Opinion
C082288
09-14-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID LIONEL CARPENTER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM042939)
Following a jury trial, defendant Lionel David Carpenter was convicted of kidnapping (Pen. Code, § 207, subd. (a)), inflicting corporal injury on his ex-girlfriend (§ 273.5), and criminal threats (§ 422). The trial court sustained two strike allegations (§§ 667, subd. (d), 1170.12) and sentenced defendant to 50 years to life plus 4 years.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in failing to instruct on the crimes associated with the kidnapping, counsel was ineffective in failing to request such instruction, and the sentencing on the corporal injury and criminal threats counts should have been stayed pursuant to section 654. In a supplemental brief, he contends the true finding as to the strike prior based on a federal bank robbery conviction should be reversed for insufficient evidence. We shall reverse the strike allegation, remand for additional proceedings, and otherwise affirm.
BACKGROUND
Around 2:15 p.m. on October 22, 2014, Alicia B. was walking her bicycle down the street in Oroville. She intended to put air in her tires and ride to a friend's house. Before leaving, she called her ex-boyfriend, defendant, to check in and say hello. Defendant offered to give her a ride, but she declined. Defendant tracked down Alicia B. and insisted on giving her a ride in his truck. She refused, but after defendant grabbed Alicia B.'s bicycle and put it in his truck's bed, she got in his truck.
Alicia B. was a regular methamphetamine user who had used the drug with defendant. She had used methamphetamine that day.
As defendant drove off, he started to yell at Alicia B., asking why she did not love him or want to be with him. When Alicia B. requested to be let out of the truck, defendant drove faster and continued to ask why she did not love him. Alicia B. tried to open the truck's door, but defendant grabbed her and stepped on the gas. She yelled for help; defendant told her to stop yelling. He also threatened to drive the truck into a pole and kill both of them.
Steering the truck with his leg, defendant grabbed Alicia B. by the hair and started to punch her. The truck eventually slowed down and almost stopped; she then pushed away from defendant and got out of the truck and onto the ground. Defendant got out of the truck, got on top of Alicia B., and choked her.
Marta Henry was in the parking lot at her office when she saw a white pickup truck swerving through the outside lane of the parking lot at a high speed. The truck's passenger door was open with an arm reaching out as if to prevent the person from falling out. A woman's voice screaming for help and an angry male voice came from inside the truck. Henry called 911.
Around 2:45 p.m. on the day of the incident, Paul Gaines, who was at home on his porch and about 300 feet from the road, saw a white Chevrolet S-10 pickup truck driving slowly. Hands and arms were flailing inside the truck. Gaines got in his car and drove toward the truck. A woman's shoe was in the road several hundred feet from his driveway, and the truck was stopped in the middle of the road.
Gaines saw a man on the side of the road, bent over a woman, with his knee in her chest. He had one hand on her throat and was also swinging at her. The woman was on her back and her face was turning blue. As Gaines walked up the woman got up and ran toward him while the man walked quickly to the truck and left. The woman identified defendant as her assailant.
DISCUSSION
I
Defendant contends the trial court prejudicially erred in failing to instruct the jury on the crimes associated with the kidnapping.
"Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person's consent; and (3) the movement of the person was for a substantial distance. [Citation.]" (People v. Jones (2003) 108 Cal.App.4th 455, 462, fn. omitted.) To constitute kidnapping, " 'the victim's movements must be more than slight [citation] or "trivial" [citation], they must be substantial in character . . . .' [Citation.]" (People v. Martinez (1999) 20 Cal.4th 225, 233.) "[I]n determining whether the movement is ' "substantial in character" ' [citation], the jury should consider the totality of the circumstances. Thus, in a case where the evidence permitted, the jury might properly consider not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (Id. at p. 237, fn. omitted.) Also, "in a case involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement's substantiality." (Ibid.)
As to the substantial distance element of kidnapping, the jury was instructed from the standard kidnapping instruction, CALCRIM No. 1215, as follows: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances . . . relating to the movement. But in addition to considering the actual distance moved, you may also consider other factors such as, whether the movement increased the risk . . . of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection." Defendant did not object to this instruction or request additional instruction on associated crimes.
The Attorney General argues defendant's failure to object or request additional instruction forfeits his contention on appeal. Since defendant's claim addresses instruction on an element of the crime and he asserts any forfeiture is a result of ineffective assistance of counsel, we address his claim on the merits.
The term "associated crime" is defined as "any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will." (People v. Bell (2009) 179 Cal.App.4th 428, 438-439 (Bell).) In Bell, the defendant met his ex-wife Jennings at her workplace so she could repay him some money. (Id. at p. 432.) The defendant was on parole; Jennings told the police he could be arrested that day by her workplace. (Ibid.) The defendant met Jennings, had lunch with her, and eventually parked his car near her work, where police boxed in his parked vehicle to facilitate an arrest for a parole violation. (Ibid.) As officers emerged from their vehicles with drawn guns, the defendant backed into the police vehicle behind him, drove forward at an officer, made an accelerated U-turn, and sped away with his ex-wife still in the vehicle. (Ibid.) The ensuing chase reached speeds of 70 to 80 miles per hour and the defendant ran several stop signs and a red light and drove on the wrong side of the road as he evaded the pursuing police. (Id. at p. 433.) At trial, the ex-wife testified that the defendant let her out after a few feet, but she told a police officer after the incident that she asked the defendant to be let out several times, but was not allowed out until the defendant stopped at an intersection about 70 yards away. (Id. at pp. 432-433.) The defendant was convicted of kidnapping and reckless evasion. (Id. at p. 431.) The Court of Appeal found "[t]he evidence supported a finding that defendant intended to evade the police and did so recklessly. And from the evidence, the jury could have found that in the course of the evasion, Jennings was moved by force or fear against her will. Under these facts, the court should have instructed the jury that, in determining whether defendant's movement of Jennings was substantial, they could consider whether the movement was merely incidental to the crime of evasion (as one factor among others)." (Id. at p. 439.)
Another example of an associated crime is found in People v. Williams (2017) 7 Cal.App.5th 644 (Williams). Four robbers entered a store and forcibly moved a security guard and store employee about 50 feet to the break room, where they were ordered to lie down. (Id. at p. 671.) Those facts could not support convictions for simple kidnapping because the asportation was incidental to the robbery. (Id. at pp. 671-672.)
In People v. Delacerda (2015) 236 Cal.App.4th 282 (Delacerda), Emily's ex-boyfriend, the defendant, was at her apartment when she returned home after spending the night with a different ex-boyfriend. (Id. at pp. 284-285.) Emily told the defendant to leave; he accused her of cheating on him. (Id. at p. 285.) The defendant took out a revolver, put a bullet in the gun, and stood between Emily and the door. (Ibid.) After telling Emily he did not want to hurt her, he removed the bullet, put the gun on the table, and promised to leave if she let him read her e-mails. (Ibid.) Emily went to the bathroom and then her bedroom, where she opened her laptop and sat on the bed with the defendant. (Id. at p. 286.) When the defendant ordered her to show him the e-mails, Emily threw the laptop at him and tried to run away, but the defendant tackled her and dragged her back to the bed, where he told her to sit down. (Ibid.) Emily tried to run again while the defendant read her e-mails, but the defendant tackled her, and held her on the ground as he put a bullet in the gun. (Ibid.) He then put the gun in his mouth and pulled the trigger, after which, he pointed the gun at Emily's face and told her to shut up. (Ibid.) The defendant eventually locked Emily in a closet and read the e-mails, but she was able to get out of the closet, grab her keys, and run to the car. (Id. at pp. 286-287.) The distance from the front door to the closet was 22 feet and the distance from the area near the front door where Emily was tackled to the closet was about 30 to 40 feet. (Id. at p. 287.)
The defendant in Delacerda was convicted of simple kidnapping, false imprisonment, domestic violence battery, and assault with a firearm. (Delacerda, supra, 236 Cal.App.4th at p. 284.) The Court of Appeal found assault with a firearm was not an associated crime under these facts, but the domestic violence count did fit under the definition of associated crime stated in Bell, requiring a reversal of the kidnapping count. (Ibid.) "The evidence here was sufficient to show the relationship between the kidnapping and the domestic violence battery meets the associated crime test under Bell. The evidence supported a finding defendant willfully touched Emily in a harmful or offensive manner. And from the evidence, the jury could have found that in the course of that harmful or offensive touching, Emily was moved by force or fear against her will. Under these facts, the court should have instructed the jury that in determining whether defendant's movement of Emily was substantial, they could consider whether the movement was merely incidental to the crime of domestic violence battery. [Citation.]" (Id. at p. 293.)
There is not the close relationship between the kidnapping and other offenses here as there was in Bell, Williams, and Delacerda. Unlike those cases, the kidnapping here was the first offense acted on and intended by defendant, who had already started moving Alicia B. against her will before he committed the domestic violence and criminal threats crimes. More importantly, defendant moved Alicia B. a far greater distance than the victims in those other cases. Alicia B. asked to get out of defendant's truck not long after getting in, and defendant drove her approximately seven miles before she got out and eventually escaped. The several miles she was moved considerably exceeded the 22 feet to 70 yards the victims were moved in Bell, Williams, and Delacerda. The movement here was not "natural" to the criminal threats and domestic violence counts. (See People v. Salazar (1995) 33 Cal.App.4th 341, 347 [movement of the victim was not "natural" to the rape and therefore not incidental for the purposes of kidnapping].) Defendant could have (and did) commit domestic violence against Alicia B. after he stopped moving her, and he did not have to move her to commit this crime. While the act of driving the truck was part of the criminal threat, where defendant threatened to kill them both by ramming his truck into a pole, the distance he drove Alicia B. far exceeded the distance he needed to drive to make or carry out this threat.
Since the evidence does not support a finding that the asportation was incidental to the domestic violence and criminal threats counts, instruction on associated crimes was not required.
II
Defendant contends the trial court should have stayed sentence on the criminal threats and domestic violence counts pursuant to section 654.
Section 654, subdivision (a) provides in relevant part, "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." The purpose of this statute "is to insure that a defendant's punishment will be commensurate with his culpability. [Citation.]" (People v. Perez (1979) 23 Cal.3d 545, 551.) Section 654 "prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective. [Citation.]" (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) But where a defendant acts with "multiple criminal objectives that [a]re independent of and not merely incidental to each other, then he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Citation.]" (Ibid.) "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
If a defendant kidnaps a person for the purpose of committing another crime, then section 654 prevents imposing punishment for both the kidnapping and the other crime. (People v. Douglas (1995) 39 Cal.App.4th 1385, 1393; People v. Burns (1984) 158 Cal.App.3d 1178, 1181.) If a defendant kidnaps the victim for one purpose and then later forms an intent to commit another crime, then the defendant can be punished for both offenses. (People v. Stringham (1988) 206 Cal.App.3d 184, 204-205; Douglas, at p. 1393.)
There is no evidence defendant intended to commit any other crime when he first kidnapped Alicia B.. He kidnapped Alicia B. to compel her to explain why she did not love him and why they were no longer together. When she would not answer him, defendant became angry and decided to make her fear for her life by committing the criminal threat. As she continued to refuse to answer and tried to escape, an angry defendant determined to physically harm her and committed the domestic violence count. While the kidnapping was a continuous offense, the criminal threats and domestic violence offense were based on separate intents, formed after the kidnapping. There was no violation of section 654.
Defendant's claim we should remand for the court to make the necessary findings that sentencing should not be stayed under section 654 is likewise without merit. After the trial court imposed sentence by sentencing defendant consecutively on each count, defense counsel objected, claiming sentence should be stayed on the domestic violence and criminal threats counts pursuant to section 654. The trial court rejected the claim, finding the crimes had independent objectives. In light of the trial court's finding and the evidentiary support for it, there is no need for the trial court to make any additional finding.
"Before determining whether to impose either concurrent or consecutive sentences on all counts on which the defendant was convicted, the court must determine whether the proscription in section 654 against multiple punishments for the same act or omission requires a stay of execution of the sentence imposed on some of the counts." (Cal. Rules of Court, rule. 4.424.) --------
III
Defendant contends in a supplemental brief there is insufficient evidence to support the strike allegation based on a federal bank robbery conviction. The Attorney General concedes the point and asserts the strike finding should be reversed and the matter remanded to allow the People an opportunity to supply sufficient proof that the federal prior was a strike. We agree with the Attorney General.
Under California's three strikes law, a defendant's sentence is enhanced upon proof that the defendant has been previously convicted of a "strike" — a " 'violent felony' " as defined in section 667.5, subdivision (c), or a " 'serious felony' " as defined in section 1192.7, subdivision (c). (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).)
One of defendant's two strike allegations was based on his 1998 federal conviction for bank robbery (18 U.S.C. § 2113 (a) & (d)) with an enhancement for using or carrying a firearm (18 U.S.C. § 924 (c)). In the bifurcated bench trial on the strike allegations, the People submitted sentencing documents which described the federal prior as a "bank robbery" and "using and carrying a firearm during a crime of violence, and that defendant was ordered to pay restitution to three different banks. The documents also indicated defendant was convicted through a plea agreement. The trial court sustained the strike allegation based on this evidence.
Robbery is a serious and violent felony and therefore a strike. (§§ 667.5, subd. (c)(9); 1192.7, subd. (c)(19).) "For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law [citation], the foreign crime (1) must be such that, 'if committed in California, [it would be] punishable by imprisonment in the state prison' [citations], and (2) must 'include[] all of the elements of the particular felony as defined in' section 1192.7 [subdivision] (c) [citations]." (People v. Warner (2006) 39 Cal.4th 548, 552-553.)
"[I]f the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the serious felony nature of the prior conviction depends upon the particular conduct that gave rise to the conviction, the record is insufficient to establish that a serious felony conviction occurred." (People v. Miles (2008) 43 Cal.4th 1074, 1083.) Since the federal bank robbery statute encompasses acts that would constitute robbery or second degree burglary under California law, a bare violation of the federal bank robbery statute is not a serious or violent felony and thus cannot qualify as a strike. (Id. at pp. 1081-1082.) While assault with a firearm (§ 245) and any felony in which the defendant personally uses a firearm in the commission are serious felonies (§ 1192.7, subd. (c)(23), (31)), since the federal firearm enhancement applies to one who "uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" (18 U.S.C. § 924 (c)(1)), a bare federal firearm enhancement likewise cannot on its own support a strike finding
In a case decided during the pendency of this appeal, People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), the California Supreme Court reconsidered its previous position on what a trial court may consider when determining whether to impose a greater sentence based on a prior conviction in light of decisions of the United States Supreme Court in Descamps v. United States (2013) 570 U.S. 254 and Mathis v. United States (2016) 579 U.S. ___ . Disapproving its earlier holding in People v. McGee (2006) 38 Cal.4th 682, the California Supreme Court held: "we now hold that a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' [Citation.] The court's role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Gallardo, at p. 136, fn. omitted.) "While a trial court can determine the fact of a prior conviction without infringing on the defendant's Sixth Amendment rights, it cannot determine disputed facts about what conduct likely gave rise to the conviction." (Id. at p. 138.)
We agree with the parties that Gallardo is dispositive. Since the federal offense and enhancement defendant pled to can involve conduct that does not constitute a strike, and since the factual basis of the plea was not provided, there is insufficient evidence to support the strike allegation based on the federal offense.
The remedy in Gallardo was a remand in order "to permit the People to demonstrate to the trial court, based on the record of the prior plea proceedings, that defendant's guilty plea encompassed a relevant admission about the nature of her crime." (Gallardo, supra, 4 Cal.5th at p. 139.) Defendant contends such a remand is contrary to the rule of Apprendi v. New Jersey (2000) 530 U.S. 466 . We are bound by Gallardo and accordingly reject this contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The trial court's finding that the federal prior conviction for bank robbery is a strike is reversed and the matter is remanded for further proceedings consistent with Gallardo, supra, 4 Cal.5th 120. The judgment is otherwise affirmed.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Hoch, J.