Opinion
E044199
2-26-2009
THE PEOPLE, Plaintiff and Respondent, v. ZACK SHAWN MARTINEZ, Defendant and Appellant.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Following a jury trial, defendant Zack Shawn Martinez was convicted of first degree murder (Pen. Code, §§ 187, subd. (a), 189; count 1), carjacking (§ 215, subd. (a); count 2), robbery (§ 211; count 3), kidnapping during the commission of carjacking (§ 209.5; count 4), and kidnapping (§ 207, subd. (a); count 5). He was sentenced to 34 years to life in state prison. He appeals, contending: (1) there is insufficient evidence to support the jurys finding that his accomplice died "in perpetration of" the underlying felonies; (2) his convictions for carjacking and kidnapping must be dismissed because they are necessarily included within the kidnapping during a carjacking; (3) there is insufficient evidence to support his robbery conviction; and (4) section 654 applies to stay the sentences on his robbery and kidnapping during the commission of a carjacking conviction.
All further statutory references are to the Penal Code unless otherwise specified.
I. FACTS
In the afternoon of April 28, 2004, Mary Grangaard went to a Wal-Mart store in Hemet with her adult daughter, Janet, and her elderly husband, Darrell Grangaard, Sr. (Victim). Victim was 82 years old and mentally and physically disabled due to a stroke. He used a walker, needed help in order to move around, and was unable to carry on a conversation with other people. While Mary and her daughter went into the store, they left Victim in the backseat with the windows cracked, the keys in the car and the radio playing.
Defendant was with Crystal Rodriguez (Crystal), Nycole Kissling (Nycole), and Ines Corvera (Ines) "hanging out" in the area of McDonalds and Wal-Mart. The four decided to steal a car. Nycole found an unlocked car with the keys in the ignition. She summoned the rest of the group to the car. As defendant and Ines got in the car, Nycole warned them there was a man sitting in the backseat. As defendant started the car to leave, Ines told the girls they would be right back.
Nycole testified that about five to eight minutes later, defendant and Ines returned, but Victim was no longer in the car. They said they had dropped the "old man" off and told him to go knock on a door. The girls got in the car and they drove off. The girls noticed that defendant and Ines were each wearing a gold ring they had not been wearing before. They claimed that they got the rings from the old man and they were going to "cluck" them for drugs. Nycole testified that about 10 minutes after picking up the girls, the group reached Crystals grandmothers house in San Jacinto, where the girls got out. Defendant and Ines left quickly.
Crystal thought they were gone for about 15 minutes. Crystal was interviewed by an officer. A tape of her interview was played for the jury and a transcript of the interview is contained in the clerks file.
In her interview with the police, Crystal said that defendant and Ines both had the rings; however, at trial she claimed that it was just Ines.
Crystal testified that they drove around for half an hour to an hour. However, in her interview with the police, she said that after being picked up, defendant and Ines dropped her and Nycole off at her grandmothers house because defendant had to go see his girlfriend.
Back at Wal-Mart, Mary and her daughter discovered their car was missing. Mary called 911 and her son, Darrell, Jr., at work. The son, who was working at his office in San Jacinto, immediately drove to Wal-Mart. On the way, he saw Marys car being driven on a street not far from Crystals grandmothers house. The son followed the car and a high-speed chase ensued. During the chase, defendant lost control of the car and crashed into a tree. The car was crushed. Defendant survived, but Ines did not. Mary never gave permission to defendant, Ines, Crystal, or Nycole to take her car.
When Victim was not found in the car, the police started searching for him. Later that afternoon, Hemet Police Officer James Waters found Victim lying on the ground in a nearby mobilehome park. He was lying on his side in the sun and was incoherent. He was upset, crying, and was unable to explain what had happened to him, how old he was, or what year it was. Officers returned Victim to his home.
Victim suffered injuries from the incident. He had dark bruising discoloration on his fingers. He was missing two gold rings he had always worn, one on each hand. Because the rings fit tightly, Victim was not able to get them off without using soap and water. The rings were recovered and returned to Victim.
II. SUFFICIENCY OF EVIDENCE OF FELONY MURDER
Defendant contends his conviction for first degree felony murder must be reversed because the underlying felonies were all completed before the car crash that killed Ines.
A. Standard of Review.
"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.] Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hill (1998) 17 Cal.4th 800, 848-849.) In applying this standard to a conviction based primarily on circumstantial evidence, we uphold the jurys verdict if reasonably justified by the circumstances, even if a contrary finding might also reasonably be reconciled with the circumstances. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; People v. Bean (1988) 46 Cal.3d 919, 932.)
B. Analysis.
"Murder committed in the perpetration of certain felonies . . . constitutes murder in the first degree. [Citation.] `"We have required as part of the felony-murder doctrine that the jury find the perpetrator had the specific intent to commit one of the enumerated felonies [in section 189] . . . . [Citations.]" [Citation.] It also is established that the killing need not occur in the midst of the commission of the felony, so long as that felony is not merely incidental to, or an afterthought to, the killing. [Citation.] In addition, a homicide occurs in the perpetration of an enumerated felony for the purpose of the felony-murder rule if both offenses were parts of `"one continuous transaction." [Citation.] `"There is no requirement of a strict `causal [citation] or `temporal [citation] relationship between the `felony and the `murder." [Citation.] In addition, `[c]ircumstantial evidence may provide sufficient support for a felony-murder conviction. [Citations.]" (People v. Prince (2007) 40 Cal.4th 1179, 1259.)
"The continuous-transaction doctrine . . . defines the duration of felony-murder liability, which may extend beyond the termination of the felony itself, provided that the felony and the act resulting in death constitute one continuous transaction. [Citations.]" (People v. Cavitt (2004) 33 Cal.4th 187, 208.) As the People point out, a robbery continues when the defendant carries away the property from the scene until he or she reaches a place of temporary safety. To determine the duration of a robbery, the focus must be on its final element, asportation. (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) The taking of the victims property from his or her immediate presence and possession is not necessarily completed the moment the defendant places his hands upon it. Instead, robbery also includes the element of asportation and appropriation of the property. Thus, defendants escape with the property by means of arms is as important to the execution of the robbery as defendants act of gaining possession of it. (Ibid.; People v. Gomez (2008) 43 Cal.4th 249, 256-257.)
Defendant concedes "there is no requirement that the homicide occur `while committing[] or `while engaged in the underlying felony, or that the killing be `a part of the felony, other than that the two acts be parts of one continuous transaction. . . . [Rather, a] homicide is said to be murder in the first degree when it occurs during a `continuous integrated attempt to successfully escape after the perpetration of the robberies." However, defendant argues that the kidnapping was completed when Victim was dropped off at the mobilehome park, and the carjacking and robbery were both completed when defendant dropped the girls off (at a place of temporary safety), prior to the car crash. Thus, he challenges the sufficiency of the evidence to support his conviction of first degree felony murder.
The People disagree with defendants contentions and argue the evidence amply supports a finding that defendant had not yet reached a place of temporary safety at the time of the car crash. According to Nycoles testimony, roughly 20 minutes had elapsed between the time defendant initially took the car until the crash that killed Ines. Logically, even less time transpired between the time defendant took the gold rings from Victim and the car crashed. During this short time, there is no evidence that either defendant or Ines got out of the car or turned it off. As the People note, there is no evidence that defendant pulled the car into a garage, a parking structure, or concealed the car in any way. As the girls stated, they were dropped off shortly after being picked up. Although Crystal testified at trial that they were driving around for half an hour to an hour, in her prior interview with the police, she said that defendant indicated he was going to drop her and Nycole off at her grandmothers home because he had to see his girlfriend. The People suggest that defendant was rushed because he anticipated a police pursuit and felt the need to quickly find a place of safety.
As the People point out, while defendant claims that 30 minutes or more elapsed, we view the evidence in the light most favorable to the prosecution. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Hatch (2000) 22 Cal.4th 260, 272.)
As further proof of the time line, we note that immediately after the son received a call from Mary, he left his office in San Jacinto. On his way to Hemet, he saw his parents car and began pursuing it. Given the fact that the girls were not in the car at the time of the crash, coupled with Crystals earlier statements to the police, her claim of driving around for half an hour to an hour lacks credibility.
Regardless of defendants subjective belief that he was safe, objectively such belief was unreasonable. "Temporary safety is not tested based on subjective impressions or recklessness of the robber but on an objective measure of safety following the initial taking. [Citation.]" (People v. Haynes (1998) 61 Cal.App.4th 1282, 1292.) We agree with the Peoples observation that "[i]t is objectively reasonable to conclude that safety is not achieved less than 20 minutes after taking a car from a busy store parking lot that had the keys in the ignition and a disabled man in the back seat." This is true especially when defendant returned to the same store parking lot where the carjacking occurred to pick up the girls. A reasonable person would have anticipated a police pursuit and driven as far away from the parking lot as possible.
Defendant nonetheless points out that Victims son did not start a chase from the scene of the carjacking. Instead, the chase began after Crystal and Nycole were dropped off. Thus, defendant claims "[t]here was no hot pursuit or immediate pursuit in this case." Citing People v. Ford (1966) 65 Cal.2d 41, 57, he argues this case is factually similar. We, like the People, disagree. In People v. Ford, approximately four hours had elapsed between the time of the robbery and the time of the shooting of an officer. There was no direct evidence that the defendant was trying to escape the robbery. Instead, the officers pursuit of the defendant had nothing to do with the robbery. Also, the defendant had the opportunity to, and did, spend some of his loot prior to the shooting. Between the robbery and the shooting, the defendant drove aimlessly over a great distance and had won his way to many places of temporary safety. (Id. at pp. 56-57; see People v. Ford (1964) 60 Cal.2d 772, 780-785 [first appeal in case which contains detailed summary of facts].) Thus, defendants reliance on People v. Ford, supra, 65 Cal.2d 41, is misplaced.
The People argue that this case is more similar to People v. Kendrick (1961) 56 Cal.2d 71, 89 and 90. In Kendrick, our states highest court concluded that a killing 48 minutes after the actual taking of the property was within the felony-murder rule. The defendant in Kendrick robbed a market and began driving away on the highway. (Id. at p. 90.) Approximately 48 minutes later, a police officer found defendant and pulled him over. The defendant shot and killed the officer. (Id. at pp. 89-90.) The court observed that "`[r]obbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape . . . with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property. . . ." (Id. at p. 90.) However, the court did further state "The homicide, committed as it was while defendant was in hot flight with the stolen property and in the belief that the officer was about to arrest him for the robbery, falls well within this rule." (Ibid.)
Here, the evidence supports a finding that the car crash occurred within 20 minutes of the carjacking and even less time after the robbery. Victims son received a call from Mary and left his office in San Jacinto. On his way to Hemet, he saw his parents car and began a pursuit. The girls testimonies show that neither defendant nor Ines took their time being with them. Instead, they were picked up and dropped off. Shortly after being dropped off, the girls heard the sirens. This time line, coupled with defendants action of not stopping at the grandmothers house, indicates that defendant had not reached a place of temporary safety. The fact that Victims son began pursuing defendant from a location other than the Wal-Mart parking lot, and approximately 18 minutes after the carjacking, is irrelevant. What is relevant is the fact that when Mary discovered her car was missing, she immediately called 911 and her son, and then a pursuit ensued.
For the above reasons, we reject defendants claim that the evidence fails to support his conviction of first degree felony murder.
III. DEFENDANTS CONVICTIONS OF CARJACKING AND KIDNAPPING
Defendant contends, and the People concede, that his convictions of carjacking and kidnapping, which were stayed by the trial court pursuant to section 654, must be dismissed because they are lesser included offenses within the crime of kidnapping during the commission of carjacking. (People v. Montoya (2004) 33 Cal.4th 1031, 1034 [multiple convictions based on necessarily included offenses are prohibited]; People v. Lopez (1998) 19 Cal.4th 282, 288 ["[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former"]; People v. Reed (2006) 38 Cal.4th 1224, 1229 ["`[O]nly a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding"]; People v. Contreras (1997) 55 Cal.App.4th 760, 765 [carjacking is a lesser included offense within the crime of kidnapping during the commission of carjacking]; and §§ 207, subd. (a), 209.5, subd. (a) [kidnapping during the commission of carjacking cannot be completed without also completing the crime of simple kidnapping].) Accordingly, we must reverse defendants convictions for carjacking (count 2) and kidnapping (count 5). (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.)
IV. SUFFICIENCY OF EVIDENCE OF ROBBERY
Defendant contends there was insufficient evidence to support his conviction of robbery. He points out that the only evidence which linked him to Victims rings was the fact that he was wearing one. He claims this, at best, supports a conviction of receiving stolen property.
A. Standard of Review.
When a conviction is based on circumstantial evidence, we "`must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.] [Citation.] `Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] [Citation.] Where the circumstances reasonably justify the trier of facts findings, a reviewing courts conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgments reversal. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)
B. Analysis.
The trial court instructed the jury with CALJIC No. 9.40 on the charged offense of robbery. Here, the evidence showed that prior to being kidnapped, Victim had been wearing two gold rings. He always wore these rings, one on each hand. After he was found and returned to his home, he was not wearing them. When defendant and Ines picked up the girls, they were each wearing one of Victims rings. The girls were told that defendant and Ines got the rings from Victim and they planned to "cluck" the rings for drugs. Mary testified that the rings fit very tightly on Victims fingers and he could not get them off by himself. He had to use soap and water. When Victim was returned home, he had injuries to his hands, including dark bruising and discoloration on his fingers. The evidence supports the finding that defendant robbed Victim of his rings. Contrary to defendants argument, the fact that the evidence fails to conclusively rule out his proposed alternative scenario under which he might not be guilty of robbery (i.e., that he merely received the stolen rings) does not "render the evidence insufficient to support the [jurys] verdict." (People v. Bolden (2002) 29 Cal.4th 515, 553.)
Specifically, in her interview with the police, Crystal stated that "they" obtained the rings from Victim. Although defendant emphasizes Crystals trial testimony wherein she stated it was Ines who took the rings, we note her trial testimony differed from her statements during the interview. Clearly, given the fact that Ines was deceased, it was advantageous to place the blame on him. However, the jury is vested with being the sole judge of each witnesss credibility. (CALJIC No. 2.20.)
V. SECTION 654
Defendant contends his sentence on count 3 for robbery and count 4 for kidnapping during the commission of carjacking must be stayed under section 654 on the grounds that to support the felony-murder charge, the underlying felonies must be part of one continuous transaction with the car crash.
A. Procedural Background.
At sentencing, the People argued that the sentence on count 3 for robbery and count 4 for kidnapping during the commission of carjacking should not be stayed because defendants objective when he caused the car crash was to flee from his pursuer. According to the prosecutor, this objective was separate and distinct from his objective when he committed the robbery and the kidnapping during the carjacking. Thus, the prosecutor requested consecutive sentences.
Agreeing with the People, the trial court sentenced defendant to 34 years to life in state prison. The court selected count 3 as the principal count and imposed a two-year term. Then it imposed a consecutive term of 25 years to life on count 1, and seven years to life on count 4. As previously noted, the sentences on counts 2 and 5 were stayed.
B. Standard of Review.
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.]" (People v. Deloza (1998) 18 Cal.4th 585, 591.) "Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. [Citation.]" (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) If a 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.) "Whether a course of criminal conduct violating more than one penal statute is committed with a single criminal intent or with multiple criminal objectives is ordinarily a question of fact for the trial court, whose implied finding of multiple criminal intent will be upheld if supported by substantial evidence. [Citations.]" (People v. Green (1988) 200 Cal.App.3d 538, 543-544; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
C. Analysis.
According to the People, when defendant crashed Victims car, his objective was to flee from his pursuer and avoid capture. In contrast, when he committed the underlying felonies, his objective was to take someone elses property. However, defendant argues that if his underlying felonies were still ongoing at the time of the crash, then he must have had the same ongoing objective. Regardless of the position taken by either side, we note this issue has been decided by this court in People v. Boyd (1990) 222 Cal.App.3d 541 (Boyd). In Boyd, we held that when a defendant has been found guilty of murder on a felony-murder theory, section 654 requires that punishment for the underlying felony be stayed. (Boyd, supra, at pp. 575-576.) We explained, in part, that "[the] felony, here robbery, is a statutorily defined element of the crime of felony murder . . . ." (Id. at p. 576.)
Normally, the application of section 654 does not turn on whether the two crimes have shared overlapping elements, as Boyd seemed to think; it turns on the defendants intent and objective in committing each of the two crimes, which Boyd failed to discuss. Arguably, even when a murder is committed "in the perpetration of" a robbery, the robbery and the murder are not necessarily committed with the same intent and objective. For example, the defendant could accost and rob an apparent stranger, only to discover, midway through the robbery, that the stranger is actually a rival gang member he has sworn to kill.
On occasion, the California Supreme Court has held that the trial court violated section 654 by punishing the defendant for both felony murder and the underlying felony; however, it is not at all clear that it did so as a matter of law, rather than as a matter of fact in the particular case. (E.g., People v. Meredith (1981) 29 Cal.3d 682, 696 ["[t]he evidence reveals a single course of conduct with one objective"].) Nonetheless, if stare decisis means anything, it means "`that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices." (Trope v. Katz (1995) 11 Cal.4th 274, 288, quoting Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 296.)
Here, the jury was allowed to find defendant guilty of first degree murder on a felony-murder theory. Under these circumstances, we believe Boyd is controlling. (See People v. Mulqueen (1970) 9 Cal.App.3d 532, 540, 547 [sentence on underlying robbery had to be stayed because "the act of robbery was the act which made the homicide first degree murder"].) Accordingly, we will modify the judgment by staying execution of the terms imposed on counts 3 and 4.
VI. DISPOSITION
The judgment is modified by (1) reversing defendants convictions on count 2 for carjacking and count 5 for kidnapping and dismissing the charges, and (2) staying execution of the sentences on counts 3 and 4. The trial court is directed to prepare an amended abstract of judgment that reflects the modified judgment and forward a copy to the Department of Rehabilitation and Corrections. As so modified, the judgment is affirmed.
We concur:
RAMIREZ, P.J.
GAUT, J.