Opinion
E051725 Super.Ct.No. BAF007105
02-06-2012
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER GRANADOS, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Annie Featherman Fraser, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Alexander Granados approached three people who were sitting in a truck in an alleyway in the City of Beaumont. Defendant pulled out a gun and forced the driver to take him to Cherry Valley. When they arrived at the destination, defendant told the three men to get out of the car and shot once outside the passenger side window. The driver did not get out, and defendant eventually pistol whipped him and forced him out of the truck. Defendant followed the driver outside the truck, demanded the man's wallet, fired one shot, and escaped in the truck.
Defendant was convicted of numerous offenses, including kidnapping for purposes of carjacking, negligent discharge of a firearm, assault with a firearm, robbery, and taking a motor vehicle.
Defendant now claims as follows:
1. He received ineffective assistance of trial counsel.
2. The trial court erred and violated his rights under the state and federal Constitutions by failing to give a unanimity instruction.
3. There was insufficient evidence presented to support his conviction of negligent discharge of a firearm. (Pen. Code, § 246.3, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
4. Section 654 bars multiple punishment on his convictions for kidnapping for the purpose of carjacking and robbery.
I
PROCEDURAL BACKGROUND
Defendant was convicted by a Riverside County Superior Court jury of three counts of kidnapping for the purpose of a carjacking. (Pen. Code, § 209.5, subd. (a); counts 1-3.) For each of these three counts, the jury also found the additional allegations true that defendant intentionally discharged and used a firearm. (Pen. Code, § 12022.53, subds. (b), (c).) Defendant was additionally convicted of negligently discharging a firearm (Pen. Code, § 246.3; count 4); assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 5); robbery (Pen. Code, § 211; count 6), with the special allegation that defendant personally and intentionally discharged and used a firearm (Pen. Code, § 12022.53, subds. (b), (c)); and vehicle theft (Veh. Code, § 10851, subd. (a); count 7). Defendant was sentenced to the indeterminate term of life with the possibility of parole after seven years, plus the determinate term of 43 years in state prison.
Although the verdict form states the language for a violation of section 12022.53, subdivision (d), it was clear that this was a violation of subdivision (b) as charged in the information and as the listed crime on the verdict form.
II
FACTUAL BACKGROUND
A. Prosecution
On November 13, 2009, at approximately 7:30 p.m., Pedro Oliva was sitting in his truck in an alley located in the City of Beaumont. Oliva was sitting in the driver's seat, and two of the workers he employed at his landscaping business, Gregorio Hernandez and Jose Guerrero Penaloza, were seated in the backseat of the cab of his truck.
While they sat in the truck, defendant approached the passenger side of the truck and said that he needed a ride. Oliva had never before seen defendant. Before Oliva could respond, defendant got into the truck and sat in the passenger seat. Defendant told Oliva to drive him to Cherry Valley and pulled out what appeared to be a black .45-caliber semiautomatic gun from his waistband.
Oliva was afraid and complied with defendant's demand to drive him to Cherry Valley. While they were driving, defendant told Oliva and his workers that he had some trouble with other people in Beaumont. He said he had just fired two shots and asked them if they heard the shots. Oliva drove for about six or seven miles and was directed by defendant to stop on Orchard Avenue in Cherry Valley. There were residential houses on the right side of the car and fields on the left side. When they stopped, defendant fired one shot out the passenger side window. Hernandez and Penaloza immediately ran from the truck when defendant told them to get out, and hid.
Defendant pointed the gun at Oliva and told him to "[f]ucking get out" of the truck. Oliva did not immediately exit the vehicle and defendant hit him in the head with the gun. Oliva was bleeding from a cut he sustained when defendant hit him in the head with the gun. Defendant pushed Oliva from the truck. Defendant followed behind Oliva and pointed the gun at him, waving it from head to toe. Defendant told Oliva he was not playing games with him. Defendant then told Oliva to give him his wallet. At this point, defendant once again fired the gun. Oliva handed over his wallet or dropped it to the ground.
Defendant took Oliva's wallet and picked up an expended shell casing. Defendant then drove away in Oliva's truck. Oliva called the police.
Juan Angel Perez lived at the intersection of Star Lane and Orchard Avenue in Cherry Valley. Approximately 7:30 p.m. on that evening, he was inside his house and observed a truck parked on the street near his neighbor's house. Perez heard two gunshots and saw the red flashes from the gun being fired; he estimated there was 20 seconds separating the two gunshots. He saw a man in a white shirt run across the street. He went outside as the truck was leaving the area. He saw three men on the street; one was bleeding from the right side of his head.
Riverside County Deputy Sheriff Aurelian Perde responded to Orchard Avenue approximately 7:45 p.m. Deputy Perde searched the area and found a .45-caliber casing on the ground near where Oliva stated defendant had fired shots. The casing appeared fresh as there was no dust or mud on the casing.
Oliva told the investigating officer, Beaumont Police Officer Matthew Gepford, after the incident, that before defendant arrived at the truck, he had received a telephone call from a person named Jenisa Martinez. Oliva had done landscape service for Martinez's grandmother and she was just an acquaintance. Martinez asked Oliva for a ride, and after the incident she never called him again. Later, Oliva found out that Martinez had a boyfriend who matched defendant's description. Based on this information, Beaumont Police Officer Graham Greer prepared a six-pack photographic lineup and obtained defendant's photograph to include in the lineup due to Oliva's statement. Oliva identified defendant from the photographic lineup.
Hernandez and Penaloza could not identify defendant because his head was covered by a hooded sweatshirt, and they were behind him in the truck.
Officer Greer was given a .45-caliber handgun by San Bernardino County Sheriff's Department Detective Michael Huntsman. It was recovered from defendant during a traffic stop conducted by Detective Huntsman after he was enlisted by Beaumont police officers to find defendant. The gun was identified by Oliva as looking like the one defendant had the night of the incident. The gun was not registered to defendant, but had not been reported stolen.
Oliva's truck was found at a tow yard on December 11, 2009. The vehicle had been wiped down with an oily substance used to eliminate fingerprints. Nevertheless, fingerprints and palm prints were obtained from the truck. A palm print lifted from the truck was a match to defendant. One of the fingerprints also matched defendant.
B. Defense
Defendant called Officer Gepford. Officer Gepford spoke with Penaloza at the scene, and Penaloza told him that the gun that was fired sounded like a .22-caliber.
III
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends he received ineffective assistance of counsel for the following two reasons: (1) failing to object to testimony that the six-pack photographic lineup was developed through the use of a booking photograph and that the photograph was obtained due to defendant's prior contacts with law enforcement; and (2) failing to bring a motion in limine to exclude any mention of defendant's possible gang affiliation.
A. Standard of Review
A cognizable claim of ineffective assistance of counsel requires a showing of serious errors by counsel, which prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 104 S.Ct. 2052].) To establish prejudice, a defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) "We defer to counsel's reasonable tactical decisions and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (People v. Anzalone (2006) 141 Cal.App.4th 380, 394, called into doubt on other grounds in People v. Stone (2009) 46 Cal.4th 131.)
Defendant bears the burden of showing counsel's performance was constitutionally inadequate. "„[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' [Citations.]" (People v. Lopez (2008) 42 Cal.4th 960, 972.) "'If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]' [Citation.]" (People v. Gamache (2010) 48 Cal.4th 347, 391.)
B. Defendant's Photograph
Officer Greer testified regarding preparing the six-pack photographic lineup from which Oliva identified defendant. The People asked the officer how he created the lineup. Officer Greer stated: "After reviewing Officer Gepford's report I took the name of the defendant and located it in our contacts." The People then asked: "So you said you had the name Alexander Granados and you were able [to] obtain a picture for that name?" Officer Greer responded: "Yes, through the Calphoto system." There was no objection by counsel.
The People then asked: "How did you obtain this name Alexander Granados?" Officer Greer responded: "It was listed in Officer Gepford's report. What was related in that report was that the initial interview of the victim, Pedro Oliva, identified Jenisa Martinez and . . . he had previously been talking to her on the telephone prior to the crime taking place, and that the suspect may be her boyfriend Alex. Officer Gepford related in the report that, from previous law enforcement contacts, he knew that a Jenisa Laura [sic] who lived in the area . . . had a boyfriend by the name of Alexander Granados." The People then asked: "So through these previous contacts you were able to obtain that name and photo and include it in the six-pack photo lineup; is that correct?" Officer Greer responded: "That's correct."
Later, during cross-examination, defendant's counsel clarified: "How again did you determine to ask for a booking photo of Alexander Granados?" Officer Greer stated: "[The] name [was] listed in Officer Gepford's report."
We agree with the People that it is not entirely clear from the testimony whether the prior contacts with law enforcement involved defendant or Jenisa Martinez. It is implied that the previous contact involved Martinez. This testimony only assisted defendant in that he could reasonably argue that Martinez was behind the incident, not him. Further, the fact that Officer Greer mentioned "Calphoto" does not necessarily advise a lay juror that such photograph was obtained due to defendant committing a prior crime. As such, defense counsel was not obligated to object to this testimony.
As for why defense counsel followed up with a question as to how the "booking photo" was obtained, we cannot discern from the record the reasons for making such a statement. We cannot eliminate the possibility that it was for some tactical reason. Defendant's sole defense was that he was not the person who committed the instant crime. Defense counsel may have reasoned the question was reasonable on the theory that the police just chose a person with whom they had prior contact to apprehend for the crime rather than on solid evidence of his involvement. As such, we cannot conclude counsel's performance fell below an objective standard of reasonableness.
C. Gang Evidence
During the examination of Detective Hunstman, he testified that he received a telephone call from an Officer Doyle at the Beaumont Police Department. Detective Huntsman stated: "He called me on my telephone and asked me to assist him and his department in the apprehension of [a] subject named Alexander Granados. [¶] . . . [¶] Who was an armed and wanted gang member out of their city." Defense counsel objected, stating: "Objection of the characterization as a gang member." The trial court ruled: "I'll strike that. Jurors are admonished to disregard that portion." The People then asked Detective Huntsman what he did after he spoke with Officer Doyle. Detective Huntsman responded: "I was working with a team, my team that day. I was on the Valley gang team for the special enforcement division, that was my current assignment at the time. I told . . . the rest of my partners, and we obtained some information from Officer Doyle about the proximity of where Alexander Granados might have been living or staying in a house in the city of Highland." Detective Huntsman then described that they conducted surveillance at the location and eventually detained defendant.
Defendant's claim regarding counsel bringing a motion in limine prior to trial that there be no mention of defendant's possible gang affiliation does not establish ineffective assistance of counsel. Initially, there is no support in the record that there was any knowledge on behalf of the People or defense counsel that defendant had any gang affiliations. There were no gang allegations filed and no discussion regarding possible gang involvement. Further, when Detective Hunstman briefly mentioned that defendant may be a gang member, defense counsel acted appropriately and asked that the testimony be stricken. The trial court struck the testimony and admonished the jury to disregard the testimony. The jury was later instructed: "If I ordered testimony stricken from the record you must disregard it. You must not consider that testimony for any purpose." Counsel's actions were not deficient as defendant has not shown how such evidence impacted the defense and counsel performed as any other reasonable counsel would perform.
Further, we cannot see how the fact that Detective Huntsman was assigned to a gang detail had any impact on the defense. The jury was admonished they could not consider the previous gang testimony. Detective Huntsman was enlisted merely to apprehend defendant and his assignment to a gang strike team that night had no bearing on finding defendant. He only stated that he was on the gang detail that day as his current assignment. Moreover, defense counsel may have chosen not to object to this innocuous testimony so as not to highlight the mention of a gang. As stated, if the appellate record "sheds no light on why counsel acted or failed to act" there can be no relief on an appeal for an ineffective assistance of counsel claim. (People v. Gamache, supra, 48 Cal.4th at p. 391.) We simply cannot find counsel's performance deficient here.
D. Prejudice
Moreover, defendant cannot show prejudice as there is no reasonable "probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) The evidence against defendant was overwhelming. Oliva identified defendant both from the photographic lineup (which defendant does not contend was inappropriately prepared) and at trial. Defendant's fingerprint and palm print were found on Oliva's car when it was eventually recovered. When defendant was apprehended, he possessed a .45-caliber gun identified by Oliva as the one used by him during the commission of the crime, and a .45-caliber casing was found at the scene of the crime. Based on the foregoing, defendant cannot show he was prejudiced by any of counsel's alleged failings.
IV
UNANIMITY INSTRUCTION
Defendant contends the trial court erred by failing to give a unanimity instruction for the single charge of negligently discharging a firearm. Defendant argues that the evidence shows two separate acts that could have supported his conviction: (1) shooting out the passenger side window, and (2) shooting when he took Oliva's wallet.
It is well established that the jury's verdict in a criminal case must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) As a result of this principle, when one criminal act is charged but the evidence tends to show the commission of more than one such act, "either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.'" (Ibid.) "[S]uch an instruction must be given sua sponte where the evidence adduced at trial shows more than one act was committed which could constitute the charged offense, and the prosecutor has not relied on any single such act. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275.)
A unanimity instruction is not required if the evidence shows a defendant's acts occurred during a "continuous course of conduct." (People v. Napoles (2002) 104 Cal.App.4th 108, 115.) As the Dieguez court explained: "[N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. 'The "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.' [Citations.]" (People v. Dieguez, supra, 89 Cal.App.4th at p. 275.)
CALCRIM No. 3500 provides, in pertinent part, as follows: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
Section 246.3, subdivision (a) provides, in pertinent part, as follows: "[A]ny person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense . . . ." Defendant here shot the gun two times. He first shot the gun when they arrived in Cherry Valley, aiming out the passenger side window and causing Hernandez and Penaloza to run from the truck. Approximately 20 seconds later, defendant shot a second time while he was taking Oliva's wallet.
There was no reasonable basis upon which the jury could distinguish between the acts committed that constituted each count, and no party argued as such. Defendant's sole defense was that he did not commit any of the crimes. We conclude the trial court was not required to give a unanimity instruction at the time the case was submitted to the jury.
Even if we were to conclude the trial court erred by failing to give a unanimity instruction, we would find that such error was harmless. There is a split of authority as to whether the failure to give a unanimity instruction is subject to the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] or the state law standard under People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [Fourth Dist., Div. Two] [describing split of opinion as to applicable standard of harmless error for failure to give unanimity instruction].) As we did in Wolfe, we apply the Chapman standard of review. (Wolfe, at p. 188.)
Under Chapman, "'we must ultimately look to the evidence considered by defendant's jury under the instructions given in assessing the prejudicial impact or harmless nature of the error.' [Citation.] '[W]e must inquire whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the . . . misinstruction. [Citation.]' [Citation.]" (People v. Wolfe, supra, 114 Cal.App.4th at p. 188.)
As in Wolfe, defendant offered "a unitary defense" to all the charged criminal acts. (People v. Wolfe, supra, 114 Cal.App.4th at p. 188.) If "the jury's verdict implies that it did not believe the only defense offered," then the failure to give the instruction is harmless error. (People v. Diedrich (1982) 31 Cal.3d 263, 283, called into doubt on other grounds in People v. Greenberger (1997) 58 Cal.App.4th 298, 370, fn. 60.)
Defendant argued that Penaloza and Hernandez could not identify him and thought the gun was a .22-caliber gun. Defense counsel asked that the jury find that the People's evidence did not support defendant's conviction and that he should be found innocent of all charges. Defense counsel did not discuss the elements of the crimes or which evidence was insufficient. There was no reasonable basis for the jury to distinguish between the two shots fired. There was no contrary evidence and all of the People's witnesses testified that two shots were fired. Finally, as we conclude post, substantial evidence supported that both acts constituted the negligent discharge of a firearm.
As such, based on the evidence and the defense presented by defendant, any conceivable error by failing to give the unanimity instruction was harmless.
V
SUFFICIENCY OF THE EVIDENCE OF NEGLIGENT DISCHARGE OF A
FIREARM
Defendant claims the evidence was insufficient to support his conviction for negligently discharging a firearm because the evidence did not establish that either time he fired the gun that it could have resulted in the death or injury of another person.
"In reviewing a claim [regarding the] sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
A violation of section 246.3 has three elements: "(1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person." (People v. Alonzo (1993) 13 Cal.App.4th 535, 538.) The jury was instructed that in order to prove the crime of negligent discharge of a firearm, it must be proven that "one, the defendant intentionally shot a firearm; two, the defendant did the shooting with gross negligence; and three, the shooting could have resulted in the injury or death of a person." Defendant raises only that the evidence that his shooting of the gun could result in the "injury or death of a person" was insufficient.
The grossly negligent discharge of a firearm is a crime only if "under the circumstances, it actually had the potential for culminating in personal injury or death." (People v. Alonzo, supra, 13 Cal.App.4th at p. 539.) Shooting a gun in the air has "the potential for culminating in personal injury or death" because the bullets could hit someone or cause responsive gunfire. (Id. at pp. 539-540.) As argued by the People in closing: "Defendant intentionally shot a firearm. So it wasn't an accident. He pulled the trigger, and it was a firearm. . . . He was negligent in doing so because it was a high risk of death or great bodily injury, and [a] reasonable person would have known the risk. So when you shoot a bullet into the air, we all know it comes down and it can kill people. That's what we're talking about. Shooting could have resulted in injury or death, same thing."
"'Section 246.3 was enacted primarily to deter the dangerous practice that exists in some communities of discharging firearms into the air in celebration of festive occasions. [Citations.]' [Citation.]" (People v. Ramirez (2009) 45 Cal.4th 980, 987.) "[T]he Legislature did not intend to require proof that a given person was actually endangered." (Id. at p. 990.)
Here, the first shooting occurred when defendant fired out of the truck, and as Oliva testified, into the sky. Oliva testified that defendant shot "through the window upwards" and that the gun was pointed "[t]o the sky" when he shot. There was no testimony as to where the second shot was fired, but Oliva, Hernandez, and Penaloza were all outside the truck at the time of the second shot. Defendant complains that shooting into the air could not have resulted in injury to other persons because Oliva, Hernandez, and Penaloza were inside the truck, and there were only houses on the right side of the street. Further, there was no testimony as to the second shot.
People v. Clem (2000) 78 Cal.App.4th 346 is instructive. In that case, the court explained that the statute would not apply as follows: "[S]ection 246.3 by its terms presumes that there are reasonable grounds to suspect that people will be endangered. If there are isolated places in this populous state where the willful discharge of a firearm posed no reasonably foreseeable threat to human life, then that act in those places would not violate section 246.3." (Id. at p. 352; see also People v. Overman (2005) 126 Cal.App.4th 1344, 1362-1363 [Fourth Dist., Div. Two] [where the evidence shows that a defendant fired a gun "in the general vicinity of several persons," even if no one saw where the defendant was pointing the gun, this is sufficient to establish "circumstances which had the potential for resulting in personal injury or death" within the meaning of section 246.3].)
Here, it was foreseeable that someone might be out on the streets in the Cherry Valley neighborhood at 7:30 p.m. at night who could be injured by a falling bullet. Perez was close enough that he saw the red flashes from the gun from the window of his house. As for the second shooting, there was little detail as to the circumstances surrounding the shot, but all three of the men were outside the truck when the shooting occurred. Regardless of where defendant aimed the gun, there was a potential for injury to any one of them, not to mention persons in the vicinity. Defendant's behavior posed a foreseeable risk of injury and is the type the statue was intended to deter. As such, substantial evidence supported defendant's conviction for negligent discharge of a firearm.
VI
STAY PURSUANT TO SECTION 654
Defendant contends section 654 bars multiple punishment on his convictions for kidnapping Oliva for the purpose of carjacking and the robbery of Oliva.
Defendant was convicted by the jury of both the kidnapping of Oliva for the purpose of carjacking and the robbery of Oliva. Defendant was sentenced to consecutive sentences for the two crimes committed against Oliva. There was no mention of section 654 barring consecutive sentences.
Section 654, subdivision (a), provides: "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." "The purpose of this legislative protection against punishment for more than one violation arising out of an 'act or omission' is to insure that a defendant's punishment will be commensurate with his culpability." (People v. Perez (1979) 23 Cal.3d 545, 550-551.)
"[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. . . . If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez, supra, 23 Cal.3d at p. 551; People v. Lewis (2008) 43 Cal.4th 415, 519.) Whether a course of conduct is divisible and thus gives rise to more than one act under section 654 depends on the defendant's intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all of a defendant's offenses were incident to one objective, he or she may be punished for any one of the offenses, but not more than one. (Ibid.) However, if a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he or she may be punished for the independent violations committed in pursuit of each objective even though the violations were part of an otherwise indivisible course of conduct. (Perez, at p. 551 .)
Whether section 654 applies is generally a question of fact. (People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5.) A trial court's finding (even if implied) that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Section 209.5 punishes the kidnapping of a person during the commission of a carjacking and applies when "the victim is moved a substantial distance from the vicinity of the carjacking . . . ." (§ 209.5, subds. (a), (b).) Robbery under section 211 only requires the taking of personal property from another with the use of force or fear. The jury was instructed on carjacking, that they had to find defendant took Oliva's vehicle through the use of force or fear. They were further instructed on robbery, that defendant had to take the property of another in his or her presence through the use of force or fear.
It is clear that the objective that defendant had from the beginning was to take Oliva's truck. The jury confirmed such premise by finding defendant guilty of all three counts of kidnapping for the purpose of carjacking against all three victims. That crime was accomplished when he forced Oliva to drive to Cherry Valley from Beaumont and Oliva was forced out of the car. However, rather than just take the truck at that point, defendant got out of the truck and shot his gun a second time. He then demanded that Oliva give him his wallet. Since defendant did not need to exit the truck and shoot again in Oliva's presence in order to accomplish taking the truck, it increased the threat of physical danger to Oliva to exit the truck and commit the robbery of his wallet.
Defendant's objective is further evidenced by his statements to the men that he needed to leave the Beaumont area because he shot his gun several times in the presence of other people. Defendant accomplished this objective by kidnapping all three men and taking Oliva's truck. By committing kidnapping for purposes of carjacking, defendant greatly increased the potential of harm to Oliva and the others above and beyond that faced in committing carjacking and robbery.
Taking the wallet from Oliva was an afterthought and not necessary for his objective to take the personal property from Oliva, or even Hernandez and Penaloza. If it were, defendant certainly could have demanded the personal property from all three men while he had Oliva drive with him for six or seven miles to Cherry Valley.
Defendant relies upon People v. Dominguez (1995) 38 Cal.App.4th 410 to support his claim. In Dominguez, the defendant entered a van, put a weapon to the driver's neck, and demanded everything the driver had. The victim gave the defendant his jewelry then fled on foot because he was scared. The victim's van was found one mile away. (Id. at pp. 414-415.) The trial court found section 654 barred punishment for both the robbery and carjacking. (Dominguez, at p. 420.) The court in Dominguez concluded substantial evidence supported this finding because the defendant simultaneously committed robbery and carjacking. (Id. at pp. 419-420.)
Dominguez involved only a carjacking and robbery, not a kidnapping for purposes of carjacking involved here. Moreover, in Dominguez, the court relied on the fact that defendant acted with one single objective and committed one single act. Here, defendant accomplished his objective of kidnapping for carjacking when Oliva and the others got out of the truck. Only after he accomplished this act did defendant then exit the truck, that he had already commandeered, and then shoot his gun and force Oliva to give him his wallet. Defendant stated from the onset of the crime that he needed Oliva's car in order to leave the Beaumont area where he had been involved in some sort of scuffle. The trial court could reasonably conclude that taking Oliva's wallet was an afterthought, with a separate objective, and that multiple punishment was warranted.
Defendant also relies upon People v. Bauer (1969) 1 Cal.3d 368. In Bauer, the defendant and an accomplice entered a home, tied up several occupants, and took numerous items of personal property. The defendant and the accomplice loaded the personal property into one of the victim's cars and drove off in the car. (Id. at p. 372.) The defendant argued punishing him for both the robbery and auto theft violated section 654. The Supreme Court first concluded that the intent to take the car was formed before or during the robbery. (Bauer, at p. 377.) Our Supreme Court explained that "the taking of several items during the course of a robbery may not be used to furnish the basis for separate sentences. . . . [W]here a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible." (Id. at pp. 376-377.)
Once again, Bauer involved carjacking and robbery, not kidnapping for purposes of carjacking and robbery that is involved in this case. Moreover, the evidence here does not support that defendant took Oliva's truck and wallet in one continuous transaction, with one intent and objective. Oliva had already exited the truck and defendant, who was inside, had accomplished the kidnapping for the purpose of carjacking. Defendant had the opportunity at this point to end his criminal activity and leave with Oliva's truck. Rather than drive off in the truck, he exited the truck and shot his gun. He then demanded Oliva turn over his wallet. "[T]o reiterate, the purpose of . . . section 654 . . . is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Butler (1986) 184 Cal.App.3d 469, 474 [Fourth Dist., Div. Two].) If defendant were not held accountable for the separate robbery that occurred after he had already committed the carjacking, it would give no incentive for a defendant to stop his crime, which presents a greater risk to the victim.
Defendant also relied upon People v. Ortega (1998) 19 Cal.4th 686, at oral argument to support his claim that section 654 barred multiple punishment for his robbery and kidnapping for purposes of carjacking convictions. Ortega also involved only carjacking and robbery charges, and the items were taken simultaneously, unlike the facts of the instant case. (Ortega, at pp. 690-691, 700.)
Here, defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other. We reject defendant's claim and find he can be punished for both the robbery and kidnapping for purposes of carjacking.
We note that the People argued in closing that defendant took both Oliva's truck and wallet as follows: "Robbery the defendant took another's property, in this case he took [Oliva]'s wallet and his vehicle. None of those things belonged to him. Property taken from another's immediate presence. The vehicle, he was standing outside his vehicle, and the wallet was on his person at the time. He threw it on the ground. That still qualifies for immediate presence. Taken against his will, this is obvious, they didn't want—he didn't want his stuff to be taken. When force or fear used, defendant intended to deprive property permanent or temporarily. So he didn't intend to give the wallet back, he wasn't borrowing it; he didn't intend to give the vehicle back, he wasn't borrowing it. He took those things." By finding defendant guilty of kidnapping for the purpose of carjacking against all three men, it necessarily concluded that the carjacking occurred prior to the robbery and the robbery count was for the theft of Oliva's wallet, because at the time defendant took Oliva's wallet and drove off with the truck, Hernandez and Penaloza had already left the area.
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VII
DISPOSITION
The judgment is affirmed in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.