Opinion
B227715
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. EDGAR A. VELASQUEZ, Defendant and Appellant.
Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA061825)
APPEAL from a judgment of the Superior Court of Los Angeles County, Martin L. Herscovitz, Judge. Affirmed as Modified.
Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Edgar A. Velasquez of nine crimes arising out of his forcible abduction and sexual assault of Sara C.: carjacking (§ 215, subd. (a)),kidnapping with the intent to commit rape (§ 209, subd. (b)(1)), assault with the intent to commit a sexual felony during a first degree burglary (§ 220, subd. (b)), sexual penetration by a foreign object (§ 289, subd. (a)(1)), sodomy by force (§ 286, subd. (c)(2)) and two counts each of forcible oral copulation (§ 288a, subd. (c)(2)) and forcible rape (§ 261, subd. (a)(2)). As to the last six counts, the jury found that defendant had kidnapped Sara and that the movement substantially increased the risk of harm to her. (§ 667.61, subds. (a) & (d).) The trial court sentenced defendant to a term of 50 years to life.
All undesignated statutory references are to the Penal Code.
In this appeal, defendant contends first, that the prosecutor committed prejudicial misconduct during closing argument. Second, he urges that the evidence is insufficient to sustain the carjacking conviction and, if not, section 654 precluded imposition of a consecutive sentence for that crime. We reject all of defendant's contentions. In response to the Attorney General's request, we direct a minor modification of the judgment but, in all other respects, affirm the judgment.
STATEMENT OF FACTS
1. The Prosecution's Case
Shortly after midnight on March 26, 2009, Sara drove to a local 7-Eleven. She left her car unlocked when she went into the store. When she returned to her vehicle and began to drive away, defendant jumped up from the backseat, grabbed her throat, pushed an object into her ribs, stated he had a gun and demanded: "Give me the money." She offered him her purse but he did not take it. Instead, he told her to drive. She did.
After a few minutes, defendant told her to stop the car so he could move to the front seat. She stopped the car, opened her door and tried to run away. Defendant grabbed her throat and said: "If you try something stupid like that again I will kill you. I will kill you if you try to run." With his hands on Sara's throat, defendant instructed her to drive to an apartment building at 15105 Sherman Way. Once there, defendant directed her to a vacant apartment, Unit 107.
Larry Berry, a tenant in the building, testified that he saw Sara and defendant that evening walking together toward Unit 107. Defendant had "his arm over [Sara]." To Berry, "It looked like something was wrong, but I couldn't really map it out what it was. But they didn't seem like they were like happy, you know."
Defendant opened the unlocked door to Unit 107. Inside the apartment, defendant had Sara take off her shirt after which he removed her bra, pants and underwear. He grabbed her by the head and forced her to orally copulate him before he had forcible vaginal intercourse with her. After defendant lost his erection, he inserted his finger in her anus and then in her vagina. Following those violations, defendant sodomized and orally copulated Sara. After defendant achieved an erection, he committed his last sexual assault on her: forcible vaginal intercourse.
Sara put her clothes back on and the two left the apartment. Defendant drove them in her car to an intersection, stopped, left the car, and ran away. Sara drove to her mother's home and told her what had happened. Sara telephoned her boyfriend, Jose A. Jose A. testified that Sara "was crying like she never cried before" and that she told him "she had been raped." Jose A. soon met up with Sara who he described as "traumatized." The two went to the police station. At the station, Sara told Los Angeles Police Officer Christopher Chadbourne that she had been forcibly taken to an apartment where she had been sexually assaulted. Sara took Officer Chadbourne to the apartment complex and then to Unit 107. The police secured the crime scene.
Almarez testified that for the next two days, Sara "didn't want to do anything. She didn't want anybody to touch her. She didn't want anybody to talk to her."
Officer Chadbourne transported Sara to a hospital for a sexual assault examination by Maryann Lague, a forensic nurse examiner. Sara told Lague in detail—consistent with her trial testimony—that defendant had forcibly abducted and sexually assaulted her. Lague conducted a physical examination of Sara. Sara's injuries (red and tender abrasion on her vagina and significant anal tearing) were consistent with forcible sexual assaults.
The interview was tape recorded. The recording was played for the jury and the jury was furnished with a transcript of the interview.
Photos of Sara's injuries were introduced into evidence.
Constance Hyle, the property manager of the apartment building to which defendant forcibly took Sara, testified that in March 2009 defendant worked for the company that remodeled some of the vacant units in the building, including Unit 107. Hyle normally gave two sets of keys for each unit to the remodeling company but, when the work was completed in Unit 107, she had, inexplicably, only one set of keys for that unit.
Lilian Moran, defendant's girlfriend, testified for the prosecution. Moran has three children, two boys and one daughter. Defendant is the girl's father. In March 2009, she and her three children lived with defendant. The 7-Eleven from which defendant abducted Sara is walking distance from their home. A strip club is located very near the 7-Eleven. On one occasion in the very late evening, Moran found that defendant had left some of the children outside of the 7-Eleven while he went into the strip club.
During the afternoon of March 25 (the day before defendant abducted Sara), defendant telephoned Moran and told her that he would not be home for her son's birthday party because he was looking for a job. Defendant finally arrived home "drunk" between 11:00 p.m. and midnight. Moran and defendant argued and defendant left.
After defendant was arrested for kidnapping and raping Sara, Moran visited him at the police station. The police told her that defendant's fingerprints placed him at the crime scene (Unit 107). Moran asked defendant: "[D]id you go with some woman where maybe now she is just saying that you raped her?" Defendant replied that he had gone "nowhere with nobody."
2. The Defense Case
Defendant testified on his behalf as follows. He conceded he had had sexual relations with Sara but claimed it was consensual. According to defendant, Sara greeted him in the 7-Eleven parking lot. He asked her if she wanted to smoke marijuana and drink beer. She agreed and he entered her car. He suggested going to the apartment building where he worked because he knew which unit was vacant. She agreed.
At the apartment, they smoked marijuana, drank beer and had multiple consensual sexual relations. Defendant denied forcing Sara to do anything, either in the 7-Eleven parking lot or at the apartment.
DISCUSSION
A. PROSECUTORIAL MISCONDUCT
Defendant assigns as misconduct several statements the prosecutor made during closing argument and argues that "the cumulative impact" of the statements was prejudicial, warranting reversal. Defendant made many of these same claims in his motion for a new trial. The trial court denied the motion. It stated that it had reviewed the transcript of the argument and found no prosecutorial misconduct. Further, it noted that defense counsel's counsels objections had been insufficient because none of them raised the specific claim of prosecutorial misconduct. Like the trial court, we are not persuaded that the prosecutor's statements, considered either individually or together, constitute prejudicial misconduct.
The trial court explained: "[Defense counsel], you never made specific objections at any time during the argument. All you said was, 'objection,' unspecified. [¶] An objection that is unspecified, without alerting the court to the grounds for your motion or asking to approach to state the grounds for your motion, is really no objection at all, because I have no idea when you say, 'Objection, Your Honor,' . . . and I wait for an explanation; hearing none, then say 'Overruled.' I have to overrule an objection that I don't know what you're objecting on. It's your obligation to alert the court . . . as to the specific grounds."
The principles governing appellate review of claims of prosecutorial misconduct during closing argument are well settled. "Like prejudicial error in the admission of evidence, it may be waived by failure to raise the point in the trial court. However, an ordinary objection is not sufficient; there must have been an objection plus a request for an admonition, because if the jury is promptly admonished to disregard the improper statement, its damage may often be avoided. . . . Hence, a long-established rule places the burden on the defendant to make the objection in a particular form (assignment of misconduct), and, in addition, to seek the curative instruction (request for admonition) at the time the misconduct occurs. If the defendant is silent, or merely objects or makes the assignment, but does not request the admonition," the claim is forfeited unless the harm could not have been cured. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 38, p. 500, italics added.)
1. Statement About Charging Defendant With Multiple Crimes
First, defendant alleges the prosecutor committed misconduct in making the following italicized comment before she explained the factual basis of the charge of assault with the intent to commit a sexual felony. She stated: "The defendant -before I move on to that, some of these counts may seem redundant, but they are charged for different reasons, and you are not to really speculate as to why, but the judge will decide when it comes to sentencing how to ." (Italics added.) Defense counsel stated: "Objection, Your Honor." The court sustained the objection. The prosecutor continued (without further objection from defense counsel) to say: "If you were to find [defendant] guilty it would be up to the judge just how to sentence. So look at each count individually to see if the People have met their burden. Okay?"
When the trial court later denied defendant's new trial motion, it explained that it had sustained the objection because the prosecutor had "alluded to her reason for pleading the case in a certain way, and I thought that was an irrelevant argument."
Defendant now contends, without citation to any authority, that the italicized comment constituted misconduct because "the prosecutor improperly referred to her personal opinion that some of the charged counts seemed redundant, but they were charged for different reasons." Putting aside the fact that defendant's failure to support this claim with adequate argument or authority constitutes a forfeiture (People v. Catlin (2001) 26 Cal.4th 81, 133), the trial court sustained defendant's objection to it. At that point, the "objection having been sustained, defendant bore the burden of seeking a curative admonition from the court. He refrained from doing so." (People v. Carter (2005) 36 Cal.4th 1114, 1205.) The claim of prejudicial misconduct is therefore forfeited. (Ibid.) In any event, the court instructed the jury that counsel's remarks during closing argument were not evidence and that the jury must decide the case based only on the evidence. (CALCRIM Nos. 222 and 200.) The jury is presumed to have followed these instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) Consequently, the comment, which was fleeting and about an irrelevant issue (the prosecutor's charging decision; see fn. 7, ante) was not misconduct and could not have prejudiced defendant.
2. Vouching for the Victim's Credibility
Defendant next urges that the prosecutor twice improperly vouched for Sara's credibility during rebuttal argument. We examine each instance separately.
The first occurred when the prosecutor stated that the case "comes down to credibility." Using the pattern instruction about the factors a jury may consider in evaluating credibility (CALCRIM No. 226), the prosecutor argued that Sara's testimony was credible. The prosecutor then made the comments about which defendant now complains. She said:
"Character and quality of her [Sara's] testimony. Did she understand the questions? Did she answer them directly. Yes, she also answered the questions. She didn't play games. She was able to articulate and remember everything.
"Demeanor and manner. Her demeanor, she seemed honest. She was real. She came in and was nervous. She cried when it was appropriate for her to cry."
Defense counsel stated: "With all due respect, it is improper closing argument." The court overruled the objection. The prosecutor continued, without further objection: "You saw her demeanor. You are the judges of her credibility and her demeanor, and I submit to you, this girl, you can tell by her personality[,] she's shy. She's mild mannered. This was not easy for her to do, to have to come in and tell you what happened to her."
We reject defendant's claim that the objected-to comments constitute misconduct. For one, defendant's failure to specifically assign the comment as prosecutorial misconduct and request an admonition constitutes a forfeiture of his claim. (People v. Price (1991) 1 Cal.4th 324, 460.) Further, the comments did not constitute misconduct. "A prosecutor may make 'assurances regarding the apparent honesty or reliability of a witness 'based on the "facts of [the] record and the inferences reasonably drawn therefrom."' [Citation.] But a 'prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.' [Citation.]" (People v. Turner (2004) 34 Cal.4th 406, 432-433.) Here, the prosecutor properly relied on facts of record—Sara's demeanor during her testimony and her manner of answering questions—and inferences that could be reasonably drawn therefrom (rather than any purported personal knowledge about either Sara or the case) to argue that Sara's testimony was credible. This was not misconduct. (People v. Medina (1995) 11 Cal.4th 694, 757.)
As for the second instance of allegedly improper vouching, defendant claims, without any citation to the record, that "the prosecutor, again over defense objection, was allowed to argue that although she believed it was possible for women to make false claims, she was emphatic that in this case 'Sara' would not do this. There was no evidence that Sara would not do this, yet the prosecutor was allowed to vouch for the honesty, reliability and credibility of her witness by telling the jury that this witness could not lie."
Defendant is required to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) His failure to do so results in a forfeiture of the argument. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743; People v. Hyatt (1971) 18 Cal.App.3d 618, 624.) In any event, we have examined the record and find no improper argument as asserted by defendant. The prosecutor argued only that Sara had no motive to falsely accuse defendant because he was neither wealthy nor famous. This argument clearly was proper.
It appears that this argument is taken verbatim from defendant's unsuccessful new trial motion.
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3. Statements Outside of the Evidence
Defendant urges that the prosecutor "commented on matters outside the evidence presented at trial." He relies upon the italicized comments in the following portion of her argument.
"Counsel talks about, well, how the defendant didn't have access to Connie Hyle's keys [to Unit 107]. That's not the point. The defendant would have gotten the keys before they were ever turned over to Connie Hyle. Ladies and gentlemen, I submit to you that the defendant was there in that apartment earlier that day and he was there drinking and hanging out. He wasn't with Oscar [the friend with whom he had testified he spent the day]." (Italics added.)
Defense counsel stated: "Objection, Your Honor. This misstates the evidence. There is no evidence to support this whatsoever." The trial court overruled the objection.
Defendant now urges that the comments constitute prejudicial misconduct because "[t]here was absolutely no evidence to support this 'theory'" that he "had the key made earlier and had been in and out of the apartment prior to the sexual assault having occurred." This argument is not persuasive. Trial counsel's failure to specifically assign the comments as misconduct and to request that the jury be admonished to disregard the statement(s) results in a forfeiture of the claim. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Anticipating that conclusion, defendant argues that trial counsel provided constitutionally ineffective representation. In the interest ofjudicial economy, we reach the merits of the argument to prevent collateral attacks on the judgment. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
"Counsel may not state or assume facts in argument that are not in evidence." (People v. Cash (2002) 28 Cal.4th 703, 732.) In this instance, the prosecutor's comments addressed minor issues: how defendant gained entry to Unit 107 and his actions during the day prior to his commission of the crimes. As to the first issue, Sara testified they entered through the apartment unit's unlocked front door whereas defendant testified that the door was locked so he climbed in through a window and then opened the apartment door for Sara. Given that defendant conceded that he and Sara had entered Unit 107, the manner of entry, including how and when defendant may have obtained keys to the apartment, was largely immaterial. The question for the jury was whether defendant had forcibly taken Sara there and then brutally sexually assaulted her. As to the second issue, Moran had testified that defendant returned home between 11:00 p.m. and midnight in an intoxicated state, and defendant's testimony conceded that he had been drinking that day. Thus, whether he had been drinking in Unit 107 or some other locale was a fact of little if any significance.
In any event, on this record, we find that under either federal or state standards (People v. Roybal (1998) 19 Cal.4th 481, 520; People v. Bolton (1979) 23 Cal.3d 208, 214-215), the prosecutor's statements, even if improper (a finding we do not make), could not have prejudiced defendant. The jury is presumed to have followed the instructions that it was to decide the case based only on the evidence and that counsel's remarks during closing argument were not evidence. (CALCRIM Nos. 200 and 222; People v. Holt, supra, 15 Cal.4th at p. 662.)
Further, defendant's claim that "this was a close case where the evidence of [his] guilt was not open-and-shut" is not accurate. The evidence of defendant's guilt was overwhelming. Sara's testimony about her abduction and sexual victimization was corroborated by multiple sources. Jose A. (Sara's boyfriend) testified that Sara told him she had been raped. Further, his testimony about her demeanor was consistent with her having been sexually assaulted: the evening of the assaults, she was traumatized, and for several days thereafter she did not want anyone to touch or speak with her. (See fn. 3, ante.) Office Chadbourne testified that Sara told him she had been forcibly abducted and sexually assaulted. Lague (the forensic nurse examiner) testified that Sara gave her a detailed account of her abduction and brutalization by defendant, and the jury heard a recording of Lague's interview with Sara. Lastly, Lague testified that Sara's physical injuries, photos of which were introduced into evidence, were consistent with forcible sexual assaults. In sum, "[w]hatever test of prejudice this court applies to the present case, it is certain that any reasonable jury would have reached the same verdict[s] even in the absence of the prosecutor's remarks." (People v. Bolton, supra, 23 Cal.3d at p. 214.)
4. Statements Improperly Shifting the Burden of Proof
Lastly, defendant claims that the prosecutor improperly shifted the burden to him to prove his innocence while discussing the testimony of Moran, his live-in girlfriend at the time of the incident. The prosecutor first referred to the statement in CALCRIM No. 226 that one factor the jury may consider in evaluating defendant's credibility was whether he had made any inconsistent statements. The following then occurred.
"[THE PROSECUTOR]: Prior consistent or inconsistent statements. [Defense] [c]ounsel says that the defendant has no prior inconsistent statement. Well, he does have a prior inconsistent statement and that's the statement that he made to Lilian [Moran] at the police station. When Lilian came up to him and said, you know, they are saying that you kidnapped and raped a woman. She's crying. Can you imagine being told that the person you sleep with, the person you share a bed with kidnapped and raped someone, the father of your child? Can you imagine what's going through her mind? She's looking at him, did you do it? What happened? They are saying it is that night we got into a fight. Where did you go? What did you do? She just wants to believe - she wants so badly to know he's not a kidnapper and a rapist. She even gives him the out. She said, you know, maybe you went on a date with a woman now she's saying it's rape. She's giving him the out. He says no. No. Make him prove it. I didn't do anything. Maybe -
"[DEFENSE COUNSEL]: Objection. That misstates the evidence. That was never said. Words were, 'No, I didn't do it.' Nowhere did he say make him prove it.
"THE COURT: Overruled. The jurors heard the evidence. You will use your memory.
"[THE PROSECUTOR]: Counsel said - counsel tells us, well, he didn't want to tell her that he had been cheating. Really? I know cheating is bad, but as compared to kidnapping and rape? I'd rather hear that you cheated on me than you were a kidnapper and a rapist, not to mention, sure, this woman you can infer that she's put up with that
kind of stuff before. We know that she's found him at the strip bar dumping the kids in front of 7-Eleven and she went back to him. We know that she was still with him at the time that he was arrested, so that means she forgave him for that night that he went out drinking when he was supposed to be working. He didn't come home for the son's birthday. She forgave him when he got arrested for one thing or another. This woman has put up with a lot. She has put up with a lot.
"She could have taken the news that he had cheated on her. But kidnapping and rape, that was too much for her. She's done. If he was innocent he would have told her the truth.
"[DEFENSE COUNSEL]: Objection, Your Honor.
"THE COURT: Overruled. Overruled." (Italics added.)
First, defendant claims that the prosecutor's statement that Moran had testified that defendant had told her "make him prove" Sara's allegations improperly shifted the burden to him to prove his innocence. It did no such thing. Taken as a whole, the prosecutor correctly summarized Moran's testimony about what defendant told her shortly after his arrest and argued it was inconsistent with defendant's trial testimony. The only inaccuracy in the prosecutor's summary was that defendant had not also said "make him prove" it. Defense counsel's objection recognized this issue. However, as the trial court correctly noted, the jury, having heard the evidence, would decide whether the prosecutor had accurately summarized Moran's testimony. The jury is presumed to have followed the court's instructions that it "must decide what the facts are . . . based only on the evidence that has been presented to you in this trial" (CALCRIM No. 200); that "[n]othing that the attorneys say is evidence" (CALCRIM No. 222); and that an attorney's "remarks" in closing argument "are not evidence" (CALCRIM No. 222). (People v. Holt, supra, 15 Cal.4th at p. 662.) Thus, for all of the reasons explained earlier, defendant could not have been prejudiced by the prosecutor's misstatement of an immaterial fact.
Further, we reject defendant's next argument that the prosecutor's statement that "[i]f he [defendant] was innocent he would have told her [Moran] the truth" was misconduct. (Italics added.) The prosecutor was merely commenting on the fact that when defendant first spoke with Moran following his arrest, he lied when he told her he had not been with another woman that evening. Defendant conceded as much during his trial testimony when he admitted that the trial was the first time that Moran learned his version of the events: consensual sexual relations with Sara. Based upon this inconsistency, the prosecutor did nothing more than argue that defendant's claim at trial that Sara consented to have sexual relations with him was not credible because if, in fact, that was what had happened, he would have said so to Moran, given the history of their relationship. This argument was proper. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 315, p. 395 ["A witness may be impeached by evidence of a statement the witness made that is inconsistent with any part of his or her testimony at the hearing. (Evid. Code, 780, subd. (h).) This familiar rule of impeachment of a witness by self-contradiction cases doubt on the truth of both statements."].) Thus, it is patent that the prosecutor's argument did not, as defendant now argues, "improperly suggest[] to the jury that [he] failed to disprove his guilt"; that "[his] cloak of innocence had 'slipped off"; or that he "had the burden to disprove the prosecution's case to show he was innocent."
B. SUFFICIENCY OF THE EVIDENCE
TO SUPPORT THE CARJACKING CONVICTION
In relevant part, subdivision (a) of section 215 defines a carjacking as "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, accompanied by means force or fear."
Defendant contends that the evidence is insufficient to sustain his conviction for this crime because Sara "was not forced to relinquish her vehicle keys by means of force or fear to [defendant]"; she "never relinquished or lost possession of her vehicle"; and he "never gained possession of her vehicle."
People v. Duran (2001) 88 Cal.App.4th 1371 [petn. for review den.] (Duran) rejected essentially the same argument. There, the defendant entered a car and threatened to kill the driver's family if the driver did not take him where he wanted to go. As the driver drove, the defendant, at gunpoint, gave him specific directions. (Id. at pp. 1374-1375.) On appeal, the defendant contended the carjacking conviction should be reversed "because he never succeeded in getting the car away from its owner. . . . Because [the victim and his family] remained in the car during the entire episode, . . . no 'taking' occurred under the meaning of the statute." (Id. at p. 1375.)
Duran, supra, acknowledged that this question was "one of first impression in California [although] other jurisdictions have affirmatively ruled that a 'taking' can occur when the victim remains with the car under other similar carjacking statutes. [Citations.]" (Id. at p. 1376.) Relying upon People v. Alvarado (1999) 76 Cal.App.4th 156 that had reviewed the legislative history of the carjacking statute and found that the Legislature had intended to treat its elements essentially the same as the elements of robbery, Duran, supra, held "that the Legislature intended that the well-established robbery definition of dominion and control be applied to the [then-new] crime of carjacking." (Duran, supra, 88 Cal.App.4th at p. 1377.) Thus, the taking occurred when the defendant "imposed his dominion and control over the car by ordering [the victim] to drive; [the victim's] response in driving the car where [the defendant] directed him provided the asportation element of the completed crime." (Ibid.)
We agree with Duran's analysis. When defendant threatened Sara and ordered her to drive, he asserted his dominion and control over her car. When Sara drove the car in response to defendant's threats, the crime was completed. The prosecution was not required to show anything more to convict defendant of carjacking. Our conclusion is consistent with the policy concerns underlying the Legislature's enactment of the carjacking statute: "[T]he 'considerable increase in the number of persons who have been abducted' in their vehicles and the associated danger to the driver." (People v. Lopez (2003) 31 Cal.4th 1051, 1061.)
C. SECTION 654
Lastly, defendant contends that the trial court's imposition of a consecutive sentence for his carjacking conviction was error. He claims the sentence should have been stayed pursuant to section 654. We disagree.
1. Factual Background
At the sentencing hearing, defense counsel argued that the carjacking was "all part and parcel of the single incident" and, citing section 654, asked the trial court "not to impose a sentence . . . as this is all part and parcel of a single transaction." The trial court disagreed and selected the carjacking as the base term for sentencing on the non-sexual crimes, imposing the five-year midterm. The court explained that it did so "because the defendant considered the planning and preparation that went into that carjacking, and sneaking into the victim's car, and hiding and secreting himself in the back seat." However, the trial did stay, pursuant to section 654, the life sentences for kidnapping with the intent to commit rape and assault with the intent to commit a sexual felony during a first degree burglary. After sentencing on the forcible sex offenses, the court imposed an aggregate term of 50 years to life.
2. Discussion
"'"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."' [Citation.] However, if the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] . . . '"The defendant's intent and objective are factual questions for the trial court; . . . there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]"'" (People v. Green (1996) 50 Cal.App.4th 1076, 10841085.) We review the trial court's finding(s) under the deferential substantial evidence rule. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Here, defendant surreptitiously entered Sara's car while she was in the 7-Eleven. When she returned to the car, he threatened her (verbally and physically) and forced her to drive to the apartment building. After the carjacking had been completed, defendant forced her to accompany him to an individual apartment unit where he committed multiple sexual assaults. Because the carjacking was thus separated by time and place from the sexual assaults, substantial evidence supports the trial court's finding that the carjacking was a separate incident warranting a separate and additional punishment.
D. IMPOSITION OF ADDITIONAL FINES AND ASSESSMENTS
The Attorney General, without any objection from defendant, notes that the trial court failed to impose the required number of fees and assessments and requests modification of the judgment to correct that error.
At the time defendant was sentenced (Sept. 14, 2010), the trial court was required to impose a $30 court security fee on every conviction and a $30 court facilities assessment on every conviction. (§ 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) Because defendant was convicted of nine crimes, the trial court should have imposed $270 in court security fees and $270 for the court facilities assessment. However, it imposed only $240 for each. We direct modification of the judgment to correct that error.
DISPOSITION
The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting an additional $30 court security fee (§ 1465.8, subd. (a)(1)) and an additional $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J. We concur:
EPSTEIN, P. J.
MANELLA, J.