Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA057750. Sanjay T. Kumar, Judge.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Travis Carter (appellant) of four counts of false imprisonment by violence (Pen. Code, § 236) (counts 1-4); four counts of making criminal threats (§ 422) (counts 6-9); four counts of kidnapping for ransom (§ 209) (counts 10, 11, 14, 15); two counts of kidnapping (§ 207, subd. (a)) (counts 12, 13); and two counts of assault with a firearm (§ 245, subd. (a)) (counts 16, 17). The jury found that appellant personally used a firearm in counts 12, 13, and 17 (§ 12022.5, subd. (a)); that he was armed with a firearm in count 16 (§ 12022, subd. (a)(1)); and that a principal was armed in counts 1 through 4 and 10 through 17 (§ 12022, subd. (a)(1)).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to four consecutive life terms with the possibility of parole and 21 years. The sentence consisted of life terms for each of the kidnapping for ransom counts (§ 209, subd. (a)) (counts 10, 11, 14, and 15); one year for each of the “principal armed” allegations in counts 10, 11, 14, and 15 (§ 12022, subd. (a)(1)), eight months for each of the four false imprisonment by violence counts (§ 236) (counts 1 through 4); eight months for each of the four criminal threat counts (§ 422) (counts 6 through 9); four months for each of the principal armed allegations in counts 1 through 4 (§ 12022, subd. (a)(1)); four years for the assault with a firearm (§ 245, subd. (a)(2)) (count 16); one year (one-third the midterm) for the assault with a firearm in count 17; four years for the personal firearm-use enhancement (§ 12022.5, subd. (a)) in count 16; and one year four months (one-third the midterm) for the personal firearm-use enhancement (§ 12022.5, subd. (a)) in count 17.
Appellant appeals on the grounds that: (1) the evidence was insufficient to support the kidnapping for ransom convictions in counts 14 and 15; (2) the false imprisonment by violence convictions in counts 1 and 2 should be vacated because false imprisonment by violence is a lesser included offense of the kidnapping for ransom of the same victims as charged in counts 10 and 11; (3) the trial court violated section 654 by imposing consecutive sentences for false imprisonment by violence and criminal threats; (4) the sentence imposed for the personal use of a firearm in count 16 must be stricken, since the jury found no such allegation true; and (5) the abstract of judgment must be corrected to reflect the correct custody credits. We affirm.
FACTS
Prosecution Evidence
On Saturday evening, November 11, 2006, Jonathan Ruzicka (Ruzicka), Daniel Slane (Slane), Alan Rex (Rex), and Courtney Jenkins (Jenkins) went to the Good Nite Inn in Sylmar to buy cocaine from appellant. Ruzicka had purchased cocaine from appellant before. Ruzicka and Slane went to appellant’s motel room, and Ruzicka bought the cocaine. All four young people drove off in the direction of San Bernardino.
Appellant called Ruzicka’s cell phone twice and told him to return to the motel. When Ruzicka and his friends drove into the motel parking lot, their car was surrounded by approximately 15 people. Appellant told “a couple of guys” to pat down Ruzicka and his friends, and they did so. They also searched the car and pulled everything out of it. Appellant said that some money was missing and that no one could leave until he got his money. Appellant told everyone to go back to the motel room, and they complied.
Appellant told everyone in the motel room that he wanted his money back. Before leaving to go to a party, he said that no one was going to leave the room until he returned and that someone had better confess by that time. Appellant told Gerard Weeshoff (Weeshoff), Casey Neith (Neith), and Daniel Robinson (Robinson) to watch over the people in the room. Neither Ruzicka, Slane, Rex, nor Jenkins felt free to go because appellant’s crew stayed in the room and told everyone that they could not leave.
Ruzicka tried to telephone a friend, and Weeshoff took his phone away. Weeshoff also took Slane’s phone. When Jenkins asked to go to the car, Neith told her she could not. Jenkins took some cocaine when Neith offered it to her. People in the room began to accuse Ruzicka, Slane, Rex, and Jenkins of taking appellant’s money. The people were becoming riled, and a taser and hammer were waved around. Ruzicka, Slane, Rex, and Jenkins felt intimated.
Appellant returned at approximately 5:00 or 6:00 the next morning with Leia Thompkins (Thompkins), his ex-girlfriend. Appellant decided that Ruzicka, Slane, Rex, and Jenkins had taken his money, and he kicked out everyone but those four people and his crew. Ruzicka, Slane, Rex, and Jenkins were forced to sit in the open closet area of the room. Three White men arrived and yelled at Ruzicka and Slane, telling them to return appellant’s money. They struck Ruzicka and Slane. The three men left and did not return.
A man named Matt arrived. Appellant told Matt what was going on, and Matt said he had an idea. Matt and appellant spoke outside the room for a time. When they returned, everyone left except the four victims, appellant, Weeshoff, Neith, Robinson, Carpenter and Thompkins. Then a Hispanic man and two African-American men arrived and said they were members of the Mexican Mafia. At gunpoint, the Hispanic man ordered the four victims at gunpoint to strip naked. The four victims complied. With gun pointed, the Hispanic man questioned the victims about the money while one of his companions swung a hammer around. He threatened to crush Ruzicka’s toes with it. The Hispanic man threatened Slane. He then struck Slane in the head with his gun and Slane began bleeding.
The Hispanic man then began playing Russian roulette with the victims. He put one bullet in his gun with Slane’s initials on it and pulled the trigger while the gun was pointed at Slane’s head. He did the same with the other three victims. Ruzicka, Slane, Rex, and Jenkins were crying and pleading, saying that they did not take the money. The Hispanic man told the victims that they had to get the money, and that their ransom was $20,000. The amount of $10,000 was to pay back appellant and $10,000 was to “pay for [their] own death[s].” He said he had a warehouse where he could torture them. Appellant went outside with the Hispanic man and his two companions but returned alone.
When appellant came back inside, he allowed the victims to dress. He said he wanted the victims to get money from their parents. He was going to take the names and addresses of their family members and friends to use as insurance. Appellant made Ruzicka, Slane, Rex, and Jenkins write down these names. Ruzicka and Jenkins were to ask for $10,000 from their parents, and Slane and Rex would be used as leverage. Appellant promised to release them when he had the money.
Slane recalled that Weeshoff and Robinson struck him often and placed him in a chokehold. Robinson put his hands on Ruzicka’s throat at one point. Some people shot an air soft gun at Ruzicka and Slane. At one point on Sunday night, Ruzicka, Slane, and Rex had their hands tied behind their backs. All four victims were then put in the closet. Jenkins asked for food, since she and her companions had not eaten, and Shane was beginning to shake from hypoglycemia. Someone purchased cheeseburgers for them, and Jenkins was obliged to feed some of her companions. The four victims slept on and off while people came to buy drugs. One person who came was Ryan Stockton (Stockton), who swung a police baton around and remarked that it would be easy to break a bone with it.
On Monday morning, appellant told Ruzicka and Jenkins that they would be driven in Slane’s car to their parents’ homes to get $10,000 while he held Slane and Rex. Appellant said all four victims would be released when Jenkins and Ruzicka brought the money back. Andrew Entrekin (Entrekin), who had arrived Sunday night, volunteered to drive Ruzicka and Jenkins. Appellant told Carpenter to accompany them. Appellant said he would take Slane and Rex out to the desert and execute them if anything went wrong. Jenkins’s phone was given to Entrekin.
Entrekin and appellant were tried together.
Ruzicka and Jenkins telephoned their respective parents while riding in Slane’s car. Ruzicka asked his mother, Deborah Torres (Torres), for $10,000. Torres contacted the police. The police came to Torres’s apartment and stayed with her while Ruzicka continued to call her about the ransom exchange. Ruzicka told Torres to meet him in the Wal-Mart parking lot in Lake Elsinore. At the direction of police, Torres kept stalling. Jenkins told her mother that she needed approximately $5,000, or she and her parents would be killed. She asked for the amount that Ruzicka’s mother was unable to obtain. Jenkins’s mother, Merilou Jenkins (Merilou), called the police and reported the ransom demand. Riverside County Sheriff’s Investigator George Luna began monitoring the phone calls Merilou received from Jenkins. Merilou arranged to meet and hand over the money at an outlet center after 8:00 p.m. Entrekin drove the car to the Wal-Mart parking lot where they all waited approximately two hours for Ruzicka’s mother. When she finally arrived, Ruzicka told his mother by phone to go to the Kragen auto parts store where she would give the money to Jenkins.
In the store, a hysterical Jenkins asked Torres if she had the money. Torres demanded to see her son first. Jenkins said she had to have the money or they would be killed. Torres received a phone call from a detective telling her to leave the store. Jenkins followed her, begging for the money. Entrekin, who was on the telephone with appellant, ran out yelling, “They fucked up.” Entrekin ran towards the car followed by Jenkins. As Entrekin reached the car, he and everyone else were arrested.
At approximately 7:00 p.m., appellant told Slane and Rex, who were still in the closet, that “They fucked up.” A panic began in the room, and Rex and Slane were told to stand up and put their hands behind their backs. Rex was taken to a Jeep Cherokee. Robinson, Weeshoff, and two others entered the Jeep. Slane was taken to appellant’s Toyota Avalon, which appellant drove. Neith and Thompkins got into a third car.
Appellant led the other two cars on a drive during which the car with Neith and Thompkins became separated from the others. While Rex rode in the Jeep, the other three men played with a gun that was loaded. Appellant led them into the desert until his car became stuck. They all worked to free appellant’s car. Then Slane and Rex were made to stand with their backs to the hood of the Jeep. The others began asking them for the money repeatedly, saying that they did not want to kill them. Rex and Slane begged for their lives and said they did not take the money. Robinson pointed the guns to the victims’ foreheads and Weeshoff hit Rex in the eye. Appellant also pointed the gun to their heads. He said, “We don’t want to have to kill you, but we will.”
Finally, appellant had a conversation with his companions. He then turned to Rex and Slane and told them he could not kill innocent people. Weeshoff and appellant got into appellant’s Avalon, and Robinson and Stockton drove Rex and Slane in the Jeep. Both cars drove to downtown Los Angeles where they parked in an alley. After a conference, it was decided that Rex and Slane would be dropped off at a bus station. At approximately 3:30 a.m. on Monday morning, Rex and Slane were left at Union Station and handed $30 for bus tickets. Rex contacted his mother, who picked them up and drove them to Lake Elsinore. Rex and Slane went to the police station later that day.
Jenkins identified photographs of appellant from his MySpace page and from a photographic lineup. Rex and Slane also identified photographs of appellant. All three also identified Entrekin, Weeshoff, Stockton, Neith, Robinson, Carpenter, and Thomkins. Neith and Thompkins were arrested in November 2006. Weeshoff and Stockton were arrested in January 2007. Robinson and appellant were arrested in February 2007.
Defense Evidence
Appellant testified that he began selling drugs in May or June 2005. He was using drugs when he arrived at the motel. He had arranged to sell cocaine to Ruzicka or Slane. When the two men arrived, there were about 15 to 20 people in the room, and the people were all high on cocaine. Appellant had $8,000 that he owed to his supplier in a backpack. Slane left the room first and Ruzicka stayed to discuss the terms of payment. Then Ruzicka left the room with the cocaine. Appellant noticed that his money was gone, and everyone searched for it. Appellant called Ruzicka and asked him to come back. He asked for permission to search Slane’s car and did so. He asked everyone to go back to the room.
Once in the room, appellant said he was missing $8,000 and would like to have it back. Before leaving to sell drugs at a rave, appellant told the occupants of the room that nobody could leave until he returned, and everyone agreed. He met his friend Matt at the rave, and Matt volunteered to help with the money problem. Appellant told his drug dealer that he could not find the money he owed, and the dealer was upset. The dealer wanted to know where the motel was, and appellant gave him the location and the room number.
When appellant returned to the motel he told everyone that the situation was becoming serious. Everyone began accusing each other, and fingers pointed at Ruzicka, Slane, Rex, and Jenkins. Matt arrived with two friends. One of Matt’s friends asked Slane for the money and then hit Slane in the face when he mumbled his response.
Appellant’s drug dealer telephoned him and told him he was at the motel. Appellant met him in the parking lot. The dealer was a large Hispanic man, and he entered the motel room with two Black men. The Hispanic man demanded his money from the victims. He pulled out a gun when the victims said they did not know where the money was. He struck Slane, and he told the victims to strip. He took the bullets out of his gun and carved the initials of each victim on a bullet, put the bullet in the chamber, spun the chamber, and pointed the gun at the victim and pulled the trigger as he asked for the money. He told the victims that he had beaten his girlfriend because she stole drugs from him.
Ruzicka and Jenkins told the Hispanic man that they could get him some money, and the man agreed. The man said he wanted $10,000 and asked the victims to write down the names and addresses of their family and friends for insurance. He told the victims he had a warehouse where he could dump bodies.
The Hispanic man demanded identification from everyone in the room. The two Black men collected the identification cards and asked each person if they had taken the money. The Hispanic man took the victims’ cell phones. He then left with the warning that no one had better “fuck up.”
Outside the motel room, the Hispanic man told appellant that he had to help get the money from the victims’ parents. Otherwise, the Hispanic man would have to kill appellant. The Hispanic man demanded at gunpoint that appellant hand over whatever money he had. Appellant asked for more time to return the money, but the Hispanic man said he wanted his money immediately. The Hispanic man and the two Black men left.
Appellant went back to the room and told the victims to dress. Jenkins and Ruzicka said they could obtain money from their parents, and appellant and the victims came up with a plan “collectively.” They all went to sleep and awoke at approximately noon the following day. Everyone used more drugs, and Jenkins suggested that she and Ruzicka go to their parents’ homes to obtain the money. Appellant suggested that he and Thompkins accompany them, but the others talked him out of that. Entrekin volunteered to take Jenkins and Ruzicka to Lake Elsinore while appellant stayed in the motel room with Rex and Slane. Appellant received telephone calls from Entrekin, who told appellant that everything was under control. Appellant told Slane and Rex that it “looks like we’re going to get the money, and everyone can be out of this mess.” Entrekin called again and told appellant, “They fucked it up.”
Appellant and everyone else left the motel in three separate cars. The car carrying Neith and Thompkins became separated. Appellant’s car, carrying Slane and appellant, got stuck in a ditch when he drove from the freeway onto a dirt road. Stockton, Robinson, Weeshoff, and Rex were in the Jeep, and they all got out of the vehicle. Stockton, Weeshoff, and Robinson handed a gun around while they continued to ask Rex and Slane for the money. Appellant pulled Robinson, Weeshoff, and Stockton aside and told them that they were not going to be able to get the money and that it was over. Appellant went to Slane and Rex and told them he was not going to kill them. They all drove in two cars to downtown Los Angeles. Appellant gave Rex and Slane some money before dropping them off at Union Station.
Appellant stayed in the desert with Robinson for a few days. He later left California and sold drugs in Salt Lake City, San Francisco, and San Diego. In San Diego he was attacked when he went to an apartment to sell Ecstasy. He was tied up and duct taped, and one of his attackers told him that the attack was related to the incident in the motel room and the man to whom appellant owed money. Appellant broke free and tried to escape. He jumped through a glass window. A man chased appellant and wrestled with him. The police arrived and arrested appellant.
Entrekin also testified in his own defense. On the evening of November 12, 2006, appellant invited Entrekin to his motel room. Entrekin noticed four people sitting in the corner of the room. Appellant told Entrekin that he believed the four people had taken his money, and that no one was leaving the room until the money was found.
Appellant directed Entrekin to go along with Carpenter, Ruzicka, and Jenkins to Lake Elsinore. Appellant told everyone where to sit and what to do. Appellant said that if anyone “fucks this up” he would go after that person’s parents, and Entrekin was terrified.
Appellant told Entrekin by telephone to find a public place for the ransom pickup and they decided on the Wal-Mart shopping center. When Torres finally arrived, Entrekin went inside the auto parts store with Jenkins. When Torres told Jenkins that she wanted to see her son, Entrekin told her that was not supposed to happen. Entrekin spoke with appellant and told him that everything was “fucked up.” Entrekin ran because appellant told Entrekin to “get out of there.”
Entrekin testified that appellant and other prisoners attacked him in a holding tank in July 2008. Appellant told Entrekin, “What you get for snitching on me.”
DISCUSSION
I. Sufficiency of the Evidence in Counts 14 and 15
A. Appellant’s Argument
Appellant contends the evidence was insufficient to support a guilty verdict in the counts charging him with the kidnapping for ransom of Slane and Rex (counts 14 and 15). The prosecution limited appellant’s exposure to kidnapping for ransom in counts 14 and 15 to the time period when Slane and Rex were transported to the desert. According to appellant, the facts show that neither appellant nor his companions made any demands for ransom, rewards, or extortion of Rex and Slane during the desert trip.
B. Relevant Authority
In reviewing a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Proctor (1992) 4 Cal.4th 499, 528.) Although a reviewing court “may not ‘go beyond inference and into the realm of speculation in order to find support for a judgment’” (People v. Memro (1985) 38 Cal.3d 658, 695, disapproved on another point in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2), “[i]f the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) Reversal for insufficiency of the evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Appellant was charged under section 209, subdivision (a), which provides, in pertinent part, “Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony....” The words “reward” and “ransom” have been held to be used in section 209, subdivision (a) in accordance with their normal, everyday meanings, but “extortion” is defined according to the technical requirements of section 518. (People v. Greenberger (1997) 58 Cal.App.4th 298, 367; People v. Hill (1983) 141 Cal.App.3d 661, 668.)
Section 518 provides: “Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.”
C. Evidence Sufficient
The trial court instructed the jury that, in order to find appellant guilty of kidnapping for ransom, the jury had to find that the defendant kidnapped, or confined, or concealed, or enticed, or decoyed someone; that the defendant intended to hold or detain the person when the defendant acted; and that the defendant did this for ransom, reward, or extortion. The instruction explained that a person intends to commit extortion when he or she intends to obtain a person’s property with the person’s consent, and to obtain the person’s consent by using force or fear.
Appellant admits that he kidnapped Rex and Slane when he and his coperpetrators took the two victims to the desert in two separate cars. But he argues that he drove them to the desert for two reasons only. One was to get away from the motel room and avoid capture when police inevitably arrived, and the other was to try one last time to convince the two men to tell him who had his (appellant’s) money or where it could be found. No ransom was demanded of Rex and Slane, or anyone else, to secure their release. There was also no evidence that appellant expected a reward or that he committed extortion, since all appellant wanted from Slane and Rex was information.
The record shows that Rex and Slane were made to stand in front of the Jeep while appellant and his companions stood in a half-circle around them and asked where the money was, saying they did not want to have to kill the two victims. Rex and Slane begged for their lives. Clearly, appellant kidnapped Rex and Slane “to exact from [them] [] money or [a] valuable thing.” (§ 209, subd. (a).) Rex testified that he was asked, “Where’s the money? All’s we want is the money. We don’t want to have to kill you.” A gun was passed around among the perpetrators. Appellant waved the gun around and pointed it at the heads of Rex and Slane. While pointing the gun at them, appellant said, “We don’t want to have to kill you. But we will.” While pointing the gun at Slane, appellant said, “I just want my money. Give me my money back, or tell me where it is.” Robinson put the gun into Rex’s forehead and bent him over backwards, saying, “Give the money back. We want our money back.” Slane testified that appellant kept demanding to know where the money was and asked them if they could get the money while pointing a gun at both of them. Three of the men with appellant took turns holding the gun, screaming and pushing the gun in their faces, asking where the money was. This interrogation lasted “well over an hour.” Apparently, appellant eventually believed he could not locate the money through Rex and Slane, and he and his cohorts hatched a plan to let them go.
The evidence thus shows appellant was still trying to obtain money from Rex and Slane in exchange for their freedom. It does not matter if appellant believed the money he would get from them was the money that was allegedly stolen from him. Unlike the crime of theft, in which a defendant’s belief he is entitled to the property may negate specific intent, in the case of kidnapping for ransom, a defendant’s belief he is entitled to the property demanded is not a defense. (People v. Serrano (1992) 11 Cal.App.4th 1672, 1677–1678.) All forms of aggravated kidnapping share “the single primary element of deprivation of a person’s liberty in order to extract a financial gain.” (People v. Ordonez (1991) 226 Cal.App.3d 1207, 1227, fn. 12.)
In addition, just as in People v. Kozlowski (2002) 96 Cal.App.4th 853 (Kozlowski), which appellant tries to distinguish in vain, the demand for something of value may be made to the victim himself or herself. (Id. at p. 871.) Appellant hones in on the analysis in Kozlowski that focused on whether a PIN number, which was extorted from the victim and which allowed Kozlowski to obtain money from the victim’s bank account, constituted property for purposes of kidnapping for extortion. (Id. at pp. 867–868.) This analysis is superfluous in the instant case, where appellant demanded money from the victims. Merely because appellant at times demanded that the victims tell him the location of the money does not remove appellant’s demands from the category of “money or valuable thing.” (§ 209, subd. (a).) Indeed, to the extent that the analysis in Kozlowski is applicable, it supports the verdict in this case. The Kozlowski court concluded that a PIN number is information that provides access to money and can be classified as intangible property. (Kozlowski, supra, at p. 867.) Likewise, information pinpointing the location of appellant’s missing money would provide him access to the money. Appellant’s argument is without merit.
II. False Imprisonment by Violence as a Lesser-Included Offense
A. Appellant’s Argument
Appellant contends that his convictions for the false imprisonment by violence of Ruzicka and Jenkins (§ 236), which were charged in counts 1 and 2, respectively, must be dismissed. According to appellant, false imprisonment by violence is a lesser included offense of kidnapping for ransom (§ 209, subd. (a)), and appellant was convicted of the greater crime against Ruzicka and Jenkins in counts 10 and 11, respectively.
B. Relevant Authority
Multiple convictions cannot be based on necessarily included offenses. (People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Pearson (1986) 42 Cal.3d 351, 355.)“To determine whether a lesser offense is necessarily included in a greater charged offense, one of two tests must be met. [Citation.] The ‘elements’ test is satisfied if the statutory elements of the greater offense include all the elements of the lesser offense so that the greater offense cannot be committed without committing the lesser offense. [Citation.] The ‘accusatory pleading’ test is satisfied if ‘the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater [offense] cannot be committed without also committing the lesser [offense].’ [Citation.]” (People v. Cook (2001) 91 Cal.App.4th 910, 918; see also People v. Birks (1998) 19 Cal.4th 108, 117–118.)
C. Multiple Convictions Proper
The elements of kidnapping for ransom in section 209, subdivision (a) were set out in the jury instruction for this crime. As noted in the previous section, the trial court instructed the jury that, in order to find appellant guilty of kidnapping for ransom, the jury had to find that the defendant kidnapped, or confined, or concealed, or enticed, or decoyed someone; that at the time he performed this act, the defendant intended to hold or detain the person; and, lastly, that the defendant did this for ransom, reward, or extortion. (CALCRIM No. 1202.) The jury was instructed that the elements of kidnapping are that the defendant took, held, or detained another person by using force or by instilling reasonable fear; that he used that force or fear to move the other person or make the other person move a substantial distance; and that the other person did not consent to the movement. (CALCRIM No. 1215.)
With respect to the elements of false imprisonment by violence, the jury was instructed that, in order to find appellant guilty of this crime in violation of section 236, it must find that appellant intentionally restrained, or confined, or detained someone, or caused that person to be restrained, or confined, or detained by violence or menace; and, secondly, that appellant made the other person stay or go somewhere against that person’s will. As appellant points out, the crime of false imprisonment has repeatedly been found to be a lesser included offense of kidnapping. (See, e.g., People v. Magana (1991) 230 Cal.App.3d 1117, 1120–1121 and cases cited therein.)
In considering the accusatory pleading test, we note that in counts 1 and 2 of the information, appellant was charged with violating the personal liberty of Ruzicka and Jenkins, respectively, and with effecting this violation by means of violence, menace, fraud and deceit. In counts 10 and 11, appellant was charged with seizing, confining, and kidnapping Ruzicka and Jenkins, respectively, with the intent to hold and detain them, and holding and detaining them for ransom, reward, extortion, and to exact from relatives and friends of both victims money and other valuable things, to wit, money. Significantly, the information charged appellant in counts 1 and 2 with false imprisonment by violence “on or between November 11, 2006 and November 13, 2006.” The information charged appellant in counts 10 and 11 with kidnapping for ransom “on or about November 13, 2006.” The latter date was the date the ransom event was to take place.
A conviction for the lesser included offense is prohibited only “[i]f both the false imprisonment count and kidnapping count relate to the same act.” (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820.) In this case, the counts in question relate to separate events, as is underscored by the charging document. The record clearly shows that Ruzicka and Jenkins were victims of two separate acts that were described by these two separate counts for each victim. For the first two days of their ordeal at the motel, Ruzicka and Jenkins were victims of the false imprisonment by violence that appellant and his cohorts inflicted upon them. As recounted previously, the acts of violence were numerous. On the last day, appellant decided to pursue a plan to be reimbursed for his allegedly stolen money by extracting a ransom from the parents of Ruzicka and Jenkins. It was then, when appellant had these two victims driven to Lake Elsinore, that Ruzicka and Jenkins became victims of kidnapping for ransom.
The prosecutor explained the distinction between the charges to the jury during closing argument, stating, “So let’s start with the defendant, Travis Carter: There are different ways in which a prosecutor can argue how the evidence fits into the charges alleged. There can be a continuous course of action, or there can be certain segments of time that criminal conduct is occurring and charges are applied to segments of time. We have elected to use different segments of time... so that it will be easier to look at the evidence and the charges and see if you find that these charges are applicable and the evidence has proven it to you beyond a reasonable doubt. So starting with Travis Carter, false imprisonment, counts 1 through 4, we are talking here about the evidence that has shown in the motel room these four victims were held against their will.” When addressing counts 10 and 11, the prosecutor stated, “Let’s go now to the kidnapping for ransom, reward, or extortion. We have deleted on the chart the earlier dates of November 11th, 2006, and gone directly to that period of time on November 13th, 2006, when the victims were moved and transported for the purpose of obtaining this ransom money or extortion money from these victims.” And later, “We certainly have movement of all four victims in this case. We certainly have movement of all four victims for the purpose of obtaining money through ransom, extortion, and that is present on all four victims.”
Appellant was properly convicted of both false imprisonment by violence and kidnapping for ransom.
III. Imposition of Consecutive Sentences
A. Appellant’s Argument
Appellant contends that the sentences for either counts 1 through 4, in which he was convicted of false imprisonment by violence, or counts 6 through 9, in which he was convicted of making criminal threats, should have been stayed under section 654. Appellant had one objective in not allowing the four victims to leave the motel room and in making threats, i.e., to confine and instill enough fear into the victims that the location of the missing money would be revealed, or that replacement money would be obtained. Since both crimes carry the same sentence, the sentences for either of the two crimes must be stayed.
B. Relevant Authority
Section 654 provides in pertinent 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.”
“We review the trial court’s determination [of whether section 654 applies in a given case] in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [trial court’s finding of “‘separate intents’” reviewed for sufficient evidence in light most favorable to the judgment].)
The protections of section 654 extend to situations in which several offenses are committed during an indivisible course of conduct. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) Indivisibility is determined by the defendant’s intent and objective. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the offenses are incidental to, or the means of accomplishing or facilitating a single objective, the defendant may be found to have harbored a single intent and punished for any one offense but not more than one. (People v. Harrison (1989) 48 Cal.3d 321, 335.) “‘The defendant’s intent and objective are factual questions for the trial court;... there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’ [Citation.]” (People v. Coleman (1989) 48 Cal.3d 112, 162.)
“If, on the other hand, defendant harbored ‘multiple criminal objectives, ’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison, supra, 48 Cal.3d at p. 335.) As a general rule, the trial court determines the defendant’s “‘intent and objective’” under section 654 by a preponderance of the evidence. (People v. Cleveland, supra, 87 Cal.App.4th at pp. 266, 268–269.)
C. Proceedings Below
In sentencing appellant, the trial court explained, “Now let me explain why I selected consecutive terms. The crimes can be broken down into five compartments: They are false imprisonment of all four victims; criminal threats made to all four victims; kidnapping for ransom of Ruzicka and Jenkins; kidnapping for ransom of Rex and Slane; and assault with a firearm on Rex and Slane. Within each compartment, consecutive sentencing is justified because each victim was subject to separate acts of violence or threats of violence. In addition, consecutive sentences are justified for each compartment of crimes because the chronological movement from one category of crime to the next demonstrates that the defendant’s behavior, intent, and objective evolved and became increasingly serious. In this regard the first compartment of criminal activity concerned false imprisonment in the motel room where the defendant instructed the occupants that they cannot leave until the missing money was found. Thus, in the beginning, the four victims were among many who could not leave the room. The second compartment of crimes is criminal threats, and it is triggered after the defendant began to focus on the four victims as the cause of the missing money. This category thus concerned both implied threats to the victims by way of Russian roulette and specific threats related to the victims’ family members if the victims did not provide the money.” (Italics added.) The trial court went on to describe the third compartment as the kidnapping for ransom of Ruzicka and Jenkins, which “demonstrates another shift in the defendant’s objective.” The fourth compartment is the kidnapping for ransom of Rex and Slane, when “the defendant develops the new objective of transporting Rex and Slane to the desert... for the purpose of preserving the possibility of extracting money from Rex and Slane while simultaneously vacating the motel room in order to avoid discovery by the police.”
D. Section 654 Not Applicable
Although our analysis of the events is slightly different than the trial court’s, we believe the trial court’s general assessment of the facts in this case justify the imposition of separate sentences for false imprisonment and terrorist threats. Appellant’s broad characterization of his objective does not sufficiently describe his conduct at the motel room, and his behavior and that of his cohorts demonstrate an alteration in his objective during the course of the victims’ ordeal. “‘And, the fact certain acts are proximate in time is not determinate in finding an indivisible course of conduct. Multiple criminal objectives may divide those acts occurring closely together in time. [Citation.]’ [Citation.]” (People v. Chacon (1995) 37 Cal.App.4th 52, 67.)
When appellant and his crew brought the four victims into the motel room after searching them and their car, the false imprisonment began. The four victims in this case and 15 to 20 other people sat in the motel room after appellant told them that he wanted his money back and that no one could leave until he got it. Appellant was not accusing any of the four victims. After approximately an hour and a half, appellant went to a party, but the victims did not feel free to leave, since appellant told his friends not to let anyone do so. Appellant’s friends enforced these orders. The people in the room with the four victims began to point the finger at them, since they had left and driven away at one point. According to Rex, some of appellant’s crew members were waving around a taser and a hammer during this time, which clearly qualifies as “menace” for purposes of false imprisonment by violence. When appellant returned early the next morning, the other people told him their assumptions about the four victims being the culprits. Appellant made everyone leave except for the four victims and his crew members. Two men then arrived and hit Slane and Ruzicka. A newcomer named Matt (also called Nova) arrived and had a discussion with appellant outside the room. Appellant returned and announced some people were coming to “take care of their problem.”
After appellant spoke to the people who arrived, the two African Americans and an Hispanic, these three began to terrorize the victims. They told them to strip, threatened them with a hammer, threatened to “mess [them] up, ” hit them, and played Russian roulette with each of them. The victims were threatened with torture. The trial court included these actions among the terrorist threats, but whether or not this particular episode in the drama is part of the false imprisonment by violence or the terrorist threat component is immaterial. As appellant concedes, violence and feelings of fear occurred before appellant returned from the party.
During the next “compartment, ” as the trial court characterized it, the victims were made to produce money in exchange for their lives and the safety of their families and friends. Appellant was no longer focused on having his allegedly-stolen money returned to him. Appellant dismissed the three men (the Hispanic and two Black men) and made the victims write down the names and addresses of their friends and families as insurance in case they did anything wrong. Two of the victims were to go and get money from their parents to pay for their freedom. Because Slane did not produce enough names, he was to be held as leverage.
Thus, merely because appellant had an overall objective of getting money, he still committed separate and independent criminal acts to attain that objective. Virtually any two offenses can be viewed to be within a stated objective, if the objective is stated broadly enough. (See, e.g., People v. Perez (1979) 23 Cal.3d 545, 549, 552 [objective of sexual gratification in a case where defendant was convicted of oral copulation, sodomy, and rape “is much too broad and amorphous to determine the applicability of section 654”].) The fact that the false imprisonment by violence was ongoing did not prevent appellant from forming and carrying out a separate criminal objective. His act of forcing the victims to write down the names of people he could harm if they did not follow his orders constituted criminal threats, and these threats were not incidental to his original crime of false imprisonment by violence, wherein he held the victims to ascertain who took his allegedly stolen money. Moreover, these threats to the victims’ families and to the two victims used as “leverage” were gratuitous and a “means to achieve an objective... 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; see also People v. Cleveland, supra, 87 Cal.App.4th at pp. 271–272.) “We should not lose sight of the purpose underlying section 654, which is ‘to insure that a defendant’s punishment will be commensurate with his culpability.’ [Citations.]” (People v. Nguyen, supra, at p. 191.)
In this case, there were multiple threats during the weekend, but not all the threats were made to facilitate the crime of false imprisonment by violence. Unlike the case of People v. Mendoza (1997) 59 Cal.App.4th 1333 (Mendoza), relied upon by appellant, there was not one single act that gave rise to two separate convictions. (Id. at p. 1346.) Defendant Mendoza went to the home of a witness against his brother and asked if she had read the newspaper. Mendoza told the witness she had “‘fucked up’” his brother’s testimony and that he intended to talk to some members of his and his brother’s gang. (Id. at p. 1337.) Mendoza was convicted of making a terrorist threat in violation of section 422 and dissuading a witness by force or violence in violation of section 136.1, subdivision (c)(1). (Mendoza, supra, at p. 1337.) The appellate court found both offenses incidental to one objective—to help Mendoza’s brother by preventing further testimony from the witness—and stayed the concurrent sentence on the terrorist threat count. (Id. at p. 1346.)
Appellant’s threats to the victims’ families and friends in order to ensure they obtained money from their parents, along with the continual cruel actions by him and his minions, evince a separate objective from his original one, which was to keep the victims confined and threaten them with being shot or maimed until they confessed. These threats warrant additional punishment. Appellant’s original plan did not work, forcing him to change his objective and the manner of its execution. Thus, the evidence supports the trial court’s factual finding that appellant had distinct multiple criminal objectives justifying the imposition of separate terms for false imprisonment by violence and making criminal threats.
IV. Personal Use of a Firearm Enhancement in Count 16
A. Proceedings Below
In counts 16 and 17, appellant was charged with assault with a firearm against Rex and Slane, respectively. (§ 245, subd. (a)(2).) Both counts carried two allegations: that a principal was armed with a firearm (§ 12022, subd. (a)) in the commission of the offense and that appellant personally used a firearm, to wit, a handgun (§ 12022.5, subd. (a)) in the commission of the offense. Appellant was found guilty of both counts. In count 17, the jury found that appellant personally used a firearm and that a principal was armed with a firearm. In count 16, however, although the jury found that a principal was armed with a firearm, the second allegation was worded incorrectly. As a result, the verdict form showed that the jury found that “said defendant... was armed with a firearm.” The charged allegation of personal use of a handgun within the meaning of section 12022.5, subdivision (a) in connection with count 16 was not included on the verdict form. Nevertheless, appellant was sentenced to four years for an enhancement for personal use under section 12022.5, subdivision (a) in count 16.
No citations to the Penal Code were included on the verdict forms.
B. Argument
Appellant points out that being armed with a firearm is not the same as personal use of a firearm. (§§ 12022, subd. (a)(1), 12022.5, subd. (a); People v. Lucas (1997) 55 Cal.App.4th 721, 742–743.) He argues that the punishment for the personal-use enhancement cannot be imposed, since the jury did not make the required finding. He contends that the four-year prison term must be stricken.
Respondent argues that the omission of the word “personally” from the verdict form was a typographical error. The jury’s intent to find the personal-use allegation true was unmistakably clear, and the evidence overwhelmingly showed that appellant personally used a firearm in the assault against Rex. The prosecutor listed the correct allegation on a chart that she used during oral argument. The jury was instructed with respect to counts 16 and 17 that it must decide if the prosecution had proved the allegation that the defendant personally used a firearm during the commission of the crime. Respondent contends that the sentence for personal use of a firearm need not be stricken.
Respondent argues that, if this court strikes the enhancement for personal use in count 16, the matter should be remanded to the trial court for resentencing. The striking of the personal use enhancement may influence the trial court’s decision whether to treat count 16 as the principal determinate term. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1259; People v. Calderon (1993) 20 Cal.App.4th 82, 88 [remand for complete resentencing is proper after finding error with respect to a portion of the sentence].)
C. Relevant Authority
Section 1258 provides that the Court of Appeal “must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.” Section 1404 provides: “Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”
“A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court. It must be upheld when, if so construed, it expresses with reasonable certainty a finding supported by the evidence.” (People v. Radil (1977) 76 Cal.App.3d 702, 710; see also People v. Camacho (2009) 171 Cal.App.4th 1269, 1272–1273.) “The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed. [Citation.]” (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1256.) “[T]echnical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 447, fn. omitted.) “The verdict is insufficient only ‘if it be susceptible of a different construction than that of guilty of the crime charged.’” (People v. Jones (1997) 58 Cal.App.4th 693, 711.) The same rules apply to a finding on a sentence enhancement allegation. (Id. at pp. 711–712.) It is sufficient if the jury finds a defendant guilty by reference to a specific count contained in the information. (People v. Bratis (1977) 73 Cal.App.3d 751, 764.)
D. Sentence for Personal Use Properly Imposed
In light of the authority cited ante, we agree with respondent that, under the circumstances of this case, imposition of sentence for the personal-use allegation was proper. The jury was instructed with CALCRIM No. 3146 in pertinent part that, “If you find Defendant Carter guilty of the crimes charged in Counts... 16 or 17, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.” The jury was also instructed with respect to counts 16 and 17 on the allegation “that a principal in the commission of the crime was armed with a firearm during the commission of the crime.” (CALCRIM No. 3115.)
In discussing counts 16 and 17 during closing argument, the prosecutor explained that the charges stemmed from the episode in the desert with Rex and Slane. “The defendant, Travis Carter, assaulted them with a firearm, pointed the gun at them, and made demands of them and threatened to harm them physically.” And, “When you personally use a firearm, you can display the firearm in a menacing manner, or you can hit someone with the firearm, or you can fire the firearm. You’re going to find in the jury instructions that merely displaying a firearm in a menacing manner is sufficient to have a personal use of a firearm.”
Rex testified that in the desert appellant “would wave the gun around, point it at our heads.” Appellant pointed the gun directly at Rex’s chest from a distance of two feet while saying, “We don’t want to have to kill you, but we will.” Rex testified that the same acts were committed against Slane.
The factfinder must make a determination as to defendant’s guilt or innocence with respect to the allegations charged in the information, and if its statement is in doubt the trial court must construe it in light of the whole record of the proceedings and the instructions. (People v. Lovely (1971) 16 Cal.App.3d 196, 203.) The court should construe a verdict to give it the effect intended by the factfinder, if that effect can be ascertained from its language in connection with the pleading and the evidence. (People v. Barraza (1988) 197 Cal.App.3d 613, 617–618.) The only construction possible in the instant case is that the jury found that appellant personally used a firearm in the assault with a firearm upon Rex.
Moreover, appellant suffered no prejudice. The information alleged that appellant personally used a firearm in the commission of count 16. Thus, appellant was placed on notice that the prosecution intended to prove that appellant personally used a firearm in the commission of this count. The jury was fully instructed on it, and the evidence overwhelmingly supported a true finding on it. When an information “puts the defendant on notice that a sentence enhancement will be sought, and further notifies him of the facts supporting the alleged enhancement, modification of the judgment for a misstatement of the underlying enhancement statute is required only where the defendant has been misled to his prejudice. [Citations.]” (People v. Neal (1984) 159 Cal.App.3d 69, 73.) In the instant case, modification of the sentence is not necessary.
V. Custody Credits
Appellant points out a typographical error in the abstract of judgment. The trial court awarded actual presentence custody credits of 798 days, and 119 days of conduct credits for a total of 917 days of total credits. The abstract of judgment stated that the total credit days equal 17 instead of 917. The abstract must therefore be amended.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect an award of 917 total credit days and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.