PEOPLE v. BIZIEFF

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. David Andrew BIZIEFF, Defendant and Appellant.

Cr. 6738.

Decided: May 16, 1984

Quin Denvir, State Public Defender, and Mark E. Cutler, Chief Asst. State Public Defender, Sacramento, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Joel Carey and Garrick W. Chock, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

This appeal is from resentencing proceedings following remands for sentencing from this court in two separate appeals.  (5 Crim. No. 4916 [Super.Ct. No. 250330–8] and 5 Crim. No. 4861 [Super.Ct. No. 249818–6].) 1  In order to simplify matters we will refer to the cases by the names of the victims.   5 Crim. No. 4861 will be called the Miller and Butler Drug stores case;  5 Crim. No. 4916 will be called the DeLatte-Lambe-Fowler case.   We will discuss the cases separately, taking up the Miller and Butler Drug stores case first.

I.2

II. DeLATTE–LAMBE–FOWLER CASE

A. PROCEDURAL BACKGROUND

In the DeLatte-Lambe-Fowler case, Bizieff was found guilty of three counts of robbery.   Bizieff was sentenced on both cases—Miller and Butler Drug stores and DeLatte-Lambe-Fowler—in a combined sentencing hearing.   The court sentenced Bizieff to one year (one-third of the middle term of three years) for each of the robbery counts to run consecutively to each other and to the sentence in the Miller and Butler Drug stores case.

On appeal, we affirmed the judgment but remanded for resentencing because the trial court failed to state reasons for the consecutive terms.   On remand the court ran the count one robbery (DeLatte) consecutively to the term imposed for the Miller and Butler Drug stores crimes.   The count two robbery (Lambe) was ordered to run consecutively to count one.   The court enunciated the reasons for this in the following way:

“And, the basis of the finding of that is consecutive—is that under Rule 425(a), the victim—(a)(4), the victim on Count Two is separate from the victim in—on Count One.   And also, under Rule 421(a)(11), the crime involved a large amount of contraband, and was indeed a very large theft.”

B. USE OF MULTIPLE VICTIMS AS REASON FOR IMPOSITION FOR CONSECUTIVE SENTENCING WHEN PENAL CODE SECTION 654 MAY APPLY

 Of the two reasons given for running the Lambe sentence consecutive to that for the crime in which DeLatte was the victim, one—that the property taken was of great monetary value—is obviously correct.  (Cal.Rules of Court, rule 421(a)(10).)   The other reason—that the victim in count two (Lambe) is separate from the victim in count one (DeLatte)—is arguably incorrect.  (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1028, 184 Cal.Rptr. 483;  People v. Humphrey (1982) 138 Cal.App.3d 881, 882–883, 188 Cal.Rptr. 473;  cf. People v. Burney (1981) 115 Cal.App.3d 497, 504–505, 171 Cal.Rptr. 329;  People v. Bejarano (1981) 114 Cal.App.3d 693, 705, 173 Cal.Rptr. 71.)

The court may have misspoke and intended to invoke California Rules of Court, rule 425(a)(2), “[t]he crimes involved separate acts of violence or threats of violence.”   In the face of two separate sentencing proceedings both of which imposed consecutive sentences for these crimes, we need not speculate what the trial court would do if we remanded with the admonition that the court may not impose consecutive sentences for the reason that there were separate victims but may do so if the crimes involved separate acts of violence.   Perseverance counts for something, and we are confident that it is not reasonably probable that the trial court would sentence defendant differently if we imposed a third sentencing proceeding upon it.  (People v. Flores (1981) 115 Cal.App.3d 67, 80, 171 Cal.Rptr. 365;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

We turn then to the real question in this case.   As framed by Bizieff, the DeLatte and Lambe robberies

“constituted a single course of conduct with the single criminal intent and objective of stealing valuable property which was believed to be owned by the Lambe-DeLatte household.   Normally, Penal Code section 654 would preclude multiple punishment for the two offenses committed in pursuit of this single criminal objective.   However, where there are separate victims of violent crimes (such as robbery), section 654 does not apply.  (People v. Bauer (1969) 1 Cal.3d 368, 376–377, 82 Cal.Rptr. 357, 461 P.2d 637.)

“[T]he same factor should not be available to support the choice of consecutive terms over concurrent terms.”

To summarize the argument, Penal Code section 654 prohibits multiple punishment for offenses committed within one criminal transaction.   The proscription against multiple punishments for one criminal act is subject to an exception when there are separate victims of violent crimes.   If that exception is invoked, it would be a dual use of facts if the trial court then used California Rules of Court, rule 425(a)(2), “[t]he crimes involved separate acts of violence,” to make one sentence consecutive to the other.

Penal Code section 654 provides:

“An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

The purpose of this section is to insure that the defendant's punishment will be commensurate with his criminal liability.  (Neal v. State of California (1960) 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 357 P.2d 839.)

We note that the trial court did not expressly rely on Penal Code section 654 to impose multiple punishment;  section 654 was not mentioned during the sentencing of these cases at all.   Since the facts are undisputed, the applicability of section 654 is a question of law.  (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5, 153 Cal.Rptr. 40, 591 P.2d 63.)

C. FACTS

At about 8:30 p.m. on September 27, 1979, Candace DeLatte returned to her residence at 2106 West Kearney in Fresno.   While walking to the house, she saw Bizieff crouched down by some bushes holding a rifle.   He pointed the rifle at her, told her to freeze and said he wanted her jewelry, money, silver and guns.

DeLatte took off her ring and gave it to him.   She also threw her purse at him.   Bizieff grabbed her by the arm and started walking her to the house.   DeLatte was frightened and began to run.   She stopped when he aimed the rifle at her and told her to stop or she would get hurt.

Bizieff asked her when her husband was coming home.   Hoping he would leave, DeLatte said she expected him anytime.   He stated he wanted the jewelry and knew her husband had a $5,000 diamond.   Following his instructions, DeLatte turned off the burglar alarm.   They went inside and turned on the lights.   Bizieff took masking tape and blindfolded her, tying her hands with rope.   She could only see in a downward direction.   After further discussion regarding the burglar alarm, DeLatte told Bizieff where different valuables were located.   He ransacked the back bedroom, taking jewelry and putting it into a suitcase.   She told him there was a rifle in the closet but did not tell him about a handgun hidden under a bathroom sink.

They returned to the living room.   Bizieff pulled out the telephone wires and tied her feet.   He roamed the house looking for valuables, placing them in the foyer.   He unhooked and stacked the stereo located in the living room.   He removed the silver from the kitchen.   Fur and leather coats were taken from a hall closet.   Finally, as an afterthought, he asked her if she had any drugs, to which she replied no.

While waiting in the foyer, having a drink which he removed from the refrigerator, Bizieff went through an antique cash register and found ammunition.   He became angry and demanded to know where the gun was.   DeLatte told him about the gun under the sink in the bathroom.

Anthony Lambe arrived home at approximately 10 p.m.   He entered through the back door and saw DeLatte sitting on the couch.   As he walked toward her, he heard Bizieff telling him to freeze.   Lambe turned and saw a gun pointing at him.

At defendant's request, Lambe turned off the lights.   Lambe was told to kneel;  Bizieff blindfolded him with masking tape.3  Lambe slipped off his diamond ring, put it on the floor and knelt on it.   Bizieff removed Lambe's watch and asked for the ring.   While pleading ignorance, Lambe heard the gun go off and immediately informed Bizieff it was on the floor.   He found it and put it in his pocket.

Lambe was marched to the master bedroom and told to lie on the floor.   Bizieff tied his hands and feet with a telephone cord and questioned him as to the location of valuables.   He went back and forth between the two victims corroborating their information.   He eventually left after he felt he had gathered all the victims' valuable possessions.   The victims freed themselves and called the police.

D. DISCUSSION

 The robberies were well separated temporally if not spatially.   The robbery of DeLatte was completed before the robbery of Lambe commenced in the sense that had officers, instead of Lambe, come upon the scene and arrested Bizieff, there would have been a sufficient asportation to convict him for the crime of robbery.  (People v. LeBlanc (1972) 23 Cal.App.3d 902, 909, 100 Cal.Rptr. 493.)  (We recognize that for other purposes the robbery continued.   (See People v. Ramos (1982) 30 Cal.3d 553, 586–587, 180 Cal.Rptr. 266, 639 P.2d 908.))

The Penal Code section 654 prohibition against double punishment

“is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute ․  The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.”  (People v. Bauer (1969) 1 Cal.3d 368, 376, 82 Cal.Rptr. 357, 461 P.2d 637.)

Bizieff had more than one intent and objective.   He wanted to rob DeLatte of her personal effects and of articles in the DeLatte-Lambe residence.   He also wished to rob Lambe of his jewelry, as evidenced from his inquiry about when he would return home and his waiting for Lambe to arrive.

There is no Penal Code section 654 prohibition if the criminal acts are separated in time.   Thus, in People v. Howell (1966) 245 Cal.App.2d 787, 54 Cal.Rptr. 92, the defendant, in a state of intoxication, drove for six miles.   In one judicial district he was involved in a hit and run accident.   He proceeded to another and was arrested for drunk driving.   He was prosecuted and sentenced for the hit and run in the first judicial district.   Later, he was prosecuted for drunk driving in the second.   His motion for dismissal on the ground of Penal Code section 654 was granted.   The People appealed;  the appellate court reversed.   Although there was a continuous act of driving while intoxicated, the drunk driving observed in the second judicial district was separated in time and place from the hit and run.

Our Supreme Court, citing Howell and two other cases, stated:  “It seems clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.”   (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11, 105 Cal.Rptr. 681, 504 P.2d 905.)

The two robberies—DeLatte and Lambe—did not constitute a single transaction.   They were separate and distinct, with a time period between the first and the second as Bizieff awaited Lambe's arrival.   They were not part of “an indivisible transaction” (People v. Bauer, supra, 1 Cal.3d at p. 376, 82 Cal.Rptr. 357, 461 P.2d 637), but in fact were separate and distinct robberies.   Nor were they “an act or omission” as those words are used in Penal Code section 654.   There were two separate acts.   The fact that they occurred serially and at the same place should not place them within the ambit of section 654 any more than if the two robberies had been at the same place, but on different days.

On the above analysis, Penal Code section 654 simply does not come into play at all.   Contrary to defendant's contention, it is not necessary to invoke an exception to the Penal Code section 654 rule.4  Assuming, but not deciding, that if the exception (separate acts against different victims during a single transaction) to Penal Code section 654 applied there would be a dual use of facts if the court used the same factor (that the crimes involved separate acts of violence in order to impose consecutive terms), such a result does not apply here.

We summarize.   The DeLatte robbery was sufficiently complete to constitute a crime before Lambe arrived home.   The loot had not been taken from the house, but only because Bizieff awaited additional prey.   After a time interval, the Lambe robbery was committed.   There was more than one “act or omission” (Pen.Code, § 654);  the crimes were not “an indivisible transaction” (Bauer, supra, at p. 376, 82 Cal.Rptr. 357, 461 P.2d 637);  the crimes were sufficiently disparate that Penal Code section 654 has no application.   It follows that there was no dual use of facts.

III. CONCLUSION

The judgments are affirmed.

FOOTNOTES

1.   This court has taken judicial notice of the clerk's and reporter's transcripts, briefs, letters, and slip opinions in the two previous appeals.

2.   See footnote *, ante.

3.   Lambe testified he could see through a slit in the masking tape.   At trial, he positively identified Bizieff as the robber.

4.   The exception is that where a single transaction involves separate acts of violence against different victims, the defendant can be punished for each act of violence.  (People v. Bauer, supra, 1 Cal.3d at p. 377, 82 Cal.Rptr. 357, 461 P.2d 637;  Neal v. State of California, supra, 55 Cal.2d 11, 20–21, 9 Cal.Rptr. 607, 357 P.2d 839.)

ANDREEN, Associate Justice.

FRANSON, Acting P.J., and HAMLIN, J., concur.