THE PEOPLE v. ANTHONY DAVID PEREZ

Reset A A Font size: Print

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DAVID PEREZ, Defendant and Appellant.

B229080

Decided: October 21, 2011

William C. Ryan, Judge.   Modified and, as modified, affirmed with directions.   Maggie Shrout, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Anthony David Perez appeals from the judgment entered following his convictions by jury on count 1 – attempted carjacking (Pen.Code, §§ 664, 215), count 2 – attempted second degree robbery (Pen.Code, §§ 664, 211), and count 3 – assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)).   The court sentenced appellant to prison for four years two months.   We modify the judgment and, as modified, affirm it with directions.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 2:30 a.m. on February 18, 2010, Jose Guevara was driving his car in Montebello.   When he stopped at an intersection, a man walked in front of the car and remained while a second man approached the locked driver's door of the car and pointed a gun at Guevara.   The first man, who did not have a gun, joined the gunman at the driver's door.   The gunman, still pointing the gun at Guevara, indicated to him to open the driver's door, and Guevara complied.

The gunman demanded Guevara's money and cell phone, but Guevara did not surrender them.   The gunman, still pointing the gun at Guevara, told him to exit the car.   Guevara testified one assailant demanded money and both asked for Guevara's cell phone.   The prosecutor then asked if the gunman and confederate asked for Guevara's car, and Guevara replied, “They asked me to get out.”   The gunman put his hands on Guevara to take him out of the car.   Guevara exited.

Guevara testified that as soon as he exited the car, the gunman entered the car to search it while the confederate tried to take Guevara's wallet from him.   Guevara also testified that after he exited the car, the confederate struck Guevara on the head.   After the confederate struck Guevara, the gunman and confederate grabbed Guevara and wanted to search him and throw him on the ground, but Guevara would not let them.   Guevara testified the gunman and confederate were “sticking their hands in [Guevara's] pockets.”   Guevara testified, “When I didn't allow them to search me to take away my money, they hit me here, and that's what cut me.”   The cut was caused when the confederate hit Guevara in the chest.   When the confederate cut Guevara, the gunman was searching the car.

Guevara also testified as follows.   After the confederate first hit Guevara on the head, the assailants hit Guevara simultaneously all over his body.   The assailants wanted to take something out of Guevara's pockets but were unable to do so because Guevara fought them.   The entire attack lasted three or four minutes.   Guevara was struck four or five times on his body.   After the confederate cut Guevara, Guevara fled for help.

Rodolfo Fitch, a neighborhood resident, saw Guevara running and holding his chest, and heard Guevara yelling for help.   Fitch testified to the effect that a man was following Guevara but, when the man saw Fitch, the man returned to where he had come from and unsuccessfully tried to break the window of a car.

Fitch, who at trial identified appellant as the person who tried to break the driver's door window of Guevara's car, testified appellant subsequently opened the driver's door and entered the car.   Before appellant entered the car, another person picked up a bicycle which had been in front of the car.   Appellant tried to start the car's ignition, not realizing the engine was on, and the engine made a loud noise which frightened appellant.   Appellant exited the car and fled, and the person on the bicycle, who was with appellant, rode away in the same direction.

Police detained appellant and Manuel Pineda less than 10 minutes after police had received a call concerning the above crimes.   During a field showup, Fitch identified appellant.   During the showup, Fitch also identified Pineda by his clothing as the person who had been with the bicycle.   During the detention, police recovered from Pineda a folding knife with a three-inch blade.

ISSUES

Appellant claims (1) Penal Code section 654 barred punishment on all counts except count 1, (2) the trial court imposed excessive court security fees, and (3) the abstract of judgment must be amended to reflect correctly the criminal conviction assessments.

DISCUSSION

1.  Penal Code Section 654 Permitted Punishment Only on Counts 1 and 3.

The trial court sentenced appellant to prison as previously indicated, and the sentence included a prison term on each of appellant's three current convictions.   Appellant claims Penal Code section 654 barred punishment on all counts except count 1.

a. Applicable Law.

Penal Code section 654, as interpreted by our Supreme Court, prohibits multiple punishment for offenses committed during an indivisible transaction.   If all offenses are incident to one objective, the defendant may not be punished for more than one.   However, if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the defendant may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.  (Cf. People v. Bradley (2003) 111 Cal.App.4th 765, 769, fn. 3.)

Whether Penal Code 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.   Its findings will not be reversed on appeal if there is any substantial evidence to support them.  (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)   This includes implied findings.  (People v. Nguyen (1988) 204 Cal.App.3d 181, 190 (Nguyen ).)

An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission.   Commission of an element of the underlying crime, other than formation of intent to do it, is not necessary.   Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design, will be sufficient.  (People v. Jones (1999) 75 Cal.App.4th 616, 627.)

A defendant who has the specific intent to commit carjacking, who carries out a direct but ineffectual act towards the commission of the carjacking, but who does not engage in asportation of the vehicle, is guilty only of attempted carjacking.  (People v. Lopez (2003) 31 Cal.4th 1051, 1054–1055.)   Similarly, a defendant who has the specific intent to commit robbery, who carries out a direct but ineffectual act towards the commission of the robbery, but who does not engage in asportation, is guilty only of attempted robbery.   (Cf. People v. Price (1972) 25 Cal.App.3d 576, 578.)

b. Penal Code Section 654 Did Not Bar Punishment on Counts 1 and 2.

Appellant concedes he committed attempted carjacking and attempted second degree robbery.   As for the attempted robbery, there was substantial evidence as follows.   Appellant committed the requisite act, and harbored an unambiguous intent to rob, when appellant demanded Guevara's money and cell phone at gunpoint.

Appellant later attempted to rob Guevara of personal property in the car and, through Pineda, attempted to rob Guevara of his wallet.   Still later, appellant attempted to rob Guevara of his car and its contents, if any, when appellant entered the car and tried to start its engine.   In sum, there was substantial evidence of a single criminal act of attempted robbery which commenced, and was complete for purposes of the establishment of guilt, when appellant demanded Guevara's money and cell phone at gunpoint, and the attempted robbery terminated when appellant ceased his efforts to start the car's engine.

As for the attempted carjacking, there was substantial evidence as follows.   Appellant initially pointed a gun at Guevara, and later ordered him to open the car door.   However, appellant's intent when ordering Guevara to open the door was ambiguous.   Appellant could have simply (1) intended to continue feloniously assaulting Guevara,

(2) intended to shoot him, (3) intended to rob Guevara of personal property on Guevara's person, (4) intended to rob Guevara of personal property in the car, or (5) intended to rob Guevara of the car and/or commit carjacking.   Appellant also could have harbored more than one of the first four above enumerated intents without intending to commit carjacking.

Appellant later demanded Guevara's money and cell phone at gunpoint, and ordered him to exit the car.   However, appellant's intent with regard to carjacking remained ambiguous.   Neither assailant expressly stated he wanted the car.   We note that when the prosecutor asked if the gunman and accomplice asked for Guevara's car, Guevara replied only, “They asked me to get out.”   (Italics added.)

When appellant ordered Guevara to exit the car, appellant clearly harbored an intent to dispossess Guevara of the car.   But that is not the same thing as harboring an intent to take possession of the car and/or asport it.   When appellant ordered Guevara to exit the car, appellant could have simply harbored one or more of some of the previously enumerated intents which have nothing to do with an intent to commit carjacking.

Appellant's actions after ordering Guevara to exit the car, up to and including appellant's chasing of Guevara, provided substantial evidence that, throughout those events, appellant continued his attempt to rob Guevara.   However, appellant's actions during those events did not demonstrate an unambiguous intent to commit carjacking.   In sum, the trial court reasonably could have concluded that there was a single act of attempted carjacking which commenced, and was complete for purposes of the establishment of guilt, when appellant entered the car and tried to start its engine.

In light of the above, the attempted robbery and attempted carjacking were not the same act, but two criminal acts which commenced in seriatim and thus comprised a course of conduct.   Moreover, there was substantial evidence that, after the attempted robbery had commenced (when appellant demanded Guevara's money and cell phone at gunpoint), appellant chased Guevara until appellant saw Fitch coming to the aid of Guevara.   Once appellant saw Fitch, appellant had an opportunity to reflect on his actions.   Indeed, appellant in fact reflected on them when he decided to stop chasing Guevara, decided to return to the car, and in fact returned to it.   Appellant subsequently commenced the attempted carjacking by entering the car and trying to start its engine.

Appellant thus had an opportunity to reflect between the commencement of the attempted robbery and the commencement of the attempted carjacking, i.e., he had an opportunity to reflect from the time he saw Fitch to the time appellant returned to the car.   Accordingly, Penal Code section 654 did not bar multiple punishment on counts 1 and 2 because they were divisible in time.   (Cf. People v. Kwok (1998) 63 Cal.App.4th 1236, 1253–1255;  People v. Surdi (1995) 35 Cal.App.4th 685, 689.)

c. Penal Code Section 654 Barred Multiple Punishment on Counts 2 and 3, But Not on Counts 1 and 3.

As mentioned, appellant concedes he committed attempted robbery (count 2) and attempted carjacking (count 1), and appellant also concedes he committed assault with a deadly weapon.   There was substantial evidence as follows.   The attempted robbery commenced when appellant demanded Guevara's money and cell phone at gunpoint, and terminated when appellant ceased his efforts to start the car's engine.   During appellant's commission of the attempted robbery, he was an accomplice to Pineda's actions when Pineda stabbed Guevara in the chest with an object the jury found was a knife.   Pineda stabbed Guevara during a struggle in which Guevara was steadfastly resisting the efforts of his assailants to rob Guevara of personal property on his person.   Even after Pineda stabbed Guevara and Guevara fled, appellant chased him, i.e., the trial court reasonably could have concluded appellant's efforts to rob Guevara had not yet ended.

In light of the above, we conclude there was substantial evidence the assault with a deadly weapon was simply a means to an end, i.e., the end of attempting to rob Guevara, even though said assault was occasioned by Guevara's ongoing resistance.  Penal Code section 654 barred multiple punishment on counts 2 and 3. (Cf. People v. Brown (1989) 212 Cal.App.3d 1409, 1426–1427;  People v. Martinez (1985) 171 Cal.App.3d 727, 736;  People v. Amin (1978) 88 Cal.App.3d 637, 641.)   Accordingly, we will modify the judgment by staying execution of sentence on count 2.1 None of the cases cited by respondent compel a contrary conclusion.2

However, we conclude Penal Code section 654 did not bar multiple punishment on count 1 (attempted carjacking) and count 3 (assault with a deadly weapon).   Appellant, through his accomplice, committed assault with a deadly weapon.   Nonetheless, the trial court reasonably could have concluded that even though appellant committed said assault prior to the attempted carjacking, he committed said assault as part of an effort only to rob Guevara after Guevara was resisting his assailants' efforts to rob him.   For the reasons discussed previously, said assault occurred prior to appellant's demonstration by his acts that he unambiguously intended to commit carjacking.   Moreover, appellant did not commit attempted carjacking to commit said assault because the assault preceded the attempted carjacking.

2. The Trial Court's Award of Court Security Fees Was Erroneous.

Appellant claims the Penal Code section 1465.8, subdivision (a)(1) fee as to each current conviction should have been $30, not $40, because, at the time he was convicted in this case, the Penal Code section 1465.8, subdivision (a)(1) fee was $30 per conviction.   Respondent concedes it appears appellant is correct, and respondent requests we modify the judgment accordingly.   We accept respondent's concession (cf.  People v. Davis (2010) 185 Cal.App.4th 998, 1000–1001) and we will modify the judgment.

3. The Abstract of Judgment Must Be Amended to Reflect the Correct Criminal Conviction Assessments.

The reporter's transcript reflects that, during the sentencing hearing, the court imposed three $30 Government Code section 70373 criminal conviction assessments.   However, the abstract of judgment reflects the court imposed a total of $120 in said assessments.   Respondent concedes it appears the abstract of judgment is erroneous in this regard, and respondent requests we direct the trial court to prepare an amended abstract of judgment accordingly.   We accept the concession (People v. Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3) and will direct the trial court accordingly.

DISPOSITION

The judgment is modified by staying execution of sentence on appellant's conviction for attempted second degree robbery (count 2) pending completion of his sentence on his conviction for assault with a deadly weapon (count 3), such stay then to become permanent, and, as modified, the judgment is affirmed.   The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification and that the trial court imposed a total of three $30 Government Code section 70373 criminal conviction assessments.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The trial court sentenced appellant to prison for four years two months, consisting of two years six months for attempted carjacking (count 1;  Pen.Code, §§ 1170.1, subd. (a), 664, subd. (a), 215, subd. (b)) with a consecutive subordinate term of eight months for attempted robbery (count 2;  Pen.Code, §§ 1170.1, subd. (a), 18, 213, subd. (b)) and a consecutive subordinate term of one year for assault with a deadly weapon (count 3;  Pen.Code, §§ 1170.1, subd. (a);  245, subd. (a)(1)).   The parties dispute whether execution of sentence should be stayed on count 2, instead of on count 3, in the event we find, as we have, that Penal Code section 654 barred multiple punishment on both counts.  Penal Code section 654 states, in relevant part, “(a) 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, ․” (Italics added.)   The sentence on count 2 (attempted robbery) was eight months, while the sentence on count 3 (assault with a deadly weapon) was one year.   The longest potential term of imprisonment was one year for assault with a deadly weapon.   Execution of sentence on count 2 must be stayed.  (In re A.G. (2011) 193 Cal.App.4th 791, 799;  Pen.Code, § 654, subd. (a).).  FN1. The trial court sentenced appellant to prison for four years two months, consisting of two years six months for attempted carjacking (count 1;  Pen.Code, §§ 1170.1, subd. (a), 664, subd. (a), 215, subd. (b)) with a consecutive subordinate term of eight months for attempted robbery (count 2;  Pen.Code, §§ 1170.1, subd. (a), 18, 213, subd. (b)) and a consecutive subordinate term of one year for assault with a deadly weapon (count 3;  Pen.Code, §§ 1170.1, subd. (a);  245, subd. (a)(1)).   The parties dispute whether execution of sentence should be stayed on count 2, instead of on count 3, in the event we find, as we have, that Penal Code section 654 barred multiple punishment on both counts.  Penal Code section 654 states, in relevant part, “(a) 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, ․” (Italics added.)   The sentence on count 2 (attempted robbery) was eight months, while the sentence on count 3 (assault with a deadly weapon) was one year.   The longest potential term of imprisonment was one year for assault with a deadly weapon.   Execution of sentence on count 2 must be stayed.  (In re A.G. (2011) 193 Cal.App.4th 791, 799;  Pen.Code, § 654, subd. (a).)

FN2. This includes People v. Watts (1999) 76 Cal.App.4th 1250 (Watts ), and Nguyen.  Watts concluded Penal Code section 654 did not bar multiple punishment for assaults and robberies of victims where each robbery victim was assaulted when the victim attempted to comply with the assailant's demand or when the victim was attempting to escape.   (Watts,supra, 76 Cal.App.4th at p. 1265.)  Nguyen concluded section 654 did not bar multiple punishment for attempted murder and robbery where the attempted murder was an act of gratuitous violence against a helpless and unresisting victim.  (Nguyen,supra, 204 Cal.App.3d at p. 190.)   When Guevara was stabbed, he was not complying with his assailants' demands;  he was resisting his assailants and had not yet attempted to escape..  FN2. This includes People v. Watts (1999) 76 Cal.App.4th 1250 (Watts ), and Nguyen.  Watts concluded Penal Code section 654 did not bar multiple punishment for assaults and robberies of victims where each robbery victim was assaulted when the victim attempted to comply with the assailant's demand or when the victim was attempting to escape.   (Watts,supra, 76 Cal.App.4th at p. 1265.)  Nguyen concluded section 654 did not bar multiple punishment for attempted murder and robbery where the attempted murder was an act of gratuitous violence against a helpless and unresisting victim.  (Nguyen,supra, 204 Cal.App.3d at p. 190.)   When Guevara was stabbed, he was not complying with his assailants' demands;  he was resisting his assailants and had not yet attempted to escape.

CROSKEY, Acting P. J. ALDRICH, J.