Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA108109. Yvonne T. Sanchez, Judge.
Murray A. Rosenberg, 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, Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant Michael W. Foley appeals from a judgment entered after a jury convicted him of count 1, kidnapping to commit robbery (Pen. Code, § 209 subd. (b)(1)), count 2, second degree robbery (§ 211), and count 3, false imprisonment of an elderly person (§ 368, subd. (f)). The trial court found true that defendant had sustained one prior serious felony conviction within the meaning of section 667, subdivision (a)(1), two prior strike convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) (the “Three Strikes” law), and five prior felony prison commitments within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to a total term of 70 years to life as follows: count 1, 25 years to life plus an additional five years pursuant to section 667, subdivision (a)(1), plus an additional five years pursuant to section 667.5, subdivision (b); count 2, 25 years to life, plus an additional five years pursuant to section 667, subdivision (a)(1), plus an additional five years pursuant to section 667.5, subdivision (b) to run consecutively to count 1; count 3, 25 years to life, plus an additional five years pursuant to section 667, subdivision (a)(1), plus an additional five years pursuant to section 667.5, subdivision (b), to be stayed pursuant to section 654.
Defendant contends that: (1) there is insufficient evidence to support his conviction for count 1; (2) the sentence on count 2 should be stayed pursuant to section 654; and (3) the trial court committed reversible error by imposing sentence enhancements in counts 1 and 2 pursuant to sections 667, subdivision (a)(1) and 667.5, subdivision (b) based on the same prior felony conviction. The People concede that the one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b) in counts 1 and 2 were unauthorized because the trial court imposed the five-year prior conviction enhancement pursuant to section 667, subdivision (a)(1) based on the same prior conviction.
We modify the judgment to strike the one-year prior prison term enhancements imposed under section 667.5, subdivision (b) based on the conviction in case No. YA026853 as to counts 1 and 2. In all other respects, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.
On November 3, 2008, 66-year-old Jimmy Durhams (Durhams) entered the public restroom at Ted Watkins County Park. He noticed that defendant was using one of the two urinals. Durhams proceeded to use the unoccupied urinal to the left of defendant. Defendant started to walk toward the exit, then came up behind Durhams, put his hand around his neck, and demanded his money. Defendant warned Durhams that he had a gun, saying, “Don’t make me use it.” Durhams told defendant that he did not have any money. Defendant searched Durhams and took his cellular telephone, car keys, and a ring. Defendant forced Durhams to walk to Durhams’s car, which was parked 75 feet away from the restroom. Defendant again said “Don’t make me shoot you. I’ve got a gun, ” while they were walking to the car. Defendant used Durhams’s car key to unlock the door. Defendant sat in the passenger seat and directed Durhams to sit in the driver’s seat. Defendant found Durhams’s wallet in the car and removed $35 and a bank receipt. Defendant told Durhams that he should make him go to the ATM and withdraw money. Defendant said he had a drug habit and was on drugs at that time. Defendant gave Durhams back his wallet and car keys, then got out of the car and left.
Durhams described defendant as being around 25 to 30 years old and well-built. During the entire episode, Durhams was afraid for his life. He did not feel he could physically resist defendant and did not try to escape because defendant said he had a weapon and was on drugs.
After defendant left, Durhams drove around the area for about 20 minutes until he found Los Angeles Police Department officers. Durhams told the officers about the robbery and described defendant. The officers located defendant after a five minute search and detained and searched him. During the course of the search, they found Durhams’s cellular telephone. They did not find Durhams’s ring or his cash. Durhams identified defendant at a field showup as the person who took his belongings and forced him to his car.
Jessica Bensch, a paralegal with the district attorney’s office, testified that defendant had been convicted of a felony in case No. BA225308 and had been imprisoned for that crime within the five years preceding the current charged crimes. In case No. VA012233, defendant was convicted of possession for sale of a controlled substance on July 3, 1991. In case No. TA027537, defendant was convicted of possession of a firearm by a felon on December 15, 1993. In case No. YA026853, defendant was convicted of robbery on January 26, 1996. In case No. BA225308, defendant was convicted of domestic violence on February 11, 2002. In case No. TA091274, defendant was convicted of possession of a controlled substance on July 3, 2007. In case No. TA002763, defendant was convicted of robbery.
DISCUSSION
I. Sufficient evidence supported defendant’s conviction for kidnapping to commit robbery
Defendant contends that the evidence was insufficient to support a finding that his movement of Durhams from the restroom to Durhams’s car substantially increased the risk of harm to him or was more than incidental to the robbery. We disagree.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘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.’ [Citations.] [¶]... But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury.” (People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.)
Section 209, subdivision (b)(2) defines the asportation element as: “This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.”
In order to determine whether the movement of the victim is not merely incidental to the commission of the robbery, the jury considers the scope and nature of the movement, which can include the actual distance a victim is moved. (People v. Jones (1999) 75 Cal.App.4th 616, 628 [movement of the victim 40 feet in parking lot to her car increased danger by moving her from public to private view].) There is no minimum number of feet a defendant must move the victim. (Id. at pp. 628-629.) In determining whether the movement subjects the victim to a substantial increase in risk of harm beyond that inherent in robbery, the factfinder considers factors such as the decreased likelihood of detection, the danger inherent in the victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. (Ibid.)
We disagree with defendant’s contention that the movement from the restroom to Durhams’s parked car did not substantially increase the risk of harm because Durhams was already out of view from the general public in the restroom. The restroom was accessible to the public. Defendant’s robbery of Durhams in the restroom would have been obvious to anyone entering and would have aroused immediate concern. The movement from a public restroom to the private confines of Durhams’s car decreased the likelihood that defendant would be noticed by the public. Once in the car, defendant could have carjacked Durhams, assaulted him, or even killed him with less notice than in a public restroom. In fact, once in the car, defendant had more control over Durhams. Defendant mentioned that he should take Durhams’s ATM card and force him to make a withdrawal. Furthermore, despite defendant’s insistence that 75 feet is a short distance and the movement lasted only a few short moments, we find that 75 feet is by no means minimal. Although the dangers inherent in moving Durhams to the car did not materialize, that does not mean that the risk of harm was not increased. (People v. Jones, supra, 75 Cal.App.4th at p. 630.)
We conclude that sufficient evidence supported the finding that defendant’s movement of Durhams from the public restroom to Durhams’s car substantially increased the risk of harm to him and was more than incidental to the initial robbery.
II. The trial court properly imposed separate sentences on count 1, kidnapping to commit robbery and count 2, robbery
Defendant contends on appeal that count 1, kidnapping to commit robbery and count 2, robbery, were one continuous course of conduct with the single objective of robbing Durhams and that multiple punishment is barred by section 654. We disagree.
Section 654 provides that “in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
The protection of section 654 has been extended to cases where a single act or omission has occurred, or where there are several offenses committed during a course of conduct deemed to be indivisible in time. (People v. Le (2006) 136 Cal.App.4th 925, 931-932.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant may be found to have harbored a single intent if the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, resulting in the defendant being punished only once. (Ibid.) “If, on the other hand, defendant harbored ‘multiple criminal objectives, ’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (Ibid.) Whether the facts reveal a single objective is a factual matter; the meaning of section 654 is a legal matter. (People v. Guzman (1996) 45 Cal.App.4th 1023, 1028.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
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. (People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.)
People v. Porter (1987) 194 Cal.App.3d 34 is instructive. In that case, Division Five of the Second District Court of Appeal found that section 654 did not bar punishment for both robbery and kidnapping for the purpose of robbery. There, the defendant jumped into the victim’s car and held a knife to the victim’s throat. The defendant’s companion rummaged through the victim’s wallet and took his cash. Upon noticing a credit card in the victim’s wallet, the defendant forced the victim to drive to a bank to withdraw money. While parked in front of the automatic teller, the victim escaped. Division Five found that the evidence supported the trial court’s finding that the two crimes involved multiple objectives, were not merely incidental to each other, and were not part of an indivisible course of conduct. (Id. at p. 38.) That court found that a reasonable inference could be drawn from the record that the defendant initially planned only to rob the victim of his wallet, but then decided to kidnap the victim to his bank to compel him to withdraw money with what he thought was an automated teller card. (Ibid.) Therefore, the defendant was not punished for kidnapping for the purpose of robbery and for committing “‘that very robbery.’” (Ibid.)
Here, as conceded by defendant’s trial counsel at the sentencing hearing, there were two distinct robberies. Defendant robbed Durhams in the restroom, taking his car keys, cellular telephone, and a ring. At that point, defendant could easily have escaped. However, it is reasonable to infer that upon taking the car keys, defendant then formed the separate intent of taking Durhams to his car to look for more items to steal. Indeed, as noted previously, when defendant removed the bank card from the wallet that he found in the car, he mentioned that he should make Durhams take him to the bank to withdraw money. Defendant clearly was an opportunistic criminal, whose intents and objectives appeared to change based upon the circumstances presented.
We find that the evidence supports the trial court’s implicit finding that the robbery in the restroom and the kidnapping to commit the second robbery in the car arose out of multiple criminal objectives independent of one another.
III. The one-year prior prison term enhancements in counts 1 and 2, based on case No. YA026853 were unauthorized
Defendant contends, and respondent concedes, that the one-year prior prison term enhancements based on case No. YA026853 and imposed pursuant to section 667.5, subdivision (b) on counts 1 and 2, were unauthorized because the trial court had already imposed a five-year prior conviction enhancement based on the same prior conviction pursuant to section 667, subdivision (a)(1). We shall thus strike the one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b) based on the conviction in case No. YA026853 as to both counts 1 and 2.
“[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (People v. Jones (1993) 5 Cal.4th 1142, 1150.)
Here, the trial court sentenced defendant as to count 1, to 25 years to life under the Three Strikes law based on case Nos. YA026853 and TA002763. It imposed a five-year enhancement under section 667, subdivision (a)(1) based on case No. YA026853, and five 1-year enhancements under section 667.5, subdivision (b) based on case Nos. YA026853, TA091274, BA225308, TA027537, and VA012233. As to count 2, the trial court imposed the same sentence and ordered defendant to serve the sentence for count 2 consecutively to the sentence imposed for count 1. Under People v. Jones, supra, 5 Cal.4th at page 1150, the trial court was not authorized to impose a one-year enhancement under section 667.5, subdivision (b) based on case No. YA026853 in addition to the five-year enhancement under section 667, subdivision (a)(1) based on the same prior conviction.
We strike the one-year prior prison term enhancements imposed under section 667.5, subdivision (b) based on the conviction in case No. YA026853 as to counts 1 and 2.
DISPOSITION
We modify the judgment to strike the one-year prior prison term enhancements imposed under section 667.5, subdivision (b) based on the prior conviction in case No. YA026853 as to counts 1 and 2. Defendant’s sentence for count 1 shall be reduced from 35 years to life to 34 years to life. Defendant’s consecutive sentence for count 2 shall be reduced from 35 years to life to 34 years to life. The trial court shall send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BOREN, P.J., ASHMANN-GERST, J.