PEOPLE v. CORPENING

Appellant’s Opening Brief on the Merits

Cal.February 11, 2016

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF 5228258 CALIFORNIA, SUPREME COURT Plaintiff and Respondent, Court of Appeal i iL. io iD) No. D064986 VS. Superior Court Case No. FEB @ 6 2016 $CS258343 TORYJ. CORPENING, Frank &wexsuire Clerk Defendant and Appellant. —~Beouly APPEAL FROM THE SUPERIOR COURT OF SAN DIEGO Honorable Francis M. Devaney,Judge; Honorable Kathleen M. Lewis, Judge APPELLANT’S OPENING BRIEF Cynthia M. Jones SBN 226958 Avatar Legal, PC 19363 Willamette Dr. #194 West Linn, OR 97068 (858) 793-9800 Attorney for Defendant and Appellant By appointment of the Supreme Court under the Appellate Defenders,Inc. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, S228258 Plaintiff and Respondent, Court of Appeal No. D064986 vs. Superior Court Case No. $CS258343 TORYJ. CORPENING, Defendant and Appellant. APPEAL FROM THE SUPERIOR COURT OF SAN DIEGO Honorable Francis M. Devaney,Judge; Honorable Kathleen M. Lewis, Judge APPELLANT'S OPENING BRIEF Cynthia M. Jones SBN 226958 Avatar Legal, PC 19363 Willamette Dr. #194 West Linn, OR 97068 (858) 793-9800 Attorney for Defendant and Appellant By appointment of the Supreme Court under the Appellate Defenders, Inc. a |e | be me Be! Be TABLE OF CONTENTS ISSUES PRESENTED1.0...eee eceeceeeseeeeeeee coeeseseseseseseeasseeseerssesesstasseeesatscseees 1 STATEMENT OF THE CASEouncccccecssseesseseseeseteeseesnscenseeesseaseeesesaeeee2 STATEMENTOF FACTS0ceceeseseecseseeseneceeesneeesensseseeeesesseeesateessesnees4 APPELLATE HISTORY...ccccessesesssecssesseseeneesneesseasseesesessesseessesseeees6 STANDARD OF REVIEW (ISSUEIID)...eeeeeeeeceseceeeeeeeeeectseeeenesaceeees9 A. The Factual Determinations in This Case Are Subject to Independent Review, Because the Sole Source of Evidence Wasa Probation Report Equally Accessible to the Trial and Reviewing COurt«0.0...9 B. The Legal Determinations Which Form the Coreof this Appellate Challenge Are Subject to De Novo REVICW.....cceceecsseseesesseneeseseeseseeeecresesesesscatessenecsersessesseseeneeeeeaseass 11 C. The Court of Appeal Erred In Applying Deferential Review to the Undisputed Facts and Application of LaW tO Facts .....ccceccesceseseesesssseeecsseeeseseeseeseeeessteseseesseseeeesseeeeses 14 ARGUMENToeeesceeeseeseceeecneseeeseree ecesesseeseaunsaeesssscsseessasseseeasegerseenes 15 I. WHERE APPELLANT TAKES A VAN AND ITS CONTENTS, THE TAKING IS A SINGLE ACT FOR PURPOSESOF SECTION 6540... cccescsessessesesessseseessesseesaeeneeete 15 A. Introduction... ...cccccceeeceesecesesssccsscessesccesessessessscnsssasscansasecess 15 B. Section 654 Prohibits Double Punishmentfor a Single ACEeccccsesessseseceesesseeeceeseeseseseeeecsesesssesseaeenseseessesseeessesseseenesassess 17 C. Both Carjacking and Robbery Involve a Single Criminal Act of Taking Property by Force.........ceeeeeees 19 A R G E N T D. The Van Cannot Be Parsed From the Items Taken As Part of the Robbery In Order to Create Two Separate ACIS wo ceccccsssseescssssscscssssacsceseecescseecuseesescssssrssareceecesseseseeesesereseeenteaes27 E. Even had Molestina Formed the Intent to Take the Van During the Course of the Robbery, the Van Was Still Part of the Property Taken in the Robbery and thus Both Crimes Involved a Single Act...eee32 Il. THE COURT OF APPEAL AND TRIAL COURT ERRED IN HOLDING THE ACTS WERE NOT COMMITTED WITH A SINGLE INTENT AND OBJECTIVE...... ce eeeeeesseeees36 A. Introductiona...cece eeeeecescscsecceccsceccececcsseccessvessrseeseseesssssesees36 B. If One Crime Is Committed to Accomplish Another Crime, It Is Necessarily Facilitative and a Stay is Required as a Matter of LaW.......cccccescsessseeeeeteetenretsenees38 TH. CONCLUSION 2...ececeneeseeeeeenenseeeceescesesnesseseesseaseecasesseeeees46 CERTIFICATION OF WORD COUNT...cccececseesseeneeeeeeeeeneeseneseees47 il TABLE OF AUTHORITIES PAGE(S) CASES In re Chapman(1954) 43 Cal.2d 385 .....eecccccssssssssessssesseseesesessesssssesscsesseees41 Neal v. California (1960) 55 Cal.2d 11... cccsssecessssssessseeseseees 7, 38, 40, 44 People v. Beamon (1973) 8 Cal.3d 625 .....eccceesseeecseseenesereseeeeessesestereneees40 People v. Benson (1998) 18 Cal4th 24 oo. ccceeceessecetseseecceeeesssecseeseseeesens25 People v. Brito (1991) 332 Cal.App.3d 316.0... ceseesssseseseeseeeseeeeeesees 28, 34 People v. Burgos (2004) 117 Cal.App.4th 1209 oo.eeeecesescesteteeees24 People v. Burns (2009) 172 Cal.App.4th 1251 oo.cccssesscseseseeseeeaeeeees23 People v. Carter (2005) 36 Cal.4th 1215 oo... i ccesseseccessecseeesreseeneneeeens 10 People v. Cromer (2001) 24 Cal.4th 889.00... eescseseeecseeseseeseeeeneees 10, 12 People v. Davis (2009) 46 Cal4th 539 occeeeeeceseceeereeesnensesseneeeneters9 People v. Dominguez (1995) 38 Cal.App.4th 410.0... 7, 30, 31, 32, 35 People v. Dowdell (2014) 227 Cal.App.4th 1388 0... 7, 13, 39, 40 People v. Evers (1992) 10 Cal.App.4th 588... ceeeeessessereeseeeesescntenes 10 People v. Gomez (2008) 43 Cal4th 249oo.eeseseeereneeseeees 21, 22, 42 People v. Harrison (1989) 48 Cal.3d 321 o...eccccssssssescssssesseeseectssseecsessens 12 People v. Herrera (1999) 70 Cal.App.4th 1456...ceeeeeeensesseseens18 People v. Hodges (2013) 213 Cal.App.4th 531...ccccseeseseeereeseenesess22 People v. Hutchins (2001) 90 Cal.App.4th 1308.0...cesses10 People v. Logan (1953) 41 Cal.2d 279 .....cccccsscssssseseseesssssssseseessssseessans40 People v. Lopez (2003) 31 Cal.4th 1051 0...eecssseesceeessesseseseesenssenerens22 People v. Jones (2012) 54 Cal.4th 350 oo...cece 4, 8, 18, 19, 27, 29 People v. Martin (2005) 133 Cal.App.4th 776 ..ccccccscseesessesenersenenseecees 13 People v. Marquez (2000) 78 Cal-App.4th1302occcesses28 People v. Maury (2003) 30 Cal.4th 342 oo... cccscesssesssssssesessssessessaseneens 11 iil People v. Mesa (2012) 54 Cal.4th 191 oo. ecssscscessesesseeeeressesseeeeeees 18, 19 People v. Nguyen (1988) 204 Cal.App.3d 181...eee 38, 41, 42 People v. Oretega (1998) 19 Cal.4th 686.000...ee 28, 29, 30, 31, 32, 35 People v. Prunty (2015) 62 Cal.4th 59 ooeeesecesseseseesesscseaeseeneeees 14 People v. Rodriguez (2015) 235 Cal.App.4th 1000................ 39, 42, 43, 44 People v. Romero (1996) 13 Cal4th 497 oo... esssssessssceseeseseeesceesesesees25 People v. Scott (2009) 179 Cal.App.4th 920.0...ccs24 People v. Smith (2005) 37 Cal.4th 733 ......csssssssessssesseesesesseeeseceesesenessenes 10 People v. Tarris (2009) 180 Cal.App.4th 612...ccc14 People v. Valli (2010) 187 Cal.App.4th 786 ......cccecssesesessneeeeeeeeeeeees 14 People v. Vargas (2014) 59 Cal.4th 635........cccsssessseesssseeseeereens 23, 24, 25 People v. Vasila (1995) 38 Cal.App.4th 865 .......ccccsessseeesenseseteseneseeeesens 11 People v. Waidla (2000) 22 Cal.4th 690 0.0... cccsscssseseseseeseeeeseeneneneaesesess 12 Wilkoff v. Superior Court (1985) 38 Cal.3d 345... cccssseeeeseeseseeeeneees20 STATUTES Penal Code section 15...ceceeessccsseesesecessresseseesseeseeaeeseeseeneseeeeeesaseesessees 19 Penal Code section 20 0... eeeeecscesecseesceseceeseseseceesseeserseeseeneeneseaesenssseeversees 19 Pernal Code section 211 v.ccccceeccccccsccssccccsecececesessssssssseccossssssscsecessscecvenses 3,21 Penal Code Section 215... ccccccssssssccccecccececeessseesaseesesessssneaeeeaeeeees 3, 6, 21 Pernal Code Section 245 .....cesccessssscceseeessceeseceeeeceeeeaceaeeeaeeseeeeeesaeeassseeeeeees3 Pernal Code Section 2666 ........ececeseescesscesceceeseseseseseeessseseseeceaesseseesseneseeeaes20 Penal Code Section 288 .0....ccccssssseseesscceeeeeseeessecsecseseesceseeseesecacseeseetees20 Peral Code section 496 ......ecsssssssecsessecssceeseenscseescsesseeseeeseaeeasseasseatees3 Penal Code Section 654.0... ccccscsesecscesserescssssseresesesesseecsessteaeeeaseees passim Penal Code section 29800occcccssscessseecesceeseeeeeetseceecenssaeeeaeecseeeseesereeeees20 OTHER AUTHORITY Black’s Law Dict. (10th ed. 2014 [Westlaw]) .........ccccssescsesesesseeteeeesees20 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, S228258 Plaintiff and Respondent, Court of Appeal No. D064986 VS. Superior Court Case No. SCS258343 TORY J. CORPENING, Defendant and Appellant. APPEAL FROM THE SUPERIOR COURT OF SAN DIEGO Honorable Francis M. Devaney, Judge; Honorable Kathleen M.Lewis, Judge! APPELLANT’S OPENING BRIEF ISSUES PRESENTED I. Where an assailant uses force to take a van and the valuable coins held in the van’strunk, is the use of force to acquire possession of the van and its content a single act or a course of conduct for 1 Judge Lewis, Ret., presided over appellant’s change of plea, while Judge Devaney presided over appellant’s subsequent motion to withdrawthe plea and the sentencing hearing. purposes of Penal Code section 654 with respect to separate convictions of carjacking and robbery? IL. If it is a course of conduct, where the assailant takes the van in order to asport the coins contained in its trunk, is using the van to “escape” with the coins incidental to the primary objective of taking the coins themselves? Ill. Where the facts of the incident are undisputed, is the application of Penal Code section 654 principals to those facts a question of law subject to de novo review? (See Standard of Review (Issue II), below.) STATEMENTOF THE CASE Appellant pleaded guilty to all charged counts without a plea agreement or any indicated sentencebythetrial court. (RT 2; CT 11- 14.)? The counts included Count 1, carjacking (Penal Code? § 215, subd.(a)), Count 2, robbery (§ 211), Count 3, assault with a deadly weapon (§ 245, subd. (a)(1)) and Count 4, possession of stolen property (§ 496, subd.(a)).4 Thetrial court sentenced petitioner to the midterm of five years on Count 1 (carjacking) and a consecutive sentence of one year on Count 2 (robbery). (4 RT 839; CT 163, 218; Opn.2.) Petitioner appealed his sentence, arguing Count 2 (robbery) should have been stayed pursuant to section 654 based on the conviction in Count1 (carjacking). The Court of Appealaffirmed that portion of the sentence in an unpublished opinion filed on October 21, 2014. (10/14 Opn.) On December3, 2014, petitionerfiled a Petition * References to the record are as follows: RT means Reporter’s Transcript; CT means Clerk’s Transcript; AAOB means Appellant's Amended Opening Brief; RB means Respondent's Brief; ARB means Appellant’s Reply Brief; 10/14 Opn. meansthe original unpublished opinion dated October 21, 2014; RP means Appellant’s Petition for Rehearing; Opn. meansthe post-transfer unpublished opinion dated June 24, 2015. 3 All further statutory references are to the Penal Code unless otherwise specified. 4 Appellant was also charged with witness intimidation for an incident occurring while in custodythatis not relevantto this appeal. for Review (CSC No. 5222900), asking the matter be transferred to the Court of Appeal to address appellant’s argument that a single criminal act formed the basis of both the robbery and carjacking and to apply the holding in People v. Jones (2012) 54 Cal.4th 350 (Jones). This court ordered a transfer on February 11, 2015. Appellant and respondent submitted additional briefing and presented oral argument. On June 24, 2015, a new opinion issued, again affirming the sentence. This court granted appellant’s petition for review on September 30, 2015. STATEMENTOF FACTS This case involved a classic heist-style robbery. There was evidence that appellant brought several co-defendants together to steal valuable coins from a rare-coin dealer, Walter Schmidt, Sr.5 (Opn. 6.) Appellant and co-defendant Arturo Guerra were aware of Schmidt Sr.’s coins, because they had sold goodsat a local swap meet where Schmidt Sr. would operate a stall. (Opn. 6; CT 52.) Appellant > Petitioner denied being the leader and claimed co-defendant Danny Molestina called the shots. (CT 54.) played a support role during the robbery itself (surveillance and making the order to begin the carjacking), while co-defendant Danny Molestina committed the actual taking. (Opn.3, 6-7; CT 51-52, 54.) On July 22, 2012, at approximately 5:50 a.m., Schmidt Sr. and his son wereat their residence loading Schmidt Sr.’s van with the coins. (Opn. 3; CT 50.) Schmidt Sr.’s son had gone to lock the residence while Schmidt Sr. sat in the driver’s seat with the van running. (Opn. 3; CT 50.) Molestina approached SchmidtSr., pointed a gun at him, and demandedthat SchmidtSr. get out of the car. (Opn. 3; CT 51.) Schmidt Sr. exited the van, but as Molestina attempted to enter the van, Schmidt Sr. tried to wrestle the gun from Molestina’s hand. (Opn.3-4; CT 51.) Molestina pointed the gun in SchmidtSr.’s face and Schmidt Sr. backed off. (Opn. 4; CT 51.) Molestina entered the van and Schmidt Sr. lunged for the gun again. (Opn. 4; CT 51.) This time, Molestina placed the van in gear and quickly reversed. (Opn. 4; CT 51.) Schmidt Sr. grabbed onto the steering wheel and was dragged approximately 18 feet down the driveway before losing his grip and falling to the pavement. (Opn. 4; CT 51.) Molestina stopped the van about 50 yards from the residence to pick up another co-defendant. (Opn. 4; CT 51.) Anothercar, driven by co-defendant Jorge Aguila, followed the van. (Opn. 4; CT 51.) The van contained $70,000 in coins. (CT 51.) They drove to another area where Molestina, Guerra, appellant and Aguila began unloading the coins from the van into the car. (Opn. 4; CT 51.) Residents observed the defendants unloading boxes from the van into Aguila’s car and reported the situation to police. (CT 51.) Officers intervened, and Aguila and Molestina were arrested. (Opn. 4.; CT 52) Appellant and Guerra escaped with “a box full of rare coins,” some of which appellant managedtosell before being arrested later. (Opn. 7-8; CT 52-53, 54.) APPELLATE HISTORY Appellant argued belowthat the trial court erred in not staying his robbery sentence. (§§ 215, subd.(c), 654.)° Appellant asserted that 6 § 215 allows convictions underboth § 211 and § 215 for a carjacking but prohibits double punishmentfor a carjacking and robbery “for the same act which constitutes a violation of both this section and section 211.” Section 215 is a provision makingclear the Legislature’s intent that carjacking is not a special statute supplanting the use of a more general statute punishing robbery and that section 654 appliestoit, there wasa single criminalact by Molestina,a forceful taking of a van and its contents that could be punished only once. (AAOB 7.) Respondent contended that separate punishment was warranted because there was substantial evidence to support a finding that Molestina harbored separate objectives in taking the van and taking the coins, citing Neal v. California (1960) 55 Cal.2d 11 (Neal). (RB 5.) In reply, petitioner pointed out that the Neal objective and intent test only applies where there are multiple acts creating a single indivisible transaction, but wherethereis a single act, intents and objectives are irrelevant.” (ARB 2-9.) Because there wasonly one criminalact -- a taking by force -- which accomplished both the taking of the van and allowing double conviction but not punishment. (See People v. Dominguez (1995) 38 Cal.App.4th 410, 417-418.) Thus, the court applies the same analysis under both statutes in determining whether multiple punishmentis permitted. (Ibid.) ” Petitioner also pointed out in oral argument that the “separate” objectives relied on by respondent were not separate for purposesof section 654 because taking the van was the means to accomplish the ultimate goal of taking the coins, citing People v. Dowdell (2014) 227 Cal.App.4th 1388, 1415-1416 (Dowdell) which discussesthe distinction between incidental versus primary goals. This argumentis addressed in Issue II, below. the taking of the coins, section 654 required that the robbery conviction be stayed. (ARB 2-9.) The Court of Appealinitially applied the Neal test and held that there were distinct objectives without considering whether there were multiple acts. (10/21/14 Opn.) This court transferred the matter to consider whether there wasa single act per Jones. After transfer, the Court of Appeal concluded there was nota single act because: Twice the victim tried to disarm the robber, was forced away and ultimately dragged some distance when he tried to hold onto the steering wheel. It took several discrete physical acts to complete these crimes. (Opn.12.) The Court of Appeal referred to this as a “course of conduct” and held it distinguished petitioner’s case from Jones, which “dealt with the single act of possessing a firearm, which violated several penal code sections.” (Opn. 11.) The court again held that there was substantial evidence of separate intents to take the coins and escape from the crime scene. (Opn.10.) STANDARDOF REVIEW (ISSUEIID) A trial court’s decision to stay or not stay a sentence under section 654 involves a mixed question of law and fact. The court must decide whether the crimes committed arose from a single act or multiple acts and, if multiple, whether they were committed with a single intent and objective. The first part of this process involves a factual determination regarding what acts were committed and with what intent. The secondis a legal determination of applying the law to those facts. In this particular case, both steps of the process are subject to de novo review. A. The Factual Determinations in This Case Are Subject to Independent Review, Because the Sole Source of Evidence Wasa Probation Report Equally Accessible to the Trial and Reviewing Court. A section 654 analysis begins with a factual determination regarding what acts were committed and why. Some of this determination may require the court to draw inferences from the evidence. Determining the actor’s intent, for example, is a fact typically inferred from the evidence as a whole. (See, e.g., People v. Davis (2009) 46 Cal.4th 539, 606 [“specific intent may be and usually must be, inferred from circumstantial evidence”]; People v. Smith (2005) 37 Cal.4th 733, 744 [same regarding intent to kill]; People v. Carter (2005) 36 Cal.4th 1215, 1260-1261 [same regarding felonious intent for burglary].) Often, this inquiry is best performed by the finder of fact who is in a position to make credibility determinations. (See People v. Cromer (2001) 24 Cal.4th 889, 895 (Cromer).) When the evidence requires judging the credibility of testimony the trial court is in the best position to make that judgmentcall. (Ibid.) In these cases, factual determinations are upheld so long as they are supported by substantial evidence. (See People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; People v. Evers (1992) 10 Cal.App.4th 588, 604.) However, factual determinationsdo not alwayscall upon trial court's first-person vantage. Sometimes, the evidence that must be weighed comes in a form that is equally accessible to the reviewing court. For instance, a tape-recorded interview can be listened to and judged by the reviewing court as easily as the trial court. Thetrial court is no better position to decide what inferences may be drawn 10 from the recording. (See, e.g., People v. Vasila (1995) 38 Cal.App.4th 865, 873.) In these cases, the facts “are undisputed, and the appellate court may independently review the trial court’s determination.” (Ibid.; see also People v. Maury (2003) 30 Cal.4th 342, 404.) Here, the only evidence describing the carjacking and robbery camein the form of a probation report. (Opn.3 [“the only statement of the facts before the trial court is contained in the report of the probation officer”].) The trial court did not hear any testimonyonthis point and so no credibility determination was involved. (5 RT 801, 803.) As such, the facts are undisputed and may be independently reviewed. Thetrial court’s inferences drawn from these undisputed facts are not subject to deference. B. The Legal Determinations Which Form the Core of this Appellate Challenge Are Subject to De Novo Review. Aspart of the section 654 analysis, the court is called upon to decide whethera stay is legally mandated by section 654. This is an application of law to fact and is a legal determination subject to de novoreview. “Although the question of whether defendant harbored a ‘single intent’ within the meaning of section 654 is generally a 11 factual one, the applicability of the statute to conceded facts is a question of law.” (People v. Harrison (1989) 48 Cal.3d 321, 335; see also Cromer, supra, 24 Cal.4th at pp. 893-894 [de novo review appropriate “wherehistorical facts are admitted or established, the rule of law is undisputed, and theissue is . .. whether the rule of law as applied to the established facts is or is not violated”]; People v. Waidla (2000) 22 Cal.4th 690, 730 [de novo review of denial of motion to suppress “insofaras the trial court’s underlying decision entails a measurement of the facts against the law”].) Both of the issues raised in this challenge fall into the second category. Thefacts, all of which came from the probation report, are undisputed and established. The primary question is whether those facts, and the reasonable inferences to be drawn therefrom, require a stay under section 654. Appellant argues that the “multiple acts” implicitly found bythetrial court, according to the Court of Appeal, are not multiple acts as defined by section 654 jurisprudence. Thisis a question of law subject to de novo review. Appellant also argues that the “separate intent and objective” underlying the carjacking 12 cited by the Court of Appealis, as a matter of law, incidental to and facilitative of the robbery and, therefore, not legally sufficient to warrant separate punishment under section 654. Again, this is a question of law subject to de novo review. The Court of Appeal treated the entirety of the trial court’s decision as a question of fact, and therefore erroneously applied deferential review. The opinion states, “The question of whether there were multiple acts or multiple objectives is one of fact,” citing People v. Martin (2005) 133 Cal.App.4th 776, 781. (Opn. 10.) The Martin court is accurately quoted in the opinion. But to the extent the Court of Appeal interpreted Martin to mean the reviewing court owes deference to the application of section 654 to established facts, it is incorrect. A more accurate statement is given in Dowdell, supra, 227 Cal.App.4th at p. 1414 (emphasis added), “Whether the facts and circumstancesreveala single intent and objective within the meaning of Penal Codesection 654 is generally a factual matter; the dimension 13 and meaning of section 654 is a legal question.”® (See also Peoplev. Valli (2010) 187 Cal.App.4th 786, 794; People v. Tarris (2009) 180 Cal.App.4th 612, 628.) Wherethe core question at the heart of an appellate challenge involves a question of statutory interpretation, that interpretation mustfirst be resolved first, applying de novo review,before the law can be applied to the evidencein the record. (See, e.g., People v. Prunty (2015) 62 Cal.4th 59, 71 [challenge encompassing the sufficiency of evidence to sustain a sentencing enhancementfirst required de novo review of a core question of statutory interpretation].) A lowercourt's decision on the appropriate application of section 654 to the facts is therefore not subject to deferential review. C. The Court of Appeal Erred In Applying Deferential Review to the Undisputed Facts and Application of Law to Facts. In summary, a section 654 decision involves both a factual determination and a legal determination. In many cases, the nature of the evidence requires weighing by the court with first-person 8 In this case, as noted ante, the factual determinations in this case were not subject to deference, because the evidence camein the form of a probation report. 14 vantage. Whenthisis the case, the factual determination by the court with first-person vantage is subject to deferential review. But where the evidence comessolely in the form of a written probation report, the reviewing court is equally equipped to draw inferences therefrom and no deference is required. Any legal determination about the meaning and scopeof section 654 is alwayssubject to de novo review. In this case, the Court of Appeal improperly applied a deferential standard of review both to inferences drawn from undisputed facts and to the application of law to those facts. This court should apply de novoreviewto the issuesraise. ARGUMENT I. WHERE APPELLANT TAKES A VAN AND ITS CONTENTS, THE TAKING IS A SINGLE ACT FOR PURPOSESOF SECTION654. A. Introduction. The undisputed facts regarding the robbery andcarjacking are as follows: Schmidt Sr. had loaded the coins into his van and was in the driver’s seat with the ignition on when Molestina approached him, pointed a gunin his face, and ordered him outof the car. (Opn. 15 3.) Schmidt Sr. got out of the driver’s seat, relinquishing the van to Molestina. (Opn. 3.) As Molestina attempted to enter the van, Schmidt Sr. attempted to wrestle the gun from his hand. (Opn.3-4.) Hefailed to disarm Molestina who pointed the gunin his face again, at which point he backed off. (Opn. 4.) Molestina attempted to get into the van a secondtime, and SchmidtSr. again lunged for the gun, but Molestina placed the van into gear and quickly reversed out of the driveway. (Opn. 4.) Schmidt Sr. grabbed the steering wheel and wasdragged approximately 18 feet down the drivewaybefore losing his grip and falling to the pavement. (Opn.4.) The Court of Appeal held that there was substantial evidence of multiple physical acts, because, “Twice the victim tried to disarm the robber, was forced away and ultimately dragged some distance whenhetried to hold onto the steering wheel. It took several discrete physical acts to complete these crimes.” (Opn. 12.) This waserror, because the court improperly parsed Molestina’s conduct into separate “acts” to uphold the trial court’s decision. The criminal act at issue wasthat of taking the van and coins by use of force. All of 16 Molestina’s conduct waspart of this single forceful taking. As such, there was only oneact of taking by force and imposing a consecutive sentence for the robbery was unauthorized. _ B. Section 654 Prohibits Double Punishmentfor a Single Act. Section 654 states, in relevant part, “An act or omission thatis punishable in different ways by different provisions of law shall be punished underthe 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.” (§ 654.) The statute was originally enacted in 1872 and has changed remarkablylittle during its nearly 150 year history. Over time, it has been judicially interpreted to prevent double punishment for a criminal course of conduct that violates two statues, when that course of conduct involves closely connected crimes committed with a single criminal objective. However, this court has recently emphasized, in accord with the plain languageof the statute, a single act may not be punished 17 morethan once regardless of the underlying intent. (Jones, supra, 54 Cal.4th at p. 358; People v. Mesa (2012) 54 Cal.4th 191, 198-199 (Mesa).) “Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law.” (Jones, supra, 54 Cal.4th at p. 358.) In Mesa, this court explained that wherethere is a single act, double punishment is prohibited, notwithstanding multiple underlying objectives and intents. “Our case law has found multiple criminal objectives to be a predicate for multiple punishment only in circumstancesthat involve, or arguably involve, multipleacts. The rule does not apply where, as here and as in Herrera," the multiple convictions at issue were indisputably based upona single act. The rule was not intended to permit multiple punishment in such ° In many cases (perhaps even most cases), the distinction between what constitutes a course of conduct versus a single act will be irrelevant, as there will also be a single intent or objective necessitating a stay under either theory. This appears to have muddied the case law somewhat, as courts will often refer to the existence of a single intent and objective when upholding or imposing a stay in a case that appears to involvea single act. Appellant notes that his case falls into this category, because, as discussedin IssueII, Molestina acted with a single intent and objective requiring a stay evenif his actions are characterized as a course of conduct. 10 People v. Herrera (1999) 70 Cal.App.4th 1456 18 cases because it would violate the plain language of section 654.” (Mesa, supra, 54 Cal.4th at p. 199.) C. Both Carjacking and Robbery Involve a Single Criminal Act of Taking Property by Force. The appellate court interpreted the “single act” situation discussed in Jones and Mesa too narrowly. The court treated “act” as synonymous with any physical conduct occurring during the crime (opn. 11-12) rather than as the criminal act prohibited by the statute. Underthe Court of Appeal’s interpretation, any offense that involves multiple physical components does not involvea single act. Thus, per this logic, a single act stay under Jones or Mesa could only occur where two particular criminal offenses can be accomplished by a single physical action. This is an incorrect interpretation of what is meant by a single act for purposes of section 654. “A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed” an enumerated punishment. (§ 15, emphasis added.) All crimes also require a union of the proscribed act with a criminal intent. (See § 20.) The proscribed act is also referred to as the “actus 19 reus” or “gravamen”of the offense. (See, e.g., Wilkoffv. Superior Court (1985) 38 Cal.3d 345, 349.) Of course, many offenses consist of more than one element involving physical conduct in some form. However, that does not meanthe offenses include multiple criminal act. The “actus reus” of a crime is “the wrongful deed that comprises the physical components of a crime and that generally must be coupled with mensreato establish criminal liability.” (Black’s Law Dict. (10th ed. 2014 [Westlaw]), emphasis added.) It is “the voluntary act or omission, the attendant circumstances, and the social harm caused by criminalact, all of which make up the physical components of a crime.” (Ibid., emphasis added.) The physical components do not necessarily need to be criminal in and of themselves. Sometimes, they becomeso because they are coupled with other conditions," or by virtue of being tied to a specific intent,!* or other physical components.!3 While a criminal 11 Possessing a gun becomescriminal when donebya felon. (§ 29800, subd.(a)(1).) 22 Touching a child’s leg becomes criminal when coupled with lewd intent. (§ 288, subd.(a).) 13 For example, intercourse becomes criminal when coupled with payment. (§ 266e.) 20 act may only require a single physical component, manydoconsist of multiple physical components. Thus, when section 654 refers to “an act or omission that is punishable in different ways by different provisions of law,” the languageis referring to the “criminal act” — consisting of the physical components prohibited by statute to which punishmentattaches-- notjust physical conduct generally. It means the actus reus committed by the defendant, which may be composed of multiple physical components. When the defendant's actions form the actus reus of two separate offenses, there is a single act regardless how many physical components are involvedin that act. Both robbery and carjacking fall into the category of offenses involving a single criminal act made up of multiple physical components. The statutes are aimed at the criminal act of taking property when accomplished bythe use of force or fear. (§§ 211, 215, subd. (a).) A “taking” “has twoaspects: (1) achieving possession of the property, knownas caption, and (2) carrying the property away, or asportation.” (People v. Gomez (2008) 43 Cal.4th 249, 255; see also 21 People v. Hodges (2013) 213 Cal.App.4th 531, 540.) While a robbery may continue until the defendantreachesa place of temporarysafety, asportation is completed upon the slightest movement. (People v. Gomez, supra, 43 Cal.4th at p. 255.) The “taking” language used in section 215 for carjacking has the same meaning. (People v. Lopez (2003) 31 Cal.4th 1051, 1060-1061.) Thus, it also requires caption and asportation of the vehicle. (Id. at pp. 1060-1063.) Even after a defendant obtains possession of the vehicle, it must be moved somedistance to satisfy the asportation requirement before the carjacking can be considered completed rather than attempted. (Id. at p. 1063.) Both robbery and carjacking also require the taking be accomplished by the use of force or fear. (People v. Gomez, supra, 43 Cal.4th at p. 255.) “All of the elements mustbe satisfied before the crime is completed.” (Id. at p. 254.) But these elements do not constitute multiple criminal acts within each statute. Rather, the criminal acts of robbery and of carjacking involve three physical components: use of force, achieving possession, and carrying away. 22 Notably, the physical components do not necessarily have to be carried out by separate actions. For example, the force need not be a separate action from the takingitself, so long as it is a quantum more than what is necessary to accomplish mere seizing of the property. (People v. Burns (2009) 172 Cal.App.4th 1251, 1259.) If a thief grabs the property and mustuse force to overcomeresistance, the force element is satisfied based on the same physicalaction that constitutes a taking of the property. (Ibid.) Similarly, caption and asportation could easily be satisfied by a single movement. Although a carjacking or robbery could in some cases be described as involving multiple actions — an act of applying force in some manner coupled with a separate act of gaining possession and then a further act of physically moving it some distance -- it is still considered a single unitary criminal act of a taking by force for purposes of section 654. This is demonstrated in People v. Vargas (2014) 59 Cal.4th 635, 640 (Vargas). In Vargas, this court addressed whethertwostrike convictions imposedfor a single act, one of which wassubject to a stay, could both 23 be used to elevate a later sentence underthe three strikes sentencing scheme. (Vargas, supra, 59 Cal.4th at p. 640.) This court held that where multiple strike convictions were based on single act, there wasonly oneprior strike for purposes of enhanced sentencing. (Id. at p. 637.) The defendant’s prior strikes at issue were carjacking and robbery convictions “based on the sameact of taking the victim’s car by force.” (Id. at p. 640.) “Defendant’s two prior felony convictions — one for robbery and one for carjacking — were not only tried in the same proceeding and committed during the same courseof criminal conduct, they were based on the same act, committed at the sametime, against the samevictim.” (Id. at p. 638, emphasis added.) Notably, the earlier Court of Appeal decisions on the issue under consideration also involved single act cases of carjacking and robbery. (Vargas, supra, 59 Cal.4th at pp. 643-645, discussing People v. Burgos (2004) 117 Cal.App.4th 1209 [attempted robbery and attempted carjacking for same act of forcibly attempting to take victim’s car], and People v. Scott (2009) 179 Cal.App.4th 920 [prior 24 strike convictions for robbery and carjacking based on sameact of forcibly taking the victim’s car].) Vargas specifically distinguished _carjacking/robbery convictionsas single-act-based stays as comparedtoa stay of multiple prior strikes involving a course of conduct. (Vargas, supra, 59 Cal.4th at pp. 642-643, citing People v. Benson (1998) 18 Cal.4th 24 [holding course of conduct stay did not require dismissal of the prior strike under People v. Romero (1996) 13 Cal.4th 497].) As a matter of law, a forceful taking as used in the robbery and carjacking statutes is a single criminalact of for purposesof section 654. It is not a course of conduct madeup of separate criminalacts. In this case, because the coins were contained in the van, the criminal act of taking the vehicle by force and the criminal act of taking the coins by force involved the sameact of taking the van and coins it contained by a display of force. Molestinainitially displayed force by pointing a gun at Schmidt Sr., but was unable to accomplish the taking of either the van or coins, because Schmidt Sr. attempted to wrestle the gun from him before Molestina had entered the van. 25 (Opn. 3-4.) Neither the carjcaking nor the robbery was completed at this point. Molestina therefore used force again. This allowed him to take possession of the van and constructive possession of the coinsit contained. (Opn. 4.) But he was notable to complete the second step of the taking, asportation, because Schmidt Sr. grabbed the steering wheel. (Opn. 4.) Neither the robbery nor the carjacking had been completed because Molestina had moved neither the van nor the coins. Finally, Molestina drove down the driveway, moving the van and the coins and achieving asportation. (Opn. 4.) Both the robbery and carjacking were completedbythis final movement. There was no separate conduct that was aimedat the taking of the van but notat the taking of the coinsor vice versa. All of the force used by Molestina was neededto obtain possession of and asport both the coins and the van. Where anaction is necessary to accomplish twocrimes, it must make uppartof the criminal acts for both crimes. Anyforce Molestina applied toward taking the vehicle wasalso necessarily applied toward taking its contents. Because the coins were in the vehicle, the robbery was completed at the exact same 26 instant as the carjacking and asa result of the exact samecriminal act — using force to take possession of the vehicle and moving it a sufficient distance to constitute asportation. Every display of force by Molestina was a componentof the criminal act of taking the van by force and of taking the coins by force. This wastherefore a single act case, where oneact of forceful taking was punishable in different ways by different provisions of law. D. The Van Cannot Be Parsed From the Items Taken As Part of the Robbery In Order to Create Two Separate Acts. In Jones, this court acknowledged that “whatis a single physical act might not alwaysbeeasyto ascertain. In somesituations, physical acts might be simultaneousyet separate for purposesof section 654.” (Jones, supra, 54 Cal.4th at 358.) Although Molestina took both a van and coins, this wasstill but a single forceful taking and cannot be described as simultaneousacts of taking undersection 654. Here, of course, Molestina did not just take Schmidt Sr.’s vehicle. He also took the valuable coin collection in its trunk which wasthe primary goal of the taking. This does not, however, change the act of forceful taking from a single act into a course of conduct. 27 The taking of multiple items by a single use offorceis still but a single act of taking. It does not appear from the record that Molestina could have taking the coins withoutalso taking the van. The central element of robbery is the use of force or fear. (See People v. Marquez (2000) 78 Cal.App.4th 1302, 1308.) Regardless of how many items are involved, the offense is based on the act of forceful taking andit, therefore, cannot be parsed by item. A single forceful taking from one individual constitutes a single offense of robbery, even where multiple items of property are taken. (Ibid.; see also People v. Brito (1991) 332 Cal.App.3d 316, 326 (Brito), cited with approvalin People v. Oretega (1998) 19 Cal.4th 686, 699 (Ortega) [“A defendant commits only one robbery no matter how manyitems he steals from a single victim pursuantto a single plan or intent”J.) This distinguishes robbery from crimes like narcotics possession, where the criminal offenses are not centered on the possession of drugs generally, but on the possession of a specific form of narcotic enumerated in the statute. Thus possession of different types of narcotics may involve simultaneous but distinct acts of 28 possession, while forceful taking of multiple itemsis only a single act of taking. (See Jones, supra, 54 Cal.4th at p. 358.) The fact that one of the items taken in a robbery happensto be a vehicle, an item accorded special treatment underothersections of the Penal and Vehicle Codes, does not destroy the unitary nature of the robbery. It is well established that the robbery cannot be parsed to exclude the taking of the vehicle in these circumstances. For instance, in Ortega, the defendants used force to pull a victim from a van, madethe victim turn over his wallet and pager, and then drove awayin the victim’s van. (Ortega, supra, 19 Cal.4th at pp. 690-691.) This court held the robbery could not be parsed to include only the wallet and pagerso that the taking of the van could support a separate grand theft auto conviction. (Id. at p. 699.) The robbery necessarily included taking the van as well.'* (Ibid.) 14 Ortega also held it was appropriate to stay the sentence on the robbery conviction in light of a sentence imposed for a carjacking conviction. (Ortega, supra, 19 Cal.4th at pp. 692-693.) However,trial court had already held a stay appropriate and the issue presented concerned whether the robbery conviction should instead have been stricken as a lesser included offense of carjacking; therefore the opinion had no need to address whetherthe stay was based onsingle act or a course of conduct with a singular objective. (Ibid.) 29 Here, the conclusion that the robbery necessarily included taking the van as well as the coins is even more compelling. In Ortega, the defendants used force to eject the driver from the van and took the wallet and pager from him once he wasoutof the van. (Ortega, 19 Cal.4th at pp. 690-691.) The defendants then entered the van and drove away. Thus possession of the wallet and pager was accomplished before possession of the van,yet it wasstill one taking. Here, by contrast, Molestina took possession of the coins by taking possession of the van. A very similar fact pattern was addressed by the Second Appellate District in People v. Dominguez, supra 38 Cal.App.4th 410 (Dominguez). In Dominguez, the victim wassitting in the driver's seat of his recently parked van. (Id. at p. 414.) The defendant entered the van througha side sliding door, put a “cold metallic object” against the victim’s neck and demanded everything he had. (Ibid.) The victim simultaneously handed over possession of his jewelry and his van andfled. (Id. at p. 415.) The van wasdriven to another location where it was abandonedbythe defendant. (Ibid.) 30 The defendant was convicted of both robbery and carjacking and thetrial court imposed an upper term sentence for the carjacking and a concurrent middle term for the robbery. (Dominguez, supra, 38 Cal.App.4th at pp. 414-415.) After first deciding that convictions for both robbery and carjacking were proper,’ the Court of Appeal addressed the application of section 654. (Id. at pp. 419-420.) The Attorney General argued that section 215, subdivision (c) indicated an intent to abrogate the Neal course of conduct stay whenit said there could be no double punishment of carjacking and robbery based on “the same act.” (Id. at p. 419.) The Court of Appeal chose not to reach this argument as “the carjacking and robbery here constituted ‘the vaysameact,’” and not a course of conduct. (Id. at p. 420) The court noted appellant held a cold metallic object to the back of the victim’s neck causing the victim to simultaneously hand over his jewelry and the van. (Id. at p. 421.) “[T]he sameact wasessential to both offenses and thus is not separately punishable under Penal Code section 654.” 15 The case wasdecided prior to Ortega, supra. 31 (Ibid.) In light of the authorities discussed above, the reasoning in Dominguez is entirely sound. Here, the taking of the coins is even more closely tied to the taking of the van than the property in either Ortega or Dominguez. In Ortega and Dominguez, the defendants demanded property generally and, after the victims had turned over items on their person, the defendants also proceeded to take their vehicles. Here, the primary target of the crime was Schmidt Sr.’s coin collection. The most efficient method of removing the coins from Schmidt Sr.’s possession wasto do so by taking the van that held them. Thus, the van was not an item sought for its independent value but as a convenient container for carrying the coins. It was the taking of the van that accomplished the taking of the coins. This was a single criminal act of taking a vehicle and its contents. E. Even had Molestina Formed the Intent to Take the Van During the Course of the Robbery, the Van WasStill Part of the Property Taken in the Robbery and thus Both Crimes Involved a Single Act. In the opinion, the Court of Appeal placed great weight on the possibility that Molestina’s intent to take the van arose after the 32 robbery had commenced. (Opn. 10.) Appellant disagrees thatthis is a reasonable inference from the record. According to the probation report, the coin collection was apparently valued at $70,000 and stored in multiple boxes, indicating a large volumeof coins. (CT 51.) Apparently there were sufficient numberof boxesthat all four men wereactively involved in moving them from the van into the waiting cars. (CT 51.) Guerra, one of the accomplices, told officers that appellant “was to call Molestina, with the order to commit the actual carjacking, once Mr. Schmidt Sr. was getting ready to leave his residence.” (CT 52.) Appellant told the probation officer that the plan came about when he happened to mention Schmidt Sr.’s coin collection and Molestina “volunteered to ‘jack the guy.’”” (CT 54.) All of the vehicles converged at a pre-planned location where they intended to dole out the stolen property. (CT 54.) This evidence indicates that the defendants always intended to carjack the van in orderto take the coins. There is no contrary evidence in the record to support an inference that the intent to take the van only aroseafter SchmidtSr. resisted a taking of the coins. 33 Regardless, even if the Court of Appeal’s inference is supported by the record, it does not change the taking from a single act into a course of conduct. The scope of a robbery includesall items taken by the display of force regardless of when the intent to take a specific item arose. (Brito, supra, 332 Cal.App.3d at p. 326.) In Brito, the defendant Brito was hitchhiking on a freeway onrampwith a gasoline can in his hand. (Brito, supra, 232 Cal.App. 3d at p. 319.) When a driver opened the passenger door to give him a lift, Brito pointed a gun at the driver’s face and demanded gold or money. (Ibid.) The driverfled from the vehicle, and Brito shot him in the back. (Ibid.) Brito then drove awayin the car. (Ibid.) Brito was convicted of robbery, among other crimes. On appeal, Brito argued the jury should have received theft as a lesser included offense on the theory that the intent to steal the van could havearisen after the foiled attempted robbery of “money and gold,” and, therefore, the jury could have concluded there was no force involved with the taking of the car. (Brito, supra, 232 Cal.App.3datp. 324.) The Court of Appealrejected this theory, because, regardless of 34 whenthe intent to steal the car arose, it was achieved bytheinitial threat of force that was applied with the intent to take property. (Id. a p. 326.) The court noted “wesee no rationale for limiting the scope of the robbery only to the specific items on which the defendant has focusedat the time heinitially applies the force.” (Ibid.) UnderBrito, even if Molestina initially only planned to take the coins and decided to take the vehicle as events unfolded, the robbery still included both the vehicle and the coins. The intent at issue was the intent to take property by force, including property targeted initially as well as any property targeted during the course of the robbery. As such, the vehicle wasstill part of the property taken in the robbery. Where a defendant obtains possession of a vehicle and its contents by a use of force, the resulting convictions for carjacking and robberyare based on single act for purposesof section 654. (Ortega, supra, 19 Cal.4th at p. 699; Dominguez, supra, 38 Cal.App.4®at p. 421.) As such, the defendant can be convicted of both, but one conviction must be stayed as a matter of law. Here, the record showed that 35 Molestinatook the van andthe coin collection it contained by asingle display of force. There is no substantial evidence which could support parsing his conduct into separate criminal acts. As such, appellant’s sentence for robbery mustbe stayed. II. THE COURT OF APPEAL AND TRIAL COURT ERRED IN HOLDING THE ACTS WERE NOT COMMITTED WITH A SINGLE INTENT AND OBJECTIVE. A. Introduction. Although appellant believes this case unquestionably involves a single act, assuming arguendothat taking the van wasa distinctact from taking the coins, the trial court and Court of Appealstill erred in finding the evidence showeddistinct objectives and intents under the Neal test. The Court of Appeal foundsubstantial evidence that Molestina took the van “as a separate goal of escaping fromthe scene of the crime,” rather than with the goal of stealing the coins. (Opn. 10.) According to the Court of Appeal, it could be reasonably inferred from the record that Molestinainitially intended to overcome 36 Schmidt Sr. with violence so that they could load the coins from the van into their own vehicle in the driveway without ever taking the van. (Opn. 10.) When faced with Schmidt's resistance, Molestina opted to push the victim out of the way, fleeing in the van instead. (Opn.10.) The robbers then abandonedthe van a short distance away after taking the coins from the van. (Opn.10.) As noted above, appellant disagrees that it can be reasonably inferred from this record that Molestina only decided to take the van once faced with resistance, because the statements in the probation report indicate the defendants always planned to take the coins by taking the van. (CT 51-52, 54.) Regardless, even if it could be reasonably inferred that the plan changed mid-robbery, and that this represented a course of conduct rather than a single act, taking the van wasstill incidental and facilitative to the criminal objective of stealing the coins, thereby requiring a stay as a matter of law. Without any real discussion, the opinion holds otherwise, stating, “The intent to steal the coins is clear. The court could easily infer the intent to take the van arose as a separate goal of escaping 37 from the crime scene.” (Opn. 10.) This holding is erroneous because whatthe court refers to as “escaping from the crime scene”is not the type of after-the-fact escape discussed in People v. Nguyen (1988) 204 Cal.App.3d 181, 191, (discussed below) on which the Court of Appeal relies. Rather, it is simply another wayof describing asportation of the coins, an element of the robbery and carjacking itself. Under the undisputed facts, stealing the coins was, as a matter of law, accomplished by taking the van, therefore the intent of taking the van wasincidental and facilitative of the intent to steal the coins. Because this was an act committed to facilitate an element of the robbery,it was necessarily committed with the sameintent and objective as the robberyitself. B. If One Crime Is Committed to Accomplish Another Crime,It Is Necessarily Facilitative and a Stay is Required as a Matter of Law. In addition to prohibiting multiple punishmentof a single act, section 654 has long been interpreted as prohibiting punishmentfor an indivisible course of conduct carried out incident to one objective. (Neal, supra, 55 Cal.2d at p. 19.) When one crime is committed in order to accomplish another crime, they share an underlying objective. (Id. 38 at p. 20 [arson must be stayed when it was the means used to commit attempted murder].) “The Neal court explained that where a defendant commits another crime as ‘the meansof perpetrating the crime,’ section 654 applies. (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1006 (Rodriguez).) In the recent case of Dowdell, supra, 227 Cal.App.4th 1388, the Sixth District Court of Appeal discussed the distinction between primaryandincidental intents and objectives for purposes of section 654. The court in Dowdell noted that where the primary objective is taking a valuable (in that case, money from ATMs), any othercrimes, such as kidnapping, committed in order to achieve the taking are incidental and must bestayed. In Dowdell, the defendants attempted to rob the victim at a carwash. (Dowdell, supra, 227 Cal.App.4th at pp. 1394-1395.) When he resisted, they forced him into the truck and drove him to an ATM. (Id. at pp. 1395, 1415.) When they could not obtain moneyfrom that ATM,the victim begged them to try another. (Id. at pp. 1395, 1415.) The defendants were charged with three counts of kidnapping -- one 39 during a carjacking, one for extortion, and one for robbery. (Id. at p. 1393.) The Sixth District held that the many distinct movements could be viewed as separate acts of kidnapping. (Dowdell, supra, 227 Cal.App.4th at p. 1415.) However, this did not mean there were separate objectives. The primary objective of all the acts was obtaining the victim’s money. (Ibid.) The Court of Appeal rejected the Attorney General’s argument that the kidnapping was “motivated by a desire to avoid detection,” because any desire to avoid detection was incidental to the primary goal of getting the victim’s money. (Id. at p. 1415-1416.) Dowdell cited People v. Beamon (1973) 8 Cal.3d 625, 639, which held section 654 requires a stay where a kidnapping is committed to facilitate a robbery. Theruling is also in line with the rationale in Neal, which pointed to earlier cases distinguishing acts to complete the robbery from those committed after the robbery. (Neal, supra, 55 Cal.2d at p. 19-20, citing People v. Logan (1953) 41 Cal.2d 279, 290 [knocking victim out in order to rob 40 him involved single objective] and In re Chapman (1954) 43 Cal.2d 385, 387 [assault after a robbery results in two punishableacts].) A crime committed after another crime is accomplished may not require a stay. Where one crime is completed and another crime committed in its wake, there may be a question of fact as to whether they crimes involve the same or separate intents and objectives. This wasthebasis of the holding in Nguyen and Rodriguez. In Nguyen the defendant and an accomplice entered a market and committed an armed robbery. (Nguyen, supra, 204 Cal.App.3d at p. 184.) The accomplice escorted the store clerk to a rear bathroom, took money and a passport from him, and forced him to lie faced downon thefloor. (Id. at p. 185.) Nguyen, from the front ofthe store, yelled a “Vietnamese battle phrase to be used when ‘someonewas to kill or be killed,” and the accomplice kicked the clerk in the ribs and shot him in the back. (Ibid. at p. 185.) Fortunately, the clerk survived. (Ibid.) Nguyen was convicted of robbery and attempted murder based on the incident. (Id. at p. 184.) The trial court did not stay the robbery sentence. (Id. at p. 189.) 41 In upholding the trial court’s decision, the appellate court noted that, at the time of the shooting, the victim had already been relieved of his valuables and wasnotresisting. (Nguyen, supra, 204 Cal.App.3d at p. 190.) Unlike this case, the shooting wasnota use of force committed to accomplish the robbery. “This act constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not ‘incidental’ to robbery for the purposes of Penal Code section 654.” (Ibid.) Similarly, in Rodriguez, the defendant committed another crime (evadingarrest) after the robbery had been completed and therefore no stay was required because the evading did not facilitate the robbery. In Rodriguez the defendant robbed a bank. (Rodriguez, supra, 235 Cal.App.4th at p. 1003.) “After obtaining the money, Rodriguez fled the building and got into the back of a waiting vehicle.” (Ibid., emphasis added.) After the vehicle was pulled over and the driver and a passenger exited, Rodriguez climbed into the driver’s seat and proceeded to lead officers on a high speed chase. (Ibid.) He was convicted of robbery and evadingarrest by reckless driving. (Id. at p. 42 1002.) The appellate court upheld the trial court’s imposition of separate sentences, distinguishing the situation from that where one crime is committed as a means of committing a robbery. (Id. at p. 1006.) Rodriguez's act in evading arrest in this case was notthe method by whichhe obtained the bank’s money. Thatis demonstrated by the fact that Rodriguez could have attained the objective of the robbery (obtaining money) without evadingarrest, if the police had not given chase. The same cannotbe said of the assault in Logan, [supra, 41 Cal.2d 279] which had the same objective as the robbery, namely, obtaining the victim’s valuable. In short, since a defendant does not evade arrest as a means of perpetrating a robbery,a trial court may reasonably find that a defendant who commits a robbery and evades arrest within the meaning of Vehicle Code section 2800.2, subdivision (a) acts with multiple objectives. (Rodriguez, supra, 235 Cal.App.4th at p. 1006.) Asdiscussed in ArgumentI, Section C, ante, a robbery is not completed until the defendant takes possession of the property and carries the property at least some distance. (People v. Gomez, supra, 43 Cal.4th at p. 255.) Thus, if Molestina, due to SchmidtSr.’s resistance, could not take the coins without taking the van, then taking the coins by taking the van wasfacilitative of the primary intent to steal the 43 coins. This is true regardless of whether taking the van waspart of the initial plan or arose mid-robbery.'® Furthermore, if appellant’s conviction is held to not require a stay solely because Molestina may have decided to take the van to obtain the coins during the robbery instead of before the robbery began,it leads to an absurd result. One of the goals of section 654is to make punishment commensurate with his criminalliability. (Neal, supra, 55 Cal.2d at p. 20.) If the applicability of the stay depended on when Molestina decided take the car to achieve the robbery, it would thwartthis goal of tying stays to criminal culpability. In a situation where Molestina had always plannedto take the coins by committing a carjacking, he can only be sentenced for the carjacking. (Neal, supra, 55 Cal.2d at p. 19-20.) Per the Court of Appeal’s logic, if he only decided to commit the carjacking once it proved an easier method of taking the coins, he should receive 16 There is no evidencein the record that Molestina asported the coins prior to the carjacking and therefore this court need not address an ancillary issue discussed in Rodriguez, supra, 235 Cal.App.4th at p. 1007, whether a crime committed after asportation, doneto facilitate reaching a place of temporary safety, must be stayed. 44 separate punishment. In both cases, Molestina is equally criminally liable. He has shown a willingness to take the van to achieve the robbery. Yetif he first attempts to take the coins without taking the van hereceives a greater punishmentthanif he planned on taking the van from the start. The assailant who plans to commit a robbery by carjacking all along is not somehow less culpable than an assailant whoonly resorts to a carjacking once he is unable to succeed by show of force alone. Denying a stay in the latter situation is not a commensurateresult. Because Molestina took Schmidt Sr.’s van as a means of accomplishing the taking of the coins, section 654 requires a stay as a matter of law, regardless of whenhis intent to take the van arose. As such, there is no substantial evidence in the record to support a finding that he had a separate intent or objective in taking the van. 45 Il. CONCLUSION Appellant’s sentence for robbery must be stayed. Dated: February 8, 2016 Respectfully Submitted, Cynthia M.Jones Attorney for Tory Corpening Defendant and Appellant 46 CERTIFICATION OF WORD COUNT I, Cynthia M.Jones, hereby certify in accordance with California Rules of Court, rule 8.520(c)(1) that this brief contains 8,770 wordsas calculated by Microsoft Word, the software in which it was written. | I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct. Dated: February 8, 2016 Cynthia M.Jones 47 PROOF OF SERVICE BY ELECTRONIC MEANS (Cal. Rules of Court, rules 2.251(i)(1)(A)-(D) & 8.71(f)(1)(A)-(D).) People v. Corpening 5228258 [, Cynthia Jones, declare that: Iam over the age of 18 years and not a party to the case; my business addressis 19363 Willamette Drive, No. 194, West Linn, OR 97068. I causedto be served the following document(s): APPELLANT’S OPENING BRIEF I declare I electronically served from myelectronic service address of cjones@avatarlegal.com the above-referenced document on February 8, 2016 by 5:00 p.m. to the followingentities: CALIFORNIA COURT OF APPEAL4District, Div. 1, by e-filing APPELLATE DEFENDERSINC,eservice-criminal@adi-sandiego.com ATTORNEY GENERAL’S OFFICE, ADIEService@doj.ca.gov SAN DIEGO DISTRICT ATTORNEY’S OFFICE, DA.Appellate@sdcda.org I declare under penalty of perjury under the lawsof the State of California that the foregoingis true and correct. Executed on February8, 2016 Server signature: Cynthia M.Jones PROOF OF SERVICE BY MAIL Re: Tory Corpening, Court OfAppeal Case: $228258, Superior Court Case: SCS258343 I the undersigned, declare that I am employed in the County of Sonoma, California. I am over the age of eighteen years and not a party to the within entitled cause. My business address is 1235 Eleanor Ave., Rohnert Park CA. On February 8, 2016, I served a copy of the attached Appellant's Opening Brief (CA Supreme Court) on each of the parties in said cause by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in United States mail at Sonoma, California, addressed as follows: San Diego Superior Court Jerry Leahy Hon.Francis Devaney - Dept. 9 105 West F Street 500 3rd. Avenue #215 Chula Vista, CA 91910 San Diego, CA 92101 (Trial Counsel) Pelican Bay State Prison Tory J. Corpening #AR3130 B-142 PO Box 7500 Crescent City, CA 95532-7500 I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on this 8th day of February, 2016. ~ Teresa C. Martinez é Se, (Nameof Declarant) (Signature of Declarant) PROOF OF SERVICE BY ELECTRONIC SERVICE Re: Tory Corpening, Court Of Appeal Case: 8228258, Superior Court Case: SCS258343 I the undersigned, am overthe age of eighteen years and nota party to the within entitled cause. Mybusinessaddress is 1235 Eleanor Ave., Rohnert Park CA. On February 8, 2016 a PDF version of the Appellant's Opening Brief (CA Supreme Court) described herein was transmitted to each of the following using the email address indicated and/or direct upload. The email address from which the intended recipients were notified is Service@GreenPathSoftware.com. State of California Supreme Court Supreme Court San Francisco, CA 94102-4797 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 8th day of February, 2016 at 10:16 Pacific Time hour. Teresa C. Martinez é (Nameof Declarant) (Signature of Declarant)