Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno CountySuper. Ct. No. F04900055-5. Ralph Nunez, Judge.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous, II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Hill, J. and Kane, J.
Appellant pled guilty to one count of carjacking (Pen. Code § 215, subd. (a)) and one count of second degree robbery (§ 211), and admitted as to each offense an allegation that he was armed with a deadly or dangerous weapon (§ 12022, subd. (b)(1)). He also admitted special allegations of a prior prison term (§ 667.5, subd. (b)), prior serious felony conviction (§ 667, subd. (a)), and prior strike conviction (§ 667, subd. (b)-(i) & § 1170.12, subd. (a)-(d)). The court dismissed the strike allegation. For the carjacking offense, it imposed the upper term of nine years, with an additional one year term for the weapon enhancement and an additional five year term for the prior serious felony conviction. For the robbery offense, it imposed a consecutive one year term (one-third of the midterm sentence), and four months for the weapon enhancement (one-third of the weapon enhancement). The entire term was stayed and defendant was placed on probation. When he failed to meet the conditions of probation, the court ordered execution of the previously stayed term. Appellant appeals, contending that the consecutive term imposed for the robbery offense was an unauthorized sentence that must be corrected.
Further statutory references are to the Penal Code unless otherwise specified.
DISCUSSION
After defining the offense of carjacking, Penal Code section 215 provides:
“This section shall not be construed to supersede or affect Section 211. A person may be charged with a violation of this section and Section 211. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211.” (§ 215, subd. (c), italics added.)
Under this subdivision, a defendant may be convicted of both carjacking and robbery, but he may not be punished for both offenses if they arose out of the same act. (People v. Ortega (1998) 19 Cal.4th 686, 700.) No case has been found expressly interpreting the meaning of “the same act” as that phrase is used in section 215, subdivision (c). Instead, cases discussing whether defendant can be punished for both carjacking and robbery have analyzed that question under section 654. Section 654 provides:
“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.…” (§ 654, subd. (a), italics added.)
Section 654 precludes multiple punishments for a single act or indivisible course of conduct. (People v. Coleman (1989) 48 Cal.3d 112, 162.) “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.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
In People v. Dominguez (1995) 38 Cal.App.4th 410, the court declined to interpret the term “the same act” in section 215, and instead analyzed the issue of multiple punishment under section 654. The victim, Carvallo, parked his van in a parking lot. Defendant entered the van through the side door, placed a cold, metallic object against Carvallo’s neck, grabbed him, and stated, “‘“Give me everything you have. If you turn around, I’ll kill you.”’” Carvallo gave defendant his rings and a chain, and then ran. Defendant was convicted of second degree robbery and carjacking. (People v. Dominguez, supra, 38 Cal.App.4th at p. 414.) The trial court imposed the upper term, plus enhancements, for the carjacking, and a concurrent term for the robbery. (Id. at pp. 415-416.) Defense counsel argued the term for robbery was precluded by section 654; the prosecutor observed “‘it was a separate act of violence,’” but conceded “it would probably fall under 654.” (People v. Dominguez, supra, 38 Cal.App.4th at p. 416, fn. 4.)
On appeal, defendant argued section 654 precluded punishing him for both offenses. (People v. Dominguez, supra, 38 Cal.App.4th at pp. 416-417.) The prosecution argued that section 215 altered the usual rules for the application of the ban on multiple punishment in section 654; it contended the term “the same act,” as used in section 215, signaled a rejection of the “single intent and objective” test set out in Neal for determining whether multiple punishments were barred under section 654. (People v. Dominguez, supra, 38 Cal.App.4th at p. 417.) The court concluded:
“However, this court does not need to reach that issue. The prosecutor conceded Penal Code section 654’s applicability in the trial court. And even if Penal Code section 215, subdivision (c)’s ‘same act’ language signaled a rejection of Neal, the carjacking and robbery here constituted ‘the same act.’ Appellant placed the cold metallic object to the back of the victim's neck and demanded ‘everything he had . . . .’ Simultaneously, the victim handed over his jewelry and van by handing over the jewelry and fleeing the van. The long-standing rule is that ‘. . . the theft of several articles at the same time constitutes but one offense [even where] such articles belong to several different owners.’ [Citations.] … Thus, even under the pre-Neal test in In re Chapman [(1954) 43 Cal.2d 385 ], the same act was essential to both offenses and thus is not separately punishable under Penal Code section 654.” (People v. Dominguez, supra, 38 Cal.App.4th at pp. 419-420.)
Insertions added by this court are placed in brackets and italicized to distinguish them from the bracketed insertions appearing in the original material.
In People v. Green (1996) 50 Cal.App.4th 1076 (Green), defendant was convicted of robbery, carjacking, and other felonies. As the victim, Linda, was about to get out of her car at her apartment complex, defendant and another man rushed up to her and one of them put a gun to her head; they took her purse. The one with the gun then asked her the number of her apartment. The other said, “Let’s just go,” and apparently left. The gunman then told Linda to get in the passenger seat; he got in the driver’s seat and drove to another location, where he sexually assaulted her. He later let Linda out of the car and drove away. (Id. at p. 1080.)
The trial court sentenced defendant for both the robbery of the purse and the carjacking, which it stated were different events. On appeal, defendant contended he could not be sentenced for both based on the same incident. The court set out the test under section 654.
“‘“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.] If all 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.] ‘“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.]” [Citation.]’ [Citation.]” (People v. Green, supra, 50 Cal.App.4th at pp. 1084-1085.)
The court concluded defendant and his companion initially intended to rob Linda. When defendant asked Linda her apartment number, his companion apparently sensed the objective was about to change and abandoned defendant, who continued alone. After the sexual offenses, defendant took Linda’s car by force. “Because the carjacking was … separated in time and place from the initial robbery of [the] purse,” with the sexual offenses intervening, there was “sufficient evidence to support the trial court’s explicit finding [that] the taking of the purse and the taking of the vehicle were separate incidents which merited separate and additional punishment.” (People v. Green, supra, 50 Cal.App.4th at p. 1085.)
The Green court used the test developed under section 654 to determine whether punishment for both offenses could be imposed, without discussing whether the same test applied under section 215. Section 215, subdivision (c), prohibits punishment for both carjacking and robbery, where “the same act” constitutes a violation of both statutes. Section 654, subdivision (a), prohibits multiple punishment where “an act” is punishable under more than one statute. The similarity in language and purpose between the two statutes suggests section 215 should be interpreted consistently with section 654.
“The determination of whether there was more than one objective[, and therefore a divisible transaction,] is a factual determination, which will not be reversed on appeal unless [it is not] supported by substantial evidence.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) The evidence before the sentencing court was that presented at the preliminary examination. Cory Goodwin testified that, after he had used a pay phone at a liquor store, appellant approached him and asked him to give appellant a ride; appellant was persistent and Goodwin agreed. At appellant’s request, Goodwin pulled to the curb and stopped in a residential area. Appellant pulled out a knife, placed it against Goodwin’s right side, and asked Goodwin for money, his necklace and his wallet. Goodwin gave appellant his necklace and wallet. Goodwin got out of the car; appellant got into the driver’s seat and asked Goodwin to get back in the car. Goodwin said “no” and appellant drove off.
Substantial evidence does not support a finding that the robbery involving the wallet and necklace and the carjacking were not part of an indivisible course of conduct. “[W]here a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible.” (People v. Bauer (1969) 1 Cal.3d 368, 377.) In Bauer, defendant and his accomplice entered the home of three women, tied them up, and took property from the home. Defendant and his accomplice then drove away in the car belonging to one of the women. The court held that, because there was one indivisible transaction, defendant could not be punished for both robbery and car theft. (Id. at pp. 375-378.) The court rejected the Attorney General’s argument that the robbery was complete before the car theft began and the car theft was just an afterthought to the original transaction. “The fact that one crime is technically complete before the other commenced does not permit multiple punishment where there is a course of conduct comprising an indivisible transaction. [Citations.] And the fact that one of the crimes may have been an afterthought does not permit multiple punishment where there is an indivisible transaction.” (Id. at p. 377.)
Appellant engaged in an indivisible course of conduct with the objective of depriving Goodwin of his valuables. He pulled a knife on Goodwin, demanded his wallet and necklace, and, when Goodwin got out of the car, drove off in Goodwin’s car. On these facts, appellant cannot be punished for both carjacking and robbery. Consequently, the term imposed on the robbery count should have been stayed.
DISPOSITION
The judgment is modified to stay the term imposed for the robbery in count 2 pursuant to Penal Code sections 215 and 654. The trial court is directed to send an amended abstract of judgment to the Department of Corrections and Rehabilitation in accordance with this modification. As so modified, the judgment is affirmed.