Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. SWF019813, Mark E. Petersen, Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI, J.
A jury found appellant and defendant Wesley James Hall, Jr., guilty of kidnapping for robbery (Pen. Code, § 209, subd. (b)(1)) (count 1); two counts of robbery (Pen. Code, § 211) (counts 2 and 3); burglary (Pen. Code, § 459) (count 4); carjacking (Pen. Code, § 215, subd. (a)) (count 5); felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) (count 6); and evading a peace officer while operating a motor vehicle (Veh. Code, § 2800.1, subd. (a)) (count 7). The jury also found true that in the commission of counts 1 through 5, defendant participated as a principal knowing that another principal was armed with a firearm. (Pen. Code, § 12022, subd. (a)(1).) Defendant thereafter admitted that he had suffered two prior prison terms. (Pen. Code, § 667.5, subd. (b)(1).) As a result, defendant was sentenced to a total determinate term of 13 years, plus an indeterminate term of seven years to life.
On appeal, defendant contends: (1) there was insufficient evidence to support his conviction on count 1; and (2) his sentence on counts 2, 4, and 5 should have been stayed pursuant to Penal Code section 654. We agree that defendant’s sentences on counts 2 and 4 should have been stayed pursuant to section 654. We, however, reject defendant’s remaining contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On February 5, 2007, Neil was helping his friend, Miguel, and Miguel’s younger brother, Derek, move from their rented mobilehome in sparsely populated Anza to a new residence in Murrieta. Miguel and Derek’s father had rented a brand new PT Cruiser convertible for use during the move.
At about 7:40 p.m., Derek and Neil had loaded the car with the final items and were waiting for Miguel to return from the landlord’s house located elsewhere on the property. While Derek was sitting inside the house, Neil walked outside to the PT Cruiser. As Neil opened the door to the car, he heard someone say, “‘Freeze, motherfucker.’” Startled, Neil dropped the car keys, looked up, and saw the barrel of a shotgun. He also observed two men wearing ski masks. The larger of the two men, identified as defendant, was holding a shotgun pointed directly at Neil. The smaller of the two men was holding a large bowie-type knife.
Believing the two men may have been friends of his who were playing a joke, Neil said, “‘Wow, Josh. You scared the shit out of me.’” Defendant responded by pointing the shotgun at the car and firing it downward toward Neil. Thereafter, defendant pumped the shotgun, reloaded a new round, pointed it back at Neil, and said, “‘I’m not Josh, and I’m not fuckin’ around. Get in the house.’”
Meanwhile, Derek, who heard the gunshot, ran to the backdoor, opened the door, and poked his head outside. Defendant, from a distance of about four to five feet, quickly pointed the shotgun at Derek and ordered him to get “‘inside the fuckin’ house.’”
Once inside the mobilehome, defendant and his accomplice looked around and realized there was nothing in the house. Defendant ordered Neil and Derek to “‘[g]et in the back room. Give me your phones and your wallet. And if you guys go anywhere, you’re going to get blasted.’” The estimated distance from the backdoor of the mobilehome to the back room was about 30 feet. Feeling scared, Neil and Derek complied with defendant’s orders, went into the back room, and each gave defendant their cellular telephones and wallets. Shortly thereafter, Neil and Derek heard defendant and his cohort start a car, later identified as the rented PT Cruiser, and drive away.
Defendant and his accomplice did not tie up Neil or Derek or lock them in the back room. Once Neil and Derek were certain that the car had pulled away, the men ran to the landlord’s house and notified the police of the incident.
Riverside County Sheriff’s Deputy Gruwell and his partner arrived at the landlord’s residence within 10 to 15 minutes after being notified of the call by dispatch and separately spoke with Neil and Derek. Both Neil and Derek gave similar descriptions of the incident, the suspects, and the weapons used. Deputy Gruwell noticed that both Neil and Derek appeared to be shaken up and afraid.
Riverside County Sheriff’s Deputy Zunker was on patrol in the area when he observed a white PT Cruiser matching the description of the stolen vehicle proceeding down Highway 79. Deputy Zunker pursued the vehicle, and a dangerous high-speed pursuit ensued. Eventually, defendant, who was driving the vehicle, lost control of the car, veered off the road, and crashed into the shoulder. Defendant, who was wearing gloves and a ski mask, exited the vehicle and started fleeing on foot. Deputy Zunker eventually caught defendant and arrested him.
A search of defendant’s person revealed a shotgun shell in his front pocket, a wallet, and a cellular telephone belonging to one of the victims. A search of the PT Cruiser revealed a large knife, gloves, masks, and various property belonging to Neil and Derek. The vehicle also contained shotgun shells matching the expended shotgun shell that had previously been recovered from the scene of the crime.
In an in-field lineup, Derek and Neil both identified defendant as one of the two assailants involved in the incident and as the assailant with the shotgun. Derek and Neil also identified defendant as the gunman at trial.
After defendant waived his constitutional rights, defendant admitted that he was involved in the robbery, but claimed to do so because he was owed $300 by the Gonzalez family. He further asserted that his accomplice was a friend he had known for a “[c]ouple of days” named “Johnny, ” and that the robbery was Johnny’s idea. Johnny had provided all the gear, including the ski masks, gloves, shotgun, and bowie knife. Defendant claimed that Johnny was the aggressor and the person with the shotgun and knife.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to prove his conviction for kidnapping of Neil for purpose of robbery because his movement of Neil from outside the mobilehome to the back room was merely incidental to the robbery and did not sufficiently increase the risk of harm to Neil.
1. Standard of Review
When determining whether the evidence was sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) When a defendant challenges the sufficiency of the evidence to support a conviction, this court must examine the entire record in the light most favorable to the judgment, presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, and determine whether any rational trier of fact could have found the essential elements of the crime true beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 577-578.)
2. Elements of Aggravated Assault
Section 209, subdivision (b)(1), which defines aggravated kidnapping, provides, “Any person who kidnaps or carries away any individual to commit robbery... shall be punished by imprisonment in the state prison for life with the possibility of parole.” Aggravated kidnapping “requires movement of the victim that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself.” (People v. Martinez (1999) 20 Cal.4th 225, 232 (Martinez); see also People v. Rayford (1994) 9 Cal.4th 1, 12 (Rayford).) More simply, the movement must be more than incidental and must increase the inherent risk of harm. These two aspects are interrelated. (Martinez, at p. 233; Rayford, at p. 12.)
In determining the first prong, whether the movement was merely incidental to the underlying crime, the jury must consider the scope and nature of the movement, including the actual distance a victim is moved. However, “there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.’” (Martinez, supra, 20 Cal.4th at p. 233.)
The second prong, i.e., whether the movement increased the risk of harm beyond that inherent in the crime of robbery, includes such factors as the likelihood of detection, the victim’s attempts to escape or desperate attempts to extricate himself or herself, the defendant’s opportunity to commit additional crimes, and the danger to the victim due to the movement. (Martinez, supra, 20 Cal.4th at p. 233.) “The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.” (Rayford, supra, 9 Cal.4th at p. 14.) The increased risk may be of either physical harm or psychological trauma. (People v. Nguyen (2000) 22 Cal.4th 872, 886.)
For example, in People v. Shadden (2001) 93 Cal.App.4th 164 (Shadden), the defendant entered a video store, punched the store owner, and dragged her nine feet into a small back room, where he attempted to rape her. (Id. at p. 167.) Shadden found this evidence sufficient to support the defendant’s conviction for kidnapping to commit rape, in that the movement “was substantial for [the victim] and it changed her environment.” (Id. at p. 169.) The movement increased her risk of harm because she was secluded from the public view, making it less likely for others to discover the crime. (Id. at pp. 169-170; but see People v. Hoard (2002) 103 Cal.App.4th 599, 606-607 [Fourth Dist., Div. Two] (Hoard) [disagreeing with Shadden’s analysis].)
In Rayford, supra, 9 Cal.4th 1, the defendant moved the victim 105 feet at night from the parking lot of a closed store to a wall, where she was largely, but not entirely, secluded from the view of potential passersby. (Id. at p. 23.) Rayford held, “The jury could reasonably have concluded that [the victim’s] forcible movement for this distance and under these circumstances was not merely incidental to the attempted commission of rape, and substantially increased her risk of harm.” (Ibid.)
In People v. Salazar (1995) 33 Cal.App.4th 341, the defendant pulled the victim from an exterior motel hallway, through a motel room, and into a bathroom, a distance of approximately 29 feet. This movement was sufficient to support the kidnapping with the intent to commit rape conviction because the movement of the victim “crossed significant boundaries (from the public walkway into the motel room bathroom) and was not a necessary or a natural part of committing the rape.” (Id. at p. 347.)
In People v. Corcoran (2006) 143 Cal.App.4th 272, the appellate court upheld an aggravated kidnapping conviction in which the movement of the victims occurred after the attempted robbery had been aborted. The defendant herded the victims about 10 feet from a public area to a small back room with no windows and a solid door. The court noted the movement did not facilitate the robbery, but only increased the danger. (Id. at p. 280.) The court explained that “the movement of the victims had nothing to do with facilitating taking cash from the [establishment]; defendant and his accomplice had aborted that aim, and their seclusion of the victims in the back office under threat of death was clearly ‘excess and gratuitous.’” (Id. at pp. 279-280.)
3. Analysis
Here, we likewise conclude the evidence was sufficient to support the jury’s finding that the movement of Neil was not merely incidental to the robbery. While it appears Neil was not moved a great distance, this fact is not dispositive. (Martinez, supra, 20 Cal.4th at p. 233.) Moreover, “[w]here movement changes the victim’s environment, it does not have to be great in distance to be substantial.” (Shadden, supra, 93 Cal.App.4th at p. 169.) Defendant moved Neil from a location outside the mobilehome to the inside, where Neil was then forced to a back room and ordered to give his wallet and cellular telephone to defendant. This movement made it less likely anyone would detect the robbery or that the victims could effectuate any escape. (See, e.g., Rayford, supra, 9 Cal.4th at p. 23.) While, as defendant points out, the incident occurred at night, around 7:40 p.m., in a sparsely populated area, the movement of Neil into the mobilehome nonetheless changed his environment.
The record is unclear regarding the distance of the movement from the outside to the inside of the mobilehome. However, Derek testified that when he opened the backdoor, after he heard the shotgun fire, he saw defendant point the shotgun at him from an estimated distance of four to five feet.
Furthermore, the movement of Neil was not merely incidental to the robbery because it was not essential to and did not directly facilitate the robbery. (People v. Salazar, supra, 33 Cal.App.4th at p. 347.) Defendant could have demanded Neil’s wallet and cellular telephone while outside. Neil’s property was in his pocket and could have been taken while standing outside the mobilehome. Although the evidence indicates that once inside the mobilehome defendant and his accomplice looked around and realized there were no items of value in the house, nothing in the record suggests Neil was moved to assist defendant and his accomplice in retrieving or locating additional property in the mobilehome. Neil’s movement to the inside of the mobilehome was therefore not incidental to the robbery.
In his reply brief, defendant asserts, “the prosecution’s own theory was essentially that the movement of [Neil] was integral and incidental to the robbery itself” because the prosecutor’s statements indicate that defendant and his accomplice’s intent at the crime’s inception was to enter the mobilehome to look for additional property. However, defendant ignores the fact that our task in review of his claim of insufficient evidence is to determine whether there was sufficient evidence upon which any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560].) Our focus is on the essential elements of the crime as set forth in the instructions to the jury, not on the theory of the case as presented by the parties. “[W]e presume that the jury relied on the instructions, not the arguments, in convicting defendant. ‘[I]t should be noted that the jury, of course, could totally disregard all the arguments of counsel.’” (People v. Morales (2001) 25 Cal.4th 34, 47.) So long as the prosecution did not mislead the jury by arguing an erroneous theory, we will affirm if we find the evidence sufficient to support a verdict of guilty upon some lawful theory, whether that theory was argued by the parties or not.
The evidence was also sufficient to prove the second prong, i.e., the movement of Neil increased the risk of harm to him over and above the risks inherent in the crime of robbery. Movement of the victim into a confined space may give rise to the danger that the victim may attempt to escape, which could increase the likelihood of injury or violence against the victim. (Martinez, supra, 20 Cal.4th at p. 233.) Neil’s escape routes were much more limited inside the mobilehome than they had been when he was standing outside near the PT Cruiser. The movement of Neil to an enclosed space made him far more vulnerable and made his escape attempt more dangerous. Although the area was sparsely populated, the jury could reasonably have concluded that the movement of Neil into the enclosed area nonetheless decreased the odds of others discovering the crime. Passersby would not have been able to hear any screams for help from inside the mobilehome, nor would they have heard defendant’s demands for the victims’ wallets and cellular telephones and realized that a robbery was transpiring. The jury could reasonably have inferred that a victim ordered into the mobilehome and then to a back room is less likely to be noticed than a victim being accosted at gunpoint in front of the mobilehome. Thus, the movement of Neil enhanced defendant’s opportunity not only to commit the robbery, but also to commit additional crimes against Neil, had he so desired. (Shadden, supra, 93 Cal.App.4th at pp. 169-170.)
Defendant argues that the movement of Neil did not “substantially” increase his risk of harm. However, unlike the California Supreme Court’s earlier decisional authority, the revised version of section 209, subdivision (b), which codified the asportation standard and was in effect at the time of the instant crimes, “does not require that the movement ‘substantially’ increase the risk of harm to the victim.” (Martinez, supra, 20 Cal.4th at p. 232, fn. 4.) Therefore, defendant’s reliance upon cases using the earlier standard is misplaced.
The People note that “the jury was instructed that the movement ‘must have substantially increased the risk of physical or psychological harm to the person.’” The People are partially correct. In relevant part, the jury was instructed as follows: “3. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance; [¶] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a robbery.” Nonetheless, the parties here have not raised any claim of instructional error, and there are no authorities that stand for the proposition that we must employ an inapplicable legal standard to a sufficiency of the evidence claim because the jury was instructed on the more stringent standard.
Defendant also cites several older California Supreme Court cases in support of his argument. However, in each of the cited cases, the victims were moved either to facilitate the robbers’ obtaining the fruits of the robbery and/or were moved only within the premises where the robbers found them. (E.g., People v. Daniels (1969) 71 Cal.2d 1119, 1126, 1139 [rape victims forced to move 18, 5, and 30 feet, respectively, within their own homes in search of money]; People v. Mutch (1971) 4 Cal.3d 389, 397-399 [during robbery of milk company, one victim was taken 30 to 40 feet to adjacent room where safe was located, where robber attempted to force him to divulge safe combination, while other victim was moved approximately 30 feet to an adjacent manager’s office]; People v. Killean (1971) 4 Cal.3d 423, 424 [victims were moved across apartment threshold and through various rooms in apartment in search of valuables]; People v. Smith (1971) 4 Cal.3d 426, 427 [hotel employee forced to move within hotel, across room and up to second floor room]; People v. Adams (1971) 4 Cal.3d 429, 430 [victims of liquor store and gas station robberies were moved from room to room in businesses where they were found by robbers]; People v. Morrison (1971) 4 Cal.3d 442, 443 [victim forced to move within private residence up and down stairs and through various rooms]; People v. Williams (1970) 2 Cal.3d 894, 901-902 [outside movements on gas station property held to be analogous to movements inside a home or place of business].)
To summarize, from the Supreme Court cases, we know that moving the victim around inside “a residence, ... a place of business or other enclosure” is generally incidental. (People v. Daniels, supra, 71 Cal.2d at p. 1140.) This is true even if the victim is moved from the indoors to the outdoors on the same premises, at least when a place of business, such as a gas station, is involved. (People v. Williams, supra, 2 Cal.3d at p. 901.) On the other hand, driving the victim four blocks is, as a matter of law, not incidental. Moreover, making the victim walk as little as one block is, as a matter of law, not incidental, at least when the result is to take the victim from a visible, public place to a place of concealment. (People v. Thornton (1974) 11 Cal.3d 738, 767-768 & 768, fn. 20, abrogated by Martinez, supra, 20 Cal.4th at pp. 233-234, 245-247.)
Likewise, defendant’s reliance on People v. John (1983) 149 Cal.App.3d 798, is inapposite. There, the victim’s parents owned “a cluster of buildings on an eight-acre plot” all “connected by a system of driveways, stairs and open air causeways.” (Id. at pp. 801-802.) The parents lived in the main house. Although the victim lived in a separate, detached pool house, he was free to use the main house. (Id. at p. 801.) Indeed, when the crimes were committed, his parents were away, and he was in charge of the entire complex. (Id. at p. 802.) In the course of robbing the victim, the defendant forced him, at gunpoint, to go from the pool house through an open air causeway and into the main house, a distance of at least “210 to 230 feet, plus two sets of stairs of 10 steps each.” (Id. at p. 803.) The appellate court held that the movement of the victim was incidental to the robbery and did not substantially increase the risk of harm. (Id. at pp. 806-807.) It explained that the victim “was never forced to move outside of the interconnected living quarters shared by him and his parents.” (Id. at p. 805.) It added that “all of the movement was at the same location” and “was an integral part of the robbery and burglary which occurred.” (Id. at p. 806.) Significantly, unlike this case, the movement in John was not from a public to a private space but from one place to another inside a private compound.
Finally, defendant relies upon the majority opinion in Hoard, supra, 103 Cal.App.4th 599, in which a divided panel of this court found insufficient evidence to support a conviction for aggravated kidnapping. In Hoard, the defendant entered a jewelry store shortly after it opened, displayed a gun, demanded a key to the jewelry cases, directed the two employees approximately 50 feet into a back office, and bound them. (Id. at pp. 602, 607.) The defendant then removed jewelry from the cases. When customers entered, he told them the store was closed for maintenance or he was performing inventory. The majority opinion found the movement of the employees was merely incidental to the robbery and did not increase the risk of harm. (Id. at p. 607.) The movement of the employees was undertaken merely to facilitate the robbery, as it allowed the defendant to conceal the robbery from customers and gave him free access to the jewelry. (Ibid.) Nor did the movement of the employees substantially increase their risk of harm. The majority concluded that tying the victims in the back office actually decreased their risk of harm in that they could not have attempted to thwart the robbery. (Ibid.)
The facts in Hoard, supra, 103 Cal.App.4th 599, are distinguishable. The defendant in Hoard merely moved the employees within the business where he found them. Defendant, on the other hand, forced Neil from outside, next to the PT Cruiser, into an enclosed space. As we have discussed, this movement was unnecessary to the robbery. Nor can it be said that the movement of Neil diminished the chance of further violence, as was the situation in Hoard. Neil cannot be said to have been safer inside the mobilehome with gun and knife-wielding robbers than he would have been had they left him outside, where he could certainly have effectuated an easy escape and been entirely out of danger. We conclude the evidence was sufficient to support the kidnapping of Neil for purpose of robbery conviction.
B. Section 654
Defendant was sentenced to a total determinate term of 13 years, plus an indeterminate term of seven years to life in state prison as follows: seven years to life for count 1 (kidnapping of Neil for purpose of robbery); one year four months (consecutive) for count 2 (robbery of Neil); four months (consecutive) for the enhancement allegation attached to count 2; one year four months for count 3 (robbery of Derek); four months (consecutive) for the enhancement allegation attached to count 3; one year four months for count 4 (burglary); four months (consecutive) for the enhancement allegation attached to count 4; five years (consecutive) for count 5 (carjacking); one year (consecutive) for the enhancement allegation attached to count 5; and one year each (consecutive) for the two prior prison term enhancements. The trial court struck the enhancement allegation attached to count 1, and ordered the sentences as to counts 6 (felon in possession of firearm) and 7 (evading a police officer while operating a motor vehicle) to run concurrent.
Defendant contends that his sentences on counts 2 (robbery of Neil) and 5 (carjacking) should have been stayed pursuant to section 654 because those crimes arose from the same course of conduct as count 1 (kidnapping of Neil for purpose of robbery). He also claims that his sentence on count 4 (burglary) should have been stayed pursuant to section 654 because that crime arose from the same course of conduct as counts 1, 2, and 3 (robbery of Derek).
Under section 654, “[a]n 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 statute thus prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer, supra, 5 Cal.4th at p. 1208.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98 [Fourth Dist., Div. Two].)
The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
1. Count 2 (Robbery of Neil)
Defendant contends that his sentence on count 2 (robbery of Neil) should be stayed pursuant to section 654 because count 1 (kidnapping of Neil for purpose of robbery) “was the means of accomplishing or facilitating the underlying objective of stealing from him.” The People concede that defendant’s sentence on count 2 (robbery of Neil) should be stayed. We also agree. Both the kidnapping of Neil for purpose of robbery and the robbery of Neil were committed with a single objective, to steal from Neil, and were part of an indivisible transaction. (People v. Beamon (1973) 8 Cal.3d 625, 639 [kidnapping for robbery and robbery].) Accordingly, defendant’s sentence on count 2 (one year four months) and for the enhancement attached to count 2 (four months) should be stayed under section 654.
Because we find defendant’s sentence on count 2 and its attendant enhancement should have been stayed due to defendant harboring a single intent and objective, we need not discuss defendant’s “violent crimes exception” argument addressed in his supplemental opening brief.
2. Count 5 (Carjacking)
Defendant also contends that his sentence on count 5 should have been stayed because the offense was part of an indivisible course of conduct, namely stealing everything from Neil, including the PT Cruiser. We disagree.
Substantial evidence supports the trial court’s implied finding that defendant harbored multiple criminal objectives when committing the kidnapping of Neil for purpose of robbery and the carjacking. The prohibition against double punishments for a continuous course of conduct in section 654 does not extend to assaults, threats, or other criminal acts committed for gratuitous purposes or to facilitate an escape or evade prosecution. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Nguyen (1988) 204 Cal.App.3d 181, 185- 191.) For example, in People v. McGahuey (1981) 121 Cal.App.3d 524, 529, the defendant burglarized a house and was discovered by the victim as he was leaving the scene. When the victim picked up the telephone to dial police, the defendant threw a hatchet at her through a closed window, evidencing a new intent to evade detection and prosecution. (Ibid.)
In the present matter, the record shows that the carjacking occurred after the robbery of Neil had been completed and as a means to facilitate defendant’s escape. After defendant and his cohort ordered the victims into a back room of the mobilehome and robbed them of their cellular telephones and wallets, defendant and his accomplice stole the PT Cruiser and drove away. The evidence is clear that when defendant left the mobilehome, his robbery of Neil was complete. Defendant then formed the intent to carjack the car to facilitate his escape. Intent to commit the carjacking was formed after commission of the kidnapping for purpose of robbery.
Accordingly, we find defendant’s intent in committing the carjacking was separate from, rather than incidental to, his intent and objective in committing the robbery. Imposing a separate, consecutive sentence for the carjacking offense was thus proper under section 654 and did not constitute dual punishment. The trial court properly imposed separate punishments on counts 1 and 5.
3. Count 4 (Burglary)
Defendant asserts that his sentence on count 4 should have been stayed because the offense was committed with a single intent and objective, specifically to “steal any and all property within the control of [Neil] and [Derek].” The People argue that the offenses are divisible because defendant “harbored at least two separate criminal objectives in committing the robberies and the burglary.” They point out that once defendant “entered the house, he had the additional, separate criminal intent to search the house for property and take anything of value.”
The elements of burglary are entry into a house or other structure with the intent to commit a felony. (§ 459.) Generally, “if the defendant commits both burglary and the underlying intended felony, Penal Code section 654 will permit punishment for one or the other but not for both. (People v. Price (1991) 1 Cal.4th 324, 492... [burglary and intended murder]; People v. James (1977) 19 Cal.3d 99, 119-120... [burglary and intended robbery]; In re McGrew (1967) 66 Cal.2d 685, 688... [burglary and intended sexual offenses]; People v. Cline (1998) 60 Cal.App.4th 1327, 1336... [burglary and intended theft]; People v. Curtin (1994) 22 Cal.App.4th 528, 532... [burglary and intended forgery]; People v. Radil (1977) 76 Cal.App.3d 702, 713... [burglary and intended assault]; People v. Williams (1971) 19 Cal.App.3d 339, 345... [burglary and intended arson].)” (People v. Centers, supra, 73 Cal.App.4th at pp. 98-99.)
People v. Perry (2007) 154 Cal.App.4th 1521, is instructive. There, the defendant was in the midst of burglarizing a car when the owner discovered the crime in progress. The defendant jumped out, holding the car stereo in one hand and a screwdriver or ice pick in the other, and adopted a fighting stance for several seconds before running away. (Id. at p. 1523.) The owner gave chase, eventually catching up to the fleeing burglar. The defendant again adopted a fighting stance while still holding the screwdriver or ice pick before again running away. (Id. at p. 1524.) With the help of a passing motorist, the owner was eventually able to tackle the defendant and detain him until police arrived. (Ibid.) The defendant was convicted of second degree robbery and second degree vehicular burglary. (Id. at p. 1523.) The Court of Appeal held that section 654 required his sentence on the burglary to be stayed, noting the defendant’s objective was to steal the property. (Id. at p. 1527.)
In the present matter, we find that the burglary and robbery convictions are indivisible because the evidence shows the offenses were committed with the single objective of stealing from Neil and Derek, and the force used during the robbery was simply the means toward accomplishing this objective. The force used against the victims was incidental to, rather than independent of, defendant’s objective of stealing from them.
The People’s reliance on People v. Green (1985) 166 Cal.App.3d 514 (Green) and People v. Dugas (1966) 242 Cal.App.2d 244 (Dugas) (disapproved on other grounds in Meeks v. Superior Court (1991) 230 Cal.App.3d 698), is misplaced. In Green, the court found that substantial evidence supported the trial court’s determination that a burglary and robbery did not constitute an indivisible course of conduct, explaining the burglars were unaware the victim was in the home when they entered, “unexpectedly come upon” the victim in the bedroom, raped her and stole her rings from her fingers. (Green, at p. 518.) Likewise, in Dugas, the court rejected the defendant’s argument that section 654 barred punishment for both a robbery and burglary conviction where the victim came home during the course of the burglary. The court explained that the burglary had already been accomplished when the victim returned to the residence, and the defendant had no intent to commit a robbery until the victim returned and entered his residence. (Dugas, at p. 251.)
This case is factually distinguishable from Green and Dugas. Substantial evidence shows that defendant committed the robberies and burglary with the same intent and objective of stealing from the victims. Defendant and his accomplice entered the mobilehome, knowing Neil and Derek were there, with the intent to commit theft. There is no evidence to suggest that defendant and his accomplice were surprised to find Neil and Derek inside the mobilehome prior to entering, with the intent to steal, or that the two crimes were committed separately. Essentially, the robbery was part of the same common plan as the burglary. Defendant is therefore entitled to a stay of count 4 (burglary) and the related enhancement attached to that count under section 654.
Because we find defendant’s sentence on the burglary conviction and its attendant enhancement should have been stayed based on defendant harboring the same intent and objective as the robberies, namely stealing from the victims, we need not address defendant’s “violent crimes exception” argument.
III
DISPOSITION
The sentences imposed on counts 2 (robbery of Neil) and 4 (burglary) and the related enhancements attached to those counts are stayed pursuant to section 654. The superior court clerk is directed to amend the abstract of judgment and the minute order of the sentencing hearing to reflect the stay of the sentences imposed on counts 2 and 4 and the related enhancements attached to those counts, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., MILLER, J.