People v. Fountain CA2/2

Filed 3/2/16 P. v. Fountain CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B263890
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA099982)
v.
LAWRENCE TYRONE FOUNTAIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur
Jean, Jr., Judge. Affirmed.
Tracy L. Emblem, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Lawrence Tyrone Fountain (defendant) appeals from the
judgment entered after he was convicted of carrying an unregistered, loaded handgun,
second degree robbery, and attempting to dissuade a witness by force or threat. He
contends that substantial evidence did not support his conviction of dissuading a witness,
and that the trial court was required to stay his sentence as to the dissuasion count under
Penal Code section 654.1 Finding no merit to defendant’s contentions, we affirm the
judgment.
BACKGROUND
An amended information charged defendant with the following four felonies:
count 1, carrying an unregistered, loaded handgun in violation of section 25850,
subdivision (a); count 2, unlawful firearm activity in violation of section 29825,
subdivision (a); count 3, second degree robbery in violation of section 211; and count 4,
dissuading a witness by force or threat in violation of section 136.1, subdivision (c)(1).
The information alleged as to all counts that defendant was out of custody on bail or on
his own recognizance at the time of the offenses, within the meaning of section 12022.1.
At arraignment, count 3 was amended by interlineation to add the special allegation that a
principal was armed with a firearm, within the meaning of section 12022, subdivision (a).
A jury found defendant guilty as charged in counts 1, 3, and 4, and found true the
special firearm allegation. On motion of the prosecution, the trial court dismissed count 2
in the interest of justice, and by agreement with the prosecution, defendant admitted the
bail allegation in exchange for a prison term in this case of seven years. On March 26,
2015, the trial court sentenced defendant to a seven-year term, comprised of the upper
term of five years as to count 3, plus two years for the bail allegation, a concurrent high
term of four years as to count 4, and a concurrent two-year term as to count 1. The trial
court stayed imposition of sentence for the true finding that a principal had been armed.
Defendant was ordered to pay mandatory fines and fees, and was given 264 days of
presentence custody credit.
1 All further statutory references are to the Penal Code, unless otherwise indicated.
2
Defendant filed a timely notice of appeal from the judgment.
Evidence presented
Karrmell Stone (Stone) testified that he and his friend Dexter Williams (Williams)
were approached by three men on August 15, 2014. One of the men, whom Stone later
identified as defendant, offered to sell him marijuana. Stone left to get money and about
15 minutes later, arrived with Williams at the prearranged alley meeting place, where the
three men waited. Defendant told Stone and Williams to come further into the alley so
they would not be seen, and one of the other men asked to use Stone’s phone. Stone gave
defendant the agreed upon $60, but defendant wanted more money.
Feeling uneasy, Stone asked for his phone and money back, but the man with his
phone pulled out a gun, placed the gun against Stone’s ribcage, and said, “Give me all
your shit before I spark.” Stone understood “spark” to mean shoot, and was very
frightened. He took out his wallet to get the remainder of his money, and asked to keep
his wallet because he needed it for a job interview the following week. The man replied,
“No, we are going to take it because if you snitch on us, we are going to find you.” Stone
interpreted the man’s words as a threat to come to his home and harm him or his
roommates if he said anything to law enforcement. Stone took the threat seriously and
was afraid for his roommates’ safety. Defendant patted down Williams, but found
nothing. The third man acted as a lookout.
Stone testified that he had $140 in his wallet, including the $60, along with a bank
card, driver’s license, his social security card, a bus card, his medical marijuana card, a
room key, and other cards. After taking the wallet, the robbers told Stone and Williams
to turn around and run, which they did without looking back. Stone was afraid to report
the crime because of the threat, but made a report after urging by his mother. Stone met
with Long Beach police officers and identified defendant from a six-pack photographic
lineup as one of the robbers.
Officers Robert Davenport and Carlos Del Real both testified that they
participated in defendant’s arrest on the day of the robbery. While Officer Del Real was
removing defendant from the car in which defendant had been a passenger, he saw
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defendant drop a handgun onto the ground. After Officer Del Real handcuffed defendant,
Officer Davenport recovered the gun and determined that it contained three live rounds.
A short while later, Officer Del Real found cards on the floorboard of Officer
Davenport’s car, below the area where defendant had been seated in the patrol car.
Among the cards were Stone’s social security and identification cards.
DISCUSSION
I. Substantial evidence of attempting to dissuade a witness by force or threat (count
4)
Defendant contends that there was insufficient evidence to support his conviction
as an aider and abettor to a violation of section 136.1, subdivision (c)(1). Under that
provision, a person is guilty of a felony if he knowingly and maliciously attempts to
prevent or dissuade a victim or witness to a crime from making any report to law
enforcement, where the act is accompanied by force or by an express or implied threat of
force or violence upon the witness, victim, or any third person. (§ 136.1, subd. (c)(1).)
“All persons concerned in the commission of a crime . . . whether they directly
commit the act constituting the offense, or aid and abet in its commission . . . are
principals in any crime so committed.” (§ 31.) “[A] person aids and abets the
commission of a crime when he or she, acting with (1) knowledge of the unlawful
purpose of the perpetrator; and [with] (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime.” (People v. Beeman
(1984) 35 Cal.3d 547, 561.) For aiding and abetting liability to attach, the intent to aid
and abet may be formed during commission of the offense. (See People v. Cooper
(1991) 53 Cal.3d 1158, 1164-1165.) Whether a defendant aided and abetted another
person is a question of fact. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
Factors relevant to determining whether substantial evidence supports a finding that
defendant was an aider and abettor include companionship and conduct before, during, or
after the offense. (Ibid.; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.)
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“The proper test for determining a claim of insufficiency of evidence in a criminal
case is whether, on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”
(People v. Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the
conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft
(2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical inferences that the
jury might have drawn from the circumstantial evidence. [Citation.]” (People v. Maury
(2003) 30 Cal.4th 342, 396.) Reversal on a substantial evidence ground “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th
297, 331.)
Defendant argues that there was no evidence that defendant engaged in some
conduct or committed some act “to aid or encourage the perpetrator’s gratuitous and
independent threat.” Defendant does not challenge the sufficiency of the evidence
showing that defendant aided and abetted the robbery. Indeed, uncontradicted evidence
showed that defendant lured Stone and Williams into the alley, demanded more money
after receiving Stone’s $60, and patted down Williams while his accomplice took Stone’s
property at gunpoint.
Defendant suggests that he was present solely to commit a robbery and did
nothing other than continue with that criminal activity while his accomplice suddenly
committed an unplanned, independent crime.2 In short, defendant concludes that the
evidence showed no more than his presence, silence, and failure to prevent the express
threat to find Stone if he snitched. Defendant argues that the fact that Stone’s
2 Although the evidence might have supported liability under the natural and
probable consequence doctrine, the jury was not instructed on that form of aiding and
abetting. Thus, it is not relevant to our discussion. (People v. McCoy (2001) 25 Cal.4th
1111, 1117.)
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identification cards were found the day of his arrest in a patrol car, at most supported
liability as an accessory to dissuading a witness.3 While mere presence at the scene of a
crime and the failure to prevent the crime are insufficient to establish aiding and abetting
liability (People v. Durham (1969) 70 Cal.2d 171, 181), we reject defendant’s
characterization of the evidence as showing no more than his presence, failure to prevent
the verbal threat, or aiding his accomplice as an accessory after the fact.
Initially, we note that the crime was committed not only by the utterance of
threatening words, as defendant’s argument suggests. A felony attempt to prevent or
dissuade a victim or witness from reporting a crime may be committed by an express or
implied threat of force or violence. (§ 136.1, subd. (c)(1).) Here, the jury could
reasonably have inferred that the implied threat of force or violence was twofold,
consisting not only of the words spoken by defendant’s accomplice, but also by the
retention of the wallet with Stone’s identification.
The perpetrator’s intent to dissuade the victim from reporting the crime was clear
from the words of the threat, and defendant’s presence at the scene and his close
proximity to the perpetrator were facts from which the jury could reasonably infer that
defendant had heard it and that he understood his accomplice’s intent. Further,
defendant’s accomplice clearly spoke for both himself and defendant, when he said, “No,
we are going to take it because if you snitch on us, we are going to find you.” (Italics
added.) Defendant did not simply fail to contradict his accomplice, as defendant
suggests, nor did he simply stand by silently. Rather, defendant demonstrated his
agreement with the statement and the perpetrator’s purpose by telling the victims to turn
around and run, thus facilitating the retention of the wallet. Defendant’s conduct after the
crime provided further evidence of his intent to assist in dissuading Stone from reporting
the crime by keeping Stone’s identification cards. When defendant was arrested, he
3 An accessory is one “who, after a felony has been committed, harbors, conceals or
aids a principal in such felony, with the intent that said principal may avoid or escape
from arrest, trial, conviction or punishment, having knowledge that said principal has
committed such felony.” (§ 32.)
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apparently had Stone’s identification and other cards on his person, as they were found
near his seat in Officer Davenport’s patrol car.
In sum, substantial evidence supports findings that defendant formed the intent to
aid and abet the dissuasion of the victim during the utterance of the verbal threat, and that
he then aided his accomplice to retain the wallet and identification cards by telling the
victim to run.
II. Section 654
Defendant contends that concurrent sentence on count 4, attempt to dissuade a
witness, was unauthorized, and instead it should have been stayed pursuant to section
654, because the act constituting the offense was indivisible from the robbery.
“An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).) Section 654 thus prohibits punishment for two crimes
arising from an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290,
294.)
Respondent contends that defendant has forfeited this issue by his admission of the
bail enhancement allegation in exchange for a sentence of seven years, as “defendants are
estopped from complaining of sentences to which they agreed.” (People v. Hester, supra,22 Cal.4th at p. 295.) Defendant points out, however, there is no indication in the record
that waiver of section 654 was contemplated within the plea agreement, and a section 654
stay of the count 4 sentence would not change the seven-year term that defendant agreed
to serve. Nevertheless, defendant’s contention that section 654 applies to count 4 is
without merit.
“Section 654 prohibits multiple punishment for a single physical act that violates
different provisions of law.” (People v. Jones (2012) 54 Cal.4th 350, 358.) However,
“what is a single physical act might not always be easy to ascertain. In some situations,
physical acts might be simultaneous yet separate for purposes of section 654.” (Ibid.) In
such circumstances, the question may be resolved under the intent and objective test.
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(People v. Chung (2015) 237 Cal.App.4th 462, 469; see People v. Jones, supra, at p. 370
(conc. opn. of Liu, J.).) Under that test, “[w]hether a course of criminal conduct is
divisible and therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the offenses were incident to
one objective, the defendant may be punished for any one of such offenses but not for
more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on
other grounds by People v. Correa (2012) 54 Cal.4th 331, 334, 336.)
“Because of the many differing circumstances wherein criminal conduct involving
multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no
universal construction which directs the proper application of section 654 in every
instance. [Citation.]” (People v. Beamon (1973) 8 Cal.3d 625, 636.) Thus, whether a
course of criminal conduct is divisible presents a factual issue for the trial court, and we
will uphold its ruling if supported by substantial evidence. (People v. Coleman (1989) 48
Cal.3d 112, 162.) “[T]he trial court . . . is vested with broad latitude in making its
determination. [Citations.] It’s findings will not be reversed on appeal if there is any
substantial evidence to support them. [Citations.] We review the trial court’s
determination in the light most favorable to the respondent and presume the existence of
every fact the trial court could reasonably deduce from the evidence. [Citation.]”
(People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Defendant contends that the intent and objective test does not apply here because
the single act of pointing the gun at Stone accomplished both the robbery and the
intimidation of the witness by force or threat of force. On the contrary, as respondent
points out, defendant committed separate acts motivated by different objectives.
Defendant’s accomplice committed the robbery by pointing the gun at Stone and
threatening to shoot him unless he handed over his property. Once Stone complied, then
with the separate objective of attempting to dissuade Stone from speaking to law
enforcement, the accomplice issued a second threat to use the contact information in
Stone’s wallet to find him. Under such circumstances, section 654 does not apply. (See
People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212; cf. People v. Coleman, supra, 48
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Cal.3d at p. 162 [defendant robbed victim, killed another, then assaulted robbery victim
to dissuade her from sounding alarm]; People v. Nichols (1994) 29 Cal.App.4th 1651,
1654 [threat made to dissuade hijacking and robbery victim from reporting crime].)
We conclude that substantial evidence supports a finding that defendant’s course
of conduct was divisible and involved separate criminal objectives. The trial court did
not err in imposing separate punishment for the robbery and the attempt to dissuade the
victim from reporting the robbery.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
HOFFSTADT
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