Opinion
C092891
03-11-2022
THE PEOPLE, Plaintiff and Respondent, v. TYCORY TRAVON HEMPSTEAD, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 20FE007349)
HULL, Acting P. J.
Defendant Tycory Travon Hempstead was convicted of battery on an intimate partner and robbery and the trial court sentenced him consecutively for each of these offenses. Defendant contends his sentence for battery must be stayed because his commission of battery and robbery shared the sole purpose of obtaining the victim's money. We vacate the sentence and remand for resentencing.
Facts and History of the Proceedings
The Incident
The facts of the incident come from three sources: the motel employee who heard the assault and robbery but did not see what happened; the victim's 911 report made after the crimes were complete; and the victim's statements to the Sacramento Sheriff's Deputy who went to the location of the robbery/assault. The victim did not testify at trial, although the prosecution unsuccessfully attempted to serve her with a subpoena. When contacted, she informed the prosecutor she would not testify.
At about 3:00 p.m. on May 6, 2020, motel employee Jonathan Valenti received complaints about room 214. Valenti went up to the room to investigate and heard a commotion. He could not see into the room and did not know what was going on inside the room. As he approached, the first thing he heard was banging against the door that sounded like a body falling against a door. Valenti knocked on the door two times and defendant opened it a couple seconds later. The room was in disarray and the victim was standing behind defendant. Defendant appeared uninjured. The victim was bleeding from the back of her head and from her mouth.
Defendant turned back into the room, walked to the back of the room, and picked up what looked like a wallet. Defendant then walked out of the room. The victim said defendant was taking her wallet. According to the motel's surveillance camera, defendant went down the back staircase and jumped the fence towards the houses in the neighborhood. According to Valenti, the police arrived about five minutes after he reached the room.
The victim called 911 and asked the dispatcher to send someone to her location. She told the dispatcher, "My boyfriend put his hands on me, the back of my head is busted, he ran off with my money, my wallet . . . my baby is, I don't know . . . ." When asked what happened, the victim replied, "Um, me and my boyfriend, we got into it."
She further elaborated, "I'm the sole provider so I had all the money. He wanted to leave. He had n-no money to leave. I had already hidden my wallet. So he was getting ready to leave. And he was looking for my wallet." The victim told the dispatcher defendant ran out the door with her wallet. She said all of this happened 15 minutes prior to her call.
A Sacramento Sheriff's Deputy went to the motel. He interviewed the victim. The victim was upset and in tears.
The victim told the deputy she had been in a relationship with defendant off and on over the past 14 years. The two of them had a child together. The victim informed the deputy the dispute between her and defendant started because she found some messages defendant sent to other women. The victim learned about these messages the day before the incident. She believed defendant would want to leave when confronted with this information, so she secreted her money wallet and another wallet in a baby bag and hid the baby bag under the bed.
When the victim confronted defendant about his infidelity, he wanted her money and he wanted to leave. The victim told the deputy when she refused to give him the money, defendant punched her in the face and head approximately seven times. The victim also told the deputy she and defendant had tussled over a baby bag. She grabbed the baby bag and held it against her chest and defendant pulled on it to get it away from her. Defendant then picked her up and slammed her to the ground causing her head injury. She said once defendant got the baby bag from her, he took the wallets and then left the room.
Sheriff's deputies arrested defendant nearby shortly after the call. He had the victim's wallet with her identification and credit card and a large wad of cash. They also found the victim's other wallet in a nearby backyard in which defendant had been spotted.
Defendant's investigator testified she interviewed the victim. She said the victim reported she incurred the injuries to her head when she and defendant both dove for the diaper bag at the same time. The victim claimed to have hit her head on something.
Verdict and Sentence
The jury acquitted the defendant of inflicting corporal injury on a person with whom he had a dating relationship (Pen. Code, § 273.5, subd. (a)), but convicted him of the lesser included misdemeanor offense of intimate partner battery (Pen. Code, § 243, subd. (e)(1).) (Statutory section citations that follow are to the Penal Code.) The jury also convicted defendant of robbery. (§ 211.) After defendant waived a jury trial on the prior conviction allegations, the trial court found defendant previously was convicted of a serious felony. (§ 667, subds. (a) and (b)-(i).)
On the robbery conviction, the trial court sentenced defendant to a prison term of 11 years in state prison, calculated as follows: the middle term of three years for the robbery, doubled for his prior strike conviction, plus five years for the prior serious felony conviction. On the misdemeanor intimate partner battery, the trial court sentenced him to one year in the county jail consecutive to the prison term. The court applied defendant's presentence credits to the jail term.
Discussion
Staying of Sentence for Battery Under Section 654
Defendant contends the trial court erred under section 654 when it did not stay his sentence for intimate partner battery. Defendant asserts the battery and the robbery were committed during a single course of conduct and share a common objective - to take the victim's property.
Former 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."
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. (See Neal [v. State of California (1960)] 55 Cal.2d [11, ] 19; People v. Beamon (1973) 8 Cal.3d 625, 639.) We first consider if the different crimes were completed by a 'single physical act.' ([People v.] Jones [(2012)] 54 Cal.4th [350, ] 358.) If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act-i.e., a course of conduct- do we then consider whether that course of conduct reflects a single' "intent and objective"' or multiple intents and objectives. (Id. at p. 359; see also People v. Mesa (2012) 54 Cal.4th 191, 199 ['Our case law has found multiple criminal objectives to be a predicate for multiple punishment only in circumstances that involve, or arguably involve, multiple acts'].)" (People v. Corpening (2016) 2 Cal.5th 307, 311-312.)
Where the court makes no explicit ruling on the section 654 issue at sentencing, the fact the trial court did not stay the sentence is generally deemed to reflect an implicit determination that each crime had a separate objective. (People v. Kelly (2018) 28 Cal.App.5th 886, 905.) We must uphold the trial court's determination defendant's crimes for purposes of section 654 were separate and involved separate intents and objectives if substantial evidence supports the determination. (Kelly, supra, at p. 905.) In conducting this substantial evidence inquiry, we view the evidence in the light most favorable to the sentencing decision and presume the existence of every fact the trier could reasonably deduce from the evidence that supports that decision. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
Defendant relies on People v. Ridley (1965) 63 Cal.2d 671. In Ridley, two men robbed the owner of a pawn shop and shot the owner several times before taking jewelry from the vault. (Id. at p. 673.) Our Supreme Court concluded section 654 applied to bar multiple punishments against a defendant who had committed robbery and an assault during the robbery. (Id. at p. 678.) The Court concluded, "it appears that the assault upon [the owner] was the means of perpetrating the robbery and that both offenses were incident to one objective, robbery." (Ibid.) The judgment was reversed, and the case remanded for a new trial on other issues. (Id. at p. 677.) The Court held if defendant was convicted of both offenses on retrial, he could be sentenced only for the robbery, the more serious of the two offenses. (Id. at p. 678.)
The Attorney General, by contrast, relies on an exception to the rule disallowing multiple punishments for violence committed during or after a robbery. This exception allows the trial court to sentence a defendant to multiple punishments where during a robbery, the defendant engaged in a separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution. (See, e.g., People v. Nguyen (1998) 204 Cal.App.3d 181, 193.)
In Nguyen, defendant and an accomplice robbed a market. (People v. Nguyen, supra, 204 Cal.App.3d at p. 185.) The accomplice took the store clerk to the back of the store and ordered him to lay down. (Ibid.) While the store clerk was lying on the ground in the back room, defendant shouted out. (Ibid.) In response, defendant's accomplice kicked the clerk and shot him in the back. (Ibid.) The court concluded this was an act of gratuitous violence against a helpless and unresisting victim and was not incidental to the robbery, nor was it necessary or useful in effectuating the robbery. (Id. at p. 190.) As such, the defendant could be sentenced on both crimes without running afoul of section 654. (Id. at p. 193.)
Here, the Attorney General posits substantial evidence supports the trial court's implicit finding defendant had separate intents and objectives because defendant pushed the victim against the door after he had completed the crime of robbery by obtaining the wallet from the possession of the victim. The "substantial evidence" that supports this supposition is the contention the robbery was completed when the defendant wrestled the baby bag away from the victim and took possession of the wallets coupled with the sound of something hitting the door just prior to the time defendant opened it. The Attorney General suggests the sound heard by the motel employee seconds before the door opened supports the conclusion defendant inflicted gratuitous violence against the victim after the robbery had been completed.
While substantial evidence is a deferential standard, it is not an empty one. Speculation and conjecture are not evidence, nor are they substantial evidence. (People v. Wright (2016) 4 Cal.App.5th 537, 546.) The Attorney General's argument constitutes conjecture and speculation because no testimony was offered from anyone present during the robbery as to the sequence of events.
The evidence demonstrates when the victim refused to give defendant money, he hit her in the head and mouth repeatedly. Then, the victim physically resisted his efforts to rob her by fighting over the baby bag and the defendant responded by slamming the victim to the ground. Next, defendant left with the money. Although the motel clerk testified he heard a sound "like a body falling against the door," there is no evidence nor any reasonable or rational inference to be drawn this occurred after the defendant succeeded in obtaining the wallets from the victim. The victim's out-of-court statements all point to a single course of conduct designed to rob her. After the defendant opened the door, defendant engaged in no violent conduct when he went back into the room, scooped up the wallet and walked out the door. Thus, there is no evidence to support the contention defendant engaged in violence against the victim independent of his attempt to obtain her money, nor does any evidence suggest defendant's actions were taken gratuitously against a non-resisting party, to avoid capture, or to avoid prosecution. Given his single intent and objective to obtain the victim's money, the trial court erred in failing to stay defendant's sentence for intimate partner battery.
In his supplemental brief, defendant asks us to vacate his sentence and remand the matter for resentencing consistent with the recent amendment to section 654 under Assembly Bill 518. Assembly Bill 518 amends section 654 to grant the trial court the discretion to impose sentence on any offense subject to the bar on multiple punishments, rather than the current requirement the court sentence on the offense that carries the longest potential term of imprisonment. (Stats 2021, ch. 441, § 1.) The effective date of this change is January 1, 2022. (People v. Camba (1996) 50 Cal.App.4th 857, 865 [non-urgency bills become effective on January 1 of the year following the year of their enactment].)
Generally, "where [an] amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed," so long as the amended statute takes effect before the judgment of conviction is final. (In re Estrada (1965) 63 Cal.2d 740, 748, 748.) "This rule rests on an inference that when the Legislature has reduced the punishment for an offense, it has determined the 'former penalty was too severe' [citation] and therefore 'must have intended that the new statute imposing the new lighter penalty . . . should apply to every case to which it constitutionally could apply' [citation]." (People v. DeHoyos (2018) 4 Cal.5th 594, 600.)
As properly conceded by the Attorney General, the change to section 654 is ameliorative in that it may lessen a defendant's punishment because the trial court has the discretion to impose sentence on the offense that carries a lesser term of imprisonment. As further conceded by the Attorney General, this case will not be final prior to December 31, 2021. (Ibid.) We agree with the Attorney General and remand the case for resentencing under the law as amended.
Disposition
The sentence is vacated and the matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
We concur: ROBIE, J., KRAUSE, J.