Filed 11/24/14 P. v. Lopez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039834
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1228547)

             v.

JOSEPH LOPEZ,

         Defendant and Appellant.



                                                   INTRODUCTION
         A jury found defendant Joseph Lopez guilty of two counts of robbery (Pen. Code,
§§ 211-212.5, subd. (c)1; counts 1 and 3) and dissuading a witness by force or threat
(§ 136.1, subd. (c)(1), count 2), and found true the allegations that defendant had used a
deadly or dangerous weapon (§ 12022, subd. (b)(1)). Defendant was sentenced to
15 years 4 months in prison. On appeal, defendant argues that the trial court should have
stayed the sentence on his conviction for witness dissuasion pursuant to section 654,
because it was indivisible from his robbery offense. For the reasons stated below, we
will affirm.




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             All further statutory references are to the Penal Code unless otherwise indicated.
                       FACTUAL AND PROCEDURAL BACKGROUND
   A. Events Underlying Counts One and Two
       On January 10, 2012, defendant and two women entered a Mi Pueblo market at
9:45 p.m. The individuals grabbed several items and then walked “really fast” out the
store without paying for the items. The cashier alerted the security guard, Bryan De la
Torre, that the individuals left without paying.
       De la Torre followed the individuals out to their car. He asked one of the women
for a receipt. She responded by pulling out several receipts and waving them in front of
his face, but not allowing him to see them closely. The women started putting the
grocery items in their car while defendant stood near the driver’s side of the car.
De la Torre tried taking the items out of the car and told them that he was going to call
the police. Defendant approached De la Torre and pulled out a knife from his pocket. He
held the knife pointed towards De la Torre’s torso and thrusted it towards him. De la
Torre responded by pulling out his pepper spray. While holding the knife, defendant told
De la Torre “not [to] call the cops” and “not do anything about it, just go inside, or else
he was going to come back.” De la Torre stepped away from defendant and told him to
leave. The women left in the vehicle, and defendant ran away. De la Torre ran back to
the store and called the police.
   B. Events Underlying Count Three
       On January 13, 2012, defendant and another man entered a different Mi Pueblo
market at 2:47 p.m. Defendant grabbed several grocery items, placed them in a basket,
and then walked out of the store without paying for the items. Alvaro Ventocilla, who
was the security guard on duty, followed defendant to the parking lot. Ventocilla asked
defendant for a receipt, but defendant kept walking. Defendant began loading the
groceries in his car. Defendant then went to the front passenger seat, sat down, and
pulled out a knife from the glove compartment. Defendant pointed the knife up towards



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Ventocilla and said, “[t]his is my receipt.” Ventocilla pulled out his pepper spray and
stepped back. Defendant then drove away.
   C. The Charges, Jury Trial, Verdict, and Sentencing
       On October 17, 2012, the district attorney filed an information charging defendant
with two counts of second degree robbery (§§ 211-212.5, subd. (c)) and one count of
dissuading or attempting to dissuade a witness (§ 136.1, subd. (c)(1)). As to each count,
the district attorney also alleged that defendant committed the offenses with a deadly and
dangerous weapon (§ 12022, subd. (b)(1)). The information further alleged that
defendant had one prior serious felony conviction (§ 667, subd. (a)), a prior strike
conviction (§§ 667, subds. (b)-(i) & 1170.12), and two prison priors (§ 667.5, subd. (b)).
       On February 8, 2013, the jury found defendant guilty of all counts and found the
allegations that he used a deadly and dangerous weapon to be true. Defendant waived
jury trial on the allegations regarding his prior convictions and his prison priors, and the
trial court found these allegations true.
       On June 24, 2013, the trial court sentenced defendant to prison for a total of
15 years 4 months. For count 1, the court imposed the mid-term of three years (§§ 211-
212.5, subd. (c)), doubled for the strike conviction (§§ 667, subds. (b)-(i) & 1170.12),
plus one year for the weapon enhancement (§ 12022, subd. (b)(1)). The court imposed a
concurrent three year term for count two (§ 136.1, subd. (c)(1)), doubled for the strike
conviction (§§ 667, subds. (b)-(i) & 1170.12), plus a one year enhancement for the use of
the weapon (§ 12022, subd. (b)(1)). The court explained that it was imposing a
concurrent term for count two because it found “that this is part and parcel of the same
threat and threat of force that was used to commit the offense in Count One. It is the
same offense date, the same series of acts and conduct . . . .” For count three, the court
imposed a mid-term of three years (§§ 211-212.5, subd. (c)), doubled for the strike
conviction (§§ 667, subds. (b)-(i) & 1170.12), plus one year for the weapon enhancement
(§ 12022, subd. (b)(1)) to run consecutively at one-third that amount (i.e., two years four

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months). Additionally, the court imposed a consecutive term of five years for the prior
violent and serious felony conviction (§ 667, subd. (a)), and one year for the prison prior
(§ 667, subd. (b)). The court stayed the one-year enhancement for the second prison
prior.
                                        DISCUSSION
         Defendant contends that the trial court erred in imposing separate concurrent terms
for his convictions of robbery and dissuading a witness. He argues that the court violated
section 654 because his acts of drawing the knife and verbally threatening De la Torre
were incident to the same objective—to complete the robbery.
         Section 654 provides: “(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. . . .” Section 654 prohibits multiple
punishments where a single criminal act or omission violates more than one penal statute.
This statutory prohibition has been extended to cases in which the defendant engages in
an indivisible course of conduct with a single objective, but violates several different
penal statutes in the process. (See Neal v. State of California (1960) 55 Cal.2d 11, 19
(Neal), overruled on another ground in People v. Correa (2012) 54 Cal.4th 331, 334.) “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. [Citation.] If,
however, a defendant had several independent criminal objectives, he may be punished
for each crime committed in pursuit of each objective, even though the crimes shared
common acts or were parts of an otherwise indivisible course of conduct. [Citation.]”
(People v. Perry (2007) 154 Cal.App.4th 1521, 1525 (Perry).) In reviewing a claim that
the court erred in failing to stay a sentence pursuant to section 654, the defendant’s intent
and objective presents a question of fact. The trial court’s determination will be reviewed
under the deferential substantial evidence standard. That is, the court’s finding—express

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or implied—will be sustained if there is substantial evidence to support it, whether or not
the evidence would also support a contrary finding. (Neal, supra, at p. 17.)
       For purposes of these rules, concurrent sentences constitute multiple punishment.
(In re Wright (1967) 65 Cal.2d 650, 655; People v. Deloza (1998) 18 Cal.4th 585, 592.)
A sentence imposing multiple punishments in violation of these principles is an act in
excess of jurisdiction, which may be challenged on appeal despite a failure to object in
the trial court. (3 Witkin, Cal. Criminal Law (4th ed. 2012) Punishment, § 248, p. 398.)
       Defendant contends that his offenses were incident to the same objective. He
points out that the robbery was not complete at the time he had threatened De la Torre
because he had not reached a temporary place of safety. Although defendant is correct
that a robbery may not be considered complete until the perpetrator reaches a temporary
place of safety (People v. Bigelow (1984) 37 Cal.3d 731, 753-754), the test of a violation
of section 654 is not whether the crime was complete. Rather, it is whether the
perpetrator had separate intents and objectives. (See People v. Nguyen (1988) 204
Cal.App.3d 181, 193 [“If the trier of fact determines the crimes have different intents and
motives, multiple punishments are appropriate. This is so notwithstanding that for
purposes of the felony-murder rule the robbery is still considered to be ongoing.”].) “The
moment at which a defendant committed all of the elements of an offense is immaterial in
applying Penal Code section 654.” (Perry, supra, 154 Cal.App.4th at p. 1527.)
Therefore, the fact that defendant had threatened De la Torre of future violent acts before
the completion of the robbery is not dispositive of whether there was a section 654
violation.
       Based on our review of the record, we conclude that substantial evidence supports
the trial court’s implied finding that defendant had multiple criminal objectives when he
committed the crimes against De la Torre. When De la Torre attempted to stop the two
women from loading their car with the groceries, defendant pulled out a knife and thrust
it towards De la Torre. In addition to pulling out the knife, defendant also verbally

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warned De la Torre “not to call the cops” “or else he was going to come back.” “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.” (People v. Nguyen, supra, 204 Cal.App.3d 181, 191.) Here, defendant
drew his knife with the intent to complete the robbery, and the additional verbal threats
were beyond necessary to achieve this objective. Specifically, defendant’s threat that he
would return if De la Torre had called the police supports the conclusion that defendant
committed his crimes not only with the intent to remain in possession of the stolen
property and t o allow defendant to escape to a place of safety, but also with a separate
intent to evade arrest and prosecution. (See People v. Nichols (1994) 29 Cal.App.4th
1651, 1657-1658.) We therefore conclude that substantial evidence supports a finding
that defendant committed witness dissuasion with a separate objective, and thus there was
no violation of section 654.

                                       DISPOSITION
       The judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           ELIA, J.




____________________________________
           MÁRQUEZ, J.




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