Opinion
C041734.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. QUINTON JAMES CHRISTIAN, Defendant and Appellant.
A jury convicted defendant Quinton James Christian of kidnapping to facilitate carjacking (Pen. Code, § 209.5, subd. (a)—count 1), kidnapping (§ 207) as an offense included in the charge of kidnapping to commit robbery (§ 209, subd. (b)(1)—count 2), carjacking (§ 215—count 3), robbery (§ 211—count 4), assault with a semiautomatic firearm (§ 245, subd. (b)—count 5), making criminal threats (§ 422—count 6), felon in possession of a firearm (§ 12021, subd. (a)—count 7), and unlawful taking of a vehicle (Veh. Code, § 10851—count 8).
Undesignated section references are to the Penal Code.
As to counts 1-4, the jury found defendant used a firearm within the meaning of section 12022.53, subdivision (b), and as to counts 5, 6 and 8 that he used a firearm within the meaning of section 12022.5, subdivision (a)(1).
The trial court found defendant had a prior serious felony conviction (§ 422) which constituted a strike (§ 667, subd. (d), § 1170.12, subd. (b)).
Defendant was sentenced to state prison. Defendants sole contention on appeal is that the trial court erred in imposing a subordinate term of 15 years on count 4, the robbery conviction, rather than calculating that term pursuant to the one-third formula required by section 1170.1. The People respond that the sentence on count 4 was properly imposed because that term was the principal determinate term, not a subordinate term. Since there was no consecutive sentencing, neither party is correct. However, because of other sentencing errors, we shall vacate the judgment and remand for resentencing.
The terms imposed on the various counts are set forth in detail in the Discussion.
FACTS
Since the facts are not at issue, they need be set forth only briefly. On November 29, 2001, at Rene Bacas house, Matthew MacDonald smoked marijuana and methamphetamine with defendant, Baca, a friend of MacDonalds named Jerry, Sarah Burns and another girl. MacDonald then drove the group to the store and then to obtain additional methamphetamine for Sarah. At the store, they ran into Jose Uribe, who had been in jail with defendant approximately six weeks earlier. Defendant asked MacDonald if he could give Uribe a ride to Escalon and MacDonald agreed. The group returned to Bacas house. While they were there, defendant showed MacDonald a .45 caliber semiautomatic pistol he called a "cop killer." At some point, defendant, MacDonald, Uribe, Baca and Ms. Burns drove to Escalon, where Uribe got in an argument with his mother. Uribe stated he was going to Oakland to pick up a car and a quarter ounce of crystal. The group headed for Oakland. Defendant requested to drive MacDonalds car several times. Each time McDonald refused. Defendant pointed the .45 caliber semiautomatic at MacDonald and ordered him to stop and get out of the car. Defendant forced MacDonald to get into the trunk of the car and, for the next several hours, Burns drove the car while defendant committed the offenses against MacDonald for which he was convicted.
DISCUSSION
The court sentenced defendant in the following order: Count 1, kidnapping to facilitate carjacking (§ 209.5, subd. (a)), a term of life imprisonment, plus a 10-year enhancement for the firearm use (§ 12022.53, subd. (b)). Count 2, simple kidnapping (§ 207), a term of 15 years (5 years for the base offense plus 10 years for the firearm use), stayed pursuant to section 654. Count 3, carjacking (§ 215), a term of 15 years (5 years for the base offense plus 10 years for the firearm use), stayed pursuant to section 654. Count 6, making criminal threats, a term of 6 years (2 years for the base offense plus 4 years for the firearm use), stayed pursuant to section 654. Count 4, robbery (§ 211), a term of 15 years (5 years for the base offense plus 10 years for the firearm use), that term to run "concurrent." Count 5, assault with a semiautomatic weapon (§ 245, subd. (b)), 16 years (6 years for the base offense plus 10 years for the firearm use), that term to run "concurrent." Count 7, possession of a firearm by a felon (§ 12021, subd. (a)), a term of 2 years, that term to run "concurrent." Count 8, vehicle theft (Veh. Code, § 10851), a term of 6 years (2 years for the base offense plus 4 years for the firearm use), that term to run "concurrent."
The court summed up its sentencing as follows: "So a total term of imprisonment . . . is actually fifteen years which is Count 4, but when it gets to the Department of Corrections a minimum for consideration for parole the Court expects it to be 24 years."
Since defendants contention and the Peoples response thereto are predicated on the mistaken position that the court imposed a consecutive rather than a concurrent term on count 4, there is no issue. Indeed, the following comments made by the court prior to imposing sentence make it utterly clear that it intended the entire determinate sentence to run concurrenly with the indeterminate sentence. After listening to the prosecutors argument for the "maximum possible time that the Court can give," the court stated that an indeterminate term of life with 24 years for parole eligibility "is enough." And rejecting the prosecutors claim that the violent felonies required consecutive sentencing under the "Three Strikes" law, the court found the offenses did not occur on separate occasions, thereby permitting the court to impose concurrent terms. There simply is no reasonable basis for concluding that count 4, or any other count, was to be imposed consecutively.
The 24-year parole eligibility period was apparently calculated by doubling the seven-year minimum (§ 3046) because of the strike and adding 10 years for the firearm use.
However, there were other sentencing errors. Pursuant to section 654, the court stayed the sentences on count 2, kidnapping (§ 207), and count 3, carjacking (§ 215). Counts 2 and 3 are offenses necessarily included in count 1, kidnapping to facilitate carjacking (§ 209.5, subd. (a)), as a conviction under section 209.5, subdivision (a) requires both a kidnapping and a carjacking. (See People v. Contreras (1997) 55 Cal.App.4th 760, 765.) Because a defendant cannot be convicted of both the greater and necessarily included offenses, counts 2 and 3 must be dismissed. (People v. Pearson (1986) 42 Cal.3d 351, 355.) Additionally, the court failed to double the determinate sentences imposed as required under the Three Strikes law.
At the time of the offenses herein, section 209.5, subdivision (a) provided: "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."
Section 207, subdivision (a) provided: "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."
Section 215, subdivision (a) provided: "`Carjacking is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, 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."
DISPOSITION
The judgment is vacated and the matter remanded to the trial court with directions to vacate and dismiss the convictions and sentences imposed on counts 2 and 3. As to the remaining counts, the court is to sentence defendant pursuant to the Three Strikes law.
We concur: BLEASE, Acting P.J. and RAYE, J.