Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCN144768, Marguerite L. Wagner, Judge.
McCONNELL, P. J.
Aaron Marcel Palacios was convicted by a jury of attempted murder (Pen. Code, §§ 187, subd. (a), 664, 189), two counts of kidnapping for robbery (§ 209, subd. (b)(1)), two counts of kidnapping for carjacking (§ 209.5, subd. (a)), and two counts of carjacking (§ 215, subd. (a)). True findings were made that he discharged a firearm and personally inflicted great bodily injury in the commission of the attempted murder, the kidnapping for robbery and the kidnapping for carjacking of victim Brian Jones (§§ 12022.53, subd. (d), 12022.7, subd. (a)). True findings were made that he was armed and personally used a firearm in the kidnapping for robbery (§§ 12022.53, subd. (b), 12022, subd. (a)(1)) and was armed with a firearm in the kidnapping for carjacking of victim Grant Carr (§ 12022, subd. (a)(1)). He was also convicted of robbery in a dwelling involving the personal use of a firearm (§§ 211, 212.5, subd. (a), 12022.53, subd. (b)), robbery involving the personal discharge of a firearm causing great bodily injury (§§ 211, 12022.53, subd. (d), 12022.7, subd. (a)), two aggravated assaults involving the use of a firearm (§ 245, subd. (a)(2)), assault with a deadly weapon involving a knife (§§ 245, subd. (a)(1), 1192.7, subd. (c)(23)), and burglary of a dwelling involving the use of a firearm (§§ 459, 460, 12022, subd. (a)(1)).
All statutory references are to the Penal Code unless otherwise specified.
The indeterminate term imposed by the court consisted of: life with the possibility of parole for the attempted murder; four consecutive life terms with the possibility of parole for the two convictions of kidnapping for robbery and the two convictions of kidnapping for carjacking; and three consecutive 25-year-to-life terms for the section 12022.53, subdivision (d) enhancements for discharging a firearm resulting in great bodily injury. As to the determinate term, the court sentenced Palacios to a total of 14 years four months: 10 years for the section 12022.53, subdivision (b) enhancement for using a firearm during the kidnapping for robbery of Carr; a consecutive 16 month term (one-third of the middle term) for the section 12022.5, subd. (a)(1) firearm use during an assault with a firearm; a consecutive one year term for the use of a firearm during the kidnapping for carjacking; a consecutive one year term (one-third the middle term) for assault with a deadly weapon; a consecutive one year term (one-third the middle term) for assault with a firearm. The court stayed the terms for the remaining offenses and enhancements.
Both the court minutes and abstract of judgment reflect the imposition of a 10-year term for a section 12022.53, subdivision (d) enhancement for the conviction of kidnapping for robbery involving Carr (count 7). The reporter's transcript also indicates the court imposed a 10-year term for a section 12022.53, subdivision (d) enhancement. Palacios, however, was charged and convicted of a section 12022.53, subdivision (b) enhancement on count 7. The minutes and abstract require correction.
Palacios challenges the sufficiency of the evidence to support his convictions and the firearm discharge enhancements, restrictions on closing argument, imposition of multiple punishments for the kidnappings for carjacking and robbery, imposition of multiple gun discharge enhancements, and imposition of consecutive sentences. He also contends imposition of multiple gun discharge enhancements constituted cruel and unusual punishment. The People point out the court failed to calculate the determinate sentence properly and thus failed to select a full-strength principal term.
In our original opinion, we held, among other things, that the court should have stayed two of the three section 12022.53, subdivision (d) enhancements pursuant to section 654. The Supreme Court granted review on this issue and reversed, holding the trial court properly imposed all three enhancements. (People v. Palacios (2007) 41 Cal.4th 720.)
We now conclude the court erred by failing to stay either the kidnapping for robbery or kidnapping for carjacking as to one of the victims, strike the carjacking convictions, and properly calculate the determinate portion of Palacios's sentence. We remand for correction of the sentencing errors. In all other respects, we affirm the judgment.
FACTS
Victim Jones
On May 3, 2002, at approximately 2:00 a.m., Palacios and Shana Dreiling were loitering in a gas station in Chula Vista when Brian Jones arrived to buy gasoline and cigarettes. Jones had just finished working as the shift manager at a nearby fast food restaurant and was wearing his uniform. Dreiling approached Jones and asked him for a ride, which he refused to give her. She then asked for change to make a phone call. He agreed and went to his car and as he was reaching into the car to get change, Palacios came up behind him, told him he had a gun and "to get in the fucking" car. Jones complied.
Dreiling sat in the front passenger seat and Palacios sat in the rear seat. Palacios directed Jones to drive into the east area of Chula Vista and when they reached the parking lot of a golf course, he placed a gun at the back of Jones's head and directed him to stop the car and trade places with Dreiling. When Jones undid his seat belt and started to open the door, Palacios became angry and ordered Jones to climb over the center console into the passenger seat while Dreiling ran around the car to the driver's seat. Palacios asked Jones what kind of vehicle Jones's father drove and then told him to take them to his home where they would drop him off. Jones, afraid that Palacios and Dreiling would break into his family's home, instead directed them to a condominium complex where a friend used to live.
When they reached the condominium complex, Palacios told Dreiling to drive south on Interstate 805. He told Jones he would drop him off in a place where he would not immediately be able to call the police. Palacios gave money to Jones, telling him it was "taxi fare." They exited the freeway near the Mexican border, but Palacios then directed Dreiling to drive north.
Palacios kept telling Jones he was not going to hurt him or damage his car, and he just needed the car to go to Los Angeles to "get away from something." Palacios said he was in trouble for something to do with computers. Palacios seemed a little "proud" of that, noting he had made the local section of the newspaper. Palacios, however, was not satisfied with making only the local section and told Jones to read the newspaper the next day where he would see Palacios's name on the front page. Palacios also bragged about the bullets in the gun, calling them "black rhinos, like armor-piercing bullets."
Dreiling exited the freeway in the Miramar area and drove to a wooded area. Palacios, apparently familiar with the area, directed Dreiling through several turns until they entered a residential neighborhood and arrived at a park. Palacios ordered Jones to get out of the car and follow Dreiling into the park. Palacios, holding a gun, followed Jones, and as they walked down a trail, he kept telling Jones he was not going to shoot or kill him. Palacios asked Jones if he thought he was going to be shot, and when Jones answered, "Yes," Palacios laughed.
Eventually, they reached an area where they were hidden from the view of any homes. Palacios told Jones to take off his clothing, and Jones complied with the exception of his boxer shorts. When a lighter dropped out of Jones's pants pocket, Palacios demanded Jones pick it up but Jones refused, fearful that Palacios would shoot him in the head. Because Jones was shivering, Dreiling returned to him his undershirt and shoes. Palacios ordered Jones to lie down on the ground and count to 100. He told Jones when he was done counting, they would be gone.
When Jones had counted to five or six, Palacios fired the gun, hitting Jones in the triceps area of his right arm. Jones lay motionless, pretending to be dead. After awhile, and when Jones discovered he was alone, he walked to a nearby residence, rang the doorbell, and told the resident he had been shot and his car was stolen. The resident called the police.
The police initially disbelieved Jones's story, accusing him of lying and of being involved in a drug deal that had gone bad.
Jones later received a bank statement indicating his ATM card had been used at a store in Chula Vista for merchandise valued at $4.63.
Victim Carr
Later that morning about 9:00 a.m., Dreiling knocked on the door of Carr and his wife Penelope's residence in Escondido, claiming she was lost and trying to find a street named "Carnitas." Carr walked with Dreiling to a car (Jones's car), which was parked across a portion of the Carr driveway. Palacios was sitting in the car rifling through some papers as if looking for something and suggested to Dreiling, "Why don't we call your grandmother?" Dreiling asked what city they were in. Carr indicated he had a road map and started walking back to his house. As he walked back toward the house, Dreiling asked if she could use the bathroom. Carr agreed but told her to wait a minute while he put his dogs behind a barrier. He locked the door behind him because Dreiling "not knowing which city she was in didn't sound right." He put the dogs behind a barrier and let Dreiling in to use the bathroom.
For clarity, we refer to Penelope by her first name.
While Dreiling was in the bathroom, Penelope, who had been in the shower, asked, "What's up, honey?" Carr, concerned about the situation, told her "Shush. There's a girl in the bathroom. I think it's okay, but take this phone and go into the back bedroom, just in case."
When Dreiling emerged from the bathroom, she pulled a gun out of her purse, pointed it at Carr's head, and said "she would blow [his] fucking brains out all over the carpet." He said loudly, "Oh, no," so Penelope would hear him. Dreiling then started screaming at him to "Get down," "Get down on the floor." Dreiling asked if there was anyone else in the house and Carr answered no. Once Carr was on the floor, Dreiling opened the front door and Palacios entered. Palacios held the gun two or three inches from Carr's head and told him if he moved or caused any trouble Palacios would shoot him. He told Carr the gun had "dumb-dumb bullets," which he called rhino jackets. Palacios asked if there was anybody else in the house. Carr told him his wife lived there but she had left for work. Palacios wanted to know when she would return home. Palacios told Carr that he and Dreiling would hold Carr or Penelope as a hostage while the other was taken to an ATM machine to remove money from their bank account.
Penelope slipped out the back of the house and dialed 911.
Palacios and Dreiling, while holding Carr at gunpoint, ransacked the house. They forced Carr to assist, including by moving items into his and Penelope's cars in the garage. The floor of the residence was strewn with items from boxes and drawers. Carr made at least 11 trips to the car. He was worried they were going to shoot him since Palacios was concerned about leaving fingerprints and stated he was facing a 25-year prison sentence and had nothing to lose.
After Carr had been emptying boxes for about 20 to 30 minutes there was a "fairly loud but muffled" noise, the sound of the police shooting out the tires of Jones's car. Dreiling "freaked out" and Palacios came running. Palacios told Carr, "You're going to get shot," and then marched Carr to the patio door off the master bedroom. Palacios explained if there were police outside who were going to shoot someone, that someone would be Carr. Just before Carr reached the patio door, Palacios yelled at him to stop, and turn around, and the three of them went to the garage. Palacios looked out the windows located at the top of the garage and said, "There's a fucking cop up there." They returned to the patio door where Palacios told Dreiling to hold Carr out of sight. Palacios leaned around the side of the door, spoke to someone, and then returned inside, saying, "There's a whole fucking SWAT team out there. What the hell is going on?" Both Palacios and Dreiling were "very agitated, very scared." Palacios announced to Carr, "You're going to drive us out of here now."
They returned to the garage where Palacios unloaded the back of a Subaru. Palacios and Dreiling screamed and shouted. As soon as Palacios was in the back seat of the Subaru, he screamed at Carr to drive. Carr opened the garage door and started the car. He looked in his rearview mirror, saw Jones's car in the driveway and told Palacios and Dreiling, "Hey, guys, your car is in the way." They both screamed at him to drive. Carr put the car in reverse but then noticed garbage cans across the driveway behind Jones's car.
Suddenly, there was a "pop, pop, pop" as the police shot out the tires of the Subaru. Palacios and Dreiling continued to scream, "Drive." Carr braked, telling them, "No. You're caught. They've got you. You're caught. You're facing a robbery, an armed robbery right now." A large armored car pulled in behind the Subaru. Carr turned off the car. When Dreiling put the gun on the floorboard next to her seat, Carr fled. Because the police at first thought he was one of the suspects, they yelled at Carr to get down and sprayed him with mace. Once the police realized he was a victim, they escorted him to a neighbor's garage.
The police attempted to negotiate Palacios's and Dreiling's surrender. Several hours later at about 3:00 p.m., Dreiling took the gun from the passenger side floorboard and held it to Palacios's head. The police fired into the car, killing Dreiling. Palacios was thereafter removed from the car and arrested.
Defense
Palacios did not testify. He presented expert testimony that Jones's gunshot wound was inconsistent with Jones's version of what occurred; it was more likely the wound was inflicted while Jones was standing with his arm held out to the side. Palacios also presented evidence that no blood or bullet fragments were found at the location where Jones stated the shooting occurred.
DISCUSSION
I
Substantial Evidence Supports the Convictions and Enhancements
Palacios contends the evidence is insufficient to support his convictions for attempted murder, kidnappings for robbery and kidnappings for carjacking and the true findings on the gun discharge enhancements.
" 'The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] [¶] . . . But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt.' " (People v. Sanchez (1998) 62 Cal.App.4th 460, 468, quoting People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139, italics omitted.)
We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Green (1997) 51 Cal.App.4th 1433, 1437.) "Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
(A)
Attempted Murder
Palacios challenges the sufficiency of the evidence to support findings that he intended to kill Jones as well as that he premeditated and deliberated the killing.
An attempted murder requires the jury to find the defendant had the specific intent to kill the victim. (People v. Ramos (1982) 30 Cal.3d 553, 583; People v. Morales (1992) 5 Cal.App.4th 917, 925.) "There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
To convict of attempted first degree murder the jury must also find premeditation and deliberation. (See People v. Herrera (1999) 70 Cal.App.4th 1456, 1462-1463, fn. 8.) " '[P]remeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' " (People v. Mayfield (1997) 14 Cal.4th 668, 767.) " ' " 'Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .' " ' [Citation.] The law does not require that an action be planned for any great period of time in advance." (People v. Rand (1995) 37 Cal.App.4th 999, 1001.)
Categories of evidence that are typically sufficient to sustain a finding of premeditation and deliberation include planning activity, motive, and method. (People v. Anderson (1968) 70 Cal.2d 15, 26-27; People v. Thomas (1992) 2 Cal.4th 489, 516-517.) These categories are " 'intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse.' " (People v. Bolin (1998)18 Cal.4th 297, 331-332.) They represent a "synthesis of prior case law," but "are not a definitive statement of the prerequisites for proving premeditation and deliberation in every case." (People v. Hawkins (1995) 10 Cal.4th 920, 957, overruled on another point in People v. Blakeley (2000) 23 Cal.4th 82, 89.) "[I]t is not necessary that [these] . . . 'factors be present in some special combination or that they be accorded a particular weight.' " (People v. Sanchez (1995) 12 Cal.4th 1, 33; People v. Pride (1992) 3 Cal.4th 195, 247.)
(1) Planning Activity
Evidence of arming shortly before an intended confrontation with the victim, pointing the gun at the victim and firing at close range is evidence tending to show an individual deliberated and planned to kill his victim. (See People v. Caro (1988) 46 Cal.3d 1035, 1050, disapproved on another ground in People v. Bonillas (1989) 48 Cal.3d 757, 797-798, as stated in People v. Whitt (1990) 51 Cal.3d 620, 657, fn. 29; People v. Belmontes (1988) 45 Cal.3d 744, 792; People v. Miranda (1987) 44 Cal.3d 57, 87, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4 [planning found where the defendant brought his loaded gun into a store and shortly thereafter used it to kill an unarmed victim]; People v. Brito (1991) 232 Cal.App.3d 316, 324; People v. Woods (1991) 226 Cal.App.3d 1037, 1049.)
Palacios asserts "all prior planning activity pointed to a robbery of Brian Jones, not an attempted murder." Palacios points to his "expressed intent . . . to give him[self] and his accomplice sufficient time to get to Los Angeles before authorities could be notified." He argues, if he "had intended to kill Brian Jones, he would not have [given] him seventeen dollars for cab fare, told him where to later find his car, had him take off his clothes with the exception of his boxer shorts, returned his T-shirt and shoes when he complained of being cold, and repeatedly assured him that he was not going to kill him." Palacios, however, ignores other evidence and inferences favorable to the judgment.
Contrary to Palacios's contention, the planning activity did not merely point to an attempted robbery. Nor did his repeated statements to Jones during the drive that he would not harm Jones negate a finding of premeditation and deliberation. If Palacios had intended only to rob Jones and to provide himself and Dreiling with a head start before Jones contacted the police, he could have left Jones in an isolated area from which he would have a difficult time contacting the police. Instead, Palacios took Jones to a place that was short distance from a residential area where, if left alive, he could quickly seek help. A reasonable jury could draw an inference Palacios did not plan to leave Jones alive in an area where help was readily available.
Additionally, Palacios forced Jones to undress, giving him only a T-shirt and shoes, thus, stripping Jones of any identification. The lack of identification indicates Palacios intended to kill rather than merely rob Jones. Palacios also required Jones to assume an extremely vulnerable position, lying on the ground, before firing the gun. Finally, Palacios's comments that he was planning criminal activity likely to make the front page of the newspaper supported an inference Palacios was planning a murder.
Based on this evidence, a reasonable jury could conclude Palacios had formed a plan to kill Jones and premeditated and deliberated both where and how to kill him.
(2) Motive
Elimination of a witness to a crime has been recognized as a motive supporting a finding of premeditation and deliberation. (People v. Thomas, supra, 2 Cal.4th at pp. 518-519; People v. Lucero (1988) 44 Cal.3d 1006, 1019; People v. Alcala (1984) 36 Cal.3d 604, 626, superseded by statute on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911.) Alternatively, given Palacios's expressed desire to make the front page, the jury could have believed Palacios was motivated by a desire for notoriety.
(3) Method
Firing a gun at close range where there is no evidence of provocation or struggle, as in this case, has generally been found sufficient to support a finding of an intent to kill and premeditation and deliberation. (See People v. Marks (2003) 31 Cal.4th 197, 230; People v. Hawkins, supra, 10 Cal.4th at p. 956; People v. Bloyd (1987) 43 Cal.3d 333, 348; People v. Crandell (1988) 46 Cal.3d 833, 868, overruled on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) While it is true, as Palacios points out, that he could have, but did not, shot Jones in the back of the head while Jones lay on the ground, it does not necessarily follow that "the evidence suggested only one logical conclusion: [Palacios] aimed for and struck the back of Mr. Jones's arm intentionally."
Conflicting evidence was presented to the jury as to how the gunshot wound was inflicted. There was evidence that if the trajectory had been slightly different, it easily could have been fatal. Moreover, the shooting occurred late at night in a dark location and there was no evidence suggesting Palacios was a particularly good marksman. Under these circumstances, a reasonable jury could conclude the nonfatal nature of the wound was not part of Palacios's plan, but rather was fortuitous.
(B)
Kidnappings for Robbery
Palacios was convicted of kidnapping for robbery of both Jones and Carr. The crime of kidnapping occurs when an individual "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." (§ 207, subd. (a).) Aggravated kidnapping occurs when an individual is kidnapped for certain sexual offenses, robbery, or carjacking. (People v. Martinez (1999) 20 Cal.4th 225, 233; §§ 209, 209.5.) "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.)
To convict a person of kidnapping for robbery, the People must prove the movement of the victim was "beyond that merely incidental to the commission of" the robbery and "increases the risk of harm to the victim over and above that necessarily present in" the robbery. (§ 209, subd. (b)(2).) These requirements " 'are not mutually exclusive, but interrelated.' " (People v. Martinez, supra, 20 Cal.4th at p. 233.) "In determining 'whether the movement is merely incidental to the [underlying] crime . . . the jury considers the "scope and nature" of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.' " (Ibid.) The determination of whether the movement subjected the victim to an increased risk of harm " 'includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased.' " (Ibid.)
(1) Jones
Palacios asserts "[t]here was only one kidnapping in this case" of Jones and argues "[j]ust because one of the items of personal property taken was a motor vehicle does not convert one robbery into two." We disagree.
From the evidence presented at trial, a reasonable jury could conclude that Palacios kidnapped Jones as part of the carjacking and only later formed an intent to rob him of his personal possessions. This evidence included Palacios's directions to Dreiling to drive to the Mexican border, his statements to Jones that he wanted to leave Jones in a place where he would not quickly contact the police and his giving Jones money for cab fare. However, when they reached the border area, Palacios directed Dreiling to drive north. A reasonable jury could conclude Palacios formed a new and separate intent to rob Jones at this point and followed through on that plan by directing Dreiling to a park, forcibly moving Jones a substantial distance from the car to an area where the risk of harm was increased (and, in fact, was realized when Palacios shot Jones) and at that location robbing Jones of his wallet and other personal possessions.
That Palacios continually and forcibly detained Jones from the time of the initial carjacking at the gas station to the time of the shooting in the park does not preclude conviction for both kidnapping for carjacking and kidnapping for robbery since, under California law, generally, an individual may be convicted of multiple offenses based on the same conduct when the individual's conduct violates more than one statute. (See § 954; People v. Wiley (1994) 25 Cal.App.4th 159, 163.)
(2) Carr
Palacios contends the movement of Carr within the confines of the Carr residence was merely incidental to the commission of the underlying robbery and therefore the evidence was insufficient to sustain a conviction of kidnapping for robbery. He relies on People v. Daniels (1969) 71 Cal.2d 1119, 1140, where the Supreme Court stated, "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 — whether it be a residence, as here, or a place of business or other enclosure — his conduct generally will not be deemed to constitute the offense proscribed by section 209 [aggravated kidnapping]."
Other cases have held that moving a victim around a residence does not generally constitute substantial movement. (See People v. Mutch (1971) 4 Cal.3d 389, 397 [movement of victim 30 to 40 feet from one room of the business to another room was incidental to the robbery]; People v. Williams (1970) 2 Cal.3d 894, 902 [movement of victim around gas station premises and forcing victim to load a tool box and other property into a station wagon was incidental to the robbery]; People v. Hoard (2002) 103 Cal.App.4th 599, 607 [movement of victims to office in back of jewelry store was incidental to robbery]; People v. John (1983) 149 Cal.App.3d 798, 805 [movement of victim from outside residence to interior and within interconnected living quarters was incidental to the robbery]; but see People v. Shadden (2001) 93 Cal.App.4th 164, 169 [movement of victim from front of store to back room was not incidental to attempted rape]; People v. Salazar (1995) 33 Cal.App.4th 341, 346-347 [movement of victim from motel walkway into motel room was not incidental to a rape].)
Here, Carr was not merely moved from room to room within the residence, but also forced into the garage and to drive away from the residence. This latter movement was not merely incidental to the commission of the robbery. While the distance driven was not great — Carr estimated the front of the car was about five yards from the front of the garage when he stopped — the movement was nonetheless substantial and not merely incidental to the robbery. As the Supreme Court has stated, " 'there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.' " (People v. Martinez, supra, 20 Cal.4th 225, 233.) It was not necessary to the commission of the robbery to force Carr to drive the car away from the residence. Nor was it necessary to force Carr to drive the car to effectuate an escape from the police. Dreiling or Palacios could have driven the vehicle to complete the robbery of Carr's car and possessions and their escape. Moreover, forcing Carr to drive the car out of the garage involved a change of environment from the relatively protected environs of the residence into an area exposed to the SWAT team, a factor that tends to show the movement was substantial and not merely incidental to the robbery. (Id. at p. 236.) The movement also greatly increased the risk of harm to Carr. Indeed, Palacios's plan was to put Carr deliberately in harm's way — in plain view of the police snipers — with the hope that his presence would reduce the risk of harm to Palacios and Dreiling. The robbery was continuing as Carr attempted to drive away since a robbery continues until the robber reaches a place of temporary safety. (See People v. Fierro (1991) 1 Cal.4th 173, 225-226.) Thus, there was substantial evidence to support a conviction of kidnapping for robbery.
"The two prongs of aggravated kidnapping are not distinct, but interrelated, because a trier of fact cannot consider the significance of the victim's changed environment without also considering whether that change resulted in an increase in the risk of harm to the victim. Thus, for simple kidnapping asportation, movement that is 'substantial in character' arguably should include some consideration of the 'scope and nature' of the movement or changed environment, and any increased risk of harm." (People v. Martinez, supra, 20 Cal.4th at p. 236 [discussing the sufficiency of movement for simple kidnapping].)
(C)
Kidnappings for Carjacking
Palacios was convicted of kidnapping for carjacking of both Jones and Carr. " '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).) "[T]he crime of carjacking, like the crime of robbery, 'may be established not only when the defendant has taken property out of physical presence of the victim, but also when the defendant exercises dominion and control over the victim's property through force or fear.' " (People v. Hoard, supra, 103 Cal.App.4th at p. 608.)
Kidnapping for carjacking occurs when a person "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 . . . ." (§ 209.5, subd. (a).) The offense of kidnapping for carjacking requires proof the victim was moved a substantial distance from the vicinity of the carjacking, that the movement be "beyond that merely incidental to the commission of the carjacking," and that the movement increased "the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself." (§ 209.5, subd. (b).)
Palacios challenges the sufficiency of the evidence to support a determination he took the vehicles from the victims' immediate presence, arguing that instead he forced the victims to occupy their own vehicles and thus did not commit a carjacking. This argument was rejected in People v. Gray (1998) 66 Cal.App.4th 973, 984-985. The Gray court, after examining the legislative history of section 215 and the law pertaining to robbery, concluded, "the owner or possessor of a vehicle may be deprived of possession not only when the perpetrator physically forces the victim out of the vehicle, but also when the victim remains in the car and the defendant exercises dominion and control over the car by force or fear." (Gray, at p. 985; see also People v. Green (1996) 50 Cal.App.4th 1076, 1080-1081; People v. Foster (1995) 34 Cal.App.4th 766, 769-771 [both upholding, without discussion, carjacking convictions where the victim remained with the vehicle].) Thus, a carjacking may be committed when the owner or possessor of the car remains with the vehicle.
To the extent Palacios suggests these convictions were not supported by substantial evidence because he intended only to borrow the vehicles, his argument is without merit. Carjacking is committed even when an individual intends only a temporary taking. (§ 215, subd. (a).)
There was sufficient evidence to support both kidnappings for carjacking. Jones was moved a substantial distance — miles from the location where the carjacking occurred — and this movement increased the risk of harm since he was moved from a gas station where other people were present to the isolation of a car and eventually to a location even more isolated from other people. While Carr was not moved such a great distance, the distance was nonetheless substantial. He was moved from his residence into a car and forced to drive the car out of the driveway toward the street. This forced movement was not merely incidental to the carjacking as Dreiling or Palacios could have accomplished the carjacking by driving the car themselves. The movement also substantially increased the risk of harm as Carr was forced into an area exposed to the SWAT team and subjected to officers firing at the car and misidentifying him as a perpetrator.
Kidnappings for Carjacking and Robbery of Carr
Palacios contends it was improper to convict him of kidnapping Carr for both robbery and for carjacking.
As we noted under part I(B)(1), ante, multiple convictions based on the same conduct are generally permitted when the conduct violates more than one statute. (See § 954; People v. Wiley, supra, 25 Cal.App.4th 159, 163.) Here, since there was sufficient evidence to support both aggravated kidnapping convictions, Palacios could be convicted of both kidnapping for robbery and kidnapping for carjacking.
(D)
Firearm Discharge Enhancements
Palacios argues there was sufficient evidence to support only one firearm discharge enhancement because he discharged the gun only once. Section 12022.53, subdivision (d) requires the imposition of "an additional and consecutive term of imprisonment in the state prison for 25 years to life" when the defendant, in the commission of one of the enumerated felonies, personally and intentionally discharged a firearm and proximately caused great bodily injury to a person other than an accomplice. The enumerated felonies include attempted murder and aggravated kidnapping. (§ 12022.53, subd. (a)(1), (3), (18).)
The evidence shows that when Palacios discharged the gun, he was continuing to forcibly detain Jones and thus, technically, the aggravated kidnappings had not yet terminated. Accordingly, there was substantial evidence to support a finding that Palacios discharged a firearm causing great bodily injury during the course of both the aggravated kidnappings as well as during the attempted murder.
II
Carjacking Convictions Must Be Stricken
Since an individual may not be convicted of both a greater crime and a lesser included offense and carjacking is a lesser-included offense of kidnapping for carjacking, therefore, as the Attorney General concedes, the carjacking convictions must be stricken. (See People v. Ortiz (2002) 101 Cal.App.4th 410, 415.)
III
Restrictions on Closing Argument
Palacios contends the trial court erred in not permitting defense counsel to argue Jones knew Dreiling, had planned to commit robberies or other crimes with her, and was shot across the street from the residence that he contacted for help because he decided to back out at the last minute. The trial court, in response to an objection by the prosecutor, ruled the argument was improper because it was without evidentiary support.
To the extent Palacios contends he was not permitted to argue the shooting occurred elsewhere, this argument is without merit. Defense counsel was permitted to argue the shooting did not occur at the location Jones described and to suggest it occurred near the residence he contacted.
"[A] trial judge has a duty and right to exercise reasonable control over criminal proceedings including argument to the jury." (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) This duty includes limiting "the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (§ 1044.) An argument based on facts not in evidence is improper. (People v. Pitts (1990) 223 Cal.App.3d 606, 722.) A "defendant's failure to take the stand does not entitle his attorney to engage in purely speculative argument, substituting his own testimony for that of the defendant in order to insulate the theory of the defense from the scrutiny of cross-examination." (People v. Modesto (1967) 66 Cal.2d 695, 708, overruled on other grounds in People v. Sedeno (1974) 10 Cal.3d 703, 720-721, and Maine v. Superior Court (1968) 68 Cal.2d 375, 383, fn. 8.)
Here, there was no evidence presented at trial to show either that Jones knew Dreiling or had planned to commit any crimes. While it is true Jones's credibility was undermined by inconsistencies in his story, the lack of any blood or bullet fragments at the purported scene of the shooting, expert testimony indicating Jones was shot while standing, and the initial police disbelief of Jones's story, these matters did not support the proposed defense argument. Evidence suggesting Jones had fabricated all or parts of his story did not, in the absence of other evidence, have any tendency to prove a specific alternate factual scenario occurred and, in particular, did not tend to prove Jones knew Dreiling and planned to commit crimes with her. Palacios, had he testified, could have provided the necessary evidence or he could have produced witnesses to establish Jones and Dreiling knew each other. As it was, no such evidence was presented and the defense theory was mere speculation. The trial court properly precluded the argument.
IV
Multiple Punishment
Section 654 prohibits multiple punishment for an indivisible course of conduct even though it violates more than one statute. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Whether a course of conduct is indivisible depends on the intent and objective of the actor. (People v. Evers (1992) 10 Cal.App.4th 588, 602; People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.) "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.) The determination the defendant had multiple criminal objectives is a factual question and will be upheld on appeal if supported by substantial evidence. (People v. Herrera, supra, 70 Cal.App.4th 1456, 1466.)
(A)
While it is true Palacios forcibly detained, that is, kidnapped, Jones continuously from the initial carjacking at the gas station to the attempted murder in the park, a reasonable jury could have concluded Palacios entertained discrete and separate criminal objectives that arose at different times.
From Palacios's statements that while they were driving he would not hurt Jones or damage the car, wanted the car only to drive up to Los Angeles, wanted to drop Jones at a place where he would not immediately contact the police, and the fact Palacios gave Jones money for a cab fare home, an inference may be drawn that Palacios's initial objective was only to kidnap Jones for the purpose of carjacking and that only later did he form a separate plan to rob Jones. In furtherance of this second, separate objective, Palacios had Dreiling drive north, ordered Jones from the car, marched him to a dark and isolated area, and robbed him of his personal possessions, including his wallet and ATM card. Thus, since Palacios entertained multiple objectives, he could be punished for both the kidnapping for carjacking and the kidnapping for robbery of Jones.
(B)
As we discussed in part I(C), ante, it was proper to convict Palacios of both offenses since his conduct violated the statutes delineating those crimes, however, we conclude multiple punishment was improper. The evidence indicates the plan to force Carr to drive Palacios and Dreiling away from the residence arose only after Palacios discovered the police had surrounded the residence. At that point, Palacios and Dreiling kidnapped Carr to facilitate the robbery and to carjack his Subaru. There was but a single act and a single criminal objective underlying both aggravated kidnappings — escape to a place of temporary safety. Therefore, while Palacios could be convicted of both aggravated kidnappings, punishing him for both was improper. We remand to the trial court to determine which offense should be stayed pursuant to section 654.
(C)
Discharge Enhancements
Palacios contends it was improper to impose punishment for three section 12022.53, subdivision (d) firearm enhancements based on his firing once at a single victim. He contends the court should have stayed two of the enhancements pursuant to section 654.
Section 12022.53, in pertinent part, states:
"(a) This section applies to the following felonies:
"(1) Section 187 (murder).
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(3) Section 207, 209, or 209.5 (kidnapping).
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(18) Any attempt to commit a crime listed in this subdivision other than assault.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), . . . personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.
The California Supreme Court granted review on this issue. The court held "the sentence enhancement provisions of Penal Code section 12022.53 are not limited by the multiple punishment prohibition of Penal Code section 654." (People v. Palacios, supra, 41 Cal.4th 720, 723.) Focusing on the statutory language in section 12022.53, subdivision (d), including that the enhancement applied " '[n]otwithstanding any other provision of law,' " the court was "persuaded that, in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654." (People v. Palacios, at pp. 727-728.)
We are bound by the Supreme Court's decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we conclude that none of the section 12022.53, subdivision (d) enhancements was subject to stay under section 654 and the trial court properly imposed all the multiple section 12022.53, subdivision (d) firearm enhancements.
Palacios also contends the imposition of multiple section 12022.53, subdivision (d) firearm enhancements constituted cruel and unusual punishment because "[t]he imposition of three 25-year-to-life term enhancements . . . is grossly disproportionate to [his] culpability," particularly since the victim in this case suffered only a flesh wound.
The constitutional prohibition against cruel and unusual punishment looks to whether a punishment is grossly disproportionate to the crime. (People v. Lewis (2004) 120 Cal.App.4th 837, 855.) The courts consider: (1) the nature of the offense and the offender as compared to the penalty including the degree of danger presented to society, (2) a comparison of the punishment with other offenses within the state and (3) a comparison of the punishment with those imposed for the same offense in other jurisdictions. (People v. King (1993) 16 Cal.App.4th 567, 572.) "Successful challenges based on proportionality are extremely rare." (People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
Palacios focuses only on facts relating to the offense, that is, that he fired once at a single victim and the victim suffered only "a superficial flesh wound." Palacios does not argue facts relating to his nature, e.g., that he was particularly young (see People v. Dillon (1983) 34 Cal.3d 441, 479), nor does he compare the punishment here to other California or foreign statutory provisions. In other words, Palacios's claim rests on the premise that it is cruel and unusual punishment to impose multiple section 12022.53, subdivision (d) enhancements for a single gunshot against a single victim.
While the Supreme Court in Palacios, supra, 41 Cal.4th 720 did not specifically address Palacios's cruel and unusual punishment argument, they implicitly rejected such an argument. Palacios argued to the Supreme Court that the Legislature "could not have intended a 'draconian' scheme whereby one injury could result in as many 25-year-to-life enhancements as there were qualifying offenses." (Id. at p. 733.) Palacios relied on the reasoning in our prior opinion "that the punishment should be commensurate with defendant's conduct rather than 'the fact the aggravated kidnappings were technically ongoing at the time he discharged the gun.' " (Ibid.) The Supreme Court rejected this argument, explaining: "the applicability of section 12022.53 enhancements necessarily depends on what is 'technically ongoing at the time' a firearm is used. The Legislature premised section 12022.53 enhancements on a defendant's firearm use during underlying crimes. The statute 'prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies.' [Citations.] Although subdivision (d) incorporates an injury element, it still 'clearly serves' legislative goals in deterring the use of firearms in crimes. [Citation.] [Palacios] fired a gun and caused great bodily injury while he was committing three crimes." (Id. at p. 733.) The Supreme Court implicitly found the imposition of the three enhancements was not disproportionate to Palacios's conduct.
In sum, the court properly imposed three section 12022.53, subdivision (d) firearm enhancements.
V
Propriety of Sentences Under Blakely v. Washington
Palacios contends the consecutive sentencing in this case violated the United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). In Blakely, the Supreme Court held a jury, rather than a sentencing judge, must find any fact (other than the fact of a prior conviction) that increases the punishment for a crime beyond the "statutory maximum." (Blakely, supra, 542 U.S. at p. 303.) The court defined "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Ibid., italics omitted.)
The Attorney General argues that Palacios forfeited his claim of Blakely error by failing to request that a jury determine the sentencing factors. Our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 812 (Black II) rejected this argument.
We reject Palacios's argument the consecutive sentencing here violated Blakely. The trial court imposed consecutive sentences because the offenses involved separate acts or threats of violence. The court's imposition of separate punishments for the separate offenses did not result in exceeding the statutory maximum for each offense. Further, contrary to Palacios's argument, section 669 does not create a presumption of concurrent sentences, that is, that a court must sentence concurrently unless additional findings are made justifying consecutive sentences. (See People v. Reeder (1984) 152 Cal.App.3d 900, 923 ["While there is a statutory presumption in favor of the middle term as the sentence for an offense [citation], there is no comparable statutory presumption in favor of concurrent rather than consecutive sentences for multiple offenses except where consecutive sentencing is statutorily required."].) Section 669 merely gives the court discretion to impose concurrent or consecutive sentences and provides that if the court fails to specify a sentencing choice, concurrent sentences apply. Section 669 does not set a "statutory maximum" of concurrent sentences.
We conclude the sentencing did not violate Blakely.
VI
Determinate Sentencing
Here, when the court imposed the determinate term, it ran all counts (that it did not stay) consecutively to the indeterminate term, and specified that all the determinate counts were to be served at one-third of the middle term for that count.
When a court imposes a determinate sentence, the court must select one count as the "principal" count and impose the full lower, middle, or upper term for that count. If the court chooses to run other counts consecutively to the "principal" term, those "subordinate" counts are imposed based on one-third of the middle terms. (People v. Felix (2000) 22 Cal.4th 651, 655; § 1170.1, subd. (a).) When there are both indeterminate and determinate terms, the court must independently calculate both terms; and " 'neither term is "principal" [n]or "subordinate." ' " (People v. Garza (2003) 107 Cal.App.4th 1081, 1094.) Thus, even though a determinate term is served consecutively to an indeterminate term, the court, when calculating the determinate term, must select one count to be the principal term that is served for the full amount of the upper, middle, or lower term.
At the time Palacios was sentenced, California's determinate sentencing scheme provided a presumption that a defendant would be sentenced to the middle term unless the court found aggravating or mitigating factors justified the imposition of a different term. (Former § 1170, subd. (b).) In Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 864, 868 (Cunningham), the United States Supreme Court held that the middle term in California's determinate sentencing scheme was the "statutory maximum" and that imposition of an upper term sentence was improper unless the aggravating factors had been found true by the jury, admitted by the defendant or involved the fact of a prior conviction. Following the Cunningham decision, the California Supreme Court in Black II held "if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum.' " (Black II, supra, 41 Cal.4th at p. 813.) The court in Black II also held that among the aggravating circumstances a court may use without violating Blakely, is that a defendant has prior convictions that are numerous or of increasing seriousness. (Black II, at pp. 819-820.)
In response the Cunningham decision, the Legislature amended California's sentencing scheme effective March 30, 2007. (Stats. 2007, ch. 3 § 2.) In the text, we refer to the statutory scheme that existed when the trial court sentenced Palacios.
The trial court here erred by failing to select one of the counts in the determinate sentence as the principal count to be served full term. On remand, the court must select one count in the determinate sentence as the principal count and, keeping in mind the Cunningham and Black II decisions, select whether to impose the lower, middle, or upper term for that count.
We also note that the reporter's transcript, court minutes and the abstract of judgment show the court imposing a 10-year term for a section 12022.53, subdivision (d) firearm use enhancement attached to the kidnapping for robbery of Carr, count 7. However, the information charged and the jury found true a section 12022.53, subdivision (b) enhancement for Palacios's personal use of a handgun during the kidnapping for robbery. The term for a section 12022.53, subdivision (b) enhancement is 10 years, while the term for a section 12022.53, subdivision (d) enhancement is 25 years to life. It appears evident the court misspoke when it referred to subdivision (d) rather than subdivision (b) of section 12022.53. On resentencing, the court should correct this error.
DISPOSITION
We remand for resentencing as follows: the carjacking convictions must be stricken; the punishment for the kidnapping for robbery or the kidnapping for carjacking of Carr must be stayed pursuant to section 654; the court is to correct the enhancement on count 7 to reflect subdivision (b) of section 12022.53; and the court must determine the principal count among the determinate sentences. In all other respects, we affirm the judgment.
I CONCUR: HUFFMAN, J.
McDONALD, J., Concurring and Dissenting.
I concur with the majority opinion except its conclusions substantial evidence supports the convictions of kidnapping for robbery and kidnapping in the commission of carjacking with respect to Grant Carr, and Penal Code section 654 does not apply to the multiple aggravated kidnapping convictions with respect to Brian Jones. The Supreme Court decision in this case did not address either of these issues. Because execution of the sentence on one of the two aggravated kidnapping convictions relating to Jones should be stayed under section 654, execution of the section 12022.53 firearm enhancement on the stayed kidnapping sentence should also be stayed under section 654. The Supreme Court decision in this case did not address this issue.
All statutory references are to the Penal Code.
Aaron Marcel Palacios was convicted of kidnapping Carr for robbery (§ 209, subd. (b)) and kidnapping Carr during the commission of carjacking (§ 209.5). Section 209, subdivision (b) provides that "(1) Any person who kidnaps . . . any individual to commit robbery . . . shall be punished by imprisonment in the state prison for life with possibility of parole." The penalty for simple kidnapping is a determinate term of three, five or eight years (§ 208, subd. (a)) and the penalty for robbery in an inhabited dwelling is a determinate term of three, six or nine years (§ 213). Perhaps because the penalty for kidnapping for robbery so greatly exceeds the combined penalties for kidnapping and robbery, section 209, subdivision (b)(2) provides that kidnapping for robbery applies "only . . . 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 [of robbery]."
Section 209.5 provides "(a) Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person . . . shall be punished by imprisonment in the state prison for life with the possibility of parole." The penalty for simple kidnapping is a determinate term of three, five or eight years (§ 208, subd. (a)) and the penalty for carjacking is a determinate term of three, five, or nine years (§ 215, subd. (b)). As with kidnapping for robbery, perhaps because the penalty for kidnapping in the commission of carjacking so greatly exceeds the combined penalties for kidnapping and carjacking, section 209.5, subdivision (b) provides that kidnapping for carjacking applies only "if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself." Furthermore, presumably because carjacking is a form of robbery, section 215, subdivision (c) provides "[a] person may be charged with a violation of this section [carjacking] and Section 211 [robbery]. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211."
With reference to victim Carr, the record shows Palacios and Shana Dreiling entered the Carr home for the purpose of stealing as much personal property as could be loaded into the Carrs' automobile parked in the garage, and the Carrs' automobile; if Palacios's initial robbery plan did not include the Carrs' automobile, he would not have had Carr load the household personal property into the Carr's automobile. The movement of Carr in the course of the robbery was limited to movements within the house, including movement into the attached garage, entry of which was available directly from inside the house; forcing Carr into the driver's seat of his automobile; and Carr's backing his car out of the garage into the driveway a distance of approximately 15 feet. The movement of Carr then ceased. Although the majority opinion states Carr was "forced . . . to drive away from the residence" (maj. opn., ante, at p. 18), that movement was not possible. The Carrs' driveway within 15 feet of the entrance to the garage was blocked by Palacios's automobile, which had been parked in the driveway, garbage cans and the armored vehicle of the Swat Team; the tires of Carr's automobile had also been flattened by police gunfire.
Under these circumstances, Palacios was guilty of robbery and of carjacking, but not of kidnapping for robbery or kidnapping for carjacking. The movement of Carr during this incident was incidental to the commission of the robbery because it was limited to movement within the confines of the residence and driveway and therefore there was no kidnapping for robbery. (People v. Daniels (1969) 71 Cal.2d 1119, 1140; People v. Mutch (1971) 4 Cal.3d 389, 397; People v. Williams (1970) 2 Cal.3d 894, 902; People v. Hoard (2002) 103 Cal.App.4th 599, 607; People v. John (1983) 149 Cal.App.3d 798, 805.)
Furthermore, there was no kidnapping of Carr in the commission of the carjacking because an element of that crime requires "the victim [be] moved a substantial distance from the vicinity of the carjacking" (§ 209.5, subd. (b)). Carr was not moved a substantial distance from the vicinity of the carjacking, which took place in his garage.
The evidence in this case supports only a robbery and carjacking conviction in connection with victim Carr. However, a penalty may be imposed for only one of those convictions. (§ 215, subd. (c).) Palacios's two convictions for aggravated kidnapping of Carr should be reversed.
Palacios was also convicted of kidnapping Brian Jones in the commission of carjacking and kidnapping Jones for robbery. The trial court, affirmed by the majority opinion, concluded section 654 did not apply and imposed separate consecutive sentences of life with the possibility of parole for each of these convictions. Palacios's objective in kidnapping Jones, which resulted in a continuous act of kidnapping over a period of several hours, cannot reasonably be separated into discrete objectives--other than by speculating on his state of mind during the different periods of the continuous course of conduct--to show substantial evidence supports the conclusion section 654 is inapplicable. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
The People speculate Palacios had two separate and distinct objectives in the kidnapping of Jones in the commission of the carjacking and the kidnapping of Jones for robbery: the first objective was to temporarily deprive Jones of possession of the automobile to drive to Los Angeles, and the second objective was to permanently deprive Jones of his clothing and wallet. The People's position is difficult to accept. If Palacios highjacked Jones's automobile only to get to Los Angeles, it is hard to believe he did not intend permanently to deprive Jones of the automobile; it is equally hard to understand why he kept Jones in the automobile--the only reason to keep Jones in the automobile would have been to complete the theft by also taking Jones's personal property, including his wallet. The People's position is not persuasive to establish separate and distinct objectives during the continuous conduct of kidnapping and robbery.
The sentence for either the kidnapping of Jones for robbery or kidnapping Jones in the commission of carjacking should be stayed under section 654 and the section 12022.53 firearm enhancement on the stayed kidnapping sentence should also be stayed.