Opinion
E062089
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS DUBOSE et al., Defendants and Appellants.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Dubose. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Davion Whitmore. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlson and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB903492) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part and remanded for resentencing; affirmed as modified. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Dubose. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Davion Whitmore. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlson and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
This case concerns two defendants and appellants, Carlos Dubose (Dubose) and Davion Whitmore (Whitmore). This opinion constitutes this court's second time addressing this case. (People v. Dubose et al. (2014) 224 Cal.App.4th 1416 (Dubose) [nonpub. opn.].) Dubose and Whitmore were minors at the time they committed the offenses discussed in this case, but they were charged and sentenced as adults. (Welf. & Inst. Code, § 707, subd. (d)(1).)
A jury found Dubose guilty of (1) first degree murder (Pen. Code, § 187, subd. (a)); (2) carjacking (Pen. Code, § 215, subd. (a)); (3) robbery (Pen. Code, § 211); (4) kidnapping for purposes of committing robbery (Pen. Code, § 209, subd. (b)(1)); and (5) fleeing a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)). A jury found true the allegations that Dubose used two deadly or dangerous weapons during the murder, carjacking, robbery, and kidnapping. (Pen. Code, § 12022, subd. (b)(1).) The jury found true the special circumstances allegations that Dubose murdered George Onyango (the victim), while committing (1) a robbery, and (2) a carjacking. (Pen. Code, § 190.2, subd. (a)(17).) The jury also found true the special circumstances allegation that Dubose intentionally murdered the victim and the murder involved torturing the victim. (Pen. Code, § 190.2, subd. (a)(18).)
The trial court sentenced Dubose to prison for a determinate term of five years four months, plus an indeterminate term of life without the possibility of parole (LWOP) to be followed by a term of life with the possibility of parole. In Dubose's prior appellate case, this court reversed Dubose's LWOP sentence, and directed the trial court to resentence Dubose taking into account the factors set forth in Miller v. Alabama (2012) 567 U.S. 460; 132 S.Ct. 2455, 2475 (Miller). (Dubose, supra, 224 Cal.App.4th at p. 1440.) Upon remand, the trial court treated this court's resentencing directive as a petition by Dubose to recall the LWOP sentence and resentence him. The trial court denied the petition. (Pen. Code, § 1170, subd. (d)(2).)
All further statutory references are to the Penal Code unless otherwise indicated.
Dubose raises five issues on appeal. First, Dubose contends the trial court erred by failing to resentence him. Second, Dubose asserts the LWOP sentence is cruel and unusual punishment. Third, Dubose contends an LWOP sentence is unconstitutional without a finding that Dubose intended to kill the victim. Fourth, Dubose asserts the trial court's failure to consider factors in mitigation violates the prohibition against cruel and unusual punishment. Fifth, Dubose contends the trial court's failure to consider Whitmore's sentence violated the prohibition against cruel and unusual punishment. We remand the Dubose portion of the case for the trial court to comply with our prior directions.
A jury found Whitmore guilty of (1) first-degree murder (§ 187, subd. (a)); (2) carjacking (§ 215, subd. (a)); (3) robbery (§ 211); and (4) kidnapping for purposes of committing robbery (§ 209, subd. (b)(1)). In Whitmore's prior appellate case, this court reversed his sentence on all four counts. (Dubose, supra, 224 Cal.App.4th at p. 1440.) At the resentencing, the trial court sentenced Whitmore to a determinate term of one year eight months, and an indeterminate term of 25 years to life to be followed by a term of life with the possibility of parole. Whitmore contends the trial court erred by not staying the one year eight month carjacking sentence. (§ 654.) We stay the carjacking sentence (§ 654), but otherwise affirm the judgment against Whitmore.
DISCUSSION
A. DUBOSE'S APPEAL
1. PROCEDURAL HISTORY
One of the issues Dubose raised in his prior appeal was that, during sentencing, the trial court failed to exercise its discretion because it was unaware it had the authority to sentence Dubose to a term of 25 years to life, as opposed to LWOP. The People observed Dubose was sentenced in November 2011, prior to the United States Supreme Court filing its opinion in Miller, supra, 567 U.S. 460, 132 S.Ct. 2455. (Dubose, supra, 224 Cal.App.4th at p. 1432.)
In Miller, the United States Supreme Court set forth factors that a trial court should consider when sentencing a juvenile special circumstance murderer, such as mitigating circumstances and "age and age-related characteristics and the nature of their crimes." (Miller, supra, 567 U.S. 460 .) In a prior opinion from this court, People v. Guinn (1994) 28 Cal.App.4th 1130, 1142, this court wrote, "The fact that a court might grant leniency in some cases, in recognition that some youthful special circumstance murderers might warrant more lenient treatment, does not detract from the generally mandatory imposition of LWOP as the punishment for a youthful special circumstance murderer."
In the prior Dubose appeal, this court reasoned that Guinn's discussion of a generally mandatory LWOP sentence had been overruled by Miller. We concluded that when a trial court is sentencing a juvenile special circumstances murder, it should consider the Miller factors, rather than treat an LWOP sentence as generally mandatory. (Dubose, supra, 224 Cal.App.4th at p. 1431.) Because the trial court sentenced Dubose prior to the filing of Miller, we concluded Dubose's LWOP sentence must be reversed and the trial court must resentence Dubose taking into account the factors set forth in Miller. (Dubose, at p. 1432.)
In regard to Dubose, the disposition in the prior appeal read, "Dubose's life without parole sentence is reversed (count 1), so the trial court may exercise its discretion. The trial court is directed to resentence Dubose on count 1, taking into consideration the factors set forth in Miller. (Miller, supra, 567 U.S. 460 (mitigating circumstances, age, age-related characteristics, and the nature of the crimes].) In all other respects Dubose's judgment is affirmed." (Dubose, supra, 224 Cal.App.4th at p. 1440.)
The trial court received the remittitur from this court on July 21, 2014. The remittitur included a copy of this court's opinion and a certification that the opinion was final. On January 29, 2015, Dubose's trial counsel filed a sentencing brief arguing that a sentence of 25 years to life, rather than LWOP, should be imposed. On April 3, the trial court held a hearing and said, "This is a motion for recall of [Dubose's] sentence pursuant to Penal Code section 1170[, subdivision (d)(2)], in that the defendant was a juvenile under the age of 18 at the time of the commission of the offense. And was tried as an adult, convicted of first degree murder with special circumstances, and was sentenced to life in prison without the possibility of parole. Which occurred prior to Miller v. Alabama and the cases following that. [¶] And this is a petition based on Miller vs. Alabama, correct?" Both trial attorneys responded in the affirmative.
The trial court said, "I guess the defendant should go first, since they're the petitioners." Defense counsel responded, "I think it's my burden." The following exchange took place:
"[Defense Counsel]: What I'd like to discuss with the court, if we look at what we're doing here, we're basically looking at two possibilities. And one is resentencing Mr. Dubose to life without parole, which he
"The Court: Well, that would not be a resentencing. That would just be denying the current petition, and the current sentence would remain in effect.
"[Defense Counsel]: I stand corrected. With that correction, we keep it the status quo, and so he has no chance of ever getting out, or resentence him to 25 to
"The Court: He actually would have the opportunity to again apply for resentencing under [Penal Code section] 1170[, subdivision] (d) (2) after serving 15 years of his sentence."
Dubose's trial counsel presented the trial court with mitigating factors. The prosecutor began her arguments by saying, "We're here today on a resentencing." The prosecutor then argued that a LWOP sentence was appropriate. During the prosecutor's argument she said, "The defendant has failed to meet his burden here." The victim's son spoke, and Dubose spoke.
The trial court said it reviewed the defendant's sentencing brief, the prosecutor's response to the brief, the original probation report, the preliminary hearing transcript, and "the Court of Appeal decision affirming the conviction." The trial court described the Miller factors. The court then applied the factors to the facts of the case. The court noted Dubose was five months from his 18th birthday when he murdered the victim, as opposed to defendants in other cases who received 25-years-to-life sentences and were 16 years old. The court found that nothing in Dubose's crime reflected it was the result of immaturity, and nothing reflected Dubose lacked an understanding of the consequences of his actions. To the contrary, the court found Dubose premeditated his actions and was proud of killing the victim.
The trial judge presiding over the hearing was not the same judge who presided over the trial.
The trial court concluded, "[T]he petition to reduce the sentence to 25 years to life is denied. The sentence of life in prison without the possibility of parole remains. [¶] I did note looking at Penal Code section 1170 (d) (2), it does apply to a sentence of LWOP. It says:
"When a defendant, who is under 18 years at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole, has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and sentencing.
"And then goes into the things that the defendant has to accomplish and put into the petition. [¶] So, after the defendant has served an actual 15 years in state prison, the defendant would be eligible to bring a petition under Penal Code section 1170 (d) (2). Okay."
The following exchange occurred at the end of the hearing,
"[Prosecutor]: Your Honor, do you have to resentence on all the counts and allegations that were found guilty and true? Or is this
"The Court: No, if I granted the petition for resentencing and sentenced to 25 years to life, then, yes that would be true.
"[Prosecutor]: Okay.
"The Court: But since I'm denying the petition, all of the original sentence remains intact.
"[Prosecutor]: Okay. Got it. Thank you."
2. DISCUSSION
a) Resentencing
Dubose contends the trial court erred by failing to resentence him.
"Where a reviewing court reverses a judgment with directions . . . the trial court is bound by the directions given. Its authority is limited wholly and solely to following the directions of the reviewing court. [Citation.] Any judgment rendered contrary to such specific directions would be void. [Citation.] When there has been a decision on appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void." (Stafford v. Municipal Court, Los Angeles Judicial Dist., Los Angeles County (1960) 180 Cal.App.2d 368, 370-371.)
The trial court did not follow the instructions given by this court in the prior appeal. This court directed the trial court to resentence Dubose taking the Miller factors into consideration. Dubose was not resentenced. (People v. McGahuey (1981) 121 Cal.App.3d 524, 530 ["To be effective, a sentence must be pronounced orally on the record and in defendant's presence"].) For example, the trial court did not impose an LWOP sentence following the remitter. Rather, the trial court said, "[T]he original sentence remains intact."
The original sentence for Count 1 was reversed by this court's prior opinion. The effect of that reversal meant the sentence for Count 1 no longer existed; it is as if Dubose had never been sentenced on Count 1. (Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744.) Dubose's sentence for Count 1 remains reversed by our prior opinion, and a new sentence has not been pronounced. At the hearing, the trial court did not impose a sentence, it denied a petition for a sentence that no longer existed. We will once again direct the trial court to resentence Dubose on Count 1 taking into account the Miller factors.
The People contend the trial court did resentence Dubose. The People assert the trial court may have used the term "petition for resentencing," but, in substance, the trial court resentenced Dubose and considered the Miller factors.
At a resentencing hearing following a reversal, a defendant "is entitled to all the normal procedures and rights available at the time judgment is pronounced [citations]. This includes the right to a current probation report and any other information concerning [defendant] while incarcerated." (Van Velzer v. Superior Court, supra, 152 Cal.App.3d at p. 744.) As this court has previously observed, "[S]ection 1170, subdivision (d)(2) is not a substitute for the initial exercise of discretion pursuant to section 190.5 at the initial sentencing . . . ." (People v. Gibson (2016) 2 Cal.App.5th 315, 330.) Section 190.5 is the statute that authorizes a juvenile special circumstances murder to be sentenced to LWOP or 25 years to life.
The trial court repeatedly said it was ruling on a section 1170, subdivision (d)(2) petition. The trial court said it denied defendant's petition. The trial court did not pronounce defendant's sentence. Rather, the trial court said the LWOP sentence (which no longer existed) "remains intact." When the trial attorneys mentioned resentencing, the trial court "corrected" them and said it was ruling on a petition for recall of defendant's sentence (§ 1170, subd. (d)(2)). Thus, at best, the trial court issued a ruling on a petition for recall of defendant's sentence. (§ 1170, subd. (d)(2).) Given that Dubose was entitled to all the normal sentencing procedures, and a section 1170, subdivision (d)(2) ruling is not to be substituted for normal sentencing, we are not persuaded that the trial court effectively sentenced defendant by denying a petition that was never filed.
At oral argument in this court, the People conceded the trial court did not follow the correct procedure. Also at oral argument, the People requested we review the substance of the trial court's Miller analysis, and, if the trial court's substantive understanding of the factors is correct, inform the trial court via this opinion that it has a proper understanding of Miller. We decline to perform such a review. We conclude the trial court erred procedurally by not resentencing Dubose. We issue no opinion on the substantive aspect of the trial court's Miller analysis.
b) Remaining Contentions
Dubose raises a variety of other issues in his current appeal: (1) the LWOP sentence is cruel and unusual punishment; (2) an LWOP sentence is unconstitutional without a finding that Dubose intended to kill the victim; (3) the trial court's failure to consider factors in mitigation violates the prohibition against cruel and unusual punishment; and (4) the trial court's failure to consider Whitmore's sentence violated the prohibition against cruel and unusual punishment.
Dubose's contentions all relate to a sentence that does not exist. In the prior appeal, this court reversed the LWOP sentence; as a result, that sentence ceased to exist. (Van Velzer v. Superior Court, supra, 152 Cal.App.3d at p. 744.) Following issuance of the remittitur, the trial court failed to pronounce judgment. (People v. McGahuey, supra, 121 Cal.App.3d at p. 530 ["To be effective, a sentence must be pronounced orally on the record and in defendant's presence"].) Thus, there currently is no sentence on Count 1. As a result, the foregoing four issues raised by Dubose are not ripe for review. If we addressed the issues raised by Dubose concerning an LWOP sentence and cruel and unusual punishment, we would be issuing an advisory opinion, which we cannot do. Thus, we must dismiss the remaining issues as unripe for review. (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170-171.)
B. WHITMORE'S APPEAL
1. FACTS
Dubose and Whitmore (defendants) were residing in a group home pursuant to the terms of their probation. The victim was an adult male who worked as a counselor at the group home. The group home was a three-bedroom house, with a living room and kitchen. Defendants' bedrooms were across the hallway from one another. The kitchen knives at the group home were locked away in cabinets. The group home counselors kept their keys and wallets on their persons, but placed other personal items in a locked cupboard in the attached garage.
On August 22, 2009, Whitmore was upset because the probation department denied him a weekend pass to go home. That night Dubose removed, from the closet, the wooden rod that the clothes hung on. Dubose went into the hallway to speak with Whitmore. The victim told defendants to go back to bed. Dubose struck the victim's back with the wooden rod, causing the victim to fall down. Whitmore laughed and began punching and kicking the victim. The victim put his hands up with his palms out to defend himself. The victim screamed, "'Leave me alone, take everything.'"
The beating took place in the hallway for several minutes, with the victim being punched, kicked, and struck with the rod. Dubose swung the rod from over his head. The victim begged for his life. The victim tried to exit the house by moving down the hallway, but Dubose followed the victim. Dubose and the victim ended up in the kitchen, where Dubose held a kitchen knife. The victim tried to leave the house, but defendants moved him down the hallway to Whitmore's bedroom.
The beating continued for 15 to 20 more minutes in Whitmore's bedroom. Eventually the victim stopped screaming. Dubose went into his bedroom to retrieve clothes. Whitmore went into another resident's room and took bedsheets and clothing. Dubose told Whitmore to "'hurry up.'"
After defendants left the house, another resident noticed cabinets and drawers in the kitchen were open and all the cabinets in the garage were open. The resident also noticed the victim's car was not in the garage, which was where the victim typically parked it. The victim was found locked inside the closet in Whitmore's bedroom, tied-up with bedsheets and extension cords. Defendants were transported to the California Highway Patrol Office in San Bernardino after they crashed the victim's car.
2. PROCEDURAL HISTORY
During closing arguments, the prosecutor argued that moving the victim from the front entryway to the bedroom closet (kidnapping) made it more difficult for the victim to seek help and save himself from the attack. The prosecutor also argued the kidnapping "helped [defendants] further their interest in robbing and carjacking by getting rid of him so he could not call the police on them, nor could anyone rescue him or it took a lot more time to rescue him. He is hidden, left to die with vicious injuries, hog-tied, a ligature strangling him, absolutely ridiculous the further steps that they took there. That shows you what is in the mind of these two to do those items. There is the sheet, locking him in the closet further increased his harm. He was no longer in a position to help or free himself and it facilitated the defendant[s'] ability to finish the robbery, carjacking and escape with their crimes."
At the resentencing hearing, following this court's reversal of Whitmore's sentence, the trial court selected torture as the underlying felony for Whitmore's felony murder. The trial court sentenced Whitmore to: (1) 25 years to life for the murder conviction; (2) a consecutive sentence of life with the possibility of parole, with a minimum prison term of seven years, for the kidnapping with intent to commit robbery; (3) a consecutive term of one year eight months for the carjacking, which the trial court determined was not part of a continuous transaction; and (4) three years for the robbery, stayed pursuant to section 654. The trial court did not explain why it concluded the carjacking was a separate and distinct crime.
3. DISCUSSION
a) Contention
In Whitmore's Appellant's Opening Brief, he asserts the trial court erred by ordering the kidnapping and carjacking sentences to be served consecutively because the crimes were part of a continuous course of conduct. Whitmore did not explicitly argue the murder was part of that continuous course of conduct. However, because Whitmore's contention reads as if he is asserting both the kidnapping and carjacking sentences should not have been consecutive, the implication is that he was contending the two crimes were part of the same transaction as the murder.
In the People's Respondent's Brief, they argue the kidnapping and carjacking were separate from the felony murder, and therefore the trial court did not err. In Whitmore's Appellant's Reply Brief, he faults the People for not addressing his argument. Whitmore explains that he was not asserting the kidnapping and carjacking were part of the same course of conduct as the murder. Rather, his contention is that the kidnapping and the carjacking were part of the same course of conduct; and therefore the trial court erred by ordering the carjacking sentence to be served consecutively. We will address the issue Whitmore clarifies in his Appellant's Reply Brief—whether the trial court erred by not applying section 654 to the carjacking sentence.
b) Law
"'Carjacking" is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).) Kidnapping with the intent to rob is, as it sounds, the kidnapping or carrying away of an individual to commit robbery. (§ 209, subd. (b)(1).)
We apply the substantial evidence standard in reviewing the trial court's decision. (People v. Brents (2012) 53 Cal.4th 599, 618.) "'Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the "intent and objective" of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.'" (People v. Hairston (2009) 174 Cal.App.4th 231, 240.)
In People v. Siko (1988) 45 Cal.3d 820, the defendant committed two acts: rape and sodomy, but was convicted of rape, sodomy, and lewd conduct with a child. (Id. at p. 823.) The jury's verdict included a finding that the lewd conduct consisted of the rape and sodomy. (Id. at p. 826.) The Supreme Court remarked that nothing "in the prosecutor's closing argument or in the court's instructions" suggested the lewd conduct charge consisted of a third, separate, act. (Ibid.) The prosecution had to rely on the two specific sex acts for which the jury had convicted the defendant, and therefore section 654 precluded separate punishment for the lewd conduct conviction. (Id. at pp. 825-826.) "Siko is thus authority that where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1339.)
Similarly, in People v. Bradley (2003) 111 Cal.App.4th 765, 767, the defendant was found guilty of robbery and attempted murder. The attempted murder conviction was based on the prosecution's theory that the defendant was guilty as an aider and abettor in that the crime was a natural and probable consequence of the robbery. (Id. at p. 768.) In concluding that multiple punishment was barred under section 654, the appellate court reasoned: "In this case, the jury could have been offered the opportunity to find appellant indeed entertained a specific intent to attempt the robbery victim's murder. But presumably recognizing this was not a viable option, the prosecutor elected not to submit that possibility to the jury. So the jurors obviously made no such finding. Instead the jurors predicated appellant's guilt of the attempted murder count solely on the theory the prosecution tendered, a theory only requiring appellant to entertain a single objective—to rob that victim. [¶] In our view, the trial court cannot countermand the jury and make the contrary finding appellant in fact personally had both objectives." (Id. at p. 770.)
c) Analysis
A defendant may not be punished for both a kidnapping with intent to rob and the robbery when both crimes are committed pursuant to a single intent and objective, namely the robbery of the victim. (People v. Milan (1973) 9 Cal.3d 185, 197.)
The prosecutor argued the kidnapping "helped [defendants] further their interest in robbing and carjacking by getting rid of him so he could not call the police on them, nor could anyone rescue him or it took a lot more time to rescue him." The prosecutor also argued, "[The victim] was no longer in a position to help or free himself and it facilitated the defendant[s'] ability to finish the robbery, carjacking and escape with their crimes."
The prosecutor theorized that Whitmore's intent in conducting the kidnapping was to rob and carjack the victim—to steal everything belonging to the victim. "The long-standing rule is that '. . . the theft of several articles at one and the same time constitutes but one offense." (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.) Thus, when the prosecutor argued to the jury that the kidnapping was done with the intent to take everything the victim had—including his car—the prosecutor was describing a single offense for purposes of punishment. We cannot contradict that theory, and neither could the trial court. The taking of the car cannot be parsed from the taking of the victim's other belongings. (People v. Siko, supra, 45 Cal.3d at pp. 825-826; People v. Bradley, supra, 111 Cal.App.4th at p. 770.) As a result, we conclude the trial court erred by ordering the carjacking sentence to be served consecutively. (§ 654.)
The People's Respondent's Brief focuses on how the felony murder was independent of the kidnapping and carjacking. The People do not explain how the carjacking was independent of the kidnapping with intent to rob. However, the prosecutor submitted a resentencing brief in the trial court, arguing, "[N]either the carjack nor the kidnap for robbery are incidental to each other. Defendant's initial plan was to steal the money not the car. The kidnapping was the movement of the victim from the front door down the hallway to the back bedroom. The kidnapping was complete after the victim had already told them to take what they wanted and was locked in Whitmore's back bedroom closet. Using the victim's car to escape was not the only means. They could have run or taken a bus as well."
The prosecutor's argument is not persuasive. In particular, the prosecutor argued, "The kidnapping was complete after the victim had already told them to take what they wanted and was locked in Whitmore's back bedroom closet." The kidnapping was done with the intent to rob—that means defendants moved the victim back down the hall to take more items than they had already accessed in the kitchen, e.g., the kitchen knife Dubose already accessed.
Defendants moved the victim down the hall, beat him, tied him up, locked him in a closet, and left. According to the prosecutor's closing argument, that kidnapping was done in order "to finish the robbery, carjacking." That means the carjacking did not happen prior to the kidnapping, and the kidnapping was done with the intent of facilitating the carjacking. The prosecutor's closing argument theory could be most reasonably understood as asserting defendants kidnapped the victim so they could access the victim's keys, car, and personal items. As a result, we are not persuaded that the carjacking is separate from the kidnapping with intent to rob; the crimes were part of a single transaction with a single intent.
DISPOSITION
Dubose's portion of the case is remanded to the trial court. The trial court is directed to follow the directions previously given by this court in Dubose, supra, 224 Cal.App.4th at page 1440, concerning resentencing Dubose.
Whitmore's one year eight month sentence for carjacking (§ 215, subd. (a)) (Count 2) is stayed pursuant to section 654. The trial court is directed to issue an amended abstract of judgment for Whitmore and forward it to the appropriate agency/agencies. In all other respects, the judgment against Whitmore is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.