People v. Childs

• Citation: 112 Cal.App.3d 374,169 Cal.Rptr. 183
• Decision Date: 20 November 1980
• Docket Number: Cr. 19560
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Wendell CHILDS and Michael Nelson, Defendants and Appellants.

Page 183

169 Cal.Rptr. 183

112 Cal.App.3d 374

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wendell CHILDS and Michael Nelson, Defendants and Appellants.

Cr. 19560.

Court of Appeal, First District, Division 2, California.

Nov. 20, 1980.

Hearing Denied February 11, 1981.

Marvin Rous, San Francisco, for defendant and appellant, Wendell childs.

Carlo Andreani, San Francisco (Court-appointed), for defendant and appellant, Michael Nelson.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Steven H. Zeigen, Alan S. Meth, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

Quin Denvir, State Public Defender, Michael S. McCormick, Deputy State Public Defender, San Francisco, California Attorneys for Criminal Justice by Ephraim Margolin, San Francisco, amici curiae on behalf of defendants and appellants.

MILLER, Associate Justice.

Wendell Childs and Michael Nelson appeal from a judgment of conviction based upon a jury verdict finding them guilty on multiple counts of robbery (Pen.Code, § 211) with firearm use (Pen.Code, § 12022.5), assault with a deadly weapon (Pen.Code, § 467), attempted robbery (Pen.Code, §§ 211/664), and unlawful driving of a vehicle (Veh.Code, § 10851).

The facts reveal that around 11:00 a. m. on December 11, 1978, an individual wearing a ski mask and dark clothing entered the Bank of America at Stonestown Shopping Center in San Francisco and yelled, "Okay. Nobody move." Gun in hand, he positioned himself in the platform area and watched the customers. A second man with a ski mask, dark clothing, tennis shoes, green surgical gloves and carrying a gun and white pillowcase went to the teller's counter and leaped over the barrier. He pushed aside teller Ayala and took money from her cash box. The robber proceeded down the line of tellers, removing money from the open cash cans. The five tellers on duty remained in and around the area of their cash stations during this time. As the man in the platform area moved down the line of tellers, the other man moved through the lobby in a parallel fashion. The latter told two customers attempting to leave, "Don't you touch that back door," and proceeded towards then with a gun. The two men then fled through the northwest exit door.

An audit later revealed that five tellers had sustained losses: Irene Ayala, $2,497; Debbie Orlando,.$1,271; Kimberly Miller, $1,715; Louis Quimson, $3,501; and Theresa Siragusa, $1,450.

After the duo exited the bank, maintenance supervisor Horton transmitted a report of the robbery over his radio. Assistant Patrol Officer Lowe, 100 feet away from the bank, turned in time to observe the two men running toward 19th Avenue, and followed in pursuit.

At 19th Avenue the pair split up. One of them, later identified as Michael Nelson, tried to stop vehicles by running into their paths. As he stood in the center lane, an oncoming truck owned by Cyrus Amirfar and loaned to Ninus Lazar and Albert Negoli came to a stop. Nelson pulled out his handgun and ordered the driver (Negoli) and the passenger (Lazar) to step out. Fearfully, they complied.

Nelson got in the truck and began driving toward Officer Lowe, who was positioned 40 feet away. As the truck approached Lowe, Nelson raised his hand from inside his coat. In response, Lowe fired one shot into the passenger side, but Nelson drove on.

Lowe immediately radioed the San Francisco police. This transmission was picked up by Officer McNerney, who spotted the vehicle and gave it high chase until the truck eventually slid to a stop. Nelson alighted on foot, despite an order to halt, but was eventually arrested.

The other man, later caught and identified as Childs, attempted a different escape. Mr. and Mrs. Floyd De'Eds were attempting to park their Volkswagen in the Stonestown parking lot when Mrs. De'Eds saw Childs running toward them. Mr. De'Eds was in the act of parking the car when the door flung open and a gun was pressed against his neck. Childs grabbed at Mr. De'Eds' chest and tried to pull him out of the car. Mrs. De'Eds grabbed the keys from the ignition and the car started to roll. Childs was thrown off balance, turned from the car and fled.

Meanwhile, Officer Winkler of the San Francisco Police Department, in response to a police broadcast, proceeded to the area of 19th Avenue. He observed Childs on 19th Avenue near the parking lot waving a gun in his hand. Officer Winkler hollered for Childs to drop the gun, but instead, Childs fled toward the Don Lucas Cadillac Agency.

Edward Washington was cleaning the back seat of a car on the lower floor of the agency when Childs entered. Childs placed a gun to Washington's neck and ordered him to give him the keys. Washington fell out of the car and threw his hands up. Childs pushed him against the wall.

Childs then ran up the back stairs to the upper level of the agency, got into a white Seville and started to drive the car. He slammed the car into some parked cars and a pillar. By this time the steel door in front of the dealership was shut so as to prevent Childs from escaping. Childs then drove down a ramp, hit another car, came to a cement wall and stopped. He exited the car and went into the polishing area. Officer Winkler found Childs there and ordered him to drop his gun. Childs hid behind a car but finally was arrested.

On appeal, appellants contend that separate convictions for each of five counts of robbery in the bank violate Penal Code section 654 ¹ proscribing multiple punishments for offenses arising out of a single transaction. ² On the same theory, appellant Nelson separately challenges his two robbery convictions for the forceful taking of the pickup truck from occupants Negoli and Lazar. We reject appellants' contention that section 654 proscribes multiple bank robbery convictions; however, for reasons other than those urged by Nelson, we find that the imposition of two robbery convictions for the truck robbery was erroneous.

Section 654 precludes multiple punishments, not multiple convictions, for a single act or indivisible course of conduct (People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552). There is, however, a clear exception to this rule: "Notwithstanding the foregoing determination that defendant entertained but a single principal objective during an indivisible course of conduct, he may nevertheless be punished for multiple convictions if during the course of that conduct he committed crimes of violence against different victims." (Ibid.)

This exception is derived from People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905, which held that "(w)here multiple acts of violence occur against multiple victims, the course of conduct is divisible." (Id., at p. 638, fn. 10, 105 Cal.Rptr. 681, 504 P.2d 905.) Since robbery at gunpoint is a violent crime, and there were multiple victims in the bank robbery, the aforementioned exception precludes application of section 654.

Appellants attempt to circumvent this exception in contending that they were charged with five robberies against five tellers when there was actually a single taking of money from the Bank of America. They rely on People v. Guerin (1972) 22 Cal.App.3d 775, 99 Cal.Rptr . 573, where defendant held up a supermarket, taking money from two different cash registers, presided over by two different clerks. There, the court sustained robbery convictions on separate counts involving each clerk on the theory that the clerks had exercised actual dominion and control over the money, and each was a victim "of a separate taking and of a separate assault." (Id., at pp. 781-782, 99 Cal.Rptr. 573.) However, the court reversed an additional conviction for robbery against the store manager since he was not the victim of a separate taking, and did not have actual possession or control of the stolen money. The conviction was then modified to assault with a deadly weapon on the grounds the manager was a victim of a separate assault. (Id., at pp. 782-783, 99 Cal.Rptr. 573.)

The facts in Guerin are slightly different from those relating to the bank robbery in the instant action. Here, we are faced with a situation where there are five takings from separate bank tellers in actual, not constructive, possession of the money. As such, they were in a position similar to the checkers in Guerin who were recognized by that court as actual victims of multiple robbery counts.

By contrast, the multiple robbery counts against appellant Nelson for the taking of the pickup truck from victims Negoli and Lazar fall squarely within the proscription of People v. Higgins (1972) 28 Cal.App.3d 771, 104 Cal.Rptr. 925. In Higgins, defendant was charged with two counts of robbery. At gunpoint, two clerks in a store handed defendant money from a single cash register. Relying on Guerin, the Higgins court held there was only one robbery. The court reasoned that "(w)hile, under the authorities discussed by us in Guerin, the People might lawfully have convicted on a robbery from Paula, had she been selected by the People as the only victim, they cannot inflate this single robbery into two offenses merely because the loot passed (in part) through two innocent hands. We affirm the conviction on count I (which involved Carolyn); we reduce the conviction on count II (which involved Paula) to a violation of subdivision (a) of section 245 of the Penal Code." (Id. at p. 775, 99 Cal.Rptr. 573.)

In the present case, both victims were in possession of the same vehicle and were victims of a single taking. Therefore, the additional count charging Nelson for robbery of Negoli must be modified in light of the robbery conviction sustained against Lazar. Since both Negoli and Lazar were victims of an assault, the conviction on count III (robbery of Negoli) must be modified to assault with a deadly weapon pursuant to Guerin ³.

Appellants' next contention, that the...