People v. Lopez CA6

Filed 11/24/14 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039834 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1228547)

v.

JOSEPH LOPEZ,

Defendant and Appellant.

INTRODUCTION A jury found defendant Joseph Lopez guilty of two counts of robbery (Pen. Code, §§ 211-212.5, subd. (c)1; counts 1 and 3) and dissuading a witness by force or threat (§ 136.1, subd. (c)(1), count 2), and found true the allegations that defendant had used a deadly or dangerous weapon (§ 12022, subd. (b)(1)). Defendant was sentenced to 15 years 4 months in prison. On appeal, defendant argues that the trial court should have stayed the sentence on his conviction for witness dissuasion pursuant to section 654, because it was indivisible from his robbery offense. For the reasons stated below, we will affirm.

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

FACTUAL AND PROCEDURAL BACKGROUND A. Events Underlying Counts One and Two On January 10, 2012, defendant and two women entered a Mi Pueblo market at 9:45 p.m. The individuals grabbed several items and then walked “really fast” out the store without paying for the items. The cashier alerted the security guard, Bryan De la Torre, that the individuals left without paying. De la Torre followed the individuals out to their car. He asked one of the women for a receipt. She responded by pulling out several receipts and waving them in front of his face, but not allowing him to see them closely. The women started putting the grocery items in their car while defendant stood near the driver’s side of the car. De la Torre tried taking the items out of the car and told them that he was going to call the police. Defendant approached De la Torre and pulled out a knife from his pocket. He held the knife pointed towards De la Torre’s torso and thrusted it towards him. De la Torre responded by pulling out his pepper spray. While holding the knife, defendant told De la Torre “not [to] call the cops” and “not do anything about it, just go inside, or else he was going to come back.” De la Torre stepped away from defendant and told him to leave. The women left in the vehicle, and defendant ran away. De la Torre ran back to the store and called the police. B. Events Underlying Count Three On January 13, 2012, defendant and another man entered a different Mi Pueblo market at 2:47 p.m. Defendant grabbed several grocery items, placed them in a basket, and then walked out of the store without paying for the items. Alvaro Ventocilla, who was the security guard on duty, followed defendant to the parking lot. Ventocilla asked defendant for a receipt, but defendant kept walking. Defendant began loading the groceries in his car. Defendant then went to the front passenger seat, sat down, and pulled out a knife from the glove compartment. Defendant pointed the knife up towards