PEOPLE v. FOURNIER

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Vincent FOURNIER aka Pedro Manuel Deame, Defendant and Appellant.

B020142.

Decided: May 18, 1987

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert F. Katz and Susanne C. Wylie, Deputy Attys. Gen., for plaintiff and respondent. Frank O. Bell, Jr., Public Defender, and Sandra L. Goldsmith, Deputy Public Defender, under appointment by the Court of Appeal, for defendant and appellant.

Defendant was charged in a thirteen-count indictment with robbery, assault and false imprisonment.   We reverse in part and remand for resentencing.

This case involves two separate episodes:  in one, defendant held up a market, robbed a cashier and relieved a security guard of his revolver;  in the other, defendant burglarized a family residence, terrorized the occupants for two hours, committed physical assaults on members of the household, threatened their lives and fired a shot.   In the course of his attempts to obtain money from the family members, he secured possession of the purse of one of the residents, looked through it, removed all its contents, and seeing no money, eventually abandoned it.   He also seized a child's piggy bank, but on discovering that it contained only quarters and dollars, he threw it on the floor, saying that its contents were not worth taking.

I

 Defendant contends that the seizure of the purse and piggy bank were not robberies as neither were takings.   Nor, defendant argues, is there any evidence of defendant's intent to permanently deprive.   Defendant is wrong on both counts.   The seizure of personal property at gunpoint accompanied by physical assault, threats of death and fired shots is sufficient to constitute a taking.   It also allows an inference that at the moment of the taking the defendant harbored the intent to permanently deprive.   That the defendant later decided that the seized property was valueless and abandoned it cannot “unring the bell.”   The seizure had been committed with the purpose of theft and it was a mere fortuity that the property's value did not meet the defendant's expectations.

II

 The defendant next objects that his convictions for the offenses committed during the residential burglary must be reversed because the trial court did not instruct sua sponte on the defense of intoxication.   One of the victims of that episode, a teenager, testified that she smelled alcohol on the defendant's breath and that his eyes were glassy.   The police officer who later interviewed the defendant stated that he appeared normal and was not under the influence of anything.   Aside from this, there is no other evidence on the issue of intoxication nor was this defense argued by counsel.   The defendant himself did not testify, nor did any witness observe that the defendant's speech or coordination were impaired.   While it is the duty of the trial court to give instructions sua sponte if there is substantial evidence to support a defense (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913 [overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1] ), no such evidence is presented here.   At best, the victim's testimony raises the possibility that the defendant may have been drinking.   It is not sufficiently substantial however, to require a sua sponte instruction that the defendant may have been too intoxicated to form an intent.

III

 The information charged the defendant in the residential burglary with seven counts of assault with a firearm (Pen.Code, § 245(a)(2)).   Six of these counts were alleged against individual members of the family.   For reasons unknown, however, one count of assault with a firearm (count II) alleged two victims.   Assaults upon separate victims, even though committed in a single act, are separately punishable offenses and should be charged separately.  (People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.)   More importantly, however, the defendant objects that the jurors were not instructed on count 11 that their verdict must be unanimous on which individual was the victim of the assaults.   Similarly, count 13 alleges that the defendant falsely imprisoned two victims (Pen.Code, § 236).   In this case, no instruction was given that the jury must agree unanimously on the victim or specific acts that constituted the offense.

 We have little choice but to reverse these convictions.  Article I, section 16 of the California Constitution requires that criminal jury verdicts be unanimous.   Reversal is required where the information erroneously alleges two victims in an assault count and where no instruction on the need to agree unanimously on the victim has been given.  (People v. McNeill (1980) 112 Cal.App.3d 330, 334–336, 169 Cal.Rptr. 313.)   Accordingly, counts 11 and 13 are reversed and remanded to the trial court where the People may seek retrial at its discretion.

IV

The defendant also alleges several errors in sentencing with which we agree and accordingly remand.   Since we are reversing counts 11 and 13, we need not deal with the contentions directed to these convictions.

1) The defendant contends, and the People agree, that the assault with a firearm conviction in count 6 should not carry a separate sentence under Penal Code section 654 as this assault was merely incidental to the robbery of the purse charged in count 5.   We agree and remand this case to the trial court for resentencing.

 2) We do not agree, however, that a sentence for the assault conviction in count 7 is precluded by the sentence for the robbery of the piggy bank in count 3.   Following this robbery and the arrival of the police, the defendant held this victim hostage, intending either escape or revenge.   The intent to commit this assault was therefore formed after the robbery was abandoned and does not constitute an indivisible course of conduct.

3) The defendant also argues that the burglary of a residence conviction in count 4 is not separately punishable as it is indivisible from the robberies that followed.   The People do not contest this and we agree.

 4) The court also improperly imposed enhancement for use of a firearm (Pen.Code, § 12022.5) on virtually all of the convictions.   The People admit that at most the firearm was used in three separate incidents—the robbery of the market, the robbery and assaults on the family members and the final assault on the victim held hostage.   We agree.

As we are remanding, we need not address the issue of whether adequate reasons for imposing the use of firearm enhancements were stated on the record.

The convictions on counts 11 and 13 are reversed and the case remanded for resentencing consistent with this opinion.   In all other respects, the judgment is affirmed.

KINGSLEY, Acting Presiding Justice.

McCLOSKY and COLE,* JJ., concur.