People v. Danowski, E020701
| Decision Date | 01 September 1999 |
| Docket Number | No. E020701,E020701 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 99 Cal. Daily Op. Serv. 7285, 1999 Daily Journal D.A.R. 9281, 1999 Daily Journal D.A.R. 9483 The PEOPLE, Plaintiff and Respondent, v. Guthrie Lee DANOWSKI, Defendant and Appellant. |
Defendant Guthrie Lee Danowski (defendant) confronted his victim in the parking lot of a fast food restaurant and demanded all his money. When the victim resisted, defendant shot him in the stomach, then fled. As a result, defendant was convicted of attempted robbery and attempted willful, deliberate, and premeditated murder.
In the published portion of this opinion, we will hold that, when the three strikes law does not mandate consecutive sentences, Penal Code section 654 (section 654) prohibits multiple punishment under the three strikes law. In the unpublished portion of this opinion, we will further hold section 654, as applied here, prohibited separate sentences for both the attempted murder and the attempted robbery. We will therefore stay the sentence for the attempted robbery. Finally, we will note several minor sentencing errors which we can correct by modifying the judgment. We find no other prejudicial error; accordingly, we will affirm the judgment as modified.
We focus on the evidence of what the perpetrator did and/or intended to do, which is relevant to several of defendant's contentions. There was also conflicting evidence as to defendant's identity as the perpetrator; we omit that evidence, however, because it is not relevant to any appellate issue.
On August 11, 1995, victim Jose Sanchez was at the Bank of America at Valley Boulevard and Sierra Avenue in Fontana. He cashed a payroll check for about $600 or $700. He obtained $4,000 in currency to pay some bills, plus $200 in coins to use as change in his business.
Sanchez was at the teller window for about 10 minutes. While there, he noticed defendant, who was standing several teller windows to his right, about six or seven feet away. Defendant was looking not so much at Sanchez as at the money Sanchez was getting from the teller. He kept looking for about six or seven minutes, or longer. 1 Sanchez was scared.
When Sanchez left the bank, he drove to an In-N-Out Burger restaurant. The In-N-Out was on Sierra, about three blocks from the bank. Sanchez parked his van in the parking lot. When he opened his door to get out, defendant was standing right outside. He was pointing a revolver at Sanchez's stomach. He said, "Give me all your money, hurry up, move fast." When Sanchez did not respond, defendant hit him in the face with the gun, drawing blood.
Sanchez tried to defend himself by "hugging [defendant] and struggl[ing]," "tr[ying] to move him out of my way," "tr[ying] to move the gun a different direction than myself." Defendant fired three shots. One bullet struck Sanchez in the stomach. Defendant got back into his car. Sanchez then noticed that defendant had parked his car behind the van, blocking it.
Lafayette Boyd was eating inside the In-N-Out. He saw the victim park his van; ten seconds later, he saw defendant park his car behind the van. Defendant walked up to the victim. At that point, defendant did not have a gun in his hands. "A struggle ensued, pushing, shoving back and forth." During the struggle, defendant took out a revolver and pointed it at the victim's stomach. Boyd took his eyes off what was happening long enough to yell for help and run outside. He then saw the victim with a gunshot wound in his stomach. Defendant got back in his car and drove away "as quickly as possible."
Amalia Kaplan, Boyd's sister-in-law, also saw defendant park his car behind the victim's van, blocking it, then run up to the van. At that point, defendant did not have a gun in his hands. He pulled the victim out of the car and a struggle began. "They were pulling, yanking at each other." Defendant took a revolver out of his waistband and pointed it at the victim's stomach. Kaplan heard a single gunshot. Defendant got back into his car and "speeded out." The victim was bleeding.
Stephanie Hunt was walking down the street across from the In-N-Out when she heard a single loud popping sound. When she looked toward the sound, she saw a man get into a car and speed away. The car had been blocking a parked van.
Sanchez required surgery. He remained hospitalized for "15 to 17 days."
Violet Alaniz was the bank teller who had waited on Sanchez. During the transaction, the teller window to her left (Sanchez's right) was closed. However, the second teller window to her left was open.
In the parking lot of the In-N-Out, the police found two bullet fragments.
Defendant was charged with attempted murder, which was alleged to be willful, deliberate, and premeditated (Pen.Code, §§ 187, subd. (a), 664), and attempted robbery (Pen.Code, §§ 211, 664). In connection with each count, there were enhancement allegations that defendant personally used a firearm (Pen.Code, § 12022.5, subd. (a)); defendant personally inflicted great bodily injury (Pen.Code, § 12022.7, subd. (a)); defendant had one previous serious or violent felony conviction (Pen.Code, § 667.5, subd. (a)), for kidnapping for ransom (Pen.Code, § 209); and defendant had served two prior prison terms (Pen.Code, § 667.5, subd. (b)), one for possession of a firearm by a prisoner (former Pen.Code, § 4502; see now Pen.Code, § 4502, subd. (a)) and one for escape without force or violence (Pen.Code, § 4530, subd. (b)). Finally, for purposes of the three strikes law (Pen.Code, §§ 667, subds. (b)-(i), 1170.12), it was alleged that defendant had five prior serious or violent felony convictions -- one for kidnapping for ransom (Pen.Code, § 209), and four for robbery (Pen.Code, § 211).
The trial on the prior conviction and prior prison term allegations was bifurcated, and defendant waived a jury trial on them. The jury found defendant guilty of attempted murder and attempted robbery; it found that the attempted murder was willful, deliberate, and premeditated. It also found that the personal firearm use and great bodily injury allegations were true. The trial court found that all prior conviction and prior prison term allegations were true.
On the attempted murder count, the trial court sentenced defendant to 25 years to life, plus ten years for the personal firearm use enhancement, three years for the great bodily injury enhancement, five years for the prior serious or violent felony enhancement, and one year for each of the two prior prison term enhancements, all to be served consecutively, for a total of 45 years to life. On the attempted robbery count, it sentenced him to 25 years to life, plus ten years for the personal firearm use enhancement, three years for the great bodily injury enhancement, five years for the prior serious or violent felony enhancement, and one year for each of the two prior prison term enhancements. It ordered the base term and the personal firearm use enhancement term served consecutively; it stayed on all other enhancement terms. Accordingly, the total sentence on the attempted robbery count was 35 years to life. The total sentence on both counts was 80 years to life.
III-V **
VI
Defendant contends the trial court erroneously believed the three strikes law required consecutive sentences for the attempted murder and the attempted robbery. Defendant also contends the imposition of separate sentences for both the attempted murder and the attempted robbery constituted multiple punishment in violation of section 654.
At the sentencing hearing, defense counsel argued that unstayed sentences on both the attempted murder and the attempted robbery would violate section 654.
The trial court responded:
The trial court then ruled:
The three strikes law provides: "Notwithstanding any other law "....
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...Hines concedes that section 654 does not apply when consecutive sentencing is mandated under the three strikes law. (People v. Danowski (1999) 74 Cal.App.4th 815, 823-824.) We do not address Hines's section 654 claim because, as we have explained, section 667, subdivision (c)(6) mandates a ......
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