People v. Green

California Court of Appeal Apr 3, 1985 No. B003615Published

Before: Klein

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Holding. The court affirmed the defendant's convictions and sentences, holding that there was sufficient evidence to support findings of acting in concert and personal firearm use, and that separate punishments for burglary and robbery were permissible because they involved separate objectives.

Issues

Whether there was sufficient evidence to support the finding of acting in concert.
Whether there was sufficient evidence to support the finding that the defendant personally used a weapon.
Whether the trial court violated Penal Code section 654 by imposing separate punishments for burglary and robbery.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This evidence amply supports the jury’s determination that Green acted in concert with at least one other person in the commission of the rape.”

“Ms. L.’s testimony that she felt Green place a gun to her head and neck, together with evidence that two bullets were found in Green’s pocket, constitutes substantial evidence to support the allegation that he personally used a firearm.”

“Because the robbery and burglary involved separate objectives and did not comprise one indivisible transaction, the enhancements pursuant to Penal Code section 12022.5 were properly imposed as to both counts.”

Opinion

KLEIN, P. J.

Jeffrey J. Green (Green) appeals from the judgment entered upon his conviction by jury of forcible rape in concert with others, residential robbery, and first degree burglary, with findings as to each count that Green personally used a firearm and that a principal was armed, and upon his admission of a prior felony conviction (Pen. Code, §§261, subd. (2), 264.1, 211, 213.5, 459, 12022.3, 12022.5, 12022, subd. (a), 667.5, subd. (b)). The trial court selected the rape in concert as the principal term and imposed consecutive terms for robbery, burglary and the enhancements.

[516]

Contentions

He contends: “I. There was insufficient evidence to support the finding of ‘acting in concert. ’ II. There is insufficient evidence to support the finding that Green personally used a weapon. III. It was improper to impose time for the use findings on both the robbery and burglary convictions. IV. Where both offenses constitute an indivisible transaction with one objective, Penal Code section 654 prohibits double punishment. ”

Factual Background

Viewed in the light most favorable to the judgment in accordance with the usual rule of appellate review

(People

Johnson

(1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]), the evidence establishes that at approximately 1 a.m. on December 12, 1982, Green and two other men entered the Long Beach home shared by Debrah L. and Larry H. Larry was out, and Debrah was asleep beside her four-week-old baby. As she awakened and stood, the men rushed up to her. One man placed his hand over her face and threatened to shoot the baby if she screamed. He forced her onto her stomach on the bed, covered her head with a pillow, and placed a gun to her head.

The intruders ordered her to put her hands behind her back where they handcuffed them, then someone took three rings from her fingers.

People v. Green

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KLEIN, P. J.

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