Opinion
B199163.
6-9-2008
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DIAZ, Defendant and Appellant.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
William Diaz appeals from the judgment entered upon his convictions by jury of kidnapping for robbery (Pen. Code, § 209, subd. (b)(1), count 1), torture (§ 206, count 2), first degree residential robbery (§ 211, count 3), corporal injury to cohabitant (§ 273.5, subd. (a), count 4) and first degree burglary (§ 459, count 5). As to all counts, the jury found to be true the armed with a firearm allegation within the meaning of section 12022, subdivision (a)(1). The trial court sentenced appellant on counts 1 and 2 to consecutive life terms with the possibility of parole plus a determinate term of one year on count 1 for the firearm enhancement. It imposed middle term sentences of four, three and four years on counts 3 through 5, respectively, plus one year on counts 2 through 5 for the firearm enhancement, but stayed these sentences pursuant to section 654. Appellant contends that (1) the judgment must be reversed because the jury may have relied upon a legally incorrect theory to convict him of kidnapping for robbery, (2) there was insufficient evidence of asportation to sustain the kidnapping for robbery conviction, (3) the trial court improperly used facts comprising elements of the crime of torture to impose consecutive sentences, (4) the trial courts findings in imposing consecutive sentences are unsupported by the evidence, and (5) the trial court violated appellants rights to a jury trial and due process as articulated in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny when it, and not the jury, determined by a preponderance of the evidence that appellant harbored multiple objectives under section 654 and that consecutive sentences on counts 1 and 2 were warranted.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
Prior incidents of abuse
Maria S. (Maria) met appellant two and one half years before trial. They lived together during the relationship, although, at times, he became angry and left. Appellant initially treated Maria well. Beginning six months after they met, however, he started becoming jealous, aggressive and verbally abusive, and, a few months later, physically abusive.
Appellant often pushed and choked Maria, bruising her arms and neck. When he could not perform sexually, he would cry, apologize, become angry and accuse her of wanting to be with other men. He said he would rather see her dead. Sometimes, he threatened to kill himself if she were to leave him, once pretending to have done so. When Maria told him she was leaving, he would call her hundreds of times a day. She did not call the police, fearing for her and her childrens safety.
A month and one-half before the charged incident, appellant came to Marias workplace to talk with her. When she refused and threatened to call the police, he told her she would be sorry. When Maria arrived home, appellants car was in her driveway. She ran inside, locked the door and hid. Appellant knocked on the doors and windows. When Marias brother, who lived with her, came home and opened the door, appellant rushed inside and told Maria they had to talk. When she refused, he grabbed her neck and pushed her against a door. He said she owed him $5,500 to $6,000 for work he had done on her familys home in Mexico.
The next day, Maria sought a restraining order against appellant, receiving a temporary restraining order a day later which was promptly served on appellant. Undeterred, appellant continued to follow her.
Several days later, appellant again went to Marias workplace. She told him to leave, or she would call the police. After he said he did not care, she called the police, and he left. As the responding officer was taking a report from Maria, appellant telephoned her approximately 10 times on her cell phone. The officer finally answered the phone, told appellant that he was in violation of the restraining order, to stop calling and to stay away. Appellant continued asking to speak with Maria.
When Maria obtained the final restraining order, appellant approached her as she exited the courtroom. When she told him she did not want to talk, he became angry and followed her to her car.
A week later, Maria and her two daughters came home to find appellant waiting. He ran to their car, tapped on the windows and said, "Please, baby, open the door." When Maria did not, he became angry. One of Marias daughters got out of the car and told him to leave or they would call the police. Appellant threatened that if Maria did not listen to him, he would take everything she had and burn down her house or her store.
Salvador Arriaga (Arriaga), who lived in Arkansas, was a friend of Marias and was also the godfather of one of her daughters. Maria told him she was afraid of appellant. Arriaga gave Maria two Verizon cell phones which were in his name, so that appellant would not have the numbers. He told her to turn off the Sprint cell phone appellant had given her daughter, because appellant constantly called that phone to speak with Maria.
The charged incident
On May 2, 2006, at approximately 8:15 a.m., Maria was home alone lying in bed. When noises she heard outside and on her windows persisted, she stepped out her front door and saw two masked men, one much larger than the other, both dressed in black and wearing masks and gloves. The larger man was built like Ricardo Almendariz (Ricky), appellants nephew, who Maria had met two or three times, and the smaller man was the same height as appellant.
When Maria was five and one-half to six feet outside of her doorway, a spot clearly visible from her neighbors house, the men attacked her. The larger man punched her in the face and stomach, knocking her down. When she tried to get up, he put a gun to her head. The men dragged her inside, closed the door and security gate, threw her face down on the living room floor, 15 or 16 feet from the door, and tied her hands behind her.
The beating continued inside. The smaller man kicked Maria in the legs. The larger man placed his knee in the small of her back and his gun alongside her neck and kept saying, "Shut up, bitch!" The smaller man went into the bedroom, while the larger man struck Maria in the head with the gun. The smaller man returned to Maria and punched her in the face numerous times. When she tried raising her head, the men hit her and did not allow her to look at them. The smaller man then returned to the bedroom, and while he did, the larger man undid Marias pants and put his hand down the front to her pubic area. When the smaller man came back into the room, the larger man removed his hand. The smaller man then hit Maria in the face, stuck his finger in her eye and pressed it as if trying to gouge out her eye. He went into the bedroom for a third time, and the larger man fondled Marias buttocks, commenting, "Oh, bitch, you have a nice ass." He again removed his hand when the smaller man returned. This time, the smaller man hit Maria in the face and "pricked" her forehead with a knife, causing her to bleed, with the blood covering her face. He then poured ammonia and alcohol on her face. The larger man asked for matches, and one of them lit a match. The larger man ran off, while the smaller one stomped on Marias feet before dragging her a little way and running off. At one point, during the incident, the larger man asked where the money was.
Aftermath of the attack
After the men left, Maria telephoned 911. Officer Mauricio Aranda responded. He found Maria crying and yelling in pain. Her left eye was purple and swollen shut, her nose was swollen, and she had cuts over her eye and blood all over her face. Marias purse had been emptied and its contents strewn across her bed, approximately $800 and her Verizon cell phone missing. Also missing was an audio recording, appellant surreptitiously made and gave to Maria, of a phone conversation between him and David Lavi (Lavi), which Maria could not understand because it was in English. Appellant had told her that in that conversation Lavi offered appellant $4,500 to "destroy" Maria. An open bottle of ammonia, which Maria kept under the sink behind other items, was on the kitchen table. Appellant had previously used it to clean the bathroom. Her house was otherwise neat, and gold jewelry and $5,770 cash Maria kept in the house for a lease payment were not taken.
Maria was involved in a business dispute with Lavi. After his arrest, appellant told police of the recording and its contents.
Appellant knew Maria kept a large sum of money in the house.
An ambulance took Maria to the hospital, from where she was released that night. Appellant visited Maria at the hospital and at her home that night. He said his friend was outside with a gun, and they would protect her.
Appellants statements
Jennifer Almendariz (Jennifer), appellants niece and Rickys sister, was privy to three conversations relating to the charged incident. A week before the incident, she was on her grandfathers porch and overheard appellant tell Ricky that he wanted to scare Maria and take the $5,000 she kept in her house. He discussed dressing in black, with gloves and ski masks, and offered Ricky a thousand dollars to participate. Ricky said nothing but "Okay, Okay." Appellant had previously told Jennifer that a judge ordered Maria to pay him $35,000, with a $5,000 up-front payment and the balance due a month later.
Jennifer had also previously heard Ricky say he wanted to beat Maria up, break her car windows or pop her tires because of her affair with a "compadre."
A few days after overhearing the conversation, Jennifer was having lunch with appellant and Ricky. Appellant said that he should have beat that "bitch" up more. A half hour later, he received a call. He acted worried and rushed to Marias house. In neither of these conversations was Maria mentioned by name.
That same night, appellant returned to Jennifers grandfathers house. When she entered the room where he and Ricky were, both men said, "Quiet, because the rat is here." Appellant then confessed everything in Jennifers presence.
On July 4, 2006, Officer Eric Crosson spoke with Jennifer. She told him of the conversation she overheard between appellant and Ricky regarding the planned attack and of the luncheon conversation. She did not mention appellants confession later that evening.
The telephone calls
Verizon Wireless cell phone records with a phone number held by Arriaga and an address listed at Marias residence reflected two brief calls on May 2, 2006, after the charged incident, and one the following day to the home of Bernardo Sanchez, the father of Thomas Sanchez, Rickys best friend, who lived with his father. Those records also reflected a call from the same cell phone, on the morning of May 2, 2006, to a tire store owned by David Gutierrez (Gutierrez), who, according to Detective Javier Vargas, told him that appellant was his customer.
When Arriaga awoke on the morning of the charged incident, he had a message on his phone from Maria, who was crying. When he returned the call to the Verizon phone he had gotten for her, someone "opened the line" but without answering. Finally, a man, whose voice Arriaga did not recognize, asked who was calling. After Arriaga gave his name, the man made derisive comments. Arriaga repeatedly asked to speak to Maria, but the man kept saying, "You fucking my bitch, you fucking my pussy," before hanging up.
DISCUSSION
I. Legally incorrect theory of aggravated kidnapping
The trial court instructed the jury on aggravated kidnapping in accordance with CALCRIM No. 1203, stating that the People must prove that using force or fear, the defendant moved another person a substantial distance, beyond that incidental to the commission of the robbery, and that, "substantial distance means more than a slight or trivial distance. The movement must have substantially increased the risk of physical or psychological harm to the person beyond that necessarily present in the robbery. [¶] In deciding whether the movement was sufficient, consider all the circumstances relating to the movement."
It also instructed on simple kidnapping as a lesser included offense in accordance with CALCRIM No. 1215 that: "In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection."
During closing argument the prosecutor explained that kidnapping for robbery required that the victim be moved a substantial distance "which is beyond that merely incidental to the commission of a robbery." She argued that substantial distance was "something that increases [the victims] risk of harm." The prosecutor gave examples of movements incidental to a robbery, such as where the victim is moved only two feet away from a cash register so the robber can empty it or two feet to an ATM machine to enter the victims pin for the robber. She stated that in both cases, "Youre in the same position, the same degree of harm you were in when you were at the register. You just moved two feet away so he can [get] the money."
Appellant contends that the kidnapping for robbery charge was improperly submitted to the jury on a legally inadequate theory. First, he argues that the instructions were incomplete because the jury was not "instructed that the determination of whether the actual distance moved was more than slight or trivial was a prerequisite to its determining whether the risk of harm to the victim was substantially beyond that necessarily present in the robbery." Second, he argues that the prosecutor misstated the law by "defining a `substantial distance as any movement that increases the risk of harm to the victim regardless of whether the actual distance moved was very short. . . ." This contention is without merit.
Aggravated kidnapping is defined in section 209, subdivision (b)(1), which states: "Any person who kidnaps or carries away any individual to commit robbery . . . shall be punished by imprisonment in the state prison for life with possibility of parole." Subdivision (b)(2) states: "This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (See also People v. Rayford (1994) 9 Cal.4th 1, 12.)
With regard to the first prong, whether the movement is only incidental to the robbery, the jury must consider the "scope and nature" of the movement. (People v. Martinez (1999) 20 Cal.4th 225, 233 (Martinez); see also People v. Daniels (1969) 71 Cal.2d 1119, 1131, fn. 5 (Daniels).) This includes the actual distance a victim is moved. But there is no minimum number of feet a defendant must move to satisfy this first prong (Daniels, supra, at p. 1128; People v. Rayford, supra, 9 Cal.4th at p. 17) because limiting a jurys consideration to a particular distance is "rigid and arbitrary, and ultimately unworkable." (Martinez, supra, at p. 236.) The jury may therefore consider the "totality of the circumstances." (Id. at p. 237)
The second prong, whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery, requires considering factors such as the decreased likelihood of detection, danger inherent in a victims foreseeable attempts to escape, and the attackers enhanced opportunity to commit additional crimes. (Martinez, supra, 20 Cal.4th at p. 233) The two prongs of aggravated kidnapping "are not distinct, but interrelated, because a trier of fact cannot consider the significance of the victims changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim." (Id. at p. 236.)
We reject appellants argument that CALCRIM No. 1203 erroneously failed to require the jury to first find that the movement was not slight or trivial before considering whether the movement increased the risk of harm. Appellant cites no case supporting this claim, and the applicable authorities indicate otherwise. Martinez noted that the two prongs of the "substantial distance" analysis are not independent but are interrelated. (Martinez, supra, 20 Cal.4th at p. 236.) Thus, there is no required order of analysis. Because there is no magical number of feet, yards or miles that a person must be moved to constitute substantial distance, the jury must consider the "totality of the circumstances" (Martinez, supra, at p. 237), including the extent to which the harm is increased by the movement.
Furthermore, CALCRIM No. 1203 is a correct statement of law. (People v. Curry (2007) 158 Cal.App.4th 766, 781.) It instructs that the People must prove that appellant moved the victim more than a "`slight or trivial distance," beyond that merely incidental to the robbery and which substantially increases the risk of physical or psychological harm necessarily present in the robbery. It tells the jury to consider all of the circumstances related to the movement in making its determination.
We also reject appellants claim that the prosecutor misstated the law by defining a "substantial distance" as any movement that increases the risk of harm regardless of the actual distance moved. We initially observe that appellant did not object to the prosecutors comment. Consequently, any claim of prosecutorial misconduct was forfeited. (People v. Williams (1997) 16 Cal.4th 153, 254.) If there was any error in the prosecutors statements, the jury was instructed that it was to follow the law given by the judge and that counsels statements are neither evidence or law. (CALCRIM No. 200.)
In any event, the prosecutor did not misstate the law. Her argument, to which appellant takes issue, simply emphasized the increased harm element of the "substantial distance" requirement. She did not "defin[e] `substantial distance merely as `something that increases her risk of harm." The prosecutor also argued to the jury that the movement had to be more than that merely incidental to the robbery. She did not suggest that only necessary movements were incidental to the robbery. She gave examples of movements that happened to be necessary for the robbery and which were incidental.
Nor did the prosecutor mislead the jury by confusing the elements of torture with the contextual factors relevant to substantial movement. The factors relevant to "substantial distance" include the decreased likelihood of detection and the attackers enhanced opportunity to commit additional crimes. Torture was an additional crime that the prosecutor argued resulted from the enhanced opportunity appellant obtained by moving Maria.
II. Sufficiency of evidence
Appellant contends that his conviction of kidnapping for robbery is unsupported by sufficient evidence. He argues it was based only on the second prong of the "substantial" distance test, whether the victim was subjected to an increased risk of harm, and that there was insufficient evidence, as a matter of law, regarding the first prong, whether the "[m]ovement was too trivial a distance to be `substantial." He argues that the five and half to six feet Maria was moved from where she was initially attacked to the inside of her house was merely incidental to the robbery. We disagree.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless `"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Catlin (2001) 26 Cal.4th 81, 139.) Given this courts limited role on appeal, defendant bears a heavy burden in claiming there was insufficient evidence to sustain the finding. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Considering the totality of circumstances, there is ample evidence that moving Maria 20 feet, from outside her house, open to the view of her neighbors, to the seclusion inside was not slight or trivial or merely incidental to the robbery. While the "scope" (distance) (Martinez, supra, 20 Cal.4th at p. 233) moved was not great, the substantiality of the movement is not based solely on the actual distance moved. (Daniels, supra, 71 Cal.2d at p. 1128.) The "nature" (ibid.) of the movement rendered it substantial.
Appellant had premeditated both beating and robbing Maria. Before the assault, he told her that she owed him between $5,500 and $6,000 for work he had done on her family home in Mexico. He told Jennifer that a judge ordered Maria to pay him $35,000, and Jennifer overheard appellant say that he wanted to take the $5,000 cash Maria kept in her home. Appellant also had a history of physically and emotionally abusing Maria and was consumed with uncontrolled jealousy and rage that she left him. Before the charged incident, he told Jennifer that he wanted to beat Maria up, break her car window and pop her tires.
It can be reasonably inferred from this evidence that appellant went to Marias residence on May 2, 2006 with two objectives. When he moved Maria inside her house, the movement was not only unnecessary to complete the robbery, it in no way facilitated it, and Maria was already subdued outside of the residence. Inside, she was tied, and pushed on the floor where she was made to remain, without being allowed to get up. Appellant did not torture her as a means of compelling her assistance in the robbery.
Appellants conduct inside corroborated that the move was not just incidental to the robbery. It was as if two crimes were going on simultaneously. Appellant repeatedly left the bedroom where he was looking for valuables and returned to the room in which Maria was confined to inflict gratuitous pain on her. He repeatedly kicked and punched her, attempted to gouge her eye out, cut her forehead for no reason and poured ammonia and alcohol on her face. Some of the abuse was inflicted after the robbery had been completed and immediately before appellant left the house. A jury could reasonably conclude that Maria was moved in furtherance of appellants preconceived purpose of torturing her in revenge for her leaving him and to induce her to reconcile with him so he would protect her from the assailants.
Daniels, supra, 71 Cal.2d 1119, relied on by appellant, does not undermine our conclusion. In that case, our Supreme Court reversed three kidnapping for robbery convictions where the victims were moved 18 feet, 5 or 6 feet, and 30 feet within their homes in the course of the defendants committing robbery and rape, based upon its conclusion that the movement was incidental to the robberies. The Supreme Court held that movements that are only incidental to robberies and do not substantially increase the risk of harm over and above that necessarily present in a robbery are not within the offense of kidnapping for robbery (Daniels, supra, at p. 1139), stating: "Indeed, when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him . . . his conduct generally will not be deemed to constitute the offense proscribed by section 209. Movement across a room or from one room to another, in short, cannot reasonably be found to be asportation. . . ." (Daniels, supra, at p. 1140.)
Unlike in Daniels, Maria was not simply moved within her home or office. Rather, she was moved from outside of her home to the inside, a place where she was at greater risk of further beating and where detection was less likely.
III. Sentencing errors
The jury found appellant guilty of kidnapping for robbery in count 1, torture in count 2, first degree residential robbery in count 3, corporal injury to cohabitant in count 4 and first degree burglary in count 5. The trial court sentenced him to consecutive life terms with the possibility of parole on counts 1 and 2 plus one year on count 1 for the firearm enhancement. It imposed sentences and stayed execution pursuant to section 654 on counts 3 through 5 of four, three and four years, respectively, plus one year for the firearm enhancement on counts 2 through 5.
In imposing sentence, the trial court stated its reasons as follows: ". . . the objectives of the crime were predominantly independent, yes. It was one incident, but as Mr. Balian points out in and as I will state again with regard to the other factor, if he just wanted to rob her, he could have robbed her. The gratuitous intimidating brutality and violence that was imposed upon [Maria] was to inflict pain and severe emotional fear which obviously he succeeded in doing as evidenced by [Marias] testimony during the trial and further emphasized by her statement today. Further, the crimes involved separate acts of violence. There was the violence outside where she was punched in the face and dragged inside of the house. And then as I stated, there was the violence with the ammonia and the finger in the eye and the cutting to the face that was meant to inflict emotional pain and fear. . . . And the point was to terrorize her separate from the robbery, which again as I stated, he succeeded in doing. And for those reasons he deserves consecutive sentences."
Appellant mounts three challenges to his sentence. He claims (1) that the trial court improperly used facts comprising the elements of torture to impose consecutive sentences on counts 1 and 2 in violation of California Rules of Court, rule 4.425(b)(3), which provides that "[a] fact that is an element of the crime may not be used to impose consecutive sentences;" (2) that in imposing consecutive life terms, and not staying either count 1 or 2 pursuant to section 654, the trial courts findings that appellant committed separate acts of violence and harbored independent criminal objectives are unsupported by the evidence, and (3) appellants right to a jury trial and due process, as articulated in Apprendi and its progeny, were violated when the trial court, and not a jury, determined by a preponderance of the evidence that appellant harbored multiple objectives under section 654 and that consecutive sentences were warranted under California Rules of court, rule 4.425.
Respondent contends that these claims are forfeited by appellants failure to raise them in the trial court. We agree that appellant forfeited the first and third claims, but not the second.
A. Forfeiture
With narrow exceptions, sentencing issues are forfeited if not raised and preserved by the parties in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.) While there is an exception for unauthorized sentences (In re Ricky H. (1981) 30 Cal.3d 176, 190-191), "the waiver doctrine [applies] to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which . . . the court purportedly erred because it double-counted a particular sentencing factor . . . or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott, supra, at p. 353, italics added.) Consequently, appellants claim that the consecutive sentences were the result of double counting facts comprising the element of torture was forfeited because it was not raised in the trial court. Appellants constitutional argument under Cunningham v. California (2007) 549 U.S. 270 (Cunningham) was also forfeited for failure to raise it in the trial court.. (People v. Alvarez (1996) 14 Cal.4th 155, 186 [forfeit confrontation clause claim where no specific or timely objection on that ground made in trial court].)
But appellants argument that one of his life sentences should have been stayed under section 654, and hence should not have been sentenced consecutively, stands on a different footing. "`It is well settled . . . that the court acts "in excess of its jurisdiction" and imposes an "unauthorized" sentence when it erroneously stays or fails to stay execution of sentence under section 654 and therefore a claim of error under section 654 is nonwaivable." (People v. Le (2006) 136 Cal.App.4th 925, 931, quoting People v. Scott, supra, 9 Cal.4th at p. 354, fn. 17.)
In any event, we reject all of these sentencing contentions on the merits.
B. Dual use of sentencing factors
The trial court articulated multiple factors in imposing consecutive sentences; that the objectives of the torture and kidnapping offenses were predominantly independent (Cal. Rules of Court, rule 4.425(a)(1)); that the incident involved separate acts of violence (Cal. Rules of Court, rule 4.425(a)(2); and the brutality of the crime. The crime of torture has two elements: (1) infliction of great bodily injury on another and (2) the specific intent to cause cruel or extreme pain and suffering for revenge, extortion or any sadistic purpose. (People v. Burton (2006) 143 Cal.App.4th 447, 451-452.) Because "an element of the crime may not be used to impose consecutive sentences" (Cal. Rules of Court, rule 4.425(b)(3)), brutality, which established the second element of torture, was improperly considered in imposing consecutive sentences.
But the trial court also found that the offenses were predominantly independent of each other and involved separate acts of violence. (Cal. Rules of Court, rule 4.425(a)(1) & (2).) Even one aggravating factor is sufficient to impose consecutive sentences. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Although brutality was improperly considered, dual use does not require resentencing if it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error. (Id. at p. 728.) In light of appellants history of abusing Maria and the heinousness of the charged offenses, it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.
C. Sufficiency of evidence of independent multiple objectives
In sentencing on counts 1 and 2 consecutively, rather than staying either under section 654, the trial court found that appellant harbored independent multiple objectives in committing the kidnapping for robbery and torture offenses. Appellant contends that there was insufficient evidence of multiple objectives, as there was no evidence appellant "harbored any intention other than causing sufficient harm to scare [Maria] into taking him back as her protector."
Section 654 provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a), italics added.) It was "intended to ensure that defendant is punished `commensurate with his culpability[.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.) A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) "If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551.) If, on the other hand, the "[defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.) Section 654 turns on the defendants objectives in violating both provisions, not the Legislatures purpose in enacting them. (People v. Britt (2004) 32 Cal.4th 944, 952.)
Whether multiple convictions were part of an indivisible transaction is primarily a question of fact for the trial court and will be upheld on appeal if it is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We consider the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Holly (1976) 62 Cal.App.3d 797, 803). We must determine whether the violations were a means toward the objective of commission of the other. (See People v. Beamon, supra, 8 Cal.3d at p. 639.)
Appellant hopes that by defining his objective broadly as "causing sufficient harm to scare Maria into taking him back as her protector," he can encompass within one objective both counts 1 and 2. He argues that the assault on Maria constituted both the force and fear element of robbery and the pain-causing and great bodily injury elements of torture. But virtually any two offenses can be viewed to be within a stated objective, if the objective is stated broadly enough. (See, i.e., People v. Perez, supra, 23 Cal.3d at p. 552 [objective of sexual gratification "is much too broad and amorphous to determine the applicability of section 654"].) Close examination of the facts here convinces us that there is sufficient evidence of multiple objectives.
As discussed in detail in part II, ante, appellant desired both to obtain money from Maria that he claimed was owed to him and physically abuse her, as he had done in the past. The beating was entirely gratuitous. It went beyond that necessary for the robbery, did not assist in the robbery and was inflicted, in part, after the robbery was concluded. It simply satisfied appellants objective to retaliate against Maria for leaving him and to induce her to take him back as her protector.
Appellants reliance on People v. Chacon (1995) 37 Cal.App.4th 52 (Chacon) is misplaced. There, two California Youth Authority inmates, in an escape attempt, broke from a group of wards, ran to a library, and took the librarian hostage. They brutally beat her, stabbed her and threatened to "`kill the bitch" if a truck was not delivered to them. (Id. at p. 58.) One of the two individuals held a shank to her eye and started to count down from 10, resulting in a truck being provided. As they began to drive away, they crashed and were apprehended. The defendants argued that their sentences for aggravated kidnapping, extortion, escape by force, and assault with a deadly weapon constituted impermissible multiple punishment in that all of the crimes were part of the indivisible transaction having a single objective, escape. Our colleagues in Division Six of this District agreed, finding that the acts of violence while atrocious were committed to induce officers to provide the escape vehicle.
Unlike in Chacon, here, there is no evidence that the violence was in service of an overriding robbery objective. While the Court of Appeal in Chacon found that the defendants engaged in the brutality to facilitate their escape, no similar finding is possible here. There is no evidence that the brutal conduct toward Maria was designed to, or indeed did, foster the robbery.
People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191 is instructive. There, during a robbery, "[w]hile Nguyen remained at the stores till, his crime partner took the victim into a back room, relieved him of his valuables, and then forced him to lie on the floor in an obvious attempt to forestall any resistance. Only after the clerk assumed that position did Nguyens accomplice shoot him." (Id. at p. 190.) The trial court found that the offenses were divisible and imposed consecutive sentences on the attempted murder and robbery convictions. The Court of Appeal found this finding to be supported by substantial evidence, and stated: "[G]ratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not `incidental to robbery for purposes of [Penal Code] section 654. [Citations.]"
The assault on Maria can only be viewed as "gratuitous violence against a helpless and unresisting victim." (People v. Nguyen, supra, 204 Cal.App.3d at p. 190.) She was immediately subdued, tied up, placed on the floor with a gun to her head and continuously beaten, humiliated and tortured, even after the robbery was completed. "[W]hen the assault is not a means of perpetrating the robbery but is an act that follows after the robbery is completed the defendant is guilty of two punishable acts." (Neal v. State of California (1960) 55 Cal.2d 11, 19-20.)
D. Apprendi
Appellant contends that under Apprendi, Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham, supra, 549 U.S. 270, the trial courts factual determinations used (1) to impose consecutive sentences, and (2) required by section 654, must be made by the jury, not the trial court, beyond a reasonable doubt. We disagree.
1. Consecutive sentences
Elaborating on the holding in Apprendi, the United States Supreme Court held in Blakely, supra, 542 U.S. 296 concluded that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is, "the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant," must be determined by a jury and proved beyond a reasonable doubt. (Blakely, supra, at p. 303.) Cunningham, supra, 549 U.S. 270, found upper term sentences under Californias determinate sentencing law to be unconstitutional because the "statutory maximum" was presumed in section 1170, subdivision (b) to be the midterm. Aggravating factual findings required to impose the upper term increase the statutory maximum. (Cunningham, supra, at p. __ .)
As conceded by appellant, People v. Black (2007) 41 Cal.4th 799 (Black) held that imposition of consecutive sentences is not impacted by the Apprendi line of cases and hence does not violate the Sixth Amendment. Black reasoned that the analytical underpinning of those cases is that a crime, together with either a related sentence enhancement or a factual prerequisite to eligibility for a greater punishment, must be considered as the functional equivalent of a single greater crime. (Black, supra, at p. 823; see also People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) That analysis is inapplicable to a trial courts decision to require that sentences on two or more offenses be served consecutively because the jurys verdict authorizes the statutory maximum sentence for each offense for which the defendant has been convicted consecutively. It is not making a finding that is the functional equivalent of increasing the punishment for a crime beyond the statutory maximum. Whether to impose consecutive sentences is a "`sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense . . . ." (Black, supra, at p. 823.) We are, of course, bound to follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. Section 654
The foregoing reasoning in Black is equally applicable to determinations under section 654. It, too, is a determination of how "two or more sentences should be served" (Black, supra, 41 Cal.4th at p. 823) and is therefore a "`sentencing decision [] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum on each offense and does not `implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense." (Ibid.) Nothing in Blakely or Cunningham undermines this conclusion.
The majority opinion in People v. Cleveland (2001) 87 Cal.App.4th 263, lends support to it. It concluded that section 654 is not a sentencing enhancement as involved in the Apprendi line of cases, but a sentencing "`reduction" statute. It "is a discretionary benefit provided by the Legislature to apply in those limited situations where ones culpability is less than the statutory penalty for ones crimes. Thus, when section 654 is found to apply, it effectively `reduces the total sentence otherwise authorized by the jurys verdict. The rule of Apprendi, however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jurys verdict." (People v. Cleveland, supra, at p. 270.)
DISPOSITION
The judgment is affirmed.
We concur:
DOI TODD, J.
CHAVEZ, J.