Filed 9/10/14 P. v. Cisneros CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E058626
v. (Super.Ct.No. FWV900532)
EDWARD RAMON CISNEROS et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs,
Judge. Affirmed as modified.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and
Appellant, Edward Ramon Cisneros.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant, Joel Jaquez.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, A. Natasha Cortina, and Brendon W. Marshall, Deputy Attorneys General, for
Plaintiff and Respondent.
1 Defendants Edward Ramon Cisneros and Joel Anthony Jaquez entered a Papa
John’s Pizza (PJP) on Central Avenue in Chino at closing time. Silvio Guiral was the
only employee in the store. Defendants demanded Guiral’s money from his wallet, his
personal keys and keys to the PJP’s safe. They threatened Guiral with a gun.
Unbeknownst to defendants, a woman outside the store had seen them enter the restaurant
and immediately called the police. Numerous Chino police officers arrived and
eventually Jaquez engaged them in a shootout. Jaquez and Cisneros were shot, along
with an officer. Additionally, during the clash, an innocent bystander was shot and killed
by an officer.
Defendants were charged in a 14-count information with murder, four counts of
attempted murder, four counts of assault with a firearm on a peace officer, kidnapping to
commit robbery (which was dismissed prior to going to the jury), two counts of robbery,
burglary and making criminal threats. They were also charged with numerous firearm
enhancements. Jaquez was found guilty of all the charges and the enhancements except
for murder and two counts of attempted murder. Cisneros was also found guilty of all of
the charges and enhancements except murder and three counts of attempted murder.1
1 We will discuss the jury verdict in more detail, post.
2 Defendants individually and collectively contend on appeal as follows:
1. Cisneros contends that there was insufficient evidence presented to support
his convictions of attempted unpremeditated murder of a police officer and assault with a
firearm on a police officer.
2. Cisneros and Jaquez contend that they could not be convicted of two counts
of robbery against a single victim.
3. If they were properly convicted of the two counts of robbery against a
single victim, one of the counts must be stayed pursuant to Penal Code section 654.2
4. Section 654 requires that their sentences on their convictions for making
terrorist threats (§ 422) and commercial burglary (§ 459) must be stayed.
5. The restitution fines imposed pursuant to section 1202.4, subdivision (b)
and parole revocation fines pursuant to section 1202.45 must be reduced.
We strike one of the convictions of robbery for both Jaquez and Cisneros. We
also stay the sentence on their convictions of making terrorist threats and commercial
burglary. We otherwise affirm the judgment.
2 All further statutory references are to the Penal Code unless otherwise indicated.
3 I
PROCEDURAL BACKGROUND
After a joint trial, Jaquez was found guilty of the attempted murders (§§ 664/187,
subd. (a)) of Chino Police Officers Nicholas Mutrux (count 2) and David Villaran (count
4). For count 4, the jury found true the special allegations that the murder attempted was
premeditated and deliberate, and that he discharged a firearm and personally used a
firearm (§ 12022.53, subds. (b) & (c)). Jaquez was also found guilty of assault with a
firearm on a peace officer (§ 245, subd. (d)(1)) against Officers Mutrux (count 3);
Villaran (count 5); Charles Paul (count 7); and Rodney Tamparong (count 9). For counts
2 and 3, the jury found true the special allegations that he personally and intentionally
discharged a firearm that caused great bodily injury and death (§ 12022.53, subd. (d));
personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and personally
used a firearm (§ 12022.53, subd. (b)). For counts 5, 7, and 9, the jury found that Jaquez
used a firearm and discharged a firearm (§ 12022.53, subds. (b) & (c)). In addition,
Jaquez was found guilty of two counts of robbery against Silvio Guiral (§ 211; counts 11
& 12); second-degree commercial burglary (§ 459; count 13); and making criminal
threats (§ 422; count 14).3 For counts 11 and 12, the jury found true the allegations that
Jaquez personally used a firearm (§ 12022.53, subd. (b)). For counts 13 and 14, the jury
found the firearm use allegations (§ 12022.5.subd. (a)) true.
3 The information initially charged Jaquez and Cisneros in count 12 with robbery against PJP but was later amended to name Guiral as the victim.
4 The jury was deadlocked on a charge of murder of Daniel Balandran (count 1); the
attempted murders of Officers Paul and Tamparong (counts 6 & 8); and the special
allegation for count 2 that the attempted murder was premeditated and deliberate. Those
counts were dismissed in the interests of justice.4
Cisneros was found guilty of the attempted murder (§§ 664/187, subd. (a)) of
Officer Villaran (count 4); assault with a firearm (§ 245, subd. (d)(1)) on Officers
Villaran, Paul, Tamparong and Mutrux (counts 3, 5, 7, & 9); two counts of robbery (§
211) against Guiral (counts 11 & 12); burglary (§ 459; count 13); and making criminal
threats (§ 422; count 14). For counts 11 and 12, the jury found true the allegations that
Cisneros personally used a firearm (§ 12022.53, subd. (b)), and for counts 13 and 14 that
he used a firearm (§ 12022.5, subd. (a)). The jury was deadlocked on counts 1, 2, 6, and
8, and the special allegation of premeditated and deliberate murder on count 4. A mistrial
was declared on these counts. The charges were dismissed in the interests of justice.
After a court trial, the evidence established that Jaquez had suffered two prior
convictions within the meaning of section 667.5, subdivision (b). The trial court also
found true that Cisneros had suffered one prior serious felony conviction (§ 667, subd.
(a)(1)); one prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)); served one prior prison term for a violent conviction (§ 667.5, subd. (a));
and two other prior prison terms (§ 667.5, subd. (b)).5
4 Prior to trial, the trial court granted Jaquez’s motion to dismiss count 10 pursuant to section 995. 5 Trial on the prior convictions was bifurcated.
5 Jaquez was sentenced to a total determinate sentence of 75 years and 4 months,
followed by an indeterminate term of 47 years to life. Cisneros was sentenced to a total
determinate term of 51 years plus an indeterminate term of 14 years to life.
II
FACTUAL BACKGROUND
A. People’s Case-in-Chief
1. Entry and robbery at PJP (Counts 11-14)
On February 1, 2009, Silvio Guiral was the general manager at the PJP located on
Central Avenue in Chino. At approximately 9:45 p.m., he turned off the “OPEN” sign
and locked the door. He was the sole employee in the store. He began the process of
closing the store. He then heard a loud banging noise.
Guiral turned around and saw two men, identified as Cisneros and Jaquez,
approaching him. Cisneros was wearing a black hooded sweatshirt and dark jeans.
Jaquez had his face covered with a bandana and was holding a gun. He also was wearing
dark jeans and a black hoodie. Both Cisneros and Jaquez told him several times that if
the police came, they would kill him.
Cisneros and Jaquez told Guiral to give them his own money, the keys to the PJP’s
safe, and his cellular telephone. They moved Guiral to the manager’s office. Guiral gave
them $80 of his own money and a set of keys, which contained his own keys and keys
belonging to PJP. Guiral advised them he did not have his cellular telephone.
Cisneros grabbed Guiral by the collar and took him into the restroom. He directed
Guiral to lie down on the floor. Jaquez gave the gun to Cisneros. Cisneros held the gun
6 on Guiral and told him, “to not look at me or I’ll shoot you, I’ll kill you, look down.”
Gurial feared for his life.
The PJP’s safe had two sections. One section required a key in order to open it,
but the other section required a code to open the safe. The code was on a time delay.
Guiral estimated there was $1,200 total in the safe when defendants entered the PJP.
Jaquez asked for the code to the safe. Guiral gave him the code but advised him of the
time-delay device.
Both defendants left the bathroom and went to the front of the store. Guiral saw
both defendants putting money in bags. One of the defendants shut the bathroom door.
Guiral then heard gunshots and sirens and remained in the bathroom until officers helped
him out.
2. Shootout with Chino police officers (counts 1-9)
At around 9:45 p.m., Irma Sanchez Acuna was sitting in her car outside the PJP
waiting for her husband, Aurelio Neria, who delivered pizzas for PJP to return from a
delivery. She observed two people dressed in dark pants and black jackets approach the
door of the PJP. They covered their faces and pushed open the front door of the PJP.
Irma found this “mysterious” and thought they intended to rob the store. She called 911.
Chino Police Officer Andrew Bjelland responded to the PJP at 10:13 p.m. Officer
David Villaran also responded. Officer Villaran approached the front door of the PJP and
peeked inside the window of the store. He saw a person wearing a black hoodie
approaching the doorway. The person made eye contact with Officer Villaran and moved
to the back of the store.
7 Officer Bjelland looked through a peephole in the back door of the PJP and
observed a man in a black hooded sweatshirt with a bandana covering his face and
holding a handgun. The man moved toward the rear door and opened it a small amount.
Officer Bjelland, who had moved to the side of the door, yelled “Police. Drop the gun.”
The door closed and the suspect went back into the PJP.
Officer Villeran hid behind a parked car near the front door of the PJP. He
observed Cisneros and Jaquez move quickly toward the front door. Jaquez was holding
the handgun. He looked directly at Officer Villaran. Jaquez exited the store and began
firing at Villaran. Officer Villaran returned fire and emptied his weapon which contained
13 bullets. He reloaded his gun and resumed firing.
Officers Nick Mutrux, Charles Paul and Rodney Tamparong all positioned
themselves on the northwest corner of the PJP. The officers saw Jaquez running on the
north side of the PJP toward them. Jaquez ran within three to four feet of the officers.
He appeared startled when he saw the three officers. Jaquez extended his arm and shot
two or more times directly at them. The officers returned fire. Jaquez stumbled and fell
to the ground.
Officer Mutrux was shot in the right forearm. It shattered his bones and he had to
have surgery on his arm. He had a lengthy scar from the surgery. A second spent bullet
was recovered from Officer Mutrux’s bulletproof vest. He had an abrasion and burn
mark on his abdomen from the bullet hitting the vest.
Officer Bjelland heard the gunshots and ran toward the front of the store. He
observed Jaquez running and shooting at Officers Mutrux, Tamparong and Paul. Officers
8 Mutrux, Tamparong and Paul were all shooting at Jaquez and yelled that they had
emptied their guns. Jaquez had been shot multiple times. A handgun was recovered near
him.
Meanwhile, Cisneros remained in the PJP. Officer Villaran fired into the PJP and
Cisneros took cover under the counter. Officer Villaran yelled numerous times to
Cisneros to exit the store but he refused. A police dog was sent into the store to drag him
out. When the police dog was unsuccessful, officers entered the store. He was found
hiding behind the counter and had money in his pocket. A trash bag containing money
was also found near him. Cisneros suffered several gunshot wounds to his upper torso
and face. He lost part of his pinky finger as a result of a gunshot wound. No other gun
was found in the PJP.
While the shootout was occurring, one of the Chino police officers mistakenly
believed that an innocent bystander running from the gunfire was one of the suspects and
shot him. The man, Daniel Balandran, died at the scene.6 Defendants presented no
evidence.
6 The details of the shooting are not relevant to the issues raised on appeal as the jury was deadlocked on count 1 and the charge was dismissed in the interests of justice.
9 III
INSUFFICIENT EVIDENCE OF ATTEMPTED MURDER AND ASSAULT WITH A
FIREARM ON A PEACE OFFICER
Cisneros claims he was wrongfully convicted of committing the attempted
unpremeditated murder of Officer Villaran (count 4) and assault with a firearm on
Officers Mutrux, Villaran, Paul, and Tamparong (counts 3, 5, 7 and 9). He argues that
Jaquez’s independent action of engaging in a shootout with officers was not a natural and
probable consequence of the intended robbery of the PJP.
A. Standard of Review for Sufficiency of the Evidence Claims
“Our task is clear. ‘On appeal we review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence — that
is, evidence that is reasonable, credible, and of solid value — from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The
standard of review is the same in cases in which the People rely mainly on circumstantial
evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court which must
be convinced of the defendant's guilt beyond a reasonable doubt. ‘“If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.”’ [Citations.]” [Citation.]’ [Citations.] The
conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there
10 sufficient substantial evidence to support [the conviction].”’ [Citation.]” (People v.
Cravens (2012) 53 Cal.4th 500, 507-508.)
B. Analysis
‘““A person who knowingly aids and abets criminal conduct is guilty of not only
the intended crime [target offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable consequence of the intended
crime.”’ [Citations.] “Thus, for example, if a person aids and abets only an intended
assault, but a murder results, that person may be guilty of that murder, even if
unintended, if it is a natural and probable consequence of the intended assault.”
[Citation.]’” (People v. Chiu (2014) 59 Cal.4th 155, 161.)
“A nontarget offense is a ‘natural and probable consequence’ of the target offense
if, judged objectively, the additional offense was reasonably foreseeable. [Citation.] The
inquiry does not depend on whether the aider and abettor actually foresaw the nontarget
offense. [Citation.] Rather, liability “‘is measured by whether a reasonable person in the
defendant’s position would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted.”’ [Citation.]” (Chiu,
supra, at pp. 161-162.)
“The natural and probable consequences doctrine is based on the principle that
liability extends to reach ‘the actual, rather than the planned or “intended” crime,
committed on the policy [that] . . . aiders and abettors should be responsible for the
criminal harms they have naturally, probably, and foreseeably put in motion.’
[Citation.]” (Chiu, supra, at pp. 164-165.) “For a criminal act to be a ‘reasonably
11 foreseeable’ or a ‘natural and probable’ consequence of another criminal design it is not
necessary that the collateral act be specifically planned or agreed upon, nor even that it be
substantially certain to result from the commission of the planned act. For example,
murder is generally found to be a reasonably foreseeable result of a plan to commit
robbery and/or burglary despite its contingent and less than certain potential.
[Citations.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 530.)
“The determination whether a particular criminal act was a natural and probable
consequence of another criminal act aided and abetted by a defendant requires application
of an objective rather than subjective test. [Citations.] . . . [T]he issue is a factual
question to be resolved by the jury in light of all of the circumstances surrounding the
incident. [Citations.]” (People v. Nguyen, supra, 21 Cal.App.4th at p. 531; see also
Chiu, supra, 59 Cal.4th at p. 162.)
Here, the jury was instructed that it must first determine whether Cisneros was
guilty of the robberies inside the PJP, the burglary and making criminal threats. It was
instructed it must then determine if he was also guilty of the attempted murders and
assault with a firearm on the four officers. It was then instructed, “During the
commission of the crimes charged in Counts 11, 12, 13 and 14, a coparticipant in those
crimes committed the crimes of attempted murder of a police officer and/or assault with a
firearm on a police officer. And under all the circumstances, a reasonable person in the
defendant’s position would have known that the commission of attempted murder of a
police officer and assault with a firearm on a police officer was a natural and probable
consequence of the commission of the crimes charged in Counts 11, 12, 13 and 14.”
12 Here, the evidence showed that Cisneros and Jaquez entered the PJP by forcing
their way through the locked door. Jaquez was carrying a handgun that was in plain sight
to Guiral. Both Cisneros and Jaquez were aware that the police could arrive as they
threatened to kill Guiral if the police showed up. Both Cisneros and Jaquez forced Guiral
to give them his keys and money. Jaquez gave the gun to Cisneros, who pointed it at
Guiral and threatened to kill him if he looked at his face. Cisneros clearly was aware of
the presence of the gun and was not afraid to use it to further his and Jaquez’s goal of
robbing the PJP.
Thereafter, the police arrived. Both suspects remained in the PJP. Officer
Villaran stated that both defendants approached the door. Jaquez then looked him
directly in the eye and shot at him. Jaquez then shot at Officers Villaran, Mutrux, Paul
and Tamparong while trying to run away. Cisneros did not exit the store, but rather hid
until he was forcibly removed by the officers.
Cisneros involved himself in an armed robbery with Jaquez. Cisneros and Jaquez
used the gun to rob the PJP. It was reasonably foreseeable that the police would arrive
and that Jaquez would use the gun against the officers in order to secure their escape.
Cisneros relies upon the ninth circuit case of U.S. v. Andrews (9th Cir. 1996) 75
F.3d 552. In Andrews, the defendant and his associate armed themselves and went to
attack a particular person, with whom one of them had previously argued. The defendant
killed the intended target. However, the associate thereafter shot two different people
who had been with the victim, killing one of them. (Id. at p. 554.) The court reversed the
defendant’s murder conviction as an aider and abettor because there was no evidence the
13 defendant knew his confederate was going to shoot anyone other than the person
involved in the argument. (Id. at pp. 555-557.)
Initially, Ninth Circuit authority is not binding on this court. (See People v.
Bradford (1997) 15 Cal.4th 1229, 1292.) Nonetheless, this case is distinguishable from
Andrews. Cisneros and Jaquez both used the gun during the robbery and both threatened
to kill Guiral if the police arrived. Cisneros was aware that the police could arrive during
the armed robbery, and could reasonably foresee that one of them would engage the
officers in a gunfight in order to escape.
Based on the foregoing, substantial evidence supported Cisnero’s convictions of
the attempted murder of Officer Villaran, and assault with a firearm on Officers Villaran,
Paul, Mutrux and Tamparong.
IV
ROBBERY CONVICTIONS
Both Cisneros and Jaquez contend that they were improperly convicted of both
counts 11 and 12 because they both involved the robbery of Guiral. Respondent
concedes that one of the convictions must be stricken as the robberies involved one
victim during an indivisible course of conduct.
As noted in footnote two, ante, defendants were originally charged in count 12
with robbery against PJP. Prior to trial, the prosecutor amended the information to strike
PJP as the victim and insert Guiral. The prosecutor argued in closing as to the two
robberies, “Count 11 is for the robbery of the personal items from Mr. Guiral. Count 12
is the robbery of the items of the Papa John’s.”
14 A. Analysis
“’Robbery is the felonious taking of personal property in the possession of another
from his person or immediate presence, and against his will, accomplished by means of
force or fear.’” (§ 211.) Robbery “consists of larceny plus two aggravating
circumstances: (1) when the property is taken from the person or presence of another,
and (2) when the taking is accomplished by the use of force or threatened force.
[Citation.]” (People v. Marquez (2000) 78 Cal.App.4th 1302, 1308 (Marquez).)
“California follows ‘the traditional approach that limits victims of robbery to those
persons in either actual or constructive possession of the property taken.’ [Citation.]
‘“Robbery” is an offense against the person [.]’ [Citation.] Accordingly, a victim can be
any person who shares ‘some type of “special relationship” with the owner of the
property sufficient to demonstrate that the victim had authority or responsibility to protect
the stolen property on behalf of the owner.’ [Citation.] Persons with just such a special
relationship include business employees . . . [Citations.]” (People v. Ugalino (2009) 174
Cal.App.4th 1060, 1064-1065.) Guiral possessed the money in the PJP safe as an
employee of PJP.
In People v. Bauer (1969) 1 Cal.3d 368, the Supreme Court explained that “where
a defendant robs his victim in one continuous transaction of several items of property,
punishment for robbery on the basis of the taking of one of the items and other crimes on
the basis of the taking of the other items is not permissible.” (Bauer, supra, 1 Cal.3d at p.
377.)
15 In Marquez, supra, 78 Cal.App.4th 1302, the court took this one step further in
prohibiting multiple convictions. In Marquez, the defendant was charged and convicted
of two robberies at a restaurant against one victim because he took the victim’s personal
tip money and the money from a cash register. On appeal, the court applied the single
larceny doctrine to find that defendant was erroneously convicted of the two counts of
robbery. (Marquez, supra, 78 Cal.App.4th at p. 1307.) The court explained, “In one
seamless ill-conceived effort, [the] defendant walked up to the counter at [a][r]estaurant,
threatened [the] waitress . . . with a handgun, thereby convincing her to hand over her tips
lying on the counter and [the restaurant’s] operating money from the cash drawer. This
was an indivisible transaction involving a single victim who was forced to relinquish
possession of two separately owned amounts of money at the same place and at the same
time.” (Ibid.)
This case is indistinguishable from Marquez. Defendants demanded that Guiral
give them his own personal money and his key ring, which contained both his personal
keys and the keys to PJP’s safe. This was all committed in one indivisible course of
conduct. Like in Marquez, the fact that the property taken belonged to both Guiral and
the PJP was of no consequence. We will strike defendants’ convictions in count 12.7
7 Jaquez was sentenced to four years and four months on count 12. Cisneros was sentenced to five years and four months on count 12.
16 Cisneros also points out that if we strike one of the robbery convictions, the fines
for that count must be reduced.8 Both Jaquez and Cisneros were ordered to pay a $40
court security fee pursuant to section 1465.8 on count 12, and a $30 criminal conviction
fee pursuant to Government Code section 70373. We shall order that the total fines be
reduced by this amount.
V
654 STAY
Cisneros and Jaquez contend they could not be sentenced on both robberies
(counts 11 and 12), burglary (count 13) and criminal threats (count 14) pursuant to
section 654. We have reversed count 12 and find defendants were properly sentenced on
count 11 for the single robbery. We agree that counts 13 and 14 should have been stayed.
A. Additional Factual Background
During closing argument, the prosecutor argued that count 14, the charge of
making criminal threats, was committed by Cisneros, who threatened Guiral with death.
Cisneros made the threat while Guiral was cowering in the corner fearing for his life.
The prosecutor argued, “They wanted his cooperation. They wanted to threaten him to
ensure that.” The prosecutor argued that Jaquez aided and abetted the threat. Further, the
prosecutor argued, “That threat is what prompted Mr. Guiral to turn over the keys and the
money out of his pockets.” The prosecutor argued, “They were working together and
8 Cisnero, joined by Jaquez, also argues that the restitution fine imposed pursuant to section 1202.4 should be reduced by $280. As discussed post, the restitution fine was properly imposed and not necessarily based on each conviction.
17 they utilized that threat to get what they wanted, which was access to that safe.” For the
burglary, the prosecutor advised the jury that he only need to prove that the defendants
entered the PJP and that they did so to commit a theft or robbery. The prosecutor stated it
had been shown beyond a shadow of doubt that there was a robbery.
The prosecutor argued at sentencing that counts 11, 12, 13 and 14 should run
consecutive to the other counts because the counts involved different victims. He also
argued that section 654 did not bar consecutive sentences on counts 11, 12, 13 and 14.
The prosecutor argued the burglary of PJP was completed when the defendants entered
the PJP. Thereafter, Guiral was personally robbed. The prosecutor argued that the
terrorist threats came after the money was already taken from Guiral.
Cisneros argued that these counts should be stayed because there was only one
intent to commit robbery and it was not complete. These acts were all part of a
continuous course of conduct. The prosecutor responded that these were separate and
distinct crimes. The trial court stated, “As to . . . counts 11, 12, 13 and 14, I am of the
belief that they are in fact separate offenses.”
Jaquez was sentenced on count 11 to four years and four months; on count 13 to
four years; and on count 14 to four years. The sentences were ordered to run consecutive
to each other and the other counts. Cisneros was sentenced on count 11 to five years and
four months; on count 13 to four years and eight months; and on count 14 to four years
and eight months. The sentences were to run consecutive to each other and the other
counts.
18 B. Analysis
Section 654 provides “An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” “[S]ection 654 prohibits punishment for two
crimes arising from a single indivisible course of conduct. [Citation.] If all of the crimes
were merely incidental to, or were the means of accomplishing or facilitating one
objective, a defendant may be punished only once. [Citation.] If, however, a defendant
had several independent criminal objectives, he may be punished for each crime
committed in pursuit of each objective, even though the crimes shared common acts or
were parts of an otherwise indivisible course of conduct. [Citation.] The defendant’s
intent and objective are factual questions for the trial court, and we will uphold its ruling
on these matters if it is supported by substantial evidence. [Citation.]” (People v. Perry
(2007) 154 Cal.App.4th 1521, 1525.)
It has long been held that the trial court may not sentence a defendant for burglary
and the underlying felony where entry was for the purpose of accomplishing the
underlying felony. (See People v. Hester (2000) 22 Cal.4th 290, 294; People v. Cline
(1998) 60 Cal.App.4th 1327, 1336.)
19 Initially, as to the burglary,9 there is no dispute that defendants entered the PJP
with the intent to commit robbery. As set forth, ante, we have reversed count 12, finding
that the taking of property from Guiral’s presence, whether it belonged to PJP or Guiral,
all constituted one robbery. Defendants could be properly sentenced on count 11
consecutive to the remaining counts.
The People, despite conceding that count 12 must be reversed, argue that section
654 did not mandate that count 13, the burglary, be stayed because defendants entered the
PJP with the intent to rob the PJP, and once they entered the PJP, the burglary was
complete. However, once inside, they subsequently robbed Guiral of his personal
property which amounted to a separate intent and objective. Even assuming that this
distinction can be made that the taking of PJP’s property and Guiral’s property can
constitute separate intents and objectives, it simply cannot be concluded that when
defendants entered the PJP, they only intended to take cash or property belonging to PJP.
Since they entered right upon Guiral closing the store, they were aware an employee was
inside. The evidence simply does not support that they only intended to take PJP
property and money, but not to take anything from Guiral. The burglary sentence in
count 13 must be stayed.
9 Section 459 defines the crime of burglary as entry into “any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building . . . with intent to commit grand or petit larceny or any felony. . . .”
20 Defendants argue that the sentence on making of terrorist threats10 in count 14
must be stayed because the threats were part of the robbery. They refer to the
prosecutor’s argument that the threats were made to make Guiral cooperate. They also
cite to People v. McKinzie (2012) 54 Cal.4th 1302, 1368, for the proposition that the
prosecutor’s argument can demonstrate the applicability of section 654.
In People v. Perry, supra, 154 Cal.App.4th at pp. 1526-1527, the court in
addressing the applicability of section 654 for convictions of assault and burglary, found
that “a conviction of assault committed during an escape with property taken during a
burglary reflects, in essence, an intent to apply, attempt to apply, or threaten to apply
force to a person, rather an intent to steal property. The objective of such an assault
generally will be to deter, interrupt or put a stop to a pursuit or other effort to capture the
defendant and any property taken during the burglary. However, if property is taken
during a burglary and a robbery pertaining to the same property is committed during the
escape, the objective is still essentially to steal the property. Admittedly, an additional
objective of preventing the victim or another person from taking back the property
generally will exist, but may be incidental to, rather than independent of, the objective of
stealing the property.” (Id. at pp. 1526-1527.) The Perry court further acknowledged
that in some cases, the degree of force applied might show a separate intent. (Id. at p.
1527.)
10 Section 422 prohibits any person from willfully threatening to commit a crime that will result in death and great bodily injury to another person with the specific intent that the statement be taken as a threat and which results in the victim being in sustained fear for his or her own safety.
21 Similarly here, there was evidence that the making of terrorist threats had a
separate objective of avoiding identification and an additional threat that was unnecessary
to the commission of the robbery. However, in People v. McKinzie, supra, 54 Cal.4th
1302, the court found that despite evidence that the defendant harbored multiple
objectives in committing carjacking and kidnapping for robbery, “defendant could not be
punished for both carjacking and kidnapping for robbery because the prosecutor argued
to the jury that the victim’s car was the object of the robbery. [Citation.]” (Id. at p.
1369.) Here, the prosecutor argued that the threats were made to gain Guiral’s
“cooperation” and that “they utilized that threat to get what they wanted, which was
access to that safe.” Based on this argument, defendants could not be separately
sentenced on count 14 and we will order it stayed pursuant to section 654.
VI
IMPROPER RESTITUTION FINES
Cisneros, joined by Jaquez, contend that the trial court did not impose the proper
restitution fines. They contend that the trial court calculated the restitution fines by
multiplying each conviction by $280, which was not the amount of the fine at the time
they committed their crimes. At the time of sentencing, the trial court ordered that
Jaquez pay a $2,800 restitution fine pursuant to section 1202.4 and parole revocation fee
in the same amount pursuant to section 1202.45. It also stated as to Cisneros, “Regarding
restitution fines, I’m going to impose the $2,520 restitution fine. And that’s required
pursuant to Penal Code section 1202.4.” It imposed the same parole revocation fine. The
trial court did not explicate the calculation of the restitution fines.
22 Effective January 1, 2013, the minimum restitution fine to be imposed pursuant to
section 1202.4, subdivision (b) was increased to $280. (Stats. 2011, ch. 358, § 1.) On the
date the crimes were committed, the minimum fine was $200. (Former section 1202.4,
subd. (b)(1).) “It is well established that the imposition of restitution fines constitutes
punishment, and therefore is subject to the proscriptions of the ex post facto clause and
other constitutional provisions. [Citations.]” (People v. Souza (2012) 54 Cal.4th 90,
143.) Defendants committed their crimes prior to the amendment of section 1202.4 and
could claim an ex post facto violation if the trial court imposed the minimum restitution
fine based on the amendment effective in 2013.
Initially, respondent contends that defendant has waived the claim by failing to
object to the amount in the trial court. The failure to make a timely and meaningful
objection forfeits or waives certain claims on appeal. (People v. Scott (1994) 9 Cal.4th
331, 351.) This includes “complaints about the manner in which the trial court exercises
its sentencing discretion and articulates its supporting reasons.” (Id. at p. 356.) “The
appropriate amount of restitution is precisely the sort of factual determination that can
and should be brought to the trial court’s attention if the defendant believes the award is
excessive.” (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [Fourth Dist., Div.
Two].) Since defendants did not object to the amount of restitution, and as we find
below, the fine was not unauthorized, they have forfeited the claim on appeal.
Defendants’ restitution fines did not result in unauthorized sentences. The court
had the discretion to lawfully impose the greater fine of $280 prior to the amendment to
section 1202.4. The range of total restitution that could be ordered was between $200
23 and $10,000 at the time that defendants committed their crimes. (Former section 1202.4,
subd. (b)(1).) Although it may be surmised that calculation in this case was based on the
$280 fine multiplied by the number of convictions, it is not necessarily the case based on
the silent record before this court. There was no ex post facto error because the court
imposed a lawfully authorized fine.
VII
DISPOSITION
We order that count 12 be stricken and that all attendant fines be stricken as set
forth in the opinion. The sentences on counts 13 and 14 shall be stayed pursuant to
section 654. The clerk of the superior court shall forward a modified abstract of
judgment to the California Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.