Opinion
D049925
7-1-2008
THE PEOPLE, Plaintiff and Respondent, v. RUFUS GRAY, Defendant and Appellant.
Not to be Published
I.
INTRODUCTION
Rufus Gray appeals from a judgment of conviction and sentence. A jury found Gray guilty of carjacking, robbery, attempted kidnapping, kidnapping for the purpose of robbery, and other offenses. The jury also found true the special allegations that Gray personally discharged a firearm, personally used a firearm, and that he was armed with a firearm. The trial court sentenced Gray to a determinate term of 39 years and an indeterminate term of life with parole.
On appeal, Gray contends that (1) there was insufficient evidence to support the jurys guilty verdicts on counts 1 through 3 and the corresponding enhancements because the victim did not identify him and although Grays fingerprints were found on the victims car, the prosecution could not establish when Gray may have left his fingerprints on the car; (2) the court committed reversible error in failing to instruct the jury on the lesser included offense of simple kidnapping when it instructed the jury on the greater offense of kidnapping for the purpose of robbery; (3) his convictions for robbery and kidnapping should be reversed because they are necessarily included in his conviction for kidnapping for robbery; (4) if his convictions for robbery and kidnapping are not reversed, then the sentences on those counts should be stayed pursuant to Penal Code section 654; (5) the court violated his constitutional rights when the court sentenced Gray to the upper term on count 1; and (6) the jurys findings on the lesser firearm enhancements under section 12022, subdivision (a)(1) on counts 1 through 7 should be stricken.
Further statutory references are to the Penal Code unless otherwise indicated.
We conclude that the majority of Grays contentions are without merit. However, the People concede that Grays conviction for simple kidnapping in count 7 must be reversed because it is a lesser included offense of kidnapping for robbery, for which Gray was convicted in count 5. We agree that the kidnapping conviction must be reversed, and therefore reverse Grays conviction for kidnapping on count 7. We otherwise affirm the judgment as modified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
In the early morning hours of September 8, 2004, Abdullahi Allaso was driving his Yellow Cab Company taxi cab. At around 2:00 a.m., Allaso picked up two African-American men near the intersection of 36th Street and University Street in the North Park area of San Diego. Allaso considered one of the men to be "short," and the other man to be "tall." The men told Allaso to take them to Park Boulevard and gave him $20 in advance.
Both men got into the back seat of the cab. Allaso then drove the men to a park near Adams Avenue and stopped the car. After Allaso stopped the car, the short man pulled out a gun, pointed it at Allaso, and ordered Allaso to give the money back. As this was happening, the tall man reached from the back seat and put Allaso in a choke hold. Allaso gave the short man the $20 that the men had given him earlier, and also gave the man money from his pocket, which amounted to approximately $80 or $90.
The short man then took the car keys from Allaso. He exited the car, walked around to the drivers side window, and told Allaso to get out of the car. Allaso got out of the car. The short man pointed the gun at Allaso, opened the trunk, and told Allaso to get in. Allaso refused to get into the trunk. The short man asked Allaso if he wanted to die, and Allaso responded that he would "die definitely" if he got inside the trunk. The short man then punched Allaso with his free hand. Allaso punched the man back, and as the man leaned back, he fired a shot that Allaso believed hit a nearby house.
The short man told Allaso to give him the money that was in Allasos pocket. Allaso took his wallet out of his pocket and threw it on the ground. The short man picked up the wallet, and started running down the street. While this was going on, the tall man had gotten out of the cab and taken the keys from the short man. As the short man ran down the street, the tall man got into the cab and started driving. He picked up the shorter man, and the two of them drove off together.
At around 2:00 a.m. on September 8, 2004, Nicholi Coronado woke up and heard someone yelling. Coronado looked out his apartment window and saw a cab parked on the street directly outside his apartment. Coronado saw an individual "trying to put the cab driver inside the trunk while another person was trying to start the car." All three of the individuals Coronado witnessed as being involved in the incident had "dark comple[xions]" consistent with "an African or African-American complexion." Coronado witnessed what he called a "scuffle" between the cab driver and another man, and heard and saw "fire, like a gunshot," after one of the men fell to the ground. After seeing and hearing the gunshot, Coronado shut the curtain because he did not want to be seen. He heard the cabs engine start and could tell that the cab had been driven away. After the cab drove away, Coronado heard the cab driver scream and try to run after the car.
In response to a call about shots being fired on the 1900 block of Carmelina, where Coronado lived, Edward Lynch, a police officer with the San Diego Police Department, arrived at the scene shortly after 2:00 a.m. on September 8, 2004. Allaso approached Officer Lynch and told Lynch that he had "been robbed of his taxi cab." Allaso appeared "visibly scared" and was "rambling" and "yelling . . . out of desperation and afraid of the incident that had just occurred." Approximately 15 minutes after Officer Lynch arrived, he received information that a cab matching the description of the one stolen from Allaso had been located nearby. At around 2:15 a.m. that morning, Michael Kincaid, an off-duty San Diego police officer, had arrived at his North Park residence and saw an empty yellow taxi cab parked in his assigned parking spot. Officer Kincaid called dispatch to have an officer come out to "take a look" at the cab. Dispatch called him back and told him that the cab "had been part of an armed robbery."
At around 4:00 a.m. that same morning, Olusola Maraiyesa was driving his Yellow Cab Company taxi cab in the North Park area. As Maraiyesa was driving east on El Cajon Boulevard, he was flagged down by "two guys, one short, one guy, one tall" at the corner of El Cajon Boulevard and 42nd Street. The taller man had a bandana on his head and was wearing dark jeans and a long-sleeved shirt. The shorter man was wearing a white shirt and what Maraiyesa believed were "black pants or something." Maraiyesa described the shorter man as being approximately 5 5" tall and "a little bit thick set" or "[a] little bit bulky." The mans hair was cut very short. At trial, Maraiyesa identified Gray as the shorter man.
Maraiyesa pulled over and Gray opened the front passenger door. Gray told Maraiyesa that they wanted to go to the Spring Street trolley station, which is located in La Mesa. Gray showed Maraiyesa a $20 bill to indicate that they had money to pay for the trip. Maraiyesa told Gray to hold onto the money until after he drove them to their destination. Gray got into the front passenger seat, and the taller man got into the back seat.
Maraiyesa drove the men to the Spring Street trolley station. When they arrived at the station, the men told Maraiyesa that they were "going further down, that the trolley station was only a description of the area" to which they were going. The men eventually directed Mariyesa to a park in La Mesa. The drive had taken them approximately 20 minutes; it was around 4:20 a.m. when they reached the park.
At the park, Gray pulled out a gun, pointed it at Maraiyesa, and told Maraiyesa to give him everything Maraiyesa had in his possession, including his money and wallet. As this was happening, the man in the back seat "held" Maraiyesa "by the throat," using his arm. Maraiyesa removed an estimated $200 from the visor above his seat and gave it to Gray. Maraiyesa also took his wallet out of his pocket and gave that to Gray. Gray then ordered Maraiyesa to get out of the cab and told Maraiyesa that if Maraiyesa ran, Gray would shoot him. Maraiyesa complied and stood by the car door. Gray got out of the passenger side door and walked around the cab to where Maraiyesa was standing. Gray ordered Maraiyesa to the back of the car and told him to open the trunk. Maraiyesa informed Gray that he had to open the trunk from inside the cab. Maraiyesa then walked back to the drivers side door and opened the trunk. Gray ordered Maraiyesa to get inside the trunk. Maraiyesa climbed inside the trunk, and Gray closed it. Maraiyesa could not open the trunk from the inside.
Someone drove the cab around with Maraiyesa in the trunk, but Maraiyesa did not know who was driving. He also did not know how long he was driven around while in the trunk. At one point, the car stopped and both men opened the trunk and asked Maraiyesa for his personal identification number (PIN). Maraiyesa gave them the PIN for his Wells Fargo check card. The men came back to ask Maraiyesa about other cards. He told them that the other cards were credit cards for which he did not know the PINs, because he did not use them to get cash.
The men used Maraiyesas Wells Fargo check card to make a number of unauthorized withdrawals from his bank account. Maraiyesa had over $1000 in the account before this occurred. After the unauthorized transactions, his account was overdrawn by $444.
At some point, Maraiyesa noticed that the cab had been stopped for a prolonged period of time; Mariayesa estimated that it was about 20 to 25 minutes. Gray opened the trunk, said "are you still there" to Maraiyesa, and then slammed the trunk closed.
Sometime after that, Maraiyesa heard someone knocking on the car. Maraiyesa started banging on the inside of the trunk. David Winans, an officer with the San Diego Police Department, had noticed an unoccupied cab with its engine running behind the police storefront building at 3636 University Avenue. Officer Winans walked around the cab and heard "some knocking coming from the trunk." Winans leaned over the trunk and said, "[H]ello." He then heard Maraiyesa screaming for help and saying that he had been robbed. Maraiyesa said something about a "trunk release." Winans went to the drivers side of the vehicle and opened the trunk. Maraiyesa estimated that the entire ordeal, from the robbery in the park to the time he was let out of the trunk, lasted approximately three hours.
Later that day, a field evidence technician examined the two cabs for fingerprints, inside a secure police warehouse. The technician lifted 29 latent prints from Allasos cab and six latent prints from Maraiyesas cab. A latent fingerprint examiner found Grays left ring finger and right thumb prints on the exterior of the front passenger side door of Allasos cab. The fingerprint examiner found a fingerprint from Grays left ring finger on the frame of the drivers side-view mirror and also found Grays left palm print on the trunk of Maraiyesas cab.
2. The defense
Gray called Geary McMurray, a criminal defense investigator, to testify. McMurray interviewed Allaso on October 12, 2005. During that interview, Allaso described the men who robbed him. McMurray showed Allaso a photographic lineup, which did not include a photograph of Gray. Allaso identified the individual in photograph number 4 as the man who shot the gun and ordered Allaso to get into the trunk of his cab. Allaso identified the individual in photograph number 10 as the other man involved in the crime.
B. Procedural background
By amended information filed October 11, 2005, Gray was charged with two counts of carjacking (§ 215, subd. (a)) (counts 1 and 4); two counts of first degree robbery (§ 211) (counts 2 and 6); attempted kidnapping (§§ 664, 207, subd. (a)) (count 3); kidnapping for the purpose of robbery (§ 209, subd. (b)(1)) (count 5); and kidnapping (§ 207, subd. (a)) (count 7). The information alleged that, as to counts 1 through 3, Gray intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and that, as to counts 4 through 7, Gray personally used a firearm (§ 12022.53, subd. (b)). The information also alleged that, as to all counts, Gray was armed with a firearm (§ 12022, subd. (a)(1)).
On September 14, 2008, a jury found Gray guilty on all counts and found true all of the firearm enhancement allegations.
On December 5, 2006, the trial court sentenced Gray to a term of 39 years plus an indeterminate term of life with parole. The sentence consisted of an indeterminate term of life with parole on count 5; a consecutive 10-year term for the firearm use enhancement as to count 5; the upper term of nine years, consecutive, on count 1; and an additional consecutive 20-year term for the firearm discharge enhancement related to count 1. The trial court also imposed concurrent upper terms on counts 2, 3, 4, and 6, as well as the firearm use and discharge enhancements related to those counts. The court imposed and stayed the upper term on count 7, and its corresponding firearm use enhancement, pursuant to section 654. Finally, the court imposed and stayed all of the enhancements for being armed with a firearm under section 12022, subdivision (a)(1), pursuant to the language of section 12022.53, subdivision (f) that prohibits imposition of additional firearm enhancements.
One of Grays claims on appeal is that in its oral pronouncement of sentence, the court indicated an intention to stay the term on count 6, as well as the term for the corresponding enhancement. We consider this issue in part III.D., post.
Gray filed a timely notice of appeal on the day he was sentenced.
III.
DISCUSSION
A. There is sufficient evidence to support the verdicts on counts 1 through 3 and the allegations that Gray discharged a firearm
Gray contends that there is insufficient evidence to support the jurys finding that Gray committed the crimes against Allaso identified in count 1 (carjacking), count 2 (robbery), and count 3 (attempted kidnapping), or that Gray intentionally and personally discharged a firearm during the commission of those crimes.
1. Legal standards
In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted.) "[T]he 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." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "Circumstantial evidence may constitute substantial evidence of guilt." (People v. Catlin (2001) 26 Cal.4th 81, 142.)
2. Analysis
Gray contends that because Allaso was not able to identify Gray either in the photographic lineups that were shown to Allaso after the incident or at trial, the "sum total of the Peoples evidence was that two of [Gray]s fingerprints were lifted from Allasos cab out of a total of 29 prints that were collected." Gray further argues that the fingerprint evidence, alone, is insufficient as a matter of law to prove that Gray committed the charged offenses. According to Gray, there is no evidence negating the possibility that he may have left his fingerprints on Allasos cab sometime other than during the commission of these crimes and thus, the fingerprint evidence is insufficient to prove his guilt. Gray asserts, "While fingerprint evidence is certainly strong evidence of the identity of the person who left the fingerprint, such evidence is not itself sufficient to prove guilt beyond a reasonable doubt where the defendant concedes that the fingerprints were his, but contests that they were left during the commission of the crime."
Although Gray suggests that the prosecution was required "to establish beyond a reasonable doubt that the fingerprints were left during the crime," Gray fails to acknowledge the overwhelming circumstantial evidence tying him to the crimes against Allaso.
Gray concedes that prints from his left ring finger and right thumb were found on the exterior of the front passenger side door of Allasos cab. A detective testified that Gray had not worked for or leased a car from Yellow Cab, and Allaso testified that he washed his car at least once a week. This is evidence from which the jury could have inferred that Gray touched Allasos cab and left his fingerprints on the cab during a fairly narrow window of time, probably less than, and certainly no longer than, within a week of the crimes. In addition, Allaso testified that the "short" man had entered the cab through the front passenger side door, the same door where Grays prints were found.
The striking similarities in the manner in which crimes against Allaso and those against Maraiyesa were committed and the relationship between the two sets of crimes, both in terms of location and time, provide strong circumstantial evidence that the crimes were perpetrated by the same offenders. Two men, both African-American, robbed Allaso approximately two hours before two African-American men robbed Maraiyesa. Both crimes began in the North Park area, and both victims were driving Yellow Cab taxis. Allaso and Maraiyesa both described one perpetrator as being "short" or "shorter" and the other as "tall" or "taller." The shorter man prepaid Allaso and got into the front passenger seat of the cab, while the taller man sat in the back seat. The shorter man pulled out a gun and forced Allaso to give the shorter man money from his pockets while the taller man grabbed Allaso around the neck from the backseat. The shorter man ordered Allaso out of the cab and told him to get into the trunk of his cab.
A nearly identical scenario occurred a short time later with respect to Maraiyesa, and Maraiyesa identified Gray as the shorter of the two men who robbed and kidnapped him. During the incident involving Maraiyesa, Gray got into the front passenger seat of Maraiyesas cab and offered Maraiyesa $20 as prepayment for the ride. The taller man got into the backseat. Gray pointed a gun at Maraiyesa and ordered him to give Gray his money and possessions while the taller man held Maraiyesa by the neck from the backseat. Gray ordered Maraiyesa out of the cab and instructed him to get into the trunk. Police found Grays fingerprints on Maraiyesas cab, and his face was captured by a security camera as he used Maraiyesas ATM card to withdraw money from Maraiyesas account.
Gray was found guilty of committing the crimes involving Maraiyesa, and he does not challenge the sufficiency of the evidence as to those convictions.
The strong evidence of Grays guilt as to the crimes committed against Maraiyesa, together with evidence that the circumstances of the crimes against Allaso were virtually identical to the circumstances of the crimes against Maraiyesa, and the fact that both occurred on the same night in the same area of the city, constitutes sufficient circumstantial evidence of Grays guilt as to the crimes against Allaso. The addition of the fingerprint evidence simply strengthens the case that Gray was the perpetrator of the crimes against Allaso. Viewing the evidence in the light most favorable to the prosecution, any rational juror could have found beyond a reasonable doubt the elements of the crimes charged in counts 1, 2, and 3, as well as the corresponding firearm enhancements.
B. Grays kidnapping conviction must be reversed; the robbery conviction stands
Gray contends that his robbery conviction in count 6 and his kidnapping conviction in count 7 must be reversed because those crimes are lesser included offenses of the crime of kidnapping for robbery, of which he was also convicted.
A defendant cannot be convicted of both a lesser included offense and the greater offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) "For purposes of determining the propriety of multiple convictions, an offense is necessarily included if the crimes are defined in such a way as to make it impossible to commit the greater offense without also committing the lesser." (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467.) Thus, "[i]n deciding whether multiple conviction is proper, a court should consider only the statutory elements. Or, as formulated in Scheidt [People v. Scheidt (1991) 231 Cal.App.3d 162, 165-171], `only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar." (People v. Reed, supra, 38 Cal.4th at p. 1229.)
The People concede that Grays kidnapping conviction in count 7 must be reversed because kidnapping is a lesser included offense of the crime of kidnapping for the purpose of robbery. (See People v. Jackson (1998) 66 Cal.App.4th 182, 189-190 [simple kidnapping conviction reverse because it is necessarily included in offense of kidnapping to commit robbery].) We therefore reverse Grays conviction on count 7.
We disagree with Grays claim that his conviction for robbery in count 6 must be reversed. Robbery is not a lesser included offense of kidnapping to commit robbery because a defendant may be convicted of kidnapping for robbery even if the robbery is not completed. Gray cites People v. Ford (1966) 65 Cal.2d 41, 49 (Ford), to suggest that in a circumstance in which the intended robbery is achieved, the crime of robbery is a lesser included offense of kidnapping for robbery. However, Ford deals with the issue whether a robbery and a kidnapping constituted an indivisible course of conduct, committed with a single objective, such that section 654 would prohibit punishment for both crimes. (Ford, supra, 65 Cal.2d at pp. 48-49.) In differentiating the facts of the case before it from prior cases in which defendants had successfully argued that they could not be punished twice based on multiple convictions involving robbery and kidnapping, the Ford court stated,
Section 654 provides in pertinent part: "(a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
"In those cases, unlike the present case, the defendant was charged with both kidnaping for the purpose of robbery [citation] and robbery, and in each case the kidnaping preceded and was the means of accomplishing the robbery. [Citation.] The offense of robbery, of course, is necessarily included within the offense of kidnaping for the purpose of robbery where the kidnaper achieves his purpose. In the present case, as we have seen, the robbery which occurred at Roopes house was completed before defendant commenced the acts relied upon as establishing the kidnaping; and neither robbery nor simple kidnaping [citation]), the crimes with which defendant was charged and convicted, is an offense necessarily included within the other." (Id. at p. 49 (alternate spelling in original)."
This language in Ford does not compel the conclusion that the offense of robbery is a lesser included offense of kidnapping for robbery when the robbery is achieved. The fact remains that one may commit the greater crime (kidnapping for robbery), without committing the crime Gray asserts is the lesser (robbery). Whether the robbery is achieved has no bearing on the question whether robbery is a lesser included offense of kidnapping for robbery. Further, the fact that the Ford court was referring to sentencing issues and, specifically, the possibility of multiple punishment for an indivisible course of conduct involving robbery and kidnapping, establishes that the defendant in Ford had been convicted of both offenses, and that his robbery conviction was not stricken. There would have been no need for the Ford court to examine the matter pursuant to section 654 if the defendants conviction for robbery could not stand under the lesser included offense rule.
C. Gray was not prejudiced by the trial courts instructions regarding the greater offense of kidnapping for robbery and the lesser included offense of simple kidnapping
Gray contends that the trial court erred in failing to instruct the jury that simple kidnapping (§ 207), as charged in count 7, was a lesser included offense of the charged crime of kidnapping for robbery, as charged in count 5.
1. Background
During closing arguments, the prosecutor stated,
"Count number 5 they kidnap Mr. Maraiyesa. Because after locking him into the truck with the intent to commit a robbery, which they started inside the cab and which they continue until they use the ATM, they take him away from the scene of the crime. [¶] . . . [¶] Count 7 essentially charges the same conduct as the kidnapping for purposes of robbery except its just simple kidnapping. It doesnt require that the kidnapping be for purposes of robbery. [¶] And although it may seem strange that the charge covers conduct that is essentially the same, you[re] asked to decide each count independently, and each count can be based in part on evidence that youve used to find other counts true. And its for the judge to sort that out if there is any issue down the road."
The trial court instructed the jury on the charged crime of kidnapping for robbery in count 5. The court did not provide an instruction for the lesser included offense of kidnapping with respect to that particular count. However, the court did instruct the jury on the crime of simple kidnapping as charged in count 7.
The jury found Gray guilty on both counts 5 and 7.
2. Analysis
As we concluded in Section III.B., ante, Gray is correct that kidnapping is a lesser included offense of the crime of kidnapping for robbery. (See People v. Jackson (1998) 66 Cal.App.4th 182, 189.) The trial court has a sua sponte duty to instruct the jury on a lesser included offense "whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present." (People v. Lewis (2001) 25 Cal.4th 610, 645.) Gray acknowledges that the trial court did instruct the jury on the offense of kidnapping, as related to the charge in count 7, but contends that the jury "was not separately instructed that simple kidnapping in count 7 was a lesser included offense of kidnapping for robbery in count 5." According to Gray, this was the courts error.
Gray cites no authority for the specific proposition that the jury must be told that a separately charged offense is a "lesser included offense" of another offense. Rather, he simply recites the evidence from which he contends, "the jury could have legitimately found appellant guilty of the lesser included offense of simple kidnapping alone, not aggravated kidnapping." However, as Gray must acknowledge, not only did the trial court instruct the jury on the lesser included offense of simple kidnapping (as charged in count 7), but the jury found him guilty of both simple kidnapping and kidnapping for robbery, based on the same conduct. Grays argument thus appears meritless.
To the extent that Gray may be attempting to argue that the trial court should have instructed the jury that it had the option of convicting him on either the greater or the lesser included offense, we will address the issue, despite Grays failure to specifically articulate this argument. Under this theory, pursuant to Stone v. Superior Court (1982) 31 Cal.3d 503, 519 and People v. Kurtzman (1988) 46 Cal.3d 322, 329, the trial court has a duty to instruct the jury that it may consider and/or discuss a lesser included offense before returning a verdict on the greater, but that it may not return a verdict on the lesser offense before returning a verdict on the greater. There exist standard instructions regarding this issue, including CALJIC No. 17.12, which instructs the jury that it must first determine whether the defendant is guilty or not guilty of the greater offense before reaching a verdict as to any lesser included offenses, and Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 3519, which provides similar instruction in situations in which the lesser included and greater offenses have been separately charged.
CALJIC No. 17.12 provides in pertinent part: "If you are not satisfied beyond a reasonable doubt that a defendant is guilty of the crime of which [he] [she] is accused [in Count[s] _____], and you unanimously so find, you may convict [him] [her] of any lesser crime provided you are satisfied beyond a reasonable doubt that [he] [she] is guilty of that crime. [¶] You [will be] [have been] provided with guilty and not guilty verdict forms for the crime charged [in Count[s] _____] and lesser crime[s] thereto [charged in Count[s] _____]. The crime of __________ is a lesser crime to that of __________. [The crime of __________ is a lesser crime to that of __________.] [¶] . . . [¶] "Before you return any final or formal verdict, you must be guided by the following:
"1. If you unanimously find a defendant guilty of the crime of which [he] [she] is accused [in Count[s] _____], your foreperson should sign and date the corresponding verdict form. All other verdict forms [as to Count[s] _____] must be left unsigned.
"2. If you are unable to reach a unanimous verdict as to the crime of which the defendant is accused [in Count[s] _____], do not sign any verdict forms [as to Count[s] _____] and report your disagreement to the court.
"3. The court cannot accept a guilty verdict on a lesser crime, unless the jury also unanimously finds and returns a signed verdict form of not guilty as to the [charged] [greater] crime."
CALCRIM No. 3519 provides in relevant part: "It is up to you to decide the order in which you consider each greater and lesser crime and the relevant evidence, but I can accept a verdict of guilty of the lesser crime only if you have found the defendant not guilty of the greater crime. [¶] [[For (the/any) count in which a greater and lesser crime is charged,] (Y/y)ou will receive verdict forms of guilty and not guilty for [each/the] greater crime and lesser crime. Follow these directions before you give me any completed and signed, final verdict form. Return any unused verdict forms to me, unsigned. [¶] . . . [¶]]"
It appears that the trial court did not provide the jury any instruction akin to either of these standard instructions. We conclude that even if the trial court should have instructed the jury that it could consider the questions regarding kidnapping for robbery and simple kidnapping in whatever order it chose, and that it had the option of choosing guilt as to one of the two offenses, Gray has suffered no prejudice as a result of the courts failure to do so.
It is clear that a complete failure on the part of the trial court "to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility." (People v. Breverman (1998) 19 Cal.4th 142, 165.) "[S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Ibid., citing Cal. Const., art. VI, § 13 and People v. Watson (1956) 46 Cal.2d 818, 836.) There is no reason that the same standard should not apply in situations in which the error complained of, like the one here, involves something less than a complete failure to instruct sua sponte on a lesser included offense. We therefore apply the Watson standard of prejudice to determine whether the trial courts failure to instruct the jury that it had the option of choosing between convicting on the greater offense or the lesser offense harmed Gray.
Under this standard, Gray suffered no prejudice. The jury convicted him of both the greater and the lesser offenses. There is no reasonable likelihood that the jury would have reached a different verdict on the greater offense if the trial court had instructed the jury that it could choose between convicting Gray of the kidnapping for robbery or the lesser offense of simple kidnapping. Although the jury might not have reached the issue of guilt on the simple kidnapping conviction if the trial court had instructed the jury that a finding of guilt on the greater offense would obviate the need for the jury to determine guilt on the lesser (kidnapping), this is of no consequence because we are reversing Grays conviction for simple kidnapping on the ground that it is a lesser included offense of the crime of kidnapping for robbery. Gray has thus suffered no prejudice from the trial courts instructions with regard to the greater and lesser included kidnapping offenses.
D. The trial court correctly declined to stay the sentence on count 6 pursuant to section 654
Gray asserts that if this court disagrees with his argument that the trial court should have stricken his convictions on counts 6 and 7 because they are lesser included offenses of count 5, then the trial court should nevertheless have stayed his sentences on these counts, pursuant to section 654 because counts 5, 6, and 7 were all part of a single indivisible transaction in which he harbored only one criminal objective. Gray further contends that the abstract of judgment must be corrected to reflect what he asserts was the trial courts oral pronouncement of the judgment—i.e., that the trial court intended that the sentences on both counts 6 and 7 be stayed. We disagree with both arguments.
Because we agree with the parties that Grays conviction on count 7 must be reversed because it is a lesser included offense of the offense for which he was convicted in count 5, we consider the issues Gray raises in this argument only as they pertain to count 6.
First, contrary to Grays argument, the abstract of judgment need not be corrected in the manner Gray requests because the trial court did not stay the sentence on count 6 in its oral pronouncement of sentence. In imposing Grays sentence, the trial court stated with regard to counts 6 and 7:
"As to count 6, the robbery of the taxicab, the upper term, again, will be 6 years, plus 10 for the 12022.53(b). Again, that will be concurrent to the determinate counts.
"The 1 year 12022(a)(1) will be stayed.
"And then, finally, count 7, the upper term of 8 years will be imposed for the reasons Ive previously stated. Plus 10 years for the PC 12022.53(b).
"And the 12022(a)(1) will be 1 year.
"Now, all those terms will be stayed pursuant to Penal Code section 654 because theyre really part and parcel and really a lesser-included offense of count 5."
The court calculated an aggregate sentence of 29 years, plus life with parole, plus an additional 10 years. Gray asserts that in stating, "Now, all those terms will be stayed pursuant to Penal Code section 654 because theyre really part and parcel and really a lesser-included offense of count 5" (italics added), the trial court intended to include all of the terms for both counts 6 and 7. We read the courts statement differently. Specifically, we conclude that in saying, "all those terms," the trial court was referring to all of the terms related to count 7 and its corresponding enhancements—i.e., the eight-year term for count 7, the 10-year term for the enhancement pursuant to section 12022.53, subdivision (b), and the additional one-year term for the enhancement pursuant to section 12022, subdivision (a)(1).
The fact that the court ordered the six-year term for count 6, plus the 10-year term for the enhancement pursuant to section 12022.53, subdivision (b) to run concurrently with the determinate counts already imposed and did not do the same with the terms imposed on count 7 reinforces our conclusion that the trial court was not referring to the sentences imposed on count 6 when the court ordered some set of terms stayed. The court did not similarly order the terms for count 7 to run concurrently with or consecutively to the other counts, instead choosing to stay the counts pursuant to section 654. We therefore conclude that the abstract of judgment correctly reflects the courts oral pronouncement of judgment.
The trial courts decision not to stay Grays sentences on count 6 and the corresponding enhancements was appropriate given the fact that the jury could have found Gray guilty of count 6 (robbery) based on a different set of facts than those underlying count 5. Section 654 "precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) A trial courts determination that a defendant holds multiple criminal objectives will be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
To determine whether a course of conduct is indivisible, courts consider the intent and objective of the defendant. If all of the criminal acts were incident to a single criminal objective, then the court may impose punishment only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-637.) A court may impose separate punishments for offenses that have similar but consecutive and different objectives, or simultaneous but separate objectives, however. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
In this case, the prosecutor argued that the robbery alleged in count 6 occurred when Gray took property from Maraiyesa at gunpoint while they were inside the cab. There was substantial evidence to support a finding of guilt on the robbery charge based on this conduct. The kidnapping occurred after this original robbery. The court thus did not err in concluding that Gray had a separate and additional criminal objective when, after robbing Maraiyesa of the property he had on his person, Gray kidnapped Maraiyesa, required Maraiyesa to give him the PIN for Maraiyesas check card, and ultimately took money out of Maraiyesas bank account. There is thus sufficient evidence to support the trial courts implicit finding that Gray was guilty of two separately punishable acts in counts 5 and 6.
E. The trial court did not err in imposing an upper term sentence
Gray contends that the trial court violated the holding in Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham), in sentencing him to the upper term for his conviction for carjacking, because the factors on which the court relied to impose the upper term were neither proved to a jury nor admitted by Gray. We conclude that the trial court relied on at least one aggravating factor that was established in a manner consistent with the requirements of the Sixth Amendment, and thus that the trial court did not err in sentencing Gray to the upper term.
1. Applicable law
In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court addressed the constitutionality of Californias determinate sentencing law (DSL) as interpreted by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I), certiorari granted, judgment vacated, and cause remanded sub nom. (Black v. California (2007) __ U.S. __, 127 S.Ct. 1210.) In Black I, the Supreme Court determined that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial." (Black I, supra, 35 Cal.4th at p. 1244.) In Cunningham, the United States Supreme Court rejected the conclusion in Black I, and held that the imposition of an upper term sentence under Californias determinate sentencing law based on neither a prior conviction nor facts found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United States Constitution. (Cunningham, supra, 127 S.Ct. at p. 860.)
The Cunningham court reasoned:
"As this Courts decisions instruct, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) [Apprendi]; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) [Ring]; Blakely [, supra,] 542 U.S. 296; 124 S.Ct. 2531; United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) [Booker]. `[T]he relevant" statutory maximum, "`this Court has clarified, `is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely, 542 U.S., at 303-304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham, supra, 127 S.Ct. at p. 860.)
The United States Supreme Court reversed the defendants upper term sentence, vacated the Black I decision, and remanded the matter to the California Supreme Court. (Cunningham, supra, 127 S.Ct. at p. 860.) The California Supreme Court reconsidered the matter in light of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). In a related case, People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), the Supreme Court addressed additional issues raised by the Cunningham decision. We conclude that under the holding in Black II, the trial court did not violate Grays jury trial right in sentencing him to the upper term.
After Cunningham, the Legislature amended the DSL to give trial courts full discretion to impose the lower, middle, or upper term sentence, effectively increasing the "statutory maximum" from the middle term to the upper term. (See § 1170, as amended by Stats. 2007, ch. 3, § 2.)
2. Analysis
The trial court relied on two aggravating factors to impose the upper term on count 1. With regard to its findings on the factors in aggravation, the court stated:
"Now, as to count 1, looking at the circumstances of that offense, that offense involved you attempting to kidnap . . . . [¶] [¶]. . . Mr. Allaso. Mr. Allaso. And what is aggravating about that offense is the fact that this is a carjacking. So I mean in a normal carjacking one walks up and says give me your car, and they get the car and drive it away. [¶] Well, in this particular offense its more aggravated . . . because there was an attempt to kidnap Mr. Allaso, and not just take his vehicle, but also kidnap him. That attempt was not completed, but that is something I can use to aggravate this offense. [¶] Since Im not going to impose any extra time for the attempted kidnapping, I will — but I will use the facts of the attempted kidnapping to aggravate the charge. [¶] Another reason to aggravate the charge beyond the presumptive middle term of 7 years is that you do have the prior, although some judge in El Cajon, for reasons I do not comprehend, decided that should be a misdemeanor. You did — you were involved in a crime of violence where you used a weapon against a minor, apparently. And so that is also something Im using to aggravate count 1. [¶] So Im going to find that the aggravants outweigh the mitigants, and that the upper term is the appropriate term."
The California Supreme Court determined in Black II that the existence of "a single aggravating circumstance" that has been established in a manner consistent with the requirements of the Sixth Amendment renders a defendant eligible for the upper term, thus making "it lawful for the trial court to impose an upper term sentence." (Black II, supra, 41 Cal.4th at pp. 814-815.) According to the Black II court, "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.)
Here, the trial court relied on at least one aggravating circumstance that rendered Gray eligible for an upper term sentence. Specifically, a legally sufficient aggravating circumstance exists by virtue of the jurys verdict convicting Gray of attempted kidnapping, for which the trial court imposed a concurrent sentence, even though the court could have imposed a consecutive sentence. (See Cal. Rules of Court, rule 4.421(a)(7) [aggravating factor includes fact that "[t]he defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed"].) The trial court thus relied on facts reflected in the jurys verdict, in conformity with the requirements of the Sixth Amendment as announced in Blakely and Cunningham, in selecting the upper term.
F. The trial court did not err in imposing and staying the enhancements for principal armed with a firearm (section 12022, subd. (a)(1)) on counts 1 through 7
Gray contends that the trial court erred in imposing and staying the one-year enhancements under section 12022, subdivision (a)(1) as to counts 1 through 7, after the court imposed firearm discharge enhancements (§ 12022.53, subd. (c)) on counts 1 through 3, and firearm use enhancements (§ 12022.53, subd. (b)) on counts 4 through 7. Relying on section 12022.53, subdivision (f), Gray contends that the section 12022, subdivision (a)(1), enhancements must be stricken. In view of recent Supreme Court precedent, we conclude that the trial court correctly handled the enhancement terms at issue.
Because, however, we are reversing Grays conviction on count 7, we need not consider this issue with regard to that count.
Subdivision (f) of section 12022.53 provides in pertinent part:
"Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section."
The Supreme Court recently interpreted the meaning of subdivision (f) of section 12022.53 in People v. Gonzalez (June 2, 2008, S149898) ___Cal.4th ___ (Gonzalez). In Gonzalez, the Supreme Court concluded that the words "impose" and "imposed" in subdivision (f) are "shorthand to mean impose and then execute, as opposed to impose and then stay." (People v. Gonzalez (June 2, 2008, S149898) ___ Cal.4th ___ [p. 11], italics in original.) Under this interpretation, section 12022.53 requires that "after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 10222.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be impose and then stayed." (People v. Gonzalez (June 2, 2008, S149898) ___ Cal.4th ___ [p. 3].)
Although this case involves the question of how to deal with remaining enhancements under section 12022, not remaining enhancements under sections 12022.53 or 12022.5, this distinction is insignificant, since subdivision (f) of section 12022.53 prohibits the imposition and execution of firearm enhancements specified in section 12022, in addition to the enhancements specified in section 12022.5 and other portions of section 12022.53. Thus, the Gonzalez courts conclusion that subdivision (f) of section 12022.53 requires courts to impose and stay additional firearm enhancements for the same crime for which the lengthiest enhancement term has already been imposed and executed applies here. The trial court did not err in imposing the firearm discharge enhancements under subdivision (c) of section 12022.53 on counts 1 through 3 and the firearm use enhancements under subdivision (b) of section 12022.53 on counts 4 through 6, and then imposing and staying the one-year enhancements under section 12022, subdivision (a)(1) as to all counts.
IV.
DISPOSITION
Grays conviction on count 7 is reversed. The judgment is otherwise affirmed. The trial court is directed to amend the abstract of judgment reflecting the reversal of count 7 and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.