People v. Ramirez, B086525

• Decision Date: 07 November 1995
• Docket Number: No. B086525,B086525
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 8628, 95 Daily Journal D.A.R. 14,867 The PEOPLE, Plaintiff and Respondent, v. Victor Q. RAMIREZ, Defendant and Appellant.

Page 530

46 Cal.Rptr.2d 530

39 Cal.App.4th 1369, 95 Cal. Daily Op. Serv. 8628,

95 Daily Journal D.A.R. 14,867

The PEOPLE, Plaintiff and Respondent, v. Victor Q. RAMIREZ, Defendant and Appellant.

No. B086525.

Court of Appeal, Second District, Division 6, California.

Nov. 7, 1995.

Review Denied Feb. 15, 1996.

Jerry D. Whatley, Santa Barbara, under appointment by the Court of Appeal, for Appellant.

Daniel E. Lungren, Attorney General; George Williamson, Chief Assistant Attorney General; Carol Wendelin Pollack, Senior Assistant Attorney General; Susan D. Martynec, Supervising Deputy Attorney General; Juliet W. Swoboda, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, Associate Justice.

Victor Q. Ramirez was convicted by a jury of second degree robbery (Pen.Code, §§ 211, 212.5) and assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1), a lesser included offense within the charged offense of attempted murder. (Pen.Code, §§ 664, 187.) ¹ The jury also found that Ramirez intentionally inflicted great bodily injury upon the victim (§ 12022.7) and used a deadly weapon in the commission of each offense. (§ 12022, subd. (b).) The trial court imposed an aggregate unstayed term of nine years composed of the upper five year term for the robbery count, a three year consecutive term for the great bodily injury, and one year for use of the knife. Sentence on the assault count was stayed pursuant to section 654.

Appellant's convictions formed the basis for violation of probation in another case, CR31765. He admitted the violation and the trial court imposed a consecutive eight month sentence and a $200 restitution fine.

Appellant contends the trial court erred by: (1) imposing the great bodily injury enhancement in connection with the robbery count because the evidence was insufficient to establish that the injury occurred during the commission of the robbery; (2) failing to instruct the jury that it must reach a unanimous verdict on the question whether the great bodily injury occurred during the commission of the robbery; (3) imposing a $10,000 restitution fine without finding that appellant had the ability to pay the fine; and (4) imposing separate restitution fines in this case and a related probation violation case which, when considered together, exceed $10,000. We affirm.

On February 15, 1994, Tuan Le drove his cousin Chi Dang to the "Stop and Go" market in Oxnard. When Dang went inside the store, appellant approached Le, who was waiting in the car, and asked for money. Le told appellant that he had given all his money to his friend. Dang walked out of the store and Le told him to give appellant some change. Dang gave appellant a few dollars before getting into the car.

Le started the car and backed away from his parking place. When he stopped to shift the car into first gear, appellant stuck his head through the open driver's side window, grabbed Le by the hair, held a knife to Le's neck and demanded more money. After Le and Dang gave appellant all the cash they had, appellant told them to leave and warned them not to return to the neighborhood because, "if I see you guys, I'm going to kill you."

Le was terrified and tried to drive out of the parking lot. He "spun the tires and began to back up very fast and then the car ... stalled." He had traveled only 45 feet when appellant once again approached Le through the open car window. Appellant stabbed Le twice in the chest, once in the back and at least once on the arm. Although he was bleeding profusely, Le started the car and drove away. After a few moments, Le stopped. Dang helped Le into the passenger seat and drove to a nearby hospital. Le underwent emergency surgery to repair life-threatening lacerations to his heart. He remained in the hospital for 12 to 13 days. As a result of the injuries he suffered during the attack, Le has been unable to return to his work as a commercial fisherman.

Appellant contends that the trial court erred in imposing the enhancement for great bodily injury because there was insufficient evidence to prove that appellant stabbed Le during the commission of the robbery. He theorizes that he was in unchallenged possession of the victim's property and had no reason to flee the scene of the crime before he stabbed Le. Accordingly, appellant contends the robbery was complete before the stabbing occurred, the stabbing constitutes an entirely separate crime, and the injuries it inflicted may not be used to enhance his sentence for robbery. We disagree.

The general rules attendant to when a robbery is "over" provides the rationale for the resolution of appellant's contention in this somewhat unusual situation. "The nature of the crime [of robbery] is such that a robber's escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place. Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety." (People v. Carroll (1970) 1 Cal.3d 581, 585, 83 Cal.Rptr. 176, 463 P.2d 400; see also People v. Cooper (1991) 53 Cal.3d 1158, 1166, 282 Cal.Rptr. 450, 811 P.2d 742; People v. Taylor (1995) 32 Cal.App.4th 578, 581, 38 Cal.Rptr.2d 127; People v. Johnson (1992) 5 Cal.App.4th 552, 559, 7 Cal.Rptr.2d 23.) But what if the robber is content to remain, orders the victim to leave, and then assaults the victim before he or she is able to do so?

Appellant claims that the parking lot was a place of temporary safety for him because he was content to remain there while the terrified victim tried to escape. Appellant's subjective feeling of security, i.e., his inability to appreciate the risk of staying at the scene of the crime, is irrelevant. "[T]he issue to be resolved is whether a robber [has] actually reached a place of temporary safety, not whether the defendant thought that he or she had reached such a location." (People v. Johnson, supra, 5 Cal.App.4th at p. 560, 7 Cal.Rptr.2d 23.)

The scene of a robbery is not a place of temporary safety, even if it is the victim and not the robber who attempts to escape. (People v. Carroll, supra, 1 Cal.3d at p. 585, 83 Cal.Rptr. 176, 463 P.2d 400; see also People v. Fields (1993) 35 Cal.3d 329, 365, 197 Cal.Rptr. 803, 673 P.2d 680.) Infliction of great bodily injury at the scene of the robbery may facilitate the robber's ultimate "getaway" to a "place of temporary safety." Disabling the victim will necessarily retard the victim from reporting the offense to the police.

"In cases involving a kidnapping and robbery, courts have held ... that the evidence supported the conclusion the robber had not reached a place of temporary safety so long as the victim ... [remains] under the robber's control. [Citations.]" (People v. Carter (1993) 19 Cal.App.4th 1236, 1251, 23 Cal.Rptr.2d 888.) Even where there is no kidnapping charge, while the victim is subject to further attack, the victim is no less under the robber's "control." Where, as here, the robber is content to remain at the scene and the infliction of great bodily injury is close to the robbery in terms of time or distance, the robbery is not "over." Phrased otherwise, the robbery is not "over" until the victim has reached a place of temporary safety.

Whether a robbery is "over" is a determination for the trier of fact unless the court determines, as a matter of law, that the infliction of great bodily injury is so far removed in terms of time or distance, that the robbery is "over" as a matter of law. Here, the jury impliedly determined that the public parking lot of a convenience store which was the scene of a robbery and a brutal knife attack was not a "place of temporary safety" for appellant. Substantial evidence supports the jury's determination on this issue. We also observe that the parking lot was quite obviously not a place of temporary safety for the victim.

Appellant's second contention is also without merit. In connection with the great bodily injury enhancement allegation, the jury was instructed: "If you find the defendant guilty of Counts 1 [second degree robbery], 2 [attempted murder], or the lesser included crime of assault with a deadly weapon, you must determine whether or not such defendant, with the specific intent to inflict such injury, did personally inflict great bodily injury on TUAN LE in the commission of Counts 1, 2 or the lesser included crime." Appellant argues that, because the instruction was phrased in the disjunctive, the jury could have found the enhancement allegation true with respect to both offenses, even if members of the jury disagreed about whether the robbery was completed before the stabbing occurred. He opines that the trial court therefore had a duty to instruct the jury sua sponte that, in order to find the enhancement allegation true for the robbery count, it must unanimously agree that ...