Opinion
D056777 Super. Ct. No. SCE286370
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY EDWARD NELSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed in part; reversed in part; remanded with directions.
I.
INTRODUCTION
In December 2009, a jury found Jeffrey Edward Nelson guilty of the attempted murder (Pen. Code, §§ 664, 187, subd. (a))(count 1) and torture (§ 206) (count 6) of victim Natalie Herbst-Vinge (Vinge). Prior to the jury trial, in November 2009, Nelson pled guilty to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(l)) (count 2); first degree burglary (§§ 459, 460) (count 3); carjacking (§ 215, subd. (a)) (count 4); first degree robbery (§§ 211, 212.5, subd. (a)) (count 5); kidnapping during a carjacking (§ 209.5, subd. (a)) (count 7); kidnapping for robbery (§ 209, subd. (b)(1)) (count 8); willful cruelty to an elder (§ 368, subd. (b)(1)) (count 9); false imprisonment of an elder (§ 368, subd. (f)) (count 10); theft from an elder (§ 368, subd. (d)) (count 11); and battery (§ 242) (count 12). Nelson also admitted that he personally inflicted great bodily injury on Vinge, a person 70 years of age or older, in the commission and attempted commission of count 2 (assault by means of force likely to produce great bodily injury) and count 9 (willful cruelty to an elder) (§ 12022.7, subd. (c)). In addition, Nelson admitted that he committed the first degree burglary (count 3) and the first degree robbery (count 5) against Vinge, a person 65 years of age or older (§ 667.9, subd. (a)).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
With the exception of count 12, Vinge was the victim of all of the charged offenses. Count 12 involved a separate offense that Nelson committed against victim Cyrus Smith in October 2008.
At sentencing, the trial court sentenced Nelson to prison for the upper term of nine years for attempted murder (count 1). The court also sentenced Nelson to two consecutive terms of life with the possibility of parole for torture (count 6) and kidnapping during a carjacking (count 7). The court stayed execution of sentence on the remainder of the felony counts, pursuant to section 654. With respect to the misdemeanor battery (count 12), the court sentenced Nelson to time served.
On appeal, Nelson claims that there is insufficient evidence to support the jury's verdicts finding him guilty of attempted murder (count 1) and torture (count 6). In addition, Nelson contends that the trial court erred in failing to stay execution of the sentence for attempted murder, pursuant to section 654, in light of the court's imposition of a sentence for the torture conviction. We reject all of these claims. Finally, Nelson contends that his conviction on count 4 (carjacking) must be reversed because he was also convicted of the greater offense of kidnapping during a carjacking (count 7). The People concede this error. Accordingly, we reverse the conviction on count 4 in accordance with the People's concession, but otherwise affirm the judgment.
II.
FACTUAL BACKGROUND
A. Nelson meets the victim
In October 2008, Nelson went to Vinge's home to demonstrate a vacuum cleaner that he was selling. After the demonstration, Vinge purchased the vacuum cleaner for $2,324.17. While completing the paperwork for the sale, Vinge showed Nelson her 2006 silver Dodge Magnum. Two to three days after Vinge purchased the vacuum cleaner, Nelson's employer terminated his employment. B. Nelson kidnaps the victim and keeps her bound in her vehicle
On the morning of December 8, 2008, at approximately 9:30, Nelson unexpectedly appeared at Vinge's house and told her that he wanted to thank her for purchasing the vacuum cleaner. After Nelson and Vinge had spoken for a brief period of time, a friend of Vinge's arrived at her home. Nelson left soon after Vinge's friend arrived.
At approximately 10:00 that night, Nelson rang Vinge's doorbell. When Vinge opened the door, Nelson told her that he had "broken up" with his girlfriend and asked if he could use Vinge's telephone to call his mother. Vinge allowed Nelson to come into her house and led him to a telephone. As Vinge turned to walk away, Nelson grabbed her from behind and wrapped his arm around her neck. Nelson started to choke Vinge with such force that she thought she was going to die. Vinge attempted to get out of Nelson's grip, but could not escape and lost consciousness.
When Vinge regained consciousness, she was lying on the floor. Her ankles and knees were taped together with duct tape and her wrists were taped together and secured to her waist. Vinge asked Nelson why he was "doing this" to her. Nelson then covered Vinge's mouth with duct tape and pulled the roll of duct tape over her left eye. After taking Vinge's purse, Nelson dragged Vinge out to the garage and put her into the cargo area of the Magnum. Nelson got into the Magnum and began to drive fast and recklessly, causing Vinge to "bounce[] about" in the cargo area.
The cargo section of the Magnum was separated from the rest of the vehicle by a cover that could be retracted and extended.
Vinge tried to pull her wrists apart, but the duct tape ripped her skin, and she was unable to free her hands. Vinge began to vomit. Because Vinge was afraid that she would choke on her own vomit, she chewed through the duct tape that was covering her mouth and created a small opening in it. Vinge repeatedly asked Nelson for water to drink, but his only response was to turn up the volume of the car stereo. The speakers were located near the cargo area of the vehicle, and Nelson played the stereo at an extremely loud volume. Whenever Vinge asked for something, Nelson stopped the car, went back to the cargo area, and beat her.
At one point, Vinge asked Nelson "to please stop at a ladies' room," but Nelson did not stop the vehicle. Vinge subsequently made several more requests for Nelson to stop to allow her to use a restroom. Each time Vinge asked Nelson to stop so that she could use a restroom, Nelson turned the volume of the car stereo louder. Vinge ultimately had no choice but to defecate and urinate in her pants. Nelson left Vinge bound and in the cargo section of the Magnum overnight. C. Luis Osborne and Antoinette Baker ride in the Magnum
The following day, December 9, Nelson returned to the Magnum and again began driving erratically. Vinge, who remained bound inside the cargo area of the vehicle, was tossed back and forth, striking the inside of the vehicle as if she were in a "pinball machine."
At some point that evening, Nelson drove the Magnum to Luis Osborne's house, where he visited with Osborne and Osborne's girlfriend, Antoinette Baker. After Nelson, Osborne, and Baker drank some alcohol at Osborne's house, the three got into the Magnum to drive to the beach. Baker noticed that there was "a lot of stuff" in the backseat, including a vacuum, a "lot of alcohol," and a shovel. Baker also smelled a strong odor of urine and feces in the vehicle. Nelson drove Osborne and Baker to a pier, where the three sat and drank more alcohol. At one point while the group was at the pier, Baker asked Osborne about the smell in the back of the Magnum. Osborne told Baker not to worry about it. Nelson, Osborne and Baker eventually returned to the Magnum.
Nelson drove from the pier to a gas station. Osborne and Nelson got out of the vehicle at the gas station. As Baker sat in the vehicle, she heard Vinge crying for help. According to Baker, Vinge said, " 'Somebody, please help. Somebody, please help. I'm hurt really bad. Please help me, anybody, please help.' " Baker looked out of the window of the Magnum at Nelson, who was standing by the gas pump, and asked him, " 'What the hell's going on?' " Nelson responded, " 'Oh, that's nothing.' " Nelson then said, " 'At least I'm filling up her gas tank. I'm giving the dead bitch time to breathe.' " Nelson also said to Baker, " 'You're not going to tell anyone, right, bitch?' "
After leaving the gas station, Nelson drove in an erratic manner back to Osborne's house. During the drive, Nelson asked Osborne, " 'Where can I dump off this body at?' " Osborne responded, "Campo." Later, after Nelson, Osborne, and Baker were back at Osborne's house, Baker overheard Nelson ask Osborne, " 'It felt good hitting that bitch, didn't it?' " Baker told Osborne and Nelson that she needed a cigarette and Nelson, Osborne, and Baker again got into the Magnum. After getting cigarettes, Nelson drove Osborne and Baker back toward Osborne's house. According to Baker, Osborne wanted to "drop something off at his house and then . . . Osborne and [Nelson] were planning to go to do something."
At some point during the kidnapping, Vinge's shoulder hit the cargo area security cover, causing the security cover to become unhinged and retract. When this occurred, Nelson stopped the car and walked back to the cargo area with Osborne. Nelson opened the trunk and punched the left side of Vinge's face with his fist. Vinge thought that her "teeth would fall out" from the force of Nelson's punch. Osborne then punched the right side of Vinge's face with full force and called her a "bitch." Osborne's punch created a hole in Vinge's right ear drum, causing it to bleed. Vinge was unable to shield herself from the punches because she was bound with duct tape. After Nelson and Osborne punched Vinge, they "poked [her] in the back." D. The police discover Vinge and arrest Nelson
At about 12:10 a.m. on December 10, 2008, Deputy Marc Snelling of the San Diego County Sheriff s Department saw a silver Dodge Magnum skid to a stop about three feet past the limit line at an intersection. Deputy Snelling followed the Magnum in his patrol car until the Magnum came to a stop in front of Osborne's house. Deputy Snelling stopped his car directly behind the Magnum and activated his lights. When Snelling activated his lights, Osborne ran from the Magnum. As Nelson began to get out of the vehicle, Deputy Snelling pointed his gun at Nelson and ordered him to get on the ground. Nelson got down on the ground for approximately 25 seconds, but then got up and ran. As Deputy Snelling chased Nelson, Baker fled from the vehicle. Deputy Snelling was unable to immediately apprehend any of the three occupants of the Magnum.
Deputy Snelling returned to the Magnum, which "smelled like . . . a decomposing body." Additional law enforcement officers responded to the scene and discovered Vinge in the cargo section of the vehicle, bound in duct tape, in a fetal position. Vinge had dried blood on her and had bruises all over her body. She was extremely dehydrated, and her mouth was full of blisters and scabs from not having had anything to drink. Her eyes were swollen shut. Vinge was conscious, but dazed and confused. She appeared to be in severe pain.
Police arrested Nelson in the early morning hours that same night, after a brief investigation.
III.
DISCUSSION
A. There is sufficient evidence in the record to support the jury's verdict finding Nelson guilty of attempted murder
Nelson claims that there is insufficient evidence in the record to support the jury's verdict finding him guilty of attempted murder (§§ 664, 187, subd. (a)) (count 1). Specifically, Nelson maintains that there is insufficient evidence that he took a direct step toward implementing a plan to kill, as is required to sustain the guilty verdict.
1. Standard of review
In determining the sufficiency of the evidence, "the relevant question is 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 beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319 (Jackson).) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) " 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citation.] We ' " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " [Citation.]' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 943.) "A state court conviction that is not supported by sufficient evidence violates the due process clause of the Fourteenth Amendment and is invalid for that reason." (People v. Rowland (1992) 4 Cal.4th 238, 269, citing Jackson, supra, at pp. 313-324.)
2. Governing law
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 177-178; accord § 21a ["An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission"].)
In People v. Superior Court (Decker)(2007) 41 Cal.4th 1, 8 (Decker), the Supreme Court described the type of evidence that is sufficient to satisfy the "direct but ineffectual act" element of attempted murder:
"For an attempt, the overt act[] must go beyond mere preparation and show that the killer is putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes [citation], nor need it satisfy any element of the crime [citation]. However, as we have explained, '[b]etween preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists of devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the
preparations are made.' [Citations.] ' "[I]t is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made." ' [Citation.]"
A direct but ineffectual act is frequently referred to as an overt act in the case law. (See, e.g., People v. Luna (2009) 170 Cal.App.4th 535, 540.)
The Decker court explained, "we have long recognized that '[w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.' " (Decker, supra, 41 Cal.4th at pp. 8-9, citations omitted.) "The purpose of requiring an overt act is that until such act occurs, one is uncertain whether the intended design will be carried out. When, by reason of the defendant's conduct, the situation is 'without any equivocality,' and it appears the design will be carried out if not interrupted, the defendant's conduct satisfies the test for an overt act. [Citations.]" (Id. at pp. 13-14.) "Where . . . the defendant's intent is unmistakable, ' "the courts should not destroy the practical and common-sense administration of the law with subtleties as to what constitutes preparation and what constitutes an act done toward the commission of a crime." ' [Citation.]" (Id at p. 13.)
3. Application
Based on the evidence presented, the jury could reasonably have found both that Nelson harbored a specific intent to kill Vinge, and that he committed a direct act toward the commission of that goal. Baker testified that during the kidnapping, while she, Nelson and Osborne were at the gas station, Nelson said, "At least I'm filling up her gas tank. I'm giving the dead bitch time to breathe." Baker also testified that she overheard Nelson ask Osborne where Nelson could "dump off this body." In addition, the evidence established that Nelson choked Vinge until she lost consciousness, kidnapped her, kept her bound and captive in the cargo area of a vehicle for 26 hours, denied her food, water or a bathroom for the entire 26-hour period, punched her in the face while she lay bound and defenseless, and placed a shovel in the vehicle. In light of this evidence, the jury could have reasonably found that Nelson committed, at a minimum, "slight acts" (Decker, supra, 41 Cal.4th at p. 8), in furtherance of his plan to kill the victim.
We reject Nelson's contention that there is insufficient evidence that he committed a direct act toward the commission of a murder because "[his] act of transporting [the victim] cannot be such a direct step." (Citing People v. Memro (1985) 38 Cal.3d 658, 699 (Memro), overruled on another ground by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) As Memro makes clear, this court is to determine whether there is substantial evidence to support the jury's verdict based on the defendant's "entire course of conduct," evaluated in light of his intent. (Id. at p. 699, italics added.) In Memro, the Supreme Court found that there was sufficient evidence that the defendant committed a felony murder based on his killing the victim while attempting to commit the felony offense of committing lewd or lascivious conduct on a minor. The Memro court reasoned:
"No specific 'plan' vis-a-vis Carl Jr. [the victim] had been formulated. Nevertheless, the 'arrangement' of lights, pornographic materials and other paraphernalia in appellant's apartment would suggest sufficient planning to enable appellant to commit lewd conduct once a willing participant came along.(Ibid.)
"It is true that the simple act of accompanying Carl Jr. up to appellant's apartment probably fell within the 'zone of preparation.' However, appellant went beyond preparation. He ushered the boy into the bedroom to watch the strobe lights and stayed close by. These were steps which furthered his aim of readying Carl Jr. for a nude photography session which was, in all likelihood, intended to culminate in lewd conduct. These acts, therefore, constituted the 'actual commencement of his plan' and were sufficient to support an attempt. [Citation.] But for Carl Jr.'s abrupt decision to leave the
apartment, it is likely that these steps would have resulted in a completed violation of section 288. [Citation.] Viewing the evidence in this light, this court cannot say that the trial court's first degree murder verdict was not supported by substantial evidence of attempted lewd or lascivious conduct under a felony-murder theory."
There is substantial evidence that Nelson's "entire course of conduct" (Memro, supra, 38 Cal.3d at p. 699), consisted of far more than simply transporting Vinge. The jury thus could have reasonably found that Nelson's acts, like the acts of the defendant in Memro, "went beyond preparation," and constituted the " 'actual commencement of his plan,' " to kill Vinge. (Ibid.)
We reject Nelson's argument that because his "actions do not disclose the method by which he intended kill [the victim] . . . the evidence was insufficient to prove [he] took a substantial step toward implementing that method." We are aware of no case law requiring that the record contain evidence of the method by which a defendant intends to kill his victim in order to sustain an attempted murder conviction, and Nelson's cites none.
We conclude that there is sufficient evidence that Nelson intended to kill Vinge and that he committed an overt act toward the commission of that killing. Accordingly, we conclude that there is sufficient evidence to sustain the jury's verdict finding Nelson guilty of attempted murder. (See People v. Booker, supra, 51 Cal.4th at pp. 177-178 [stating elements of attempted murder].) B. There is sufficient evidence in the record to support the jury's verdict finding Nelson guilty of torture
Nelson claims that there is insufficient evidence to support the jury's verdict finding him guilty of torture (§ 206) (count 6). We apply the substantial evidence standard of review to this claim, as discussed in part III.A.1., ante.
1. Governing law
Section 206 provides:
"Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7[] upon the person of another, is guilty of torture.
"The crime of torture does not require any proof that the victim suffered pain."
Section 12022.7, subdivision (f) defines great bodily injury as "a significant or substantial physical injury."
" '[T]orture has two elements: (1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.' [Citation.]" (People v. Pre (2004) 117 Cal.App.4th 413, 419 (Pre).) For purposes of section 206, " 'cruel' pain is the equivalent to 'extreme' or 'severe' pain." (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1202.) "As used in the statute, 'sadistic purpose' encompasses the common meaning, i.e., ' "the infliction of pain on another person for the purpose of experiencing pleasure." ' [Citation.]" (Pre, supra, at p. 420.)
"[T]orture as defined in section 206 focuses on the mental state of the perpetrator and not the actual pain inflicted." (People v. Hale (1999) 75 Cal.App.4th 94, 108.) " '[T]he circumstances of the offense can establish the intent to inflict extreme or severe pain.' [Citation.] For example, 'a jury may infer intent to cause extreme pain from a defendant who focuses his attack on a particularly vulnerable area, such as the face, rather than indiscriminately attacking the victim.' [Citation.]" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426-1427 (Hamlin).) The duration of an attack may also support the inference that a defendant intended to inflict extreme pain. (See People v. Jung (1999) 71 Cal.App.4th at 1036, 1043 (Jung) [defendants attacked victim for "several hours"].) Another indicator of the defendant's specific intent to inflict extreme pain is the infliction of pain after the victim has become incapacitated and incapable of resisting. (See, e.g., Pre, supra, 117 Cal.App.4th at p. 422 ["[W]hile [the victim] was unconscious, [defendant] changed his position, cradled [victim's] head and shoulders in his lap, and proceeded to bite her ear"].) Evidence related to the seriousness of a victim's injuries is also probative of the defendant's intent. (Id. at p. 421 ["The condition of the victim's body may establish circumstantial evidence of the requisite intent"].) Finally, courts have also often relied on statements made by a defendant prior to, during, or after the offense that evinced the requisite specific intent to inflict extreme pain. (See, e.g., People v. Burton (2006) 143 Cal.App.4th 447, 452 (Burton) [prior to attack defendant threatened to " 'kill [victim] or fuck her up,' 'hurt [her],' 'bash [her] head in,' 'put [her] in a wheelchair,' make her 'pay' "].)
In Hamlin, the court held that a defendant may commit a violation of section 206 by way of a course of conduct, rather than through a discrete act. (Hamlin, supra, 170 Cal.App.4th at p. 1429 ["Just as child, spousal, and animal abuse can be committed by a course of conduct rather than a single act, so can torture"].) The Hamlin court explained, "Where (as here) torture is charged and tried as a course of conduct crime, no single act in the perpetrator's course of conduct may result in great bodily injury. But where the cumulative result of the course of conduct is great bodily injury, and the requisite intent can be found, then the crime of torture has been committed under the course of conduct exception to the election/unanimity requirement." (Id. at p. 1429.)
In Hamlin, the court applied this holding in considering a defendant's claim that "the jury had to find not only that he acted with the intent to cause extreme pain, but that the action he undertook with that intent was one that in fact caused great bodily injury." (Hamlin, supra, 170 Cal.App.4th at p. 1431.) In rejecting this argument, the Hamlin court reasoned:
"Defendant's argument presumes that each act of violence he committed on S. must be analyzed separately to determine if there was evidence that particular act was committed with the intent to cause severe pain and evidence that particular act resulted in great bodily injury. This is incorrect. Where, as here, torture is charged and tried as a course of conduct crime, such analysis is unnecessary. The question for the jury was not whether S. suffered great bodily injury from a particular act defendant committed on a particular day with the intent to cause her severe pain. Rather, the question was whether, with that intent, defendant engaged in a course of conduct toward S. that resulted in great bodily injury. As long as the jury could reasonably find that defendant had the requisite intent when he engaged in the course of conduct, and that the course of conduct resulted in great bodily injury, then the evidence is sufficient to
support a torture conviction." (Hamlin, supra, 170 Cal.App.4th at p. 1431.)
2. Application
As in Hamlin, the record in this case indicates that the offense of torture was charged and tried as a course of conduct crime. Further, during the trial, the parties stipulated that "during the course of these events [Nelson] personally committed great bodily injury upon [the victim]." In light of this stipulation, pursuant to Hamlin, we must consider whether there is substantial evidence from which the jury could have reasonably found that Nelson engaged in this conduct with the requisite intent—i.e. with the intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. (Hamlin, supra, 170 Cal.App.4th at p. 1429.) Further, we may consider the " 'circumstances of the offense' " in determining whether the jury could have reasonably found that Nelson harbored such an intent. (Id. at p. 1426.)
The amended information charged Nelson with committing the crime of torture "between December 8, 2008 and December 10, 2008." During closing argument, the prosecutor referred to several acts that Nelson committed during this time period, argued that Nelson acted with a sadistic purpose in committing such acts, and asked rhetorically, "How else can you describe and explain the behavior of this defendant during that 26 hours?" In his reply brief, in arguing that the trial court was required to stay imposition of the sentence on either count 1 or count 6 pursuant to section 654 (see pt. III.C., post), Nelson acknowledges that his conviction on count 6 "rest[s] on his course of conduct as a whole."
Briefly summarized, the relevant circumstances of the offense are that Nelson choked the victim in her home until she passed out, bound her tightly with duct tape, dragged her from her house and put her in the cargo section of her vehicle, drove her vehicle in a reckless manner, injuring her while she remained a bound captive in the cargo area of the vehicle, punched her in the face while she was incapable of resisting, beat her whenever she asked for something, refused to let her have any water or use a restroom, and made her lie in her own vomit, urine, and feces for 26 hours. Vinge suffered serious injuries as a result of Nelson's conduct. When police freed Vinge, her mouth was full of blisters and scabs from dehydration, her eyes were swollen shut, her face was covered in dried blood, and her body had numerous bruises. In addition, Vinge experienced double vision for weeks after the incident and suffered pain in her leg for more than a year.
The duration of the incident, and the manner by which Vinge was held captive, strongly support the inference that Nelson intended to inflict extreme pain for a sadistic purpose. (See, e.g., Jung, supra, 71 Cal.App.4th at p. 1043.) Nelson's act in punching Vinge while she was bound and unable to defend herself also supports an inference that he harbored the requisite intent. (See, e.g., Pre, supra, 117 Cal.App.4th at p. 422.) In addition, Nelson's act in striking Vinge in a vulnerable area of her body, namely the face, supports such a finding. (Hamlin, supra, 170 Cal.App.4th at pp. 1426-1427.) Vinge's injuries also are consistent with Nelson having harbored the requisite intent. (See, e.g., Pre, supra, at p. 421.) Finally, the jury could have reasonably found that Nelson inflicted pain on Vinge for the purpose of experiencing sadistic pleasure, based on statements that Nelson made while holding Vinge captive. (See, e.g., Burton, supra, 143 Cal.App.4th at p. 452 [defendant's statements during attack are probative of defendant's intent].) For example, Baker testified that Nelson said to Osborne, "It felt good hitting that bitch, didn't it?" In light of this evidence, the jury could have reasonably found that Nelson engaged in a course of conduct toward Vinge that resulted in her suffering great bodily injury, and that in engaging in such conduct, Nelson harbored an intent to cause cruel and extreme pain and suffering, for a sadistic purpose.
We reject Nelson's contention, raised in his opening brief, that there is insufficient evidence that he had the specific intent to inflict extreme pain because "appellant's actions in either choking or punching the victim are not sufficient to show appellant intended to cause 'extreme' pain." As discussed above, Nelson's actions consisted of far more than simply choking and punching the victim. Specifically, Nelson fails to address evidence that he kept Vinge bound and captive in the cargo area of her vehicle for 26 hours and denied her food, water, or access to a bathroom for the entire 26-hour period. We also reject Nelson's argument, raised in his reply brief, that there is insufficient evidence that he had the specific intent to cause cruel or extreme pain for a purpose listed in the torture statute. For the reasons stated above, a jury could have reasonably found that Nelson intended to cause cruel or extreme and pain for a "sadistic purpose." (§ 206.)
Accordingly, we conclude that there is sufficient evidence to sustain the jury's verdict finding Nelson guilty of torture. C. The trial court did not err in failing to stay execution of the sentence for attempted murder pursuant to section 654
Nelson claims that the trial court erred in failing to stay execution of the sentence for attempted murder (§§ 664, 187, subd. (a)) (count 1) pursuant to section 654, in light of the court's imposition of a sentence for torture (§ 206) (count 6). Nelson maintains that the trial court was required to stay execution of the sentence for attempted murder because both crimes were committed pursuant to one criminal objective.
Nelson maintains in his opening brief that the sentences for attempted murder and torture should be stayed. However, in his reply brief, Nelson clarifies that he is contending only that his sentence for attempted murder should be stayed.
1. Governing law and standard of review
Section 654 provides in relevant part: "(a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Section 654 prohibits multiple punishment where a single criminal act or omission violates more than one penal statute. This statutory prohibition has also been extended to cases in which the defendant engages in an indivisible course of conduct with a single objective, violating several different penal statutes in the process. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.) "If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
In reviewing a defendant's claim that the court erred in failing to stay a sentence pursuant to section 654, the "defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence." (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
2. Factual and procedural background
At sentencing, the trial court imposed a term of nine years for attempted murder (count 1) and a consecutive life term for torture (count 6). In imposing these sentences, the court reasoned as follows:
"Inasmuch as there was a series of acts over a 26-hour period, many of those acts are unique to one offense, not necessarily to the other. For instance, the presence of the shovel; for instance the statements by the defendant as to his intentions with regard to the death of the victim. Those are not part, in any way, of the torture count. They are separate acts which support each one and inasmuch as no specific findings were made or were needed to have been made, I find that they are, in fact, distinct and separate offenses for which consecutive sentences can be imposed."
3. Application
The trial court could have reasonably found that Nelson intended to kill Vinge based on his comment to Baker that he was " 'giving the dead bitch time to breathe,' " his question to Osborne concerning where he could " 'dump off' " Vinge's body, and the fact that he placed a shovel in Vinge's vehicle. The trial court could also have reasonably found that Nelson harbored a separate intent to cause cruel or extreme pain and suffering for a sadistic purpose from the manner by which Nelson kidnapped and beat Vinge and kept her bound and captive for 26 hours without food or water before she was freed by law enforcement. Thus, the trial court could have reasonably found that Nelson harbored not only the intent to kill Vinge, but also a separate intent to cause her to suffer cruel or extreme pain for a sadistic purpose prior to killing her.
Accordingly, we conclude that the trial court did not err in failing to stay execution of the sentence for attempted murder pursuant to section 654. D. The carjacking conviction must be reversed because carjacking is a lesser included offense of kidnapping during a carjacking and a defendant may not be convicted of a lesser included offense and the greater offense based on the same conduct
Nelson contends that his conviction on count 4 (carjacking) (§ 215, subd. (a)) must be reversed because he was also convicted of the greater offense of kidnapping during a carjacking (§ 209.5, subd. (a)) (count 7), and a defendant may not be convicted of both a lesser included offense and the greater offense based on the same conduct. The People concede the error. We accept the concession. (See People v. Contreras (1997) 55 Cal.App.4th 760, 765 [reversing carjacking conviction as a lesser included offense of kidnapping during a carjacking].) Accordingly, the conviction on count 4 must be reversed.
Resentencing is not required as the trial court stayed imposition of the sentence on count 4 pursuant to section 654.
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IV.
DISPOSITION
The conviction on count 4 (carjacking) (§ 215, subd. (a)) is reversed. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the reversal of the conviction on count 4 and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
AARON, J. WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.