Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 06CF0754, James A. Stotler, Judge.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey Koch and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Carlos Angel of three counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)), three counts of kidnapping a child for ransom (§ 209, subd. (a)), one count of first degree robbery at an automated teller machine (§§ 211, 212.5, subd. (b)), three counts of second degree robbery (§§ 211, 212.5, subd. (c)), and two counts of making criminal threats (§ 422). The court imposed an aggregate determinate sentence of six years, comprised of the middle term of four years for the first degree robbery, and two consecutive one year terms (one-third the midterm) for two of the second degree robberies. Consecutive to the determinate term, the court sentenced defendant to concurrent sentences of life with the possibility of parole on one count each of kidnapping to commit robbery and kidnapping a child for ransom. Sentences on all other convictions were stayed pursuant to section 654.
All statutory references are to the Penal Code unless otherwise stated.
On appeal defendant contends, and the People agree, insufficient evidence supports his conviction on two counts of kidnapping to commit robbery and two counts of kidnapping for ransom. Defendant further contends insufficient evidence supports his conviction on three counts of second degree robbery. Finally, defendant argues the court should have stayed punishment, pursuant to section 654, for all the robbery counts.
We reverse the judgment as to two counts of kidnapping to commit robbery and two counts of kidnapping for ransom. In all other respects, we affirm the judgment.
FACTS
The victim, N. Molina, a 26-year-old mother carrying her infant son and a clear plastic purse, left her Santa Ana house and walked toward an appointment on the morning of March 2, 2006. Another woman crossed the street, approached Molina and asked her where an address was located. At that moment, a white Explorer driven by defendant, made a turn and pulled up to the curb next to Molina. The woman displayed a knife and told Molina to get in the Explorer or “something” would happen to Molina’s baby. Molina felt afraid for her baby. The woman got into the back of the Explorer with Molina and the baby, took Molina’s purse and found Molina’s bank card. The woman instructed defendant to drive to the Bank of America.
Defendant parked the Explorer on Main Street by the Bank of America. He instructed Molina to go into the bank with the woman, withdraw money, and bring him the money with a receipt. Feeling afraid, Molina withdrew $500. Once outside the bank, the woman told Molina to get in the vehicle and sat beside her. Defendant took the cash and the receipt and gave the cash to the woman. The receipt denoted the balance remaining in Molina’s account.
Defendant drove away from the bank and continued driving for “about five or ten minutes” before parking again, this time near the “back part” of the same bank. He told Molina to withdraw more money. Carrying her baby, Molina withdrew $300 from the automated teller machine; defendant and the woman stood behind Molina. Defendant looked at the receipt and told Molina she had to withdraw another $500. The woman put the $300 and the receipt in her pocket. She told Molina she knew where Molina lived and that something would happen to the baby if Molina did not do as they told her.
With everyone back in the Explorer, defendant drove away and then back again to the bank. Defendant instructed Molina to go in the bank, withdraw $500, and, if the teller asked why she was withdrawing so much money, to reply she needed it. Molina felt frightened because of her baby and withdrew $500 as instructed. According to bank records, this third withdrawal of cash took place 30 minutes after the first withdrawal.
Outside the bank, the woman told Molina to get back in the vehicle. Molina gave the $500 and the receipt to the woman. Defendant took the receipt. Molina still felt frightened.
As defendant drove away, he told Molina to take off her ring and give it to the woman. Molina felt afraid of both defendant and the woman. A police car stopped the vehicle. The woman showed Molina the knife, told her “not to do anything,” and said “if not, something was going to happen to the baby.” Defendant told Molina not to move and told the woman not to move so the police would not see the baby in Molina’s arms instead of in a car seat. Defendant gave his papers to a police officer and got out of the Explorer. The officer gave defendant a traffic citation, then watched defendant drive away.
After driving away, defendant dropped off Molina and her baby in a Target parking lot. Defendant and the woman told Molina “they would kill her and her family” and knew where they lived. Molina felt afraid.
Molina went to her appointment at a health care agency where she reported the incident. An officer was called to the location and spoke with Molina who was upset and crying.
Molina identified defendant’s photograph from a “six-pack lineup.” The police obtained a warrant for defendant’s arrest, and learned his address from the traffic citation issued that day. They found the white Explorer parked near defendant’s house. The police arrested defendant and found the traffic citation in his wallet. The police were unable to identify the female suspect.
DISCUSSION
Multiple Convictions
Defendant contends the evidence was insufficient to support four of his six kidnapping convictions. The People concede the evidence shows defendant “was guilty [of] only two counts of kidnap[p]ing” — one for kidnapping Molina and one for kidnapping Molina’s son. A defendant can “be convicted of only one count of kidnapping to commit robbery, [where] there was a single abduction followed by a continuous period of detention.” (People v. Jackson (1998) 66 Cal.App.4th 182, 190.) We must thus reverse two of defendant’s kidnapping for robbery convictions and two of his kidnapping for ransom convictions.
As to his four robbery convictions, defendant contends the evidence was sufficient to support only one robbery. The People counter the evidence showed defendant “was guilty of four separate robberies” because “each was a crime against the person, each occurred at a distinctly separate time, and each evidenced a renewed intent.”
In deciding whether the evidence supports the jury’s findings defendant committed four separate robberies, we “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.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Id. at p. 576.)
“Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.” (People v. Bailey (1961) 55 Cal.2d 514, 519 (Bailey).) “Whether there were separate independent takings or one general scheme is a question of fact based on the particular circumstances of each case.” (People v. Packard (1982) 131 Cal.App.3d 622, 626.)
Defendant relies on People v. Brito (1991) 232 Cal.App.3d 316 (Brito), where the Court of Appeal stated, “A defendant commits only one robbery no matter how many items he steals from a single victim pursuant to a single plan or intent.” (Id. at p. 326.) The operative phrase here is “pursuant to a single plan or intent.” In Brito, the robbery involved a single location and a brief space of time in which the defendant leaned into the victim’s vehicle, pointed a gun at the victim, “demanded gold and money,” looked back at honking motorists as the victim “fled through the driver’s door,” shot the victim in the back, and then drove away in the vehicle. (Id. at p. 320.) The appellate court concluded the defendant “attempted to commit a robbery and during the course of events stole the vehicle” (id. at p. 325), i.e. the defendant stole an item he identified “during the same transaction.” (Id. at p. 326.)
Similarly, defendant relies on People v. Richardson (1978) 83 Cal.App.3d 853 (Richardson), disapproved on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682, where the Court of Appeal stated, “The test applied in theft prosecutions in determining if there are separate offenses or one offense is whether the evidence discloses one general intent or distinct and separate intents.” (Richardson, at p. 866.) Richardson involved “a scheme whereby City of Los Angeles Controller’s warrants were obtained by an unauthorized means and made payable to fictitious commercial payees.” (Id. at p. 858.) The defendant was convicted of four counts of attempted grand theft, but the appellate court reversed three of the convictions, stating, “That four separate warrants were the means by which this end was to be achieved does not ‘splinter‘ the crime into four separate offenses.” (Id. at p. 866.) The evidence showed the defendant gave all four warrants to the same individual on the same date to precipitate the unified scheme that was then carried out by other individuals. (Id. at p. 858.)
In sum, Brito and Richardson each involved facts supporting a reasonable inference the defendant acted pursuant to a single plan or intent.
Here, in contrast, substantial evidence supported the jury’s finding defendant committed four separate and distinct robberies. Each robbery was separated by some passage of time from the others. Between each robbery, defendant drove around. Between each cash withdrawal from the bank, defendant took from Molina the transaction slip which showed the remaining balance in her account. The robberies took place at various locations: two occurred inside the bank, one at the ATM outside, and one inside the Explorer. The final robbery involved Molina’s ring, rather than cash. Based on this evidence, the jury could find defendant had a new plan and intention with respect to each robbery.
Alternatively, defendant argues “a robbery continues until the defendant has escaped with the stolen goods and has reached a place of temporary safety,” citing People v. Turner (1983) 145 Cal.App.3d 658, 681 (Turner), disapproved on another ground in People v. Newman (1999) 21 Cal.4th 413, 415. But Turner involved “the ‘continuous conduct exception’ . . . to the general rule requiring jury unanimity on the specific acts constituting a criminal offense.” (Turner, supra, 145 Cal.App.3d at p. 681.) Defendant cites no authority for expanding the continuous conduct exception to answer the issue at hand — i.e. under what circumstances are multiple convictions appropriate for an arguably single course of action — in lieu of the Bailey doctrine which focuses on the singularity of intention, plan or impulse.
Finally, our Supreme Court, distinguishing between multiple convictions and multiple sentences “for offenses arising out of a single act or course of conduct,” has instructed courts to, in general, “permit multiple convictions on counts that arise from a single act or course of conduct — but to avoid multiple punishment, by staying execution of sentence on all but one of those convictions.” (People v. Ortega (1998) 19 Cal.4th 686, 692, distinguished on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228.)
Multiple convictions, however, “‘may not be based on necessarily included offenses.’” (People v. Ortega, supra, 19 Cal.4th at p. 692.)
We thus move to defendant’s next contention, that the court erred by failing to stay his sentences on three robbery counts under section 654.
Multiple Punishments
Defendant contends his four robbery convictions “are based on one course of conduct that includes the same acts, intention and application of force as the kidnappings for robbery/extortion . . . .” He asserts “the terms for all the robbery counts should have been stayed under section 654 because the kidnappings were found by the jury to be for the purpose of extortion and robbery of [the victim’s] money and her ring.” Defendant further argues “the taking of each item from a single victim in the course of a single course of conduct cannot be separately punished,” citing People v. Bauer (1969) 1 Cal.3d 368.
The People agree section 654 bars punishment for the first robbery committed by defendant since that robbery was the purpose of the kidnapping, and defendant was sentenced for kidnapping to commit robbery. In People v. Beamon (1973) 8 Cal.3d 625, our Supreme Court held that, where a defendant is “convicted of kidnap[p]ing for the purpose of robbery and [also] for the commission of that very robbery” “committed pursuant to a single intent and objective,” the defendant may “be punished for only one of such crimes.” (Id. at pp. 639-640.) As discussed below, the court did indeed stay sentence on the first robbery committed by defendant. But as to the subsequent robberies, the People contend the “court could reasonably find that the second, third and fourth robberies were not part of the initial plan, were not incidental to the first robbery, and were temporally distinct,” and thus “could punish them separately from the initial robbery for kidnapping.”
The court sentenced defendant as follows: An aggregate determinate term of six years, comprised of (1) the middle term of four years for the first degree robbery at an automated teller machine (count 10); (2) a consecutive term of one year (one-third the midterm) for one of the second degree robberies (count 8); (3) a consecutive term of one year (one-third the midterm) for another of the second degree robberies (count 7); (4) life with the possibility of parole for kidnapping to commit robbery (count 1); and (5) life with the possibility of parole for kidnapping a child for ransom (count 2). The two life terms were to be served concurrently but consecutive to the determinate term. The court stayed punishment under section 654 for all other convictions including the initial second degree robbery (count 7). The court stated “the time of the transactions . . . show that there was an opportunity between these transactions for reflection on the part of the defendant.” The court noted “the evidence showed [the funds] were taken with three different transactions,” and cited several cases supporting “the separate transaction aspect.”
“The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon, supra, 8 Cal.3d at p. 639.)
In People v. Trotter (1992) 7 Cal.App.4th 363, the defendant fired a gunshot at a police car, then fired a second shot about a minute later, and seconds later fired a third shot. (Id. at p. 366.) The trial court imposed consecutive sentences for two of the assaults, and the appellate court affirmed the sentence, stating: “All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. . . . ‘[D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.’” (Id. at p. 368.)
In People v. Surdi (1995) 35 Cal.App.4th 685, a defendant argued section 654 prohibited sentencing him for both kidnapping and mayhem because “the kidnapping was for the sole purpose of beating [the victim], which encompassed . . . the mayhem . . . count[.]” (Id. at p. 688.) Over the course of the kidnapping, the victim was stabbed numerous times, kicked, strapped around the neck with a seat belt, and dragged to a dirt riverbed. This court held the defendant “was properly punished for committing kidnapping and mayhem” (id. at p. 690), stating: “Like Trotter, the offenses presently under review did not arise from a single volitional act. Rather, they were separated by considerable periods of time during which reflection was possible.” (Id. at p. 689.)
Here, defendant asserts the record does not support the finding he “carefully consider[ed] the consequences of his actions in between the takings . . . .” But the trial court decided otherwise, and the record amply supports the court’s finding. Certainly, defendant had time to reflect, calculate and formulate an intent before each robbery, and used that time to drive around and/or look at bank receipts. Defendant contends his “demonstrated intent” from the outset was to take as much money as possible from the victim’s account. But where a robber “commits several robberies and claims he had one objective, to gain money,” he may be “multipl[y] punish[ed] for separate crimes” where each act is “‘committed with a separate identifiable intent and objective.’” (People v. Lochmiller (1986) 187 Cal.App.3d 151, 153-154.)
The court properly punished defendant for three robberies.
DISPOSITION
The judgment is reversed as to the convictions for kidnapping to commit robbery in counts three and five of the May 2, 2006 information and the convictions for kidnapping a child for ransom in counts four and six. In all other respects, the judgment is affirmed. Since punishment on the reversed counts was stayed under section 654, resentencing is not required.
WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.