robbed and carjacked. He was kidnapped to facilitate those crimes. There is sufficient evidence that defendant, therefore, had the requisite intent of an aider and abettor to either commit, encourage or facilitate the offenses. (People v. Mendoza, supra, 18 Cal.4th at p. 1123.)

Defendant argues that he did not touch or fire the gun and did not tie Janosiks hands. He claims he was just a bystander. Such claims, obviously, are entirely self-serving, and it does not follow that they are the only rational inferences that can be drawn from the evidence. There was sufficient evidence that defendant shared in the goals of the kidnapping to rob Janosik and steal his car and further evidence that he enjoyed the fruits of the kidnapping and robbery, as he was later apprehended in the stolen car. There was more than sufficient evidence from which the jury could find defendant guilty, at a minimum, as an aider and abettor to kidnapping.

Poverty

Defendant next claims he was denied a fair trial because during closing argument, the prosecutor stated that the rationale for commission of the crimes was money. So if you find, and I am not going to stand here and argue that you have to adopt the fact that he knew that they were going to kill Paul Janosik. I will say that the evidence doesnt suggest anything else. But I will tell you, ladies and gentlemen, that he got in that car going along for the ride, knowing that at the end of the day that ride would be his. Knowing that he needed a car. He had Brenda OCampos car. That car got towed. Cordon didnt need a car. Cordon needed money. He had a pregnant wife, a baby on the way, and no job. Monroy needed money. They needed a car to continue to get money. [] Dont believe the opening statement that this is a hard working immigrant looking for work. There is nothing in the evidence to support that. Nothing at all. They take what they want when they want it, and that is the type of work they do. They need more money. They go get more. Find somebody in a parking lot, hold him up, and take their money. That is what they do, and that is what they did.

The law defendant cites applies to evidentiary matter relating to motive, not to a statement during closing argument. The rule governing evidence of poverty as motive for crime was stated long ago . . . . Generally, evidence of the wealth or poverty of a defendant is not admissible; but the sudden possession of money, immediately after the commission of a larceny, by one who before that had been impecunious, is clearly admissible as a circumstance in the case. [Citation.] Wigmore states a general policy of exclusion of this type of evidence as motive for crime because the practical result of [admission] would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly of violence. [Citations]. (People v. Hogan (1982) 31 Cal.3d 815, 854 (disapproved of on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 835.)

In short, evidence of a defendants poverty before the crime cannot be used as evidence that he was motivated to commit the offense. It is questionable whether needing money is the same as arguing a general state of poverty it seems rather obvious that the desire for money is usually a motive for robbery. Even if we do accept defendants premise that the two are equivalent, this is not a case of evidentiary error defendant is challenging a statement made during closing argument. As the jury was instructed, the prosecutors statement was not evidence. Thus, the cited law relating to the admissibility of evidence does not apply here.

Defendant does not cite any of the law relating to prosecutorial misconduct, merely asserting that the prosecutor was absolutely wrong to even mention the subject and claims it was a bell that cannot be unrung. Defense counsel, however, failed to object during trial. The defendant bears the burden of both objecting and seeking an admonition to the jury if he believes the prosecutor overstepped the lines of proper argument. Where an admonition would have cured any harm, the failure to request an admonition renders the claim unreviewable. (People v. Silva (2001) 25 Cal.4th 345, 374.) We find no reason that a brief mention of defendants purported motive could not have been cured by an admonition to the jury.

Defendant offers boilerplate statements of the law regarding ineffective assistance of counsel, but other than a statement that a reasonable defense attorney would have objected, he fails to argue why that is so. We disagree that a reasonable attorney would necessarily have objected, because even had an objection been lodged, we would find no error. The statements about needing money applied to Cordon-Suchtiz and Monroy directly, not to defendant. There was evidence defendant was employed. The prosecutors statement was offered here to counter defendants characterization of himself as a hardworking immigrant looking for honest work. The facts, as the prosecutor was attempting to illustrate, showed otherwise that defendant was not hardworking, but preferred obtaining money through crime.

Moreover, any error here was harmless beyond a reasonable doubt. (Peoplev.Watson (1956) 46 Cal.2d 818, 836.) It is irrelevant that, according to defendant, there is no other obvious motive. There was ample evidence starting with his own statements that defendant was deeply involved with these crimes, and motive is not an element of any of them. Thus, there is no reasonable doubt that defendant would have been found guilty without the prosecutors brief statement.

Hearsay and Confrontation Clause

Defendant argues that statements made by Janosik to Carillo were inadmissible hearsay and should not have been admitted. Defendant objects to Janosiks statements to Carillo that he was coming from Laguna, three guys stole his car, he was beaten by them and left in the orange groves. Defendant argues the admission of this statement violates Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and is inadmissible hearsay.

We turn first to the hearsay issue. This is an evidentiary issue, and we review evidentiary rulings by the trial court for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) The trial courts discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered. [Citations.] (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)

The court found Janosiks statements to be admissible under Evidence Code section 1240 (section 1240) as a spontaneous statement. Section 1240 renders a hearsay declaration admissible when it (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.

Defendant admits that the requirements of the exception appear to be met. As the court noted, the statements were made to Carillo after she happened to see the victim stumbling through the parking lot and actually went up to him and sat him down by the curb, and during that short period of time the statement was made to hear.

Defendant acknowledges that spontaneous statements do not need to occur during or even immediately after an event. He does not dispute the trial courts implied finding that Janosik was under the stress caused by the event when he made the statements. But defendant claims that Janosik knowingly lied to Carillo, cooking up a part of the story to hide part of the truth, specifically, defendants claim that Janosik had originally sought out the three men for sex. He states, therefore, without any citation to support his argument, that because Janosiks statement did not fully and completely recount all events, the hearsay exception no longer applies. According to defendant, logic dictates this result.

Defendant is incorrect. If the requirements of the statute are met, it was within the courts discretion to admit the statements. Defendants contention that Janosiks statements were incomplete or false go to the weight of the evidence, not its admissibility. Defendant had ample opportunity to find the holes in Janosiks statements and argue them to the jury. As to the hearsay issue, there was no error.

With respect to the Crawford objection, that case held that the admission of hearsay that is testimonial in nature violates the Confrontation Clause unless certain requirements are met. (Crawford, supra, 541 U.S. at pp. 68-69.) Defendant, unhelpfully, analogizes this case to a number of pre-Crawford cases in support of his argument. That analysis does not help us to address the key issue here, which is whether the hearsay statements were testimonial in nature.

The Supreme Court gave us the following guidance as to whether statements qualify as testimonial in the post-Crawford case Davis v. Washington (2006) 547 U.S. __ [126 S.Ct. 2266] (Davis). The court noted: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [Fn. omitted.] (Id. at pp. 2273-2274.) The court did not foreclose the possibility that statements made outside the context of interrogations could be testimonial. (Id. at p. 2274, fn.1.)

In Davis, the court found statements made to a 911 operator during an ongoing emergency admissible. (Davis, supra, 126 S.Ct. at pp. 2276-2277.) The statements were not testimonial because the victim was announcing an emergency and seeking help rather than attempting to detail some past event. Defendant argues this case is more akin to a past event, because, according to him, there was no ongoing police emergency. Perhaps there was no ongoing police emergency, but there was indeed an ongoing emergency, and Carillo was directed to keep Janosik talking, presumably in an attempt to keep him conscious. Janosik was severely injured, bleeding, and in need of immediate medical attention. Until assistance arrived, Janosiks medical condition rendered the situation an ongoing emergency. His statements, made to a civilian, were made in the context of seeking that help. The questions were not part of an investigation into possibly criminal past conduct. (Id. at p. 2278.) We therefore find no Crawford violation.

Even if there had been error, we find it harmless beyond a reasonable doubt. (Chapman v.California (1967) 386 U.S. 18.) Janosiks statement boils down to the fact that his car had been stolen by three men. There was ample other evidence to establish defendants connection with the charged crimes. Defendant admitted that he had been present during the shooting. He was later arrested in possession of the stolen car and the gun used in the shooting. Even without Janosiks statement, it is beyond a reasonable doubt that defendant would have been convicted.

Upper Term - Cunningham

Defendant next claims the trial court erred by imposing the upper term for count six, the Tran robbery conviction. He argues the imposition of the aggravated term violated his Sixth Amendment rights because it was not supported by a jury finding that the aggravating factor was true beyond a reasonable doubt. (See Cunningham, supra, 127 S.Ct. at p. 864.)

Respondent argues that defendant waived this argument by not making an objection at trial. Given that the argument had been rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238, we do not find that defendants failure to object constituted a wavier.

Respondent further claims that any error was harmless under the standard set forth in Chapman v. California, supra, at p. 18. Assuming that respondent is correct and that Cunningham error is subject to a harmless error analysis, we cannot find the error here was harmless beyond a reasonable doubt. Defendant was sentenced to the aggravated term because of the particular vulnerability of the victim.

As set forth in the California Rules of Court,^[3]the vulnerability of the victim is an aggravating factor that may justify the imposition of the upper term. (Rule 4.421.) The evidence demonstrates that Tran was in a commercial parking lot at night. A car stopped right in front of him, and two men got out, one of whom was holding a gun, and demanded his money. The victim was scared, stressed and concerned about his safety, because he did not know what would happen.

In the pre-Cunningham era, courts had broad discretion in determining whether to impose the upper, middle, or lower term at sentencing. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 349.) The standard was preponderance of the evidence, and given the courts broad discretion, we could have held that the evidence supported the courts finding that the victim in this case was particularly vulnerable within the meaning of rule 4.421.

That, however, is no longer the case. The standard under Cunningham is a jury finding that the aggravating factor is true beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at p. 873.) Based on the less than overwhelming facts here, we cannot say that a jury would certainly have concluded that Tran was a particularly vulnerable victim. Therefore, we remand the case for resentencing.

Section 654

Although we are ordering a new sentencing hearing in light of the Cunningham error discussed above, we shall address defendants other, unrelated claim of sentencing error in the interest of assisting the trial court and avoiding a subsequent appeal on this issue. Defendant argues the trial court erred by imposing concurrent terms on counts two and three rather than staying one of the sentences pursuant to section 654.

The purpose of section 654 is to ensure that a defendants punishment is commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-556.) It requires that an act or omission that is made punishable in different ways by different provisions of the Penal Code may be punished under either of such provisions, but in no case shall [it] be punished under more than one . . . . ( 654, subd. (a).) This provision bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11; People v. Latimer (1993) 5 Cal.4th 1203 [reaffirming Neal].)

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. (Neal v. State of California, supra, 55 Cal.2d 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. [Citations.] (People v. Perez, supra, 23 Cal.3d at pp. 551-552, fn. omitted.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial courts determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.] (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Even if the trial court makes no express finding on the issue, a finding that the crimes were divisible may be implied in the judgment imposing multiple punishments, and such an implied finding will likewise be upheld if supported by substantial evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)

Defendant focuses his brief argument on this point by pointing to cases stating that a single act may only be punished once, ignoring the case law about multiple criminal objectives. Here, there was substantial evidence that supports the courts finding that defendant acted with more than one objective. An inference could reasonably be drawn that defendant had different intents at different times, justifying separate punishment. Therefore, we find no error.

III

DISPOSITION

Because of the sentencing error as to the Tran robbery conviction, the case is remanded for a new sentencing hearing. In all other respects, the judgment is affirmed.

MOORE, J.

WE CONCUR:

OLEARY, ACTING P. J.

IKOLA, J.

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^[1]We note that defendants opening brief has a statement of the facts that often includes a long string of purported record references at the end of a lengthy paragraph. This type of record reference, which divorces the reference from the fact it allegedly supports, hinders the courts work to such an extent that it renders the references nearly useless. The point of record references is to allow the court to find a particular point in the record quickly, an objective utterly defeated by including a long string at of references at the end of a lengthy paragraph. Record references, like citations, should be placed immediately after the fact to which they refer.

^[2]Subsequent statutory references are to the Penal Code unless otherwise noted.

^[3]Subsequent rule references are to the California Rules of Court.