People v. Sarabia CA2/6

Filed 7/13/15 P. v. Sarabia CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B254410 (Super. Ct. No. VA128188-01) Plaintiff and Respondent, (Los Angeles County)

v.

XAVIER SARABIA,

Defendant and Appellant.

Xavier Sarabia appeals his sentence following his conviction for attempted second degree robbery (Pen. Code, §§ 664, 211)1 (count 1), with a jury finding that he personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). The jury also convicted him of carrying a dirk or dagger (§ 21310), a felony (count 2). The trial court imposed an aggregate sentence of 10 years. For count 1, it sentenced Sarabia to two years in prison, it doubled it to four years because of a prior strike, and it added a one- year consecutive sentence for the personal use of a deadly weapon enhancement. (§ 12022, subd. (b)(1).) It added a consecutive five years for a prior serious felony conviction. (§ 667, subd (a).) For count 2, the court imposed a two-year sentence to run concurrently with count 1. We conclude, among other things, that the trial court did not err by not staying the personal use of a knife sentence pursuant to section 654. We affirm.

1 All statutory references are to the Penal Code.

FACTS On the evening of January 6, 2013, Hector De La Cruz was in his car which was parked on the street. He was talking on his cell phone. Sarabia approached the car and asked De La Cruz if he could use the phone. De La Cruz agreed. Sarabia used the phone, returned it to De La Cruz, walked away and "crossed the street." De La Cruz made another phone call from his vehicle. Sarabia came back and approached De La Cruz's car again. He told De La Cruz to "get out of the car and put the keys on top of the hood." Sarabia was holding a knife. De La Cruz was frightened. He drove away and started looking for police officers. Twenty minutes after the attempted robbery, De La Cruz "flagged down" a patrol car. De La Cruz got into the police car. They "drove downtown looking for the described suspect." De La Cruz saw Sarabia at a pay phone. The police approached and apprehended Sarabia while he was making a call at that pay phone. Officer John Almeria testified they patted Sarabia down and discovered that he was wearing the knife "in his waistband." Almeria described the method Sarabia used to conceal the weapon. He said it was located on Sarabia's right "upper thigh, . . . tucked in underneath his pants." Sarabia's "shirt was over the knife concealing it." DISCUSSION Section 654 Sarabia contends the trial court imposed an unauthorized sentence. He claims that 1) the "prison sentence enhancement for personally using a knife should have been stayed, pursuant to Penal Code section 654"; 2) the "finding that [Sarabia] personally used a knife during the attempted robbery and the conviction for carrying a concealed knife are duplicative"; and 3) they were "part of a single and indivisible course of conduct." We disagree. Section 654 protects a defendant from receiving unauthorized multiple punishment. "Whether section 654 applies in a given case is a question of fact for the