People v. Williams

Opinion

WIENER, J. An eight-count information charged David Lee Williams with (1) the robbery of Paul Burkhart (Pen. Code § 211),1 (2) the robbery of Laura Rule (§ 211), (3) assault with intent to commit murder of Lloyd Waugh (§ 217), (4) assault with a deadly weapon on Peace Officer Lloyd Waugh (§ 245, subd. (b)), (5) taking of an automobile (Veh. Code § 10851), (6) possession of a sawed-off shotgun (§ 12020, subd. (a)), (7) assault with a deadly weapon on Laura Rule (§ 245, subd. (a)), and (8) assault with a deadly weapon on Peace Officer Teofilo Weston (§ 245, subd. (b)). All counts except count 5 alleged firearm use (§ 12022.5); a great bodily injury enhancement against Waugh was also alleged (§ 12022.7). After the denial of his section 1538.5 motion, Williams entered into a plea bargain pleading guilty to the first two counts of robbery, admitting the GBI enhancement and use of a firearm in each robbery. The remaining counts were dismissed. Williams’ sentence to prison for eleven and two-thirds years was Corn[996]puted as follows: count 1—five years (upper term for the robbery), two years for fire arm use plus three years for GBI to be served consecutively with count 2—one year for the robbery plus eight months for the firearm use. In his appeal from the judgment, Williams claims sentencing error under In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23] because the court erred in imposing the enhancement for firearm use when he actually used the gun on only one occasion in a continuous transaction.

The following factual summary is taken from the transcript of the preliminary hearing.

On September 14, 1980, Williams held a gun on Paul Burkhart, a clerk in The Gap, a clothing store, and told him to open the cash register and give him the money. Burkhart gave Williams about $80 from the register. At Williams’ direction, Burkhart locked the front doors of the store and went with Williams to the back of the store, where Laura Rule was working in the office. When they reached the back office, Burkhart told Rule they were being robbed. Rule and Burkhart opened the safe and gave Williams about $700. Williams rummaged through the desk and Rule’s purse, but took nothing more. While they were in the back office, Williams threatened Rule and Burkhart saying, “Don’t look at my face. You’ve seen my face too much. I will blow your head off. Don’t look at my face. I will blow you away.” He then left the office. About 30 seconds later, gunshots were heard.