Filed 8/18/14 P. v. Tuff CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.
RASHAWN ANTHONY TUFF and DWAYNE MATTHEWS, Defendants and Appellants. G049321 (Super. Ct. No s . RIF10003935 & RIF10002515 )

O P I N I O N

Appeals from judgments of the Superior Court of Riverside County, Jeffrey Prevost, Judge. One j udgment a ffirme d in part and reversed in part. One judgment
affirmed and remanded with directions to modif y the sentence

. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Rashawn Anthony Tuff.

Catherine White, under appointment by the Court of Appeal , for Defendant and Appellant Dwayne Matthews.2 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury found defendants Rashawn Anthony Tuff and Dwayne Matthews guilty of two counts of robbery with true findings on firearm use allegations, one count
each o f burglary, assault with a semiautomatic firearm and simple assault, plus two counts each of making criminal threats, maliciously intimidating a witness, and false imprisonment. Tuff was also convicted of two crimes arising from a separate incident.
Both defendants were found not guilty of kidnapping. The court imposed prison sentences of 28 years 8 months on Matthews and 17 years 4 months on Tuff.

On appeal, Matthews asserts the trial court erred by admitting defendants’ incriminatory statements under the coconspirator hearsay exception and by failing to
instruct the jury on the use of this evidence . Tuff argues there is insufficient evidence to support his conviction as an aider and abettor on several counts and that the trial court committed sentencing errors. To the extent applicable, each defendant joins in the other’s appellate claims. We affirm the defendants’ convictions , but agree the trial court committed sentencing err ors . On Tuf f, we reverse the sentence and remand for resentencing. On Matthews, we remand with directions to prepare an amended abstract of judgment modifying his sentence

.

FACTS

One afternoon, d efendants and Angelo Will carried out a home invasion robbery. Ar ound 3:00 p.m., Inder Jit and one of his son s left home to conduct the3

family’s ice cream truck business

. Sometime thereafter, Matthews and Will, wearing masks and gloves and armed with guns , entered the home and confronted Prem Rani, and her daughter , Su man Jit. Tuff, acting as a lookout and driver, remained outside in a car.

Suman Jit initially r an to the garage but, concerned for her mother, she reentered the house. Matthews and Will placed Suman Jit in an interior windowless
bathroom and duct tape d her mouth, arms, and ankles. They also duct taped Rani’s hands together. For 30 to 40 minutes, Matthews and Will dragged Rani around the house demanding money and jewelry and the location of a safe, pointing their weapons at both
victims and t hreaten in g to shoot if she failed to comply

. While walking down the stairs after searching some bedrooms , one of the assailants struck Rani on the side of the head with the gun. Matthews and Will eventually left the home taking with them a black bag containing jewelry, some cash, and a shotgun. Before doing so, one of them kicked Rani while she lay face down on the floor complaining she “told me nothing

. ” They also cut the home’s landline, told the victims not to call t he police , and threatened to return and
shoot them if the family reported what occurred

.

Ignoring defendants’ threats, the family did call the police. The next day,
all three defendants were arrested as they attempted to sell the Jit family’s jewelry a t a pawn shop. Tuff was carrying a ring and Matthews wearing a watch that had been taken during the robbery. In the car used by defendants the police found a roll of duct tape. A
search of the residence where all three defendants lived re vealed two hand guns and two pair s of gloves.

The police seized each defendant’s cell phone. Matthews’s cell phone
contained te x t messages sent to a third party two days before the robbery , stating “ ‘ [ w ] e have been doing homework

. . . for a while ’ ” on a “big lick” that “ [ f ] or sure [ had ] bread in it.” Matthews testified the term “lick” meant getting money and claimed the text4

messages referred to both a drug transaction and his effort to record and release a rap music album. However, a deput y sheriff testified “lick” was slang for “some type of theft,” while the reference to “bread” meant “ money or something of value. ” Another

te x t message sent to Matthews referred to the use of a “burner,” meaning a gun. On Tuff’s cell phone the poli ce found a text message se nt to Matthews’s cell phone during the robbery stating, “ ‘ Watch that garage on the left .

. ., someone is sitting in there. ’ ”

DISCUSSION

1. Admission of Defendants’ Statement s

a. Introduction Before trial, Will pleaded guilty to one count of burgla ry and two counts of robbery and admitted personally using a firearm as to one robbery count. The prosecution called him as a witness, but he exercised his privilege against self

incrimination.

T he prosecution also called Amanda Sanchez as a witness. She was an acquaintance of defendants and Will. Before their arrest Sanchez frequently spent time at Will’s home where the three men lived, drinking and conversing with them. She said it was common to see Will, Tuff, and Matthews together.

Over defend ants’ objections, the court allowed Sanchez to testify to statements made by Will , Matthews, and Tu ff , holding th is evidence w as admissible under the coconspirator hearsay exception. According to Sanchez , a week before the robbery she heard “bits and piec es” of conversations among the three men about robb ing

a n Indian family that owned ice cream trucks

. She a dmitted loaning her car to them to

c arry out the plan

. On the day of the robbery , a fter Will, Tuff, and Matthews dropped her
off at home , Sanchez re ceived a text stating, “ ‘ We’re going to work

. ’ ” S he knew Will,5

Tuff, and Matthews did not have jobs and explained the text meant “they were doing something .

. . illegal.” Later, the three men returned to Sanchez’s home bringing with them a bag of jewelry , plus some cash

. They left the bag containing the jewelry with her

.

Early the next day, Sanchez received a text from Matthews stating, “We need the whip,” slang for a car, “ ‘ So we can go cash out. ’ ” After Sanchez returned home from work, she received another text message from Tuff asking her to “get the jewelry and come over so we can go.” She gave the three men her car, but they never returned.

b. Analysis
Defendants attack the trial court ’s decision allow ing Sanchez to testify to

statements made by them and their confederate Will

. They contend the prosecution failed to independently establish the existence of a con spiracy or that the statements were made
in furtherance of i t. In addition, defendants claim t he admission of the statements violated their constitutional right of confrontation . ( Bruton v. United States (1968) 391
U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] ( Bruton ) ; People v. Aranda (1965) 63
Cal.2d 518 (

Aranda ) .) We conclude their arguments lack merit.
Evidence Code section 1223 declares: “ Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by the declarant while participating in a con spiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶] (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) The evidence is offered either afte r admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court ’ s discretion as to the order of proof, subject to the admission of such evidence. ” Under this exception, a coconspirator’s statemen t is admissible against other members or the conspiracy where

“ the offering party presents ‘ independent evidence to establish prima facie the existence6

of

. . . [a] conspiracy [,] ’ ” plus “ three preliminary facts

. . . : ‘ (1) that the declarant was particip ating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would lat er participate in the conspiracy. ’” ( People v. Hardy (199 2 ) 2 Cal.4th 86, 139; see People v.
Homick (2012) 55 Cal.4th 816, 871.)

For purposes of admitting evidence under Evidence Code section 1223, a defendant need not be charged with the crime of cons piracy. ( People v. Rodrigues (1994)
8 Cal.4th 1060, 1134; People v. Gann (2011) 193 Cal.App.4th 994, 1005.) We review the trial court’s ruling on the admissibility of evidence for abuse of discretion. ( People v.
Hovarter (2008) 44 Cal.4th 983, 1007

- 1008 .)

Contrary to defendants’ claims, if the conditions for admitting evidence
under Evidence Code section 1223 are satisfied, the use of this evidence would not violate the Bruton /

Aranda rule . Numerous cases have recognized the admission of a
statement under coconspirator hearsay exception does not violate a defendant’s right to
confront and cross

- examine witnesses. ( People v. Rodrigues , supra, 8 Cal.4th at p. 1135; People v. Brawley (1969) 1 Cal.3d 277, 286; People v. Earnest (1975) 53 Cal.Ap p.3d 734, 743

- 744.) As explained in People v. Smith (2005) 135 Cal.App.4th 914, the
Bruton/Aranda rule is based on the presumption “ the statement is

. . . inadmissible hearsay against the codefendant” ( id. at p. 922). Thus, where “ the statement is admiss ible against the codefendant under a hearsay exception, and its admission otherwise survives confrontation analysis, then the jury may consider it against the codefendant

. . . .” ( Ibid. )

To establish the existence of a conspiracy, the prosecution need only make a prima facie showing “‘ by means of any competent evidence which tends to show that a conspiracy existed .’” ( People v. Rodrigues , supra, 8 Cal.4th at p. 1134.) I ts existence

“‘ may be inferred from the conduct, relationship, interests, and acti vities of the alleged7

conspirators before and during the alleged conspiracy ’” ( i d. at p. 1135) , including “the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute

. ” ( People v. Gann, supra, 193 Cal.App.4th at pp. 1005

- 1006

. )

The evidence supports the trial court’s finding the prosecution made a prima facie showing that defendants and Will agreed to commit the home invasion robbery for the purpose of obtaining money or other valuables, inc luding jewelry , which they could pawn , and committed overt acts to accomplish their plan. The three men lived
at the same residence , sharing the same bedroom , and were commonly s een together.
Sanchez testified that the day of the robbery, the three men j ointly borrowed her car

. The
assailants used duct tape similar to that later found in Sanchez’s car to restrain the
victims , and demanded jewelry and cash. Later the same day, the three men returned Sanchez’s car , possessing a bag containing jewelry and cash . The next day, the y again jointly borrowed Sanchez’s car , retrieved the bag of jewelry from her , and drove to a pawn shop where they attempted to sell the jewelry. A lthough the trial court ruled
Sanchez was an accomplice and instructed the jury that to convict defendants her testimony needed to independent ly corroborat ed , for purposes of establishing the existence of a conspiracy under Evidence Code section 1223, her testimony , even if not
otherwise corroborated , sufficed

. ( People v. Rodrigues, supra, 8 Cal.4th at p. 1134.)

Defendants also argue the prosecution failed to establish the pre liminary
facts that the statements admitted against them were made by a coconspirator during the conspiracy and in furtherance of it. Not so. T he statement s introduced at trial were purportedly made by one of the defendants or Will, all three of whom were members of the conspiracy. Sanchez testified she learned most of what she knew about the robbery
from Will , but she also said the conversations usually in cluded “two or more” of the three
men and that , a week before the home invasion robbery, she knew the three of them were planning to commit the crime because she “heard them talk” about it

.8 “[W] hether [the] statements made [by a coconspirator] are in fu rtherance of a conspiracy depends on an analysis of the totality of the facts and circumstances in the

case. ” ( People v. Hardy , supra, 2 Cal.4th at p. 146.) Sanchez ’s testi mony that she
overhear d defendants and Will discussing their plan to commit a robb ery against an Indian family that operated an ice cream truck business “ plainly betray s planning behavior in furtherance of the conspiracy .” ( In re Hardy (2007) 41 Cal.4th 977, 996 [coconspirator ’s statements “ that ‘ someone had asked him if he knew someone that could
do a hit

. . . and that they would get paid for doing it []’ ” and l ater “ tell the same person not to mention the conversation to anyone ” in furtherance of conspiracy ].) The requests to use Sanchez’s car , plus the texts sent to her before the robbery and the day after it occurred, also reflected the perpetrators’ efforts to carry out their plan. ( People v. Brawley , supra, 1 Cal.3d at pp. 2 84 , 288 [coconspirator’s query whether witness “ knew where some wire and gloves could be found ” made “ in furtherance of the conspiracy ” because he “i nquired regarding items that might be used in ” committing the crimes].)

Defendants claim the post

- robbery statements could not have been made in furtherance of the conspiracy. Again, we disagree

. “ While a conspiracy is usually deemed to have ended when the substantive crime for which the coconspirators are being
tried is either attained or defeated [citation] , it is for the trial court to determine precisely when the conspiracy has ended [citation].” ( Pe ople v. Gann, supra, 193 Cal.App.4th at p. 1006.) “ Particular circumstances may well disclose a situation where the conspiracy will be deemed to have extended beyond the substantive crime to activities contemplated and undertaken by the conspirators in pu rsuance of the objectives of the conspiracy. ” ( People v. Saling (1972) 7 Cal.3d 844, 852.)

Here, t he trial court ruled “the conspiracy was continuing

. . . despite the robbery having been completed.” The evidence supports i t s ruling. ( People v. Homick , supra, 55 Cal.4th at p. 872 [trial court’s finding on the continuance of conspiracy binding9

if supported by the evidence].) Matthews’s cell phone contained a text message to a third party two days before the robbery, stating “ [ w ] e have been doing homework” on a “big lick” that “ [ f

] or sure [ had ] bread in it.” D uring the robbery, the assailants demanded both money and jewelry and t he very next day borrow ed Sanchez’s car and told her to bring them the jewelry so they could “cash out.” This evidence indicates the defendants knew or believed the victims had money or valuables that could be converted into money. Thus, we conclude the trial court properly found the conspiracy continu ed even after the home invasion robbery had terminated.

The trial c ourt did not abuse its discretion in admitting statements b y defendants and Will under Evidence Code section 1223.

2. Instructional Error Claim

Defendants alternatively argue that even if their statements were properly
admitted , t he trial court erred by failing to instruct the jury with CALCRIM No s . 416 and
418 concerning evidence of an uncharged conspiracy and the use of statements by a coconspirator

. The Attorney General counters there is no sua sponte requirement to give them, defendants forf

eited this contention by failing to request the instructions, and any error in failing to give the instruct ions did not prejudice defendants.

Concerning a court’s sua sponte duty to give instructions , the general rule is that, “ even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence ,” which “ are those principles closely and openly connected with the facts before the court, and which are necessary for the jury ’ s underst anding of the case. ” ( People v. St. Martin (1970) 1
Cal.3d 524, 531.) Instruction on an uncharged conspiracy is “required” where “[i] t was one of the issues at the trial .” ( People v. Davis (1957) 48 Cal.2d 241, 250; see People v. Earnest, supra, 53 Cal. App.3d at p. 745 [“‘ Conspiracy ’ as used in section 1223 of the10

Evidence Code

. . . has a technical legal meaning which requires the court to define it sua sponte ”].) Thus, it was necessary for the court to give the jury CALCRIM No. 416.

The Attorney Ge neral correctly notes the cases cited in CALCRIM No. 418’s use note that declare this instruction must be given sua sponte do not support that
statement. But in People v. Smith (1986) 187 Cal.App.3d 666, disapproved on another ground in People v. Bacigalu po (1991) 1 Cal.4th 103, 126, fn. 4, the Court of Appeal
held it was error for the trial court not to give CALJIC No. 6.24, the parallel version of CALCRIM No. 418, because “[i] n order for the statements to have been considered

. . . , the jury was require d to make certain preliminary findings, i.e.,

. . . were the statements made during and in furtherance of an ongoing conspiracy? ” ( People v. Smith, supra, 187 Cal.App.3d at p p

. 679

- 680.) Thus, we conclude the court was also obligated to give
CALCRIM No. 418 on its own motion.

The Attorney General’s forfeiture claim lacks merit as well

. Courts have recognized a defendant may challenge the failure to give an instruction even t hough he or she failed to request it at trial. ( People v. Lewis (2009) 46 Cal.4th 1255, 1318, fn. 46 [challenge to absence of unrequested instruction reviewable “ [b] ecause defendant ’ s contentions raise issues concerning his substantial rights ”]; People v. Hernandez ( 2009 ) 180 Cal.App.4th 337, 348 [failure to instruct on unanimity for predicate acts underlying
the “O ne strike ” law; reviewable even though no request for instruction at trial].)

Nonetheless, we conclude any error in failing to give these in structions did not prejudice defendants. Contrary to Ma tthews’s unsupported assertion , the failure to
instruct on conspiracy and use of the statements by coconspirator s is not federal
constitutional error . T he California Supreme Court has repeatedly held any error in this regard is governed by the state law harmless error standard of whether it is “ reasonably probable that a result more favorable to [the defendant] as to guilt would have been
reached in the absence of the error. ” ( People v. Brawley, supr a, 1 Cal.3d at p. 291; see11

People v. Prieto (2003) 30 Cal.4th 226, 251; People v. Sully (1991) 53 Cal.3d 1195,
1231

- 1232.)
There was no reasonabl e probab i l ity defendants would have achieved a more favorable result had the trial court given CALCRIM Nos. 416 and 418. Matthews relies on his testimony at trial . H e claimed that Will borrowed both his and Tuff’s cell phones and then dropped the m off at a residence on his way to commit the home invasion robbery. While awaiting Will’s return, Matthews claimed he played a basketball game
called 21 with someone he referred to as “June,” while Tuff sat nearby

. Matthews acknowledge d he and Tuff later went to the pawn sh op with Will to sell the jewelry taken in the robbery, and that Will agreed to “give [him] a cut” because he told Will where “to cash out the jewelry.” Although Matthews claimed to have “family members” in the area near where he play ed 21, he nonetheless did not know the ir address , where June lived, June’s telephone number, or even June ’s “ real name

. ” It would be charitable to describe
his alibi as lacking credibility. Further, we note th at to Matthews’s and Tuff’s benefit th e trial court gave the standa rd instructions to “[c]onsider with caution” their oral statements “tending] to show

. . . guilt” (CALCRIM No. 358), and declaring Sanchez was an accomplice whose testimony “should be viewed with caution , ” which could not be used

to convict defendants unless it was supported by independent evidence tend ing to connect them with the charged offenses (CALCRIM No. 335)

.

“[T]he

. . . test for harmless error ‘ focuses not on what a reasonable jury
could do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result. ’” ( People v. Beltran ( 2013 ) 56 Cal.4th 935, 956.) Given the evidence at trial and the12

instructions the jury did receive on how t o view both their statements and consider Sanchez’s testimony, we conclude it is not reasonably probable the jury would have reached a different result had the court also given CALCRIM Nos. 416 and 418.

3. Sufficiency of the Evidence to Support Tuff’s Conviction

In his briefs, Tuff challenges the sufficiency of the evidence to support his
conviction for assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b) ) in count 6, the lesser included offense of simple assault (Pen. Code, § 240 ) in coun t 7, making criminal threats (Pen. Code, § 422 ) in counts 8 and 9, maliciously intimidating a witness (Pen. Code, § 136.1, subd. (c)(1) ) in counts 10 and 11, and felony false imprisonment (Pen. Code, § 236 ) in counts 12 and 13. Tuff notes he acted as the driver and lookout and never entered the Jit’s home and that the prosecution sought to hold him criminally liable for these offenses solely as a direct aider and abettor. He argues that since he was “sitting outside” when Will and Matthews committed the foregoing crimes, the evidence fails to establish he “had the requisite knowledge that Will and Matthews intended to act as described” or that he “intended to assist or encourage those acts.” W e find Tuff’s

ar gument lack s merit.

The standard of review for resolving such claims is well settled. “ When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to d etermine whether
it contains substantial evidence

— that is, evidence that is reasonable, credible, and of
solid value

— from which a reasonable trier of fact could find the defendant gu ilty beyond
a reasonable doubt

. . . . We presume in support of the judgme nt the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact ’ s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with13

a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor
reevaluates a witness ’ s credibility. [Citation.]” ( People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Penal Code section 31 declares “[a] ll persons concerned in the commission of a crime,

. . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission,

. . . are principals in any crime so committed. ” The Supreme Court “ has interpreted section 31 to require that an aider and abettor must act with ‘ knowledge of the direct perpetrator ’ s unlawful intent and an intent to assist in achieving those unlawful ends, and

. . . conduct by the aider a nd abettor that in fact assists the achievement of the
crime. [Citation.] ’ [Citation.] ” ( People v. Lopez (2013) 56 Cal.4th 1028, 1069.)

“‘ Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact. ’” ( People v . Chagolla (1983) 144 Cal.App.3d 422, 428.) “ Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the
offense. ” ( In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094; People v. Chagolla, supra, 144 Cal.App.3d at p. 429.)

T he prosecution’s theory of the case was that Tuff direct ly aide d and
abett ed the crimes committed by Will and Matthews inside the Jit’s home. T he evidence
establ ished that Tuff, Will, and Matthews engaged in plan ning the Jit home invasion robbery f or at least a week before carrying it out . On the day of robbery, the three jointly borrowed Sanchez’s car to drive to the Jit’s residence. They took with them
semiaut omatic weapons t o threaten and intimidat e the victims, duct tape to restrain them, plus masks and gloves to preclude identification. The defendants also brought cell phones to communicate with each other, which Tuff , act ing as lookout , employed to
inform Will and Matthews when Suman Jit fled to the garage.14 Tuff acknowledges the evidence supports a finding that he acted as lookout and getaway driver while Matthews and Will entered the Jit’s home and robbed the
victims. But he repeatedly claims there is a “lack of evidence” he “had the requisite knowledge and intent to prove he aided and abetted” assaulting, threaten ing , intimidat ing , and falsely imprison ing the victims

. Granted, t he “ aider and abettor ’ s mental state must be at least that required of the direct perpetrator [,] ” and “‘[w] hen the offense charged is a specific intent crime, the accomplice must “ share the specific intent of the perpetrator [,]”’” which “‘ occurs when the accomplice “ knows the full extent of the perpetrator ’ s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator ’ s commission of the crime. ”’” ( People v. McCoy (2001) 25
Cal.4th 1111, 1118.) But given the evidence of planning , preparation , and coordinated activity by the three pe rpetrators, a reasonable jury could conclude the y jointly agreed to assault, threaten, intimidate, and restrain their victims in an effort to ensure the success of their criminal enterprise. In short, if Tuff was in for a penny, he was in for a pound.

Thus, we conclude the evidence supports the verdicts finding Tuff guilty o f the assaults, making criminal threats, witness intimidation, and false imprisonment

.

4. Sentencing Claims

At the sentencing hearing, the court imposed a 28 year 8 month prison term on Matthews , calculated as follows: 6 years for one robbery plus 10 years for the
attached firearm use allegation, a consecutive 16 months on the second robbery count with 3 years 4 months for the attached firearm use allegation, a consecutive 2

- yea r term for the a ssault with a semiautomatic firearm , and consecutive 3

- year terms for each witness intimidation count. The court imposed concurrent terms for the remaining counts, with the sentences for the criminal threats and false imprisonment counts s tayed
under Penal Code section 654 , subdivision (a)

.15 The court sentence d Tuff to a 17 year 4 month prison term calculated as follows: 6 years on the a ssault with a semiautomatic firearm , 16 months consecutive for each robbery count with a consecutive 1

- year term for each of the attached firearm enhancements, 3

- year consecutive terms on each witness intimidation count plus 8 months for his conviction of carrying a loaded firearm during the unrelated incident. Concurrent terms were imposed o n the remaining counts with the sentences for the criminal threats and false imprisonment counts a lso stayed . (Pen. Code, § 654, subd. (a)

.

In his appellate briefs, Tuff asserts several sentencing errors. Matthews’s brief incorporate s Tuff’s sentencing arguments to the extent they are applicable to him.

One issue is whether Penal Code section 654 precludes imposing sentences for both the robbery and assault counts. That statute declares, “[a] n 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. ” (Pen. Code, § 654, subd. (a).) The Suprem e Court has held the section applies “‘ where a course of conduct
violate [s] more than one statute ,’” and “ all of the offenses [are] ncident to one objective. ” ( Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled on another ground in People v. Co rrea (2012) 54 Cal.4th 331, 334.) Whether a defendant harbored more than one objective during a course of conduct is a question of fact and the trial court’s finding will be upheld if supported by substantial evidence. ( People v. McKinzie (2012) 54
Cal.4 th 1302, 1368; People v. Watts (1999) 76 Cal.App.4th 1250, 1265.)

On the two robbery convictions, it is well settled a defendant “ may nevertheless be punished for multiple convictions if during the course of that conduct he
committed crimes of violence against different victims. ” ( People v. Miller (1977) 18
Cal.3d 873, 885.) “ Robbery is violent conduct warranting separate punishment for the injury inflicted on each robbery victim .” ( People v. Champion (1995) 9 Cal.4th 879, 935,16

overruled on another ground in People v Combs (2004) 34 Cal.4th 821, 860; see People
v. Thurs (1986) 176 Cal.App.3d 448, 451

- 452.) Thus, it is proper for the court to sentence on each robbery.

Tuff was outside acting as the lookout when Matthews and Wi ll entered the Jit home and confronted Prem Rani and Suman Jit, pointing firearms at their heads and threatening to shoot if the victims. He argues the robberies and assaults were committed with the single objective of facilitating the home invasion robbe ry. Thus, the trial court erred by failing to stay his sentence for the robbery of Prem Rani and the simple assault. The Attorney General agrees with Tuff on this point and so do we

.

But as to Matthews the record supports the consecutive term imposed on him for the felony assault conviction. In rejecting his request to stay the punishment on this charge, the court cited the striking of Prem Rani as she was descending the stairs, noting she “was already complying with [her] captors .

. . bound at her h ands .

. . and was descending the stairs as demanded of her. Furthermore, while the defendants may not have liked her responses to their demands .

. ., her responses were actually compliant, given that a safe did not exist.”

In Watts , the Court of Appe al upheld separate sentences imposed on a defendant who assaulted the victims while in the processing of robbing them. “ As to the victims here, there was evidence that each was assaulted either as she was attempting to comply with her assailant ’ s demand f or mon ey or was attempting to escape

. . . . The evidence accordingly shows that the robberies were well under way at the time the assaults occurred, and thus supports the conclusion of the trial court that the assaults therefore were not simply a means of committing the robberies. ” ( People v. Watts, supra, 76 Cal.App.4th at p. 1265.) The evidence here supports a similar result. Rani did not
resist Matthews and Will . The a ct of striking her was committed , not as a means of carrying out the robberies , bu t due to the assailants’ frustration in not locating the safe17

they believed the family kept in the home. Consequently, we conclude Matthews cannot challenge his consecutive sentences for both of the robberies and the felony assault.

Another issue is wh ether the court erred by imposing consecutive sentences
on each defendant for their convictions of witness intimidation. We conclude these sentences should also have been stayed.

As discussed, the evidence shows defendants and Will planned a home
invas ion robbery to steal the Jit family’s money and other valuables and to quickly sell the noncash property. During closing argument, the prosecutor cited testimony by Prem Rani and Suman Jit that the perpetrators told them to keep their heads down, said “‘D on’t look at us,’” and threatened to return and shoot them if the family called the police as the factual basis for convicting defendants of witness intimidation. Thus, it appears these statements were part of the indivisible course of conduct intended to assist in successfully committing the home invasion robbery . The Attorney General’s claim the threats were merely additional acts of gratuitous violence is not supported by anything in the record.

At the sentencing hearing, the trial court relied on Penal Code
section 1170.15 to impose consecutive sentences for the witness intimidation counts. That statute declares, “ Notwithstanding subdivision (a) of S ection 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one

- third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of S ection 136.1

. . . that was committed against the
victim

. . . , the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed

. . . . ”

This statute authorizes a court to impose a full consecutive middle term whe n im posing a subordinate sentence for witness intimidation. But as defendants note,
Penal Code section 654, subdivision (a) applies regardless of whether a court imposes a18

concurrent or a consecutive sentence for a separate offense arising from an indivisible course of conduct. ( People v. Deloza (1998) 18 Cal.4th 585, 594 [“Section 654 does not
allow any multiple punishment, whether concurrent or consecutive ”].)

The Supreme Court has also recognized, “ with respect to statutes employing the

. . . ‘ notwithstanding ’ language, that a statute may prevent or negate the operation of section 654 even in the absence of an express reference to that provision. ” ( People v. Duff (2010) 50 Cal.4th 787, 798; see People v. Palacios (2007) 41
Cal.4th 720, 730; P eople v. Benson (1998) 18 Cal.4th 24, 32.) But each of the foregoing cases involved a statute using the phrase “ notwithstanding any other law ” or similar language. ( People v. Duff, supra, 50 Cal.4th at p. 798.) Penal Code section 1170.15’s “Notwithstand ing” language is limited to negating the one

- third the mid dle term provision of Penal Code section 1170.1, subdivision (a). Thus, we conclude Penal Code
section 654, subdivision (a) applies to defendants’ convictions for witness intimidation
and the trial court erred in failing to stay the sentences on these counts.

The final issue , which concerns Tuff alone , is the trial court err or in imposing full 1

- year term s on the firearm enhancement s attached to his robbery

co nvictions (Pen. Code, § 12022, subd. (a)(1)) . This ruling violated Penal Code
section 1170.1, subdivision (a), which limits an enhancement imposed that is applicable to a subordinate term to “ one

- third of the term

. . . for [the] .

. . enhancement [].” However, due to the other significant errors in Tuff’s sentence, we conclude the proper
result is to affirm his convictions and remand his case for a new sentencing hearing. ( People v. Woods (2010) 191 Cal.App.4th 269, 273.)

DISPOSITION

The appellants’ convictions are affirme d. On appellant Tuff , the sentence is reversed and the matter remanded to the superior court for resentencing. On appellant19

Matthews, the matter is remanded to the superior court with directions to prepare an amended abstract of judgment stay ing the term s imposed on counts 7, 10 and 11 pursuant to Penal Code section 654, subdivision (a) and to send the amended abstract of judgment to the Department of Corrections and Rehabilitation.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

F YBEL, J.