Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD216969, SCD211902 Howard H. Shore, Judge.
HALLER, Acting P. J.
Wilmer Aguilar appeals from a judgment convicting him of burglary, robbery, false imprisonment, attempted carjacking, and kidnapping for robbery, with true findings that he personally used a deadly weapon during some of the offenses. He raises numerous contentions of error concerning insufficiency of the evidence, instructional error, improper dual convictions, and failure to stay sentences.
We conclude the second degree robbery convictions (contained in counts 1 and 3) should be stricken because they are lesser included offenses of the first degree robbery convictions, and we modify the judgment accordingly. In all other respects, the judgment is affirmed as to the convictions.
As to sentencing, we conclude the sentence imposed on the burglary count (count 9) and its enhancement should be stayed under Penal Code section 654, and we modify the sentence accordingly. In all other respects, the judgment is affirmed. We also order the correction of several clerical errors in the sentencing minute order and in the abstract of judgment.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of October 24, 2008, Aguilar broke into Huynh Nguyen's car. When Nguyen arrived at his car, Aguilar got out of the car, grabbed Nguyen, threatened him with a hammer, and took Nguyen's wallet and keys. Aguilar then went about three blocks to a condominium complex and broke into the home of Rodil and Caridad Razon, where he engaged in a lengthy robbery, false imprisonment, and kidnapping. Aguilar does not challenge his conviction related to Nguyen; accordingly, we confine our remaining factual summary to the offenses involving the Razons.
At about 7:30 a.m. on October 24, Aguilar entered the Razons' home through the open window of the upstairs master bedroom where Rodil, Caridad, and their three-year-old daughter were sleeping. Caridad's 20-year-old son was also sleeping in another part of the home. Caridad heard a noise and awoke to see Aguilar coming through the window with a screwdriver in his hand. He stood and faced her, pointed the screwdriver at her, put his finger on his mouth and told her to keep quiet, and stated he would not hurt them. Caridad woke up her husband, saying that someone was inside their room. Aguilar was now standing at the foot of the bed and covering his face with the screen from the window. Rodil tried to get up, but Aguilar told him to " 'get down, get down' " and Rodil complied. Aguilar threw a comforter that was at the foot of the bed over the Razons. Aguilar pulled out the wires of the bedroom phone, rendering the house phone inoperable.
When Rodil asked Aguilar what he wanted, Aguilar stated that "all he wants is money." Rodil grabbed his wallet from a cabinet by his bed and gave Aguilar $115 cash that was in the wallet. Aguilar counted the money and stated, " 'It's not enough.' " Aguilar stated he needed $800, and asked " 'Where is the rest of the money?' " Rodil told him he did not have more money. The Razons pleaded with him to leave and said they would not call the police. Aguilar asked if Rodil had a car, and Rodil replied he did but Aguilar could not have it because Rodil needed it to go to work. Aguilar insisted he needed more money, and stated he was going to take Rodil and they were going to go to Rodil's bank.
From time to time the Razons peeked out from the comforter and saw that Aguilar was searching through their things in the bedroom. When Aguilar saw Rodil do this, he yelled, " 'Get the fuck down. Do you think this is a game?' " The Razons could hear Aguilar opening drawers, cabinets, and zippers on Caridad's handbags. When Aguilar found Caridad's jewelry, Aguilar stated, " 'You are a liar' "; " 'You said you don't have money.' " Aguilar told them he was now going to steal all their "fucking stuff" because they had lied to him. Aguilar took their DVD player and pulled out the speakers of their stereo surround system.
Caridad repeatedly pleaded with Aguilar to leave their house. Speaking to Rodil in their native foreign dialect, Caridad suggested they should cover Aguilar with the blanket and try to restrain him. Rodil (who had not seen Aguilar holding the screwdriver) replied that they should not do this because he did not know what kind of weapon Aguilar had. Rodil told Caridad that he would take Aguilar outside the house so she and the children would be safe, and Caridad should call the police. Hoping to get Aguilar out of the house, Rodil asked Aguilar if he was done, and stated they should go to the bank now and Rodil would drive him there. When Aguilar found pictures of the Razon family in bedroom drawers, he referred to the pictures and told Caridad she should not call the police when he left with Rodil or he would return and do something to their family.
The Razons were under the comforter for about 90 minutes. Rodil described their time under the comforter as "agonizing" and that it seemed "forever underneath that blanket." Caridad was afraid and worried about what Aguilar would do to Rodil if Aguilar took Rodil with him to the bank. The Razons were having trouble keeping their daughter under the blanket because she thought it was a game; she was trying to get out of the blanket, saying " 'let's go downstairs.' " When this occurred, Aguilar told Caridad, " 'get her down, get her down.' " Caridad tried to calm her daughter, telling her, " 'Let's play house under the blanket.' "
After Aguilar finished rummaging through the bedroom, he told the Razons to get up and that they were going downstairs. Aguilar grabbed a pillowcase and put various items into it, including electronic equipment, gloves, and the folded-up window screen from the bedroom window. Aguilar told Rodil to carry the subwoofer of the stereo system downstairs.
Caridad and her daughter went down the stairs first, followed by Rodil with the subwoofer, and then Aguilar with the pillowcase. When they were halfway down the stairs, Aguilar stated to Rodil that after getting the money from the ATM, " 'I'm going to fucking throw you in the street.' " As they were going down the stairs, Rodil noticed that Aguilar was carrying a screwdriver.
Caridad got ahead of them when they were at the bottom of the stairs and, noticing this, Aguilar passed by Rodil and chased after her towards the family room. Rodil took this opportunity to hit Aguilar on the head with the subwoofer, causing Aguilar to fall to the floor. As Aguilar was getting up, Caridad ran towards him and hit him on the head with a vase. During the ensuing struggle, Caridad grabbed a knife from the kitchen; Aguilar grabbed the knife from her; Aguilar swung the knife at them; Rodil struggled to gain possession of the knife; Caridad held Aguilar around the neck with her arm and Aguilar bit her arm; Caridad grabbed a pot with her free hand and hit Aguilar on the head; Rodil gained possession of the knife; Rodil grabbed the pot and hit Aguilar on the head until the handle broke; and Caridad grabbed another knife and started stabbing Aguilar in the shoulder. Finally, Aguilar started to weaken and Rodil and Caridad were able to pin him to the floor.
By this point Caridad's son had awakened, and he called 911 on a cell phone. During the struggle with Aguilar, the Razons' daughter was crying and calling out for her mother. When the police arrived, Rodil and Caridad were still holding Aguilar down; they were breathing heavily; and there was "blood everywhere." Caridad and her daughter were crying hysterically. Rodil appeared to be exhausted and in a state of shock and was initially unable to stand on his own. The police found a screwdriver on the kitchen floor. In Aguilar's pockets, the authorities found another screwdriver, Nguyen's wallet and keys, Rodil's car keys and watch, Caridad's cell phone and jewelry, and a passport.
From the struggle with Aguilar, Rodil incurred bites on his arm, a stab wound on his foot, and cuts to his fingers that required sutures and caused him to lose use of his hand for about one month. He also experienced a worsening of osteoarthritis in his knees which caused him to be bedridden and in a wheelchair for about two months and which still impacts his mobility. Caridad incurred bites on her arm that caused bleeding and left scars.
Aguilar testified on his own behalf to explain his methamphetamine use and paranoid state of mind at the time of the offenses. He claimed not to recall much of what occurred at the Razon residence, stating that his first memory was of being on the floor and being stabbed. Because his testimony is not relevant to the issues on appeal, we need not further summarize it.
Jury Verdict and Sentence
For the Razon offenses, the prosecution's theory was that Aguilar committed confinement to exact money or other valuables by confining the victims to the bed upstairs (counts 1 and 3); that he committed kidnapping for robbery by taking the victims down the stairs (counts 2 and 4); that he committed residential burglary (count 9) and first degree residential robbery (counts 7 and 8) for his entry into and robbery of the residence; and that he committed attempted carjacking (count 13) for taking Rodil's car keys with intent to take Rodil in the car to the bank. He was also charged with false imprisonment of the Razons' daughter (count 5) and several other offenses. The prosecution alleged that he personally used a deadly weapon (the screwdriver) during some of the offenses.
The jury convicted Aguilar of the charged offenses of burglary, first degree residential robbery, kidnapping for robbery, attempted carjacking, and false imprisonment of the Razons' daughter. The jury found true the allegations that he personally used a deadly weapon in the commission of the burglary, residential robbery, and kidnapping for robbery. For the confinement offenses alleged in counts 1 and 3, the jury convicted him of the lesser included offenses of false imprisonment and second degree robbery. The counts 1 and 3 robbery convictions were characterized as second degree (rather than first degree residential) robbery because the verdict forms for the lesser included offenses did not ask the jury to determine the degree of the robbery. (§ 1157.) The jury also convicted Aguilar of second degree robbery of Nguyen, with personal use of a deadly weapon (a hammer).
The jury deadlocked on three other charged counts involving the Razons, i.e., mayhem and assault with a deadly weapon or by means of force likely to produce great bodily injury. The trial court granted the prosecution's motion to dismiss these counts.
For the counts 1 and 3 confinement charges (§ 209, subd. (a)), the jury was instructed that movement was not required, but that the defendant must have intended to get money or something valuable from a person "other than the person detained." The jury acquitted Aguilar of these charges and found him guilty of the lesser included offenses of robbery and false imprisonment. The verdict form provided to the jury for these lesser offenses also did not ask the jury to decide a personal weapon use allegation, and accordingly no enhancement finding was made for counts 1 and 3.
Aguilar was sentenced to life with the possibility of parole for the kidnapping for robbery of Rodil, plus one year for the weapon use enhancement. He received a consecutive term of one year four months for the second degree robbery of Nguyen with the weapon enhancement.
DISCUSSION
I. Claims of Insufficient Evidence
Aguilar argues there was insufficient evidence to support the jury's findings that (1) he committed kidnapping for robbery, and (2) he used a deadly weapon during the residential robbery of Rodil and the kidnappings for robbery of Rodil and Caridad.
In reviewing a challenge to the sufficiency of the evidence, we examine the entire record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
A. Kidnapping for Robbery
Aguilar contends the record does not support his conviction of kidnapping for robbery against Rodil and Caridad (counts 2 and 4) because his movement of the victims was merely incidental to the robbery and it did not substantially increase the risk of harm to the victims.
Kidnapping for robbery is a form of aggravated kidnapping that has an asportation requirement distinct from simple kidnapping. (People v. Rayford (1994) 9 Cal.4th 1, 14.) "[A]ggravated kidnapping requires movement of the victim that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself." (People v. Martinez (1999) 20 Cal.4th 225, 232; § 209, subd. (b)(2).) "These two aspects are not mutually exclusive, but interrelated." (People v. Rayford, supra, 9 Cal.4th at p. 12.)
To determine whether the movement is more than incidental to commission of the underlying offense, relevant considerations include the scope and nature of the movement, and the context of the environment in which the movement occurred. (People v. Rayford, supra, 9 Cal.4th at p. 12.) Although the distance of movement is a relevant factor, there is no minimum number of feet the victim must be moved. (Ibid.) To determine whether the movement increased the risk of harm beyond that inherent in the underlying offense, relevant considerations include the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. (Id. at p. 13.) The risk of harm may include "psychological trauma to the victim beyond that expected... from a stationary" offense. (People v. Nguyen (2000) 22 Cal.4th 872, 886.) The fact that the dangers do not in fact materialize does not mean the risk of harm was not increased. (People v. Rayford, supra, 9 Cal.4th at p. 14.)
Here, the Razons and their three-year-old daughter were first detained under a blanket in their upstairs bedroom as Aguilar robbed them of various items in that room. While under the blanket in the bedroom, the Razons had not suffered any physical harm and their daughter thought the incident was a game. After engaging in a 90-minute confinement and robbery upstairs, Aguilar decided to move the victims downstairs. The jury could deduce that the movement heightened the victims' fears and worries about what might happen because it showed that their lengthy ordeal was not yet over and that Aguilar likely intended to follow through on his threat to take Rodil with him.
Further, the movement released the victims from the confines of their bed and brought them into an open area where they had more opportunities to seize objects (including kitchen knives) and to attempt to escape from Aguilar. The increased opportunity to use objects as weapons generated by the movement downstairs created a greater risk of injury to the victims. Indeed, this is precisely what occurred. After they went downstairs and the victims decided to take active measures to stop Aguilar, the end result was that the Razons were injured and bloody and their daughter, now apparently traumatized, was screaming hysterically. If Aguilar had simply run out of the house after taking the items from the bedroom, the Razons could have stayed in the safety of their bedroom until he was gone and there would have been no escalation of the risk of harm beyond that inherent in the robbery. The record supports the jury's finding that the movement downstairs was not merely incidental to the robbery and that it substantially increased the risk of harm.
To support his challenge to the jury's findings that he committed kidnapping for robbery, Aguilar cites the principle that movement within the premises where the victim is found will generally be deemed incidental to the robbery because it does not substantially increase the risk of harm otherwise present. (See People v. Rayford, supra, 9 Cal.4th at pp. 12-13; People v. Hoard (2002) 103 Cal.App.4th 599, 603-604; People v. James (2007) 148 Cal.App.4th 446, 455-456.) This principle does not apply here to defeat the jury's verdict. In People v. Dominguez (2006) 39 Cal.4th 1141, 1152, the court emphasized that "[t]he essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement, " and "each case must be considered in the context of the totality of its circumstances." Contrary to Aguilar's claim, this is not a case which compels a finding that the defendant merely moved the victims from one area of the premises to another area to facilitate the taking of property but with no significant increase in risk of harm. (See, e.g., People v. Hoard, supra, 103 Cal.App.4th at p. 607; People v. John (1983) 149 Cal.App.3d 798, 806-807.) The movement down the stairs showed the victims that the lengthy ordeal was not yet over and could worsen; it increased the victims' incentive and opportunity to intervene; and it increased the risk of trauma to the victims' small daughter. The jury could reasonably conclude that this movement substantially increased the risk of harm and was not merely incidental to the robbery.
B. Personal Use of a Deadly Weapon
Aguilar argues the record does not support the personal use of a deadly weapon enhancement for count 7 (residential robbery of Rodil) because (1) Rodil did not see the screwdriver during the robbery upstairs, and (2) to the extent the robbery continued as they went downstairs, Rodil merely saw him passively holding the screwdriver when they were on the stairs and there was no suggestion of a menacing display. Aguilar also argues the evidence does not support the use enhancement for counts 2 and 4 (kidnapping for robbery of Rodil and Caridad) because (1) the display to Rodil on the stairs was passive, and (2) there was no showing that Caridad saw the screwdriver as they went down the stairs.
The enhancement for personal use of a deadly weapon applies when the defendant "personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony...." (§ 12022, subd. (b)(1).) To show personal deadly weapon use, the defendant must intentionally display in a menacing manner or strike someone with an instrument capable of inflicting great bodily injury or death. (People v. Wims (1995) 10 Cal.4th 293, 302, disapproved on other grounds in People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326.) A screwdriver can constitute a deadly weapon. (People v. Simons (1996) 42 Cal.App.4th 1100, 1106-1107.)
Weapon use requires something more than merely being armed, and something more than a bare potential for use. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) However, the defendant need not engage in conduct that actually produces harm; it is sufficient if the defendant displays the weapon to aid in the commission of the crime by creating fear of harm or force. (Ibid.)
In cases involving multiple victims, the use enhancement may in some circumstances apply to a victim who was not the direct target of the use and/or may have been unaware of the use. (See, e.g., People v. Fierro (1991) 1 Cal.4th 173, 225-227; People v. Granado (1996) 49 Cal.App.4th 317, 329-330.) In Fierro, a gun use enhancement was upheld for a robbery victim under circumstances where the defendant robbed a woman without display of the gun, and then used the gun to fatally shoot the woman's husband. (Fierro, supra, at p. 225.) Citing the principle that robbery continues until the defendant has reached a place of temporary safety, the Fierro court concluded the gun use enhancement for the robbery of the woman was supported because the jury could reasonably infer the defendant used the gun to murder the husband to facilitate the defendant's escape or prevent his identification. (Id. at pp. 226-227.) Similarly, in Granado the victim of an attempted robbery had fled the scene and was being pursued by the defendant's partner, when the defendant used a gun against a second victim. (Granado, supra, 49 Cal.App.4that pp. 320, 329.) The court upheld a gun use enhancement for both victims, reasoning that even though the first victim may not have been aware of the gun, use of the gun facilitated the partner's continuation of the attempted robbery directed at the first victim. (Id. at pp. 329-330.)
The key inquiry for the weapon use enhancement is whether the defendant used the weapon in some fashion to aid the commission of the offense. (See People v. Fierro, supra, 16 Cal.4th at p. 226; People v. Granado, supra, 49 Cal.App.4th at pp. 325, 330; People v. Masbruch, supra, 13 Cal.4th at p. 1012.) Here, the facts support findings that Aguilar's use of the screwdriver facilitated the robbery of Rodil even though Rodil did not see the weapon while they were in the bedroom. Aguilar displayed the weapon when he entered the bedroom and stood at the foot of the bed, and he again displayed it as he went down the stairs. Based on Caridad's testimony that Aguilar was pointing the screwdriver at her in the bedroom, Aguilar concedes the jury could find his display in the bedroom was menacing. The jury could reasonably infer the display witnessed by Caridad facilitated the robbery of both Caridad and Rodil because it dissuaded Caridad from intervening (or convincing her husband to intervene) to stop the robbery while they were upstairs. (See People v. Granado, supra, 49 Cal.App.4th at p. 330 [defendant uses weapon in commission of crime "when he or she employs the [weapon] to neutralize the victim's companions, bystanders, or other persons who might otherwise interfere with the successful completion of the crime"].)
Further, because Rodil saw the screwdriver as they were going down the stairs and before Aguilar had escaped, Rodil was subjected to the display while the residential robbery was still in progress and while the kidnapping for robbery was occurring. Contrary to Aguilar's contention, the jury could reasonably infer the display while going down the stairs was menacing given that the victims had just suffered a 90-minute ordeal in the bedroom, which included Aguilar's threats to take Rodil with him and to return and harm the family if Caridad called the police. As they were descending the stairs, Aguilar did not need the screwdriver for any tool-related purpose such as entering the residence, and he had already displayed the screwdriver as a weapon to compel cooperation in the bedroom. As stated in People v. Granado, supra, 49 Cal.App.4th at page 325, "[W]hen a defendant deliberately shows a [weapon], or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure."
Finally, the record supports that Aguilar used the screwdriver to facilitate the kidnapping for robbery of Caridad. Caridad's view of the screwdriver during the robbery upstairs supports that she was still operating under the fear of this display during the kidnapping for robbery as they went downstairs. (See People v. Masbruch, supra, 13 Cal.4th at pp. 1006-1011 [jury could reasonably conclude that control and fear created by initial weapon display during theft continued through entire lengthy encounter even though defendant did not display the weapon during ensuing rape; accordingly, use enhancement supported for rape offense].)
II. Instructional Issues
Aguilar argues the trial court committed instructional error by failing to (1) instruct on an intent element of the weapon use enhancements, (2) give a unanimity instruction for the weapon use enhancements, and (3) instruct on misdemeanor false imprisonment.
A. Failure to Instruct on Element of Weapon Use Allegations
Aguilar argues that because a screwdriver is not an inherently dangerous weapon, the personal deadly weapon use enhancement required his specific intent to use the screwdriver as a weapon. He asserts that the standard instruction given to the jury for this enhancement (CALCRIM No. 3145) was deficient because it did not inform the jury of this specific intent requirement.
Aguilar raises this instructional challenge only concerning the Razon offenses. He concedes that the claimed error would be nonprejudicial as to Nguyen based on the clear showing that he had the intent to use the hammer as a weapon against Nguyen.
An object that is not inherently dangerous or deadly is considered a dangerous or deadly weapon if it is capable of being used in a dangerous or deadly manner and the evidence shows the defendant intended to use it in this manner. (People v. Burton (2006) 143 Cal.App.4th 447, 457; see People v. Graham (1969) 71 Cal.2d 303, 328 [noninherently dangerous object can constitute deadly weapon if defendant intended "to use it as a weapon should the circumstances require"].) A defendant may evince the intent to use the object as a dangerous or deadly weapon by engaging in a menacing display of the object. (See People v. Wims, supra, 10 Cal.4th at p. 302.)
Consistent with these principles, the jury was instructed in the language of CALCRIM No. 3145 in relevant part:
"A deadly or dangerous weapon is any object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. In deciding whether or not an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed and where the person who possessed the object was going and whether the object was changed from its standard form and any other evidence that indicates whether the object would be used for a dangerous rather than harmless purpose.
[¶]... [¶]
"Someone personally uses a deadly or dangerous weapon if he or she intentionally does any of the following: displays the weapon in a menacing manner or hits someone with a weapon." (Italics added.)
Aguilar argues that when the object is not inherently dangerous, the weapon use enhancement includes a specific intent requirement because it requires (1) the general intent to use the object, and (2) the specific intent to use it as a weapon. He asserts the instructions erroneously failed to tell the jury that the defendant must have the specific intent to use the object as a weapon. The contention is unavailing.
A general intent crime consists of a particular proscribed act that the defendant must intend to do, whereas a specific intent crime also includes the defendant's intent to do some further act or achieve some additional consequence. (People v. Wardell (2008)162 Cal.App.4th 1484, 1494.) Applying this standard, the weapon use enhancement requires only general intent. The defendant's intent to use the noninherently dangerous object as a deadly weapon may be shown by the defendant's act of displaying the object in a menacing matter, and the defendant need not intend to do any further act or achieve any additional consequence.
Contrary to Aguilar's claim, the defendant need only have the general intent to willfully perform a menacing display with the object to satisfy the requirement that he intended to use the object as a weapon. (See People v. Wardell, supra, 162 Cal.App.4th at pp. 1494-1496.) The jury was properly instructed that the defendant must "intentionally... display[ ] the weapon in a menacing manner, " and no further instruction on intent was required. (CALCRIM No. 3145.)
B. Failure to Give Unanimity Instruction for Weapon Use Enhancements
Aguilar contends the trial court erred in failing to give a unanimity instruction for the weapon use enhancements involving the Razons; i.e., for the burglary, residential robbery, and kidnapping for robbery counts.
A defendant's constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon or the trial court must sua sponte give a unanimity instruction telling the jurors they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agreed the defendant committed. (Ibid.)
Aguilar argues the unanimity instruction should have been given because he displayed the screwdriver both upstairs and while going downstairs. Arguably, some jurors could have premised a weapon use finding on one of the displays but not the other, and jurors could have applied different displays to the various offenses to the extent the offenses were ongoing in nature.
Assuming a unanimity instruction should have been given, the error was not prejudicial even under the stricter harmless beyond a reasonable doubt standard for federal constitutional error. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188 [discussing split of opinion concerning whether failure to give unanimity instruction is of federal constitutional dimension].) Under this standard, the "failure to give a unanimity instruction may be harmless error if we can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense." (People v. Norman (2007) 157 Cal.App.4th 460, 466.)
There was no evidence suggesting that Caridad and Rodil could have been mistaken in their observations of defendant displaying a screwdriver, and their testimony was supported by the police discovery of a screwdriver on the kitchen floor. The menacing character of the screwdriver display on two occasions was shown by the totality of the circumstances, including the initial pointing of the screwdriver upstairs, the lengthy restraint upstairs, threats made both upstairs and while going downstairs, and the absence of an innocent reason for displaying the screwdriver while descending the stairs. On these facts, once a juror was convinced that Aguilar used the screwdriver as a deadly weapon during the various offenses, there would have been no reasonable basis for the juror to find that he used it in this fashion only upstairs but not while going downstairs, or vice versa. We are satisfied beyond a reasonable doubt that all jurors premised their weapon use findings on the same acts; i.e., his display of the weapon on two occasions during the offenses.
C. Failure to Instruct on Lesser Included Offense of Misdemeanor False Imprisonment
Aguilar asserts the trial court had a duty to instruct on misdemeanor false imprisonment as a lesser included offense of felony false imprisonment of Rodil, Caridad, and their daughter (counts 1, 3, and 5).
A trial court has a sua sponte duty to instruct on a lesser included offense when there is evidence from which the jury could conclude that the lesser, but not the greater, offense was committed. (People v. Manriquez (2005)37 Cal.4th 547, 584.) However, there is no duty to instruct " 'when there is no evidence the offense was less than that charged.' " (People v. Moye (2009)47 Cal.4th 537, 548.) To trigger the sua sponte duty to instruct, the evidence in support of the lesser offense must be substantial enough to merit consideration by the jury. (Id. at p.553.) The instruction should not be given when the "defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even [when] construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged." (People v. Stewart (2000) 77 Cal.App.4th 785, 796.) On appeal we independently determine whether a lesser included offense instruction should have been given. (People v. Manriquez, supra, 37 Cal.4th at p. 584.)
False imprisonment is a felony only if it is "effected by violence, menace, fraud, or deceit"; otherwise it is a misdemeanor. (§ 237, subd. (a).) Menace means an express or implied threat of harm conveyed by word or act. (People v. Wardell, supra, 162 Cal.App.4th at p. 1490.) Violence means force greater than that reasonably necessary to effect the restraint. (People v. Castro (2006) 138 Cal.App.4th 137, 140.)
Aguilar asserts the jury should have been instructed on misdemeanor false imprisonment because it could have had a reasonable doubt as to whether he used violence or menace to commit the imprisonment. To support this, he argues a screwdriver is not an inherently dangerous weapon; his pointing of the screwdriver, accompanied by a promise not to hurt the victims, could be construed as merely telling Caridad to be quiet; his statement indicating this was not a game did not necessarily convey a threat; and the threat about returning and harming the family was made not to accomplish the restraint but to prevent a report to the police after he left.
We are not persuaded that the jury could reasonably find the restraint was accomplished without menace. Just before throwing the blanket on the victims, Aguilar displayed a screwdriver. While they were under the blanket for 90 minutes, Aguilar yelled at Rodil to stay underneath because this was not a game, and told Caridad that if she summoned the police after he left with Rodil he would return and harm the family. Thus, the restraint was preceded by a display of an instrument that could be used as a deadly weapon, occurred over a lengthy time period, and involved repeated statements that in context were clearly of a threatening nature. Contrary to Aguilar's contention, when the facts are viewed in their totality no reasonable jury could find that he was not conveying a threat of harm to the victims.
Alternatively, even if the trial court should have instructed on the lesser misdemeanor offense, given the strong evidence of menace there is no reasonable probability the jury would have returned a verdict on the lesser rather than the greater offense. (See People v. Moye, supra, 47 Cal.4th at p. 556 [error in failing to instruct on lesser included offense may be harmless if evidence supporting judgment is relatively strong and evidence supporting different outcome is comparatively weak].)
III. Dual Convictions for First Degree and Second Degree Robbery
Aguilar argues that he cannot properly be convicted of second degree robbery (counts 1 and 3) because this offense is a lesser included offense of first degree residential robbery (counts 7 and 8). We agree.
Generally, under section 954 a defendant may suffer multiple convictions for different offensesarising from the same act or course of conduct. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) However, under a judicially created exception to this general rule permitting multiple convictions, a defendant may not receive multiple convictions based on necessarily included offenses. (Id. at p. 1227.) This exception is based on the rationale that if the greater offense cannot be committed without committing the lesser, conviction of the greater is also conviction of the lesser, and thus to permit conviction of both offenses in effect convicts the defendant twice of the lesser offense. (People v. Medina (2007) 41 Cal.4th 685, 702.)
A lesser offense is necessarily included within a greater offense if the greater offense cannot be committed without also committing the lesser offense. (People v. Reed, supra, 38 Cal.4th at p. 1227.) First degree robbery includes residential and other statutorily specified robberies, and second degree robbery applies to all other robberies. (§ 212.5.) The Attorney General concedes that first and second degree robbery are necessarily included offenses. (See People v. Ortega (1998) 19 Cal.4th 686, 696-697, disapproved on other grounds in People v. Reed, supra, 38 Cal.4th at pp. 1228-1229.) However, the Attorney General argues that the offenses arose from distinct acts or courses of conduct and thus can support multiple convictions. The Attorney General posits that the second degree robbery can be premised on the stealing of the money provided by Rodil from his wallet, and the first degree residential robbery can be premised on the stealing of the other objects from the bedroom.
The Attorney General's contention fails because a robbery against a single victim occurring during an indivisible transaction constitutes a single robbery regardless of the number of items taken. (People v. Ortega, supra, 19 Cal.4th at p. 699; People v. Marquez (2000) 78 Cal.App.4th 1302, 1307-1309.) Multiple robbery convictions based on the taking of multiple items may be sustained only "if each taking is the result of a separate independent impulse or intent." (People v. Packard (1982) 131 Cal.App.3d 622, 626.) Aguilar's demand for money and his decision to take other property occurred in the same bedroom and during one uninterrupted (albeit lengthy) incident. Although there are facts supporting that Aguilar decided to take more objects after he determined the money was not enough and accused the victims of lying to him, the record does not show divisible takings separated by time or location, but rather one continuous taking of property from the bedroom. The mere fact that a defendant decides to take additional items from the same location is not sufficient to show a separate, independent robbery. (See People v. Irvin (1991) 230 Cal.App.3d 180, 186 [fact that one of the takings may have been an " 'afterthought' " does not show multiple theft or robbery offenses].)
Because the second degree robbery convictions for counts 1 and 3 are premised on the same course of conduct as the first degree residential robbery convictions for counts 7 and 8, the second degree robbery convictions on counts 1 and 3 should be stricken. This does not affect the viability of the false imprisonment convictions for these counts.
IV. Failure to Stay Sentences Under Section 654
Aguilar argues that his sentences for some of the counts related to the Razon offenses should have been stayed under section 654. First, he asserts the sentences imposed concurrently on the burglary (count 9) and false imprisonment (counts 1 and 3) counts should have been stayed because they involved the same objective as the residential robbery counts. Second, he contends the sentence imposed concurrently on the attempted carjacking (count 13) should have been stayed because it involved the same objective as the kidnapping for robbery. Third, he argues only one sentence for the weapon use enhancements should have been imposed, and the remaining sentences on the weapon use enhancements should have been stayed.
Section 654, subdivision (a) prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted of two offenses that are part of an indivisible course of conduct, the sentence for one of the offenses must be stayed. (Id. at p. 592.) The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his or her culpability. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.)
Whether a course of criminal conduct is divisible so as to allow multiple punishment under section 654 depends on whether the defendant had a separate objective for each offense. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) "If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once." (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) In contrast, if the defendant " 'entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Kwok, supra, 63 Cal.App.4th at p. 1257; see People v. Britt, supra, 32 Cal.4th at p. 952 [multiple punishment permitted for different, even if simultaneous, objectives].)
When there is a temporal or spatial separation between offenses, giving the defendant time to reflect and renew his or her intent, the defendant's decision to continue a course of criminal conduct supports a finding that the defendant entertained multiple criminal objectives. (People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1257; People v. Surdi (1995) 35 Cal.App.4th 685, 689; People v. Andra (2007) 156 Cal.App.4th 638, 640.) This time-for-reflection principle may apply even when the multiple crimes share the same objective. (People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1257; see People v. Britt, supra, 32 Cal.4th at p. 952 [multiple punishment permitted for consecutive, even if similar, objectives].) Further, an offense may "at some point... become so extreme [that the offense] can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission" of the other offense. (People v. Nguyen (1988) 204 Cal.App.3d 181, 191; People v. Saffle (1992) 4 Cal.App.4th 434, 439-440.)
On appeal we apply the substantial evidence standard to review the court's finding that the defendant had separate objectives. (People v. Andra, supra, 156 Cal.App.4th at p. 640.) We view the evidence in the light most favorable to the court's determination, and presume in support of the court's conclusion the existence of every fact that could reasonably be deduced from the evidence. (Id. at pp. 640-641.)
A. Burglary, False Imprisonment, and Residential Robbery
We agree with Aguilar that the record does not support that he entertained multiple objectives for the burglary and residential robbery. The record shows that he entered the residence with the intent to steal money or other valuables, and that he had the same objective during the robbery. Further, the entry into the residence and the robbery occurred during a continuous, uninterrupted transaction at the same location. Accordingly, sentence on the burglary count should be stayed rather than imposed concurrently. (People v. Perry, supra, 154 Cal.App.4th at p. 1527.)
However, we reach a different conclusion for the false imprisonment convictions. Although the false imprisonment shared the goal of accomplishing the robbery and was used to accomplish the robbery, it became so extreme that the trial court could reasonably conclude it no longer was merely incidental to the robbery. Rodil described the time under the comforter as "agonizing" and that it seemed to last "forever." He testified that his three-year-old daughter wanted to get up, they could not hold her in the bed, and Caridad resorted to playing "house" with her to keep her under the comforter. When Rodil peeked out of the comforter, Aguilar yelled at him and warned him this was not a game, and when their daughter started to get out Aguilar told Caridad to " 'get her down.' "
The trial court could infer that the Razons became increasingly frightened given the prolonged confinement on the bed, and that they particularly agonized about what might happen to their daughter if she got out from under the blanket and was exposed to Aguilar. The record supports that Aguilar entertained a more sinister objective of terrorizing the Razons while he kept them detained in the bedroom for 90 minutes. Thus, the trial court did not err in imposing concurrent sentences on the false imprisonment counts.
B. Attempted Carjacking and Kidnapping for Robbery
Aguilar argues the kidnapping for robbery and attempted carjacking involved the single objective of going in the car to take money from the bank, and thus the attempted carjacking sentence should have been stayed.
The record supports a conclusion that the kidnapping for robbery and the attempted carjacking involved distinct objectives. Aguilar's statement that he was going to throw Rodil in the street after getting money from the ATM can support findings that after completing the purpose of the kidnapping for robbery (i.e., going to the bank and getting money), he intended to inflict physical harm on Rodil and to permanently keep the car for his own purposes. These additional objectives went beyond mere use of the car to go to the bank and acquire money, and involved objectives that increased the threat of physical danger to Rodil and would impose an additional hardship on Rodil from the permanent loss of his car. The trial court was not required to stay the sentence on the attempted carjacking.
C. Weapon Use Enhancements
Weapon use enhancements were found true for the burglary, first degree robbery, and kidnapping for robbery counts.Aguilar argues that under section 654 he should have been sentenced for only one weapon use enhancement for the Razon offenses. He asserts that the record can support only one use of the screwdriver against a single victim (i.e., Caridad). This argument appears to essentially reiterate his challenge to the sufficiency of the evidence concerning the weapon use findings, and does not explain how section 654 applies to any particular enhancement under the single-objective test.
In any event, based on our holding that sentence on the burglary count should be stayed because Aguilar had the same objective of stealing property from the residence during the burglary and the robbery, the weapon use enhancement attached to the burglary count should likewise be stayed. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 709, disapproved on other grounds in People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.) As to the remaining weapon use enhancements for robbery and kidnapping for robbery, Aguilar has not presented any argument explaining why one of them should be stayed under section 654. Indeed, Aguilar does not dispute that the robbery and kidnapping for robbery involved distinct objectives (i.e., intent to steal from the residence, versus intent to engage in the spatially distinct acts of taking the car and going to get money from the ATM). (See People v. Porter (1987) 194 Cal.App.3d 34, 38-39.) Thus, it follows that the weapon use enhancements attached to these offenses likewise reflect these distinct objectives.
Aguilar has not shown section 654 error for the weapon use enhancements apart from the enhancement attached to the burglary conviction.
V. Remand for Correction of Clerical Errors in Minute Order and Abstract of Judgment
We requested and received supplemental briefing from the parties concerning whether the trial court's total intended sentence was ascertainable from the record or whether a remand for clarification was warranted. Neither party requests remand, although they differ in their interpretations of the record. We conclude the sentence is ascertainable, except we remand the matter for correction of several clerical errors in the sentencing minute order and the abstract of judgment.
First, we conclude the court's intended sentence was (1) life with the possibility of parole for count 2 (kidnapping for robbery of Rodil), plus one year for the deadly weapon use enhancement; (2) a determinate term of seven years for count 7 (robbery of Rodil), running concurrently with the count 2 life term; and (3) a consecutive determinate term of one year four months for count 14 (robbery of Nguyen plus enhancement).
This sentence is reflected in the trial court's oral statement at the sentencing hearing and the court's minute orders. At the sentencing hearing, the trial court stated the sentence on count 2 (kidnapping for robbery of Rodil) was life with the possibility of parole (§ 209, subd. (b)(1)), with a one-year sentence for the weapon use enhancement (§ 12022, subd. (b)(1)). Further, the court stated the total determinate term for the remaining counts was eight years four months, calculated as follows. The court selected the first degree robbery of Rodil (count 7) as the principal term, and imposed a six-year sentence for this count, plus one year for the weapon use enhancement. (§§ 212.5, subd. (a), 213, subd. (a)(1)(B), 12022, subd. (b)(1).) The court ordered the remaining determinate sentences for the counts involving the Razons to run concurrently to count 7. For second degree robbery of Nguyen (count 14), the court decided the sentence should run consecutively to count 7, and imposed a one-year sentence (one third the three-year middle term), plus four months (one third the one-year term) for the weapon use enhancement. (§§ 212.5, subd. (c), 213, subd. (a)(2), 12022, subd. (b)(1).)
For count 4 (kidnapping for robbery of Caridad), the court imposed the same sentence of life with the possibility of parole plus one year for the enhancement, and ordered it to run concurrently with count 2.
In its oral statement of the sentence, the trial court specified that the term for the robbery of Nguyen (count 14) was to be consecutive (calculated to be one year four months based on the statutory formula for consecutive sentences). (See People v. Felix (2000) 22 Cal.4th 651, 655.) However, the court did not specify whether the seven-year principal term of the determinate sentence on count 7 (residential robbery of Rodil) and the life term on count 2 (kidnapping for robbery of Rodil) should run consecutively or concurrently to each other. The minute order and the abstract of judgment characterize the sentence on count 7 as concurrent to the count 2 life term. As argued by Aguilar, this is consistent with section 669, which provides that when the court fails to determine whether sentences should run consecutively or concurrently, the sentences shall run concurrently. (See People v. Black (2007) 41 Cal.4th 799, 822; see generally People v. Felix, supra, 22 Cal.4th at p. 655.) Further, we note the record contains an ex parte minute order which corrects a clerical error in the original minute order, and states: "The Abstract of Judgment is correct, therefore no Amended Abstract is necessary." When making this ex parte minute order, the court apparently perceived no error in the characterization of the seven-year sentence on count 7 as concurrent with the count 2 life term. Although the Attorney General asserts the total determinate term is eight years four months (apparently construing the seven-year term on count 7 as consecutive to the life term), it has presented no argument to counter application of section 669 to infer a concurrent sentence for count 7.
The ex parte minute order amends the original minute order to add the concurrent sentence imposed on the false imprisonment conviction for count three, which was mistakenly omitted.
However, we reject Aguilar's contention that the record should be interpreted to also impose the one-year-four-month determinate sentence on count 14 (robbery of Nguyen) concurrently to the indeterminate life term. The trial court stated that this count involved a crime that "was completely distinct from crimes committed at the Razon residence, and that it would be inappropriate to run that term concurrently with the other charges." The court clearly stated its intent that count 14 should be served consecutively to the count 7 principal determinate term. The effectuation of this intent necessarily requires that the count 14 sentence also be consecutive to the life term.
Accordingly, the sentences that Aguilar must serve consecutively are (1) a determinate term of one year four months for count 14, and (2) an indeterminate term of life with the possibility of parole, plus one year for the weapon use enhancement, for count 2.
Second, the record contains several clerical errors in the minute order and abstract of judgment that should be corrected. The minute order states the total determinate sentence that Aguilar must serve consecutively with the life term is one year eight months, whereas, as set forth above, it is actually one year four months. The abstract of judgment includes the same error. Further, the minute order does not include the one-year terms for the weapon use enhancement for counts 2, 4, and 9. The abstract of judgment includes the same error for counts 2 and 4.
The minute order incorrectly calculates the consecutive sentence for the Nguyen second degree robbery as one year four months (instead of one year, based on one third the three-year middle term), and then adds the four months for the enhancement (one third the one-year term).
DISPOSITION
As to the convictions, the judgment is modified to strike the convictions of second degree robbery in counts 1 and 3. As so modified, the judgment is affirmed as to the convictions.
This does not affect affirmance of the false imprisonment convictions for counts 1 and 3.
As to the sentence, the judgment is modified to stay the sentence on the burglary conviction and its accompanying enhancement (count 9). In all other respects, the judgment as to the sentence is affirmed. The case is remanded to the trial court to correct the clerical errors in the minute order and abstract of judgment concerning the weapon use enhancement and the consecutive determinate term.
In totality, the court shall correct the minute order and abstract of judgment by (1) removing the unauthorized second degree robbery convictions (counts 1 and 3); (2) adding the one-year weapon use enhancements for counts 2, 4, and 9; (3) designating the sentence on the burglary conviction and its enhancement (count 9) as stayed; (4) designating the determinate sentence on count 14 as one year for the robbery and four months for the enhancement; and (5) designating the total determinate term as one year four months. Aguilar's total sentence is life with the possibility of parole plus one year for the enhancement, plus a determinate term of one year four months. The court shall send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: McDONALD, J.AARON, J.