Filed 4/29/14 P. v. Ornelas CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038211
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1112602)

         v.

JUAN ANTONIO ORNELAS,

         Defendant and Appellant.


         Defendant Juan Antonio Ornelas robbed a jewelry store and, during the robbery,
stabbed the jewelry store’s owner multiple times, inflicting several wounds to the
victim’s throat. As the victim lay bleeding on the floor, Ornelas ransacked the store, took
the key to the victim’s car from his pocket and drove away. Ornelas was quickly
apprehended because he had previously given the store owner his first name and cell
phone number which was written down on an envelope in the store. Video surveillance
cameras in the store also recorded the event.
         A jury convicted Ornelas of attempted murder (Pen. Code, §§ 664, 187, count 1),1
second degree robbery (§§ 211, 212.5, subd. (c), count 2), second degree burglary (§§
459, 460, subd. (b), count 3), and theft or unauthorized use of a vehicle (Veh. Code, §
10851, subd. (a), count 4). The jury found not true the allegation that Ornelas acted
willfully, deliberately, and with premeditation in committing the attempted murder (§§
664, 187, 189). However, the jury did find true the remaining allegations that Ornelas, in
         1
             Further unspecified statutory references are to the Penal Code.
connection with counts 1 through 3, personally inflicted great bodily injury (§ 12022.7,
subd. (a)) and personally used a deadly and dangerous weapon (a knife) (§ 12022, subd.
(b)(1)).
       Ornelas was sentenced to a total term of 14 years in state prison.
       On appeal, Ornelas contends the trial court violated section 654 when it imposed
separate punishments for: (1) the auto theft; and (2) the robbery.
       We reject Ornelas’s arguments and will affirm.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       A.     The prosecution’s case
       On August 1, 2011, San Jose police responded to a report of an armed robbery at a
jewelry store. When they arrived at the address, they met Alberto Gomez outside, who
told them his father had been stabbed. Inside the store, Victorio Gomez was lying on the
ground, bleeding heavily from several knife wounds, three to five of which were on his
neck. The first officer to enter the store testified he saw two large pools of blood on the
floor, one of which was three and a half feet in diameter. The officer applied pressure to
Victorio’s neck wounds until paramedics arrived and assessed Victorio’s other injuries.
The officer, who had 22 years experience and had investigated more than 100 violent
crimes, was certain Victorio would die given the amount of blood he had lost.
       Victorio was transported to the hospital where he was successfully treated for his
injuries. One of the officers at the crime scene was informed that Victorio had written
down his attacker’s first name and telephone number on an envelope which was on the
desk at his store. The officer was also advised that Victorio kept a handgun in the desk
drawer. After about 10 minutes of searching, the officer found the envelope and relayed
the information to a dispatcher to see if they could get a full name and address for the
suspect. The officer could not locate Victorio’s gun, but did find an empty holster and
ammunition.



                                             2
          The jewelry store was equipped with video surveillance cameras. Once
paramedics began treating his father, Alberto and another officer reviewed the video
recordings to see who had attacked Victorio. In those recordings, Ornelas is seen
entering the store earlier in the day and talking to Victorio for 30 to 40 minutes. The
recording shows Ornelas leave and then return about 15 minutes later, after it is dark
outside. Ornelas followed Victorio towards the work area in the back of the store, then as
Victorio turns around, Ornelas hits him. Another recording showed Ornelas had stopped
by the store a few days earlier, for about 10 minutes.
          On August 2, 2011, Ornelas was arrested at the Wendy’s restaurant where he
worked.
          Maria Estela Garcia Cabrera testified she had been married to Ornelas since May
2010 and they were still married on August 1, 2011. She said Ornelas had that day off
and came home at 10:00 p.m. She did not know where he had been earlier, but said he
was not acting strangely. She did not speak to him because they had been fighting a lot
lately, due to the fact that he never had money to pay the rent or buy diapers for their
(then) four-month old son. After Ornelas got home that night, she left him with their son
and went with a friend to get money out of the bank to pay the rent. Cabrera said she was
not aware at the time that Ornelas had been borrowing money from anyone. When she
returned from the bank, Ornelas was watching television. Cabrera took a bath and went
to bed.
          Cabrera said she never had a conversation with Ornelas about getting a gold
bracelet for their son. He did call her on the afternoon of August 1, 2011, but simply
asked her where she was.
          On cross-examination, Cabrera said Ornelas has always had two jobs and works
hard. Over the 10 years she has known him, she has never seen him get into fights, or get
into trouble with the law.



                                              3
       Victorio’s wife, Teresa, testified she was at home on the evening of August 1,
2011, waiting for Victorio to come home from the store. At some point after 7:00 p.m.,
she called him to see why he was late. Victorio told her he was waiting for a client and
would be home a little later. Teresa called him twice more that evening and each time
Victorio said he was still waiting for the customer to arrive. After a number of minutes
passed, Teresa called a fourth time but this time the phone rang many times before
Victorio answered. He told her to have their son call the police because he had been
stabbed and was bleeding. She told Alberto to call the police and then the two of them
went to the store. Alberto went inside first and would not let her enter.
       Alberto testified he was at home with his mother on the evening of August 1, and
she called Victorio to see where he was. She began screaming at him to get to the store
because Victorio had been wounded and was bleeding. When he arrived at the store, the
door was unlocked, but he could not see anyone inside. As he entered the work area in
back, he saw Victorio lying on the floor, bleeding profusely, with his eyes rolled back in
his head. Alberto called 911 and applied pressure to Victorio’s neck wound.
       Victorio, who was 63 at the time of trial, testified Ornelas first came into his store
on July 28, 2011 and asked him about having a gold bracelet made for his child. Ornelas
told him he had some gold Victorio could use to make the bracelet and would come back
another time. Victorio asked for Ornelas’s telephone number which he wrote down,
along with Ornelas’s first name, on an envelope.
       On August 1, 2011, Victorio called Ornelas to see if he was still planning on
having a bracelet made. Ornelas asked if he could meet Victorio at the shop at 7:30 p.m.,
30 minutes after the shop’s normal closing time, because he claimed he did not get off
work until 7:30 p.m. Around 7:30 p.m., Ornelas arrived and said he needed to call his
wife to bring the gold for the bracelet. Ornelas seemed to call someone on his phone and
Victorio heard him say, “Bring the gold.” They waited about half an hour, and no one



                                              4
showed. In the meantime, Teresa called and asked Victorio where he was and he
explained he was working with a customer.
       Ornelas said he would call his wife again and appeared to call someone. When no
one arrived after a number of minutes, Victorio suggested they do it another day. Ornelas
said he would go get the gold himself, and Victorio agreed to wait.
       About 20 minutes later, Ornelas returned and claimed he had the gold with him.
Victorio headed towards his work bench, and Ornelas slashed his neck.2 Victorio
grabbed for the knife, but the blade cut his finger and he had to let go. Ornelas repeatedly
stabbed Victorio in the neck and scratched his stomach with the knife. Victorio tripped
over some furniture and fell to the floor, where Ornelas started to strangle him. Victorio
somehow managed to regain his footing and tried to get to the gun he kept in his work
bench, but could not reach it.
       Ornelas grabbed Victorio’s arm and said, “You’re trying to fuck me up.” He put
Victorio in a headlock and Victorio lost consciousness for a period of time. When he
came to, he tried to call 911 but could not get the phone to work. Teresa called and
Victorio was finally able to answer the phone and tell her he had been attacked. He
remembers later waking up in the hospital, where police officers asked him questions.
Victorio identified Ornelas as his attacker when shown a photo lineup. Victorio
described the knife Ornelas used as thin and black, without a serrated edge, and said it
looked like a kitchen knife. Before trial, a detective showed him a knife, but he could not
identify it as the one Ornelas used.
       Victorio suffered a fractured rib, and multiple stab wounds, including several to
his neck. He was given four units of blood in the emergency room, and was placed on
“massive transfusion blood protocol.”

       2
        In court, Victorio watched the video footage and confirmed that it showed the
beginning of the assault.


                                             5
       Ornelas took $700 or $800 in cash from Victorio’s pockets, along with various
pieces of jewelry from the store. Ornelas also took the key to Victorio’s BMW. Victorio
testified that Ornelas attacked him without first asking him for money or gold. He did
not recall telling police officers that Ornelas first demanded that he hand over his
property before stabbing him. However, Victorio spoke to officers at the hospital after
the attack and could not remember everything he said to them at the time.
       Officer Jose Rodriguez testified that he interviewed Victorio at the hospital.
According to Rodriguez, Victorio told him Ornelas brandished a knife and demanded his
money and gold. Victorio gave Ornelas the money in his pocket and told him he could
take anything he wanted. Ornelas then stabbed him.
       Officer Jesus Mendoza interviewed Ornelas following his arrest. Ornelas said he
originally intended to rob the jewelry store on July 28, 2011, but changed his mind. After
Victorio called him on August 1, 2011, to ask about the bracelet, Ornelas told him he was
still interested and wanted to know what time the shop closed. Ornelas went to the store
at about 7:30 that night and pretended to call his wife to bring the gold for the bracelet.
He left the store and walked around for 20 minutes before returning. Ornelas said when
he got back inside the store, he demanded money from Victorio before stabbing him.
Ornelas thought he had killed Victorio. He then took jewelry and Victorio’s gun from
under the counter and put them in a backpack. Ornelas drove off in Victorio’s car.
       Ornelas had an extra set of clothing, so he changed his clothes and dumped the
backpack with all its contents at a garbage can near a specific bus stop. He left the car in
the parking lot of a Home Depot. At the end of the interview, Ornelas wrote a letter to
Victorio apologizing.
       That evening, police found Victorio’s car where Ornelas said he left it. However,
they could not find the backpack or any of the stolen items in the garbage can that
Ornelas had identified. The officers later found the stolen jewelry in a plastic bag that
was wrapped in a sweatshirt at the Wendy’s where Ornelas worked.

                                              6
       In November 2011, Marisol Nunez, who worked at Wendy’s with Ornelas, found
a long, thin knife at the restaurant in the corner of a metal cabinet underneath a sink, i.e.,
an area that the employees rarely checked. The knife was turned over to police.
       Evangelina Cervantes Sanchez testified she met Ornelas through his wife and he
asked to borrow $500 from her in February 2011, claiming to need the money for rent,
for a car payment and to pay his wife’s medical bills. Though she did not have $500, she
did loan him $250, which was a significant amount of money to her. About three months
later, Sanchez began asking him about repaying the loan, and Ornelas repeatedly told her
he would give it to her “someday.”
       The parties stipulated that the forensic criminalist tested the sweatshirt found at the
Wendy’s restaurant. The left cuff had a mixture of blood from two contributors whose
identities were uncertain, but there was a “strong inclusion” that the blood belonged to
Ornelas and Victorio.3 The right cuff had Ornelas’s DNA on it and there was an
inclusion4 of DNA from Victorio. Ornelas’s DNA was on the hood of the sweatshirt.
       B.       Defense case
       Ornelas testified on his own behalf. In April 2011, he began having financial
problems when he was laid off from one of his jobs. He had trouble paying the rent, as
well as making the payments on a truck he had bought. He also had increased expenses
because his wife gave birth to their son that year. Ornelas began borrowing money from
friends and family members, but his job at Wendy’s did not allow him to cover his
expenses and repay the money he owed. When people began asking to be repaid, Ornelas
became stressed and began losing weight. He never told his wife how serious their
financial problems were.



       3
           A “strong inclusion” is a step directly below identification.
       4
           An inclusion is a step below “strong inclusion.”


                                                7
       Ornelas admitted he robbed and stabbed Victorio. He thought about robbing
Victorio when he first entered the store in late July to talk to him about buying a bracelet
for his son, but changed his mind. When he returned to the store on August 1, he
pretended to call his wife, then left and went to the liquor store next door. He again
thought about robbing Victorio in order to pay off his debts, and sat down on a bench
across the street. He saw a knife on the ground and picked it up. He took the knife with
him when he reentered the jewelry store.
       Once inside, Ornelas pulled out the knife and asked Victorio for money. Victorio
grabbed Ornelas’s wrist and tried to take the knife away. They began struggling.
Ornelas was scared and tried to get away, but Victorio put him in a headlock and took
him to the ground. Victorio then tried to get his gun, and Ornelas grabbed him, falling on
top of him. Victorio started to strangle Ornelas, and Ornelas began to choke. Ornelas
stabbed Victorio several times, swinging wildly in an attempt to get Victorio to let him
go. Victorio let go, and Ornelas saw that he was bleeding. There was a lot of blood
coming from Victorio’s neck and Ornelas felt bad, thinking he had killed him. Because
he was stressed and nervous, he did not call 911.
       For the next 10 to 15 minutes, Ornelas ransacked the store, taking jewelry from the
counter and from envelopes. He took the gun from the drawer and put all the items in the
backpack. Ornelas went through Victorio’s pockets, took the keys to his car, and drove
off. He parked Victorio’s car at Home Depot, took off his bloody sweatshirt and walked
home. Along the way, he left the backpack containing the gun and the knife near a
garbage can. He admitted lying to the police about also leaving the jewelry in that
backpack. When he got home, he gave the stolen cash5 to his wife.



       5
         In a response to a juror’s question, Ornelas said Victorio handed the money over
to him, though he did not specify when that occurred.


                                             8
       Maribel Garcia, Ornelas’s sister-in-law, testified she knew he was having financial
problems in 2011. That year, she could see that Ornelas was losing weight, and he
looked sickly and depressed. Over a one-month period, he asked to borrow money three
different times and each time she agreed, lending him a total of $2,500. Ornelas asked
her not to tell his wife about the debt and Garcia agreed to keep it a secret. At the end of
July 2011, Garcia asked him to pay her back, but he did not.
       Rodolfo Cervantes Vazquez, Ornelas’s uncle, testified he knew Ornelas began
having financial problems after he got married in 2011. Within the past year, prior to
Ornelas being arrested, Vazquez gave or loaned him a total of about $2,000. Vazquez
said his brother also loaned Ornelas some money.
       Espiridion Cervantes Alonzo, Ornelas’s grandfather, gave Ornelas a total of about
$700 in 2011. The week before he was arrested, Ornelas asked him for $1,500, but
Alonzo did not have the money.
       C.     Verdict and sentencing
       The jury found Ornelas guilty of attempted murder (§§ 664, subd. (a), 187, count
1), second degree robbery (count 2), second degree burglary (count 3) and theft or
unauthorized use of a vehicle (count 4). With respect to the attempted murder, robbery
and burglary charges, the jury found true the special allegations that Ornelas personally
inflicted great bodily injury on Victorio and personally used a deadly or dangerous
weapon in committing those offenses. The jury found not true the special allegation that
Ornelas acted willfully, deliberately and with premeditation in committing the attempted
murder, however.
       The trial court sentenced Ornelas to an aggregate term of 14 years in prison, which
included the aggravated term of nine years on count 1 (attempted murder), three years for
the personal infliction of great bodily injury enhancement (§ 12022.7, subd. (a)), one year
for the personal use of a deadly or dangerous weapon enhancement (§ 12022, subd.
(b)(1)), one year (one third the middle term) on count 2 (second degree robbery), and a

                                              9
concurrent term of two years on count 4 (auto theft). Pursuant to section 654, the trial
court stayed the sentence on count 3 as well as the sentence enhancements on counts 2
and 3.
II.      DISCUSSION
         A.     Auto theft sentence
         Ornelas argues the trial court erred by failing to stay the concurrent two year
sentence for auto theft pursuant to section 654. The theft of Victorio’s BMW was part of
an “indivisible transaction” and thus Ornelas should not be subject to multiple
punishments. We disagree.
                1.     Statutory principles and standard of review
         Section 654 provides in 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, but in no case shall the act or omission be
punished under more than one provision. . . .”
         “[I]t is well settled that section 654 applies not only where there was but one act in
the ordinary sense, but also where there was a course of conduct which violated more
than one statute but nevertheless constituted an indivisible transaction. [Citation.]
Whether a course of conduct is indivisible depends upon the intent and objective of the
actor.” (People v. Perez (1979) 23 Cal.3d 545, 551.) If all the offenses were incident to
one objective, the defendant may not be punished for more than one, e.g., a defendant
who attempts murder by setting fire to the victim’s bedroom could not be punished for
both arson and attempted murder, because his primary objective was to kill, and the arson
was the means of accomplishing that objective and thus merely incidental to it. (Ibid.)
“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.”

                                               10
(Ibid.) For example, the objectives to drive while intoxicated and to drive with a
suspended license were separately punishable, though they occurred simultaneously. (Id.
at p. 552.) The purpose of the protection against multiple punishments is to insure that
the defendant’s punishment will be commensurate with his criminal culpability. (Id. at p.
552, fn. 4.)
       It is generally a factual question for the sentencing court whether a defendant’s
multiple crimes involved multiple objectives. (People v. Coleman (1989) 48 Cal.3d 112,
162.) When the trial court makes no express findings on the issue, its imposition of
separate sentence terms may constitute an implied finding that the offenses were
divisible. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) “A trial court’s implied
finding that a defendant harbored a separate intent and objective for each offense will be
upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68
Cal.App.4th 509, 512.)
               2.    The robbery and auto theft sentences were not subject to section 654
       Ornelas relies principally on People v. Bauer (1969) 1 Cal.3d 368 (Bauer) where
the Supreme Court found, under the facts presented in that case, separate sentences for
robbery and car theft violated the section 654 prohibition on double punishment. In
Bauer, the defendant and an accomplice entered the home of three elderly women whom
they tied up and blindfolded. The two robbers ransacked the house, carrying the loot to
the garage, before driving away in a car belonging to one of the victims. (Bauer, supra,
at p. 372.) Defendant was convicted and sentenced to concurrent terms for robbery and
car theft. (Ibid.) The Supreme Court found the transaction was a single, indivisible
course of criminal conduct, because the defendant, who carried the property to the car in
the course of the robbery, evidently intended all along to take the car and drive away with
his loot. (Id. at p. 377.) The court rejected the People’s argument that since the robbery
was complete before the car theft the acts were sufficiently independent to warrant
separate punishment. The court stated, “where a defendant robs his victim in one

                                            11
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.” (Ibid.) “Moreover, the evidence in the instant case does not
show that the theft of the car was an afterthought but indicates to the contrary that the
robbers, who while ransacking the house were carrying the stolen property to the garage,
formed the intent to steal the car during the robbery if not before it.” (Ibid.)
       The instant case is distinguishable from Bauer. Here, Ornelas intended to rob the
jewelry store. Ornelas testified to having no other intent at any time prior to or during the
robbery. Since he was apparently unwilling to break into the store when it was
unoccupied, Ornelas employed a ruse to convince Victorio to let him in after hours.
Robbing Victorio of what was in his pockets and looting the store of jewelry was a
continuous transaction. It was only by rifling through Victorio’s pockets, however, that
Ornelas discovered there was another item of property he could take--Victorio’s car.
       Unlike the defendant in Bauer, it does not appear Ornelas formed the intent to take
the victim’s automobile prior to or during the robbery. He was not carrying loot to the
car during the robbery. There is no evidence that Ornelas even knew Victorio used a car
to get to the store, let alone that it would be parked nearby so that it could be used as a
getaway vehicle. Since everything Ornelas took from the store fit into a backpack, a
vehicle was not even necessary to transport what he had stolen. Rather, it was only upon
discovering the key in Victorio’s pocket that Ornelas formed the separate intent to use
Victorio’s BMW to flee the scene.6 This conclusion is further supported by the fact that
Ornelas quickly abandoned the car, rather than attempting to sell it, which presumably he
would have done had it been part of his original plan to come up with money to support
his family as well as pay his rent and outstanding debts. Accordingly, we find substantial
evidence supports the trial court’s implied finding that Ornelas harbored a separate intent

       6
           No one asked Ornelas about his original escape plan, assuming he had one.


                                              12
and objective in taking Victorio’s automobile upon discovering the keys during the
robbery.

       3.       The attempted murder and robbery sentences were not subject to section
                654
       Ornelas further argues the trial court erred by not staying the sentence on his
conviction for second degree robbery because the robbery and the attempted murder were
part of an indivisible transaction. Ornelas only intended to rob Victorio, not kill him, and
the robbery took place only after Victorio had been stabbed and was unable to resist.
       Ornelas relies on cases which hold a defendant should not be separately punished
for taking property by robbery, burglary or theft when that objective is accomplished by
means of assault or murder. (See People v. Meredith (1981) 29 Cal.3d 682, 695-696
[victim shot to death while resisting a robbery]; People v. Glaude (1983) 141 Cal.App.3d
633 [one victim shot and killed, another kidnaped, in course of robbery].)
       In other cases, however, appellate courts have upheld findings that a separate
intent was manifest in the assault or murder even where those crimes were coincident
with a taking of the victim’s property.
       In People v. Nelson, supra, 211 Cal.App.3d 634, the appellate court upheld the
imposition of terms for two assaults consecutive to a burglary term. In the course of a
burglary, the two burglars encountered the two occupants of the house and engaged in a
somewhat prolonged physical confrontation. The appellate court reasoned: “On this
record, it is reasonable to infer, as we assume the trial judge did, that theft was not the
burglars’ only object and purpose. Rather, they deliberately chose to enter the McLeod
residence while the victims were at home, knowing as they must that their presence
reduced the chances of a successful theft, because separate and apart from thievery they
intended to inflict physical harm upon the victims.” (Id. at p. 639.)
       In other cases, the timing of the assault relative to the taking appears to be less
important than the necessity for the assaultive action, or more precisely, the lack thereof.


                                              13
In People v. Jenkins (1987) 196 Cal.App.3d 394 (disapproved on another ground by
People v. Brown (1993) 6 Cal.4th 322, 336, fn. 12), the defendant brandished a handgun
and demanded money. The defendant fired a shot at the victim when the victim initially
denied having money and fired a second shot at the victim after collecting the victim’s
money. The appellate court concluded: “Appellant contends that both shots were fired
with the same objective, to facilitate the robbery. We disagree. The second shot was
completely unnecessary to the robbery, and appears to have been a gratuitous act of
violence.” (People v. Jenkins, supra, at p. 406.)
       In People v. Nguyen (1988) 204 Cal.App.3d 181 (Nguyen) the appellate court
concluded there was substantial evidence to support the sentencing court’s implied
finding of divisibility. The defendant in that case remained near the cash register, while
an accomplice took the victim into a back room. After taking the victim’s belongings,
the accomplice made the victim lie on the floor before shooting and killing him. “This
act constituted an example of gratuitous violence against a helpless and unresisting victim
which has traditionally been viewed as not ‘incidental’ to robbery for purposes of Penal
Code section 654.” (Id. at p. 190.) “The defense nevertheless argues Penal Code section
654 bars multiple sentences here because the facts suggest the clerk was shot in order to
eliminate him as a witness or to facilitate the assailants’ escape. Perhaps; but at some
point the means to achieve an objective may become so extreme they can no longer be
termed ‘incidental’ and must be considered to express a different and a more sinister goal
than mere successful commission of the original crime.” (Id. at p. 191.) “It is one thing
to commit a criminal act in order to accomplish another; Penal Code section 654 applies
there. But that section cannot, and should not, be stretched to cover gratuitous violence
or other criminal acts far beyond those reasonably necessary to accomplish the original
offense.” (Ibid.)
       People v. Cleveland (2001) 87 Cal.App.4th 263, 272 (Cleveland) quoted Nguyen
with approval and held: “Sufficient evidence existed for the court to conclude Cleveland

                                            14
harbored divisible intents in committing two separate crimes--robbery and attempted
murder of Freeman. We do not agree with Cleveland that both crimes were committed
pursuant to the intent to rob Freeman of his Walkman. As the trial court observed, the
amount of force used in taking the Walkman was far more than necessary to achieve one
objective. Cleveland repeatedly hit his 66-year-old feeble, unresisting victim on the head
and body with a two-by-four board. Cleveland struck Freeman until the board broke and
left him unconscious. While it is true that attempted murder can, under some
circumstances, constitute the ‘force’ necessary to commit a robbery, here, it was not the
necessary force.” (Id. at pp. 271-272, fn. omitted.) “The finding Cleveland had separate
and simultaneous intents is further bolstered by the evidence that Cleveland and Freeman
had a history of negative interaction.” (Id. at p. 272.)
       We agree with this line of cases which hold that even where a defendant’s initial
objective appears to be the taking of another person’s property or money, evidence of
violence or any other conduct by the defendant unnecessary to accomplish the taking may
support a finding that the defendant developed a separate and different, though perhaps
simultaneous, intent.
       Ornelas seeks to distinguish Cleveland on the grounds that he and Victorio had no
“history of negative interaction” which would explain Ornelas’s violent assault.
(Cleveland, supra, 87 Cal.App.4th at p. 272.) We are not persuaded. The prior history
between the victim and the defendant in Cleveland was additional evidence to support
the trial court’s finding of separate intents in that case. It was not the only, let alone the
decisive, evidence to support that finding. Rather, what matters is the amount of force
used or the nature of the coinciding assault. Did the defendant use force sufficient to
commit the robbery or was the amount of force employed above and beyond that
reasonably necessary to take the victim’s property, thereby transmuting the act into
something more? An offense committed to achieve another offense may “at some point .
. . become so extreme [that the other offense] can no longer be termed ‘incidental’ and

                                              15
must be considered to express a different and a more sinister goal than mere successful
commission of the original crime.” (Nguyen, supra, 204 Cal.App.3d at p. 191.)
       In this case, the evidence supported two possible scenarios:7 (1) Ornelas, upon
returning to the store and beginning to follow Victorio to the back room, attacked him
and slashed him in the neck without warning, then continued to stab and slash him until
he lay helpless on the floor, bleeding profusely; or (2) Ornelas returned to the store,
brandished the knife and first demanded money before attacking Victorio (who may or
may not have complied with the demand before being attacked). In either event, the
vicious attack on Victorio went well beyond the force necessary to accomplish the
robbery of his store. Substantial evidence supports the trial court’s implied finding that
Ornelas harbored a separate intent and objective in attacking the victim in this case.




       7
         Because it was obviously rejected by the jury, we do not consider Ornelas’s
version that he stabbed Victorio in self-defense after Victorio tried to take the knife from
him and began choking him.


                                             16
III.   DISPOSITION
       The judgment is affirmed.




                                        Premo, J.




       WE CONCUR:




             Rushing, P.J.




             Elia, J.




                                   17
