Filed 9/21/16 P. v. Dillingham CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

RICKY DILLINGHAM,

Defendant and Appellant.

 B267986

 (Los Angeles County

 Super. Ct. No. NA101904)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Tomson T. Ong, Judge. Affirmed. 

James M. Crawford, 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, and Scott A. Taryle, Deputy 

Attorney General, for Plaintiff and Respondent.

_________________________
2

Defendant and appellant Ricky Dillingham was convicted of second degree 

robbery, kidnapping to commit robbery, false imprisonment by violence, and dissuading a 

witness by force or threat. The trial court sentenced him to 27 years to life in prison. He 

contends the sentence on the dissuading a witness conviction should have been stayed 

pursuant to Penal Code section 654.1 We disagree, and affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

On the afternoon of May 21, 2014, Leang Saur was working at Vy’s Wireless, a 

Long Beach cellular telephone store. A counter inside the store separated the customer 

area from the employee area; a gate or door connected the two. 

At approximately 3:00 p.m. Dillingham entered the store and told Saur his 

telephone was not working. Saur determined that the phone’s charger “had a problem” 

and attempted to fix or replace it. After Dillingham had been in the store for “a long 

time,” he entered the employee area behind the counter through the door and grabbed 

Saur from behind. Saur, who was 4 feet 7 inches tall and weighed 90 pounds, tried to get 

away and grab onto something. However, Dillingham, who was 5 feet 10 inches tall and 

weighed 220 pounds, was too strong for her and dragged her to a back room in the store. 

Once in the back room, both Saur and Dillingham fell to the floor. Dillingham 

told Saur to stay in the back room, not to shout, and not to call the police. He also stated 

that he knew where she lived. He prevented her from leaving by blocking her path with 

his body. 

Dillingham then returned to the front of the store and grabbed Saur’s purse, which 

was at the counter area and apparently contained her cellular telephone. He also grabbed 

another phone that belonged to the store. Saur followed him. Dillingham told Saur that if 

she reported the incident to the police, “that he will go to my house and he will kill all of 

 

1 All further undesignated statutory references are to the Penal Code.
3

us.” This frightened her because Dillingham had obtained her drivers’ license, and she 

had young relatives at home. She was still frightened at the time of trial. Because 

Dillingham had taken her cellular telephone, Saur went to a nearby business and 

telephoned the police. 

The incident was captured on the store’s video surveillance cameras, and the video 

was shown to the jury. A thumbprint obtained from the store’s door matched 

Dillingham’s. 

2. Procedure

Dillingham waived his right to counsel and represented himself at trial. A jury 

convicted him of the second degree robbery of Saur (§ 211, count 1); kidnapping to 

commit robbery (§ 209, subd. (b)(1), count 2); false imprisonment by violence (§ 236, 

count 3); and dissuading a witness by force or threat (§ 136.1, subd. (c)(1), count 4). 

After Dillingham waived his right to jury trial on the prior conviction allegations, the trial 

court found he had suffered a prior “strike” conviction for robbery, a serious felony 

(§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a) – (d)). It denied Dillingham’s motion 

for a new trial and sentenced him to a term of 27 years to life in prison, configured as 

follows: on count 2 (kidnaping to commit robbery), 14 years to life, plus a consecutive 

five-year serious felony enhancement pursuant to section 667, subdivision (a)(1); and on 

count 4, dissuading a witness, the upper term of four years, doubled pursuant to the 

“Three Strikes” law, consecutive to the sentence imposed on count 2. Sentence on counts 

1 (robbery) and 3 (false imprisonment) was stayed pursuant to section 654. The trial 

court further imposed a restitution fine, a suspended parole restitution fine, a court 

operations assessment, a criminal conviction assessment, and related penalty assessments. 

DISCUSSION

The trial court was not required to stay sentence on count 4 

Dillingham contends that the trial court erred by imposing a consecutive sentence 

on count 4, dissuading a witness by force or threat. He urges the sentence on that count 

should have been stayed pursuant to section 654, because the dissuading charge involved 
4

“the same set of operative facts as the kidnapping to commit robbery count.” We 

disagree. 

Section 654, subdivision (a), provides that an act or omission 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 not under more than one 

provision. Thus, section 654 bars multiple punishments for separate offenses arising out 

of a single occurrence where all were incident to an indivisible course of conduct or a 

single objective. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on 

another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Calderon

(2013) 214 Cal.App.4th 656, 661; People v. Galvez (2011) 195 Cal.App.4th 1253, 1262.) 

Whether a course of criminal conduct is divisible depends on the intent and objective of 

the actor. If all the offenses were merely incidental to, or were the means of 

accomplishing one objective, the defendant may be found to have harbored a single intent 

and therefore may be punished only once. (People v. Jackson (2016) 1 Cal.5th 269, 354;

People v. Capistrano (2014) 59 Cal.4th 830, 885-886; People v. Sok (2010) 181 

Cal.App.4th 88, 99; People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) But if the 

defendant harbored multiple or simultaneous objectives, independent of and not merely 

incidental to each other, he or she may be punished for each violation committed in 

pursuit of each objective even though the violations share common acts or were parts of 

an otherwise indivisible course of conduct. (People v. Jones, supra, at p. 1143; People v. 

Sok, supra, at p. 99.) The purpose of section 654 is to ensure that a defendant’s 

punishment will be commensurate with his culpability. (People v. Capistrano, supra, at 

p. 886.) 

Whether section 654 applies in a given case is a question of fact for the trial court, 

and its findings will not be reversed on appeal if there is any substantial evidence to 

support them. (People v. Jackson, supra, 1 Cal.5th at p. 354; People v. Capistrano, 

supra, 59 Cal.4th at p. 886; People v. Jones, supra, 103 Cal.App.4th at p. 1143.) To

permit multiple punishment, “ ‘ “there must be evidence to support [the] finding the 
5

defendant formed a separate intent and objective for each offense for which he was 

sentenced.” ’ ” (People v. Capistrano, supra, at p. 886.)

When imposing sentence on count 4 the trial court found the offense was 

“predominantly independent of” the other counts that involved “the robbery, kidnapping, 

and false imprisonment.” “[T]he crime and object in count number 4, which is dissuading 

a witness, was predominantly independent of the counts 1, 2 and 3 involving the robbery, 

kidnapping and false imprisonment. [¶] Counts 1, 2, 3 were perfected before defendant 

committed count 4.”

The trial court was correct. The evidence supported its finding that Dillingham 

had distinct intents and objectives in committing the two crimes of kidnapping for 

robbery and dissuading a witness. Moreover, the two crimes involved different acts. The

kidnapping for robbery was accomplished by Dillingham’s acts of dragging Saur to the

back room and blocking her path with his body. The dissuading a witness offense was 

accomplished by his threats to kill her and her family if she reported the robbery to the 

police. As the People argue, Dillingham “used physical force to accomplish the 

kidnapping for robbery, but he used death threats to accomplish the witness intimidation.” 

Dillingham’s intent and objective in the kidnapping for robbery was to steal property. His 

intent and objective in the dissuading a witness offense was to avoid apprehension 

indefinitely after the crime was complete. That the offenses occurred moments apart is 

not dispositive. “ ‘It is [the] defendant’s intent and objective, not temporal proximity of 

his offenses, which determine whether the transaction is indivisible.’ ” (People v. 

Capistrano, supra, 59 Cal.4th at p. 886; People v. Chacon (1995) 37 Cal.App.4th 52, 67 

[that acts are proximate in time is not determinative in finding an indivisible course of 

conduct; multiple criminal objectives may divide those acts occurring closely together in 

time].) 

People v. Nichols (1994) 29 Cal.App.4th 1651, is instructive. There the defendant 

and his confederates kidnapped a truck driver and hijacked his tractor trailer. During the 

two-hour kidnapping, defendant looked at the victim’s driver’s license and stated, “ ‘If 
6

you open your mouth we are going to kill you. I know where you live.’ ” (Id. at p. 1654.) 

The defendant was convicted of, inter alia, kidnapping for robbery and attempting to 

dissuade a witness by threat of violence. (Ibid.) On appeal he urged that section 654 

precluded sentence on both crimes because they were part of an indivisible course of 

conduct committed with one intent and objective. (Nichols, at p. 1656.) The appellate 

court concluded there was substantial evidence defendant had “two separate objectives:

(1) to hijack the truck by kidnapping and robbing the victim and (2) to avoid detection 

and conviction by dissuading and intimidating the victim. [¶] The first objective was 

accomplished in two hours. The second was ongoing.” (Id. at pp. 1657-1658.) The 

“means of achieving each objective was also different. A shotgun pressed against the 

victim’s stomach achieved the first. Looking at the victim’s driver’s license, reading 

aloud his address, and threatening future harm achieved the second.” (Id. at p. 1658.) 

The same is true here. (See generally People v. Braz (1997) 57 Cal.App.4th 1, 11-12 

[multiple punishments permissible for child abuse and for failing to obtain aid for child 

within several hours after the fatal abuse occurred in order to avoid detection, because 

defendant had different objectives]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022 

[§ 654 did not bar imposition of sentence on arson and making terrorist threats; by 

threatening to kill the victims and burn down their apartment, defendant intended to 

frighten; by burning the victims’ apartment an hour later he intended to burn].) 

Dillingham argues Nichols is distinguishable because there the victim was 

handcuffed while in the truck, and the assailants could have escaped without any concern 

the victim would interfere. Here, in contrast, Dillingham had to make the threats in order 

to complete the robbery, i.e., to ensure the victim did not keep him from leaving the store. 

This contention is not persuasive. The threats were not made to allow Dillingham to 

actually take the purse and phones, as he suggests; they were made to convince Saur not 

to report the crime, enabling him to escape detection after the robbery was complete. The 

evidence showed Saur was unable to physically resist Dillingham in light of the great

difference in their heights and weights. Moreover, Dillingham did not limit his comments 
7

to telling Saur not to shout and to stay in the back room. After he took her purse he told 

her he would kill her and her family if she reported the crimes to police. Substantial 

evidence thus supports the conclusion Dillingham did not make the threats simply to 

effectuate the robbery, as he suggests. 

Nor does Dillingham’s citation to People v. Galvez, supra, 195 Cal.App.4th 1253 

assist him. In Galvez, the defendant, a gang member, and several companions attacked 

another group of men without provocation. An off duty police officer witnessed the

attack and called 911 on his cellular telephone. While he was on the phone one of the 

attackers asked whether he was calling the police. When the officer confirmed he was, 

Galvez and several of his cohorts assaulted him. After being struck numerous times, the 

officer dropped the phone and fell to the ground, while the assailants continued to stomp 

and kick him. (Id. at p. 1257.) When another off duty officer intervened, the assailants 

fled. One assailant grabbed the victim officer’s cell phone before fleeing. Galvez was 

convicted of robbery, assault by means of force likely to produce great bodily injury, and 

attempting to dissuade a witness. (Id. at pp. 1256, 1258.) Section 654 precluded 

imposition of sentence on the witness dissuasion offense because Galvez had a single 

objective in that offense and in the robbery, i.e., to take the victim officer’s phone so the 

officer could not call law enforcement. The victim was “ ‘robbed [of] his phone so he 

couldn’t make the 911 call.’ ” (Galvez, at p. 1263.) However, section 654 did not bar 

imposition of sentence on the felony assault charge, because the evidence demonstrated 

multiple criminal objectives. The victim officer dropped the phone before he fell to the 

ground; while on the ground the assailants gratuitously stomped on and kicked him even 

though he was no longer holding the phone. Therefore it could be inferred that the 

defendant’s primary objective in assaulting the officer while he was on the ground was to 

enhance the gang’s reputation for violence, not to dissuade or prevent him from using the 

phone to call police. (Galvez, at p. 1263.)

In contrast to Galvez, here the evidence showed Dillingham did not take the phone 

because he wished to prevent Saur from phoning police; instead he took the purse (which 
8

presumably contained the phone) because he wished to rob Saur of her property. To find 

him guilty of kidnapping to commit robbery, the jury had to conclude Dillingham moved 

Saur with the specific intent to commit robbery, and that he had that specific intent when 

the movement commenced. (CALJIC No. 9.54; CALCRIM No. 1203.) He thus intended 

the robbery before he dragged Saur into the back room, demonstrating his theft of the 

purse was not, as in Galvez, to prevent her from reporting the crime. Moreover, the 

Galvez court concluded the defendant could be separately punished for the gratuitous

assault that occurred immediately after the victim dropped his phone. Similarly, here, 

section 654 does not preclude punishment for the threats made with a different objective 

immediately after Dillingham grabbed the purse. 
9

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, Acting P. J.

We concur:

LAVIN, J.

STRATTON, J.

 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.