Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA070063David S. Milton, Judge.
Jonathan P. Milberg, 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, Steve E. Mercer and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Dao Lan Ong appeals from the judgment entered after a jury convicted him of numerous counts of robbery, kidnapping and related charges stemming from his conduct over a three-week period in 2007. On appeal, Ong does not challenge the sufficiency of the evidence to support his convictions, but asserts that the trial court made several sentencing errors. We conclude that some, but not all, of Ong’s contentions are meritorious. We, therefore, modify the judgment to stay execution of Ong’s sentence on counts 6 and 18 for first degree robbery and count 22 for possession of ammunition by a felon. As so modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information, dated April 10, 2008, charged Ong with four counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1) ; counts 8, 9, 19 and 20); two counts of first degree robbery (§ 211; counts 6 and 18); three counts of second degree robbery (§ 211; counts 14, 15 and 17); attempted second degree robbery (§§ 211, 664; count 7); carjacking (§ 215, subd. (a); count 16); possession of a firearm by a felon (§ 12021, subd. (a)(1); count 21); possession of ammunition by a felon (§ 12316, subd. (b)(1); count 22); and dissuading a witness (§ 136.1, subd. (c)(1); count 23). As to counts 6 through 9 and 14 through 20, the information specially alleged that Ong personally used a firearm in committing the offenses (§ 12022.53, subd. (b)).
Statutory references are to the Penal Code.
Three additional counts of second degree robbery (counts 5, 12 and 13), and two additional counts of kidnapping to commit robbery (counts 10 and 11), were dismissed before trial. Count 1 for kidnapping to commit robbery and count 2 for second degree robbery were dismissed at the close of the People’s case. The jury found Ong not guilty on count 3 for first degree residential robbery and count 4 for first degree residential burglary. None of those counts is at issue in this appeal.
2. The Evidence Presented at Trial
a. Victims Jack Pang and Steven Huynh (counts 14 through 16)
On May 24, 2007, at approximately 2:54 a.m., Ong confronted Jack Pang and Steven Huynh while they were sitting in Pang’s car in front of Huynh’s house in Alhambra. Pointing a gun at Pang and Huynh, Ong demanded their possessions. Pang gave Ong his cellular telephone, watch, wallet and about $1,000. Huynh gave Ong his cellular telephone and wallet. Pang and Huynh exited the car, as ordered by Ong, who threatened them not to call the police. Ong then drove away in Pang’s car. He later called Pang and offered to return the car for $2,500, and that exchange occurred.
b. Victims Pah Yip and Chun Wong (counts 17 through 20 and 23)
On June 2, 2007, at approximately 5:40 a.m., Ong confronted Pah Yip, who was seated in his mother’s car parked at her house in Alhambra. At gunpoint, Ong demanded Yip’s possessions. Yip gave Ong his cellular telephone, wallet and about $1,000. Another individual, Chun Wong, approached the vehicle, and Ong also demanded his possessions at gunpoint. Wong gave Ong his cellular telephone and about $400. Ong then ordered Yip and Wong to drive him to an ATM. At the ATM, Ong and Wong waited in the car while Yip withdrew $400, which he gave to Ong. After returning to Yip’s mother’s house, Ong ordered the victims out of the car. They complied, and Ong drove away. The car was later found nearby and returned to Yip. About a week later, the car disappeared, and Yip received a note from Ong offering to tell him the whereabouts of the car and threatening Yip not to tell the police.
c. Victims Muky Dai and Ka Wing Chan (counts 6 through 9)
On June 12, 2007, at approximately 2:20 a.m., Ong confronted Muky Dai and Ka Wing Chan, while they were standing next to Chan’s car, which was parked outside the apartment building where Dai lived in Alhambra. At gunpoint, Ong demanded that Dai and Chan give him their possessions. Dai denied having any valuables. Chan gave Ong his cellular telephone and wallet containing $150. Ong then ordered Dai and Chan to get into Chan’s car and drive to an ATM. At the ATM, Ong and Dai waited in the car while Chan withdrew $500, which he gave to Ong. Chan drove back to Dai’s apartment building, where Ong got out of the car and ordered the victims to drive away.
d. Ong’s possession of a firearm and ammunition (counts 21 and 22)
On June 16, 2007, using information obtained by victims of the above-described incidents, the police found Ong sitting in a parked car in Monterey Park. Ong had a loaded gun with him, as well as property of the victims. Ong has two prior felony convictions.
3. The Jury’s Verdict and Sentencing
The jury found Ong guilty of (1) two counts of second degree robbery and carjacking based on the confrontation with Pang and Huynh (counts 14 through 16); (2) second degree robbery, first degree robbery, two counts of kidnapping to commit robbery and dissuading a witness based on the confrontation with Yip and Wong (counts 17 through 20 and 23); (3) first degree robbery, attempted second degree robbery and two counts of kidnapping to commit robbery based on the confrontation with Dai and Chan (counts 6 through 9); and (4) possession of a firearm by a felon and possession of ammunition by a felon based on Ong’s contact with police (counts 21 and 22). The jury found true the special allegations of firearm use under section 12022.53, subdivision (b), on counts 6 through 9 and 14 through 20.
The trial court sentenced Ong to an aggregate state prison term of 86 years 8 months to life, consisting of: (1) the upper term of 9 years, plus 10 years for the firearm use enhancement, for the carjacking in count 16; (2) consecutive terms of 1 year 4 months, plus 3 years 4 months for the firearm use enhancements, for the first degree robberies in counts 6 and 18; (3) consecutive terms of 1 year, plus 3 years 4 months for the firearm use enhancements, for the attempted second degree robbery in count 7 and the second degree robberies in counts 14, 15 and 17; (4) consecutive life terms, plus 10 years for the firearm use enhancements, for the kidnappings to commit robbery in counts 8, 9, 19 and 20; and (5) a consecutive term of 1 year for dissuading a witness in count 23. The court imposed concurrent upper terms of 3 years for the possession counts 21 and 22.
DISCUSSION
1. Section 654 Requires Staying Execution of Sentence on Counts 6, 18 and 22
Ong contends that execution of sentence for the robbery convictions in counts 6 and 18 must be stayed because section 654 precludes punishing him for kidnapping to commit robbery and for the ensuing robberies. He also contends that punishing him for possession of a firearm by a felon, as alleged in count 21, and possession of ammunition by a felon, as alleged in count 22, violates section 654’s multiple punishment bar because the ammunition was in the firearm. The People concede that section 654 mandates staying execution of sentence on counts 6, 18 and 22, and we agree.
Under section 654, subdivision (a), “[a]n 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.” “Section 654 [thus] prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. [Citations.] ‘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.’ [Citations.] On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she ‘may be punished for each statutory violation committed in pursuit of each objective’ even though the violations were otherwise part of an indivisible course of conduct. [Citation.] ‘“The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.” [Citation.] “A defendant’s criminal objective is ‘determined from all the circumstances....’”’ [Citation.]” (People v. Sok (2010) 181 Cal.App.4th 88, 99, fn. omitted.)
“When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.” (People v. Miller (1977) 18 Cal.3d 873, 886.) “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 a sentence under section 654.” (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17 (Scott).)
The trial court imposed consecutive terms for the kidnapping to commit robbery of Chan in count 9 and the first degree robbery of Chan in count 6. According to the evidence, Ong kidnapped Chan for the purpose of robbing him at the ATM. Indeed, the People argued that the robbery of Chan was of the first degree because it was committed at an ATM. (See § 212.5, subd. (b) [robbery of person using ATM or immediately after person has used ATM is first degree robbery]). The kidnapping to commit robbery of Chan and the first degree robbery of Chan, therefore, were part of an indivisible course of conduct with a single criminal objective. As a result, section 654 requires staying execution of sentence on the first degree robbery in count 6. (People v. Beamon (1973) 8 Cal.3d 625, 639 [§ 654 requires staying execution of sentence for “that very robbery” for which the defendant kidnapped the victim].)
The trial court also imposed consecutive terms for the kidnapping to commit robbery of Yip in count 20 and the first degree robbery of Yip in count 18. The evidence demonstrates that Ong kidnapped Yip for the purpose of robbing him at the ATM, and the People again argued that the robbery of Yip was of the first degree because it was committed at an ATM. Thus, here too, there is an indivisible course of conduct and a single criminal objective, requiring a stay of execution of sentence on the first degree robbery in count 18. (People v. Beamon, supra, 8 Cal.3d at p. 639.)
Ong also contends that section 654 requires staying execution of his sentence for the attempted second degree robbery of Dai in count 7 and the second degree robbery of Wong in count 17 because he kidnapped those victims, he says, so that he could commit the ATM robberies. We disagree. The attempted second degree robbery of Dai and the second degree robbery of Wong, where Ong demanded their personal property, were complete before the kidnappings. Thus, with respect to the attempted second degree robbery of Dai and the kidnapping of Dai to commit robbery, as well as with respect to the second degree robbery of Wong and the kidnapping of Wong to commit robbery, the evidence supports an implied finding by the court of a divisible course of conduct with dual criminal objectives: Ong’s purpose in committing the attempted second degree robbery of Dai and the second degree robbery of Wong was to obtain their personal property, and his separate purpose in kidnapping them was to commit an additional robbery at the ATMs. Section 654, therefore, does not mandate staying execution of the sentences imposed on counts 7 and 17. (People v. Porter (1987) 194 Cal.App.3d 34, 36-39 [sentences for robbery and kidnapping to commit robbery permissible under § 654 when defendant’s objective in robbing the victim was to obtain personal property and his objective in kidnapping the victim was to commit a second robbery at an ATM].)
A similar analysis applies to counts 21 and 22. According to the evidence, on June 16, 2007, when the police detained Ong, he possessed a loaded firearm. That possession formed the basis of the charges in count 21 for possession of a firearm by a felon and count 22 for possession of ammunition by a felon. Because the evidence supports only the inference that Ong possessed the firearm and the ammunition in an indivisible course of conduct with a single objective, section 654 requires staying execution of sentence on count 22. (People v. Lopez (2004) 119 Cal.App.4th 132, 138 [possession of ammunition sentence stayed under § 654 when ammunition was in the firearm].)
As a result, section 654 requires a stay of execution of the sentences imposed on counts 6, 18 and 22, and Ong’s aggregate state prison term is 77 years 4 months to life.
2. Ong Fails to Demonstrate an Improper Use of Aggravating Factors in Imposition of His Sentence
Ong contends the trial court violated the prohibition against dual use of facts by using the same facts to impose the upper term on count 16 and consecutive terms on numerous other counts, and in enhancing his sentence for firearm use. Ong forfeited this challenge to his sentence by failing to raise it at sentencing. (Scott, supra, 9 Cal.4th at p. 356.)In any case, even if Ong had preserved the challenge for appellate review, it lacks merit.
At sentencing, the trial court found numerous aggravating factors: (1) The crimes involved the threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)); (2) Ong was armed during commission of the crimes (Cal. Rules of Court, rule 4.421(a)(2)); (3) Ong threatened witnesses (Cal. Rules of Cout, rule 4.421(a)(6)); (4) the manner in which the crimes were committed reflected planning and sophistication (Cal. Rules of Court, rule 4.421(a)(8)); (5) the crimes involved attempted or actual taking of great monetary value (Cal. Rules of Court, rule 4.421(a)(9)); (6) Ong engaged in a pattern of violent conduct (Cal. Rules of Court, rule 4.421(b)(1)); and (7) his convictions are numerous and increasingly serious (Cal. Rules of Court, rule 4.421(b)(2)). It found no mitigating factors. Ong does not attack any of the factors relied on by the court as improper. Rather, he argues that an inference of impermissible dual use of facts arises from the court’s failure to specify the precise factor or factors used to justify each sentencing choice. We disagree.
“Although a single factor may be relevant to more than one sentencing choice, such dual or overlapping use is prohibited to some extent.” (Scott, supra, 9 Cal.4th at p. 350.) For example, the trial court “may not impose an upper term by using the fact of any enhancement upon which sentence is imposed....” (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) It also may not “use a fact constituting an element of the offense either to aggravate or to enhance a sentence.” (Scott, at p. 350; Cal. Rules of Court, rule 4.420(d).) And “the court cannot rely on the same fact to impose both the upper term and a consecutive sentence. [Citations.]” (Scott, at p. 350, fn. 12.) Nevertheless, “[o]nly a single aggravating factor is required to impose the upper term (People v. Castellano (1983) 140 Cal.App.3d 608, 614-615), and the same is true of the choice to impose a consecutive sentence (People v. Coulter (1989) 209 Cal.App.3d 506, 516.)” (People v. Osband (1996) 13 Cal.4th 622, 728-729.) In addition, “one relevant and sustainable fact may explain a series of consecutive sentences. [Citations.]” (Scott, at p. 350, fn. 12.) Moreover, reversal of a judgment and a remand for resentencing is not required when a “court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term[, ]” and it is not reasonably probable that the court would not have done so if asked at sentencing. (Osband, at p. 729.)
As noted, the trial court found numerous aggravating factors before imposing sentence. It could have selected among them to impose the upper term on count 16 and made another selection to impose consecutive terms, without relying on Ong’s use of a firearm, which was reflected in imposition of the section 12022.53, subdivision (b), enhancements. Nothing in the record suggests the court would not have made those selections had it been asked at sentencing. Indeed, the court found the aggravating factors warranted imposition of the upper term on count 16 and consecutive terms on other counts. As a result, no basis exists to reverse the judgment and remand for resentencing. (People v. Osband, supra, 13 Cal.4th at p. 729.)
Because Ong does not demonstrate he was prejudiced by the trial court’s failure to specify the aggravating factor or factors used for each sentencing choice, his alternative claim that he received ineffective assistance because his counsel did not object to the sentences imposed lacks merit as well. (People v. Huggins (2006) 38 Cal.4th 175, 205-206.)
DISPOSITION
The judgment is modified to reflect that execution of the sentences imposed on counts 6, 18, and 22 is stayed. As so modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: MALLANO, P. J. CHANEY, J.