Opinion
B226653
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. SAID SHAHMOHAMADIAN, Defendant and Appellant.
Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA369228)
APPEAL from a judgment of the Superior Court of Los Angeles County, Monica Bachner, Judge. Modified and, as so modified, affirmed.
Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Said Shahmohamadian appeals the judgment entered following his conviction by jury of robbery and attempted carjacking in which he personally used a deadly weapon. (Pen. Code, §§ 211, 664/215, subd. (a), 12022, subds. (b)(1) and (b)(2). The trial court sentenced Shahmohamadian to prison, selecting attempted carjacking as the principal term and imposing a concurrent term for robbery.
Subsequent unspecified statutory references are to the Penal Code.
Shahmohamadian contends, and we agree, the concurrent term imposed for robbery must be stayed pursuant to section 654 because the robbery and the attempted carjacking were committed with the same intent and objective. We therefore affirm the judgment as modified to stay the concurrent term imposed for robbery.
FACTS AND PROCEDURAL BACKGROUND
1. The prosecution's evidence.
On March 16, 2010, at approximately 10:50 p.m., Alice Lin stopped at a gas station on Western Avenue and parked at a gas pump. Lin exited the car, taking the keys with her, closed the driver's door, but did not lock it, and began to pump gas into the tank of the car. As she did, Shahmohamadian approached her from behind, passed within two feet of her and entered Lin's car through the driver's door. Shahmohamadian sat in the driver's seat of the car as if to drive it away. In an attempt to prevent Shahmohamadian from driving the car, Lin screamed and flailed her arms at Shahmohamadian. In response, Shahmohamadian jabbed at Lin with a knife that had a five or six inch blade. The knife made contact with Lin's jacket in the area of her abdomen but did not penetrate the jacket. As Lin continued to scream, Shahmohamadian exited the car, pushed Lin to the ground and fled on foot. Shahmohamadian said nothing during the incident.
Police officers arrived within minutes. After speaking with Lin, the officers broadcast a description of Shahmohamadian and an officer in a police helicopter saw an individual matching the description about one block from the gas station. Officers on the ground took Shahmohamadian into custody and found a knife in one of Shahmohamadian's pockets and Lin's cell phone in another. Lin identified Shahmohamadian in a field show. Later that evening, the police returned Lin's cell phone, which Lin had last seen in her car.
2. Sentencing.
The trial court selected attempted carjacking as the principle term and imposed a prison term consisting of one-half the upper term or four years and six months. (§§ 664/215, subd. (b).) With respect to the count of robbery, the trial court rejected defense counsel's argument the taking of the cell phone and the attempted carjacking constituted the same act. The trial court found Shahmohamadian entertained an independent objective in taking the cell phone and imposed a concurrent upper term of five years for robbery.
DISCUSSION
1. Shahmohamadian's argument.
Shahmohamadian contends the attempted carjacking and the taking of the cell phone were committed at the same time, in one location, with a single intent and objective, by the same force or fear, and both offenses were part of on indivisible transaction. He notes the entire episode lasted less than a minute (cf. People v. Green (1996) 50 Cal.App.4th 1076, 1085 [robbery and carjacking separated by intervening sex offenses]) and concludes the trial court should have stayed the term imposed for robbery, citing People v. Dominguez (1995) 38 Cal.App.4th 410, among other cases.
We find Shahmohamadian's argument persuasive.
2. General principles.
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." "The purpose of this legislative protection against punishment for more than one violation arising out of an 'act or omission' is to insure that a defendant's punishment will be commensurate with his culpability." (People v. Perez (1979) 23 Cal.3d 545, 550-551.)
"[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. . . . If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez, supra, 23 Cal.3d at p. 551; People v. Lewis (2008) 43 Cal.4th 415, 519.) Whether a course of conduct is divisible and thus gives rise to more than one act under section 654 depends on the defendant's intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all of a defendant's offenses were incident to one objective, he or she may be punished for any one of the offenses, but not more than one. (Ibid.)However, if a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he or she may be punished for the independent violations committed in pursuit of each objective even though the violations were part of an otherwise indivisible course of conduct. (People v. Perez, supra, 23 Cal.3d at p. 551.)
Whether section 654 applies is generally a question of fact. (People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5.) A trial court's finding a defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) Where section 654 applies to a given count, sentence is imposed and stayed. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
3. On the facts presented, section 654 bars a concurrent term for robbery.
Carjacking and robbery are similar offenses. " 'Both involve "the felonious taking" of property that is "in the possession of another" person. Both require that the taking be from the "person or immediate presence" of the person. Both are "accomplished by means of force or fear." ' [Citations.]" (People v. Lopez (2003) 31 Cal.4th 1051, 1059.)
The evidence presented at trial indicated Shahmohamadian entered Lin's car and attempted to drive it away, fending Lin off with a knife. Upon realizing he would not be able to drive the car, Shahmohamadian took Lin's cell phone from the interior of the car, exited the vehicle and fled on foot. Based on this evidence, it can only be concluded that Shahmohamadian's intent and objective, at all relevant times, was to take Lin's car and its contents. Because the cell phone was included within the contents of the car, it follows that Shahmohamadian did not entertain a separate intent or objective with respect to the cell phone apart from his intent and objective with respect to the car. Rather, he intended forcibly to take both items of property from Lin's presence. Consequently, section 654, which depends on Shahmohamadian's intent and objective, precludes punishment for both robbery and attempted carjacking. (See, e.g., People v. Lewis, supra, 43 Cal.4th at p. 519 [section 654 precludes punishment for kidnapping for robbery and robbery]; People v. Ortega (1998) 19 Cal.4th 686, 700 [robbery and carjacking], disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228; People v. Beamon (1973) 8 Cal.3d 625, 639 [kidnapping for robbery and robbery]; People v. Bauer (1969) 1 Cal.3d 368, 376-377 [robbery and car theft].)
Because the trial court's finding Shahmohamadian entertained a separate intent in taking the cell phone is not supported by substantial evidence, the judgment must be modified to stay the concurrent term imposed for robbery.
The People resist this conclusion by seeking to distinguish People v. Dominguez, the case cited by Shahmohamadian. In People v. Dominguez, supra, 38 Cal.App.4th 410, the defendant entered a van, put a weapon to the driver's neck, and demanded everything the driver had. The driver surrendered jewelry and then fled on foot. (Id. at pp. 414-415.) The trial court found section 654 barred punishment for robbery and carjacking. (People v. Dominguez, at p. 420.) Dominguez concluded substantial evidence supported this finding because the defendant simultaneously committed robbery and carjacking. (Id. at pp. 419-420.)
The People argue Shahmohamadian committed two separate acts, first trying to drive away in Lin's car and then taking her cell phone. Thus, unlike Dominguez, the attempted carjacking and the robbery did not take place simultaneously but in two separate and distinct steps. Also, the attempted carjacking and the robbery involved separate objects, Lin's car and her cell phone. The People conclude the trial court reasonably could find Shahmohamadian harbored two separate criminal objectives, the taking of Lin's car and, when that proved impossible, the taking of her cell phone.
The distinctions noted by the People are not determinative of the result. Application of section 654 "turns on the defendant's objective in violating" multiple statutory provisions (People v. Britt (2004) 32 Cal.4th 944, 952), not the temporal proximity of the offenses (People v. Harrison (1989) 48 Cal.3d 321, 335). Thus, simultaneous commission of multiple offenses is not a prerequisite to application of section 654.
The "separate object" argument advanced by the People overlooks that, from the outset, Shahmohamadian intended to take Lin's car and its contents. The fact he had to leave the scene on foot with only one of the objects in the car does not suggest he harbored a different intent with respect to the cell phone. Indeed, there was no evidence from which it reasonably could be concluded Shahmohamadian entertained one objective when he tried to take the car and a different objective when he took the cell phone from the interior of the car.
We conclude the concurrent term imposed for robbery violated section 654 and must be stayed. We shall order the judgment modified accordingly.
Section 654 requires the trial court to impose sentence "under the provision that provides for the longest potential term of imprisonment . . . ." (§ 654.) Second degree robbery is punishable by a term of two, three or five years. (§ 213, subd. (a)(2).) Attempted carjacking is punishable by one-half of the prescribed terms of three, five or nine years. (§§ 664/215, subd. (b).) At first glance, it would appear robbery carries a longer potential term of imprisonment than attempted carjacking. However, as to the count of robbery, the jury found true a deadly weapon enhancement under section 12022, subdivision (b)(1), which carries a one-year term. As to the count of attempted carjacking, the jury found true a deadly weapon enhancement under section 12022, subdivision (b)(2), which may be punished by a term of one, two or three years. Thus, when the enhancements are taken into account, as they must be (People v. Kramer (2002) 29 Cal.4th 720, 723-724), attempted carjacking carries a longer potential term of imprisonment. Because the trial court imposed sentence under the provision that provides for the longest potential term of imprisonment, there is no need to remand the matter for resentencing and we need only stay the concurrent term imposed for robbery.
DISPOSITION
The judgment is modified to stay, pursuant to section 654, the concurrent term imposed for robbery in count 1. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract reflecting this modification. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
CROSKEY, J. KITCHING, J.