P. v. Bray

Filed 10/31/18 P. v. Bray CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ERNEST BRAY, JR.,
Defendant and Appellant.
B283962
(Los Angeles County
Super. Ct. No. LA084553)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard H. Kirschner, Judge. Affirmed.
Paul R. Kraus, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————

-- 1 of 6 --

2
A jury found Ernest Bray, Jr., (Bray) guilty of robbery and
assault with a deadly weapon. The trial court imposed a
consecutive sentence on the assault with a deadly weapon count.
Bray appeals, contending that Penal Code section 6541 precluded
the consecutive sentence. We find that the consecutive sentence
was proper and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 17, 2016, loss prevention agents Erik Alvarez
and Hugo Jimenez were working at Jons Market. They saw Bray
leave the store without paying for a bottle of vodka. Alvarez and
Jimenez followed Bray outside, where they identified themselves
as loss prevention agents. Bray pointed a knife at them and said,
“[G]et the fuck away.” However, Bray did not thrust or “slash”
the knife at Alvarez and Jimenez. When Alvarez said all he
wanted was the vodka, Bray put the bottle into a nearby
shopping cart and left.
Based on this event, an amended information charged Bray
with robbery (§ 211; count 1) and assault with a deadly weapon
(§ 245, subd. (a)(1); count 2). He was also charged with personal
use of a dangerous and deadly weapon (§ 12022, subd. (b)(1)) as
to count 1. Both counts identified only Alvarez as the sole victim.
On April 20, 2017, a jury found Bray guilty of both counts and, as
to the robbery, found true the weapon allegation (§ 12022,
subd. (b)(1)). The verdict forms also identified Alvarez as the
victim in both counts.
On July 14, 2017, the trial court sentenced Bray to two
years on the robbery plus 2 five-year terms under section 667,
1 All further statutory references are to the Penal Code.

-- 2 of 6 --

3
subdivision (a)(1).2 On the assault with a deadly weapon count,
the court sentenced Bray to a consecutive one year. Bray’s total
sentence therefore was 13 years.
DISCUSSION
Bray’s sole contention is the trial court erred by imposing
the one-year sentence consecutively on count 2 instead of staying
it under section 654. The People counter that the sentence was
proper under the multiple victim exception. As we now explain,
we conclude that the multiple victim exception applies, and
therefore the consecutive sentence was proper.
Section 654, subdivision (a), provides that “[a]n act or
omission . . . punishable in different ways by different provisions
of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but [not] . . . under more
than one provision.” The section thus bars multiple punishments
for offenses arising out of a single occurrence where all were
incident to an indivisible course of conduct or a single objective.
(People v. Correa (2012) 54 Cal.4th 331, 335; People v. Jones
(2012) 54 Cal.4th 350, 358.)
However, “section 654 does not apply to ‘crimes . . . against
multiple victims.’ ” (People v. King (1993) 5 Cal.4th 59, 78; People
v. Oates (2004) 32 Cal.4th 1048, 1062; People v. Centers (1999) 73
Cal.App.4th 84, 99 (Centers).) “ ‘The purpose of the protection
against multiple punishment is to insure that the defendant’s
punishment will be commensurate with his criminal liability.
A defendant who commits an act of violence with the intent to
harm more than one person or by a means likely to cause harm to
2 The court struck the punishment for the weapon
allegation.

-- 3 of 6 --

4
several persons is more culpable than a defendant who harms
only one person. For example, a defendant who chooses a means
of murder that places a planeload of passengers in danger, or
results in injury to many persons, is properly subject to greater
punishment than a defendant who chooses a means that harms
only a single person. This distinction between an act of violence
against the person that violates more than one statute and such
an act that harms more than one person is well settled.
Section 654 is not “. . . applicable where . . . one act has two
results each of which is an act of violence against the person of a
separate individual.” ’ ” (Oates, at p. 1063.) Thus, the multiple
victim exception applies so long as each violent offense involves
at least one different victim. (People v. Miller (1977) 18 Cal.3d
873, 886, fn. 11; People v. Robinson (1988) 198 Cal.App.3d 674,
680.)
Here, the People do not dispute that the robbery and
assault with a deadly weapon were part of an indivisible course of
conduct, and therefore section 654 would generally apply. The
People instead argue that the multiple victim exception to that
general rule applies because the evidence showed that Bray
committed an act of violence3 against multiple victims: Alvarez
and Jimenez. Bray responds that the multiple victim exception
does not apply because the information and verdicts identified
only one victim: Alvarez.
The People have the better argument, under Centers,
supra, 73 Cal.App.4th 84. In Centers, the defendant entered a
residence and kidnapped one of its three occupants. Consecutive
3 Robbery and assault involve acts of violence. (People v.
Newman (2015) 238 Cal.App.4th 103, 117.)

-- 4 of 6 --

5
sentencing on both the burglary4 and kidnapping charges was
permissible because, although the information did not allege the
specific victims of the burglary, there was evidence that at least
one victim of the burglary was not a victim of the kidnapping.
(Id. at pp. 101–102.) The court said, “We know of no case in
which the court declined to apply the multiple victim exception
simply because the victims had not been named in the
information. Ordinarily, in determining whether . . . section 654
applies, the trial court is entitled to make any necessary factual
findings not already made by the jury.” (Id. at p. 101.) Thus,
where substantial evidence supports a trial court’s implied
finding of multiple victims, section 654 does not apply. (Ibid.; see
People v. Cardenas (2015) 239 Cal.App.4th 220, 232, fn. 4
[insufficient evidence second person was present at time of
offense].)
Under Centers, supra, 73 Cal.App.4th 84, that the
information and verdicts here identified only Alvarez as the
victim of the robbery and of the assault with a deadly weapon is
not a bar to consecutive sentencing. Stated otherwise, naming
Alvarez as the victim in the information and verdicts did not
preclude a finding that Jimenez was also a victim for the
purposes of the multiple victim exception. That is particularly
true where, as here, jury instructions did not identify Alvarez as
the sole victim but instead referred to a “store employee” for the
purposes of robbery and to a “person” for the purposes of assault
4 Although burglary is not a violent crime for purposes of
the multiple victim exception, it may be treated as one where, as
in Centers, supra, 73 Cal.App.4th at page 99, the jury found that
the defendant inflicted great bodily injury in the commission of
the burglary.

-- 5 of 6 --

6
with a deadly weapon, and where the prosecutor never argued in
closing that Alvarez was the only victim but instead talked about
both loss prevention agents.
Finally, substantial evidence supports the trial court’s
implied finding that Jimenez was also a victim of robbery and of
assault with a deadly weapon. (See generally People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.) Both Alvarez and Jimenez
testified they followed Bray out of the store and that Bray
pointed a knife at them. Bray does not challenge the sufficiency
of this evidence to establish Jimenez was a victim of Bray’s
crimes for the purposes of the multiple victim exception.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
GOODMAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

-- 6 of 6 --