People v. Anderson

• Decision Date: 15 June 1990
• Docket Number: No. B028490,B028490
• Citation: 221 Cal.App.3d 331,270 Cal.Rptr. 516
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gregory Scott ANDERSON et al., Defendants and Appellants.

Page 516

270 Cal.Rptr. 516

221 Cal.App.3d 331

The PEOPLE, Plaintiff and Respondent, v. Gregory Scott ANDERSON et al., Defendants and Appellants.

No. B028490.

Court of Appeal, Second District, Division 4, California.

June 15, 1990.

As Modified June 19, 1990.

Certified for Partial Publication ^*.

Review Denied Sept. 20, 1990.

Anita Susan Brenner, Pasadena, Jolene Larimore, Santa Barbara, Joseph P. Farnan, San Pedro and Richard Jay Moller, Redway, under appointments by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Mark Alan Hart and Sharlene A. Honnaka, Deputy Attys. Gen., for plaintiff and respondent.

GEORGE, Acting Presiding Justice.

Following a jury trial, defendants Gregory Anderson, Diane Navarro, ¹ Richard Navarro, and Richard Valles were convicted of shooting at an inhabited dwelling (Pen.Code, § 246), ² burglary of the residence of Anna Argostino (§ 459), robbery of Argostino Prior to sentencing, Richard Navarro admitted he had suffered a previous conviction of a serious felony. (§ 667, subd. (a).) Diane Navarro having waived her right to a jury trial, the trial court found she also had suffered a previous conviction of a serious felony. (§ 667, subd. (a).) Anderson was sentenced to a total term of 19 years in prison; Diane Navarro was sentenced to a total term of 24 years in prison; Richard Navarro was sentenced to a total term of 23 years in prison, and Valles was sentenced to a total term of 19 years in prison.

                committed within a residence (former § 213.5), 3 forcible sexual penetration by a foreign object upon Argostino (§ 289, subd.  (a)), two counts of assault with force likely to produce great bodily injury upon Theodore Nelson and Eric Rivera respectively (§ 245, subd.  (a)(1)), and conspiracy to commit robbery (§ 182, subd.  (a)(1)). 4  The jury found true the following additional allegations:  all defendants except Richard Navarro used firearms in the commission of the burglary of the residence of Argostino and the robbery of Argostino (§ 12022.5, subd.  (a)), a principal in those offenses was armed with a firearm (§ 12022, subd.  (a)), and Valles used a firearm in the commission of the assaults with force likely to produce great bodily injury upon Nelson and Rivera (§ 12022.5, subd.  (a)). 5
                

Defendants raise numerous issues on appeal. In the published portion of our opinion, we address the question which the Supreme Court expressly left unresolved in People v. Siko (1988) 45 Cal.3d 820, 822, 248 Cal.Rptr. 110, 755 P.2d 294, and hold that notwithstanding the provisions of section 654, section 667.6, subdivision (c), authorizes the imposition of consecutive full-term sentences for enumerated sexual offenses constituting separate acts committed during an "indivisible" or "single" transaction. Accordingly, we affirm the judgment.

FACTS

On Saturday, May 17, 1986, Joseph Argostino took his family on a weekend vacation. He asked his 18-year-old sister Anna to care for his dog during their absence.

On Saturday evening, Anna Argostino arrived at her brother's house accompanied by her 18-year-old friend, Debbie Pitzer. They later were joined by Eric Rivera and Ted Nelson, both of whom were 18 years of age.

Shortly before 3 a.m. on Sunday morning, the four defendants arrived at the Argostino residence in an automobile bearing a "U.S. government license plate" with a flashing red light on the dashboard and the letters "A.T.F." on the trunk lid. ⁶ They parked on the front lawn, and Richard Navarro remained in the driver's seat of the vehicle with the engine running while the other defendants rushed to the front door and demanded entry, shouting: " 'Federal agents, federal agents. This is a drug raid.' "

Nelson, who had been watching television in the living room, ran into the front bedroom to wake Rivera as a gunshot passed through a bedroom window. Nelson and Rivera fled to the living room as defendants began shooting at the front door. Nelson ran into the back bedroom and hid under the bed.

As Rivera stood in the living room, the front door broke open and Anderson, Diane Navarro, and Valles entered. Valles was Anna Argostino dialed 911 on the telephone as defendants were entering the residence. Before she had an opportunity to speak, however, Valles entered the house, grabbed Argostino, and pulled her toward Anderson, who asked her who owned the house. Argostino told him it was her brother's house.

carrying a shotgun. Anderson and Diane Navarro were carrying handguns. Valles and Anderson were dressed in blue jumpsuits bearing the insignia "A.T.F." on the back and wore what appeared to be police badges on their chests.

Pitzer was taking a bath when she heard defendants banging on the front door and yelling " 'A.T.F. federal agents.' " She then heard gunshots. She got out of the bath and was dressing when Anderson ordered her out of the bathroom and kicked a hole in the locked door. At Anderson's direction, Pitzer crawled out of the bathroom and lay down in the hallway. Valles then threw Rivera to the floor next to Pitzer. Valles kicked Rivera in the head several times, then pulled Rivera's head up by his hair and asked him, " 'Where's the box? Where's the key?' " When Rivera told him he did not know, Valles threw Rivera's head back to the floor, causing it to hit a heating grate.

Argostino was forced to lie down next to Pitzer. As she lay there, Valles asked Argostino "where the box and key were" and kicked her in the head and ribs. Argostino told Valles she did not know what he was talking about. Valles held the shotgun to Argostino's back and head. Argostino, who was wearing a cotton jumpsuit, then felt the barrel of the shotgun penetrate her rectum. The shotgun barrel was inserted into her rectum with force, causing her pain and necessitating subsequent medical treatment. Valles stated, " 'I want the keys,' " and told Argostino she had until the count of three to tell him where the keys were. He began counting. Argostino screamed that she did not know. After Valles said "three," Argostino heard a "click" that sounded like the trigger of the shotgun had been pulled. Valles said, " 'Oh, shit,' " removed the gun from her rectum, and left.

Valles discovered Nelson hiding in the back bedroom and struck him on the back of the head with a handgun five or six times. Valles then fired three shots into a desk to force it open. A short time later, someone yelled " 'The cops are here,' " and Valles left the bedroom.

Deputy Sheriff Victor Lopez arrived at the scene and found Richard Navarro sitting behind the wheel of defendants' vehicle on the front lawn of the residence. Deputy Lopez asked Richard Navarro what he was doing, and he replied he was a federal agent conducting a "drug bust." A short time later, a shotgun was fired from the house at Deputy Lopez, precipitating a brief gun battle, after which defendants surrendered. Some personal property, including two watches and a ring found to be missing from a desk drawer, were recovered from Valles's pocket following his arrest.

Valles testified that he and Anderson lived in Bakersfield; that on May 14, 1986, Valles had telephoned Richard Navarro, who proposed that Valles and Anderson come to Los Angeles for the purpose of committing a robbery of "dope dealers"; and that Valles had expected to gain between $4,000 and $10,000 in cash and drugs from the robbery.

DISCUSSION

I-VI ^**

VII

IMPOSITION OF A FULL-TERM CONSECUTIVE SENTENCE UNDER SECTION 667.6, SUBDIVISION (C), RENDERS INAPPLICABLE SECTION 654's PROSCRIPTION AGAINST MULTIPLE PUNISHMENT FOR SEPARATE OFFENSES THAT ARE PART OF AN INDIVISIBLE TRANSACTION

Diane Navarro contends the trial court violated section 654 by imposing multiple punishment for the robbery of Anna Argostino Although the total terms of incarceration received by the four defendants varied due to enhancements arising from prior convictions, each defendant's sentence included the upper term of six years in prison for first degree robbery of Argostino, a consecutive term of one year (one-third the middle term) for shooting at an inhabited dwelling, a consecutive term of one year (one-third the middle term) for assault upon Ted Nelson with force likely to produce great bodily injury, a consecutive term of one year (one-third the middle term) for assault upon Eric Rivera with force likely to produce great bodily injury, and, pursuant to section 667.6, subdivision (c), a consecutive term of eight years (the full upper term) for forcible sexual penetration of Argostino by a foreign object. Sentence on the burglary and conspiracy to commit robbery counts was imposed but was stayed pursuant to section 654.

the shooting at an inhabited dwelling, and the forcible sexual penetration of Argostino by a foreign object. Richard Navarro joins in this contention.

Section 654 states, in pertinent part: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one...."

" 'The proscription against double punishment in section 654 is applicable where there is a course of conduct which ... comprises an indivisible transaction punishable under more than one statute.... The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.' [Citation.] 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]' " (People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal.Rptr. 813, 768 P.2d 32.) "[I]f all of the...