Filed 3/2/16 P. v. Fountain CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LAWRENCE TYRONE FOUNTAIN,

Defendant and Appellant.

 B263890

 (Los Angeles County

 Super. Ct. No. NA099982)

APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur 

Jean, Jr., Judge. Affirmed.

Tracy L. Emblem, 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, Margaret E. Maxwell and 

Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Lawrence Tyrone Fountain (defendant) appeals from the 

judgment entered after he was convicted of carrying an unregistered, loaded handgun, 

second degree robbery, and attempting to dissuade a witness by force or threat. He 

contends that substantial evidence did not support his conviction of dissuading a witness, 

and that the trial court was required to stay his sentence as to the dissuasion count under 

Penal Code section 654.1 Finding no merit to defendant’s contentions, we affirm the 

judgment. 

BACKGROUND

An amended information charged defendant with the following four felonies: 

count 1, carrying an unregistered, loaded handgun in violation of section 25850, 

subdivision (a); count 2, unlawful firearm activity in violation of section 29825, 

subdivision (a); count 3, second degree robbery in violation of section 211; and count 4, 

dissuading a witness by force or threat in violation of section 136.1, subdivision (c)(1). 

The information alleged as to all counts that defendant was out of custody on bail or on 

his own recognizance at the time of the offenses, within the meaning of section 12022.1. 

At arraignment, count 3 was amended by interlineation to add the special allegation that a 

principal was armed with a firearm, within the meaning of section 12022, subdivision (a).

A jury found defendant guilty as charged in counts 1, 3, and 4, and found true the 

special firearm allegation. On motion of the prosecution, the trial court dismissed count 2 

in the interest of justice, and by agreement with the prosecution, defendant admitted the 

bail allegation in exchange for a prison term in this case of seven years. On March 26, 

2015, the trial court sentenced defendant to a seven-year term, comprised of the upper

term of five years as to count 3, plus two years for the bail allegation, a concurrent high 

term of four years as to count 4, and a concurrent two-year term as to count 1. The trial 

court stayed imposition of sentence for the true finding that a principal had been armed.

Defendant was ordered to pay mandatory fines and fees, and was given 264 days of 

presentence custody credit.

 

1 All further statutory references are to the Penal Code, unless otherwise indicated.
3

Defendant filed a timely notice of appeal from the judgment.

Evidence presented

Karrmell Stone (Stone) testified that he and his friend Dexter Williams (Williams) 

were approached by three men on August 15, 2014. One of the men, whom Stone later

identified as defendant, offered to sell him marijuana. Stone left to get money and about 

15 minutes later, arrived with Williams at the prearranged alley meeting place, where the 

three men waited. Defendant told Stone and Williams to come further into the alley so 

they would not be seen, and one of the other men asked to use Stone’s phone. Stone gave 

defendant the agreed upon $60, but defendant wanted more money.

Feeling uneasy, Stone asked for his phone and money back, but the man with his 

phone pulled out a gun, placed the gun against Stone’s ribcage, and said, “Give me all 

your shit before I spark.” Stone understood “spark” to mean shoot, and was very 

frightened. He took out his wallet to get the remainder of his money, and asked to keep 

his wallet because he needed it for a job interview the following week. The man replied, 

“No, we are going to take it because if you snitch on us, we are going to find you.” Stone 

interpreted the man’s words as a threat to come to his home and harm him or his 

roommates if he said anything to law enforcement. Stone took the threat seriously and 

was afraid for his roommates’ safety. Defendant patted down Williams, but found 

nothing. The third man acted as a lookout.

Stone testified that he had $140 in his wallet, including the $60, along with a bank 

card, driver’s license, his social security card, a bus card, his medical marijuana card, a 

room key, and other cards. After taking the wallet, the robbers told Stone and Williams 

to turn around and run, which they did without looking back. Stone was afraid to report 

the crime because of the threat, but made a report after urging by his mother. Stone met 

with Long Beach police officers and identified defendant from a six-pack photographic 

lineup as one of the robbers.

Officers Robert Davenport and Carlos Del Real both testified that they 

participated in defendant’s arrest on the day of the robbery. While Officer Del Real was 

removing defendant from the car in which defendant had been a passenger, he saw 
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defendant drop a handgun onto the ground. After Officer Del Real handcuffed defendant, 

Officer Davenport recovered the gun and determined that it contained three live rounds. 

A short while later, Officer Del Real found cards on the floorboard of Officer 

Davenport’s car, below the area where defendant had been seated in the patrol car. 

Among the cards were Stone’s social security and identification cards.

DISCUSSION

I. Substantial evidence of attempting to dissuade a witness by force or threat (count 

4)

Defendant contends that there was insufficient evidence to support his conviction 

as an aider and abettor to a violation of section 136.1, subdivision (c)(1). Under that 

provision, a person is guilty of a felony if he knowingly and maliciously attempts to 

prevent or dissuade a victim or witness to a crime from making any report to law 

enforcement, where the act is accompanied by force or by an express or implied threat of 

force or violence upon the witness, victim, or any third person. (§ 136.1, subd. (c)(1).)

“All persons concerned in the commission of a crime . . . whether they directly 

commit the act constituting the offense, or aid and abet in its commission . . . are 

principals in any crime so committed.” (§ 31.) “[A] person aids and abets the 

commission of a crime when he or she, acting with (1) knowledge of the unlawful 

purpose of the perpetrator; and [with] (2) the intent or purpose of committing, 

encouraging, or facilitating the commission of the offense, (3) by act or advice aids, 

promotes, encourages or instigates, the commission of the crime.” (People v. Beeman

(1984) 35 Cal.3d 547, 561.) For aiding and abetting liability to attach, the intent to aid 

and abet may be formed during commission of the offense. (See People v. Cooper

(1991) 53 Cal.3d 1158, 1164-1165.) Whether a defendant aided and abetted another 

person is a question of fact. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) 

Factors relevant to determining whether substantial evidence supports a finding that 

defendant was an aider and abettor include companionship and conduct before, during, or 

after the offense. (Ibid.; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.)
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“The proper test for determining a claim of insufficiency of evidence in a criminal 

case is whether, on the entire record, a rational trier of fact could find the defendant guilty 

beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the 

light most favorable to the People and must presume in support of the judgment the 

existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”

(People v. Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the 

conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft

(2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical inferences that the 

jury might have drawn from the circumstantial evidence. [Citation.]” (People v. Maury

(2003) 30 Cal.4th 342, 396.) Reversal on a substantial evidence ground “is unwarranted 

unless it appears ‘that upon no hypothesis whatever is there sufficient substantial 

evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 

297, 331.)

Defendant argues that there was no evidence that defendant engaged in some 

conduct or committed some act “to aid or encourage the perpetrator’s gratuitous and 

independent threat.” Defendant does not challenge the sufficiency of the evidence 

showing that defendant aided and abetted the robbery. Indeed, uncontradicted evidence 

showed that defendant lured Stone and Williams into the alley, demanded more money 

after receiving Stone’s $60, and patted down Williams while his accomplice took Stone’s 

property at gunpoint.

Defendant suggests that he was present solely to commit a robbery and did 

nothing other than continue with that criminal activity while his accomplice suddenly 

committed an unplanned, independent crime.

2

In short, defendant concludes that the 

evidence showed no more than his presence, silence, and failure to prevent the express 

threat to find Stone if he snitched. Defendant argues that the fact that Stone’s 

 

2 Although the evidence might have supported liability under the natural and 

probable consequence doctrine, the jury was not instructed on that form of aiding and 

abetting. Thus, it is not relevant to our discussion. (People v. McCoy (2001) 25 Cal.4th 

1111, 1117.)
6

identification cards were found the day of his arrest in a patrol car, at most supported

liability as an accessory to dissuading a witness.

3 While mere presence at the scene of a 

crime and the failure to prevent the crime are insufficient to establish aiding and abetting 

liability (People v. Durham (1969) 70 Cal.2d 171, 181), we reject defendant’s 

characterization of the evidence as showing no more than his presence, failure to prevent 

the verbal threat, or aiding his accomplice as an accessory after the fact.

Initially, we note that the crime was committed not only by the utterance of 

threatening words, as defendant’s argument suggests. A felony attempt to prevent or 

dissuade a victim or witness from reporting a crime may be committed by an express or 

implied threat of force or violence. (§ 136.1, subd. (c)(1).) Here, the jury could 

reasonably have inferred that the implied threat of force or violence was twofold, 

consisting not only of the words spoken by defendant’s accomplice, but also by the 

retention of the wallet with Stone’s identification.

The perpetrator’s intent to dissuade the victim from reporting the crime was clear 

from the words of the threat, and defendant’s presence at the scene and his close 

proximity to the perpetrator were facts from which the jury could reasonably infer that 

defendant had heard it and that he understood his accomplice’s intent. Further, 

defendant’s accomplice clearly spoke for both himself and defendant, when he said, “No, 

we are going to take it because if you snitch on us, we are going to find you.” (Italics 

added.) Defendant did not simply fail to contradict his accomplice, as defendant 

suggests, nor did he simply stand by silently. Rather, defendant demonstrated his 

agreement with the statement and the perpetrator’s purpose by telling the victims to turn 

around and run, thus facilitating the retention of the wallet. Defendant’s conduct after the 

crime provided further evidence of his intent to assist in dissuading Stone from reporting 

the crime by keeping Stone’s identification cards. When defendant was arrested, he 

 

3 An accessory is one “who, after a felony has been committed, harbors, conceals or 

aids a principal in such felony, with the intent that said principal may avoid or escape 

from arrest, trial, conviction or punishment, having knowledge that said principal has 

committed such felony.” (§ 32.)
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apparently had Stone’s identification and other cards on his person, as they were found 

near his seat in Officer Davenport’s patrol car.

In sum, substantial evidence supports findings that defendant formed the intent to 

aid and abet the dissuasion of the victim during the utterance of the verbal threat, and that 

he then aided his accomplice to retain the wallet and identification cards by telling the 

victim to run.

II. Section 654

Defendant contends that concurrent sentence on count 4, attempt to dissuade a 

witness, was unauthorized, and instead it should have been stayed pursuant to section 

654, because the act constituting the offense was indivisible from the robbery.

“An 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.” (§ 654, subd. (a).) Section 654 thus prohibits punishment for two crimes 

arising from an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 

294.)

Respondent contends that defendant has forfeited this issue by his admission of the 

bail enhancement allegation in exchange for a sentence of seven years, as “defendants are 

estopped from complaining of sentences to which they agreed.” (People v. Hester, supra, 

22 Cal.4th at p. 295.) Defendant points out, however, there is no indication in the record 

that waiver of section 654 was contemplated within the plea agreement, and a section 654 

stay of the count 4 sentence would not change the seven-year term that defendant agreed 

to serve. Nevertheless, defendant’s contention that section 654 applies to count 4 is 

without merit.

“Section 654 prohibits multiple punishment for a single physical act that violates 

different provisions of law.” (People v. Jones (2012) 54 Cal.4th 350, 358.) However, 

“what is a single physical act might not always be easy to ascertain. In some situations, 

physical acts might be simultaneous yet separate for purposes of section 654.” (Ibid.) In 

such circumstances, the question may be resolved under the intent and objective test. 
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(People v. Chung (2015) 237 Cal.App.4th 462, 469; see People v. Jones, supra, at p. 370 

(conc. opn. of Liu, J.).) Under that test, “[w]hether a course of criminal conduct is 

divisible and therefore gives rise to more than one act within the meaning of section 654 

depends on the intent and objective of the actor. If all of the offenses were incident to 

one objective, the defendant may be punished for any one of such offenses but not for 

more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on 

other grounds by People v. Correa (2012) 54 Cal.4th 331, 334, 336.)

“Because of the many differing circumstances wherein criminal conduct involving 

multiple violations may be deemed to arise out of an ‘act or omission,’ there can be no 

universal construction which directs the proper application of section 654 in every 

instance. [Citation.]” (People v. Beamon (1973) 8 Cal.3d 625, 636.) Thus, whether a 

course of criminal conduct is divisible presents a factual issue for the trial court, and we 

will uphold its ruling if supported by substantial evidence. (People v. Coleman (1989) 48 

Cal.3d 112, 162.) “[T]he trial court . . . is vested with broad latitude in making its 

determination. [Citations.] It’s findings will not be reversed on appeal if there is any 

substantial evidence to support them. [Citations.] We review the trial court’s

determination in the light most favorable to the respondent and presume the existence of 

every fact the trial court could reasonably deduce from the evidence. [Citation.]” 

(People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Defendant contends that the intent and objective test does not apply here because 

the single act of pointing the gun at Stone accomplished both the robbery and the 

intimidation of the witness by force or threat of force. On the contrary, as respondent 

points out, defendant committed separate acts motivated by different objectives. 

Defendant’s accomplice committed the robbery by pointing the gun at Stone and

threatening to shoot him unless he handed over his property. Once Stone complied, then

with the separate objective of attempting to dissuade Stone from speaking to law 

enforcement, the accomplice issued a second threat to use the contact information in 

Stone’s wallet to find him. Under such circumstances, section 654 does not apply. (See 

People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212; cf. People v. Coleman, supra, 48 
9

Cal.3d at p. 162 [defendant robbed victim, killed another, then assaulted robbery victim

to dissuade her from sounding alarm]; People v. Nichols (1994) 29 Cal.App.4th 1651,

1654 [threat made to dissuade hijacking and robbery victim from reporting crime].)

We conclude that substantial evidence supports a finding that defendant’s course 

of conduct was divisible and involved separate criminal objectives. The trial court did 

not err in imposing separate punishment for the robbery and the attempt to dissuade the 

victim from reporting the robbery.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

BOREN

__________________________, J.

HOFFSTADT