Opinion
G043096
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. CESAR ARDAS SANTAMARIAMUNIZ, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. INF058507)
OPINION
Appeal from a judgment of the Superior Court of Riverside County, James S. Hawkins, Judge. Affirmed in part, reversed in part, and remanded with directions.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Cesar Ardas Santamariamuniz of first degree murder (Pen. Code, § 187, subd. (a)) (count 1); three counts of kidnapping for extortion (§ 209, subd. (a)) (counts 2, 4, & 5); torture (§ 206) (count 3); assault with a deadly weapon (§ 245, subd. (a)(1)) (count 6); robbery (§ 211) (count 7); robbery in concert (§§ 211, 213) (count 9); burglary (§ 459) (count 10); assault with a firearm (§ 245, subd. (a)(2)) (count 11); and assault with a stun gun (§ 245, subd. (a)(2)) (count 12). The court sentenced him to a determinate term of 21 years four months for counts 6, 9, 10, and a firearm enhancement to count 9, followed by two consecutive terms of 25 years to life for count 1 and its firearm enhancement, and four consecutive life terms with the possibility of parole on counts 2, 3, 4, and 5. The court sentenced him to concurrent terms on counts 7, 11, and 12. On appeal defendant contends: (1) no independent evidence corroborated the accomplice's testimony implicating him on counts 9 through 12; (2) insufficient evidence supported his convictions for kidnapping for extortion; (3) the court failed to properly instruct the jury on the intent required for torture; (4) the jury effectively acquitted him of the gun enhancement to count 1; and (5) the court should have stayed execution of sentence on count 3 under section 654. We agree defendant's convictions for counts 9 through 12 must be reversed for lack of independent corroborating evidence of the accomplice's testimony. Furthermore, as to the gun enhancement to count 1, we remand the matter to the trial court to declare a mistrial on the allegation. In all other respects, we affirm the judgment.
All statutory references are to the Penal Code.
Count 8 of the information was dismissed after the close of evidence at trial.
FACTS
On January 2, 2007, defendant shot and killed Jordan Dane Ketchersid. The following is a chronology of events leading up to and including the murder.
Events Prior to Defendant's Murder of Jordan Ketchersid
In the summer of 2006, Anthony "Fisher" Sebenick rented a room in his mobile home to then 18-year-old S.S. While Sebenick was at work, S.S. often broke his house rules by having defendant and other people over to smoke methamphetamine. Defendant — known as "Diablo" — was a drug dealer who supplied the group with drugs. S.S. and defendant appeared to have a romantic relationship. Sebenick and Marcos Gonzalez (defendant's friend) had seen S.S. and defendant kiss, cuddle, and hold hands. (At trial, S.S. denied she was ever romantically involved with defendant.)
Sebenick had a house rule that if someone brought a gun into his home, the person had to lock the weapon in a small safe in Sebenick's bedroom. Sebenick told defendant about the rule and gave him a key to Sebenick's safe so defendant could keep his gun there.
Defendant had a lock box containing cash, drugs, and possibly guns. He told S.S. the lock box was in Sebenick's safe. Shortly thereafter, the lock box disappeared. Defendant, Sebenick, and possibly Bruce Thomas (defendant's good friend) searched Sebenick's house for the lock box. Defendant told Gonzalez he was missing about $3,000 in cash and drugs.
Defendant suspected that S.S. or Thomas had stolen his drugs. Defendant questioned Thomas at Sebenick's house for about 20 minutes about the missing lock box. Defendant bound Thomas into a chair with duct tape, held a rope to Thomas's throat, and put a pillowcase over Thomas's head. Defendant threatened Thomas with a circular saw (that had no blade). Thomas cried and denied knowing anything about the box's disappearance. Gonzalez, protecting Thomas, physically fought with defendant for about 10 minutes and put defendant in a headlock until defendant passed out. After defendant caught his breath, he apologized to Gonzalez and Thomas. (At trial, Thomas denied being tied up or duct taped to a chair by defendant and denied telling police the incident had happened.)
Defendant also accused S.S. of taking the lock box. He hit her on the forehead with a gun butt and forebade her to leave his sight until the drugs were found.
S.S. had a close friend named Ralph Aragon. In August 2006, Aragon was a 45-year-old methamphetamine addict who had been a firefighter for 26 years. He had just returned from "rehab" and was sober when he received a phone call from S.S. S.S. "set [Aragon] up" by inviting him to Sebenick's house, saying she had some "dope."
When Aragon entered Sebenick's house at around 9:30 p.m., guns were put to his head and he was ordered not to move. He heard someone named "Diablo" give instructions to other people. Aragon was forced into a chair, his hands and legs were tied to the chair, and a wire was pulled around his neck. His shirt and belt were taken off, and his wallet was searched. His head was wrapped in cloth and covered with a hood. Diablo asked Aragon if he had any guns or money. Aragon was told that someone had stolen defendant's money and guns. Defendant said to S.S., "[S.], look at him now," and "What do you think about him now?"
Aragon was hit eight times and lost consciousness once. He could not see who was beating him. Someone pulled down his pants. Aragon heard a blowtorch ignite and felt its heat near his groin and by the side of his face. He felt scared. Someone talked about cutting off his fingers. Defendant said, "So you going to tell us now where the money is?"
At trial, Aragon admitted that during the beating, he might have accused S.S. of stealing defendant's money, guns, and methamphetamine. S.S. testified that, after defendant "beat the crap out of" Aragon, Aragon told defendant that S.S. stole defendant's lock box.
After hearing Aragon's accusation against S.S., defendant dragged S.S. into her bathroom. He cut off her clothes and shoes, hog-tied her, and put duct tape over her hair and mouth. Then he dragged her into the shower and left her there. Defendant returned and cut the duct tape off S.S.'s mouth. He put a black noose around her neck. Defendant then stood on the toilet, pulled S.S. up by the noose, and interrogated her about his lock box until she passed out. After S.S. regained consciousness, she told defendant she stole the box, even though she had not. Defendant released her from the bathroom.
When Aragon's hood was removed, he saw S.S. lying on the floor, wearing little clothing. Finally, Aragon was moved to another room, where he was put in a corner and retied to a chair. As the sun came up, defendant said Aragon would not be killed or shot, so long as he did not try anything funny. Defendant ordered Aragon to stand up and turn around. This was when Aragon saw defendant for the first time. Aragon also saw guns on the bed. At no point did Aragon feel free to leave. He was taken to the front room, where he smoked methamphetamine with defendant and a couple of other guys. Defendant, S.S., and another man then drove Aragon home.
Defendant told S.S. she could not leave his sight until his lock box was found. He took her to a second-floor apartment where he lived with his mother and 12-year-old sister, both of whom did not speak English. In his bedroom, he tied S.S. up with plastic zip ties (made for use on vehicles). Defendant's bedroom door was locked on both sides, with a slide lock inside and a padlock outside. His window was covered with blinds that were taped to the wall.
Defendant held S.S. in his bedroom for about three months. He continuously interrogated her about his drugs, money, and lock box. He hit her with his fists, threatened to cut off her hand, and swung a machete or "sword knife" weapon at her, which scared her. He threatened to kill S.S. and her brother. He kept S.S. drugged up and forced her to have sex with him. He allowed her to leave the bedroom only to use the restroom across the hall. She was provided food when defendant's mother knocked on the bedroom door and handed the plates to defendant. When defendant left S.S. alone in the room, he would put zip ties on her, then cut them off when he returned.
S.S. was allowed to leave the apartment only with defendant. Once, in an effort to escape, she tried to attract a stranger's attention at a gas station. Later, to punish her, defendant tied her in a chair and shone a strobe light in her face, then wrapped her belt around his fist and punched her in the face until the side of her face was swollen, bruised, and bloody, and the carpet was covered with blood.
Wade Wahlstrom testified that S.S. was once his girlfriend. Wahlstrom heard from defendant that he was holding S.S. at his apartment. Wahlstrom heard from others that defendant had kidnapped S.S. Wahlstrom went to defendant's apartment, where he saw S.S. in defendant's bedroom with her hands and feet bound with zip ties. Defendant told Wahlstrom that S.S. was zip tied so she would not get away. When Wahlstrom tried to talk to defendant about S.S., defendant offered Wahlstrom methamphetamine instead. The two men and S.S. smoked the drug. When they were done, defendant was too high to talk to Wahlstrom, so Wahlstrom left.
S.S. finally escaped when defendant left the apartment for a few hours to go to San Diego. S.S. chewed through the zip ties, went out the window, and fell from the second floor to the ground.
After S.S. escaped, defendant went to Aragon's residence at least two times. The first time defendant complained he could not find S.S. and had no money for bullets, so Aragon gave him some ammunition. The second time, defendant had learned that S.S.'s friend, Lexie, was at Aragon's residence. As defendant climbed the stairs to Aragon's front door, defendant lifted his shirt and displayed two guns to Aragon. Aragon felt threatened. Defendant asked about S.S.'s whereabouts, claimed S.S. was at Aragon's home, and said he (defendant) did not know what he was doing and had lost a lot of weight.
On Halloween 2006, defendant robbed the murder victim's brother, Damian Ketchersid, at knifepoint at a motel. Damian was "hanging out" with friends and using methamphetamine, when defendant approached and asked about a girl named S. and whether Damian was hiding her at the motel. Damian replied he did not know S.S.'s whereabouts. Defendant told him not to lie and said that Damian's brother had lied to defendant. Defendant left, but returned and threatened to throw Damian over the balcony; he grabbed Damian's shirt and scared him. Damian and defendant went into a motel room, where they talked. Defendant suspected Damian might have a weapon so he ordered Damian to empty out his pockets. Damian put two cell phones, two notebooks, and a Bible on the counter. Defendant got on top of Damian on the bed, choked him, and asked him where S.S. was, which scared Damian. Defendant said he was looking for S.S. because she had stolen something from somebody higher than him and he believed Damian or his brother knew where she was. Defendant pulled out a knife, said he would give Damian another chance, and put the knife blade to Damian's throat. Damian thought he was going to die. Defendant left, taking all of Damian's property with him except for the Bible.
For clarity and ease of reference, we sometimes refer to Damian Ketchersid and his brother, Jordan Ketchersid (the murder victim), by their first names only. We mean no disrespect.
Larry Dennis sometimes used methamphetamine with defendant. On December 16, 2006, Dennis told defendant that Dennis's nephew had loaned one of Dennis's BB guns to Matthew Wales and that Dennis wanted to retrieve the gun.Defendant said he was heading that way and offered to take Dennis to get the BB gun. Around 2:30 a.m., Dennis and defendant left in defendant's car. They stopped to pick up defendant's partner, Alfonso Penaflor, and got into Penaflor's car. Penaflor had a knife. Defendant put a gun under the hood of Penaflor's car.
Dennis is a convicted felon and defendant's former codefendant in this case. As part of a written plea bargain, Dennis pleaded guilty to first degree burglary and agreed to testify at defendant's trial. In return, Dennis was sentenced to four years in jail, with 50 percent credits, rather than the 14 years four months in state prison he would otherwise have faced. In addition, the district attorney dismissed two charges against Dennis. Dennis admitted he had prior convictions for burglary, welfare fraud, spousal battery, and possession of methamphetamine.
For clarity and ease of reference, we sometimes refer to Matthew Wales and his brother, Jonathan Wales, by their first names only. We mean no disrespect.
The threesome arrived at a trailer. Dennis approached the trailer, knocked, identified himself as "Uncle Larry," and announced he was there to pick up a BB gun from Matthew. A man at the door said Matthew was his brother and was not home. Defendant and Penaflor closed the car hood, came behind Dennis, and pushed him into the trailer. Defendant pointed the gun at Jonathan Wales, forcing Jonathan to back up. Dennis and defendant asked where Jonathan's brother was. Jonathan said his brother was not there.
Penaflor handed a cattle prod or Taser to Dennis and told Dennis to check the back bedroom. Dennis found no one in the back room. Dennis turned on the cattle prod, playing with it, and noticed that it worked. Penaflor had a knife and a roll of aluminum tape. Defendant pointed his gun at Jonathan and told him to sit down. Jonathan asked them not to hurt his mother, who was on her way home. Defendant assured Jonathan that no one would be hurt, so long as Jonathan told them what they wanted to know. Defendant told Dennis to look out the bedroom window for Jonathan's mother.
When Dennis returned to the living room, defendant was asking Jonathan if he had seen S.S. or knew where she was. Jonathan said he had not seen S.S. and did not know where she was. Dennis walked again to the bedroom to look out the window. When he returned, Jonathan's face was starting to swell up, as though he had been struck. Both defendant (armed with a gun) and Penaflor (armed with a knife) were standing by Jonathan. Dennis went back to the bedroom, but heard defendant and Penaflor continue to ask Jonathan about S.S. When Dennis returned this time, Jonathan's face was really swelling up on the side where defendant was standing. Defendant pointed the gun at Jonathan and told him to open his mouth. When Jonathan complied, defendant put the gun in Jonathan's mouth and Jonathan looked petrified. Dennis wanted to leave. Defendant said they were almost done. Dennis told defendant, "[J]ust shoot him and get it over with."
Dennis went back to the bedroom; he heard defendant and Penaflor ask Jonathan for gas money. Back in the living room, Dennis saw Jonathan pull his wallet out of his pocket, and defendant remove $5 from it. Defendant also took an address book out of the wallet, which he said was for "insurance," so Jonathan would keep his mouth shut because defendant now had the addresses and phone numbers of Jonathan's relatives and friends.
As they headed for the door, Dennis grabbed an empty gym bag from the floor. Defendant and Dennis said that if Jonathan did not have the BB gun, then they would take some "stuff' in exchange. Defendant told Dennis to put some speakers in the bag. Dennis then went to the car. When defendant came out, he put the gun under the hood of the car. Dennis still had the Taser.
On cross examination, Dennis recalled that Jonathan testified at the preliminary hearing that Dennis used the Taser on Jonathan three times. Dennis conceded he had acted as a lookout.
Defendant's Murder of Jordan Ketchersid
Eleanor Hardin-Provo was a close friend of Jordan Ketchersid, whom she called "JD," and an acquaintance (through drugs) of defendant, whom she knew as "Diablo" or "D." In the summer of 2006, Hardin was on her way to defendant's apartment to buy methamphetamine, when she ran into Jordan and invited him to join her. At defendant's apartment, defendant could not find his bag of methamphetamine and accused Jordan of taking it.
Between Thanksgiving and Christmas of 2006, Hardin spoke with defendant in the parking lot of a McDonald's where Jordan worked. Defendant was agitated and pacing back and forth. He said, "Fucking JD. He's been lying to me. He knows where [S.] is, he's been lying to me this whole time." Defendant said he had heard that Jordan was seen with "[S.] and Sharon" near a motel. Hardin explained to defendant that Jordan's mother was named Sharon and Jordan's sister was named S. Defendant calmed down. He said he was waiting for Jordan to bring out the trash because he wanted to shoot Jordan and that Jordan "would get his for lying." Defendant showed Hardin a gun tucked into the waistband of his pants. Defendant finally left after Hardin convinced him not to "make a scene" at McDonald's.
Defendant had once showed Hardin a gun and bragged that he could "get away with murder" because the gun had interchangeable barrels and was "hard to pin ballistics" on. Defendant bragged to Hardin that he had killed people before.
Jordan Ketchersid was James Petke's best friend. Around 3:00 a.m. on January 2, 2007, Petke was at his apartment with Jordan and two other people. Petke received a call on his cell phone from defendant. Petke did not know how defendant got his phone number. Defendant wanted to buy some marijuana to "soften his landing," as he was coming down hard from using methamphetamine. Petke told defendant he did not have any marijuana. Moments later, Jordan received a call on his cell phone. Jordan told Petke that defendant had called him and that he was going to meet defendant down the street. Jordan put some things in his pocket, said he would be right back, and walked out the front door and down the street. Petke never saw Jordan alive again.
Wade Wahlstrom and defendant were together late on January 1, 2007. Defendant left, wearing a bulletproof vest and a devil's mask, and with a gun. Defendant said he had to handle something and would be right back. He would not let Wahlstrom go with him. Defendant returned as the sun was coming up on January 2, 2007; he was really upset. Defendant said "they" killed Jordan professionally, and whoever tried to retaliate in the same way would be dealt with in the same way.
In the early morning of January 2, 2007, an officer dispatched to an intersection near Petke's home found a dead body in the street. Another officer found identifying information in Jordan's wallet and on his cell phone. The phone's call history revealed calls to and from defendant between 3:37 a.m. and 5:17 a.m. on January 2, 2007. At the time of the 5:15 a.m. phone call, defendant's cell phone was traced to the area of the murder, based on the phone's pinging on a cell tower about four blocks from where Jordan's body was found.
A forensic pathologist concluded that Jordan died from a gunshot to the back, which injured Jordan's heart and left lung, causing a loss of consciousness and death within a few minutes. The pathologist recovered a bullet from Jordan's body.
Laboratory analysis showed the recovered bullet could have been fired from a number of guns. No murder weapon was found.
On January 3, 2009, investigating officers went to a residence looking for defendant. Defendant tried to flee, but was caught in the back yard of the home next door. A bulletproof vest was found in the back yard where defendant was apprehended.
In the interior and trunk of defendant's car, an officer found two daggers, a long black cattle prod, two baseball bats, a replica machine gun, a replica old model handgun, a cane sword, the sawed off portion of a rifle butt, and a bag containing an assortment of ammunition. They also found a police scanner, police and fire radio codes for scanner frequencies, a digital gram scale, nine cell phones, a pair of binoculars, and a night vision monocular. They did not find an operable gun in the car.
On February 1, 2007, officers searched defendant's residence. They found a surveillance camera with a wire running into defendant's bedroom, locks on the inside and outside of his bedroom door, a black noose, zip ties, rolls of duct tape in an entryway closet, and more zip ties in a bedroom dresser drawer.
A police detective testified that, in an interview, Thomas stated defendant phoned him on the evening of January 2, asking for a ride. Thomas picked defendant up and while they were driving, defendant said he had shot Jordan "point blank." As to the incident where defendant tied Thomas to a chair, Thomas stated he was tied up and blindfolded by defendant and that Gonzalez intervened and fought with defendant. Thomas said defendant was in enough trouble, and Thomas was afraid of defendant coming after Thomas or his family. The prosecutor played a videotape for the jury of Thomas' interview with detectives.
At the trial, Thomas denied telling detectives that defendant confessed to shooting Jordan "point blank." Thomas also denied telling Gonzalez that defendant had admitted to shooting Jordan "point blank." Thomas further denied telling police he was present when Aragon was tied to a chair at Sebenick's house.
Defense Case
In the summer of 2006, Lela Cleary was a teenage friend of defendant's sister. Cleary testified she saw a woman named S. at defendant's apartment in July 2006, but did not recall seeing her in August or September. She said she saw S.S. outside defendant's bedroom in the kitchen or outside the apartment doing laundry. Cleary never heard S.S. cry, scream, or ask for help, and never saw S.S. fight with defendant. She did see S.S. and defendant act affectionately toward each other.
Defendant's sister, Scarlette Muniz, was age 12 in the summer of 2006 and age 15 at the time of trial. Muniz testified that S.S. stayed at the family's apartment in July 2006, but may not have been there in August and was probably gone by September. Muniz testified S.S. slept in defendant's room, and Muniz saw S.S. in the kitchen cooking two times and in the bathroom two times, and never saw her tied up. The apartment had land-line phones in the living room, kitchen, and all the bedrooms, including defendant's room. There was a lock on defendant's door, to keep Muniz out of his things. Muniz thought defendant and S.S. were dating. After the police searched defendant's room, Muniz found a letter from S.S. breaking up with defendant because he did not spend enough time with her.
Rebuttal
A detective testified that, in a February 2007 interview, Muniz denied seeing a woman at the residence, and dismissed a photograph of S.S. with the comment that her brother only dated pretty girls.
DISCUSSION
Defendant's Convictions on Counts 9 through 12 Must be Reversed Because No Independent Corroborating Evidence Supports the Testimony of Accomplice Dennis
Defendant argues there was insufficient evidence to support his convictions on counts 9 through 12 (relating to the robbery in concert, burglary, and assault on Jonathan Wales) because the court relied on the stun gun/cattle prod found in his car as corroborating evidence of Dennis's accomplice testimony. Defendant contends the stun gun did not implicate him in the crimes independently of Dennis's testimony, explaining: "The stun gun or cattle prod found in [defendant's] car was of no value without the aid or assistance from the testimony of accomplice [Dennis] that placed the stun gun with [defendant] in [Jonathan Wales's] house during the commission of the crimes in counts 9 through 12."
After the close of evidence, defense counsel moved, under section 1118.1, for a judgment of acquittal on counts 9 through 12, arguing Dennis's accomplice testimony was insufficiently corroborated. The court stated the cattle prod was corroborating evidence of Dennis's testimony and impliedly denied the defense motion for acquittal. The parties agreed Dennis was an accomplice. The court instructed the jury with CALCRIM No. 335, telling the jurors, inter alia, that they could not convict defendant of counts 9 though 12 based on Dennis's testimony alone, and that Dennis's testimony had to be supported by "independent" evidence. After the jury convicted defendant on those counts, the court sentenced him to a determinate term of 19 years on count 9 and its associated enhancement; a consecutive term of one year and four months for count 10; a concurrent term of three years for count 11; and a concurrent term of two years for count 12.
Under section 1111, a "conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Thus, section 1111 "serves to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives." (People v. Davis (2005) 36 Cal.4th 510, 547 (Davis).) The theory is "'that accomplice testimony comes from a tainted source, is usually given in the hope or expectation of lenience or immunity, is untrustworthy, and should be viewed with caution.'" (People v. Bowley (1963) 59 Cal.2d 855, 858.)
"To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony." (People v. Avila (2006) 38 Cal.4th 491, 562-563.) We must "'eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witness or witnesses with the view to ascertain if there be any inculpatory evidence — evidence tending to connect the defendant with the offense.'" (People v. Shaw (1941) 17 Cal.2d 778, 803; accord, People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.) The requisite independent corroborating "evidence '"need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth . . . ." [Citations.]'" (Davis, supra, 36 Cal.4th at p. 543.) Stated another way, corroboration "'is not sufficient if it requires interpretation and direction to be furnished by the accomplice's testimony to give it value . . . .'" (Falconer, at p. 1543.) "[U]nless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal." (Ibid.)
We apply these principles to the evidence on which the Attorney General relies to corroborate Dennis's testimony. First, the Attorney General points to the preliminary hearing testimony of the victim, Jonathan, as corroborating evidence. Jonathan's testimony, however, was not presented to the jury at trial. Dennis testified (without objection) on cross-examination that he heard Jonathan testify at the preliminary hearing about the Taser, but Dennis cannot corroborate his own testimony. His testimony must be ignored. (People v. Shaw, supra, 17 Cal.2d at p. 803.)
Second, the Attorney General contends the discovery of the stun gun in defendant's car is "circumstantial evidence that the assault on [Jonathan] occurred as Dennis testified." The stun gun has relevance to the crimes, however, only by virtue of Dennis's testimony concerning that object.
Finally, the Attorney General relies on the voluminous evidence that defendant was motivated to find S.S. and "his missing drugs and money by terrorizing and attacking people, up to and including tying them to a chair to immobilize them for a beating, as Dennis described happened to" Jonathan. But, again, it is Dennis who described what happened to Jonathan.
In sum, Dennis's testimony is the only evidence that placed the stun gun and defendant at Jonathan's trailer, and that showed defendant tied up Jonathan and questioned him about S.S.'s whereabouts. Thus, the prosecution failed to produce sufficient independent corroboration, and therefore a prima facie case, during its case-in-chief on counts 9 through 12. The trial court improperly denied defendant's motion for acquittal on those counts. We therefore reverse the judgment on these counts and direct the trial court to enter a judgment of acquittal on them. (People v. Belton (1979) 23 Cal.3d 516, 526-527; § 1118.2 [judgment of acquittal pursuant to section 1118 or 1118.1 bars any other prosecution for same offense].)
Substantial Evidence Supports Defendant's Convictions for Kidnapping for Extortion
Defendant challenges his convictions for kidnapping for extortion of the victims, S.S., Aragon, and Thomas, respectively. He bases his challenge on three separate grounds: (1) there was insufficient evidence he intended to obtain the property with forced consent; (2) the location of his lock box is not "property" subject to extortion under the kidnapping for extortion statute; and (3) there was no completed crime of kidnapping for extortion.
Counts 2, 4, and 5 of the information charged defendant with kidnapping S.S., Aragon, and Thomas "for ransom and reward, to commit extortion and to exact money and valuable things from another person." The court instructed the jury that the People were required to prove, inter alia, that defendant held or detained the victim in order "to commit extortion or to get money or something valuable." The jury found defendant guilty of violating section 209, subdivision (a), "as charged" in the information.
Section 209, subdivision (a) provides: "Any person who seizes, confines, . . . conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, . . . is guilty of a felony . . . ." Section 518 provides: "Extortion is the obtaining of property from another, with his consent, . . . induced by a wrongful use of force or fear . . . ."
Kidnapping for extortion requires only that the defendant have intended to commit extortion, not that the defendant have successfully accomplished the crime of extortion. (People v. Anderson (1979) 97 Cal.App.3d 419, 425 [concerning kidnapping for ransom].) "[T]he kidnap victim and the extortion victim are the same person." (People v. Kozlowski (2002) 96 Cal.App.4th 853, 870-871.)
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Defendant first argues there was no substantial evidence he intended to commit extortion by obtaining the victim's "consent to obtain the property." Rather — according to defendant — "the evidence shows at most that [he] intended to take the drugs, money and guns from whomever had it, with or without their consent, which is robbery." Defendant avers, "In the case of all three alleged victims, there is nothing in any of the transactions which could have inspired in any of the three such a fear as would induce them willingly or with their consent to deliver over [defendant's] money, drugs and guns."
Contrary to defendant's assertion, the record is replete with evidence defendant caused the victims to be in great fear; he restrained them with duct tape, wires, and zip ties, beat them, and used a circular saw, a blow torch, a noose, a gun butt, and a machete sword. Aragon was in such fear that he told defendant S.S. had stolen defendant's lock box. S.S. was so scared she admitted to stealing the property even though she had not. Conversely, there was no evidence that any of these victims was carrying the stolen property on or near their persons, such that defendant could have taken it without their consent. (Compare § 211 [robbery defined as taking personal property from another's "person or immediate presence, and against his will, accomplished by means of force or fear"].) In sum, the evidence reasonably supports the jury's conclusion defendant sought to take the property with the victim's coerced consent, i.e., by forcing a victim to consent either to revealing the property's location or to arranging for the return of the property to defendant.
We turn to defendant's second argument, i.e., that the location of his lock box is, as a matter of law, not property subject to extortion under the kidnapping for extortion statute. In People v. Kozlowski, supra, 96 Cal.App.4th at page 869, the Court of Appeal held that a personal identification number (PIN) associated with an automated teller machine card constitutes property for purposes of kidnapping for extortion. In reaching this conclusion, the court first determined that the term "property" should be broadly interpreted for purposes of extortion. (Id. at pp. 865-866.) "The term is all-embracing, including every intangible benefit and prerogative susceptible of possession or disposition." (Id. at p. 866.) The California Supreme Court decided, some 130 years ago, that the term "property," as used in the extortion statute, includes intangible property. (People v. Cadman (1881) 57 Cal. 562 [right to take and prosecute an appeal is "property" within the meaning of extortion statute].) The Kozlowski court reasoned that a PIN code is intangible property because the code is exclusively possessed and allows the possessor to access funds in a related bank account. (Kozlowski, at p. 867.) Kozlowski relied on People v. Kwok (1998) 63 Cal.App.4th 1236: "The Kwok court held that making an unauthorized copy of a borrowed key — like making an unauthorized copy of a trade secret or of computer data — destroys the intangible benefit and prerogative of being able to control access to one's residence as much as theft of the key would do. [Citation.] In like manner, when [the Kozlowski defendants] compelled [the victims] to reveal their PIN codes, that knowledge destroyed the intangible benefit of being able to control access to the bank accounts. The intangible property taken — the PIN codes — were the means to obtain the more tangible property — the bank funds — contained in those accounts." (Kozlowski, at p. 869.) Here — under the facts of this case — the secret location of the stolen lock box and its contents was intangible property meant to be exclusively possessed and which allowed its possessor to maintain possession of and access to defendant's money, drugs, and guns. Thus, the location of the stolen box was property for purposes of kidnapping for extortion.
Defendant's cited cases do not change our conclusion. Olschewski v. Hudson (1927) 87 Cal.App. 282 held that a laundry route was too "intangible, uncertain, and indefinite a property right" to be subject to conversion. (Id. at p. 286.) But, the tort of conversion is "limited to cases involving tangible personal property . . . ." (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 701, p. 1025.) Thus, the Olschewski case has no bearing on the definition of property for purposes of extortion, which includes intangible property within its meaning. Moreover, the Olschewski court made clear that knowledge of the laundry route did not ensure its holder of exclusive access to the customers' patronage: "Obviously, a customer of one laundry company today, for good and valid reasons, or for no reason whatever, may become the customer of a competing company tomorrow. For friendship, whim, better service, or cheaper prices, a customer may change his laundry at will. No laundry company may have a vested property right to claim as customers, particular individuals, nor all the residents of a specific district." (Olschewski, at p. 285.)
Another case cited by defendant, People v. Dolbeer (1963) 214 Cal.App.2d 619, is also inapt. In affirming a conviction for the theft of lists of new telephone subscribers, the Dolbeer court held that the paper on which the lists were printed constituted tangible "property" for purposes of the theft statutes; the court's musing that "[i]t may be that, had the operation . . . been merely the copying, transcribing or photographing of the lists, without any asportation, prosecution would not lie, because nothing tangible had been purloined . . . ." was mere dicta. (Id. at p. 623; see People v. Kozlowski, supra, 96 Cal.App.4th at p. 867 [Dolbeer's suggestion that information alone might not be property was dicta].) And, as we have seen, the term "property," for purposes of the extortion statute, includes intangible property.
Furthermore, learning the location of the stolen lock box or its contents was not necessarily defendant's sole objective. The evidence supports a finding defendant intended to obtain his property by forcing the victim to either reveal the property's location or to have it returned to him. For example, defendant told S.S. she could not leave his sight until the box was found. Aragon testified that defendant, while beating Aragon, continuously asked if S.S. was watching, thus supporting a finding defendant might have kidnapped Aragon with the intention, inter alia, of extracting money and valuables from another person.
Finally, defendant argues that because this case purportedly lacks any property subject to extortion and any intent to obtain property by forced consent, he could only be convicted of kidnapping for extortion if he actually took property from the victim by forced consent. But as we previously noted, kidnapping for extortion requires only that the defendant have intended to commit extortion, not that the defendant have successfully accomplished the crime of extortion. And because we conclude the location of the stolen lock box was property for purposes of the crime of extortion and that defendant intended to obtain such property by the victims' forced consent, this last argument fails as well.
The Court Properly Instructed the Jury on the Intent Required for Torture
Section 206, which defines the crime of torture, was adopted by the electorate in Proposition 115. (People v. Barrera (1993) 14 Cal.App.4th 1555, 1559.) Under section 206, a person commits torture if he or she — "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 on another person. Section 206 further specifies that the crime of torture "does not require any proof that the victim suffered pain." CALCRIM No. 810 tracks the statutory language of section 206 concerning the requisite intent for torture.
As to the requisite intent, CALCRIM No. 810 provides: "When inflicting the injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose."
Defendant contends section 206's phrase "intent to cause cruel or extreme pain and suffering" is ambiguous, and therefore the trial court should have further instructed the jury, sua sponte, on the meaning of "cruel or extreme pain and suffering." Defendant argues the court should have instructed the jury that the intent required for torture is "an intent to cause the utmost, or an exceedingly great degree, of pain and suffering." He concludes his conviction for torturing S.S. must be reversed.
The court instructed the jury with CALCRIM No. 810, as follows: "[T]he defendant's charged in Count 3 with torture in violation of section 206. [¶] . . . [¶] So in order to prove the charge in Count 3, torture, the People must prove, [¶] One, the defendant inflicted great bodily injury on someone else. [¶] Two, when inflicting the injury the defendant intended to cause cruel or extreme pain and suffering for the purposes of revenge, extortion, persuasion or for any sadistic purpose. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than a minor or a moderate harm. It's not required the victim actually suffer pain."
A trial court bears a sua sponte duty to instruct the jury on "'"the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case."'" (People v. Breverman (1998) 19 Cal.4th 142, 154.) "[W]ithout any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case." (§ 1093, subd. (f).) "Once the trial court adequately instructs the jury on the law, it has no duty to give clarifying or amplifying instructions absent a request." (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331.) A defendant who fails to object below may not raise a claim of instructional error on appeal, unless the claim raises issues concerning substantial rights. (People v. Lewis (2009) 46 Cal.4th 1255, 1315, fn. 43; § 1259.)
"The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language." (People v. Poggi (1988) 45 Cal.3d 306, 327.) But "'[t]he general rule which provides that in defining the elements of a crime it is enough for the court to instruct in the language of the statute when the defendant fails to request an amplification thereof [citation] will not prevail when the jury would have difficulty in understanding and applying the statute. Under such circumstances, a court must give additional guidance and clarification on its own motion. [Citations.]'" (People v. Rogers (1971) 5 Cal.3d 129, 138.) A trial court's sua sponte obligation to instruct the jury "comes into play when a statutory term 'does not have a plain, unambiguous meaning,' has a 'particular and restricted meaning' [citation], or has a technical meaning peculiar to the law or an area of law [citation]." (People v. Roberge (2003) 29 Cal.4th 979, 988.)
An appellate court reviews assertions of instructional error de novo. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) It independently reviews the wording of a jury instruction "and assesses whether the instruction accurately states the law." (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574.) "'"In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding . . . all jury instructions which are given." [Citation.]'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
Defendant argues CALCRIM No. 810 left the "meaning of the intent element of torture open to serious misinterpretation and misapplication." He contends the phrase "intent to cause cruel or extreme pain" is ambiguous because, "[b]ased on various definitions of the word 'extreme,'" the phrase "can be commonly understood as meaning 'intent to cause immoderate pain and suffering — beyond the ordinary or average." He argues the statutory phrase "intent to cause cruel or extreme pain" "has a particular and restricted meaning within the development of the law on torture murder, on which Proposition 115 was clearly based" and must be construed in accordance with the voters' intent when they enacted section 206 by passing Proposition 115. He concludes the jury should have been informed he could be convicted of torture only if he intended to cause the utmost or an exceedingly great degree of pain and suffering, which is "beyond that necessary to accomplish great bodily injury."
But a court may not "ignore the actual words of the statute in an attempt to vindicate [a] perception of the Legislature's [or the voters'] purpose in enacting the law. '"This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed."'" (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 993.) "'We look first to the "plain meaning" of the statute's words, and only if the language is ambiguous do we resort to extrinsic aids . . . .'" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1110.) As explained above, a trial court has a sua sponte duty to amplify or clarify statutory language only if the jury needs guidance to understand and apply the statute, e.g., if a statutory term is ambiguous or has a restricted or technical meaning. Furthermore, a "defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68.)
Here, defendant has failed to demonstrate a reasonable likelihood the jury misunderstood or misapplied the instruction. His contention the phrase "intent to cause cruel or extreme pain" is ambiguous or was intended by the voters to have a particular and restricted meaning is unpersuasive. Defendant refers to no legal authority holding the challenged language in section 206 is ambiguous or has a restricted meaning. Indeed, the statute has withstood many "void-for-vagueness challenges." (People v. Misa (2006) 140 Cal.App.4th 837, 844.) Misa rejected the defendant's "contention that an ordinary person cannot understand what conduct is prohibited by section 206." (Ibid.) Section 206 "plainly sets forth its requirements for torture." (People v. Vital (1996) 45 Cal.App.4th 441, 444.) "In section 206, the word 'cruel' modifies the phrase 'pain and suffering.' In at least two other cases, courts have held that 'cruel pain' is the equivalent to 'extreme' or 'severe' pain. [Citations.] This definition comports with the common dictionary definition of 'cruel' [citation], and, in our view, is a reasonable and practical interpretation of that phrase [citation]." (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1202; accord, People v. Jung (1999) 71 Cal.App.4th 1036, 1041.) "The terms used in section 206, and therefore in CALJIC No. 9.90, are of such common usage that they are presumed to be within the understanding of reasonable jurors." (People v. Barrera,
CALJIC No. 9.90 is CALCRIM No. 810's predecessor pattern jury instruction for the crime of torture. As to the requisite intent, CALJIC No. 9.90 provides: "The person inflicting the injury did so with specific intent to cause cruel or extreme pain and suffering [for the purpose of [revenge] [,] [extortion] [,] [persuasion]] [,] [or] [for any sadistic purpose]."
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supra, 14 Cal.App.4th at p. 1572.) The phrase challenged by defendant is taken verbatim from section 206. Defendant did not request clarification or amplification below. The jury was capable of understanding the statutory language without guidance. There was no instructional error on the intent required for torture.
The Court Must Declare a Mistrial on the Firearm Enhancement to Count 1
The parties agree the jury made no finding on the allegation defendant personally discharged a firearm in murdering Jordan Ketchersid. They disagree on the consequence of this absence of a jury finding. Defendant argues "the failure of the trier of fact to make a finding on this enhancement operates as an acquittal on the allegation" and therefore retrial is prohibited. The Attorney General argues "there was neither an acquittal nor a finding of insufficient evidence, [and therefore] double jeopardy principles do not bar the district attorney from deciding whether or not to" retry the enhancement allegation. The Attorney General contends "there is nothing in the record to indicate that the jury would have returned the form marked 'not true,' and there certainly is no issue of insufficient evidence to support a true finding."
Prior to jury deliberations, the court instructed the jurors on the allegation defendant personally discharged a firearm causing great bodily injury or death in the commission of the count 1 murder, and read the verdict form aloud, explaining: "True or not true. [¶] Did or did not intentionally discharge a firearm causing death. [¶] To be signed by the foreperson."
But when the jury returned its verdicts, it had apparently made no finding on the firearm enhancement (§ 12022.53, subd. (d)); the verdict form in the record is blank and unsigned. The court, after reviewing the signed and completed verdict forms, said to the jury foreman, "Okay this third one on Count 1 was left blank on purpose, right?" (The jury signed two other verdict forms concerning count 1, finding defendant guilty of murder and finding he committed the murder with premeditation and deliberation.) According to the reporter's transcript, the jury foreman "indicat[ed]" a response to the court's query. (Thus, it is unclear how the jury foreman responded to the court's question — whether he indicated his assent, disagreement, or uncertainty. The record is otherwise silent on whether the jury deliberately left blank the verdict form for the count 1 firearm enhancement.)
The court reporter then read aloud the jury verdicts. As to count 1, the court reporter read aloud only the jury's findings defendant was guilty of murder and committed the murder with premeditation and deliberation. The jurors orally confirmed their verdicts.
The court's June 1, 2009 minute order states the jury found the firearm enhancement to count 1 to be true. At the June 2, 2009 sentencing hearing, the court sentenced defendant to a consecutive term of 25 years to life on the firearm enhancement to count 1, without any objection or other comment by defense counsel.
In People v. Anderson (2009) 47 Cal.4th 92 (Anderson), our Supreme Court held that, "when a jury has convicted the defendant of an offense but deadlocked on an attached penalty allegation," double jeopardy principles under the federal and state constitutions and section 1023 do not prohibit retrial of the mistried penalty allegation. (Id. at pp. 98, 112, 119.) Anderson further held that the mistried enhancement may be retried alone (without retrial of the underlying offense). (Id. at p. 98.)
In the case at hand, it is unclear exactly what went awry with the jury verdict (or lack thereof) and subsequent sentencing on the firearm enhancement to count 1. The record supports a conclusion the jury may have hung on the enhancement. Certainly, the record contains no suggestion the jury found the enhancement allegation to be untrue.
Defendant relies on In re Candelario (1970) 3 Cal.3d 702, 705, People v. Cole (1979) 94 Cal.App.3d 854,865 (overruled on another point in In re Kelly (1983) 33 Cal.3d 267, 269-270), and Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111-112, for his proposition that the jury's failure to make a finding on the enhancement "operates as an acquittal on the allegation." But, according to our Supreme Court in Anderson, "Sattazahn teaches that double jeopardy principles do not bar retrial of an aggravated sentencing allegation if the first trial did not produce an express or implied acquittal on the allegation." (Anderson, supra, 47 Cal.4th at p. 111.) Anderson and Sattazahn explain that retrial is barred if the first sentencing jury unanimously concludes the state has failed to prove an aggravating circumstance, not if the jury cannot agree on the truth of the enhancement allegation. (Anderson, supra, 47 Cal.4th at pp. 111-112.) In In re Candelario, our Supreme Court held a court's failure to include a prior conviction finding in the pronouncement of judgment could support an inference of leniency by the court, "if the record is silent in that regard [and] in the absence of evidence to the contrary." (In re Candelario, at p. 706.) "In such circumstances the silence operates as a finding that the prior conviction was not true." (Ibid. fn. omitted.) Here, the record does not support an inference the omission was an act of leniency by the jury as opposed to a failure to reach a unanimous agreement. Finally, the appellate court in Cole, relying on In re Candelario, held in summary fashion that "a finding of great bodily injury under section 12022.7 must be stricken from the minute order of the sentencing hearing and the abstract of judgment, since no such finding was made by the jury." (Cole, at p. 865.) Cole is unhelpful as it does not explain the circumstances of the jury's failure to make the finding at issue.
With respect to mistried enhancements, Anderson is controlling. We therefore remand this matter to the trial court, with directions to declare a mistrial on the firearm enhancement to count 1.
The Court Did Not Err Under Section 654
Defendant contends his consecutive sentences on count 2 (kidnapping for extortion of S.S.) and count 3 (torture of S.S.) violate section 654. He argues these offenses "were incident to a single criminal objective of forcing [S.S.] to reveal the location of [his] box containing his drugs, money and guns." He asserts the court should have stayed execution of sentence on count 3 under section 654.
At the sentencing hearing, the prosecutor asked the court to impose consecutive sentences on counts 2 and 3, arguing the events concerning the torture of S.S. in the bathroom were separate from the series of events that took place over the long period of time during which defendant held her at his apartment and Sebenick's house. The court concluded count 3 "is a separate incident," and imposed a consecutive life sentence on that count.
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
By its terms, section 654 operates to bar multiple punishments of a single, physical act. (Neal v. State of California (1960) 55 Cal.2d 11, 19-21 [single act of setting fire to residence cannot be punished as arson and attempted murder].) Section 654 also prohibits multiple punishments for an indivisible course of conduct, even though such conduct violates more than one statute. (People v. Hicks (1993) 6 Cal.4th 784, 789.) As explained by our Supreme Court in People v. Britt (2004) 32 Cal.4th 944, 951-952: "The test for determining whether section 654 prohibits multiple punishment has long been established: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.] A decade ago, we criticized this test but also reaffirmed it as the established law of this state. [Citation.] We noted, however, that cases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted." Judicial decisions "have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment. [Citations.] [¶] Other cases have found separate, although sometimes simultaneous, objectives under the facts." (Latimer, at pp. 1211-1212.) If a defendant "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.)
A defendant's criminal objective should not be defined too broadly and amorphously. In People v. Perez (1979) 23 Cal.3d 545, our Supreme Court "held that the defendant could be separately punished for separate sex offenses against the same victim. '[F]ocus[ing] on the question whether defendant should be deemed to have entertained single or multiple criminal objectives' [citation], [Perez ] rejected the defendant's argument that he had but a single objective in committing each sex offense — to obtain sexual gratification. 'Such an intent and objective is much too broad and amorphous to determine the applicability of section 654. . . . To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute's purpose to insure that a defendant's punishment will be commensurate with his culpability.'" (People v. Britt, supra, at p. 953.) Similarly, where a robber "commits several robberies and claims he had one objective, to gain money," he may be "multipl[y] punish[ed] for separate crimes" (People v. Lochmiller (1986) 187 Cal.App.3d 151, 153) where each act is "'committed with a separate identifiable intent and objective'" (id. at p. 154).
In People v. Trotter (1992) 7 Cal.App.4th 363, the defendant fired a gunshot at a police car, then fired a second shot about a minute later, and seconds later fired a third shot. (Id. at p. 366.) The trial court imposed consecutive sentences for two of the assaults, and the appellate court affirmed the sentence, stating: "All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. . . . '[D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.'" (Id. at p. 368.)
In People v. Surdi (1995) 35 Cal.App.4th 685, a defendant argued section 654 prohibited sentencing him for both kidnapping and mayhem because "the kidnapping was for the sole purpose of beating [the victim], which encompassed . . . the mayhem . . . count[.]" (Id. at p. 688.) Over the course of the kidnapping, the victim was stabbed numerous times, kicked, strapped around the neck with a seat belt, and dragged to a dirt riverbed. This court held the defendant "was properly punished for committing kidnapping and mayhem" (id. at p. 690), stating: "Like Trotter, the offenses presently under review did not arise from a single volitional act. Rather, they were separated by considerable periods of time during which reflection was possible." (Id. at p. 689.)
"The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
Here, the record supports the court's finding defendant had separate objectives for torturing S.S. in the bathroom and for kidnapping and confining her in his bedroom and at Sebenick's home. Not only were defendant's volitional acts separated by long periods of time during which reflection was possible, but there was evidence defendant had at least two separate objectives for torturing S.S. in the bathroom: (1) to cause her cruel or extreme pain and suffering for the purpose of recovering his stolen property, and (2) to cause her cruel or extreme pain and suffering for the purpose of revenge (section 206) because he was jealous of her relationship with Aragon. Aragon testified he thought defendant lured him to Sebenick's house because defendant was "jealous" of Aragon's relationship with S.S. While Aragon was being beaten, defendant made statements like, "[S.] says you're quite a cool guy, huh, is that right?" "[S.], look at him now," and "What do you think about him now?" In contrast, there was no evidence defendant kidnapped S.S. because of his jealousy of Aragon.
The court properly punished defendant for both counts 2 and 3.
DISPOSITION
The judgment entered below on counts 9 through 12 and the firearm enhancement to count 9 are reversed, and the trial court is directed to enter a judgment of acquittal on those counts. The sentence is modified by striking the determinate term of 21 years four months for counts 9 and 10, and the firearm enhancement to count 9, and striking the concurrent terms on counts 11 and 12.
The judgment entered below on the section 12022.53, subdivision (d) firearm enhancement to count 1 is reversed, and the trial court is directed to enter a mistrial as to that allegation.
In all other respects, the judgment is affirmed.
The court is directed to prepare a new abstract of judgment reflecting the judgment resulting from the above proceedings, including any retrial on the section 12022.53, subdivision (d) firearm enhancement to count 1, and deliver a certified copy to the Department of Corrections and Rehabilitation.
IKOLA, J.
WE CONCUR:
O'LEARY, ACTING P. J.
FYBEL, J.