Filed 11/10/14 P. v. Deleon CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR


THE PEOPLE,                                                          B252431

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. KA100149)
         v.

DANIEL DELEON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
George Genesta, Judge. Affirmed in part, reversed in part and remanded.
         Michele A. Douglass, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Scott A. Taryle and Kimberley J. Baker-Guillemet, Deputy Attorneys
General, for Plaintiff and Respondent.
       A jury convicted Daniel Deleon of one count of robbery (Pen. Code, § 211),1
one count of false imprisonment by violence (§ 236), and one count of commercial
burglary (§ 459.) The trial court found true allegations that appellant suffered four
prior convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)) and four prior serious felony convictions (§ 667, subd.
(a)(1)). Appellant contends on appeal that the trial court erred in finding the
evidence sufficient to establish the four felony priors were brought and tried
separately as required by section 667, subdivision (a)(1). He further contends that
the trial court erred in imposing separate punishments for the robbery and false
imprisonment counts rather than staying one of the sentences pursuant to section
654.
       We conclude that the evidence is insufficient to establish that appellant’s
four serious felony priors were brought and tried separately for purposes of section
667. However, we further conclude that the trial court did not err in imposing
separate sentences for the robbery and false imprisonment counts. Because we
conclude that the evidence does not support the imposition of four enhancements
under section 667, subdivision (a)(1), we vacate the sentence and remand for
resentencing and a retrial on the enhancement allegations, if the prosecution so
elects. In all other respects, we affirm the judgment.


               FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
       Norma Morales owned a warehouse business in La Puente, California. On
June 15, 2011, around 4:30 p.m., she entered the business and closed the door. As


1
       All further statutory references are to the Penal Code.

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soon as she closed the door, appellant opened the door and sprayed her in the face
with WD-40. He closed the door, told her not to scream, and demanded money.
Morales had never seen appellant before. She identified him at trial.
      Appellant asked Morales for her purse, then took it from a nearby table.
When she tried to pull the purse away from him, he punched her above her right
eye and told her to move to the corner of the room, approximately 10 to 12 feet
away, and to sit down. Appellant searched Morales’ purse, but he found no
money. He told Morales to stay where she was, and he began to bind her hands,
feet, and mouth with tape he found in the office. While doing so, he noticed her
wedding ring and told her to give it to him. She complied, and he left. Before
leaving, he accidentally dropped the ring. Morales was able to free herself, ran to
her husband’s office in the same building and called the police.
      Manuel Calderon worked as a security guard at the warehouse. He
identified appellant at trial and stated that he had seen appellant and his friends
loitering at the plaza “[m]ore than 20 times.” Calderon had asked them to leave
the property more than once. Surveillance video on the day of the incident showed
appellant walking on the property around 4:30 p.m. and then running away from
the property around 4:50 p.m.
      Los Angeles County Sheriff’s Deputy Sean Cariaga was assigned to
investigate the incident approximately a year-and-a-half after it occurred. He
interviewed Morales in November 2012 and showed her a six-pack photographic
lineup that included appellant’s picture. Morales identified appellant as her
assailant. After appellant was arrested, he admitted spraying Morales and tying her
up.




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Defense Evidence
       Appellant did not present any evidence.


Procedural Background
       Appellant was charged by amended information with four counts:
(1) robbery (§ 211), (2) false imprisonment by violence (§ 236), (3) commercial
burglary (§ 459), and (4) kidnapping to commit robbery (§ 209, subd. (b)(1)). The
information further alleged that appellant had suffered four Three Strikes
convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior serious
felony convictions (§ 667, subd. (a)(1)).
       Appellant pleaded not guilty and denied the allegations. Appellant’s prior
conviction allegations were bifurcated, and a jury trial commenced. Following the
close of the prosecution’s case, the trial court granted appellant’s motion to dismiss
the kidnapping charge. The jury found appellant guilty of the remaining three
charges.
       Appellant waived his right to a jury trial on his prior convictions. At the
court trial, the prosecution introduced into evidence an abstract of judgment for
case No. VA023577, showing that appellant was convicted in October 1992 on
three counts of second degree robbery (§ 211) and one count of assault with a
deadly weapon (§ 245, subd. (a)(1)).2
       The trial court found true the allegations of four prior strikes and four prior
serious felony convictions. The court sentenced appellant to a term of 70 years,
calculated as follows: count 1, 25 years to life; count 2, consecutive term of 25

2
       The prosecution also introduced appellant’s chronological history or movement
history within the prison system, fingerprint cards, and a photograph. In addition, a
paralegal from the prosecutor’s office and a forensic identification specialist testified
regarding the documents.
                                              4
years to life; count 3, 25 years to life, stayed pursuant to section 654; 20 years for
the four prior convictions pursuant to section 667, subdivision (a)(1). Appellant
filed a timely notice of appeal.


                                    DISCUSSION
      I.     Prior Serious Felony Convictions
      Appellant contends that the evidence was insufficient to establish that the
four serious felony priors were brought and tried separately as required by section
667, subdivision (a)(1). We agree.
      Section 667 provides in relevant part that “any person convicted of a serious
felony who previously has been convicted of a serious felony . . . shall receive, in
addition to the sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought and tried
separately.” (§ 667, subd. (a)(1).) “[T]he requirement in section 667 that the
predicate charges must have been ‘brought and tried separately’ demands that the
underlying proceedings must have been formally distinct, from filing to
adjudication of guilt.” (In re Harris (1989) 49 Cal.3d 131, 136 (Harris).) “[A]
court may look to the record of conviction to determine whether the defendant’s
prior serious felony convictions were sustained ‘“on charges brought and tried
separately . . . .”’ [Citation.]” (People v. Wilson (2013) 219 Cal.App.4th 500, 510
(Wilson).)
      “The People must prove each element of an alleged sentence enhancement
beyond reasonable doubt. [Citation.]” (People v. Delgado (2008) 43 Cal.4th 1059,
1065.) In reviewing appellant’s challenge to the sufficiency of the evidence to
uphold the court’s imposition of the enhancement, we determine “whether a
reasonable trier of fact could have found that the prosecution sustained its burden.

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We review the record in the light most favorable to the trial court’s findings.
[Citation.]” (People v. Towers (2007) 150 Cal.App.4th 1273, 1277.)
      In Harris, the petitioner received two separate five-year enhancements for
prior robbery convictions under 667. However, the two prior convictions “arose
from a single proceeding which was initiated through the filing of a single
complaint in municipal court and was followed by a single preliminary hearing in
the same court; the original proceeding was thereafter prosecuted in superior court
under two separate informations.” (Harris, supra, 49 Cal.3d at p. 134.) The
California Supreme Court concluded that “the requirement in section 667 that the
predicate charges must have been ‘brought and tried separately’ demands that the
underlying proceedings must have been formally distinct, from filing to
adjudication of guilt.” (Id. at p. 136.) Because the two convictions were initiated
in a single complaint, the petitioner was subject to only one five-year enhancement
under section 667. (Id. at pp. 136-137.)
      In the instant case, respondent contends that appellant’s four prior
convictions were based on four separate incidents that occurred on three separate
dates, based on the prosecution sentencing memorandum and the transcript of the
sentencing hearing, where the court read aloud the portions of the sentencing
memorandum. According to the memorandum, the prior serious felonies occurred
as follows: (1) on July 11, 1992, appellant stabbed a man; (2) on July 15, 1992, he
robbed a victim of his car; (3) on July 15, 1992, he robbed a market; (4) on July 16,
1992, he robbed a convenience store. Assuming that the sentencing memorandum
is correct as to the sequence of the prior crimes, it does not establish that they were
brought and tried separately. (§ 667, subd. (a)(1); Harris, supra, 49 Cal.3d at p.
136; see People v. Deay (1987) 194 Cal.App.3d 280, 288 [rejecting the People’s



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argument that the defendant should receive two enhancements under 667 because
“the prior underlying offenses were not committed in ‘one criminal escapade’”].)
      The only evidence regarding the proceedings that resulted in appellant’s
prior convictions is an abstract of judgment, which shows that appellant was
convicted on October 30, 1992 of four counts in case No. VA023577: three
second degree robbery counts and one assault count. He was sentenced to five
years on count 3, robbery, and one-year consecutive terms each on counts 1
(assault), 2 (robbery), and 4 (robbery). In addition, he received enhancements
under sections 12022.5 and 12022.7, for a total term of 15 years, 4 months. Thus,
given that appellant was convicted and sentenced in the same proceeding, and there
is no evidence that the underlying proceedings were formally distinct in any way
(Harris, supra, 49 Cal.3d at p. 136), it appears that the four crimes were not
brought and tried separately as required by section 667, subdivision (a)(1).
      The decisions on which respondent relies -- People v. Wagner (1994) 21
Cal.App.4th 729 (Wagner), People v. Smith (1992) 7 Cal.App.4th 1184 (Smith),
and People v. Gonzales (1990) 220 Cal.App.3d 134 (Gonzales) – do not change
this conclusion. Unlike the present case, those decisions involved convictions that
were brought separately and sentenced separately, but obtained through guilty
pleas entered in single proceedings.
      Thus, in Wagner, the defendant’s two prior convictions “were charged in
separate felony complaints,” with separate case numbers. (Wagner, supra, 21
Cal.App.4th at p. 732.) The defendant pled guilty to the two separate complaints
in one proceeding, but “[t]hroughout this plea proceeding, the magistrate
distinguished between the two cases and repeatedly referred to them as ‘both
cases.’” (Ibid.) In addition, the clerk of the court noted the necessity of specifying
“which sentence went with which complaint,” and the defendant “was sentenced

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separately on each case under its respective number.” (Ibid.) On appeal, the
appellate court held that the cases were brought and tried separately because the
convictions originated in separate complaints, the complaints retained their
separate character, and the defendant entered a separate plea on each and was
sentenced separately on each. (Id. at p. 737.)
      Similarly, the prior convictions in Smith were “brought separately under
separate case numbers pertaining to separate crimes,” and “none of the cases was
consolidated.” (Smith, supra, 7 Cal.App.4th at p. 1189.) The record in Smith
showed “the verbal and paper-work references to the cases were separate with files
for each case and transcripts showing each case was dealt with by its separate
number.” (Id. at p. 1192.) The record further showed that “the convictions are
based on unrelated counts of different accusatory pleadings.” (Ibid.) The appellate
court thus found it “not significant for purposes of section 667, subdivision (a), that
the guilty pleas were taken on the same date. . . . Obvious considerations of
judicial efficiency called for that type of processing the multiple cases of a single
defendant.” (Ibid.) The decision in Gonzales, supra, 220 Cal.App.3d at page 144,
in which the charges were “formally distinct from their inception through
sentencing,” is to the same effect.
      Here, as we have explained, there is no evidence that the charges were
handled in formally distinct proceedings. Thus, the evidence is not sufficient to
uphold the imposition of four separate enhancements. We therefore reverse the
sentence and remand for resentencing.
      “[T]he doctrine of double jeopardy will not bar the retrial of a prior
conviction allegation after reversal on the ground of evidentiary insufficiency.
[Citation.]” (People v. Scott (2000) 85 Cal.App.4th 905, 908, see People v. Monge
(1997) 16 Cal.4th 826, 843.) On remand, therefore, the prosecution, if it chooses,

                                           8
may present additional evidence, if any, that might establish that the charges were
tried and brought separately. (People v. Roberts (2011) 195 Cal.App.4th 1106,
1133; see also People v. Barragan (2004) 32 Cal.4th 236, 239 [retrial of a strike
allegation permissible where a trier of fact finds the allegation to be true but an
appellate court reverses]; People v. Griffis (2013) 212 Cal.App.4th 956, 965 [on
remand after reversal for insufficient evidence of strikes, “[t]he People will have
the opportunity to introduce new evidence that the priors qualified as a strike, if
they can”].)


      II.      Section 654
      Appellant contends that the court improperly imposed separate punishments
for the robbery and false imprisonment charges because they were committed in an
indivisible course of conduct pursuant to a single objective within the meaning of
section 654. However, substantial evidence supports the trial court’s implicit
conclusion that the robbery and false imprisonment had different intents and
objectives.
      “‘Section 654 precludes multiple punishments for a single act or indivisible
course of conduct. [Citation.]’ [Citation.] ‘“Whether a course of criminal conduct
is divisible . . . depends on the intent and objective of the actor.”’ [Citation.] ‘[I]f
all of the offenses were merely incidental to, or were the means of accomplishing
or facilitating one objective, defendant may be found to have harbored a single
intent and therefore may be punished only once. [Citation.] [¶] If, on the other
hand, defendant harbored “multiple criminal objectives,” which were independent
of and not merely incidental to each other, he may be punished for each statutory
violation committed in pursuit of each objective, “even though the violations



                                            9
shared common acts or were parts of an otherwise indivisible course of conduct.”
[Citation.]’ [Citation.]
      “‘“The question whether . . . section 654 is factually applicable to a given
series of offenses is for the trial court, and the law gives the trial court broad
latitude in making this determination. Its findings on this question must be upheld
on appeal if there is any substantial evidence to support them.” [Citation.] . . .
“‘We must “view the evidence in a light most favorable to the respondent and
presume in support of the [sentencing] order the existence of every fact the trier
could reasonably deduce from the evidence. [Citation.]” [Citation.]’ [Citation.]”
[Citation.]’ [Citation.]” (People v. Galvez (2011) 195 Cal.App.4th 1253, 1262-
1263.)
      Here, when Morales first confronted Morales, he was seeking to rob her only
of money. After spraying her with WD 40, closing the door of her office, and
telling her not to scream, he demanded money, asked for her purse, and then took
the purse from a nearby table. When she tried to pull the purse away from him, he
punched her above her right eye and told her to move to the corner of the room,
which was approximately 10 to 12 feet away, and to sit down. He then
unsuccessfully searched the purse for money, after which he told Morales to stay
where she was, and began to bind her hands, feet, and mouth with tape he found in
the office.
      From this evidence, it can be inferred that appellant’s sole initial intent was
to rob Morales of money, and that the false imprisonment was intended to facilitate
both that intended taking (when he punched her and ordered her to sit in the
corner) and his planned escape (binding her in the corner after finding no cash in
her purse).



                                           10
      The taking of the wedding ring, which was the basis of the robbery
conviction, was accomplished with a separate intent and objective. While binding
Morales (intending to facilitate his escape after not finding any money), defendant
noticed Morales’ wedding ring. Only then did he form the intent to take it, and
only then, when she complied with his demand to give it to him, did he commit
robbery. Thus, the intent to take the ring was independent of the purpose and
objective of the false imprisonment (which was to facilitate the initial intent to take
money and then to facilitate escape). Although the robbery and the false
imprisonment shared certain acts, they were motivated by separate criminal
objectives and thus subject to separate punishment under section 654.




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                                   DISPOSITION
               The judgment of conviction is affirmed. The true finding on the
allegations of four prior serious felony convictions under section 667 is reversed
and the sentence vacated. The case is remanded for a retrial on the prior
conviction allegations if the prosecution so elects. If the prosecution does not elect
to retry the allegations or does not prove the allegations on retrial, the court shall
resentence appellant with only one enhancement. After resentencing, the trial
court is directed to prepare a modified abstract of judgment and forward it to the
Department of Corrections and Rehabilitation. In all other respects, the judgment
is affirmed.
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                WILLHITE, J.




               We concur:




               EPSTEIN, P. J.




               MANELLA, J.



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