Mendocino County Super. Ct. No. SCUK-CRCR-09-91776-002
The opinion of the court was delivered by: Kline, P.J.
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Ryan Whitman (appellant) was convicted, following a plea of no contest, of two counts of first-degree robbery of an inhabited dwelling in concert with at least two other persons. On appeal, he contends the trial court (1) abused its discretion when it imposed the aggravated term of imprisonment on the first count of robbery, and (2) violated the prohibition against the dual use of facts when it imposed a consecutive sentence on the second robbery count. We shall affirm.
Appellant was charged by felony complaint with two counts of first-degree robbery of an inhabited dwelling while acting in concert with at least two other persons (Pen. Code, §§ 211, 212.5, 213, subd. (a)(1)(A)--counts one and two);*fn1 one count of first degree burglary (§§ 459, 460, subd. (a)--count three); and four counts of false imprisonment (§ 236)--counts four through seven).
On September 18, 2009, appellant pleaded no contest to counts one and two: first-degree robbery of an inhabited dwelling while acting in concert with at least two other persons. The remaining charges were dismissed.
On December 18, 2009, the trial court sentenced appellant to the upper term of nine years on count one and a consecutive term of two years on count two.
On December 22, 2009, appellant filed a notice of appeal.
On January 7, 2008, at about 7:00 p.m., five or six men entered the house of appellant's former employer, Michael Stanley, in Mendocino County.*fn3 Michael told police that some of the men were armed and wearing ski masks. Some suspects went into other areas of the house, where Michael's wife and children were located. The men who remained with Michael restrained him with zip ties and assaulted him with a taser gun and the butt of a pistol. One of the men held his head down, and whenever he attempted to lift it, the man would hit him. In addition, the men kept asking him, " 'Where is it?' " and, " 'Where is the marijuana?' " While he was restrained, one of the suspects pulled down Michael's pants and tried to " 'stick a fork up my ass,' " and another threatened to shoot him in the knee if he did not cooperate. The men beat him whenever he did something they did not like.
The men then ransacked the house, taking items of value, including several televisions, cell phones, an X-Box 360, and other household electronic items. Before leaving, the men "hog-tied" Michael and his wife and put them in one of the children's rooms. The children were put in the bathroom with a chair in front of the door. The men then left in Michael's vehicles.
When asked why the suspects might have targeted his home, Michael initially denied that any marijuana or money was taken from him, and said that he was not in the marijuana business anymore. After he was told that a large sum of money was recovered from the suspects, Michael acknowledged he had had a large amount of money stashed in a tree stump about half a mile away from his house. He guessed the amount hidden there was between $30,000 and $40,000, from previous marijuana sales. He told police that he led the suspects to the stump and they took the money, before leaving.
Michael broke free of his restraints, went to his brother-in-law's house, and told him what had occurred. His brother-in-law and two other men said they had seen two vehicles--a blue-green sport utility vehicle (SUV) and a gold Nissan Sentra--parked in a clearing about a mile away from Michael's residence and thought they had looked suspicious. The four men then went searching for the suspects. They located the SUV just north of Willits and called the Sheriff's Office with the vehicle information.
Police observed that Michael had swelling on his head, a hematoma behind his right ear and another near his right eye. He also had marks on his lower back area and marks on his upper right buttocks, consistent with the teeth of a dining fork.
Michael's wife, Nichole, told police that she had been in her children's bedroom before going into the hallway and seeing a male wearing a black mask. The man pushed her back inside the bedroom. She eventually went into the kitchen, where she observed Michael tied up and being beaten by one of the men with a black object she thought was a taser. When she tried to look at the man's face, someone grabbed her by the hair and her face was forced towards the floor. She was then shown a taser and forced into a room with her two children, ages six and two. She was guarded by one of the men until, about an hour later, the men used duct tape to tape her to a chair next to her husband. Her children were locked inside the bathroom with a chair against the bathroom door. The men then fled. Nichole and Michael broke free and went to her brother's house.
After receiving a dispatch, police encountered the SUV on US Highway 101. A high-speed pursuit ensued until the SUV eventually ran over a spike strip that was placed in the roadway, causing three of the vehicle's tires to become deflated. The SUV then slowed to about 20 miles per hour and officers noted a rear door opening and closing several times, with someone throwing items from the vehicle. Eventually the SUV was stopped and the three occupants were arrested. Inside the SUV, police located multiple televisions, jewelry, ...