Opinion
F083799
08-24-2023
THE PEOPLE, Plaintiff and Respondent, v. ADRION TREVOR SMART, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF183731A John R. Brownlee, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Appellant Adrion Trevor Smart, was convicted by jury of forcible oral copulation, forcible kidnapping to commit oral copulation, carjacking, making criminal threats, first degree robbery and evasion with willful and wanton disregard for safety. The jury further found true four "one strike" allegations as to the forcible oral copulation, and that appellant personally used a firearm during the commission of the remaining offenses. Appellant was sentenced to 25 years to life, plus seven years to life, plus 34 years 4 months.
On appeal, appellant argues first, the trial court abused its discretion when it declined to remove alternate Juror No. 5580322. Second, that substantial evidence does not support the jury's finding that appellant used a firearm in the commission of the crimes. Third, that either the carjacking or robbery conviction must be stayed pursuant to Penal Code section 654. Fourth, that the court improperly imposed the upper term on counts 3 and 4, in violation of Senate Bill No. 567's (2021-2022 Reg. Sess.) (Senate Bill 567) recent amendments to section 1170, subdivision (b). And, finally, that the abstract of judgment contains an error as to the sentence and enhancement imposed as to count 4. We vacate the sentence and remand the matter for a new sentencing hearing in compliance with Senate Bill 567, with additional direction to correct the abstract of judgment, but otherwise affirm the judgment.
Undesignated statutory references are to the Penal Code.
PROCEDURAL HISTORY
On September 29, 2021, the Kern County District Attorney charged appellant by amended information with forcible oral copulation (§ 287, subd. (c)(2)(A); count 1), forcible kidnapping to commit oral copulation (§ 209, subd. (b)(1); count 2), carjacking (§ 215, subd. (a); count 3), making criminal threats (§ 422; count 4), first degree robbery (§ 212.5, subd. (a); count 5), and evasion with willful or wanton disregard for the safety of persons or property (Veh. Code, § 2800.2; count 6).
The information further alleged four "one strike" allegations as to count 1, pursuant to section 667.61: appellant kidnapped the victim during the commission of the offense and the movement substantially increased the risk of harm (§ 667.61, subd. (d)(2)), appellant personally inflicted great bodily injury on the victim during the commission of the offense (id., subd. (d)(6)), appellant kidnapped the victim during the commission of the offense (id., subd. (e)(1)), and appellant personally used a firearm during the commission of the offense (id., subd. (e)(3)). It was further alleged that appellant personally used a firearm during the commission of counts 2 through 5. (§ 12022.53, subd. (b).)
On September 30, 2021, a jury found appellant guilty on all counts and found all of the allegations true.
On January 5, 2022, appellant was sentenced to 25 years to life on count 1, seven years to life on count 2, the upper term of nine years on count 3, one-third the middle term of 16 months on count 5, and one-third the middle term of eight months on count 6. Appellant was further sentenced to 10 years for the gun enhancement on counts 2 and 3, and three years four months for the gun enhancement on count 5. Appellant's aggregate sentence was 25 years to life, plus seven years to life, plus 34 years 4 months.
Appellant was further sentenced to the aggravated term of three years on count 4, and the aggravated term of 10 years for the personal use of a firearm enhancement. Both sentences were stayed pursuant to section 654.
Appellant filed a timely notice of appeal on January 21, 2022.
STATEMENT OF FACTS
On January 1, 2021, at around 8:00 p.m., John Doe, a rideshare driver at the time, was working and driving his black Toyota Prius. Doe picked up a rider who was supposed to be "Chris," but was later identified as appellant. Appellant told Doe that "Chris" was his friend. Appellant placed his bag in the trunk, then sat in the backseat with a box and a backpack.
Doe asked appellant how his night was going, and appellant answered that he was stressed out and needed sex. During the remainder of the ride, appellant asked Doe if he knew where he could find people to have sex with and alluded to having oral sex with Doe. Appellant also reached forward and touched Doe's arm without consent. Appellant then told Doe he wanted to work as an escort and again alluded to "practic[ing]" oral sex with Doe. Around this time, Doe arrived at appellant's destination on University Avenue.
Doe went outside to open the trunk when appellant walked up and asked Doe to take him to a clothing store. Doe declined, even when appellant offered cash. Appellant then walked to the backseat, opened his bag, pulled out a black gun with silver on the butt and pointed it at Doe. Appellant ordered Doe to get back in the driver's seat, and appellant sat in the passenger seat. Appellant stuck the gun into Doe's ribcage and told him to recline his seat.
Doe kept a camera videotaping the inside of his car on his rearview mirror. Appellant tore the camera off the mirror and broke it. He then took one of Doe's two phones off of the dashboard and the keys from Doe's pocket. Finally, appellant rifled through Doe's glove compartment, where he found Doe's IRS forms, registration, and insurance information. Appellant told Doe that if Doe called the police, appellant had his keys and his address and was going to hurt his family. With the gun still pressed against Doe's ribcage, appellant told Doe to drive.
During the drive, Doe's second phone dinged, indicating he was receiving a ride request. Appellant demanded Doe open the phone, and when Doe said he was not able to, appellant threw it out of the car. Appellant told Doe to park next to a cemetery. Appellant, still holding the gun against Doe's ribcage, told Doe to pull down his pants. Doe complied.
Appellant began touching Doe's penis with his hand and told Doe to "'Make it hard.'" Doe, who is not a native English speaker, said he did not know what appellant meant. Appellant then ordered Doe to continue driving, but would not let Doe sit up or to pull his pants up. After driving a short distance, appellant told Doe to stop again, and asked Doe where his wallet was. Doe said it fell next to the driver's seat, and appellant retrieved it. Doe begged appellant not to hurt him and offered to go to the ATM to get more money. Appellant refused.
Appellant turned the car's headlights off and began to orally copulate Doe. Appellant stopped multiple times and ordered Doe to make his penis hard, all while keeping the gun pressed against Doe's ribcage. When Doe could not comply, appellant told him "'This is the last chance.'" Doe again said he could not, and said he felt that it was his "last day."
Doe saw a person in front of a nearby house, turned on the car and attempted to crash it to get their attention. Appellant pressed a button that put the car in park in response. Appellant then began to beat Doe with the gun, hitting him on the nose, eye, chest, and head. Doe lost consciousness, and appellant threw him out of the car and drove away.
Doe woke up in the street and recovered the camera appellant threw out of the car. Doe was then able to get assistance from the person he had previously seen at a nearby house. While the homeowner was calling 911, appellant again drove by, slowly, in Doe's car. Doe believed appellant was looking for him. Ultimately, Doe spoke with the responding officers. He was subsequently transported to the hospital where he required multiple stitches, staples and surgeries to treat his injuries. A DNA sample was also taken from Doe's mouth and penis.
Later that night, Officer Tristan Braughton of the Bakersfield Police Department located Doe's car and followed it to the apartment complex where Doe and his family lived. Ultimately, when Braughton attempted to pull over appellant, appellant fled in Doe's car. During the ensuing chase, appellant drove with the car's lights off, drove 80 miles per hour in a 45 mile-per-hour zone, drove in the oncoming traffic lane, ran two stop signs and a red light. The chase ended when appellant crashed the car into a trailer.
Appellant was arrested and his DNA sample was obtained. Testing of the DNA revealed the presence of appellant's DNA on Doe's penis. Detective Jesse Perez of the Bakersfield Police Department also interviewed appellant. Appellant denied hitting the victim and said that if he had hit the victim, he would not have stopped until the victim was dead because of appellant's rage issues.
After Doe's car was recovered, officers located inside the car motor vehicle paperwork in appellant's name, appellant's driver's license, and bloodstained clothing that appellant was wearing when he assaulted Doe and took his car. A gun was not located inside Doe's car.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion When It Did Not Remove Juror No. 5580322
Appellant first argues the court abused its discretion when it declined to remove alternate Juror No. 5580322, because his relationship with Juror No. 11 was evidence that he engaged in misconduct by discussing the case before deliberations. We disagree.
There is some ambiguity in the record as to whether Juror No. 5580322 was alternate Juror No. 2 or 3. As such, we refer to him by his juror number.
A. Background
On September 29, 2021, Juror No. 12 handed the bailiff a note. The note said that Juror No. 11 had made multiple attempts to discuss the case, including insinuating that his mind was already made up. Juror No. 11 also made comments about defense counsel "'Not being very good.'"
The court spoke first with Juror No. 12, who stated that they were sitting outside after lunch several days prior, when Juror No. 11 approached them. Juror No. 11 said, "'I don't want to discuss anything that I'm not supposed to discuss,'" but then indicated he had already made a determination about the case and made comments critical of the defense attorney. Juror No 11 said, "'I think the facts are pretty clear. I don't think it's going to take us long to deliberate,'" and "'Maybe we could let him off on some of the more minor things, but we have all the evidence to get him on the big stuff.'" Juror No. 11 also said "'I wish they would let us discuss the case.'"
Juror No. 12 also noted that Juror No. 11 appeared to be friendly with Juror No. 5580322 and said, "I would assume that if he's texting [Juror No. 5580322] that a discussion about the case is likely occurring."
Juror No. 11 admitted to speaking "very loosely" about the case and trying not to get into the details. When asked about whether he discussed his feeling about either the prosecution or the defense, he said, "Yeah, I did. I did. Gosh darn. I didn't think of it like that, though. It was more just a passing comment of saying how I thought it was going."
Regarding his communication with alternate Juror No. 5580322, Juror No. 11 said he did not speak with him about the case specifically. Juror No. 5580322 then had the following exchange with the court:
"[THE COURT:] Have you had any discussions with [Juror No. 11], ... about the facts of this case at all?
"[JUROR NO. 5580322:] Just the proceedings and timing and stuff like that.
"[THE COURT:] Can you tell us what it was you discussed?
"[JUROR NO. 5580322:] Just how long we think it's going to take and what's involved and, you know, just how much more longer it's going to take.
"[THE COURT:] Okay. Did you discuss anything about the facts or the case or the attorneys or anything like that?
"[JUROR NO. 5580322:] Not that I can recall ... right now, sir.
"[THE COURT:] ... [H]ave you two texted each other or anything like that about the case?
"[JUROR NO. 5580322:] Not about the case, no, sir.
"[THE COURT:] You did-have you made-were you friends prior to the trial?
"[JUROR NO. 5580322:] No, sir.
"[THE COURT:] Just kind of became friends during or acquainted?
"[JUROR NO. 5580322:] Yes, sir.
"[THE COURT:] All right. Has he spoken to you, [Juror] Number 11, about anything about already making his mind up, or 'The facts are clear. We need to convict him on the big things,' or anything like that?
"[JUROR NO. 5580322:] No, sir. Not that I can think of.
"[THE COURT:] Okay. When you did speak-so you're talking about scheduling, how much longer it would take, that kind of thing. [¶] You didn't discuss any of-whether or not that you thought [appellant] was guilty or not guilty?
"[JUROR NO. 5580322:] No.
"[THE COURT:] Okay. Did you discuss at all how you thought the attorneys were doing, whether or not they were doing a good or a poor job?
"[JUROR NO. 5580322:] That may have come up, sir. I can't really recall. Some thought it was very well done earlier today. I think that's what we discussed.
"[THE COURT:] I'm sorry. What happened earlier today?
"[JUROR NO. 5580322:] About how everything was really well done today. [¶] ... [¶]
"[THE COURT:] ..., when you were speaking to [Juror] Number 11 about the proceedings this morning, you said they were well done or something like that?
"[JUROR NO. 5580322:] Yes, sir.
"[THE COURT:] Can you tell us about what you were talking about?
"[JUROR NO. 5580322:] Just walked out and we were talking to each other. Just basic, you know, 'How things going?' [¶] 'Good. Well done this morning,' and that was it.
"[THE COURT:] I see. [¶] You didn't sit there and say, 'Boy I like when the prosecutor did X, Y, or Z,' or specifically name the fact that she had done a good job?
"[JUROR NO. 5580322:] I do remember she had done a good job, but I can't remember in particular what was said as far as what pinpoint was done.
"[THE COURT:] Okay. And when you texted each other during the course of the trial, there was nothing to do with the case itself?
"[JUROR NO. 5580322:] No sir."
The court ultimately found misconduct from Juror No. 11 for failing to follow the court's instructions and admonitions that he was not to form or express any opinion nor discuss the case. As a result, the court removed Juror No. 11. As to Juror No. 5580322, over appellant's objection, the court found that just the fact that he had talked with Juror No. 11 did not mean they had discussed the case. The court noted that Juror No. 12 stated he saw Juror No 11 talking to Juror No. 5580322, but Juror No. 5580322 stated it wasn't about the case. Juror No. 12's issue was with Juror No. 11, and his observation didn't "share or shed any light on [Juror No. 5580322]."
Upon removing Juror No. 11, and after a random drawing of names from a cup, the court seated Juror No. 5580322 as the replacement.
B. Legal Standard
"If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, ... the court may order the juror to be discharged and draw the name of an alternate ._" (§ 1089.) "'"'The decision whether to investigate the possibility of juror bias, incompetence, or misconduct-like the ultimate decision to retain or discharge a juror-rests within the sound discretion of the trial court.'"'" (People v. Cowan (2010) 50 Cal.4th 401, 506.)
Thus, we review the trial court's determination to discharge a juror for abuse of discretion. (People v. Williams (2001) 25 Cal.4th 441, 448.) "'If there is any substantial evidence supporting the trial court's ruling, we will uphold it.'" (Ibid.)
"A failure to follow the court's instructions is misconduct and a basis for dismissal." (People v. Peterson (2020) 10 Cal.5th 409, 472 (Peterson).) "This extends to the obligation not to discuss a case prematurely." (Ibid.) "Courts are required to instruct jurors not to discuss any aspect of a case amongst themselves before beginning deliberations [citation]....." (Ibid., citing § 1122, fn. omitted.) Here, the court reminded the jurors not to form or express any opinion nor discuss the case amongst themselves prior to every break and at the end of every day. "'A juror's violation of these directions constitutes serious misconduct.'" (Peterson, supra, at p. 472.)
However, a "juror's inability to perform must appear as a 'demonstrable reality' and will not be presumed." (People v. Lucas (1995) 12 Cal.4th 415, 489.) "'"In determining whether juror misconduct occurred, '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.'"'" (Peterson, supra, 10 Cal.5th at p. 472.) So long as the record reveals reasons for the court's decision and those reasons are supported by substantial evidence, the court's action will be upheld on appeal.
C. Analysis
Appellant argues there was evidence that Juror No. 5580322 participated in misconduct and discussed the case with Juror No. 11. Appellant asserts Juror No. 11's behavior renders it "inconceivable" that he did not discuss the case with Juror No. 5580322. Further, appellant describes Juror No. 5580322's denial as "less then credible."
There is nothing on the record that demonstrates that Juror No. 5580322 engaged in misconduct. When questioned about his interactions with Juror No. 11, Juror No. 5580322 stated that he did not discuss the case, or text about the case. He stated that he only discussed scheduling or how much longer they thought the trial would take. The court found Juror No. 5580322 and his statements credible.
The closest Juror No. 5580322 may have come to misconduct is when he and Juror No. 11 were talking, and mentioned "'Well done this morning'" in regards to the court session. The court questioned Juror No. 5580322 about this comment and determined that it did not involve the discussion of a specific attorney, specific act or specific fact. As such, the court determined the comment was not a discussion of the case.
Finally, Juror No. 12's comment that Juror No. 11 was likely discussing the case with Juror No. 5580322 because they were texting is not evidence, it is mere speculation on Juror No. 12's part. Faced with no facts to the contrary, we find that the court's finding that Juror No. 5580322 was credible and did not engage in misconduct is supported by substantial evidence, and the court did not abuse its discretion when it did not remove Juror No. 5580322.
II. Substantial Evidence Supports the Finding That Appellant Used a Real Firearm
Appellant contends that the presence of BB's in his backpack is evidence that he did not use a real firearm during the commission of the crimes, but rather a BB gun or replica firearm. We find substantial evidence supports the jury's finding that appellant used a real firearm within the meaning of section 16520, subdivision (a), in the commission of each of his offenses.
A. Background
Three witnesses testified about the gun used during the offense: Doe and Officers Jesse Perez and Kyle McNabb. Doe's camera captured part of the assault. McNabb reviewed the footage, which included images of the gun.
Doe testified that the gun was black and had a sharp silver magazine. Doe was not otherwise questioned about the firearm's description or whether he believed that the firearm was real. However, when appellant told Doe "'This is the last chance,'" Doe said he felt it was his "last day."
Perez testified that he was familiar with firearms. He concluded that the gun appellant used was a firearm. He noted that it had both a front and rear sight, and a sight slide. Perez also noticed that the firearm had a reflective hard edge. He testified this was the result of the "bluing," or a protective coating applied to keep metal from corrosion, being worn away when a firearm is placed into and removed from a holster.
The record states Perez said, "slight slide," however this appears to be a typographical error due to the context of the statement.
However, McNabb testified that appellant's backpack had contained some BB's.This led McNabb to consider that appellant's firearm may have been a replica firearm.
An ammunition used in replica firearms.
The jury found true a firearm-related enhancement as to each count. As to count 1, the jury found that appellant personally used a firearm during the commission of the offense. (§ 667.61, subd. (e)(3).) As to counts 2, 3 and 5, that appellant personally used a firearm during the commission of each offense. (§ 12022.53, subd. (b).) As to count 4, that appellant personally used a firearm in the commission of a felony. (§ 12022.5, subd. (a).)
B. Legal Standard
On appeal, this court "'must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.) We "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." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
"'[F]irearm' means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion." (§ 16520, subd. (a).) In contrast, "'imitation firearm' means any BB device, toy gun, replica of a firearm, or other device that is so substantially similar in coloration and overall appearance to an existing firearm as to lead a reasonable person to perceive that the device is a firearm." (§ 16700, subd. (a)(1).)
"Thus, toy guns obviously do not qualify as a 'firearm,' nor do pellet guns or BB guns because, instead of explosion or other combustion, they use the force of air pressure, gas pressure, or spring action to expel a projectile." (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).)
"The fact that an object used by a robber was a 'firearm' can be established by direct or circumstantial evidence." (Monjaras, supra, 164 Cal.App.4th at p. 1435 .) However, "[c]ircumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm." (Id. at p. 1436.) Even a "defendant's own words and conduct in the course of an offense may support a rational fact finder's determination that he used a [firearm]." (People v. Rodriguez (1999) 20 Cal.4th 1, 13.) "'[W]ords and actions, in both verbally threatening and in displaying and aiming [a] gun at others, [can] fully support[] the jury's determination that the gun was sufficiently operable [and loaded].'" (Monjaras, supra, at p. 1437.)
C. Analysis
Appellant argues there was no evidence presented to the jury that the firearm used was real, and the presence of BB's in his backpack was conclusive evidence that it was a replica firearm. Appellant further argues that McNabb concluded that the firearm was a replica.
Initially, McNabb testified that "in [appellant's] hand is what appears to be the top of a firearm or replica firearm." He also testified due to finding some BB's in a black backpack in Doe's vehicle, he believed "the suspect possibly was in possession of a replica firearm."
However, when going into greater detail about his observations, Perez concluded that the weapon appellant was using was a real firearm. Specifically, Perez described how the weapon had a front and rear sight as found on a firearm, and that its "bluing" appeared to be worn out-wear that occurs when the firearm is frequently placed into and removed from a holster.
Monjaras is instructive. In Monjaras, the court found the defendant's actions supported a finding that the firearm he used was real. The court described how the defendant had a pistol tucked into his waistband that looked like a firearm, "and it in effect communicated that it was a firearm when [the] defendant menacingly displayed it and ordered the victim to give him her purse." (Monjaras, supra, 164 Cal.App.4th at p. 1437.) "While it is conceivable that the pistol was a toy, the jury was entitled to take [the] defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand." (Ibid.)
Appellant's own words and conduct provided circumstantial evidence that the firearm was real. Doe testified that appellant took a black gun with a silver magazine from his bag, and pointed it at him, demanding that Doe get back in the car. Inside, appellant pressed the firearm against Doe's ribcage and ordered him to recline his seat. While holding Doe at gunpoint, appellant discovered Doe's address and threatened to hurt his family. At gunpoint, he sexually assaulted Doe, and, when Doe could not comply with his demands, appellant told him it was his "'last chance.'" Doe believed he was about to be killed.
Just as in Monjaras, in this case, the jury was entitled to take appellant at his word and infer from his conduct that the firearm was real and that he was prepared to shoot Doe if he did not comply with appellant's demands. Combined with McNabb's testimony that the weapon was a firearm, we find there was substantial evidence to support the jury's findings that appellant personally used a firearm in the commission of each of the offenses.
III. The Trial Court Did Not Err By Imposing Sentence on Both the Carjacking and Robbery
Appellant argues that pursuant to section 654, either the carjacking or robbery conviction must be stayed, because both arise out of the same indivisible course of conduct. We disagree.
A. Background
At sentencing, the court found "Consecutive sentencing as to Counts 3, 5 and 6 [is] justified in that the crimes and their objectives were predominantly independent of each other and, one, the crimes were committed at different times or separate places rather than being committed so closely in time and place as to indicate a single period of abhorrent behavior. The case circumstances show [appellant] grabbed [Doe's] cell phone, drove away from the location, stopped again before taking [Doe's] wallet. [Appellant] ordered [Doe] to drive again and then took [Doe's] keys from his pants pocket before pushing [Doe] out of the car and fleeing in his vehicle."
The court appears to have mistaken the order of events, in that the keys were taken first, and then subsequently the other items were taken in between appellant forcing Doe to drive and sexually assaulting him.
B. Legal Standard
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "'Carjacking' is the felonious taking of a motor vehicle in the possession of another ... against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).)
"An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision...." (§ 654, subd. (a).)
We note that section 654 was also amended as of January 1, 2022. Prior to amendment, where an act or omission was punishable in different ways by different provisions, section 654 required the court to impose the provision that provided for the longest punishment. The amended section 654 grants the court discretion to impose punishment under either provision.
"Whether a defendant may be subject to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).)
"It is [the] defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] . [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, [the] defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, [the] defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation 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. Harrison (1989) 48 Cal.3d 321, 335.)
"We review under the substantial-evidence standard the court's factual finding, implicit or explicit, of whether there was a single criminal act or a course of conduct with a single criminal objective." (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.) We review the court's findings in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. (People v. Holly (1976) 62 Cal.App.3d 797, 803.)
C. Analysis
It is well established that "even where the subject of a robbery is a motor vehicle, the intent element of carjacking is less inclusive than the specific intent required for robbery. Accordingly, neither robbery nor carjacking is a lesser offense necessarily included within the other." (People v. Green (1996) 50 Cal.App.4th 1076, 1084 (Green).) Thus, appellant could be convicted of both offenses if the offenses were not committed during a single course of conduct with a single criminal objective.
The events, chronologically, are as follows: First, Doe was forced into his car at gunpoint on University Avenue. Appellant then tore Doe's camera off of the rearview mirror, took one of Doe's phones off of the dashboard, and took Doe's keys and car fob from Doe's pocket. Appellant ordered Doe to drive, and Doe drove and ultimately parked next to a cemetery. While Doe was driving, appellant threw Doe's second phone out of the window. After Doe parked, appellant told him to pull down his pants and sexually assaulted him. Appellant then ordered Doe to drive again. After driving a short distance, appellant told Doe to stop, and took Doe's wallet. Appellant then sexually assaulted Doe a second time. Appellant then beat Doe unconscious, threw him from the car, and drove away.
Appellant argues that the conduct giving rise to the carjacking and robbery convictions constituted a sequence of multiple acts comprising an indivisible course of conduct. Appellant relies on Corpening, supra, 2 Cal.5th 307, and People v. Baur (1969) 1 Cal.3d 368 (Baur), in support of his argument.
In Corpening, the defendant was an accomplice in a scheme to rob the victims of their rare coins. One of his confederates approached the victims as they were loading a van with their coins, pointed a gun at the driver, and ordered him to "'Get out of the car or I'll shoot you.'" (Corpening, supra, 2 Cal.5th at p. 309.) The confederate was able to wrestle control of the van and drove away with both the van and the coins. (Ibid.) The defendant was convicted, in relevant part, of carjacking and robbery. (Id. at p. 310.)
The Corpening court found section 654 prohibited punishment for both the carjacking and the robbery, because a single act simultaneously accomplished the actus reus requirement for both crimes. (Corpening, supra, 2 Cal.5th at p. 316.) Because a single physical act served as the basis for the conviction, the court did not reach step two of the section 654 analysis: whether the forceful taking involved multiple intents and objectives. (Corpening, supra, at p. 316.)
Appellant's reliance on Corpening is misplaced. This case clearly involves multiple acts during a continuous course of conduct. If appellant had initially removed Doe from the car at gunpoint and absconded with the car and all of Doe's personal belonging therein, the offenses could arguably have been based on a single act. But, appellant held Doe hostage at gunpoint, intermittently ordering Doe to drive, forcibly taking Doe's various belongings, and sexually assaulting Doe before ultimately beating him unconscious and driving away with the car. No single act accomplished the actus reus for each of these offenses.
In Baur, the defendant and an accomplice entered the victims' home disguised as maintenance men, and restrained the victims at gun and knifepoint. The defendant and his accomplice then robbed the house of valuables over the course of two hours, loaded the valuables into one of the victim's cars, and drove away. (Baur, supra, 1 Cal.3d at p. 372.) The defendant was ultimately convicted of, in relevant part, automobile theft and robbery. (Id. at p. 371.)
The Baur court found "[t]he proscription against double punishment in section 654 is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one." (Bauer, supra, 1 Cal.3d at p. 376.)
The appellate court concluded, "the evidence in the instant case does not show that the theft of the car was an afterthought but indicates to the contrary that the robbers, who while ransacking the house were carrying the stolen property to the garage, formed the intent to steal the car during the robbery if not before it." (Bauer, supra, 1 Cal.3d at p. 377.)
Appellant asserts that this case involves a succession of quick acts of theft during the course of a robbery, committed in a continuous transaction with a single intent and objective, to take Doe's property. The record, however, does not reflect such a clear conclusion. Appellant interspersed robbery with kidnapping and intermittent sexual assault, culminating in an act of extreme violence, before ultimately completing the carjacking. Appellant also refused Doe's offer to withdraw money from an ATM, further clouding appellant's assertion that his only intent and objective was to rob Doe. Baur is therefore distinguishable on its facts.
In Green, the defendant and an accomplice robbed the victim of her purse at gunpoint. The defendant then ordered the victim into her car and drove her to a secluded location, where he sexually assaulted her. He then took her bra and stockings and drove away with her car. (Green, supra, 50 Cal.App.4th at pp. 1080-1081.) The defendant was convicted in relevant part of kidnapping for sexual purposes, robbery, and carjacking. (Id. at p. 1080.)
As in this case, the defendant in Green argued that he could not be convicted of both the robbery and the carjacking because they were based on the same incident. (Green, supra, 50 Cal.App.4th at p. 1083.) The Green court disagreed. The court found the carjacking was separated in time and place from the initial robbery of the victim's purse and was interrupted by the sexual attack perpetrated by the defendant. Thus, there was sufficient evidence to support the trial court's finding that the taking of the purse and the taking of the vehicle were separate incidents. (Id. at p. 1085.)
This case is comparable to Green, and distinguishable from both Corpening and Bauer. Appellant robbed Doe both at a different time and in a different place from the carjacking. The robbery and the carjacking were also interrupted by appellant's repeated acts of sexually assaulting Doe. As such, we find substantial evidence supports the court's finding that the crimes of robbery and carjacking were committed at separate times, separate places, and with independent objectives.
IV. The Court Erred By Imposing the Upper Term on Counts 3 and 4
Appellant asserts the court erred in imposing the upper term in counts 3 and 4, because appellant was sentenced after the effective date of Senate Bill 567, under which the upper term may not be imposed unless aggravating circumstance have been found true by a jury or by the court beyond a reasonable doubt. We find appellant did not forfeit the issue by failing to object at sentencing and remand the matter for a new sentencing hearing.
A. Forfeiture
Generally, "a defendant cannot complain for the first time on appeal about the court's failure to state reasons for a sentencing choice." (People v. Scott (1994) 9 Cal.4th 331, 352.) However, "[t]he unauthorized sentence exception is 'a narrow exception' to the waiver doctrine that normally applies where the sentence 'could not lawfully be imposed under any circumstance in the particular case,' for example, 'where the court violates mandatory provisions governing the length of confinement.'" (People v. Brach (2002) 95 Cal.App.4th 571, 578.)
Senate Bill 567 deemed the middle term presumptive, a presumption that is mandatory and that can only be overcome by aggravating circumstances to justify departure from the presumptive middle term maximum and found true beyond a reasonable doubt by a jury or trial court. In this case, the court found true aggravating circumstances that were not brought before the jury. Although appellant did not object, the court could not rely on those aggravating circumstances to impose the upper term on counts 3 and 4. As such, we find the issue was not forfeited, and falls within the narrow exception to the waiver doctrine.
B. Analysis
In late 2021, Senate Bill 567 was signed into law, amending the determinate sentencing scheme in section 1170, subdivision (b). Prior to the bill's passage, section 1170, subdivision (b), permitted sentencing courts to impose determinate sentences comprised of either the lower, middle or upper terms. Sentencing courts had broad discretion to impose any of the three terms and could make factual findings regarding aggravating or mitigating circumstances as described in California Rules of Court, rules 4.421 and 4.423.
On January 1, 2022, under the newly amended law, the middle term was deemed the presumptive term of imprisonment. (§ 1170, subd. (b)(1).) Following the enactment of Senate Bill 567, sentencing courts may only impose the upper-term sentence where there are circumstances in aggravation that justify imposition of a term of imprisonment exceeding the middle term, and the facts underlying all of the aggravating circumstances have been stipulated to by the defendant or are found true beyond a reasonable doubt by a jury or a trial court. (§ 1170, subd. (b)(1), (2).)
We recognize the difficult facts presented in this case. However, Senate Bill 567 did not just amend existing law, but significantly altered the framework of determinate sentencing pursuant to section 1170, subdivision (b). Likewise, having found the issue not forfeited, the Attorney General concedes that remand is appropriate. We will therefore remand this matter back to the lower court for a resentencing hearing consistent with the amendments made to section 1170 by Senate Bill 567.
V. The Abstract of Judgement Should Be Corrected to Reflect the Sentence Imposed on Count 4
Both appellant and the Attorney General agree the abstract of judgment fails to accurately reflect the sentence and enhancement imposed by the court on count 4, making criminal threats, a violation of section 422.
The jury found appellant guilty of count 4. The jury further found true that appellant personally used a firearm pursuant to section 12022.53, subdivision (b). At sentencing, the court noted that section 422 is not one of the enumerated crimes listed in section 12022.53, and the enhancement, therefore, should have been a violation of section 12022.5. The court sentenced appellant to the upper term of three years on count 4, and imposed the aggravated 10-year term for the section 12022.5 enhancement. The court then stayed the sentence and enhancement on count 4 pursuant to section 654.
The abstract of judgment, however, incorrectly reflects that "0 Yrs.," "0 Mos." were imposed on count 4 and no time was imposed for the firearm enhancement. Although this issue is technically rendered moot based upon our conclusion that resentencing is required, we raise this issue to prevent repetition of the error.
DISPOSITION
The sentence is vacated and the matter remanded for a new sentencing hearing. The court is directed to amend the abstract of judgment to reflect the imposition and stay of sentence on count 4 and the related enhancement. The judgment is otherwise affirmed.
WE CONCUR: LEVY, Acting P. J. DeSANTOS, J.