Filed 1/6/16 P. v. Daniels CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B261765

           Plaintiff and Respondent,                                 (Los Angeles County
                                                                     Super. Ct. No. BA428332)
         v.

JOHN R. DANIELS,

            Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Robert
Vanderet, Judge. Affirmed with directions.
         Maggie M. Shrout, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
                                                     __________
       A jury convicted defendant John R. Daniels of attempted second degree robbery
and simple assault. On appeal, Daniels alleges that the trial court prejudicially erred by
instructing the jury that a robbery continues until the perpetrator has reached a place of
temporary safety. He also contends that his simple assault sentence should have been
stayed pursuant to Penal Code section 654 because the assault was the means of
effectuating the attempted robbery. We conclude that Daniels’s sentence for assault
should have been stayed. We otherwise affirm.
                        FACTS AND PROCEEDINGS BELOW
       On November 1, 2013, Jose Sanchez rode his bicycle to work at the Galleria
Market in Los Angeles. He arrived at work at approximately 7:30 a.m., parked his
bicycle in a bike rack in the parking lot, and secured it with a cable lock. A short time
later, Gregorio Gonzalez, a security guard at the market who was sitting in his car in the
parking lot, observed Daniels cut the bicycle lock and begin to ride away on Sanchez’s
bike. Gonzalez testified that he immediately exited his car and began chasing Daniels,
yelling at Daniels to stop. Video evidence at trial, which depicted the parking lot on the
morning of the robbery, showed Daniels leaving the parking lot with the stolen bike at
7:33:05, and Gonzalez chasing him out of the parking lot at 7:33:11—6 seconds later.
       Gonzalez testified that, after chasing Daniels less than a block, he caught up with
Daniels and grabbed the bicycle seat and the back of Daniels’s jacket, again instructing
Daniels to stop. Daniels then pulled out a knife and pointed it at Gonzalez. Gonzalez
used the bicycle to knock the knife out of Daniels hand. When Gonzalez attempted to
retrieve the knife from the ground, Daniels pulled out a bolt cutter, which he had used to
cut the bike lock cable, and swung it at Gonzalez. Gonzalez lifted his left arm to block
the strike, and the bolt cutter hit Gonzalez’s arm, causing swelling and bruising.
Gonzalez then grabbed the bike and began to return to the Galleria Market. Daniels
started to follow Gonzalez until Gonzalez stated he was going to call the police. Daniels
then fled. Gonzalez returned to the parking lot with the bicycle at 7:36 a.m.,
approximately three minutes after Daniels stole the bicycle.



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       At trial, Daniels admitted that he took the bicycle, but he testified that he was
unaware that Gonzalez was chasing him, and never heard Gonzalez yell “stop.” Instead,
Daniels stated that he stopped riding the bicycle on his own accord, less than one block
away from the Galleria Market, in order to adjust the seat, which was too low. Then,
according to Daniels, Gonzalez suddenly came up behind Daniels, kicked Daniels in the
back and grabbed Daniels’s knife, which was in Daniels’s waistband. Daniels testified
that he hit Gonzalez with the bolt cutter to escape.
       In a two count information, the state charged Daniels with (1) attempted
second degree robbery in violation of Penal Code sections 211 and 6641 and
(2) assault with a deadly weapon in violation of section 245, subdivision (a)(1).
In addition, the state alleged that Daniels had four prison priors pursuant to section 667.5,
subdivision (b).
       Daniels pled not guilty and denied the allegations. A jury convicted Daniels of
attempted second degree robbery but acquitted him of assault with a deadly weapon,
instead finding Daniels guilty of the lesser included offense of simple assault. Following
the trial, Daniels admitted three prior convictions.
       The trial court sentenced Daniels to the middle term of two years in state prison
for attempted robbery, plus three years for the prior convictions, for a total of five years.
For the assault, the trial court sentenced Daniels to one year in county jail to run
concurrent to the previous term, to be served in any institution.




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

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                                       DISCUSSION
       Daniels contends on appeal that the trial court erred by instructing the jury,
pursuant to CALCRIM No. 3261, that the crime of robbery or attempted robbery
“continues until the perpetrator has actually reached a place of temporary safety.” The
instruction defines a “place of safety” as one where the perpetrator “successfully escaped
from the scene, and is no longer being chased.” According to Daniels, because it was
undisputed that he used no force in the initial taking of the bicycle, the instruction’s use
of the word “continues” confused the jury, leading it to believe that the initial taking
of the bike was a robbery before any force was used. Absent this instruction, Daniels
contends, the jury could have found that his taking of the bicycle was theft, and any force
he used thereafter was unconnected to the theft because he had reached a temporary place
of safety. In short, for Daniels’s argument to prevail, he must have reached a temporary
place of safety.
       There is, however, no evidence in the record that Daniels had, in fact, reached a
temporary place of safety. The evidence demonstrates, to the contrary, that immediately
after taking the bicycle, Daniels was actively pursued by Gonzalez. A robber has not
reached a temporary place of safety while an immediate and active pursuit to recover the
property is in progress. (People v. Debose (2014) 59 Cal.4th 177, 205.) Video evidence
at trial, which depicted the parking lot on the morning of the robbery, showed Daniels
leaving the parking lot with the stolen bike at 7:33:05, and Gonzalez chasing him out of
the parking lot at 7:33:11—6 seconds later. Daniels also testified that his confrontation
with Gonzalez occurred less than one block away from the store where he stole the bike,
and that Daniels knew Gonzalez was pursuing him in order to recover the bike.
Accordingly, the trial court’s instruction, that a robbery continues until the perpetrator
reaches a temporary place of safety, would not have confused the jury because Daniels
never reached a temporary place of safety, and the instruction accurately delineated the
time period when Daniels’s use of force could be properly tied to the robbery.
       Daniels also contends that section 654 requires a stay of the concurrent sentences
for attempted second degree robbery and assault. Section 654 prohibits punishment for

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two crimes arising from a single, indivisible course of conduct. (People v. Latimer
(1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were
the means of accomplishing or facilitating one objective, a defendant may be punished
only once. (Ibid.) Where section 654 precludes sentencing on a given count, the
sentence may be imposed and stayed, but may not be concurrent. (People v. Pena (1992)
7 Cal.App.4th 1294, 1312.)
       Section 654 does not permit separate punishment for both a robbery and an assault
that was the means of committing the robbery. (People v. Logan (1953) 41 Cal.2d
279, 290.) Here, the assaultive conduct—brandishing the knife and hitting Gonzalez
with the bolt cutter—was for the purpose of retaining control over the stolen bike.
Accordingly, Daniels cannot be separately punished for the attempted second degree
robbery and the assault. The sentence on the assault must be stayed.
                                      DISPOSITION
       The trial court is directed to stay the sentence as to the assault conviction pursuant
to section 654. The judgment is otherwise affirmed. The trial court is directed to prepare
a new abstract of judgment and forward a copy to the Department of Corrections and
Rehabilitation.
       NOT TO BE PUBLISHED.




                                                         ROTHSCHILD, P. J.
We concur:



                     CHANEY, J.



                     LUI, J.




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