Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04WF0551, M. Marc Kelly, Judge.
Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County. Petition denied.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Robert James Goliath was sentenced to two consecutive life terms in prison with the possibility of parole after he pleaded guilty to 17 counts, including kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)) and kidnapping during the commission of a carjacking (§ 209.5, subd. (a)). Despite submitting briefs of prodigious size in this consolidated appeal and petition for writ of habeas corpus, Goliath’s multiple contentions related to the validity of his plea are all felled by a single stone - section 1237.5, which requires an appellant who pleaded guilty to obtain a certificate of probable cause from the trial court before attacking the legality of the judgment of conviction against him. Goliath’s other assertions, which pertain to the validity of his sentence, lack substantive merit except for Goliath’s claim he was awarded insufficient presentence conduct credits. We affirm the judgment as modified to reflect the appropriate number of presentence conduct credits and deny Goliath’s petition for writ of habeas corpus.
All statutory references are to the Penal Code unless referenced otherwise.
FACTS
A March 2004 felony complaint charged then 17-year-old Goliath with 11 counts. The first five counts related to an incident on or about October 17, 2003, involving victim Philip Kurniawan: count 1 - kidnapping to commit robbery (§ 209, subd. (b)(1)); count 2 - kidnapping during commission of carjacking (§ 209.5, subd. (a)); count 3 - kidnapping (§ 207, subd. (a)); count 4 - second degree robbery of personal property (§§ 211, 212.5, subd. (c)); and count 5 - carjacking (§ 215, subd. (a)). Two counts related to separate thefts of his father’s firearms (§ 487, subd. (d)(2)): count 6 - a September 23, 2003 theft of “the firearm of John G.”; and count 11 - a September 18, 2003 theft of “the firearm of John G.” Four more counts arose out of an October 26, 2003 incident: count 7 - second degree vehicle burglary (§§ 459, 460, subd. (b)); count 8 - attempted unlawful taking of a vehicle (§ 664; Veh. Code, § 10851, subd. (a)); count 9 - possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and count 10 - possession of burglary tools (§ 466). The complaint further alleged as to counts 1 through 5 that, pursuant to section 12022, subdivision (b)(1), Goliath personally used a knife, a dangerous and deadly weapon, in the commission and attempted commission of the offenses.
A conditional examination of Kurniawan, who intended to return to his home in Indonesia, occurred on August 12, 2004. Kurniawan testified he was accosted at knifepoint by Goliath at approximately 2:00 a.m. During the initial encounter, Goliath also warned Kurniawan that a nearby friend of Goliath had a gun. Goliath took Kurniawan’s car keys and told Kurniawan to get into the car. Goliath demanded Kurniawan relinquish his watches, glasses, wallet, belt, and shirt. Goliath and his friend, Fidel Sanchez, locked Kurniawan in his own car trunk. Goliath later asked for Kurniawan’s bank card personal identification number. At some point, Sanchez threw a hamburger and water into the trunk and said “for you.” Sometime in the morning, Goliath told Kurniawan to take the rest of his clothes off (allowing him only to keep his underwear on) and taped Kurniawan’s wrists and mouth. Eventually, Goliath abandoned the car and Kurniawan escaped from the trunk on his own by finding an interior latch. Kurniawan was kept in the trunk approximately eight hours.
The preliminary examination was held on September 24, 2004. Various law enforcement officers testified to what their investigations uncovered of the various crimes alleged against Goliath. The officer testifying with regard to the kidnapping and robbery of Kurniawan testified Kurniawan told him “the suspect brandished a knife” in the course of the crime. Despite this testimony, the magistrate found “there’s no evidence to sustain the conduct enhancement as to [the first five counts] regarding the personal use of a deadly weapon, a knife” and therefore struck the charged enhancement. The magistrate made this finding after defense counsel argued he did not recall the officer testifying to the use of a knife and the prosecutor stated he thought he heard such testimony but it was possible he forgot to ask about the knife.
The information, filed in October 2004, accused Goliath of the same 11 counts alleged in the complaint. The information did not include an enhancement allegation as to the use of a deadly weapon. Goliath pleaded not guilty to all counts.
In July 2005, the first amended information was filed, without apparent objection by Goliath. The first amended information included six new counts; one count for each firearm allegedly stolen from Goliath’s father on September 18 and September 23, 2003 (eight total weapons and eight total counts). The first amended information also included a conduct enhancement with regard to the five counts pertaining to victim Kurniawan: Goliath personally used a knife, a dangerous and deadly weapon, pursuant to section 12022, subdivision (b)(1). Goliath pleaded not guilty to all counts.
In May 2007, the court, in the interests of ensuring a fair trial to Goliath on all counts, granted Goliath’s motion to sever the counts relating to the events of October 17, 2003 (the robbery and kidnapping of Kurniawan) from the remaining counts.
Goliath then filed an advisement and waiver of rights for a felony guilty plea and entered his guilty plea as to all counts and enhancements in the first amended information. The defense strategy was to request the court to sentence Goliath to probation on the most serious counts (based on the kidnapping, carjacking, and robbery of Kurniawan) and sentence Goliath to the maximum term available on the determinate counts. In essence, Goliath threw himself on the mercy of the court, citing his age at the time of the offenses (16), the abuse he suffered as a child, and his addiction problems as mitigating factors for his conduct.
In declarations submitted to this court as part of Goliath’s habeas corpus petition, Goliath’s trial counsel emphasized they thought “Goliath had no chance of prevailing at trial on the kidnapping charges. With this in mind, it became our goal to prevent Mr. Goliath from receiving a life sentence. Considering the conduct involved with the charges, a straight probation sentence was clearly out of the question. Thus, we focused on finding a way to give the judge a sentencing option of a determinate number of years in state prison rather than a life sentence.” To this end, trial counsel successfully moved to sever the Kurniawan charges from the remainder of the charges, then advocated to find a “way to give the judge a high enough determinate prison sentence that he would not feel compelled to sentence Mr. Goliath to life in prison on the kidnapping charges. It was our assessment that the best way to accomplish this goal was to plead guilty to all of the charges, waive the merger doctrine (Penal Code § 654) and, if necessary, waive pre-sentence credits.”
Before accepting Goliath’s plea, the court emphasized there were “no promises as to what... the court will do in terms of sentencing. And I indicated to you there is a very strong, realistic possibility that you could be spending the rest of your life in prison, based on the nature of these charges and based on your guilty plea.” The court also confirmed defendant was pleading guilty to a separate felony (possession of a hypodermic syringe at county jail) and misdemeanor (damaging property at the county jail) relating to conduct occurring after his confinement; the court indicated these circumstances were “not very impressive or persuasive to me.”
Goliath specifically waived his rights under section 654. Goliath also specifically waived his rights to presentence custody and conduct credits. The court explained on the record defendant’s strategy: “The defense wants to try to obviously avoid a life sentence on this case, and they are willing... to waive any conduct credits, waive any 654 sentencing issues, in order to get a higher determinate term....”
Goliath, in his own handwriting, provided the following factual basis for his guilty plea: “In Orange County, California, on September 23, 2003, I unlawfully stole five (5) firearms from John G. with intent to permanently deprive. Also in Orange County on September 18, 2003, I stole three (3) firearms from John G. with intent to permanently deprive. Also in Orange County on October 26, 2003, I unlawfully entered a locked motor vehicle which was the property of Josephine H. with intent to commit larceny.”
“In Orange County, California, on [October 17, 2003, ] I did unlawfully kidnap and carry away P. Kurniawan to commit robbery, and during the commission of and to facilitate a carjacking did unlawfully kidnap P. Kurniawan who was not a princip[al] in the commission of the carjacking, and by instilling fear did forcibly and unlawfully steal, take, hold, detain and arrest P. Kurniawan, and did unlawfully take P. Kurniawan into another county or part of Orange County, and did unlawfully by means of force and fear take the personal property against the will of and from the person, possession or immediate presence of P. Kurniawan, ” “and did feloniously and unlawfully take a motor vehicle against the will of and from the person, possession and immediate presence of P. Kurniawan, who was the driver of the motor vehicle, with the intent to temporarily or permanently deprive P. Kurniawan of possession. I personally used a knife, a dangerous and deadly weapon, in the commission of these offenses.”
“In Orange County, California, on October 26, 2003, I... attempted to take and drive someone else’s vehicle without that vehicle owner’s consent. I also possessed burglary tools (pieces of a porcelain spark plug) with the intent to break and enter a vehicle. On that same day I also possessed a usable amount of methamphetamine, a controlled substance.”
The court rejected Goliath’s plea for leniency. With regard to a factual dispute as to Goliath’s conduct toward Kurniawan, the court found Fidel Sanchez (not Goliath) had provided the hamburger for Kurniawan and Goliath had made a statement during the kidnapping that they should let Kurniawan die. The court found all of Goliath’s conduct on the night of Kurniawan’s kidnapping to be “too much” to exercise leniency. The court also cited Goliath’s criminal history and failure to comport himself in jail. The court noted: “[L]egally I think there was an issue whether I can even [sentence Goliath to probation on the Kurniawan counts], but I strongly considered it. I do not think there [are] any cases on point because they contradict each other.”
The court sentenced Goliath to two consecutive life terms for counts 1 and 2. “It appears to the court that [counts 1 and 2 were independent of one another]. The crimes involved separate acts of violence and threats of violence. There is one act to kidnap Mr. Kurniawan and take his possessions and rob him.... It was a completely different and separate act to take his car as well and car jack him and commit that kidnapping throwing him in the trunk of his own car. [¶] I realize that it happened at the same time, the same proximity, but in my eyes they’re completely separate acts of violence.” The court then explained Goliath must serve a minimum of seven years before parole eligibility on each count, thus resulting in a total minimum of 14 years in prison before parole eligibility. The court noted defendant was entitled to 1, 812 days of presentence credit for time served (approximately 5 years), thus reducing his minimum prison time before parole eligibility to nine years.
The court struck the section 12022, subdivision (b)(1), deadly weapon enhancements for the purposes of sentencing. The court stayed execution of sentence on counts 3, 4, and 5 pursuant to section 654. As to counts 6, 7, 9, and 11, the court sentenced Goliath to the midterm of two years and ran such sentences concurrent to the life sentences. As to count 8, the court sentenced Goliath to the midterm of one year and ran such sentence concurrent to the life sentences. As to count 10 (a misdemeanor), the court suspended imposition of sentence. And as to counts 12 through 17, the court stayed execution of sentence pursuant to section 654.
DISCUSSION
Goliath makes the following arguments in his appellate and habeas briefs: (1) the sentence enhancements for using a knife must be stricken because the court improperly allowed the prosecutor to amend the information to allege such enhancements notwithstanding contrary factual findings by the magistrate; (2) Goliath’s convictions for simple kidnapping and carjacking are improper because such counts are lesser included offenses of other counts; (3) seven convictions for grand theft of firearms (§ 487) must be reversed because the amended information alleged a single offense eight times; (4) Goliath’s two consecutive life sentences should be reduced to a single life sentence pursuant to section 654; (5) even if two life sentences were proper under section 654, the court abused its discretion by imposing such sentences consecutively rather than concurrently; and (6) the court erroneously denied Goliath presentence conduct credits.
Certificate of Probable Cause
The People contend at least some of Goliath’s arguments are foreclosed by section 1237.5, which precludes appeal of convictions by a defendant who pleaded guilty absent the procurement of a certificate of probable cause from the trial court. Goliath did not obtain such certificate, but instead claims it was unnecessary to obtain the certificate to appeal the particular issues he has raised. Goliath’s notice of appeal states his appeal “goes to matters after entry of his plea only and does not challenge the validity of the plea; therefore, no certificate of probable cause is necessary.”
“No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty... except where both of the following are met: (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.” (§ 1237.5.) “A defendant who challenges the validity of such a plea on the ground that trial counsel rendered ineffective assistance in advice regarding the plea may not circumvent the requirements of section 1237.5 by seeking a writ of habeas corpus.” (In re Chavez (2003) 30 Cal.4th 643, 651.)
“The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.” (People v. Panizzon (1996) 13 Cal.4th 68, 75 (Panizzon).)
“The defendant need not comply with [the certificate of probable cause requirements] if the notice of appeal states that the appeal is based on:” “(B) Grounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B).) “In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (Panizzon, supra, 13 Cal.4th at p. 76.) In this case, defendant did not negotiate a particular sentence as part of his guilty plea. Goliath simply pleaded guilty to all counts and threw himself on the mercy of the court. Thus, if the “challenge is in substance more to the propriety or legality of the sentence than the plea, ” no certificate of probable cause is required. (People v. Corban (2006) 138 Cal.App.4th 1111, 1117.)
Accordingly, we shall reach the merits of each of Goliath’s appellate issues only if the particular issue is appropriately raised without a certificate of probable cause.
Sentencing Enhancement Convictions
Even though the court struck the punishment for Goliath’s section 12022, subdivision (b)(1) enhancements, Goliath challenges his conviction for these enhancements. Goliath claims the magistrate’s “factual finding” (there was no evidence supporting the enhancements provided at the preliminary hearing) should have precluded the court from allowing the amended information to include charges under section 12022, subdivision (b)(1).
Goliath’s contention cannot be considered on the merits because he failed to obtain a certificate of probable cause from the trial court. (§ 1237.5.) Goliath pleaded guilty to the section 12022, subdivision (b)(1) enhancements and cannot be heard to challenge such convictions without complying with section 1237.5.
Goliath insists he is excused from section 1237.5 because this issue is “jurisdictional.” A judgment rendered by a court wholly lacking jurisdiction is void and may be challenged at any time. (In re Harris (1993) 5 Cal.4th 813, 836.) But Goliath offers no authority for the proposition that the court lacked jurisdiction over Goliath in relation to the charges at issue - personal use of deadly weapon enhancement allegations in relation to counts Goliath had been ordered to answer to by the magistrate.
Even if this appeal is proper (or if we were to entertain the merits of this argument via Goliath’s claim of ineffective assistance of counsel), the court did not err in allowing amendment of the information to charge Goliath with personally using a knife during the course of committing counts 1 through 5.
Under certain circumstances, a trial court can allow amendment of an information. “The court in which an action is pending may order or permit an amendment of an... information... for any defect or insufficiency, at any state of the proceedings, or if the defect in an... information be one that cannot be remedied by amendment, may order... a new information to be filed.... [A]n information [cannot be amended] so as to charge an offense not shown by the evidence taken at the preliminary examination.” (§ 1009; See also Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665 (Jones) [in addition to being shown by evidence at preliminary examination, offense must also arise out of the transaction that was the basis for commitment on a related offense].)
Here, the amendment consisted of adding enhancement allegations which arose out of the transaction (the robbery and kidnapping of Kurniawan) that was the basis for commitment on the first five counts, and evidence of the knife was presented at the preliminary hearing (notwithstanding the court’s contrary finding).
As Goliath notes, there is an additional barrier to amendment of an information: “if the factual findings made by the magistrate are ‘fatal to the asserted conclusion that a particular offense was committed, ’ that offense may not be included in the information.” (Walker v. Superior Court (1980) 107 Cal.App.3d 884, 889.)
But the magistrate’s finding that there was no evidence to support the enhancement was a legal finding rather than a factual finding. (See People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20-21 [magistrate’s ruling that evidence supporting several counts was insufficient as a matter of law was legal finding rather than factual finding].) Legal findings by the magistrate as to the sufficiency of the evidence can subsequently be contradicted by an information if there actually was sufficient evidence presented at the preliminary hearing to support the enhancements charged. (Jones, supra, 4 Cal.3d at p. 666 [“Although the district attorney may... challenge the magistrate’s ultimate finding that the evidence is legally insufficient to show that the charged offense or offenses occurred, that challenge must be made within the context of the magistrate’s findings on the evidence”].)
This was not a factual finding by the magistrate. An example of a factual finding by a magistrate occurred in Jones, where the magistrate specifically found the victim consented to sexual intercourse with the defendants and no sodomy or oral copulation occurred. (Jones, supra, 4 Cal.3d at p. 666.) The magistrate believed testimony of the defendants and disbelieved the testimony of the alleged victim. (Id. at pp. 663-664.) Thus, the prosecution could not file an information including charges inconsistent with the magistrate’s factual findings. (Id. at p. 668.) The magistrate in the case before us did not find Goliath did not use a knife; the magistrate found there was insufficient evidence as a matter of law to support a finding Goliath used a knife.
Convictions for Simple Kidnapping and Carjacking
Goliath next correctly explains that two of his convictions, simple kidnapping (count 3) and carjacking (count 5), are necessarily included offenses of counts 1 and 2. (People v. Lewis (2008) 43 Cal.4th 415, 518 [“simple kidnapping is a necessarily included offense of kidnapping to commit robbery”]; People v. Contreras (1997) 55 Cal.App.4th 760, 762 [carjacking is lesser included offense within crime of kidnapping to facilitate carjacking].) “[M]ultiple convictions may not be based on necessarily included offenses arising out of a single act or course of conduct.” (People v. Lewis, supra, 43 Cal.4th at p. 518.)
Again, however, Goliath’s failure to obtain a certificate of probable cause precludes the assertion of this argument on appeal. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098 [calling for strict application of section 1237.5].) A defendant who pleads guilty to an offense cannot challenge a conviction based on the guilty plea without first obtaining a certificate of probable cause. (People v. Jones (1995) 33 Cal.App.4th 1087, 1088-1090, 1093-1094 [defendant could not challenge duplicative convictions for burglary and receiving stolen goods without certificate of probable cause]; People v. Valenzuela (1993) 14 Cal.App.4th 837, 840 [appellate court cannot address validity of lesser included offense argument in absence of certificate of probable cause].) Goliath intentionally pleaded guilty to all counts alleged in the amended information with the intention of trying to avoid the imposition of a life sentence. The court’s sentencing decision did not vindicate Goliath’s strategy, but Goliath’s failure to achieve his desired sentence does not undermine his guilty plea.
Goliath claims he is challenging his sentence and is entitled to appeal sentencing issues without regard to a certificate of probable cause. (See People v. French (2008) 43 Cal.4th 36, 43-45; People v. Buttram (2003) 30 Cal.4th 773, 776-777.) Goliath correctly notes trial courts should strike lesser included offenses after a jury trial when presented with redundant guilty verdicts of both the greater offense and lesser included offenses. But a guilty plea is not a jury verdict. “A defendant suffers a conviction when he or she pleads guilty.” (People v. Jones, supra, 33 Cal.App.4th at p. 1093.) Absent a certificate of probable cause, we need not explore the propriety of Goliath’s plea. Given Goliath’s guilty plea to all counts, the court properly sentenced Goliath by applying section 654 to counts that were actually lesser included offenses.
Eight Convictions For Thefts of Firearms From Father
In connection with his guilty plea, Goliath admitted he stole eight firearms from his father - three on September 18 and five on September 23. The original information charged Goliath with two counts of grand theft (§ 487) based on the theft of firearms, one count for each day. The amended information to which Goliath pleaded guilty included a separate count for each firearm. Even though the court ran the sentences on two counts concurrently and stayed execution of sentence pursuant to section 654 with regard to the remaining six counts, Goliath asserts error as to seven of his eight convictions because all eight counts supposedly reflect only a single violation of section 487.
Again, Goliath’s argument goes to the validity of his guilty plea and is therefore barred by section 1237.5. Goliath once more claims that because he did not negotiate a specific sentence when he pleaded guilty, this is, in reality, a sentencing issue rather than a plea validity issue. But Goliath can hardly be said to be challenging his sentence. He points to no error with regard to the court’s determination of Goliath’s sentence based on Goliath’s guilty plea to all eight counts of grand theft. Although his framing of the issue attempts to suggest otherwise, Goliath’s argument is that he should not have been allowed to plead guilty to eight counts of grand theft.
Consecutive Life Sentences
Goliath next argues the court erred when it sentenced him to two consecutive life sentences based on his kidnapping, robbery, and carjacking of Kurniawan rather than staying execution of one of the life sentences pursuant to section 654. This argument is not barred by section 1237.5, as it pertains to the court’s exercise of sentencing discretion. And we reject any contention Goliath waived or forfeited his right to be properly sentenced. “[A] court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.” (People v. Hester (2000) 22 Cal.4th 290, 295.) Indeed, despite Goliath’s effort to waive section 654 (as part of a sentencing gimmick proposed to the court), the trial court seemingly did not accept such waiver as it applied section 654 to Goliath’s sentence on other counts.
Goliath pleaded guilty to both kidnapping to commit robbery and kidnapping during the commission of carjacking. “Any person who kidnaps or carries away any individual to commit robbery... shall be punished by imprisonment in the state prison for life with the possibility of parole.” (§ 209, subd. (b)(1).) “Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole.” (§ 209.5, subd. (a).) “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” (§ 207, subd. (a).) Our review of the record discloses no evidence supporting an inference that there were two, temporally distinct kidnappings. Instead, Goliath kidnapped Kurniawan at approximately 2:00 a.m. and Kurniawan freed himself about eight hours later.
Robbery and carjacking are closely related offenses. (See People v. Lopez (2003) 31 Cal.4th 1051, 1059-1062.) “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence... against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a).) Section 215 “shall not be construed to supersede or affect Section 211. However, no defendant may be punished under [Section 215] and Section 211 for the same act which constitutes a violation of both this section and Section 211.” (§ 215, subd. (c).)
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Clearly, section 654 operates to bar multiple punishments of a single, physical act. (Neal v. State of California (1960) 55 Cal.2d 11, 19-21 (Neal) [single act of setting fire to residence cannot be punished as arson and attempted murder].) Section 654 also prohibits multiple punishments for an indivisible course of conduct, even though such conduct violates more than one statute. (People v. Hicks (1993) 6 Cal.4th 784, 789; People v. Latimer (1993) 5 Cal.4th 1203, 1205-1207 (Latimer).)
In Latimer, our Supreme Court reaffirmed on stare decisis grounds that the test first set forth by Justice Traynor in Neal, supra, 55 Cal.2d at page 19: “‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’” (Latimer, supra, 5 Cal.4th at p. 1208.) Applying this rule to the facts before it, Latimer concluded the defendant (who had pleaded guilty to two counts of rape and one count of kidnapping), could not be punished for kidnapping. (Id. at p. 1216.) “Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes. ‘Since the kidnapping was for the purpose of committing the sexual offenses and [defendant] has been punished for each of the sexual offenses, ’ section 654 bars execution of sentence on the kidnapping count.” (Ibid.)
There are limitations to the Neal rule, however. “Decisions since Neal have limited the rule’s application in various ways. Some have narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment. [Citations.] [¶] Other cases have found separate, although sometimes simultaneous, objectives under the facts. [Citations.] Additionally, even Neal itself made clear that crimes of violence against multiple victims were separately punishable.” (Latimer, supra, 5 Cal.4th at pp. 1211-1212.)
A case bearing some resemblance to the facts here is People v. Wiley (1994) 25 Cal.App.4th 159 (Wiley). In Wiley, the defendant attempted to rob a victim at an automated teller machine (ATM), but the machine failed to dispense any money. (Id. at p. 162.) The defendant then forced the man into his car at gunpoint, and compelled him to move the car before trying the drive up ATM again. (Ibid.) Eventually, the defendant forced the victim to call his wife for money to win his release. (Ibid.) The defendant was convicted of (1) kidnapping for robbery for the activities in relation to the ATM; and (2) kidnapping for ransom for detaining the victim by gunpoint while attempting to extort money from his wife. (Ibid.) The appellate court sustained multiple convictions on these counts, but reversed the trial court’s imposition of a second concurrent life term for the second count. (Id. at p. 163.) Wiley reasoned that defendant had only one objective in committing both of the offenses for which he was convicted: obtaining the man’s money illegally. (Ibid.)
The application of section 654 in the instant case to counts 1 through 5 presents an interesting puzzle. Clearly, a kidnapping, a carjacking, and a robbery occurred. The facts support a finding Goliath both carjacked Kurniawan’s vehicle and robbed Kurniawan of other personal property, such as his wallet and clothes. But all three crimes (kidnapping, carjacking, and robbery) occurred during a single course of conduct. Whether Goliath had multiple criminal objectives is a factual question and its resolution will be upheld on appeal if supported by substantial evidence. (People v.Osband (1996) 13 Cal.4th 622, 730.) Is it reasonable to infer Goliath wished to carjack and kidnap Kurniawan for an objective distinct from his objective of kidnapping and robbing Kurniawan? Or is the only reasonable view of the record that Goliath had a single, indivisible objective and motivation for the kidnapping?
As noted previously, the court stayed counts 3, 4, and 5 pursuant to section 654. The five counts at issue are: count 1 - kidnapping to commit robbery (§ 209, subd. (b)(1)); count 2 - kidnapping during commission of carjacking (§ 209.5, subd. (a)); count 3 - kidnapping (§ 207, subd. (a)); count 4 - second degree robbery of personal property (§§ 211, 212.5, subd. (c)); and count 5 - carjacking (§ 215, subd. (a)).
Given the standard of review, we find there is substantial evidence in the record supporting the court’s implied finding that section 654 does not limit counts 1 and 2 to a single punishment. The length of time Kurniawan was kidnapped (for about eight hours) suggests Goliath had an objective separate from mere robbery. Kurniawan was kept locked in his trunk to facilitate the carjacking long after his wallet and other personal items were stolen. Thus, under the court’s view of the available evidence, Goliath’s carjacking was not merely incidental to the robbery; Goliath apparently had a separate objective of carjacking for its own sake. (See People v. Lopez, supra, 31 Cal.4th at p. 1057 [discussing Legislature’s creation of separate crime of carjacking due to “perceived difficulties with obtaining convictions under the robbery statute” because criminals did not necessarily intend to permanently deprive vehicle owners of their cars].)
To the extent our holding is in conflict with Wiley, supra, 25 Cal.App.4th 159, we disagree with Wiley’s broad designation of the criminal objective in that case as obtaining the victim’s money illegally. (Cf. People v. Harrison (1989) 48 Cal.3d 321, 334-338 [multiple sex crimes against single victim during one course of assaultive conduct each have the separate criminal objective for purposes of § 654 analysis of achieving additional sexual gratification].)
Our Supreme Court has specifically warned against defining a criminal objective so broadly as to encompass a string of separate crimes: “Defendant asserts that the trial court properly found that his sole intent and objective was to obtain sexual gratification, and that since the evidence supports this finding, the trial court’s ruling must be upheld. We disagree. Such an intent and objective is much too broad and amorphous to determine the applicability of section 654. Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability” (People v. Perez (1979) 23 Cal.3d 545, 552, fn. omitted.) We decline to find that the court was precluded from finding separate criminal objectives under the facts of this case.
Consecutive Life Sentences Rather Than Concurrent Life Sentences
Goliath next argues the court abused its sentencing discretion when it sentenced him to consecutive rather than concurrent life sentences. “It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively.” (People v. Bradford (1976) 17 Cal.3d 8, 20; see § 669.)
Courts consider the following criteria relating to the crimes at issue when deciding whether to impose consecutive or concurrent sentences: whether “(1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425(a).) Courts also consider other criteria and limitations. “Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.” (Cal. Rules of Court, rule 4.425(b).)
Goliath cites no authority in support of his contention the court abused its discretion, but claims the court’s purported factual basis for its sentencing decision lacked substantial evidence. We disagree. As explained in the previous section, the court could determine the crimes were independent of one another. Multiple explicit and implicit threats of violence occurred throughout the victim’s eight-hour ordeal; Goliath brandished a knife, mentioned his confederate’s firearm, and bound and gagged Kurniawan after the robbery was completed. Goliath’s behavior in county jail since his arrest featured several instances of misconduct. The court acknowledged the crimes took place at the same time, but decided on balance Goliath should be sentenced consecutively. We will not disturb the court’s exercise of sentencing discretion.
Presentence Conduct Credits
Both parties agree Goliath actually accrued and was entitled to 271 days of presentence conduct credit under section 2933.1, which limits persons convicted of violent felonies to 15 percent conduct credit. The court awarded presentence credits of 1, 812 days for actual time served, but did not award any presentence conduct credits, incorrectly stating: “I do not believe the defendant would be entitled to any conduct credits as a result of the indeterminate terms.”
The People assert we should affirm nonetheless. Goliath did not raise the issue at sentencing and actually attempted to waive his right to all presentence credits in order to advance his sentencing strategy as discussed above. But the court did not honor Goliath’s request for a determinate sentence. Instead, the court applied the ordinary rules of sentencing, including section 654 and presentence credits. The court should have awarded presentence conduct credits. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 [“A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered”].)
DISPOSITION
The judgment is affirmed as modified and the petition for writ of habeas corpus is denied. Goliath is awarded 271 days of presentence conduct credit. The trial court is directed to prepare a corrected abstract of judgment showing the award of conduct credit and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.