129 Cal. App. 3d 994 | Cal. Ct. App. | 1982
Lead Opinion
Opinion
An eight-count information charged David Lee Williams with (1) the robbery of Paul Burkhart (Pen. Code § 211),
The following factual summary is taken from the transcript of the preliminary hearing.
On September 14, 1980, Williams held a gun on Paul Burkhart, a clerk in The Gap, a clothing store, and told him to open the cash register and give him the money. Burkhart gave Williams about $80 from the register. At Williams’ direction, Burkhart locked the front doors of the store and went with Williams to the back of the store, where Laura Rule was working in the office. When they reached the back office, Burkhart told Rule they were being robbed. Rule and Burkhart opened the safe and gave Williams about $700. Williams rummaged through the desk and Rule’s purse, but took nothing more. While they were in the back office, Williams threatened Rule and Burkhart saying, “Don’t look at my face. You’ve seen my face too much. I will blow your head off. Don’t look at my face. I will blow you away.” He then left the office. About 30 seconds later, gunshots were heard.
San Diego Police Officer Lloyd Waugh had gone to The Gap in response to a radio call about a silent alarm. At the front door, Williams grabbed him. While they were grappling, Williams’ gun discharged, striking Waugh in the thigh. When Police Officer Weston came to the front door, he saw Waugh lying on the floor and Williams standing over him holding a gun. Weston shot Williams and took him into custody.
Before the enactment of the determinate sentencing law (DSL) (Stats. 1976, ch. 1139, § 273), multiple firearm use under section 12022.5 was prohibited where all the charged offenses were incident to one objective, and where they effectively comprised an indivisible transaction. (In re Culbreth, supra, 17 Cal.3d 330, 333.) Our Supreme Court explained: “The legislative purpose of section 12022.5 has been described as deterrence, i.e., to deter the use of firearms on subsequent occasions. Thus it has been held that where there are consecutive robberies in sev
Whether Culbreth survived DSL has been debated. People v. Edwards (1981) 117 Cal.App.3d 436 [172 Cal.Rptr. 652], after noting “those cases which have held that Culbreth does not apply to DSL have either distinguished it on the facts or were ordered depublished” (id., at p. 447), has interpreted DSL as not interring Culbreth. (Id., at p. 448; see also People v. Rogers (1981) 124 Cal.App.3d 1071, 1081-1082 [177 Cal.Rptr. 747].) Although we believe Edwards is sound precedent, it is unnecessary for us to join that debate on the facts of this case.
Unlike defendant Edwards who was convicted by a jury, Williams preferred to avoid a factual record in either a court or jury trial and negotiated a guilty plea. His written change of plea form reflects his approval of a possible sentence of eleven years and eight months, which the court imposed, including eight months for using a firearm during the robbery of Laura Rule. Although the contents of the written form he signed are insufficient to support a waiver of his right to argue Culbreth error, Williams’ statements on that form acknowledge his understanding that the underlying facts of the offenses to which he pleaded guilty could reasonably be interpreted as supporting a factual finding that he had separate and identifiable intents and objectives in the commission of each of the robberies. If the court were to make that factual finding, the single ocassion rule under Culbreth would be inapplicable. (See People v. Wischemann (1979) 94 Cal.App.3d 162, 174 [156 Cal.Rptr. 386]; People v. Blessing (1979) 94 Cal.App.3d 835, 840 [155 Cal.Rptr. 780].)
At sentencing, the court, in rejecting Williams’ Culbreth argument, expressly found “the two robberies were, in fact, two separate occasions for the imposition of the 12022.5 enhancement.” That factual finding is supported not only by the plea bargain, but by the record which permits a reasonable factual inference that only after Williams
Disposition
Judgment affirmed.
Staniforth, Acting P. J., concurred.
All statutory references are to the Penal Code unless otherwise specified.
Concurrence Opinion
I concur in the result. However, I do not believe People v. Edwards (1981) 117 Cal.App.3d 436 [172 Cal.Rptr. 652], is sound precedent.
I would affirm the judgment on the basis that the single enhancement limitation imposed by In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23], has been fatally undermined by the determinate sentence law, since sentencing in general, and Penal Code section 12022.5
The court in People v. Edwards, supra, reasoned the Legislature, when it last amended section 12022.5, did not address itself to the Culbreth issue and the court refused to rely on the silence of the Legislature. I believe the legislative intent in enacting the determinate sentencing law is not silent and is clear. The new purpose is punishment. Enhancements are required to be applied for each consecutive offense;
Assigned by the Chairperson of the Judicial Council.
All statutory references are to the Penal Code unless otherwise specified.