Opinion
C075415
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. NAPOLEON SOLO NASH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM037613)
A jury found defendant Napoleon Solo Nash guilty of second degree robbery (Pen. Code, § 211; count 1), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 2), and procuring and offering a false or forged instrument (§ 115, subd. (a); count 3). He was sentenced to six years four months in state prison.
Undesignated statutory references are to the Penal Code at the time of the charged offenses.
On appeal, defendant contends the trial court violated section 654 by imposing separate punishments for second degree robbery (count 1) and procuring and offering a false or forged instrument (count 3). The People have noticed an error in the abstract. The error appears to have been the result of an irregularity in the oral imposition of sentence. We order that the abstract be amended and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
The defendant was charged with one count of second degree robbery (§ 211; count 1), one count of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 2), and one count of procuring and offering a false or forged instrument (§ 115, subd. (a); count 3). The information also alleged that defendant committed counts 1 and 3 while released from custody on bail within the meaning of section 12022.1.
Trial Evidence
The charges in this case arose out of a two incidents involving the sale of a car. These incidents took place on three dates during a span of several months. We describe the incidents in chronological order.
Count 2: Unlawful Driving or Taking of a Vehicle
In May 2012, Mary R. agreed to buy defendant's Cadillac for $2,900. Mary did not have the money immediately available, so defendant agreed that she could have until the end of June to consummate the deal.
Defendant called Mary on June 25, 2012, to find out if she was still interested in purchasing the car. Mary confirmed that she was still interested, and arranged to pick defendant up and drive him to a pawn shop in Oroville to complete the transaction.
At the pawn shop, Mary gave defendant an envelope containing $2,900 in cash. A pawn shop employee, Edgardo Serrano, gave defendant a transfer of title form, which Mary and defendant signed and dated. Defendant also signed a certificate of title, and gave both documents to Mary.
Serrano told Mary and defendant that they would have to come back on the following day to pick up the car, which was stored in a nearby garage. Defendant and Mary agreed that they would coordinate by telephone the next day and drive back to the pawn shop together.
Mary called defendant the next morning, but defendant did not answer. Shortly thereafter, Mary went to the pawn shop with a friend and found defendant already there. A pawn shop employee brought the car around to the front of the shop and handed defendant the keys.
Defendant got into the car on the passenger side, ostensibly to retrieve some personal possessions. He demanded that Mary get into the car and drive to the Department of Motor Vehicles (DMV) "right now." When Mary refused, defendant came around and tried to push her into the car on the driver's side. When Mary resisted, defendant got into the car on the driver's side, put the key in the ignition, and ordered Mary to get in on the passenger's side. When she refused, defendant closed the car door, knocking Mary to the ground in the process, and drove away at "[g]reat speed."
Mary went to the California Highway Patrol (CHP) office in Oroville and filed a stolen vehicle report. CHP Officer Doug Garrett took the report. After looking at the transfer and title documents and speaking with Mary and other witnesses, Officer Garrett determined that Mary was the rightful owner of the car.
The next day, defendant came to the CHP office and Officer Garrett spoke with him. Defendant denied selling the car to Mary. When asked why Mary gave him $2,900, if not to purchase the car, defendant claimed that Mary had given him money in exchange for a sexual favor. Defendant also claimed that Mary had forged his name on the transfer of title form and certificate of title. When asked where the vehicle was, defendant replied, "Ain't no mother fucker getting that vehicle back." At some point, defendant spontaneously told Officer Garret that he could understand why Mary believed the car was hers.
CHP officers found the car and returned it to Mary a few days later. Mary registered the car with DMV and obtained insurance. DMV records showed that the car was registered to Mary between June 27 and November 14, 2012. Defendant was again listed as the registered owner as of November 14. Mary denied that she had ever been involved in a romantic or sexual relationship with defendant.
Count 1: Second Degree Robbery
More than four months later, on November 6, 2012, Mary went to the Southside Mini Mart in Oroville with her boyfriend, Calvin Lee, to buy groceries. They ran into defendant in the store. While they were waiting in line, defendant approached Mary and pointed his fingers at her in the shape of a gun. Defendant told Mary he was going to kill her soon.
Mary and Lee paid for their groceries and left the store. While Mary was in the store parking lot, defendant approached her, twisted her arm, and grabbed her keys from her hand. Defendant walked across the street and removed Mary's car keys from her key ring. He then returned to the parking lot and threw the remaining keys through the open window at Lee, who was seated in the passenger seat of the Cadillac. Defendant then left the area.
Mary could not roll up the car windows or lock the doors without the keys. She called a locksmith to make a new set, but the keys had to be specially ordered from Redding. Because she had merchandise and other personal property in the Cadillac, Mary slept in the vehicle for the next two days. She left when a friend told her that defendant would kill her. Mary later learned that defendant had returned to the parking lot, jump-started the car, and drove it away. Mary reported the matter to CHP.
Officer Garrett ran the vehicle's registration history and learned that the car was by that point registered to defendant. Officer Garrett then drove to the address provided to the DMV and found defendant and the car nearby. Defendant was arrested for vehicle theft.
Defendant again denied stealing the car. He claimed he saw the car sitting in the store parking lot and thought it had been abandoned. He said he used a spare key to start the car, and denied taking Mary's keys.
Count 3: Procuring and Offering False Documents
After arresting defendant, Officer Garrett searched the car and found an application for duplicate or paperless title that had been filed with the DMV on November 8, 2012, two days after the incident at the Southside Mini Mart. On the application, defendant represented under penalty of perjury that the car had been stolen and returned without his certificate of title for the car. Defendant also denied selling the car to Mary on the application. He indicated that he was seeking "[t]o get my title back in my name."
Verdicts and Sentencing
The jury found defendant guilty on all counts. On its own motion, the trial court dismissed the on-bail allegation due to insufficient evidence.
The trial court sentenced defendant to an aggregate term of six years four months in state prison, calculated as follows: the upper term of five years for count 1, second degree robbery, plus consecutive terms of eight months for count 2, unlawful driving or taking a vehicle, and eight months for count 3, procuring and offering a false or forged instrument.
In imposing the consecutive sentences, the trial court stated, "The sentence is to run consecutive as the crimes are independent of one another, the crimes and their objective." The trial court did not elaborate on why it found the crimes and their objectives were independent of each other.
DISCUSSION
I. Section 654 Claim
On appeal, defendant contends the trial court's imposition of a consecutive eight-month sentence on the conviction for procuring and offering a false instrument (§ 115, subd. (a)) violates section 654's prohibition on multiple punishment. We disagree.
Section 654, subdivision (a), provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The purpose of the statute is to ensure that the punishment is commensurate with the defendant's culpability. (People v. Correa (2012) 54 Cal.4th 331, 341.)
"The proscription against double punishment in section 654 is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one." (People v. Bauer (1969) 1 Cal.3d 368, 376.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted.)
Furthermore, a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. (People v. Louie (2012) 203 Cal.App.4th 388, 399 (Louie).) " 'This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' " (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
" 'Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.' " (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378, italics added.) We defer to the trial court's express or implicit findings that are based upon substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Applying these standards, we must determine whether the record contains evidence that could reasonably lead to the conclusion that defendant's objectives in committing the robbery (by taking Mary's keys) and two days later procuring and offering a false instrument (by filing a false application for duplicate title with the DMV) were separate and independent of each other, and if not, were they divisible in time. Defendant argues the two offenses shared the same intent and objective; namely, to regain "possession" of the car. The People, on the other hand, argue there was substantial evidence to support the trial court's finding that defendant's offenses were " 'independent of one another, the crimes and their objective.' " The People also assert that the trial court could have reasonably concluded that section 654 does not apply because the acts were temporally separated such that defendant could reflect and renew his intent to commit the offenses. We agree with the People.
Defendant asserts that he did not take Mary's car keys for the sake of having the keys; rather he took the keys to regain possession of the car as part of that single objective. However, the evidence also supports an implied finding that defendant took the keys out of spite and/or to be a nuisance. After all, he said nothing about taking the car when he took the keys; nor did he attempt to take the car at that time. And he could not have been sure the car would have remained in the parking lot, available for him to drive away later. The evidence suggests it was simply fortuitous that Mary did not move the car and it was available for defendant's taking two days later. Thus, there was substantial evidence from which the trial court could have determined that defendant had an intent separate from taking the car when he forcibly took Mary's keys.
We assume defendant means that his objective was to regain ownership of the vehicle, not simply to take possession of it. He did not need to procure or offer a false document to regain possession of the vehicle.
Furthermore, substantial evidence also supports the conclusion that defendant's course of conduct was divisible in time. Defendant committed the robbery (by taking Mary's keys) on November 6, 2012. He procured and offered a false instrument (by filing an application for duplicate title with the DMV) two days later, on November 8, 2012. Assuming defendant committed these crimes with the single objective in mind of regaining ownership of the Cadillac, given the two day interval, the trial court could reasonably conclude that defendant had ample opportunity to reflect and renew his intent between offenses. (See People v. Gaio (2000) 81 Cal.App.4th 919, 935 [course of conduct divisible in time may be multiply punished, particularly when defendant had opportunity to reflect and renew his intent before committing next offense]; Louie, supra, 203 Cal.App.4th at p. 399 [15-minute interval between offenses gave defendants sufficient time to reflect and renew their intent].) Thus, there was substantial evidence from which the trial court could have determined that defendant's course of conduct was divisible in time.
Defendant attempts to avoid the conclusion that his course of conduct was divisible in time by arguing, "The exception to the rule in section 654 [for multiple punishment based on a course of conduct that is divisible in time], normally should not apply when the separate acts are incomplete with respect to accomplishing the intent and objective of the crime." Defendant purports to find support for this argument in In re William S. (1989) 208 Cal.App.3d 313 (William S.). William S. does not help defendant.
In William S., the defendant entered a home, took several items of property, and departed through the front door, which he left unlocked. He returned several hours later, entered through the unlocked door, took several more items, and again departed. (William S., supra, 208 Cal.App.3d at pp. 315-316.) The defendant argued that he committed only one burglary, but that even if he committed two, he could be sentenced only once because leaving "the door unlocked during the first entry evinced a single criminal intent because it was done to facilitate the second" entry. (Id. at pp. 318-319.)
The William S. court first addressed the question whether the second entry constituted a separate burglary. The court identified various factors to be considered in determining the separateness of the alleged multiple burglaries, including "whether the acts are 'separated . . . by an appreciable passage of time, or [] by a reasonable opportunity for reflection' " and "whether the first act constituted a completed crime in the sense that it could no longer be said to be ongoing for any purpose, e.g., the felony-murder rule." (William S., supra, 208 Cal.App.3d at p. 317.) The court next considered the applicability of section 654, finding that the defendant's crimes "were committed by means of two distinct and different entries, separated both in time and place, and with the intent to steal entirely different property." (Id. at p. 319.) Accordingly, the court concluded that section 654 did not bar multiple punishment for the two crimes. (Ibid.)
Relying on William S., defendant argues that his course of conduct should not be considered divisible in time because the robbery "was an incomplete attempt at meeting the objective of obtaining possession of the Cadillac." However, the court in William S. did not say that a completed crime that fails to achieve the defendant's ultimate criminal objective cannot be considered part of a course of conduct that is divisible in time. Furthermore, though William S. urges consideration of the question "whether the first act constituted a completed crime," it does so in the context of determining the separateness of alleged multiple burglaries, which is a different inquiry from the section 654 analysis. (William S., supra, 208 Cal.App.3d at p. 317.) In any event, substantial evidence here supports the conclusion that the robbery constituted a completed crime on November 6, 2012, when defendant took Mary's keys and was able to retreat to a place of safety. (Ibid.) For all of these reasons, we conclude that defendant's reliance on William S. is misplaced.
In summary, looking at the evidence in the best light for the People, we conclude that there was substantial evidence to support the trial court's implied findings and express conclusion that defendant's offenses were committed pursuant to multiple criminal objectives which were independent of each other. Further there is substantial evidence supporting a finding that defendant's offenses were divisible in time because defendant had an opportunity to reflect and renew his intent before committing the next offense. Accordingly, we conclude that the trial court did not err in refusing to stay execution of the sentence for procuring and offering a false instrument pursuant to section 654.
In light of our conclusion, we need not address defendant's contention that section 115 does not preclude the application of section 654 where the offense is committed in conjunction with another offense.
II. Correction of the Abstract of Judgment
The People noted that the abstract of judgment correctly states that defendant was sentenced to consecutive terms of eight months for count 2 and eight months for count 3, but incorrectly states that those terms represent one-third the upper term. It appears that this confusion stems from the manner in which the trial court orally imposed the consecutive sentences.
In imposing sentence the trial court stated: "the crime of 211, second-degree robbery, as contained in Count I, . . . is designated the principal term. And I'm imposing the upper term of five years. [¶] The crime of vehicle theft, pursuant to Vehicle Code 10851, as contained in Count II, is designated the subordinate term. And I'm imposing the upper term of three years and staying all but one-third the mid or eight months. [¶] The crime of Penal Code 115, procuring and offering false or forged instrument, as contained in Count III, is designated the subordinate term. And I'm imposing the upper term of three years and staying all but one-third the mid or eight months." (Italics added.)
Section 1170.1, subdivision (a), sets forth the law concerning consecutive sentencing on subordinate terms. With few exceptions not applicable here, "[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed." (§ 1170.1, subd. (a); People v. Felix (2000) 22 Cal.4th 651, 655 ["in general (there are exceptions), the court imposes only 'one-third of the middle term' for subordinate terms"].) There is no provision in law authorizing the court to impose a full-term sentence and then stay all but one-third the midterm. The proper way of imposing the subordinate term sentence is to impose "one-third of the middle term" and articulate the number of months or years that equates to one-third of the middle term. (See Couzens, Bigelow & Pricket, Sentencing Cal. Crimes (The Rutter Group 2016), Multiple Counts, § 13:19 [noting that "[i]t is not appropriate, for example, to impose the full middle term and suspend all but one-third"].) There is no authority to impose a full term, even if the trial court stays some portion of it so that the total time served equals one-third the midterm. Thus, as stated by the trial court, the sentence imposed was unauthorized.
The abstract properly indicates an eight-month term is imposed on both of the subordinate terms. It also properly indicates that the term imposed is "1/3 consecutive." However, a "U" appears in the box designated for the triad term. An "M" for "midterm" should appear in that box. An unauthorized sentence is subject to judicial correction when it comes to the attention of a reviewing court. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256.) And we may order correction or amendment of an abstract of judgment on our own motion. (People v. Mitchell (2001) 26 Cal.4th 181, 188.) We shall do so.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment indicating that the eight-month consecutive sentences on counts 2 and 3 represent one-third the midterm by noting an "M" in the triad term box. The trial court is also directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
MURRAY, J. We concur: NICHOLSON, Acting P. J. ROBIE, J.