Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. Nos. VA085149, VA085277. Robert J. Higa. Affirmed, as modified.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Richard Gregory Estrada appeals from the judgment entered following a jury trial in which he was convicted of carjacking, second degree robbery, kidnapping for carjacking, criminal threats, attempted carjacking, attempted second degree robbery, and assault with a deadly weapon or by means of force likely to produce great bodily injury. Appellant contends his carjacking conviction must be dismissed in light of his kidnapping for carjacking conviction, Penal Code section 654 precludes the concurrent sentences imposed on several counts, and the trial court imposed the wrong term for attempted carjacking. We dismiss appellant’s carjacking conviction, correct the sentence for his attempted carjacking conviction, and stay the sentences for attempted robbery and attempted carjacking. In all other respects, we affirm.
Unless otherwise noted, all subsequent references pertain to the Penal Code.
FACTS
At about 8:45 p.m. on September 15, 2004, appellant approached Monychann Sarath as she sat in her car outside her workplace. Appellant punched her in the face seven or eight times, then pulled out a gun. He told Sarath to get into the back seat, lie down, and be quiet. He also threatened to kill her. Appellant drove the car out of the parking lot and asked Sarath for money. She said all of her money was in the bank, but told him he would be able to use her ATM card at a Washington Mutual branch. Appellant looked through Sarath’s wallet. He drove around for about 40 or 45 minutes, talking all the while. At some point, he met some friends and arranged to meet them again later. He also drove to a Washington Mutual branch, where he used Sarath’s ATM card to withdraw $160.
Unless otherwise noted, all subsequent date references pertain to 2004.
Appellant drove around for another 30 minutes or so before parking in a plaza. He apologized for kidnapping Sarath and “being a bastard.” He said that if he had “known,” he might have asked her for a date. He got into the backseat and asked Sarath for a kiss. She refused, but agreed to his request for a hug. Appellant put his hand on Sarath’s thigh and talked for about 10 to 15 minutes before moving back to the front seat and driving the car to another parking lot. There, he searched the car for things to take. He took her phone, planner, ATM card, and identification card. As appellant took the identification card, he told Sarath he would use it “for insurance.” He wiped the car with a cloth and told Sarath he was removing his fingerprints. He ordered her to lie down and wait until he departed before she left. Sarath drove back to her workplace, where she arrived at about 10:10 p.m.
On the afternoon of September 17, appellant placed something against the back of Zuzell Zamora as she was removing her infant son from her car in a shopping mall parking lot. Appellant ordered Zamora to “shut up,” give him her car keys and purse, and get back into the car. Zamora spun around, grabbed appellant’s gun, aimed at appellant, and pulled the trigger. At that point she realized it was a pellet gun. Appellant grabbed it back and repeatedly struck Zamora’s head with it until the pellet gun broke. He then punched her arms and chest while kicking her legs and attempting to push the rest of her body into the car. She screamed for help and pushed back against appellant to keep him out of the car. A bystander who heard Zamora and saw the struggle called out, asking whether Zamora needed help. Appellant left. Witnesses pursued him and called the police, who found and arrested appellant near the shopping mall. Zamora suffered facial bruises and cuts. Her scalp injuries required five or six staples.
Appellant presented no evidence in his defense.
With respect to Zamora, the jury convicted appellant of attempted second degree robbery, attempted carjacking, and assault with a deadly weapon or by means of force likely to produce great bodily injury (counts 1-3). The jury found that in assaulting Zamora, appellant personally inflicted great bodily injury. (§ 12022.7, subd. (a).) With respect to Sarath, the jury convicted appellant of carjacking, second degree robbery, kidnapping for carjacking, and criminal threats (counts 4-7). The jury found that appellant personally used a firearm in the commission of the kidnapping and criminal threats. (§ 12022.53, subd. (b).) The court found that appellant served a prior prison term within the scope of section 667.5, subdivision (b) and was previously convicted of a serious felony (§ 667, subd. (a)(1)) and a prior serious or violent felony within the scope of the Three Strikes Law. The trial court sentenced appellant to life in prison, plus 26 years, consisting of life plus 10 years (§ 12022.53, subd. (b)) plus 5 years (§ 667, subd. (a)(1)) for kidnapping Sarath (count 6), a “second strike” term of 8 years plus 3 years (§ 12022.7, subd. (a)) for the aggravated assault on Zamora (count 2), and concurrent terms for all of the remaining counts.
DISCUSSION
1. Greater and lesser included offenses
Appellant contends, and respondent concedes, that appellant’s conviction for carjacking Sarath (count 4) should be reversed and the charge dismissed because carjacking is a lesser included offense of kidnapping for carjacking (count 6), of which he was also convicted.
The parties are correct. (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.) Count 4 must be dismissed.
2. Section 654
Appellant contends that section 654 requires a stay of the concurrent sentences on counts 1, 3 4, 5, and 7.
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant’s intent and objective are factual questions for the trial court, and we will uphold its express or implied findings that are supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Where section 654 precludes sentencing on a given count, the sentence may be imposed and stayed, but may not be concurrent. (People v. Pena (1992) 7 Cal.App.4th 1294, 1312.)
a. Counts 1 through 3
The trial court did not comment upon the application of section 654 to any of the counts. Nonetheless, its imposition of concurrent sentences constitutes an implicit finding that the statute did not bar multiple punishment.
Respondent correctly concedes that section 654 barred separate punishment for both counts 1 (attempted second degree robbery) and 3 (attempted carjacking), which constituted simultaneous attempts to take two different types of property from Zamora and therefore reflected a single objective. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.) The court should have stayed the sentence for count 1, which is shorter.
Respondent argues, however, that separate punishment was permissible for the aggravated assault (count 2) and the attempted carjacking.
Section 654 does not permit separate punishment for both a robbery and an assault that was the means of committing the robbery. (People v. Logan (1953) 41 Cal.2d 279, 290.) The same principle is necessarily applicable to carjacking or attempted carjacking, where the assault constitutes the requisite use of force or fear to take the victim’s vehicle. (§ 215, subd. (a).) However, a separate violent act against an unresisting victim of a robbery or attempted robbery may be found to have been committed pursuant to an independent objective, even if the violence was intended to facilitate escape or avoid prosecution. (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300; People v. Nguyen (1988) 204 Cal.App.3d 181, 190, 193.)
The record does not support a finding that appellant acted pursuant to an independent criminal objective in committing the aggravated assault upon Zamora, who vigorously resisted appellant’s efforts to take her purse and car. She took away appellant’s pellet gun and attempted to shoot him with it. After he recovered the pellet gun, she used her legs to attempt to push him away. As he was punching her, she was kicking and hitting him and screaming loudly for help. The entire struggle lasted no more than one minute before appellant gave up and walked away. Appellant’s assaultive conduct was not a separate violent act or series of acts, but was instead merely a part of his effort to accomplish the carjacking and robbery by subduing the resisting victim. Although the violence was deplorable, it was not so extreme or excessive as to demonstrate a separate intent to inflict gratuitous harm. (People v. Ridley (1965) 63 Cal.2d 671, 678 [shooting resisting jewelry store owner was means of perpetrating the robbery, precluding separate punishment for robbery and aggravated assault].) Accordingly, appellant cannot be separately punished for the aggravated assault and attempted carjacking. The sentence on count 3 must be stayed.
b. Counts 4 through 7
Because carjacking (count 4) must be dismissed as a lesser included offense of kidnapping for carjacking (count 6), we need not address appellant’s section 654 contention with respect to count 4.
If the robbery (count 5) were limited to the taking of Sarath’s ATM cards and money, appellant’s argument regarding count 5 would have merit, as the purpose of the kidnapping was expressly designated as carjacking, and the robbery would simply represent the taking of different property from her over the course of an ongoing, indivisible course of conduct. However, the takings of the car, ATM cards, and cash were divided from the subsequent takings of Sarath’s identification card, planner, and phone by a significant period of additional driving and the relatively calm interlude during which appellant parked the car, apologized to Sarath, moved to the back seat, and engaged in a romantic approach to her. Where offenses are separated by periods of time that provide the defendant with an opportunity to reflect upon and abandon his criminal conduct, a court may conclude that subsequent offenses reflect a separate (even if identical) intent that supports separate punishment. (People v. Gaio (2000) 81 Cal.App.4th 919, 935-936 [multiple bribes over the course of months]; People v. Trotter (1992) 7 Cal.App.4th 363, 368 [driver fired at pursuing officer, drove for a minute, fired again, drove for a few seconds, and fired third time; punishment for three assaults permissible].) Appellant’s apology and adoption of a non-violent approach toward Sarath constitutes substantial evidence in support of a conclusion that he reflected upon his conduct. He had an opportunity to terminate his criminal conduct toward Sarath at that time, but failed to do so. The trial court could reasonably have concluded that his subsequent taking of Sarath’s identification card, planner, and phone evinced a separate intent to rob her. Accordingly, substantial evidence supports the implicit finding that counts 5 and 6 were separately punishable.
The prosecutor based the criminal threats charge (count 7) upon both the threat to kill Sarath made at about the same time appellant got into her car and his statement that he was taking her identification card for “insurance.” The original threats were obviously part of the fear appellant employed to accomplish the kidnapping for carjacking, and therefore did not support separate punishment. To the extent the criminal threats conviction was based upon the threat implicit in appellant’s “insurance” statement, it is divisible from the kidnapping for carjacking for the same reasons applicable to count 5. Moreover, the threat clearly revealed an intent to intimidate Sarath and dissuade her from reporting the crime to the police, which is independent of the intent to take Sarath’s property underlying count 5. Accordingly, separate punishments could be imposed upon counts 5, 6, and 7, without violating section 654.
3. Length of sentence for count 3
Appellant contends, and respondent concedes, that the trial court imposed the wrong term for count 3 (attempted carjacking), which should have been two and one-half years, rather than five years. The parties are correct, and the sentence must be modified. (§ 216, subd. (b), 664, subd. (a).)
Appellant initially contended that the sentence on count 1 should have been one and one-half years. He correctly abandoned this contention in his reply brief. (People v. Moody (2002) 96 Cal.App.4th 987, 990.)
DISPOSITION
Appellant’s conviction for carjacking (count 4) is dismissed. The sentence on count 3 is reduced to two and one-half years. The sentences on counts 1 and 3 are stayed pursuant to section 654. In all other respects the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: MALLANO, P. J., ROTHSCHILD, J.