Filed 7/13/15 P. v. Sarabia CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                2d Crim. No. B254410
                                                                        (Super. Ct. No. VA128188-01)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

XAVIER SARABIA,

     Defendant and Appellant.


                   Xavier Sarabia appeals his sentence following his conviction for attempted
second degree robbery (Pen. Code, §§ 664, 211)1 (count 1), with a jury finding that he
personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). The jury also
convicted him of carrying a dirk or dagger (§ 21310), a felony (count 2). The trial court
imposed an aggregate sentence of 10 years. For count 1, it sentenced Sarabia to two
years in prison, it doubled it to four years because of a prior strike, and it added a one-
year consecutive sentence for the personal use of a deadly weapon enhancement.
(§ 12022, subd. (b)(1).) It added a consecutive five years for a prior serious felony
conviction. (§ 667, subd (a).) For count 2, the court imposed a two-year sentence to run
concurrently with count 1.
                   We conclude, among other things, that the trial court did not err by not
staying the personal use of a knife sentence pursuant to section 654. We affirm.

1
    All statutory references are to the Penal Code.
                                          FACTS
              On the evening of January 6, 2013, Hector De La Cruz was in his car which
was parked on the street. He was talking on his cell phone.
              Sarabia approached the car and asked De La Cruz if he could use the phone.
De La Cruz agreed. Sarabia used the phone, returned it to De La Cruz, walked away and
"crossed the street."
              De La Cruz made another phone call from his vehicle. Sarabia came back
and approached De La Cruz's car again. He told De La Cruz to "get out of the car and put
the keys on top of the hood." Sarabia was holding a knife. De La Cruz was frightened.
He drove away and started looking for police officers.
              Twenty minutes after the attempted robbery, De La Cruz "flagged down" a
patrol car. De La Cruz got into the police car. They "drove downtown looking for the
described suspect." De La Cruz saw Sarabia at a pay phone.
              The police approached and apprehended Sarabia while he was making a
call at that pay phone. Officer John Almeria testified they patted Sarabia down and
discovered that he was wearing the knife "in his waistband." Almeria described the
method Sarabia used to conceal the weapon. He said it was located on Sarabia's right
"upper thigh, . . . tucked in underneath his pants." Sarabia's "shirt was over the knife
concealing it."
                                       DISCUSSION
                                        Section 654
              Sarabia contends the trial court imposed an unauthorized sentence. He
claims that 1) the "prison sentence enhancement for personally using a knife should have
been stayed, pursuant to Penal Code section 654"; 2) the "finding that [Sarabia]
personally used a knife during the attempted robbery and the conviction for carrying a
concealed knife are duplicative"; and 3) they were "part of a single and indivisible course
of conduct." We disagree.
              Section 654 protects a defendant from receiving unauthorized multiple
punishment. "Whether section 654 applies in a given case is a question of fact for the

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trial court, which is vested with broad latitude in making its determination." (People v.
Jones (2002) 103 Cal.App.4th 1139, 1143, italics added.) "[C]onduct evidencing
different intents constitutes separate and divisible acts within the meaning of section 654
and is subject to multiple punishment even if the crimes share common acts or were parts
of an otherwise indivisible course of conduct." (People v. Flores (2005) 129 Cal.App.4th
174, 186.)
              "Case law establishes the guidelines for applying section 654 in the context
of a conviction for possession of a prohibited weapon." (People v. Wynn (2010) 184
Cal.App.4th 1210, 1217.) "'"[W]here the evidence shows a possession distinctly
antecedent and separate from the primary offense, punishment on both crimes has been
approved."'" (Ibid.)
              Courts have established a rule for the application of section 654 in cases
involving robbery and possession of the weapon used in that crime. Section 654 "does
not prohibit separate punishments" in cases where the "defendant's possession of the
weapon was not merely simultaneous with the robberies, but continued before, during
and after those crimes." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413, italics
added.) We must draw all reasonable inferences in support of the judgment. (People v.
Tarris (2009) 180 Cal.App.4th 612, 626-627.)
              Sarabia claims there is no evidence that he possessed the knife before he
committed the attempted robbery.
              The People contend Sarabia possessed it before, during and after that crime.
Courts have applied section 654 "where the evidence shows that the [weapon] came into
the defendant's possession fortuitously 'at the instant of committing another offense . . . .'"
(People v. Jones, supra, 103 Cal.App.4th at p. 1145, italics added.) That is not the case
here. The trial court could reasonably infer Sarabia had the knife when he first
approached De La Cruz to use his phone. It is undisputed that Sarabia had the knife
when he approached De La Cruz the second time to attempt the robbery. De La Cruz did
not see the knife when Sarabia first approached him. But the court could reasonably infer


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he was carrying it at that time from Almeria's testimony. He described Sarabia's method
of wearing his knife concealed in his waistband.
              Sarabia makes no showing how he could have obtained the knife in the
interval between his use of De La Cruz's cell phone and the attempted robbery. There
was testimony that Sarabia only "stepped away from the vehicle momentarily and then
went back to the driver's side window" to attempt the robbery. (Italics added.) Given
that very short interval and the evidence about his method of wearing the knife in his
waistband, a reasonable inference is that Sarabia had the weapon with him when he first
approached De La Cruz. "[S]ection 654 is inapplicable when the evidence shows that the
defendant arrived at the scene of his or her primary crime already in possession of the
[weapon]." (People v. Jones, supra, 103 Cal.App.4th at p. 1145.) "That [defendant] did
not possess the weapon for a lengthy period before commission of the primary crime is
not determinative." (Id. at pp. 1147-1148.)
              The People also contend Sarabia's possession of the knife "was not merely
simultaneous" with the attempted robbery because it continued after that crime. (People
v. Ratcliff, supra, 223 Cal.App.3d at p. 1413.) We agree. Sarabia was still in possession
of the knife when he was arrested a substantial period of time after the attempted robbery.
It took De La Cruz 20 minutes to flag down a patrol car and start the search for Sarabia.
Sarabia concedes he "was discovered with the knife one and one-half (1 1/2) hours after
the crime occurred."
              The trial court could reasonably find the attempted robbery and Sarabia's
possession of the knife at the time of his later arrest were separate offenses which could
be separately punished. In People v. Alvarado (1982) 133 Cal.App.3d 1003, 1029,
defendant claimed he could not be sentenced for both attempted robbery and possession
of the shotgun used in that crime consistent with section 654. The Court of Appeal said,
"There is no merit to his claim. [Defendant] conveniently overlooks the fact that the
evidence showed him still in possession of the weapon several hours after the crimes."
(Alvarado, at p. 1029, italics added.) It concluded, "This act of possession was
indisputably an act separate in time from the other crimes and thus justified separate

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convictions and separate punishments." (Ibid.; see also People v. Garcia (2008 ) 167
Cal.App.4th 1550, 1565 [defendant's intent to use the weapon to commit robberies was
different from his intent to continue to possess it when he was stopped by police 18
minutes after the robberies].)
              Sarabia cites People v. Cruz (1978) 83 Cal.App.3d 308 and contends his
subsequent possession of the knife was merely incidental to the prior attempted robbery.
We disagree. In Cruz, the defendant was convicted of using a firearm while committing
assaults and possession of a firearm by a felon. The defendant fired shots hitting a
doorman at a bar. He "fled and was chased by the manager of the bar." (Id. at p. 314.)
"During the chase, defendant turned and twice pointed the gun towards the manager. . . .
A short time later defendant was captured by police officers. The handgun used in the
shootings, apparently thrown by defendant during the chase, was recovered." (Ibid.) The
Court of Appeal held "defendant's possession during flight was only incidental to the
primary objective, the assaults." (Id. at p. 333.)
              But unlike Cruz, Sarabia was not "in possession during flight" and he did
not use the weapon to attempt to escape. He did not abandon the weapon to cover up the
evidence of the prior crime. He was simply standing and using a public pay phone. His
possession of the knife at this time was not connected to or incidental to the prior
attempted robbery. As the People note, "[A]fter De La Cruz drove away, the attempted
robbery was over." Consequently, Sarabia's possession of the knife at this time was not
to rob De La Cruz or take a vehicle which was no longer at the scene. He possessed it for
a different purpose as shown by his concealment of the knife in his waistband and his
presence at a public place at a time remote from the attempted robbery. The trial court
could reasonably infer his wearing the concealed knife in public an hour and a half after
the prior crime showed his intent to keep the knife with him wherever he went, no matter
what he was doing.
              That constitutes a separate intent to possess which is different from the
intent to use the knife to attempt a robbery. (People v. Ratcliff, supra, 223 Cal.App.3d at
p. 1411 ["'Possession of the gun constituted one offense, and this was an act separate and

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apart from any use that was made of the gun'"].) "[C]onduct evidencing different intents
constitutes separate and divisible acts within the meaning of section 654 . . . ." (People v.
Flores, supra, 129 Cal.App.4th at p. 186.) Sarabia has not shown why the court could
not find his possession of the knife involved much more than "possession fortuitously 'at
the instant of committing [the attempted robbery] . . . .'" (People v. Jones, supra, 103
Cal.App.4th at p. 1145, italics added.) There was no error.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           GILBERT, P.J.

We concur:



              YEGAN, J.



              PERREN, J.




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                                John A. Torribio, Judge

                         Superior Court County of Los Angeles

                           ______________________________


             Christopher Love, 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, Senior Assistant Attorney General, Chung L. Mar,
Garett A. Gorlitsky, Deputy Attorneys General, for Plaintiff and Respondent.




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