People v. Almeda

[1202]Opinion

WATKINS, J.* Defendant was convicted of burglary (count I; Pen. Code, § 459),1 robbery of an inhabited dwelling house (count II; §§ 211, 213.5), attempted murder (count III; §§ 664, 187, subd. (a)) and knowingly receiving stolen property (count V; § 496) arising out of one incident, and of another count of robbery (count IV, § 211) stemming from a second incident. In connection with the first three counts, the jury found that defendant intentionally inflicted great bodily injury (§ 12022.7) upon a person over 60 years old (§ 1203.09) and personally used a deadly weapon. (§ 12022, subd. (b).) After the receiving stolen property count was dismissed, defendant was sentenced to state prison for 14 years 8 months.2

On appeal, defendant argues the deadly weapon use enhancement on count II was improper and contends the court erred by imposing sentence for both the attempted murder and robbery convictions because they were incident to the same objective. (§ 654.) We do not agree and shall affirm the judgment.

Facts

Defendant was convicted of crimes arising out of two separate incidents. His contentions of error relate to the convictions connected to only one of those and thus our factual recitation discusses only those crimes.

At about three in the morning of August 9, 1985, Mrs. Annabelle Harris, the 75-year-old victim, was awakened as two men opened the heavy door separating her bedroom from the outdoor patio. Defendant approached Mrs. Harris, who was in bed, and told his companion to “go see what you can get,” during which time he (defendant) would “take care of’ the victim.

Defendant grabbed the victim’s legs, pulled them to the bedside, and placed his knee in her abdomen. He said there was a contract out on her and that he would have to kill her. He explained she would have to turn [1203]over her money and jewelry first; when she said she had none, defendant began beating her on the head, raining down blow after blow. After using his fists, defendant took the telephone receiver from the side of the bed and resumed beating her with it, telling her he would have to kill her. Defendant’s attempt to strangle his victim with the telephone cord failed when she was able to hold the cord in her mouth, so defendant continued to beat her and split open her lip.