Filed 3/5/13 P. v Ramirez CA4/3




                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047015

         v.                                                            (Super. Ct. No. 11CF2299)

ISRAEL RAMIREZ,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed as modified.
                   John N. Aquilina, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Sharon L. Rhodes,
Deputy Attorney General, for Plaintiff and Respondent.
                   *                                     *                                      *
THE COURT:*
              Defendant Israel Ramirez appeals his sentence following his conviction by
a jury on charges of second-degree robbery, use of a deadly weapon, and assault with a
deadly weapon.
              His sole argument on appeal, which the Attorney General concedes, is that
the trial court violated his constitutional right to due process when it improperly imposed
a six-year sentence for assault with a deadly weapon concurrent with a robbery count,
because both acts constituted an indivisible course of conduct with a single objective.
Defendant contends that the court should have stayed the six-year sentence imposed for
the deadly weapon assault count pursuant to Penal Code section 654.1
              We agree with defendant that the sentence on this count should have been
stayed pursuant to section 654, and we affirm the judgment as modified.


                                              I
                                   Facts and Proceedings
              Defendant was convicted by a jury as to count 1 of second degree robbery
and personal use of a deadly weapon. As to count 2, he was convicted of assault with a
deadly weapon. As to count 1, he was sentenced to seven years, or the midterm of three
years which was doubled under the “Three Strikes” law, plus a consecutive one-year term
for the personal use enhancement. As to count 2, assault with a deadly weapon, he was
sentenced to a concurrent six-year term. He was also sentenced to a consecutive five-
year term for a prior serious felony, plus an additional one year for a prior prison
enhancement, for a total term of 13 years in state prison.

       * Before Rylaarsdam, Acting P. J., Bedsworth, J., and Thompson, J.

1      All statutory references are to the Penal Code unless otherwise stated.



                                              2
                                    Facts of the Case
              On August 17, 2011, Lemont Larkins (hereinafter Larkins) parked his
vehicle in the small parking lot located in front of the A&S Market in Santa Ana, and
entered the store to purchase $25 worth of lottery tickets. He purchased his tickets and
left the store holding a $50 bill in his hand. As he walked towards his car, he saw a man
on a bicycle blocking his driver‟s side door. At the same time, defendant walked up to
him and snatched the $50 bill out of his hand.
              Larkins asked defendant for his money back. In response, defendant struck
Larkins in his right eye, and then almost immediately proceeded to pull out a sharp object
from his pocket that was described by Larkins as being either a screwdriver or a knife.
Defendant began jabbing the weapon at Larkins to stab him. Larkins tried to hold the
defendant back to prevent himself from being stabbed.
              While defendant was jabbing his weapon at Larkins, the man who was on
the bicycle rode away. Then, three other men jumped out of two separate vehicles and
rushed at Larkins in an attempt to “bum rush” or “jump” him to get him down on the
ground. Shortly thereafter, defendant and the other three assailants jumped in two
separate cars and drove away.
              Larkins called the police, and defendant was subsequently apprehended.


                                            II
                                        Discussion

              Count 2 Should Have Been Stayed Pursuant to Section 654
              Defendant contends, and the Attorney General concedes, that the six-year
term imposed for count 2 should have been stayed pursuant to section 654 rather than run
concurrently, because section 654 prohibits punishment for separate crimes arising out of
an indivisible course of conduct sharing the same intent and objective. We agree.



                                            3
              Section 654 precludes multiple punishments for a single act or indivisible
course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) In reviewing a trial
court‟s sentencing decision, we give deference to the trial court‟s factual findings. “„The
question of whether the acts of which defendant has been convicted constitute an
indivisible course of conduct is primarily a factual determination, made by the trial court
on the basis of its findings concerning the defendant‟s intent and objective in committing
the acts. This determination will not be reversed on appeal unless unsupported by the
evidence presented at trial.‟ [Citation.]” (People v. Nichols (1994) 29 Cal.App.4th 1651,
1657.)
              To determine whether a course of conduct is indivisible, courts consider the
intent and objective of the defendant. If all of the criminal acts were incident to a single
criminal objective, the court may impose punishment only as to one of the offenses
committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-637.) On the other hand, if the
evidence discloses a defendant entertained multiple criminal objectives 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. (People v. Perez (1979) 23 Cal.3d 545, 551-
552; People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
              Here, the assault was an indivisible part of the robbery. Defendant
snatched a $50 bill out of Larkins‟ hand. When Larkins asked for his money back,
defendant responded by immediately punching him in the face and then pulling out a
sharp object which was either a knife or a screwdriver. Defendant jabbed the weapon at
Larkins to perpetrate the robbery, or to prevent him from trying to get his money back.
When an assault is committed as the means of perpetrating a robbery, section 654
requires the sentence for the assault to be stayed. (In re Jesse F. (1982) 137 Cal.App.3d
164, 171.)
              Accordingly, we do so here.

                                              4
                                         III
                                       Disposition
             The judgment is modified to reflect that the sentence imposed as to count 2
is stayed pursuant to section 654. As modified the judgment is affirmed. The trial court
is directed to send a corrected abstract of judgment to the Department of Corrections.




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