Filed 1/6/14 P. v. Anderson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064733
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11904013)
                   v.

AMBER VIRGINIA ANDERSON,                                                                 OPINION
         Defendant and Appellant.


THE PEOPLE,                                                                                F064786

         Plaintiff and Respondent,                                            (Super. Ct. No. F11904013)

                   v.
                                                                                       Fresno County
ISAAC VANDRELL BROWN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
      Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Amber
Virginia Anderson, Defendant and Appellant.
      Michael B. McPartland, under appointment by the Court of Appeal, for Isaac
Vandrell Brown, Defendant and Appellant.
      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Kevin
L. Quade, Deputy Attorneys General, for Plaintiff and Respondent.
                                         -ooOoo-
                                    INTRODUCTION
      Defendants Amber Virginia Anderson (Anderson) and Isaac Vandrell Brown
(Brown) stand convicted of multiple offenses arising from a crime spree they allegedly
perpetrated in the summer of 2011.1 They were accused and convicted of robbing
multiple victims over a span of several days.
      The only substantive dispute2 between the parties on appeal relates to whether the
sentencing court violated Penal Code3 section 654 in imposing prison terms on two
firearm enhancements. We conclude the court did not violate section 654.
      In accordance with two concessions offered by the Attorney General, we order
modifications to the abstract of judgment and to Anderson’s sentence on count 6. We
otherwise affirm.




      1 Defendant Anderson’s appeal is our case number F064733, and defendant
Brown’s appeal is our case number F064786. On our own motion, this court
consolidated the two appeals.
      2   All other issues raised by defendants are conceded by the Attorney General.
      3  All subsequent statutory references are to the Penal Code unless otherwise
specified.



                                             2.
                                    BACKGROUND
       Case No. F064733
       A jury convicted appellant Anderson of two counts of second degree robbery
(counts 4 and 8; § 211); two counts of assault with a firearm (counts 5 and 9; § 245,
subd. (a)(2)); one count of dissuading a witness from reporting a crime (count 6; § 136.1,
subd. (b)(1)), and one count of receiving a stolen vehicle (count 11; § 496d, subd. (a)).
The jury also found the following enhancements true: on count 8, Anderson personally
used a firearm within the meaning of section 12022.53, subdivision (b); on count 9,
Anderson personally used a firearm within the meaning of section 12022.5,
subdivision (a)(1); on counts 4 through 6 and 11, a principal was armed with a firearm
within the meaning of section 12022, subdivision (a)(1).
       The court imposed an aggregate prison term of 20 years 4 months. The sentence
included a term of four years on count 6.
       Case No. F064786
       The same jury convicted appellant Isaac Vandrell Brown (Brown) of three counts
of second-degree robbery (counts 1, 4 and 8; § 211); two counts of being a felon in
possession of a firearm (counts 2 and 7; § 12021, subd. (a)(1); one count of making a
criminal threat (count 3; § 422); two counts of assault with a firearm (count 5 and 9;
§ 245, subd. (a)(2)); one count of dissuading a witness from reporting a crime (count 6;
§ 136.1, subd. (b)(1)); two counts of unlawfully taking a vehicle (counts 10 and 12; Veh.
Code, § 10851, subd. (a)); and two counts of receiving a stolen vehicle (counts 11 and 13;
§496d, subd. (a)). The jury could not reach a verdict on an additional count of being a
felon in possession of a firearm (count 14; § 12021, subd. (a)(1)). The jury also found the
following enhancements true: on counts 1 and 4, Brown used a firearm within the
meaning of section 12022.53, subdivision (b); on counts 3, 5, and 6, Brown used a
firearm within the meaning of section 12022.5, subdivision (a)(1); as to counts 7, 8, and


                                             3.
11, a principal used a firearm within the meaning of section 12022, subdivision (a)(1);
Brown had suffered a prior conviction for receiving a stolen vehicle within the meaning
of section 666.5. The jury was unable to reach a finding on two additional weapons
enhancements on counts 12 and 13. (§ 12022.5, subd. (a)(1).) The court declared a
mistrial as to these two enhancements and as to count 14; the prosecutor subsequently
dismissed all three.
       The court imposed an aggregate prison term of 29 years.

                                         FACTS4
       On the afternoon of July 4, 2011, Lourdes Ventura (Ventura) was returning home
from work. Alone, Ventura walked towards her apartment. She observed a man kicking
her door. Ventura approached the man and asked why he was kicking her door. In court,
Ventura identified the man as defendant Brown.
       Brown pulled out a gun and pointed it at Ventura’s forehead. He told her to “not
say nothing [sic].” Ventura called 9-1-1 on her cell phone. Brown told Ventura hang up
the “f**king” phone, or he would kill her. Ventura did not comply, and Brown grabbed
the phone and disconnected the call.
       Brown continued to kick the door to the apartment. Brown asked Ventura for the
keys. She responded that she did not have the keys.
       A woman exited a nearby Jeep and approached Ventura. Ventura identified the
woman at trial as defendant Anderson. Anderson said, “ ‘Give me your bag, B*tch’ ”



       4 As noted ante, appellants were convicted for multiple separate robberies.
However, the only disputed issue on appeal involves the facts surrounding the robbery,
assault and dissuasion of Lourdes Ventura. We do not discuss the facts surrounding the
other crimes. (Cf. A.H. v. Superior Court (2013) 219 Cal.App.4th 1379, 1384, fn. 3 [“In
this opinion, we provide only those facts that are relevant to the issues presently before
us …”].)



                                            4.
and snatched Ventura’s lunch bag from her shoulder. Anderson told Ventura that if she
screamed, they would shoot her.
      Brown and Anderson got into the Jeep. Brown told Ventura not to scream or say
anything, otherwise he would return and shoot her. Brown and Anderson then left in the
vehicle, while Anderson still had Ventura’s lunch bag.
      Later, Ventura met with a police detective and positively identified Brown and
Anderson in photographic lineups.
      The Ventura incident gave rise to the robbery charge against each defendant in
count 4 and the dissuasion charge against each defendant in count 6.
                                      DISCUSSION
      I.     THE TRIAL COURT DID NOT VIOLATE SECTION 654
      Each defendant was charged with, and convicted of, one count of robbery (count
4) and one count of dissuading a witness from reporting a crime (count 6) in connection
with the assault on Ventura. The jury found weapons enhancements as to both counts
true,5 and the court imposed consecutive prison terms on each of the two enhancements.
Each defendant contends this was error under section 654. They contend that both
firearm enhancements were based on a single physical act: Brown’s use of a firearm
during the crimes against Ventura. The Attorney General argues that section 654 does
not apply and was not violated.
      Section 654, subdivision (a) states, in part:

             “An act or omission that is punishable in different ways by different
      provisions of law shall be punished under the provision that provides for



      5  Brown’s weapons enhancements on counts 4 and 6 were based on his personal
use of a firearm. (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1).) Anderson’s weapons
enhancements on counts 4 and 6 were based on Brown’s use of a firearm. (§ 12022,
subd. (a)(1).)



                                             5.
      the longest potential term of imprisonment, but in no case shall the act or
      omission be punished under more than one provision.…”
      This provision prohibits multiple punishments for: (1) a single act; (2) a single
omission; or (3) a single indivisible course of conduct. (People v. Deloza (1998) 18
Cal.4th 585, 591.)
      All three parties cite People v. Ahmed (2011) 53 Cal.4th 156 (Ahmed) in their
discussion of this issue. But, “[i]n Ahmed, the court addressed whether and how section
654 applies to the imposition of multiple enhancements for a single crime.” (People v.
Calderon (2013) 214 Cal.App.4th 656, 662, original italics, fn. omitted.) Here, we are
dealing with multiple enhancements for multiple, separate crimes (i.e., robbery and
dissuasion). The analysis is different when considering two enhancements attached to
different underlying crimes.
      “[S]eparate enhancements – even under the same statute – may be imposed for
each conviction arising out of a separate criminal act. [Citations.]” (People v. Wooten
(2013) 214 Cal.App.4th 121, 130-131 (Wooten).) “So long as the conduct giving rise to
the convictions of separate substantive offenses … arises from separate … acts, neither
section 654 nor Ahmed, supra, 53 Cal.4th 156 [] requires the staying of the [punishment
on the] attached enhancements.” (Wooten, supra, 214 Cal.App.4th at p. 131.)
      Here, the dissuasion and robbery convictions arise from separate criminal acts. 6
The robbery conviction arose from the physical act of taking Ventura’s bag from her

      6  This fact distinguishes cases cited by defendant, such as People v. Reeves (2001)
91 Cal.App.4th 14 (Reeves). In Reeves, the defendant was convicted of burglary and
assault. Each conviction was enhanced with a bodily injury enhancement. The Reeves
court found section 654 prevented imposition of punishment on both enhancements. The
court cited the holding of People v. Moringlane (1982) 127 Cal.App.3d 811: “ ‘[S]ection
654 … prohibits the imposition of multiple enhancements for the single act of inflicting
great bodily injury upon one person.’ [Citations.]” (Reeves, supra, 91 Cal.App.4th at
pp. 56-57, italics added.) But this is not a case of a single physical act resulting in
multiple enhancements. Rather, it is a case of multiple physical acts (using a firearm
while taking Ventura’s bag and using a firearm while smashing Ventura’s phone) giving



                                            6.
person by means of force or fear (see § 211), while the dissuasion conviction arose from
the physical act of smashing Ventura’s cell phone to prevent her from reporting a crime.7
(§ 136.1, subd. (b)(1).) Because these are separate acts, the Wooten test is satisfied.
(Wooten, supra, 213 Cal.App.4th at pp. 130-131.) Section 654 does not require
punishment on either enhancement be stayed. (Ibid.)
       II.    WE MODIFY ANDERSON’S SENTENCE ON COUNT 6
       Anderson contends the court erred in sentencing her to four years on count 6,
rather than three years. Respondent concedes this issue. We agree, and accept the
concession.
       Under section 1170.15, the “subordinate term” for an applicable dissuasion
conviction “shall consist of the full middle term of imprisonment.” (§ 1170.15, italics
added.) Here, that middle term was two years. (§ 18.) Thus, when the one-year
enhancement under section 12022, subdivision (a)(1) is added, the sentence on count 6
should have been three years, not four.
       We order Anderson’s sentence on count 6 modified to reflect a sentence of three
years. (§ 1260.)
       III.   THE ABSTRACT OF JUDGMENT SHOULD BE AMENDED
       The parties concur that the abstract of judgment should be amended. We agree
and order the abstract of judgment modified to separately list the base term,
enhancements and enhancement terms for counts 4, 8, and 11 for defendant Brown and
counts 4 and 11 for defendant Anderson.




rise to multiple enhancements. Section 654 does not prohibit punishment for each
enhancement in this circumstance.
       7Arguably, the dissuasion conviction could also have arisen from Brown’s
physical act of commanding Ventura to hang up the phone.



                                             7.
                                      DISPOSITION
       Anderson’s prison sentence on count 6 is modified from four years to three years.
The matter is remanded to the trial court to amend the abstract of judgment to: (1)
separately list the base term, enhancements and enhancement terms as to both defendants,
and (2) reflect a modified prison term of three years on count 6 as to defendant Anderson
only. The court is directed to transmit certified copies of the amended abstract to all
appropriate parties and entities. In all other respects, the judgment is affirmed.


                                                                 _____________________
                                                                 Poochigian, J.
WE CONCUR:


_____________________
Levy, Acting P.J.


_____________________
Detjen, J.




                                             8.
