(Super. Ct. No. 08F07444)
The opinion of the court was delivered by: Nicholson , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant, Andrew White, guilty of five robberies, committed during four separate incidents, and other crimes and weapons use clauses, conducted over several days involving two convenience stores, one targeted on three occasions. The jury also found defendant guilty of evading a peace officer and driving recklessly during a high speed chase following the final robbery. He was sentenced to 26 years eight months in state prison.
We appointed counsel to represent him on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief in which he claims his convictions must be reversed due to the erroneous admission of evidence, insufficient evidence of identification, and prosecutorial misconduct. He also claims various errors were made in his sentencing, including the fines. We conclude all these claims lack merit with the exception of one: the trial court did not apply the correct legal standard when ruling on whether Penal Code section 654*fn1 prohibited multiple punishment for counts one and two, the robbery and false imprisonment committed during the first incident. We remand solely to permit the trial court to apply the proper analysis in the matter of counts one and two, and resentence if appropriate.
PROCEDURAL AND FACTUAL BACKGROUND
All of the robberies were captured by video surveillance cameras.
The first robbery occurred on July 3, 2008, at American Food Store. A store employee, Onkar Singh, was in the process of turning off the lights and setting the alarm, when two robbers entered the store with their faces covered, holding knives. One robber was wearing a blue hooded sweatshirt, a hat, and gloves; and the other had on a black sweater. The robber in the blue sweatshirt jumped over the front counter, while the other came around the counter. The robbers ordered Singh to open the cash register. They also told him to put some Patron tequila in a bag. When Singh was not able to open the store safe, one of the robbers punched him in the face. The robbers broke the telephone in the store and took Singh's wallet. The robber in the blue sweatshirt grabbed Singh by the neck and walked him to a room at the back of the store, where he pushed Singh onto the floor and locked him inside.*fn2 The two robbers then left the store.
After 10 minutes, Singh was able to break out of the back room, at which time he went to the home of the store's owner, Shamsher Sandhu. Sandhu determined that approximately $1,200 in cash was stolen during the robbery, as well as a bottle of Hennessy cognac, a bottle of Patron tequila, and approximately three cartons of Winston cigarettes.
The second robbery occurred on August 25, 2008, at Circle D, another convenience store. A sheriff's deputy responded to a report of it. The deputy saw the cash register open and the store's telephone broken. The owner of the store, Satpol Deol, who was not present during the robbery, concluded approximately $1,200 was missing from a drawer underneath the cash register. The clerk on duty at the time was Harbhajan Singh Hothi. With Doel and Hothi, the deputy viewed a surveillance video recording of the robbery, which showed two robbers entering the store, one was wearing a blue hooded jacket, gloves, and a bandana covering the lower part of his face. The other wore a black jacket, a knit mask over his face, and gloves. One of the robbers carried what appeared to be a 12-gauge pump shotgun. The following day, Kanwar Deep Singh, Deol's video equipment operator and technician, "burn[ed] a CD" of the surveillance recording for the police department at the request of Deol. The video recording was authenticated by Singh and by Deol, and played for the jury. It showed the robbers taking cash from the register. Hothi did not testify.
The third robbery occurred on August 28, 2008, at the same American Food Store hit on July 3. Once again, there were two robbers. According to Singh, they wore the same clothing as worn in the first robbery. Singh and Sandhu were both present. The robbers again wore gloves. The one in the blue sweatshirt carried a shotgun. This robber jumped over the front counter as in the previous robbery and told Sandhu to lie down, while poking him with the barrel of the gun. The store phone was again smashed. Sandhu saw some liquor bottles removed from the shelves while he was lying face down on the ground. He did not recall exactly how much cash was taken.
Following the second American Food Store robbery, Sandhu complained of lack of responsiveness, so, on September 2, the sheriff's department placed an electronic tracking device in the store. It would activate if moved. Sandhu hid the device in some currency.
The fourth and final robbery took place on September 8, 2008, at the same American Food Store previously hit twice. Both Singh and Sandhu were present. Two robbers entered the store wearing the same clothes as in the previous robberies. The robber in the blue sweatshirt was carrying a pump shotgun and a duffel bag. Singh was told to lie down. During the robbery, $500 to $600 was removed from Sandhu's cash register. A variety of cigarettes and bottles of Hennessy and Patron were taken. The robbers also took $150 from Singh's wallet. The phone was ripped out of the wall. According to Sandhu, the robber in the blue sweatshirt in each of the robberies had the same build and posture, and the gun was the same on each occasion.
While the robbery was in progress, a peace officer on patrol received an activation signal from an electronic tracking device. He followed it to the parking lot next to the American Food Store. His electronic tracker was pointed right inside the store. While he looked around the parking lot, he "glimpse[d]" someone running out of the front door of the store. A second person then left out of the front door of the store, wearing a blue hooded sweatshirt and holding a shotgun and a duffel bag. The robber in the blue sweatshirt disappeared behind the building. The officer was unable to follow. A duffel bag was later located in a dumpster behind the store, containing nine packs of "Swisher Sweets" cigars, 10 boxes of Marlboro Lights cigarettes, a bottle of Hennessy, and a bottle of Remy Martin cognac champagne.
Sometime later, the activation signal was tracked to a moving blue Honda sport utility vehicle (SUV). When marked patrol cars following the SUV activated their overhead lights and sirens, the driver of the SUV accelerated to a high rate of speed, running several stop signs and traffic lights. A "tack strip" set in the path of the SUV finally disabled it.
There were two men in the SUV. They got out and ran, but eventually were apprehended. They were later identified as defendant and Antoine Morrison. Defendant was wearing a blue hooded sweatshirt, black jeans, and a black "du-rag," matching the clothes worn by the armed robber that night. The logo of defendant's employer's name was printed on the sweatshirt, but concealed because the sweatshirt was worn inside out. Defendant had a left-handed black glove in his pocket. A corresponding right-handed glove of the same make was found during a search of the area. Also found in defendant's pocket was a bundle of one dollar bills wrapped around an electronic tracking device. The shotgun used in the robberies was never located.
Singh and Sandhu participated in a field show-up. Both witnesses recognized the clothing worn by defendant and Morrison. Sandhu also recognized their build and posture to be the same as the robbers.
Defendant had a cell phone in his possession when arrested. In addition to two photos of defendant, the phone contained one photo of a bottle of Patron tequila and another photo of a pile of cigarettes, cigars, "a wad of money," rolls of coins, bottles of Hennessy, and other items.
The defense at trial was alibi. Defendant's mother testified she learned her sister had died on July 3 (the date of the first robbery). She said defendant arrived at her home that afternoon and stayed the night. Defendant's brother testified defendant was there the entire evening. Defendant's ...