Opinion
H016755 (Santa Clara County Superior Court No. 183490)
Filed June 29, 1998
Trial Court Santa Clara County Superior Court Trial Judge Honorable Paul R. Teilh.
John L. Staley, for Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General Ronald A. Bass, Senior Assistant Attorney General Catherine Rivlin, Supervising Deputy Attorney General Christina V. Kuo, Deputy Attorney General, for Respondents.
Defendant was convicted by jury of three counts of first degree robbery (Pen. Code, §§ 211, 212.5, subds. (a), (b), 213), one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), kidnapping for robbery (Pen. Code, § 209, subd. (b)) and giving a false name to a peace officer (Pen. Code, § 148.9). Allegations that he had been armed with a firearm (Pen. Code, § 12022, subd. (a)(1)) in the commission of the first degree robbery counts and the kidnapping for robbery count were found true. Defendant admitted that he had suffered two prior serious felony convictions within the meaning of Penal Code sections 667, subdivisions (a) and (b) to (i) and 1170.12. He was committed to state prison for a determinate term of eight years and three consecutive indeterminate terms of 25 years to life. Concurrent life terms were imposed for the other two counts.
On appeal, defendant claims that (1) his trial counsel did not provide him with effective assistance, (2) the trial court's response to a jury inquiry was prejudicially erroneous as to the kidnapping for robbery count, (3) the evidence does not support one of the robbery counts, (4) two of the four robbery convictions were improper because they were part of the same course of conduct as one of the other robbery convictions, (5) Penal Code section 654 precluded imposition of sentence for three of the four robbery counts because they were part of the same course of conduct as the kidnapping for robbery count, (6) the trial court prejudicially erred in failing to give a unanimity instruction as to the false identification count and (7) the court erred in imposing full-length consecutive terms for each of the Penal Code section 12022, subdivision (a)(1) enhancements. We modify the judgment to stay, pursuant to Penal Code section 654, the concurrent terms imposed for two of the robbery counts and affirm the modified judgment.
FACTS
Thomas Savoca and Julie Overacker were in Overacker's upstairs bedroom in the house they shared at about 10:30 p.m. on April 9, 1995 when defendant and Binh Nguyen entered the room. Binh had a gun in his hand. Binh pointed the gun at Savoca's head and told Savoca and Overacker to "get down on the floor." Savoca and Overacker complied. Defendant took a phone from Overacker's hand and pulled the cord out of it. He sat on top of Savoca and used the phone cord to tie up Savoca. Binh told Overacker to get up. He pointed the gun at her chest and demanded money and jewelry. Binh threatened to harm Overacker if Savoca made any movement. Overacker emptied her purse and gave the money to Binh. She removed her jewelry and handed it over. Binh demanded more money and more jewelry. Overacker explained that this was all she had on her, and she invited him to take anything he found in the house.
Binh appeared to be the only one of the men who spoke English fluently. Savoca heard defendant speak "broken English" and what Savoca took to be Vietnamese.
Binh pointed the gun at Overacker's head and repeated his demand. She repeated her response. Binh had Overacker accompany him downstairs. Overacker observed two additional men downstairs. These men were speaking a foreign language. Defendant and the other two men went upstairs. Overacker could hear them "rummaging through" the house. One of the men kept an eye on Savoca and kept telling him that they would harm Overacker if Savoca moved. Binh remained downstairs with Overacker. He ordered Overacker to turn off the lights and close all the blinds. Binh then took Overacker back upstairs and put her in the closet of Savoca's bedroom. She could hear the four men conversing in a foreign language in Savoca's bedroom. Binh took her from the closet back downstairs, and he told her that he was taking her with him. Overacker expressed her reluctance to leave the house, and she asked him what she could give him. He said "you don't have anything I want."
Binh again placed the gun to Overacker's head. This time, Binh "pulled the hammer back on the gun" and asked Overacker "how much is your life worth." Overacker replied "evidently not very much at this moment," and she told him "I'm holding nothing back here." She offered Binh a credit card. He did not want it. Binh asked Overacker if she had "an ATM card." Overacker responded affirmatively, and defendant told her to "go get it" and to "hurry up." He followed her back up to her bedroom, and she retrieved her ATM card from her purse. Overacker could hear the other men coming into and out of the house and the sounds of items being carried out of the house. Binh asked for Savoca's ATM card. Defendant retrieved Savoca's ATM card from Savoca's wallet. Binh demanded they disclose their "PIN numbers." They complied, and Overacker wrote down the PIN numbers because she feared she would forget them. Binh told Savoca that he would kill Overacker if the PIN number was not correct.
At this point, the men had been in the house for about 45 minutes. Binh directed Overacker, at gunpoint, out to her car. Defendant accompanied them. Binh got into the driver's seat, and defendant got into the backseat. Binh asked Overacker to direct him to the nearest ATM. Overacker complied. The other two men followed Overacker's vehicle in another car. Binh ordered her to withdraw "all" of the money from the two accounts. Overacker proceeded to the ATM and withdrew the daily maximum of $200 from each account. She returned to the car and handed Binh the money. Overacker explained to Binh that this was the daily maximum that could be withdrawn. Binh drove back to the house.
After the men left the house with Overacker, Savoca freed himself. He armed himself with a shotgun and ran to a neighbor's house. Just as he was entering his neighbor's home, Savoca saw Overacker's car returning. Savoca concealed himself in the neighbor's house and called the police.
When the two cars arrived back at the house, the two men in the other car went back into the house. They returned shouting in a foreign language. Both cars drove away "very fast." Overacker asked "what happened," and Binh said "your boyfriend got away, he's very stupid, we told him we'd kill you." Binh drove onto the freeway. He asked Overacker what she thought they should do. She suggested that they leave her by the side of the freeway. This suggestion was followed by a very animated conversation between defendant and Binh in a foreign language during which Overacker got the impression that defendant disagreed with her suggestion. The car turned around and started going the opposite direction on the freeway. Binh required Overacker to conceal herself underneath the dashboard of the car, and he told her not to look up. He told her that he would have her killed if she identified him. She assured him that she would not identify him. Eventually, the car stopped. Overacker was moved to the other car. One of the other men covered her eyes with his hands, and the cars resumed their travels.
The cars stopped at a convenience store and then continued their journey. The next stop was in a wooded area. Overacker "thought they were going to kill me." She could hear the men conversing in a foreign language outside the cars. Binh came to the car and told Overacker that they were going to wait until after midnight so that they could get more money from another bank. He assured Overacker that he would then return her car to her so that she could go to work the next day. A bit later, Overacker was moved back to her car. She was again required to conceal herself under the dashboard. Defendant was in the back seat. Ten or fifteen minutes later, the car pulled up to a drive-up ATM window. Binh used the ATM cards to withdraw money. When he encountered "a little difficulty" with one of the cards, Overacker "reminded him [of] the PIN number in case he was entering [it] incorrectly." The car left the bank and stopped a short distance away. Defendant and Binh spoke to each other "very fast," and then they jumped out of the car and ran away.
An alert police officer who had been given a description of Overacker's car and dispatched to the house in response to Savoca's report was checking banks along his way to the house because he was aware that victims are often forced to retrieve money from banks with their ATM cards. He saw Overacker's car at drive-up ATM window and pulled in behind it. As he was confirming the license plate number, the car pulled away from the ATM window. He followed the car. The car pulled into a gas station and stopped. He saw Binh and defendant exit the car and run away. The police officer found a "very scared" Overacker under the dashboard. Other officers, with the assistance of their canine companions, arrested Binh and defendant nearby. Some of Savoca's property was found on defendant's person. Overacker was able to describe the other vehicle to the police. It was located and the other two men were arrested. A loaded .38 caliber revolver was found in that car.
The police officer who took custody of defendant at the scene of his arrest did not speak Vietnamese. Defendant initially told this officer that his name was "Tong Nguyen." He later told this officer that his name was "Dung Phan Nguyen." A bilingual police officer took "basic information" from defendant while defendant was in an "interview room" at the "preprocessing center." Defendant told this officer that his name was "Dung Nguyen." Another bilingual police officer advised defendant of his constitutional rights and thereafter interviewed defendant. Defendant told this officer that his name was "Dung Nguyen." These identifications were false.
Defendant gave a statement to the police which was tape recorded. He admitted that the men had entered the house with the intent to obtain money "to go out," but he minimized his own involvement in the crimes. Defendant claimed that one of the other men had "slightly" tied up Savoca, and he asserted that "we" assured Savoca that "we" were "not going to harm" him or Overacker. He admitted that he had been in the backseat of Overacker's car throughout the kidnapping, yet he denied knowledge of many of the events and maintained that he was "asleep" during them. Defendant stated that they had taken Overacker to the ATM for the purpose of obtaining money.
A transcript of an English translation of this tape recording was admitted at trial and read to the jury.
Defendant was charged by information with four counts of robbery (Pen. Code, §§ 211, 212.5, subd. (a), (b), 213, subd. (a)(1)(A)), kidnapping for robbery (Pen. Code, § 209, subd. (b)) and giving a false name to a peace officer (Pen. Code, § 148.9). It was further alleged that he had suffered two prior felony convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12 and one prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a) and that he had been armed with a firearm (Pen. Code, § 12022, subd. (a)(1)) in the commission of the robbery counts and the kidnapping for robbery count.
Defendant was apparently tried on the second amended information.
The prior conviction allegations were bifurcated, and defendant admitted all of those allegations. Defendant was convicted of all counts, and the jury found three of the four robbery counts to be first degree robberies. The jury found the firearm allegations true as to all counts except the second degree robbery count. The court imposed 25-year-to-life terms for each of the four robbery counts and the kidnapping for robbery count and one-year terms for the firearm enhancements. Consecutive terms were imposed for the two residential robbery counts, the kidnapping for robbery count and their accompanying firearm enhancements. Concurrent terms were imposed for the other two robbery counts. A five-year term was imposed for the Penal Code section 667, subdivision (a) enhancement. The total term amounted to an eight-year determinate term and three consecutive 25-year-to-life indeterminate terms. Defendant filed a timely notice of appeal.
DISCUSSION
A. INEFFECTIVE ASSISTANCE
Defendant asserts that his trial counsel did not provide him with effective assistance at trial or at sentencing. He asks us to presume prejudice because, in his view, due to his trial counsel's "utter lack of effort," the trial "was not subject to the adversarial process" required by the Sixth Amendment. Defendant maintains that his trial counsel was ineffective because he failed to cross-examine many of the prosecution witnesses, presented no evidence, made a brief closing argument, "allowed" defendant to admit the prior conviction allegations, presented no mitigating evidence and made no argument in mitigation at the sentencing hearing, did not ask the court to impose concurrent terms rather than consecutive terms and failed to request that the court strike the prior conviction findings. We find no basis in the record for a presumption of prejudice and conclude that defendant has failed to establish that his counsel was deficient in any particular respect.
1. TRIAL COUNSEL'S PERFORMANCE
At defendant's trial counsel's request, the prior conviction allegations were bifurcated. His in limine request for an Evidence Code section 402 hearing to determine whether defendant had been advised of and waived his constitutional rights before making a statement to the police was also granted. At the commencement of trial, defendant's trial counsel informed the court that the defense did not plan to call any witnesses and defendant did not intend to testify.
Defendant's trial counsel did make an opening statement. However, defendant has not provided this court with any record of the content of that statement. It is not included in the reporter's transcript. All we know about this opening statement is that it lasted for four minutes, while the prosecutor's opening statement lasted for ten minutes. Defendant's trial counsel cross-examined both Overacker and Savoca. He highlighted the fact that it was Binh who had carried a gun and conversed with Savoca and Overacker, and he suggested that Binh was controlling the entire "operation." Defendant's trial counsel also questioned Savoca's identification of defendant. Savoca acknowledged that he could only identify defendant by his clothing and haircut. Defendant's trial counsel elicited Overacker's concession that she was engaging in "sheer speculation" in concluding that defendant disagreed with her suggestion to Binh that she be released. Defendant's trial counsel's cross-examination of the first officer to whom defendant falsely identified himself established that this officer did not speak Vietnamese.
It is not clear whether the opening statements were reported and not transcribed or not reported. The reporter's transcript states "(Opening statements were given by the People and the defense.)" Defendant asserts in his opening brief that his trial counsel's opening statement "was not transcribed." If the statement was reported but not transcribed, we cannot imagine why defendant has failed to have the statement transcribed and placed in the appellate record.
Toward the end of the prosecution's case, defendant's trial counsel informed the court, outside the presence of the jury, that he was withdrawing his request for an Evidence Code section 402 hearing. "I had an opportunity before you came out on the bench to speak with the officer who Mirandized my client. I questioned him quite some time about the various aspects of the Miranda, how he gave it. At this time I would like to withdraw the 402 hearing request and I don't have a good faith belief that there was a Miranda problem." The officer thereafter testified that he had advised defendant of his constitutional rights in both English and Vietnamese. He stated that defendant had acknowledged that he understood his rights and agreed to talk to the officer. Defendant's subsequent statements were tape recorded, and an English translation of his admissions was admitted at trial.
Defendant's trial counsel rested without calling any witnesses or introducing any evidence. Thereafter, outside the presence of the jury, he informed the trial court that defendant wished to admit the prior conviction allegations. Defendant's trial counsel told the court that he had "fully discussed" the matter with defendant "several times" and that defendant was "fully aware" of the consequences. The court advised defendant of his rights and ensured that he understood his rights. It then accepted his admissions of the prior conviction allegations.
Defendant's trial counsel argued to the jury that it was important to ensure that defendant received a fair trial. He encouraged the jury to set aside any ethnic prejudices it might have and to consider the "language problem" which might have interfered with the translation of defendant's statement to the police. Defendant's trial counsel also criticized the prosecutor's "ploys" in highlighting the fact that the crime occurred on Palm Sunday and the fact that Binh had, at one point, asked Overacker to remove her pantyhose. He protested that the prosecutor was appealing to the jury's passion and prejudice and asked the jurors to disregard such matters as irrelevant. His substantive argument to the jury was that, except for the two robberies at the house, defendant had been "merely present" when Binh committed the remainder of the offenses. He pointed out that defendant had not had a gun and had not communicated with Overacker at all. Defendant's trial counsel argued that defendant did not know what Binh intended to do and did not intend to facilitate those offenses. "[Defendant] was caught by surprise by Binh's actions, by Binh's testosterone explosion that occurred when they entered the house. [¶] He knew nothing that occurred. He knew of nothing that would occur once they entered the house. He was merely present."
When they left the house, Binh told Overacker to take off her pantyhose. Overacker told him that she was not wearing pantyhose. He directed her back into the house and had her retrieve a pair of pantyhose. Binh covered his hands with the pantyhose while he drove Overacker's car.
At the sentencing hearing, defendant's trial counsel submitted the matter without argument. The probation report contains a statement by defendant that his trial counsel had told him "that he may have to serve up to a maximum of 135 years in state prison." The probation officer opined that defendant was "a `poster' example of a felon under the California's [sic] Three Strikes Law." A sentence of 108 years to life was recommended in the probation report. The trial court imposed a sentence of 83 years to life.
2. ANALYSIS
Defendant simply states that "[t]he defense presented on appellant's behalf cannot be characterized as the adversarial process [because] . . . [his trial] counsel made no meaningful effort to defend him." He makes only a few specific criticisms of his trial counsel's performance. He criticizes his trial counsel's failure to (1) argue to the jury that Overacker was not moved a "substantial distance" or subjected to movement which "substantially increased the risk of harm," (2) request jury instructions which allegedly could have supported an argument that there was only one count of robbery of Overacker rather than three counts and (3) require the prosecution to prove up the prior conviction allegations rather than allowing defendant to admit them. He does not even suggest that any of these alleged deficiencies prejudiced him.
When a defendant challenges his conviction based on a claim of ineffective assistance of counsel, he must prove by a preponderance of the evidence that counsel's performance was deficient and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687.) "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington, supra, 466 U.S. at p. 687.) Whenever counsel's conduct can be reasonably attributed to sound strategy, a reviewing court will presume that the conduct was the result of a competent tactical decision, and defendant must overcome that presumption to establish ineffective assistance. (Id. at p. 689.) It is only where a defendant's trial counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing" that prejudice will be presumed. (In re Avena (1996) 12 Cal.4th 694, 727, citation and quotation marks omitted.)
The record before us reflects that defendant's trial counsel in fact subjected the prosecution's case to a meaningful adversarial testing. A defense counsel cannot manufacture a defense which is not based on the facts. "[T]he Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade." (In re Avena,supra, 12 Cal.4th at p. 728, citation and quotation marks omitted.) Defendant had admitted his involvement in the charged offenses in a tape-recorded statement to the police. Defense counsel, after extensive examination of the officer who took this statement, expressly stated that there was no factual basis for attacking the admissibility of the statement. The officer's testimony supports this assessment. The other evidence of defendant's involvement also provided no apparent opening for a claim that defendant had not been involved in the charged offenses. Defendant was caught in flight with some of the loot from the robbery on his person. He decided not to testify at trial and chose to admit the prior conviction allegations after the consequences were fully explained to him by his trial counsel. The record contains no indication that there was any basis upon which the prior conviction allegations could have been contested.
In this context, we can find no fault in the defense presented by defendant's trial counsel. Through cross examination and argument, he made a valiant, if doomed, effort to convince the jury that defendant had not intended to aid and abet all of the charged offenses. He tried to cast doubt on the accuracy of the translation of defendant's statements so as to minimize the impact of defendant's incriminating admissions. By focusing the jury's attention on Binh's acts, he invited the jurors to compare and contrast defendant's more minor level of involvement in the charged offenses. His closing argument was reasonably focused on convincing the jury that defendant had not intended to aid and abet all of Binh's acts.
Defendant's trial counsel impliedly made tactical choices not to do what defendant now claims he should have done. No facts provided support for a reasonable argument that Overacker was not moved a substantial distance during her journey in the car with the robbers. Nor did it appear, prior to the jury's inquiry regarding the nature of the "risk of harm," that there was any substantial factual question whether she was exposed to a substantial risk of harm during her long automobile journey which included freeway travel, numerous stops and some "very fast" driving. We cannot imagine any appropriate jury instructions which would have supported an argument that Overacker was the victim of only one rather than three robbery counts. In the absence of any basis upon which to contest the prior conviction allegations, defendant's trial counsel was not deficient in permitting his fully informed client to admit those allegations. On the record before us, it appears that the defense presented by defendant's trial counsel arose from tactical choices which were reasonable under the circumstances. Defendant has not established by a preponderance of the evidence that his trial counsel's conduct of his trial defense was deficient in any respect.
Defendant's claim that his trial counsel performed deficiently at sentencing is similarly unproven. Although his counsel submitted without argument on the record, the trial court's sentence was significantly more lenient than the probation officer's recommendation. The court found that two of the four robbery counts were part of the same course of operative conduct as the kidnapping for robbery count and rejected consecutive sentences for those two offenses. The most logical inference that we can draw from the record is that the court had already discussed its proposed sentence with counsel in chambers prior to the sentencing hearing. We cannot presume that defendant's trial counsel failed at that time to make any appropriate requests for leniency. The record does not contain any evidence of mitigation, and defendant does not argue that any such evidence existed. We cannot conclude on this record that defendant's trial counsel's performance at sentencing was deficient.
We reject defendant's contention that his trial counsel was ineffective.
B. KIDNAPPING FOR ROBBERY COUNT: RESPONSE TO JURY QUESTION
The prosecutor argued that there was plenty of evidence that the robbers' "movement [of Overacker] substantially increased the risk of harm to [her] over and above that necessarily present in the robbery itself." "[W]hen you take a person out of their house at gunpoint, you can see by the facts we saw here what can happen. They drove her around for close to two hours. They took her up in the foothills, in the woods someplace. [¶] Does that increase the risk of injury? Of course it does." The trial court's instructions on the kidnapping for robbery count told the jury three times that it was a requisite element of that offense that "the movement substantially increases the risk of harm to the person moved, over and above that necessarily present in the crime of robbery itself." During its deliberations, the jury sent the following inquiry to the trial judge. "Elaboration of the meaning of element 5 in proof of kidnapping for robery [sic] (`movement substantially increased the risk of harm . . . ') [¶] Does this include psychological harm?" The trial court gave a very brief oral response to this inquiry. "Webster's defines harm as physical or mental damage."
Defendant claims that the court's response to the jury's inquiry was an instruction on "an erroneous legal theory." He argues that this response was inaccurate because this element requires an increased risk of "physical" harm. Defendant concedes that "[t]here are no reported cases directly addressing whether mental harm can satisfy the element of aggravated kidnaping [sic] which requires that the movement of the victim substantially increase the risk of harm over and above that present in the crime of robbery." However, he claims that cases considering the sufficiency of evidence of this element "focus on physical location and movement and not mental damage." We conclude that the trial court's response was not erroneous.
The "increased risk of harm" element of kidnapping for robbery is one of the judicially-created elements of kidnapping for robbery which were added to the statutory elements of the offense by the California Supreme Court inPeople v. Daniels (1969) 71 Cal.2d 1119. "[W]e hold that the intent of the Legislature in amending Penal Code section 209 in 1951 was to exclude from its reach . . . those [offenses] in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself." (Daniels at p. 1139, emphasis added.) There has been no change in the definition of the "increased risk of harm" element of kidnapping for robbery since Daniels. "Kidnapping for robbery, or aggravated kidnapping, requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself." (People v.Rayford (1994) 9 Cal.4th 1, 12, emphasis added.) It has never been held that this element requires proof of an increase in the risk of physical harm as opposed to some other type of harm.
"Any person who kidnaps or carries away any individual to commit robbery" commits the offense of kidnapping for robbery. (Pen. Code, § 209, subd. (b).)
In his reply brief, defendant cites People v.Timmons (1971) 4 Cal.3d 411 and claims that the California Supreme Court therein "held" that kidnapping for robbery requires evidence of an increased risk of "significant physical injuries." Although Timmons does describe the increased risk of harm element in this manner, it contains no holding on the issue of whether the increased risk of harm element refers solely to physical harm as opposed to mental harm. This issue simply was not presented in Timmons. "Cases are not authority for propositions they do not discuss." (People v. Senior (1992) 3 Cal.App.4th 765, 781.) Timmons was a kidnapping for robbery case which was tried prior to the California Supreme Court's decision inDaniels. The issue before the California Supreme Court in Timmons was whether the evidence was sufficient to satisfy the two new elements recognized in Daniels. First, the court held that the movement of the victims was merely incidental to the robbery. Then, the court proceeded to conclude that there was no evidence that the movement had "substantially" increased the risk of harm to the victims. (Timmons at p. 414.) "[W]e recognize that for the reasons just stated the movement of the car also increased the likelihood that the victims would be robbed. But that risk is not what we meant inDaniels (at p. 1139 of 71 Cal.2d) when we spoke of movements which `substantially increase the risk of harm' beyond that inherent in the underlying crime. Rather, we intended to refer to an increase in the risk that the victim may suffer significant physical injuries over and above those to which a victim of the underlying crime is normally exposed." (Timmons at p. 414.) The court did not consider or address whether the risk of mental injuries would have been sufficient to sustain the convictions. The basis for the court's holding was that the increased risk of injury associated with the movement of the victims was not "substantial" but merely "slight." (Timmons at p. 416.) Timmons has been cited often and the "significant physical injuries" language has been frequently quoted by both the California Supreme Court and the Courts of Appeal.
Obviously, Timmons was the source of the since revised 1988 CALJIC instruction which stated that this element required a substantially increased "risk of physical injuries . . . ." The 1996 revised CALJIC instruction, which was used at defendant's trial, described this element as requiring a substantially increased "risk of harm . . . ."
As defendant concedes, the California Supreme Court has never actually considered whether "psychic harm" is sufficient to support the "increased risk of harm" element of kidnapping for robbery. Nevertheless, in contrast to the dicta inTimmons, the California Supreme Court indicated in subsequent dicta that the Legislature intended the increased risk of harm element to apply to both an increased risk of "psychic" harm and an increased risk of physical harm. InPeople v. Laursen (1972) 8 Cal.3d 192, the issue was again whether the evidence was sufficient to support a kidnapping for robbery count. The defendant claimed that both the intent to kidnap and the kidnapping itself had arisen after the completion of the robbery. In analyzing the underlying purpose of the kidnapping for robbery statute, as it had inDaniels, in order to determine whether the statute was intended to encompass such conduct, the California Supreme Court specifically addressed the legislative intent underlying the "increased risk of harm" element of kidnapping for robbery. "[T]he primary purpose of the [kidnapping for robbery] statute is to impose harsher criminal sanctions to deter the carrying away of persons during the commission of a robbery in a manner which substantially increases the risk that someone will suffer grave bodily or psychic injury or even death." (Laursen at p. 198, emphasis added.)
Because this issue has never been before the California Supreme Court, none of the dictum in its prior decisions is binding on this court. (Renz v. 33rd Dist. Agricultural Assn. (1995) 39 Cal.App.4th 61, 68.) The trial court correctly noted that the common meaning of "harm" is "physical or mental damage." (Webster's Collegiate Dict., (10th ed. 1995) p. 530.) Never has the California Supreme Court indicated that it used the word "harm" as a legal term of art inDaniels rather than using this non-technical term as it is commonly understood. When the movement of a victim substantially increases the risk of psychological harm to the victim over and above the risk of psychological harm inherent in the crime of robbery, the California Supreme Court's interpretation of the legislative intent underlying Penal Code section 209 reflects that the Legislature intended the perpetrator be liable for aggravated kidnapping. Hence, we conclude that the word "harm," as used by the California Supreme Court in defining this element of kidnapping for robbery nearly three decades ago, is not a legal term of art and carries its common definition. Consequently, the trial court's response to the jury's question was not erroneous.
C. SECOND DEGREE ROBBERY COUNT: SUFFICIENCY OF THE EVIDENCE
The robbery count based on the second ATM visit was Count 5. The prosecutor argued that this count was a first degree "ATM robbery." "Any time you are robbed at [an] ATM, it's always going to be first degree robbery." The trial court instructed the jury on both first degree robbery and second degree robbery with regard to this count. "Defendant is accused in Counts 4 and 5 of the information of having committed the crime of robbery, a violation of Section 211 of the Penal Code. [¶] Every person who takes personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent permanently to deprive that person of the property, is guilty of the crime of robbery in violation of Penal Code Section 211." "There are two degrees of robbery. [¶] Every robbery of any person which is perpetrated in an inhabited dwelling house, or while using an automatic teller machine or immediately after the person has used an automated teller machine and is in the vicinity of automated teller machine is robbery of the first degree. [¶] All other robberies are of the second degree. [¶] If you find the defendant guilty of robbery, you must determine the degree thereof, and state that degree in your verdict. [¶] If you have a reasonable doubt whether the robbery is of the first or second degree, you must find it to be the second degree." The jury returned a verdict of guilt on Count 5 which found the offense to be a "second" degree robbery.
Defendant challenges the sufficiency of the evidence to support a second degree robbery conviction for Count 5. He argues that the evidence and the jury instructions "supported only a conviction of first degree robbery or innocence." However, the instructions given to the jury clearly permitted the jury to return a second degree robbery verdict on this count if it concluded that this robbery of Overacker was not perpetrated "while" Overacker was "using an automatic teller machine . . . ." Defendant concedes as much. We need not construe the statute in order to uphold the jury's verdict. It is enough that the jury could have interpreted the instructions to require it to find that a first degree robbery conviction required that Overacker be robbed "while using" an ATM. Since the evidence established that Binh operated the ATM during this robbery of Overacker, the jury's second degree robbery verdict was supported by the evidence.
Defendant also claims that the evidence was insufficient to support a first degree robbery conviction for Count 5. He seems to be under the mistaken impression that "[t]he record is not entirely clear regarding exactly what the jury findings were with regard to count 5." He notes that the jury fixed the degree of the robbery at "second," but he finds an alleged lack of clarity in the fact that the jury convicted him of robbery using a verdict form which referred to "Robbery, in violation of California Penal Code section 211/212.5(B)." Defendant also contends that this case somehow involves "inconsistent verdict forms." We need not wade into this particular thicket. Even if the jury's verdict form was "not entirely clear," a proposition with which we completely disagree, we would be bound by the jury's express finding that Count 5 was a "second" degree robbery. The sufficiency of the evidence to support a first degree robbery count is not properly raised in this case because defendant was convicted of second degree robbery. There is no need in this case to consider the issue of "inconsistent verdict forms."
D. MULTIPLE ROBBERY CONVICTIONS
Defendant argues that two of his three convictions for robbing Overacker must be reversed because the underlying acts were part of the same course of conduct. We uphold all three convictions.
A similar contention regarding multiple burglary convictions was addressed in People v. Washington (1996) 50 Cal.App.4th 568. In Washington, the defendant claimed on appeal that two convictions for burglary based on separate entries into the victim's apartment could not be upheld because the two entries had been pursuant to a single intent and plan. (Id. at pp. 574, 576.) This court rejected that claim. "[T]he conduct described and proscribed by section 459 is a single act: entry. Designating a series of separate and factually distinct entries as one single entry is no less an unreasonable fiction than designating a series of forgeries one forgery or a series of penetrations a single rape." (Id. at p. 577.) Similarly, the conduct described and proscribed by Penal Code section 211 is a forcible taking of property from a person. (Pen. Code, § 211.) This is also a "single act." As in Washington, it would be an irrational legal fiction to pretend that the three separate forcible takings from Overacker at different times and places were but a single robbery.
None of the cases cited by defendant actually considered this issue. People v. Brito (1991) 232 Cal.App.3d 316 did not involve the question of multiple convictions at all but instead concerned instructions on lesser included offenses. (Brito at p. 326.) Thus, its dicta in a footnote tells us nothing about the multiple convictions issue. (Brito at p. 326, fn. 8 ["When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals."]People v. Rush (1993) 16 Cal.App.4th 20 was based on People v. Irvin (1991) 230 Cal.App.3d 180. Irvin and Rush both involved the issue of multiple convictions, but the convictions at issue in those cases were for greater and lesser (allegedly) included offenses. (Irvin at p. 184; Rush at pp. 23-27.) In People v. Bright (1991) 227 Cal.App.3d 105, the court of appeal upheld multiple convictions for multiple counts of lewd and lascivious conduct on the ground that the convictions were based on "separate acts" which were "not preparatory to or necessarily associated with any other charged act." (Bright at pp. 109-110.) This holding does not support defendant's contention. The other cases cited by defendant involve entirely different issues such as the time of completion of the crime of robbery for purposes of aiding and abetting or felony murder. These cases do not resolve whether multiple convictions for robbery are permitted where each count is based on a separate forcible taking at a different time and place.
We believe that, like separate entries or separate penetrations, separate forcible takings from a person at separate times and places support multiple robbery convictions.
Defendant claims that the trial court erred in imposing prison terms for the three counts of robbing Overacker because these offenses were part of the same course of conduct as the kidnapping for robbery offense. We conclude that the concurrent terms imposed for the ATM robbery count and the second degree robbery count should have been stayed pursuant to Penal Code section 654.
1. THE RESIDENTIAL ROBBERY COUNT
The application of Penal Code section 654 to the facts of this case must be preceded by the application of the punishment provisions of Penal Code section 1170.12. "Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions . . . , the court shall adhere to each of the following: . . . (6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section." (Pen. Code, § 1170.12, subd. (a).) Because this subdivision is an exception to "any other provision of law," it takes precedence over Penal Code section 654 to the extent that the two differ.
The trial court's imposition of a consecutive term for the residential robbery of Overacker could have been properly based on an implicit conclusion that this offense occurred on a separate occasion from the kidnapping for robbery and did not arise from the same set of operative facts as the kidnapping for robbery. Although defendant addresses his argument to Penal Code section 654, this assertion necessarily includes a contention that Penal Code section 1170.12, subdivision (a)(6) did not mandate a consecutive term for the initial robbery. The evidence supports a finding that a consecutive term was mandatory. A rational factfinder could have concluded that the robbers did not originally intend to kidnap Overacker. Upon their entry into the house, they immediately robbed her and Savoca. It was only after a significant period of time had passed, and they had failed to satisfy their desire for money, that they decided to kidnap Overacker for the purpose of committing additional robberies. Under the circumstances, we must presume that the trial court concluded that this evidence indicated that the residential robbery and the kidnapping for robbery occurred on separate occasions and arose from separate sets of operative facts. Because Penal Code section 1170.12, subdivision (a)(6) therefore applied, Penal Code section 654 was inapplicable. A consecutive separate term was mandated for the residential robbery offense under Penal Code section 1170.12, subdivision (a)(6).
2. THE SUBSEQUENT ROBBERIES
As the trial court did not impose consecutive terms for the other two robberies of Overacker, it impliedly concluded that those two robberies either occurred on the same occasion as the kidnapping for robbery or arose from the same set of operative facts as the kidnapping for robbery. In light of its express finding that these two robberies arose out of the "same course of operative conduct" as the kidnapping for robbery, it is clear that the court found that consecutive terms were not required for these two counts under Penal Code section 1170.12, subdivision (a)(6). Thus, the applicability of Penal Code section 654 is at issue as to these two counts.
"The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished 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.Beamon (1973) 8 Cal.3d 625, 639; see alsoPeople v. Ratcliffe (1981) 124 Cal.App.3d 808, 817.) "The defendant's intent and objective are factual questions for the trial court; there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced." (People v. Coleman (1989) 48 Cal.3d 112, 162, internal quotation marks and citation omitted.)
The trial court explained at sentencing that it was imposing concurrent terms for the ATM robbery count and the second degree robbery count because "the Court considers that to be the same course of operative conduct" as the kidnapping for robbery count. The Attorney General argues that separate terms for these two robbery counts were permissible because defendant "had separate objectives, separate time frames, and separate means of accomplishing the objectives." Nevertheless, he identifies only a single objective for these two robbery counts and the kidnapping for robbery count. The only separate objective identified by the Attorney General applies solely to the residential robbery count. The trial court's finding that these two robberies were part of the same course of conduct as the kidnapping for robbery precludes us from implying that the trial court determined that defendant entertained separate objectives for the robberies as opposed to the kidnapping for robbery. It was a question of fact for the trial court whether the two robberies of Overacker at the ATMs were pursuant to the same objective which motivated the kidnapping for robbery which originated at the house. (See People v.Milan (1973) 9 Cal.3d 185, 196-197.) The logical conclusion which we draw from the trial court's finding is that it found only a single objective for these offenses. Consequently, Penal Code section 654 requires the separate concurrent terms imposed for these two robbery counts to be stayed.
F. FALSE IDENTIFICATION COUNT: UNANIMITY INSTRUCTION
Defendant contends that the trial court's failure to give a unanimity instruction as to the misdemeanor false identification count was prejudicially erroneous. We conclude that defendant was not prejudiced by the absence of a unanimity instruction.
On the morning of his arrest, defendant falsely identified himself successively to three police officers. He told each of these officers that his name was "Dung" Nguyen. Defendant did not contest this charge at trial nor did he distinguish between the three events in any manner. The prosecution did not elect to rely on a single false identification to support the charged count. The trial court instructed the jury on the requisite elements of the false identification count. "Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer listed in Section 830.1 or 830.2, upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor. [¶] In order to proof [sic] that crime, the following elements must be proved: [¶] 1. A person identified himself to a peace officer listed in Section 830.1 of the Penal Code; [¶] 2. That identification was false; and [¶] 3. That false identification was made with the specific intent to evade the process of the court or to evade the proper identification of the person by the investigating officer."
"The unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction. This branch of the `continuous conduct' exception applies if the defendant tenders the same defense or defenses to each act and if there is no reasonable basis for the jury to distinguish between them." (People v. Crandell (1988) 46 Cal.3d 833, 875, citations omitted.) Here, defendant falsely identified himself to three police officers in succession shortly after his arrest. He offered no defense to this count, and there was no basis in the evidence for distinguishing between the three events. Hence, the absence of a unanimity instruction could not have resulted in any prejudice to defendant. The trial court did not prejudicially err in omitting to give a unanimity instruction on this count.
G. FIREARM ENHANCEMENT TERMS
Defendant asserts that the terms imposed for two of the three firearm enhancements should not have been full-length but only one-third of the applicable term. Basically, he maintains that these two enhancements should have been sentenced under Penal Code section 1170.1. We disagree.
The only authority cited by defendant in support of his contention is an appellate case which has been decertified by the California Supreme Court. (People v.Harrison (Cal.App. D024993, D025023, D05024) opn. ordered nonpub. (Apr. 1, 1998.).)
If a person is found to have been "armed with a firearm" in the commission of a felony, he or she receives "in addition and consecutive to the punishment prescribed for the felony[,] . . . an additional term of one year . . . ." (Pen. Code, § 12022, subd. (a)(1).) Penal Code section 1170.12 provides that "[f]or purposes of this section, and in addition to any other enhancements or punishment provisions which may apply . . . if a defendant has two or more prior felony convictions . . ., the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of [at least 25 years]." (Pen. Code, § 1170.12, subd. (c), emphasis added.) "The indeterminate term . . . shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law." (Pen. Code, § 1170.12, subd. (c)(2)(B).) Nothing in Penal Code section 1170.12 further describes the manner in which enhancements attached to these indeterminate terms should be sentenced. "Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first . . . ." (Pen. Code, § 669.)
Defendant does not contest the imposition of fully consecutive life terms for the three offenses, but he claims that the trial court erred in imposing fully consecutive terms for the three Penal Code section 12022, subdivision (a) enhancements. He argues that these enhancements should have been sentenced under Penal Code section 1170.1, subdivision (a). Under Penal Code section 1170.1, subdivision (a), when a person is convicted of multiple felony counts "and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for [prior conviction, prison prior and "on bail"] enhancements . . . . The subordinate term for each consecutive offense which is a `violent felony,' . . . shall consist of one third of the middle term of imprisonment prescribed . . . and shall include one-third of the term imposed for any specific enhancements [including Penal Code section 12022, subdivision (a) enhancements] applicable to those subordinate offenses." (Pen. Code, § 1170.1, subd. (a).)
The problem with defendant's contention is that Penal Code section 1170.1 is expressly applicable only when a consecutive term is imposed under Penal Code section 1170. (SeePeople v. Jackson (1993) 14 Cal.App.4th 1818, 1832-1834) Penal Code section 1170.1 contains no instructions on the imposition of enhancement terms where the terms for the substantive offenses were not imposed under Penal Code section 1170. The consecutive life terms imposed for the substantive offenses in this case were not imposed pursuant to Penal Code section 1170. In our view, this precludes the application of Penal Code section 1170.1 by its own terms. These consecutive life terms were imposed pursuant to Penal Code section 1170.12. Penal Code section 1170.12 requires that each life term imposed thereunder be served consecutive to any other term for which a consecutive term is permissible. (Pen. Code, § 1170.12, subd. (c)(2)(B).) Penal Code section 12022, subdivision (a)(1) mandates the imposition of a one-year term consecutive to each of these life terms. (Pen. Code, § 12022, subd. (a)(1).) Because Penal Code section 1170.1 is inapplicable by its own terms, we can conceive of no statutory justification for reducing the mandatory one-year terms for any of these enhancements to a mere four months. In the absence of statutory support for such a reduction, it would be an unauthorized sentence. The trial court did not err.
CONCLUSION
The judgment is hereby modified to reflect that the concurrent terms imposed for Counts 4 and 5 (the two non-residential robbery counts) are stayed pursuant to Penal Code section 654. The trial court is ordered to file an amended abstract of judgment reflecting this change and forward it to the Department of Corrections. The modified judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of sections A, C and F.
_______________________________ Mihara, J.
WE CONCUR:
_____________________________ Cottle, P.J.
_____________________________ Bamattre-Manoukian, J.