Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Super. Ct. No. 04NF3373
Laura P. Gordon, under appointment of the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Following his convictions for kidnapping and vehicle theft, appellant was sentenced to 22 years and 4 months in prison. He contends there is insufficient evidence to support his convictions, and his sentence violates Penal Code section 654 and the tenets of Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856]. We reject these contentions and affirm the judgment.
All further statutory references are to the Penal Code.
Just before two o’clock one morning, Jose Gutierrez pulled his motor home up to a Chevron gas station/convenience store to use the restroom. Appellant was standing in front of the store, and when Gutierrez went inside, Yvonne Mullins exited the store. Gutierrez was only in the restroom a few minutes, but when he came back out at 2:03, his vehicle was gone, as were Mullins and appellant. Gutierrez had left his keys in the ignition.
The timing of events at the gas station is clear, because they were recorded on a surveillance tape.
Gutierrez’s girlfriend Julia Barber had been sleeping in the back of the motor home. However, she awoke when Mullins and appellant entered the vehicle. Mullins (the driver) took off so fast that things started flying around in the back and Barber had difficulty keeping her balance. Thinking Gutierrez was driving, she yelled for him to slow down. Mullins replied, “Shut up, bitch,” and appellant told her she was “going for a ride.”
Once she got her bearings, Barber peeked into the cab and saw her captors. She was “petrified” and started screaming. Her anxiety only increased when appellant told Mullins, “[P]ull over so I can take care of this white bitch.” Mullins did not stop right away, but when Barber lied and said there were children in the back, she pulled over. She and appellant then jumped out of the motor home and walked away with the keys.
That was not the end of it, though. Barber retrieved her purse, got in the driver’s seat and was digging around for her spare keys when appellant and Mullins suddenly returned to the vehicle. Realizing there were no children inside, appellant yelled at Barber to “get the fuck out” and attempted to open her door. When Barber tried to hold down the lock, appellant told her, “Bitch, I got the keys.” Somehow, the driver’s door opened and Barber fled. She hit her head on the door and lost her balance momentarily, yet managed to make it to a nearby house. She was distraught and having considerable difficulty walking and breathing. She even needed help dialing 911 to call the police.
While she was talking to the 911 operator, officers arrived on the scene and apprehended appellant and Mullins. Patrol Officer Alicia Galvan arrived a few moments later, at approximately 2:12 a.m. She estimated it was about a half mile and a two-minute drive from the Chevron station to the arrest scene. She also said she had contacted appellant about an hour earlier, near the Chevron station. At that time, appellant smelled of alcohol and told Galvan he was in the area looking for sex. Galvan told him to leave, and he did.
When Galvan interviewed appellant at the arrest scene, he claimed his name was Baron Stevenson. He said he met Mullins by the Chevron station and then went inside with her to get some food. As he was paying for some chips, Mullins went outside. Then he left the store, and she pulled up in the motor home. Thinking the vehicle was hers, he got in and they drove off together.
Appellant did not testify, but in closing argument his attorney argued he was just out to have a good time with Mullins and did not intend to commit any crimes. The jury convicted him of kidnapping and vehicle theft and also found he had suffered several prior serious felony convictions/adjudications. The court sentenced him to 22 years and 4 months in prison, which included an upper term on the kidnapping count and a consecutive term on the theft count.
I
Appellant argues there is insufficient evidence to support his convictions, but we are not persuaded.
“When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence — that is, evidence which is reasonable, credible, and of solid value — from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. [Citations.] In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.] Moreover, because it is the jury, not the reviewing court, that must be convinced of the defendant’s guilt beyond a reasonable doubt, we are bound to sustain a conviction that is supported by only circumstantial evidence, even if that evidence is also reasonably susceptible of an interpretation that suggests innocence. [Citation.]” (People v. Little (2004) 115 Cal.App.4th 766, 771.)
“Every person who 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, is guilty of kidnapping.” (§ 207, subd. (a).) The crime may be committed even when, as here, the victim’s initial presence in the subject vehicle is voluntary. (People v. Camden (1976) 16 Cal.3d 808.) In that situation, the defendant “‘may nevertheless be guilty of kidnapping if he subsequently restrains [the] victim’s liberty by force and compels the victim to accompany him further.’ [Citations.]” (Id. at p. 814.)
While recognizing this rule, appellant contends there is insufficient evidence Barber was moved by means of force or fear after he and Mullins became aware of her presence in the back of the motor home. In his view, there simply “is no evidence Barber’s free will was overcome or her liberty forcibly restrained” after that point. We disagree.
In the first place, Barber was driven away in a motor home. Dragging a woman away by her hair is not the only way to use force in moving her. Force is force, whether human or mechanical, and driving someone away in a motor home while they are in the back screaming in terror, qualifies. (See People v. Camden, supra, 16 Cal.3d at p. 812 [although victim voluntarily entered defendant’s car, kidnapping conviction affirmed where defendant prevented victim “from leaving the automobile because of the high rate of speed at which the car was being driven”].)
Force was also evidenced in the way appellant and Mullins treated Barber. As soon as they realized she was in the back of the motor home, they told her in no uncertain terms and in a manner easily interpreted as threatening to shut up, called her a bitch and informed her she was going for a ride. Appellant also exhorted Mullins to pull over so he could “take care of” Barber. He didn’t say he just wanted to drop her off, which would have been sufficient to facilitate the vehicle theft; rather his statements were clearly designed to intimidate and subdue her. That Mullins didn’t pull over at that exact moment and that Barber continued screaming do not negate appellant’s intent in this regard. Barber was clearly terrified by the ordeal, and the fact is, appellant continued to use threatening language toward her right up until the moment she escaped. He even tried to force his way into the motor home when he came back to the vehicle and she was sitting in the driver’s seat. Viewed collectively, it is easy to see how this evidence convinced the jury appellant and Mullins were acting collaboratively and that both of them, once they realized Barber was present, intended to, and actually did, restrain her by force and fear.
Appellant also argues there is insufficient evidence Barber was “moved a distance that was ‘substantial in character.’” (People v. Martinez (1999) 20 Cal.4th 225, 237.) As our Supreme Court explained in Martinez, a variety of factors are relevant in considering whether this requirement has been met in a given case. These include the actual distance the victim was moved, whether the movement increased the victim’s risk of harm (by decreasing the likelihood of detection, making it more difficult to escape and enhancing the opportunity for additional crimes), and whether the movement was incidental to another offense. (Id. at pp. 235-238.) The idea behind this multi-factor approach to the asportation requirement of kidnapping is “to direct attention to the evidence presented in the case, rather than to abstract concepts of distance.” (Id. at p. 237.)
Thus, it is not dispositive that the length and duration of Barber’s movement was relatively short. The nature of her asportation was, by all other measurements, substantial in nature. For starters, the physical circumstances of the asportation were themselves daunting. Mullins drove away from the gas station so fast that Barber was tossed about in the back of the motor home. She had a hard time staying on her feet and objects were flying about from the shelves. This put her in peril of physical harm, if nothing else.
It also made it harder for her to escape. Given the way Mullins was driving, there was no way Barber could realistically flee the moving motor home. And by driving Barber away from the gas station, where her boyfriend Gutierrez and others were, Mullins and appellant decreased their likelihood of detection and increased their opportunity to commit additional crimes. Although Barber eventually managed to escape to safety, there was certainly no guarantee anyone would be around and willing to assist her, given the late hour. (See People v. Stender (1975) 47 Cal.App.3d 413, 423 [“200 feet becomes more a substantial distance when it is considered it accomplished the purpose of removing the victim from the ready help of her mother”].)
Appellant further contends that Barber’s movement was merely incidental to the vehicle theft, but the record indicates appellant and Mullins were unaware of Barber’s presence at the time of the initial taking. Thus, this is not a case where the victim was transported for the sole purpose of committing another offense. (Compare People v. Daniels (1969) 71 Cal.2d 1119, 1130-1131 [asportation requirement lacking where movement of victim was merely incidental to rapes and robberies].) Rather, it readily appears appellant and Mullins committed the crime of vehicle theft, and then during the commission of that offense, used force or fear to restrain Barber in violation of the kidnapping statute. This subjected Barber to increased harm over and above that which was inherent in the vehicle theft. For all of these reasons, we find Barber’s movement was substantial in character, and there is sufficient evidence to uphold appellant’s conviction for kidnapping.
We also uphold his conviction for vehicle theft. Appellant argues he was merely present at the scene of the crime and did not independently contribute to the theft in such a way as to say he furthered or facilitated the crime, but we are not convinced. “[A]ny person concerned in the commission of a crime, however slight that concern may be, is liable as a principal in the crime.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 532.) It is sufficient if the person “‘by act or advice, aids, promotes, encourages or instigates the commission of the crime.’ [Citations.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) “[I]n general neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, ‘[a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ [Citation.]” (Ibid.)
Appellant’s involvement in the taking of the motor home cannot be gainsaid. He was at the gas station when Gutierrez pulled up and entered the store, and by that time he had already met and spoken with Mullins. She happened to leave the store at the precise moment Gutierrez entered it, and after that, it was but moments before she and appellant made off with Gutierrez’s vehicle. During the ride, appellant made hostile and intimidating remarks toward Barber, and when he and Mullins returned to the vehicle after their brief departure, it was appellant who had the keys and confronted Barber. He also gave false information to the police afterwards.
These are not the actions of a bystander who happened to see criminal activity and chose not to do anything about it. Instead, they readily indicate that appellant was part of a plan to steal the motor home and that he actively aided, promoted and instigated the commission of that offense. That is sufficient to support his conviction for vehicle theft.
II
Appellant argues the court should have stayed his sentence for vehicle theft pursuant to section 654 because the kidnapping offense was part and parcel of the theft. We cannot agree.
Section 654 states, “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.” (§ 654, subd. (a).) This section “applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.” (People v. Perez (1979) 23 Cal.3d 545, 551.)
The key to applying section 654 is ascertaining the objective behind the defendant’s actions: “If all [of his] 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, supra, 23 Cal.3d at p. 551.) However, if the defendant “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 (1973) 8 Cal.3d 625, 639.)
That being the case, “[p]roximity in time between criminal events does not preclude multiple punishment . . . .” (In re Hayes (1969) 70 Cal.2d 604, 609.) Although two crimes may be committed close in time, or even simultaneously, section 654 does not apply unless the defendant acted with a singular intent and committed one of the crimes solely as a means of committing the other. (Compare Neal v. State of California (1960) 55 Cal.2d 11 [defendant who burned down a barn for the sole purpose of committing murder could not be punished for both arson and murder] with People v. Alvarado (2001) 87 Cal.App.4th 178, 197 [defendant could be convicted of both robbery and rape where each offense “had its own unique objective, and neither was merely incidental to or a means toward committing the other”].)
Appellant did not take the motor home for the purpose of kidnapping Barber. In fact, the evidence indicates he did not even know she was inside the motor home at the time of the taking. Therefore, during the course of events, he must have harbored separate and distinct intentions — the intent to steal and the intent to kidnap. Even though the two offenses overlapped in the short time span during which they occurred, section 654 does not apply. Because the theft was not intended as a means of committing the kidnapping, the two crimes are separately punishable.
The fact the trial court used different reasoning to reach this same result is immaterial because we review the court’s action, not its reasoning. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.)
III
Relying on Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham), appellant claims the trial court violated his constitutional right to a jury trial by sentencing him to the upper term on the kidnapping count. Again, we disagree.
Following the verdict on the underlying counts, a bifurcated trial was conducted with respect to the following allegations: (1) Appellant suffered a strike conviction for robbery in 1992; (2) the same conviction also constituted a prior serious felony conviction for purposes of section 667, subdivision (a); and (3) appellant suffered three juvenile strike adjudications for robbery arising out a single case in 1982. The jury found all of these allegations true.
At the sentencing hearing, appellant challenged the jury’s findings on the priors, and the court agreed with him that with respect to the issue of identity, the three juvenile strike adjudications had not been sufficiently proven. However, the court did uphold the jury’s finding with respect to the prior strike conviction and the prior serious felony conviction, which, as set forth above, were based on the same underlying conviction. The court also declined appellant’s request to dismiss the prior strike conviction in the interest of justice. (See § 1385.)
The court then proceeded to calculate appellant’s sentence. Relying on appellant’s “prior convictions,” the fact he had engaged in violent conduct (both in this case and in the past), and the absence of any mitigating factors, the court imposed the upper term of eight years on the kidnapping count. It imposed a consecutive eight-month sentence for the theft (one-third the midterm) and then doubled both terms due to appellant’s prior strike conviction. (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1).) The court also tacked on a consecutive five-year enhancement based on the fact appellant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), bringing his total sentence to 22 years and 4 months.
Appellant targets but one aspect of his sentence, that being imposition of the upper term on the kidnapping count. Relying on Cunningham, he contends that in order to satisfy the Sixth Amendment, facts used to impose an upper term must be found by a jury to be true beyond a reasonable doubt. (See also Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466.) As a general rule that is true (ibid.), but the rule does not apply to the fact of a prior conviction. (Cunningham, supra, 127 S.Ct. at p. 868, citing Almendarez-Torres v. United States (1998) 523 U.S. 224.)
As our Supreme Court recently explained in People v. Black (July 19, 2007, S126182) __ Cal.4th __, __, the prior conviction exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.]” These facts and issues pertaining to the defendant’s criminal history do not have to be proved beyond a reasonable doubt by a jury, but instead may be adjudicated by the trial judge using a preponderance of the evidence standard. (Id. at p. __, fn. 9.) Therefore, the trial court did not violate appellant’s constitutional rights by relying on his prior convictions to impose the upper term. (Ibid.; see generally Cal. Rules of Court, rule 4.421(b)(2) [the fact defendant’s prior convictions are “numerous or of increasing seriousness” is an aggravating factor for sentencing purposes].)
Nevertheless, appellant asserts the trial court made an improper dual use of facts by using his prior strike conviction both to impose the upper term and double his base term. Section 1170, subdivision (b) provides, “The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” However, in imposing the upper term in this case, the trial court made reference generally to appellant’s “prior convictions.” It did not single out any one conviction in particular.
As reflected in appellant’s probation report, he has suffered at least 10 convictions since 1982, ranging from drug possession and joyriding to attempted burglary and robbery, and that’s not including his prior strike conviction. So, even if appellant’s prior strike conviction was off limits because of section 1170, subdivision (b) — which the Attorney General disputes but we need not decide — the trial court was fully justified in imposing the upper term based on appellant’s lengthy criminal history. (See People v. Black, supra, __ Cal.4th __.) The presence of a single constitutionally valid aggravating factor, such as the defendant’s prior record of convictions, will suffice to justify the imposition of an upper term. (Ibid.) As that factor is overwhelmingly established in this case, there is no basis for disturbing appellant’s sentence. No constitutional or statutory violation has been shown.
The judgment is affirmed.
WE CONCUR: O’LEARY, J. MOORE, J.