Filed 12/26/13 P. v. Moore CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C072715

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F01739)

         v.

CAMERON JUNISLEON MOORE,

                   Defendant and Appellant.




         A jury found defendant Cameron Junisleon Moore guilty of robbery, attempted
robbery, and assault with a deadly weapon. It also found true allegations he was armed in
the commission of both the robbery and attempted robbery.
         On appeal, defendant contends the trial court should have stayed execution of
sentence on the assault count because the assault was incidental to defendant’s attempted
robbery of the same victim. We agree and shall direct the trial court to stay the sentence
imposed on the assault count.



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                                     BACKGROUND
       We limit our recitation of the facts to those relevant to this appeal.
       On March 9, 2012, defendant and two codefendants set up a craigslist account
pretending to have an iPhone to sell in order to lure robbery victims.
                                     Sanchez Robbery
       Alex Sanchez responded to the craigslist ad offering an iPhone for $200. He
exchanged text messages with the supposed seller of the phone and they agreed to meet at
2213 Meadowbrook Road around 2:00 in the afternoon.
       When he drove up, Sanchez saw two African-American men and a Caucasian man
outside the house; one of the African-American men was defendant. After Sanchez
pulled into the driveway, Sanchez asked the Caucasian man standing in front of the
house, “You’re the one with the phone?” The Caucasian man answered, “I’m going to
get it”; he walked over to defendant, who handed him a gun. The Caucasian man then
spun on Sanchez and said, “Give me everything you got.” Sanchez handed him $200 and
drove away.
                                   Patsarynyuk Robbery
       The second victim, Roman Patsarynyuk, had placed his own craigslist ad asking to
buy an iPhone. He was contacted by a man and agreed to meet the caller at a home on
Meadowbrook Road around 2:00 p.m. When Patsarynyuk got there, he asked the woman
standing outside if she was selling an iPhone; she said no, so he left. Soon afterward, a
man called Patsarynyuk on his cell phone and told him they were expecting him “over
there by the house,” so Patsarynyuk drove back to the Meadowbrook Road house.
       When he got there and got out of the car, he saw defendant and another African-
American man. Defendant said, “I am the one who called you and I have the phone.
Come here.” But when Patsarynyuk approached, defendant pulled out a gun and said,
“Give me your phone, your money, and whatever you got.” Patsarynyuk paused for a
few seconds; when he started to pull out his phone, defendant said “faster” and hit

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Patsarynyuk in the head with a gun, smashing his eyebrow. Patsarynyuk immediately
crouched down and two more men ran over. Defendant and one of the other men started
going through Patsarynyuk’s front pockets.
       Police officers then appeared. Sanchez had called the police after he was robbed,
and the officers responding to Sanchez’s call saw defendant hit Patsarynyuk. After a
chase, defendant was caught and both Sanchez and Patsarynyuk identified defendant
during field showups as their assailant.
       Following a trial, the jury found defendant guilty on all three counts and found
true allegations he was armed in the commission of the robbery and attempted robbery.
       Prior to sentencing, defendant asked the court to stay imposition of sentence on the
assault count under Penal Code section 654, on the ground the attempted robbery of
Patsarynyuk and assault upon him were part of the same course of conduct, and the
assault was committed for the sole purpose of facilitating the robbery. At sentencing, the
defense counsel repeated this argument; the prosecution opposed the request.
       The trial court found that, because the attempted robbery was completed when
defendant struck Patsarynyuk with the pistol, the assault with the gun was separate from
the attempted robbery, and may be punished separately.
                                      DISCUSSION
       Penal Code section 654, subdivision (a) states,“[a]n 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.” Although, by its
plain terms, Penal Code section 654 operates to bar multiple punishments of a single,
physical act (see Neal v. State of California (1960) 55 Cal.2d 11, 18-21 [single act of
setting fire to residence cannot be punished as arson and attempted murder]), Penal Code
section 654 also prohibits multiple punishments for an indivisible course of conduct, even



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though such conduct violates more than one statute (People v. Beamon (1973) 8 Cal.3d
625, 639).
       Whether a course of conduct is indivisible for purposes of Penal Code section 654
depends on the intent and objective of the actor. If all the offenses are incidental to one
objective, the defendant may be punished for any one of them, but not for more than one.
(People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The defendant’s intent and objective
are factual questions for the trial court, and we uphold the trial court’s finding, whether
express or implied, if there is sufficient evidence to support it. (People v. Vang (2010)
184 Cal.App.4th 912, 915-916.) We review the record in the light most favorable to the
trial court’s finding and presume the existence of every fact the trial court could
reasonably deduce from the evidence. (Ibid.)
       In general, however, assaults committed “in the course of conducting a robbery”
cannot be punished separately. (People v. Brown (1989) 212 Cal.App.3d 1409, 1427,
disapproved on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)
“[O]ne who uses a deadly weapon in the commission of first degree robbery
simultaneously assaults the victim with such weapon but clearly may not be punished for
both the robbery and assault with a deadly weapon.” (People v. Beamon, supra, 8 Cal.3d
at p. 637; see also People v. Ridley (1965) 63 Cal.2d 671 [victim shot when he attempted
to knock gun from robber’s hands]; People v. Flowers (1982) 132 Cal.App.3d 584
[victim assaulted while struggling with robbers].) This rule holds true even when the
victim is actually harmed by a deadly weapon and not merely threatened with use of the
weapon. For instance, striking an unaware and defenseless victim in the back of the head
with a baseball bat, then immediately taking the prone victim’s purse and fleeing, cannot
be punished as both assault with a deadly weapon and robbery. (People v. Logan (1953)
41 Cal.2d 279, 283-284, 290-291.) In another case, an appellate court held the defendant
could not be punished for both assault with a firearm and robbery, even though the victim
was shot during the home invasion robbery. (Brown, at pp. 1415, 1426-1427.)

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       The trial court here relied upon one exception to this rule in concluding that
defendant may be separately punished for striking Patsarynyuk with the pistol: “When
there is an assault after the fruits of the robbery have been obtained, and the assault is
committed with an intent other than to effectuate the robbery, it is separately punishable.”
(In re Jesse F. (1982) 137 Cal.App.3d 164, 171.) There is no substantial evidence to
support the trial court’s conclusion that the attempted robbery was complete when
defendant struck Patsarynyuk. Rather, the evidence showed the assault in this case
occurred during the attempted robbery of the victim, as Patsarynyuk had not given up his
phone or his cash, and defendant was urging him to move “faster.”
       On appeal, the People rely upon a second exception to the general rule that Penal
Code section 654 precludes the court from separately punishing an assault that occurs
during a robbery: gratuitous violence against a helpless or unresisting victim is not
incidental to a robbery, at least when it rises to the level of attempted murder. (People v.
Cleveland (2001) 87 Cal.App.4th 263, 271-272 [repeatedly hitting 66-year-old victim on
head with two-by-four while taking victim’s electronic device can be punished as
attempted murder and robbery because the force used was more than necessary to achieve
single objective of robbery]; People v. Nguyen (1988) 204 Cal.App.3d 181, 190-193
[defendant could be punished for attempted murder and robbery because accomplice shot
helpless victim of robbery].) “[A]t 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.” (Nguyen, at p. 191.) The People assert that, because “the attempted
robbery could have been completed without violence,” defendant’s striking of
Patsarynyuk was “gratuitous” and he should be separately punished for it.
       We disagree that defendant’s actions bring him within the scope of the “gratuitous
violence” exception employed by Cleveland and Nguyen. Defendant did not resort to
violence “so extreme [it] can no longer be termed ‘incidental’ ” to the attempted robbery.

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(People v. Nguyen, supra, 204 Cal.App.3d at p. 191.) Striking Patsarynyuk once in the
face with his handgun was plainly intended by defendant to hasten Patsarynyuk’s
compliance with his demands that Patsarynyuk hand over his property. There was no
independent, “more sinister goal” (cf. Nguyen, at p. 191) than the goal associated with
defendant’s attempted robbery.
       The trial court erred in refusing to stay the execution of the sentence it imposed for
defendant’s conviction in count three.
                                      DISPOSITION
       The one-year consecutive term imposed on assault with a deadly weapon is
ordered stayed pursuant to Penal Code section 654. Defendant’s total sentence now
amounts to four years, rather than five years. In all other respects, the judgment is
affirmed. The trial court is directed to prepare an amended abstract of judgment and to
forward it to the Department of Corrections and Rehabilitation.



                                                        ROBIE                 , Acting P. J.



We concur:



      BUTZ                  , J.



      HOCH                  , J.




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