Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F09643
BUTZ, J.A jury found defendant Charlie Chong Thao guilty of first degree residential burglary (Pen. Code, § 459), first degree residential robbery (§ 211), kidnapping for the purpose of robbery (§ 209, subd. (b)(1)), second degree commercial burglary (§ 459), second degree commercial robbery (§ 211), felony false imprisonment (§ 236) and criminal threats (§ 422). The court sentenced defendant to a term of life in state prison with the possibility of parole, plus seven years.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends, and the People concede, that the court’s imposition of punishment for both first degree burglary and first degree robbery was error. Defendant also contends the court impermissibly imposed dual punishment for robbery and kidnapping for the purpose of robbery, as did it for criminal threats and kidnapping for the purpose of robbery. We shall modify the judgment as to the first and second contentions, and otherwise affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2006, L.P., branch manager and vice-president of a bank in Elk Grove, California, lived with her husband and daughter in the City of Galt.
On the morning of November 3, 2006, L.P.’s husband left the house to go to work at approximately 6:00 a.m. The couple’s daughter left for school at approximately 7:10 a.m. As L.P. prepared for work, still wearing her robe and slippers, she heard the doorbell ring. She looked through the peephole but did not recognize the person standing there. When L.P. opened the door, defendant pointed a gun at her and entered the home. L.P. screamed. Defendant told her to be quiet and said, “Give me your money.” L.P. gave defendant $75 that was sitting on the kitchen counter, and $40 to $50 from her purse. She told defendant that was all the money she had. He said, “Let’s go to the bank.” When L.P. said the bank was closed, defendant said, “You have the key. Get the key now.” L.P. retrieved her keys from the bedroom and got into the back seat of defendant’s car as instructed. Defendant climbed into the driver’s seat and placed the gun on his lap.
Defendant drove to the bank where L.P. worked. During the drive, L.P. recognized defendant as a customer of the bank and her daughter’s former tutor. When they arrived at the bank, defendant donned a black mask. L.P. unlocked the back door and entered the bank with defendant following behind her. L.P. silenced the alarm and opened the vault door. Unable to access the vault money without a second key, L.P. opened the safe deposit box containing her till money instead and gave defendant the contents--approximately $5,000, including $35 in “bait” money. Defendant said, “That’s not enough. I want more.” Although L.P. kept telling defendant she could not open the file cabinet to access the cash in the vault, defendant insisted she had a key. Finally, L.P. suggested that defendant shoot open the box containing the second access key. Defendant grabbed a tool and pried the lock box open. L.P. opened the cabinet and placed the cash, including “bait” money and an electronic tracking device, into defendant’s backpack. Defendant said, “Let’s go,” and they left the bank. As she exited the bank, L.P. reset the alarm and locked the doors. Defendant ordered L.P. back into the car, and then climbed into the driver’s seat. He laid the gun on his lap and told L.P. he was taking her home.
L.P. described “bait” money as bills from which the serial numbers have been recorded for tracking purposes in the event of a robbery.
Defendant initially headed in the direction of L.P.’s home. During the drive, L.P.’s cell phone rang twice, and defendant took it from her. As he neared Galt, defendant turned away from L.P.’s home and down a rural road unfamiliar to L.P. Defendant stopped the car and told L.P. not to identify him, threatening that he and some of his friends would hurt L.P. and her family if she did. When L.P. promised not to tell, he told her to get out of the car and told her to keep walking and not to stop to talk to anyone. L.P. got out of the car and started walking. Defendant drove away, but returned once, reminded her to “do what he said and keep walking,” and then drove off. As L.P. walked towards her home, two people stopped and offered help. L.P. declined, fearing defendant would follow through on his threats. As she neared her home, L.P.’s husband, driving by on his way to check on her after hearing the bank had been robbed, stopped and picked her up. They drove back home, notified police and then drove to the Galt Police Department to report the incident.
Bank surveillance cameras recorded the defendant and L.P. in the bank that morning. L.P. provided police with a description of defendant and his vehicle and informed them he had worked at the Elk Grove Learning Center and had tutored their daughter. Police obtained defendant’s name and address from the Learning Center, but were unable to find defendant in Sacramento County.
The next day, defendant was apprehended in San Francisco following a high-speed chase through the city. Defendant had in his possession the backpack used in the robbery, along with over $22,000 in cash. Police later recovered over $55,700 in cash, the electronic tracking device and the “bait” money, along with the pants, ski mask and replica pistol used by defendant in the robbery. Defendant admitted L.P.’s version of events, and told police he planned the crimes and acted alone.
At trial, defendant testified he and L.P. planned the bank robbery and agreed to meet in San Francisco the next day to split the proceeds.
By complaint, deemed to be the information, defendant was charged with first degree residential burglary (count one), first degree robbery (count two), kidnapping for the purpose of robbery (count three), second degree commercial burglary (count four), second degree robbery (count five), false imprisonment (count six) and criminal threats (count seven).
Defendant was tried by a jury and found guilty on all counts. The court imposed a sentence of life with the possibility of parole on count three, plus a consecutive aggregate term of seven years comprised of the middle term of four years on count one; one year four months (one-third the middle term) on count two; the middle term of two years on count four; one year (one-third the middle term) on count five; the middle term of two years on count six; and eight months (one-third the middle term) on count seven. The court stayed execution of the sentences for second degree commercial burglary (count four) and false imprisonment (count six) pursuant to section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
Each of defendant’s claims arises out of the prohibition against dual punishment set forth in section 654, which provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” (§ 654, subd. (a).)
“Section 654 applies when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction. [Citation.] The purpose of section 654 is to ensure that a defendant’s punishment will be commensurate with his culpability. [Citation.] 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.] [¶] The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins).)
“The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination.” (Hutchins, supra, 90 Cal.App.4th at p. 1312.) “‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’ (People v. McGuire [(1993)] 14 Cal.App.4th [687,] 698.)” (Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)
I. Dual Punishment for First Degree Burglary and First Degree Robbery
Defendant first contends, and the People concede, that the trial court’s imposition of punishment for both first degree residential burglary and first degree residential robbery was error and that the sentence for count two must be stayed pursuant to section 654.
There is substantial evidence that defendant’s objective in committing the residential burglary was the same as that for committing the residential robbery, to wit, to enter L.P.’s home and take her money. When L.P. opened the door, defendant pointed the gun at her and entered the house as L.P. screamed in protest. Defendant immediately demanded that L.P. give him her money. Both acts reflected an intent to deprive L.P. of her property. Accordingly, it cannot be said that defendant acted with multiple independent objectives in committing the residential burglary and the robbery. (People v. Perry (2007) 154 Cal.App.4th 1521, 1526-1527.) As such, we accept the People’s concession that the sentence for count two should be stayed pursuant to section 654, and we shall modify the judgment accordingly.
II. Dual Punishment for Kidnapping for the Purpose of Robbery and Second Degree Commercial Robbery
Defendant contends that, in light of the punishment for kidnapping for the purpose of robbery, the punishment for second degree commercial robbery should have been stayed pursuant to section 654 because there is no evidence in the record that the kidnapping was committed for any other purpose than to achieve the robbery at the bank. We agree.
Defendant did not object on this point at trial; however, “the waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.” (People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3; People v. Hester (2000) 22 Cal.4th 290, 295 [“a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654”].)
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.) A person violates section 209, subdivision (b)(1) when he or she kidnaps another individual for the purpose of committing a robbery.
The People argue the trial court made an implied finding of divisibility, i.e., once defendant arrived at the bank, he completed the robbery by obtaining the contents of L.P.’s till; however, unsatisfied with that amount, defendant committed a “‘second’ theft” when he demanded and obtained the cash from the vault. Hence, the People argue, punishment for both the robbery and the aggravated kidnapping was permissible. The record suggests otherwise.
After taking L.P.’s money from her home, defendant told L.P. he wanted money from the bank. He kidnapped her and took her to the bank for the purpose of gaining entry to the bank and obtaining money. The fact that he first took the money from L.P.’s till and then gained access to the money in the vault by prying open the lock box is of little consequence. Defendant’s intent was clearly to obtain as much money as possible from the bank, regardless of whether it came from the till or the vault or some other source within the bank.
Once defendant obtained the money and left the bank with L.P., both the robbery and the aggravated kidnapping were complete. L.P. testified that there was no one in the bank, no alarm had been triggered, and there was no one outside the bank to thwart defendant’s crimes. Furthermore, defendant had immediate access to his car and was, at that point, relatively safe from apprehension. It is reasonable to infer that the jury concluded the false imprisonment occurred when defendant then drove L.P., against her will, from the bank towards her home in Galt and then away from her home and down a rural road, where he threatened her and left her to find her way home.
There is substantial evidence that the kidnapping for the purpose of committing the robbery and the bank robbery were both part of an indivisible transaction having but one objective. Accordingly, the trial court should have imposed but stayed execution of the sentence for count five pursuant to section 654. We shall modify the judgment to reflect the proper disposition.
III. Dual Punishment for Criminal Threats and Kidnapping for the Purpose of Robbery
Defendant claims the criminal threats to L.P. and the kidnapping were inseparable acts, arguing he had no “time to reflect on the consequences of his actions before making the threat because he was still in the process of holding [L.P.] without her consent” and neither he nor L.P. “had reached a place of safety.” We disagree.
Defendant robbed L.P. at her home, then kidnapped her in order to gain access to and rob the bank. As discussed in part II of this opinion, ante, the robbery and the aggravated kidnapping were complete once defendant left the bank and had unobstructed access to the car. Nonetheless, defendant continued to imprison L.P. against her will, driving her first towards her home, then away from it, and finally ending up on a rural road miles from L.P.’s house. Defendant threatened L.P. and her family with physical harm if she identified him or failed to tell authorities that there were two other people in the car with him, then left her there to walk home, returning once to make sure she was complying with his threat. The purpose of that threat was not to gain control over L.P. in order to kidnap her or commit the robbery, but rather to avoid detection by the police.
The factual finding that there was more than one objective is supported by substantial evidence.
DISPOSITION
The judgment is modified as follows: (1) As to count two, the 16-month sentence is stayed pursuant to section 654; and (2) as to count five, the one-year sentence is stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment, consisting of a total term of life with the possibility of parole plus four years eight months, is affirmed.
We concur: SCOTLAND , P. J., BLEASE , J.