Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. FSB033839 of San Bernardino County, Colin J. Bilash, Judge.
NARES, J.
A jury convicted Hector Miguel Aguirre of first degree murder (count 1: Pen. Code, § 187, subd. (a)) and carjacking (count 2: § 215, subd. (a)); and found true, as to both counts, enhancement allegations that he personally used a handgun (§ 12022.53, subd. (b)); personally and intentionally discharged a handgun (§ 12022.53, subd. (c)); and personally and intentionally discharged a handgun causing death to the victim (Hannah Jordan) (§ 12022.53, subd. (d)).
All further statutory references are to the Penal Code.
The court found that the carjacking and murder were "separate and distinct crimes" for purposes of section 654; awarded Aguirre credit for 1, 737 days of presentence custody time served; and sentenced him to an aggregate state prison term of nine years plus 75 years to life, consisting of the aggravated term of nine years for the carjacking (count 2: § 215, subd. (a)), plus a consecutive indeterminate term of 25 years to life for the gun enhancement related to that carjacking count (i.e., personally and intentionally discharging a handgun causing death to the victim in violation of § 12022.53, subd. (d)), plus a consecutive indeterminate term of 25 years to life for the first degree murder (count 1: § 187, subd. (a)), plus a consecutive indeterminate term of 25 years to life for the gun enhancement related to that murder count (i.e., personally and intentionally discharging a handgun causing death to the victim in violation of § 12022.53, subd. (d)).
We note that, although it is not pertinent to the issues raised in this appeal, the court imposed, but stayed under section 654, sentences based on the jury's true findings on the remaining count 1 and count 2 gun enhancement allegations under section 12022.53, subdivisions (b) and (c).
Aguirre appeals, contending (1) the evidence was insufficient to sustain the convictions because the eyewitness identification was inherently improbable; (2) the court committed prejudicial error by instructing the jury on flight to show consciousness of guilt because there was no substantial evidence to support that instruction and identity was the sole critical issue in the case; (3) section 654 requires that the consecutive terms imposed for the count 2 carjacking conviction and the true finding on the associated firearm enhancement be stayed because "the carjacking was part of an indivisible course of conduct with respect to the murder alleged as count [1]"; and (4) he is "entitled to credit for 1, 845 days of actual custody." The People acknowledge that Aguirre is entitled to credit for 1, 845 days of actual presentence custody.
We will order the judgment to be modified to increase to a total of 1, 845 days the award of credit for presentence custody time served. We will affirm the judgment as modified.
FACTUAL BACKGROUND
On December 31, 2001, Aguirre and Ruben Garcia lived in Los Angeles, were friends, and worked together as professional car thieves. Garcia, who testified on behalf of the prosecution, stated that early in the morning on that date he and Aguirre drove separately to San Bernardino to steal a Chrysler 300M. Aguirre went in a stolen Jeep Cherokee, accompanied by a person whom Garcia identified as Rangel Elizar, who drove the Jeep; Garcia drove a Honda. Aguirre had told Garcia the day before that he had a master key to the Chrysler 300M they were going to steal.
Garcia testified that after he followed the Jeep into a parking lot in San Bernardino, he spoke with Aguirre, who indicated they had to wait for the Chrysler 300M. Aguirre did not tell Garcia how he knew that car was going to come to the parking lot. The Chrysler 300M arrived in the parking lot, and the female driver (Hannah Jordan, hereafter the victim), got out of the car and went into a bank. Garcia got out of his car and asked Aguirre for the key to the Chrysler 300M. Aguirre did not give or show him the key and told Garcia to wait.
The victim returned to her car and drove off, and Aguirre, Elizar, and Garcia followed her to a strip mall parking lot. Aguirre and Garcia did not park in that parking lot; they parked behind the building in front of which the victim had parked. Garcia stated that when the victim got out of her car, he got out of his car to ask Aguirre for the key to the Chrysler 300M. Aguirre told him he did not have the key. When Garcia asked him how they were going to take the car, Aguirre said nothing but showed him a gun that was in his waistband.
Garcia testified he told Aguirre he was not going to take the Chrysler 300M that way. Garcia got back in his Honda and drove away. As he was driving away, about 20 yards away from the victim's car, Garcia heard two gunshots. Garcia stated he saw Aguirre pull the victim out of her Chrysler 300M, get in, and drive away. Garcia indicated he felt panic and drove away. Garcia indicated that Elizar, who had stayed in the Jeep during the shooting, thereafter called Garcia and said he did not want to drive the Jeep and he wanted Garcia to pick him up. Within minutes of the shooting, Aguirre also spoke with Garcia during a three-way call with Garcia's girlfriend, Karen Ramos, and asked Garcia to pick him. Garcia indicated that he picked up Elizar and Aguirre, dropped them off at the Metrolink in San Bernardino, and then drove home.
An eyewitness, Henry Ricker, testified that a little after 11 a.m. on December 31, 2001, he was in a donut shop with his friend Jim Kelley. Ricker saw a man hurry across the parking lot to a car parked outside the donut shop. Ricker stated he saw "what looked like... a confrontation between the woman getting in the car and the man who had crossed the parking lot."
The prosecutor asked Ricker whether he saw in the courtroom either the man or the woman he had seen in the parking lot. After looking around the courtroom for about 30 to 45 seconds, Ricker replied, "I don't recognize anyone that I remember that looked like that person."
Ricker resumed testifying about what he saw on December 31, 2001. He stated he saw the man "seemingly trying to over power the woman that was sitting behind the wheel" inside the car. He then saw the man reach for his waistband and pull out a handgun. The man quickly fired two shots in the direction of the woman in the car. Ricker indicated the man then opened the car door, reached in, pulled the woman out, got in the car, backed out, and hurriedly drove away.
Ricker testified that the police "were pretty timely on getting there, " and he gave a description of the suspect when the police questioned him. The police showed Ricker a series of photographs right after the incident and from the six-pack photographic lineups he was able to identify the person who shot the woman. At trial, Ricker described the shooter as a Hispanic male with short hair who was "a little overweight" and about five feet nine or ten inches tall.
Another eyewitness, Ricker's friend Kelley, who was with Ricker inside the donut shop at the time of the shooting, testified he also saw a man run across the parking lot outside the donut shop and struggle over the car door with the woman in the car. The man was trying to open the door. Kelley heard two gunshots, and it appeared the man shot the woman through the glass window of her car. Kelley saw the gun. The man then reached in the car, opened the door, grabbed the unconscious woman underneath her arms, and pulled her out and onto the ground. Kelley described the shooter as a stocky Hispanic male who was shorter than Kelley, who is six feet tall.
Dr. Steven Trenkle, a board-certified pathologist who works in the coroner's office in San Bernardino, testified that the first bullet went through the victim's left arm and into her left breast and "did not... strike any significant organs." He also opined the second bullet caused the fatal wound. That bullet entered the left upper chest, entered the left subclavius artery that supplied blood to her left arm, and also entered the lungs.
Kenneth Jordan, the victim's husband, testified that the police told him his wife was murdered at about 11:15 a.m. on the day of the shooting. He noticed from his wife's cell phone bill that four phone calls were made from her cell phone after her death. The phone bill showed that one of the calls was made at 11:29 a.m. that morning to a number in Northridge and lasted about three minutes.
Garcia's girlfriend, Ramos, testified that on December 31, 2001, she lived in an apartment in Canoga Park with Garcia; Garcia's mother; his brother, Juan; and Veronica Reyes. Ramos stated she had a house phone, but did not have a cell phone, at that time.
The prosecutor asked Ramos whether she remembered the number of her house phone, and she replied she did not remember the number. The prosecutor then asked her, "If I told you [the number], would that refresh your memory?" Ramos answered, "No, I don't remember the number." The prosecutor then asked Ramos to look at a phone bill, which the court admitted into evidence, that was in her name and showed both her address and the phone number above her name. Ramos stated, "I don't know. I guess that is my number."
Ramos testified that Aguirre was one of Garcia's friends who had been to the Canoga Park apartment that she and Garcia shared. She knew his first name was Hector, but in December 2001 she knew him by his nickname, "Bonbon, " and she had seen him "often" at the apartment.
The prosecutor asked Ramos, "Do you see [Aguirre] in the courtroom?" Ramos replied, "No." When the prosecutor asked her whether she saw "Bonbon" in the courtroom, Ramos looked around the courtroom for about 30 seconds and replied, "I see him now." The court stated the record would reflect that Ramos had identified Aguirre.
Ramos then testified she received a phone call at her apartment from Bonbon (i.e., Aguirre) after 11 a.m. on December 31, 2001. She recognized his voice because she had seen and heard him before. Aguirre told her he needed to speak to Garcia. Ramos made the call a three-way call that included Garcia, who was using Reyes's cell phone. Ramos testified that when the police spoke to her in March 2002, she told them that during that phone conversation she heard Aguirre give Garcia directions to pick him up at a 7-Eleven store. Ramos stated she could not remember telling the police she heard Aguirre say something about San Bernardino.
Aguirre's sister, Natalie Okada, testified that in December 2001 she lived with Aguirre and their parents in their parents' home in Los Angeles. She indicated that Aguirre's appearance had changed since that time. She also stated Aguirre was wearing glasses in the courtroom, but in December 2001 he only wore glasses when he was reading. She noted his hair "might be a little longer right now."
Kenneth Brander, a sergeant with the San Bernardino Police Department who was the case agent assigned to this case, testified that he showed Ricker a six-pack photographic lineup between February and March of 2002, about two or three months after the shooting incident, after giving him a photographic lineup admonishment. Sergeant Brander stated Ricker identified the person shown in photograph No. 1 as the shooter. At trial, Sergeant Brander identified Aguirre as the person shown in photograph No. 1 of that photographic lineup.
B. The Defense
Aguirre did not testify.
Robert Shomer, a witness identification expert, testified for the defense about the problems inherent in witness identifications, particularly when they are cross-racial identifications.
Sergeant Brander testified for the defense that he obtained information from eight or nine witnesses that was put on an all-points bulletin. One person described the killer as possibly having tattoos on the right arm and head. Sergeant Brander stated he had no information that Aguirre had any tattoos. During an interview, Garcia spoke to Sergeant Brander about a man named "Chino." Sergeant Brander testified it was "possible" that Chino had tattoos, but he (Sergeant Brander) did not know whether Garcia was using Chino as a made-up name for Aguirre. Sergeant Brander also testified he "was never able to establish who Chino was."
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
Aguirre first contends the evidence is insufficient to sustain the convictions because the eyewitness identification was inherently improbable. We reject this contention.
A. Standard of Review
When assessing a challenge to the sufficiency of the evidence, we must view the evidence most favorably to the judgment below and determine whether any rational trier of fact could have found the elements proven beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319.) Stated differently, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)
"The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.)
We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
B. Analysis
Substantial evidence supports the murder and carjacking convictions, as well as the jury's true findings on the gun enhancement allegations. Ricker, who witnessed the shooting late in the morning on December 31, 2001, from inside the donut shop in front of which the shooting occurred in the parking lot, testified that he identified Aguirre as the shooter from a photographic lineup. Sergeant Brander, who showed Ricker the photographic lineup in February or March of 2002, two or three months after the shooting, identified Aguirre in court as the person depicted in the photograph that Ricker had selected from that photographic lineup.
Aguirre's accomplice, Garcia, who testified for both the prosecution and the defense, gave detailed testimony about the events that led to the shooting and carjacking and corroborated Ricker's identification of Aguirre as the shooter.
The victim's cell phone records and the testimony of the victim's husband; Garcia's girlfriend, Ramos; and Garcia also circumstantially corroborated Ricker's eyewitness identification of Aguirre as the carjacker and shooter. Specifically, the testimony of the victim's husband showed that his wife's cell phone bill indicated that someone used her cell phone about 15 minutes after the shooting, at 11:29 a.m., to make a three-minute call to Northridge.
Ramos's testimony established that number was the same as that of her house phone in Canoga Park where she lived with Garcia and others; that Aguirre called her at that phone number sometime after 11 a.m. on the day of the shooting; and that he told her he needed to speak with Garcia. Ramos testified she made the call a three-way call that included Garcia, who was in the apartment with her and had a cell phone, and she heard Aguirre give directions to Garcia to pick him up at a 7-Eleven store.
Garcia's testimony corroborated that of Ramos. He indicated that while he was driving the Honda after the shooting and still in San Bernardino, Ramos called him on the cell phone he was carrying. He stated that Ramos told him she was doing a three-way for Hector (i.e., Aguirre), who was on the other line. Garcia also testified that he then spoke with Aguirre, who said in a threatening manner he (Garcia) should turn around and pick him up at a 7-Eleven. Garcia drove to the store, and Aguirre got into the Honda. Garcia stated he asked Aguirre why he did it, and Aguirre told him not to worry about it. When Garcia told Aguirre he did not want him in the car, Aguirre gave him $10,000 in cash and told him to drive off and keep quiet. Garcia stated he dropped Aguirre off at the Metrolink in San Bernardino.
From the foregoing substantial direct and circumstantial evidence, any reasonable trier of fact could find beyond a reasonable doubt that Aguirre murdered the victim using a handgun, stole her car in the carjacking, and used the victim's cell phone shortly after the shooting to call his accomplice, Garcia, and ask him to pick him up at a convenience store in San Bernardino.
Aguirre claims, however, that Ricker's 2002 eyewitness identification of Aguirre was "inherently improbable" and thus "cannot be considered reasonable, credible evidence." In support of this claim, Aguirre points out that Ricker, during his testimony at a videotaped conditional witness examination in September 2006, described the murderer as "probably" 30 to 35 years old. Aguirre asserts this 2006 description, and statements by "other" unnamed witnesses, "likely" led to a police bulletin that described the killer as someone 25 to 35 years of age. Aguirre also points out that the police bulletin stated the suspect "possibly" had tattoos on the right arm and head, but (he asserts) "[he] did not have tattoos." Furthermore, Aguirre relies on the fact that Ricker was unable at trial to recognize Aguirre as the shooter, and Garcia's accomplice testimony was "unbelievable and self-serving" because Garcia was an admitted car thief and liar.
Aguirre's attack on Ricker's credibility and his 2002 identification of Aguirre as the shooter is unavailing for several reasons. First, although the record shows that Aguirre was 19 years of age at the time of the shooting in December 2001, and Ricker did state in 2006 that the shooter was "probably" 30 to 35 years old, Ricker's 2002 identification of Aguirre as the shooter was amply corroborated at trial by (1) the detailed and credible testimony of Aguirre's accomplice, Garcia; (2) the victim's cell phone records and her husband's testimony regarding the call made shortly after she was shot; and (3) the testimony of Garcia's girlfriend which established that Aguirre called her after 11 a.m. on the day of the murder, asked to speak with Garcia, and then gave Garcia directions to a convenience store where Garcia could pick Aguirre up.
Second, the fact that Ricker was unable at trial─in August 2008, more than seven years after the December 2001 shooting─to recognize Aguirre as the shooter, does not render Ricker's corroborated 2002 identification of Aguirre "inherently improbable, " as Aguirre maintains. Ricker's 2006 statement about the shooter's age was but one factor the jury considered in determining Ricker's credibility as a witness and the reliability of his 2002 photographic lineup identification of Aguirre.
Third, while the record supports Aguirre's assertion that Garcia is an admitted car thief and liar, his credibility as a witness for the prosecution was a matter to be determined solely by the jury. As discussed, ante, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Jones, supra, 51 Cal.3d at p. 314.) In any event, certain details of Garcia's testimony about the incident were corroborated by other eyewitnesses, indicating his accomplice testimony cannot be dismissed as inherently improbable. For example, Garcia testified that after the victim parked her car in the strip mall parking lot, he asked Aguirre for the key to her car that Aguirre had previously said he possessed. Garcia also testified that when Aguirre told him he did not have the key, and Garcia asked him how they were going to take the car, Aguirre showed him a gun that was in his waistband under his sweater. Garcia's testimony about the gun in Aguirre's waistband was corroborated at trial by Ricker, who testified he saw the shooter reach for his waistband and pull out a handgun. Garcia also testified he heard two shots and saw Aguirre pull the victim out of her car. Ricker and another eyewitness, Kelley, also testified that the shooter fired two shots at the victim and then pulled her out of her car. The autopsy evidence showed the victim suffered two gunshot wounds.
For all of the foregoing reasons, we conclude that substantial evidence supports Aguirre's convictions and the jury's true findings on the gun enhancement allegations, and his insufficiency of the evidence claim is without merit.
II. FLIGHT INSTRUCTION
Aguirre also contends the court committed prejudicial error by instructing the jury on flight to show consciousness of guilt, because (1) there was no substantial evidence to support that instruction, and (2) identity was the sole critical issue in the case. We reject this contention.
A. Background
1. Trial testimony
The parties stipulated that Aguirre was extradited from Mexico in or about June 2006.
Aguirre's sister, Okada, testified that when the police spoke with her in March 2002, she told them she had not seen Aguirre for "[m]aybe a few months." The prosecutor asked her, "Did you know that your brother went to Mexico sometime after December 2001?" She replied, "No, " but acknowledged she became aware of that fact when the police informed her he was in Mexico.
His sister also stated she did not talk with Aguirre between March 2002 and July 2006, and during that time period she was not aware he was in Mexico. She denied being aware that her family sent money to Aguirre in Mexico. She also stated she did not know why her brother went to Mexico in 2002.
2. Flight instruction
While discussing the jury instructions, defense counsel questioned whether a jury instruction on flight under CALCRIM No. 372 was warranted by the evidence. The court responded, "Yes, " and the prosecutor argued that "[Aguirre] went to Mexico."
The court then found it had a sua sponte obligation to give the flight instruction because Aguirre "fled to Mexico" after the crime. When defense counsel began to comment on the meaning of the word "fled, " the court interjected:
"I am saying that for the purposes of the record. What you may argue is a different story. It's flight. I am using past tense, fled. [¶] Let me say that the allegation that he fled to Mexico shortly, if not right after the crime or shortly thereafter is being relied on by the prosecution as evidence of his consciousness of guilt. The fact that he had to be ex[tradited] from Mexico is how they acquired his presence in this courtroom. [¶] Weight... is for you gentlemen to argue." (Italics added.)
Defense counsel made no further objection and responded, "Right."
The court eventually instructed the jury on flight with a modified version of CALCRIM No. 372 as follows:
"If the defendant fled immediately after the crime was committed, that conduct may show he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
B. Applicable Legal Principles
Section 1127c, which governs both the giving of a jury instruction on flight and the jury's use of evidence of flight, provides:
"In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
Section 1127c thus "requires a trial court in any criminal proceeding to instruct as to flight where evidence of flight is relied upon as tending to show guilt." (People v. Carter (2005) 36 Cal.4th 1114, 1182 (Carter).)
" 'An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.' " (People v. Visciotti (1992) 2 Cal.4th 1, 60, quoting People v. Crandell (1988) 46 Cal.3d 833, 869.)
C. Analysis
In support of his contention that the court committed prejudicial error by instructing the jury on flight to show consciousness of guilt, Aguirre asserts "[t]here was no evidence that [he] was accused of a crime, that he left immediately [after the crime, ] and that his purpose for leaving was to avoid being observed or arrested." He also asserts "[t]here was no evidence... that [he] went to Mexico, as opposed to any other place, in 2002" or that he left the country immediately after the crime. These assertions are unavailing.
Substantial evidence shows that Aguirre quickly left the scene of the crime in San Bernardino, leaving behind the Chrysler 300M he stole from the victim after he shot her and pulled her out of her car. Lee Chennault, then a police officer with the San Bernardino Police Department, testified he found the Chrysler 300M at around 12:45 p.m. on December 31, 2001, a little over an hour after the shooting. Chennault indicated he located the car about one and one-half miles from the donut shop where the victim was shot. As discussed, ante, the victim's cell phone records and the testimony of her husband, Garcia, as well as that of Garcia's girlfriend, established that Aguirre used the victim's cell phone a few minutes after the shooting to call Garcia to give him directions to the convenience store in San Bernardino where Garcia picked him up shortly after the shooting.
Substantial evidence also shows that within days, Aguirre left his family's home where he was living, and so swift was his flight that his sister (Okada) did not know where he went until the police told her in March 2002 that he was in Mexico. Okada told the police at that time that she had not seen Aguirre for "[m]aybe a few months."
The foregoing evidence supports a reasonable inference that Aguirre quickly fled not only the scene of the crime in San Bernardino, abandoning the Chrysler 300M he had stolen after mortally wounding the victim, but also home, for the purpose of avoiding detection and arrest. We conclude the evidence was sufficient to support the giving of the flight instruction.
We reject Aguirre's contention that the court's giving of the flight instruction was erroneous because the identity of the perpetrator was the sole critical issue in this case. In People v. Mason (1991) 52 Cal.3d 909, 942, the defendant claimed the trial court erred by instructing the jury on flight. Citing People v. Anjell (1979) 100 Cal.App.3d 189, the defendant contended that such an instruction is erroneous whenever " 'identity is a contested issue.' " (Mason, supra, at pp. 942-943.) The California Supreme Court squarely rejected that contention, noting that the Anjell court had since retreated from the "overly broad dictum" on which the Mason defendant relied. (Mason at p. 943.) Citing section 1127c (discussed, ante), the Supreme Court explained that, "[i]f there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt, ' then it is proper to instruct on flight." (Mason at p. 943.) The high court also stated, " 'The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury's need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.' " (Ibid., quoting People v. London (1988) 206 Cal.App.3d 896, italics added.)
For all of the foregoing reasons, we conclude the court did not err in giving the flight instruction. Even if we were to conclude the court erred in giving the flight instruction, any error was harmless under the applicable Watson harmless error standard because on the facts of this case it is not reasonably probable a result more favorable to Aguirre would have been reached absent such error. (See People v. Silva (1988) 45 Cal.3d 604, 628.) The evidence linking Aguirre to the murder was overwhelming; an eyewitness placed him at the scene as both the carjacker and the murderer; his accomplice testified that Aguirre was the assailant; and phone records corroborated the eyewitness testimony that he carjacked and killed the victim. (2RT 271:11-272:6, 280:14-28)!
People v. Watson (1956) 46 Cal.2d 818, 836.
III. SECTION 654
Aguirre next contends that both the nine-year term imposed for the count 2 carjacking conviction and the consecutive 25-year-to-life firearm enhancement related to the carjacking offense (i.e., personally and intentionally discharging a handgun causing death in violation of § 12022.53, subd. (d)) must be stayed under section 654 because "the carjacking was part of an indivisible course of conduct with respect to the murder alleged as count [1]." (Italics added.) We reject this contention.
A. Applicable Legal Principles
Section 654, subdivision (a) provides in part: "An act or omission that is 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 in no case shall the act or omission be punished under more than one provision."
Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591), and ensures that the defendant's punishment will be commensurate with his or her criminal culpability. (People v. Kramer (2002) 29 Cal.4th 720, 723.) If a defendant suffers two convictions and punishment for one is barred by section 654, "that section requires the sentence for one conviction be imposed, and the other imposed and then stayed." (Deloza, supra, 18 Cal.4th at pp. 591-592.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-639.) If there were multiple objectives, punishment may be imposed for each crime even if the objectives were furthered by " 'common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Vidaurri (1980) 103 Cal.App.3d 450, 465.) If the evidence discloses the defendant's acts were independent and divisible, then "he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted.)
Generally, the trial court has broad discretion in determining the factual issue of whether a defendant has multiple objectives for purposes of section 654, and on appeal we will uphold the court's express or implied finding that a defendant held multiple criminal objectives if it is supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
B. Analysis
We conclude that substantial evidence supports the court's finding at sentencing that the carjacking and the first degree murder were "separate and distinct crimes" for purposes of section 654. "[A]t some point the means to achieve an objective may become so extreme they 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 original crime." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) "It is one thing to commit a criminal act in order to accomplish another; [] section 654 applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense. (Nguyen, supra, at p. 191.) Also, in determining whether section 654 bars punishment for the carjacking conviction and related gun enhancement, we must not lose sight of the purpose of section 654, which is to insure that a defendant's punishment will be commensurate with his culpability. (People v. Kramer, supra, 29 Cal.4th at p. 723.)
Here, the testimony of two eyewitnesses, Ricker and Kelley, showed that Aguirre and the victim, who was in the driver's seat of her car, struggled over the car door as Aguirre tried to get her out of the car. Kelley's testimony and the expert autopsy evidence established that when Aguirre was unable to pull the victim out of her car, he pulled the handgun out of his waistband and shot her in the left arm through the driver-side window. The autopsy evidence established that this first shot inflicted a nonfatal wound.
We conclude that Aguirre's criminal act of wounding the victim with the first bullet was arguably incidental to his original carjacking objective of removing the victim by force from her car so that he could steal it. The victim was incapacitated as a result of the nonfatal gunshot wound, and he could have opened the car door and pulled her out.
However, the undisputed evidence shows that Aguirre then fired a second shot at the victim, hitting her in the chest. This second bullet caused a fatal wound. This brutal, gratuitous act of violence far exceeded any criminal act that was reasonably necessary to accomplish Aguirre's original carjacking objective. For purposes of section 654, Aguirre's gratuitious act of murdering the victim must be considered a criminal act through which he intended to accomplish some other objective. (See People v. Nguyen, supra, 204 Cal.App.3d at p. 191.) Accordingly, we conclude the court did not err in refusing to stay under section 654 the sentences it imposed for the carjacking conviction and the related gun enhancement.
IV. PRESENTENCE CUSTODY CREDITS
Last, Aguirre asserts he is "entitled to credit for 1, 845 days of actual custody." The record shows, and the People acknowledge, that Aguirre is entitled to credit for 1, 845 days of actual presentence custody. The People point out that Aguirre was arrested and taken into custody in Mexico on January 19, 2004; his custody was transferred to San Bernardino on July 7, 2006; and the court sentenced him on February 5, 2009. In a footnote at page 14 of the respondent's brief, the People properly explain the presentence custody calculation as follows: "365 days x 5 years (January 20, 2004 through January 19, 2009) + 1 [day] for the first day of custody (January 19, 2004) + 2 [days] for the two additional days in two leap years (2004 and 2008) + 17 [days] for the [period from] January 20, 2009 through February 5, 2009."
Accordingly, we conclude the judgment must be modified to increase to a total of 1, 845 days the award of credit for presentence custody time served.
DISPOSITION
The judgment is modified to increase to a total of 1, 845 days the award of credit for presentence custody time served. The trial court is directed to amend the abstract of judgment to reflect the increase in presentence custody credits and to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
I CONCUR: BENKE, Acting P. J.
McDonald, J., concurring and dissenting.
In my opinion the execution of sentence on count 2 (carjacking, Pen. Code, § 215, subd. (a)) and its appended enhancements for personal use of a firearm (§ 12022.53, subds. (c) & (d)) should be stayed under section 654. In all other respects I concur in the majority opinion.
All statutory references are to the Penal Code.
No one disputes the articulation of the application of section 654 set forth in the majority opinion: "Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. [Citation.] If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed." (Maj. opn., p. 20.) The majority opinion concludes that in this matter the crimes of carjacking and murder were separate and distinct crimes not incident to one objective. The record does not support this conclusion.
The factual recitation of the incident in this matter set forth in the majority opinion accurately reflects the appellate record. Aguirre, and others, part of a car theft enterprise, set out to steal an identified make of car. The identified car was followed to a shopping center parking lot, where the female occupant parked it and went into a store. When she returned to the car, Aguirre accosted her and attempted to forcefully obtain control of the car. She resisted and was able to get into the car. At this point, to accomplish the theft, Aguirre pulled out a handgun and fired two shots in rapid succession through the car window to disable the occupant. A pathologist testified one shot was lethal, the other not. Aguirre then pulled the disabled victim from the car, got in it and drove away.
The pathologist speculated the first shot only wounded the victim and the second shot killed her. Based on this speculation, the majority opinion concludes that "Aguirre's criminal act of wounding the victim with the first bullet was arguably incidental to his original carjacking objective of removing the victim by force from her car so that he could steal it. The victim was incapacitated as a result of the nonfatal gunshot wound, and he could have opened the car door and pulled her out. [¶] However, ... Aguirre then fired a second shot at the victim, hitting her in the chest. This second bullet caused a fatal wound. This brutal, gratuitous act of violence far exceeded any criminal act that was reasonably necessary to accomplish Aguirre's original carjacking objective." (Maj. opn., pp. 21-22.) The majority opinion then speculates that murdering the victim was a criminal act intended to accomplish an objective other than the carjacking and section 654 does therefore not apply. (Id. at p. 22.)
The majority opinion's section 654 analysis is premised on two assumptions: that the first shot only wounded the victim and the second shot killed her; and that Aguirre was aware the first shot wounded and disabled the victim and the second shot was therefore unnecessary to complete the carjacking and was fired with the entirely different objective of killing her. The first assumption is plausible, based on the pathologist's testimony. However, even if correct, there is no evidence Aguirre could have been aware of the effect of either shot until both had been fired. The two shots were fired in rapid succession into a car through the closed window. There is no way that Aguirre could have known the result of the first shot was to disable the victim and then form a new intent to kill her with a second shot as an objective other than to accomplish a carjacking by force.
In my opinion the evidence establishes that both shots were fired with the single objective of committing a carjacking and therefore section 654 prohibits execution of sentence for the lesser carjacking offense.
McDONALD, J.