Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC598593
RUSHING, P.J.
A jury convicted defendant Anastacio Guerrero of two counts of attempted premeditated murder, and one count each of attempted murder, first degree burglary, first degree robbery, and false imprisonment. The jury also found that defendant used a firearm in committing the attempted murder, the burglary, the robbery; and that in all of those offenses except the robbery, he inflicted great bodily injury. (Pen. Code, §§ 664, 187, 459, 460, subd. (a), 211, 212.5, subd. (a).) The court imposed two consecutive indeterminate life terms with the possibility of parole for the attempted premeditated murders plus a determinate term of 27 years and 8 months for the attempted murder, robbery, false imprisonment, and enhancements for using a firearm and inflicting great bodily injury.
All unspecified statutory references are to the Penal Code.
On appeal from the judgment, defendant claims there was insufficient evidence to support his convictions for attempted murder and robbery. He claims the court gave inadequate robbery instructions and an erroneous instruction on possession of recently stolen property. Last, he claims that section 654 bars multiple punishment for false imprisonment in addition to attempted murder and robbery and also bars multiple enhancements for using a firearm and causing great bodily injury in connection with the false imprisonment.
We agree that section 654 bars separate punishment for false imprisonment, modify the judgment to stay the term for that conviction and associated enhancements, and affirm the judgment as modified.
Facts
Maria Del Carmen Jauregui de Lechuga (Maria) and her husband Martin Lechuga (Martin) separated in April 2005. Martin stayed at their home on Turtlerock Drive in San Jose, and Maria rented a nearby apartment with her mother. Sometime later, Martin started seeing Esmeralda Solorio Camacho (Esmeralda), who occasionally stayed with him.
Esmeralda had previously been in a romantic relationship with defendant for about one year, but he had ended it. Thereafter, they remained friends and did things together. At times, he asked if she was dating, but she declined to answer.
In May or June 2005, defendant wanted to rekindle his relationship with Esmeralda but suspected that she was seeing someone and started following her. He discovered that sometimes she stayed with Martin. One night, he showed up at Martin’s house, told Martin he was Esmeralda’s brother, and asked to see her. Outside, he seemed angry and told her he wanted them to get back together. She told him she was not interested. After that, he started to call her regularly and say he would wait for her. At one point, she met him at his house and again told him she was not interested in a relationship with him.
Meanwhile, in June 2005, Maria and Martin’s divorce became final, and she was awarded the house on Turtlerock Drive. On July 13, Maria got the keys from Martin, and that night he and Esmeralda stayed in a hotel. Early the next morning, defendant called Esmeralda to say that his father had died. When he asked where she was, she lied and said she was at home.
The next morning at 5:00 a.m., defendant broke into the Turtlerock Drive house. Around 10:00 a.m., Maria arrived there. Inside she heard a noise, and, when she turned, defendant came at her and pointed a gun at her head. He was dressed in black and wore a ski mask and gloves. Maria screamed and grabbed for the gun. Defendant covered her mouth with his hand and then dragged her into a bedroom. He threw her onto the floor, straddled her, and started to slap her, repeatedly saying, “Didn’t you tell me I was the only man?” Maria screamed. Defendant dropped his gun and tried to close her mouth with duct tape, but it would not stick. Then he tried to tie a pillowcase around her head and over her mouth, but she pulled it away. When he put his hand over her mouth, she bit him. Finally, he grabbed a pillow, put it over her face, and pressed down. She could not breathe and eventually stopped struggling. He continued to hold the pillow for another 20 seconds and then removed it.
At that point, defendant apologized to Maria, saying he thought she was someone else whom he had wanted to kill. He would not tell her who, saying only that he had made a mistake. He asked her to forgive him and told her he did not want to go to jail. He then said he wanted to leave and tied her hands and feet to the bed. He also tried to push a mattress on her but gave up when she pleaded that it would kill her. He asked for her car keys, and she told him where they were.
Before leaving, defendant removed his ski mask. He left with some jewelry that he had taken from a safe in the bedroom closet and some engraved pens that were in a cabinet. After a while, Maria freed herself, went outside, and, with the help of a mailman, called the police.
Later that morning, police spoke to Esmeralda, and she called defendant. He denied having anything to do with the incident at the house. The next day, the police arrested him and searched his house. They found a loaded gun, rope, condoms, and dark clothing. Defendant initially denied having been at the house but later admitted that he had gone there with a ski mask, a gun, gloves, and rope. He said he wanted to find out more about Esmeralda’s relationship with Martin. He thought having a gun would calm Martin down. He was there for around five hours, and at 10:00 a.m., he heard a woman enter. She would not be quiet, so he put his hand over her mouth and dragged her into the bedroom. She bit his hand, and he tried unsuccessfully to tape her mouth shut. All this time, she fought him and tried to get away. He put a pillow over her head to keep her quiet and told her that she was not the person he was looking for and had not come to kill her. He then tied her up and left, taking property with him to make it look like a robbery.
Sufficiency of Evidence
Defendant contends there is insufficient evidence to support his convictions for attempting to murder Maria and robbery.
The convictions for attempted premeditated murder were based on his conduct insofar is it was directed toward Esmeralda and Martin.
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making our determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Attempted Murder of Maria
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7; Pen. Code, § 21a.)
In People v. Smith (2005) 37 Cal.4th 733, the court more fully explained the requisite mental state. There, the defendant was convicted of two counts of attempted murder based on evidence that he fired a single shot into a car, narrowly missing both his girlfriend and baby son. On appeal, he claimed there was insufficient evidence of his intent to kill the baby, noting that he fired only one shot and had no animus toward the baby. (Id. at pp. 736-738.)
The reviewing court explained that “ ‘[t]he mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citation.]’ [Citation.] In contrast, ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.] Hence, in order for defendant to be convicted of the attempted murder of the baby, the prosecution had to prove he acted with specific intent to kill that victim. [Citation.]. [¶] Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ [Citation.] To be guilty of attempted murder of the baby, defendant had to harbor express malice toward that victim. [Citation.] Express malice requires a showing that the assailant ‘ “ ‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]” ’ [Citations.]” (People v. Smith, supra, 37 Cal.4th at p. 739.)
The court then stated that although the defendant’s animus toward his girlfriend showed a motive to kill her, that motive did not necessarily limit the scope of his intent; nor did the lack of animus toward the baby preclude a finding of intent to kill because motive is not an element of the offense. (People v. Smith, supra, 37 Cal.4th at pp. 740-741.) As the court explained, “[W]here the act of purposefully firing a lethal weapon at another at close range gives rise to an inference of intent to kill, that inference is not dependent on a further showing of any particular motive to kill the victim. This follows from the principle that motive is generally not an element of a crime in the first instance, including the crimes of murder and attempted murder. One may kill with or without a motive and still be found to have acted with express malice. An inference of intent to kill drawn on evidence of a purposeful shooting with lethal force under all the attendant circumstances can support a conviction of attempted murder even without evidence of motive.” (Id. at pp. 741-742.)
With these principles in mind, we focus on whether the record supports the jury’s finding that defendant specifically intended to kill the person he attacked: Maria.
Defendant notes that when he encountered Maria, he pointed a gun at her head but did not shoot, covered her face with a pillow but did not smother or choke her to death, stopped putting a mattress on her when she pleaded with him, and told her he had come there to kill someone else. Defendant argues that “[s]ince [he] expressly said he had no desire to kill [Maria] and did not persist in trying to kill her, despite having every opportunity to do so, it is impossible to find beyond a reasonable doubt that he intended to kill.” We disagree.
Defendant immediately pointed a gun at Maria, dragged her into a back bedroom, threw her down, and straddled her, while repeatedly saying, “Didn’t you tell me I was the only man?” This evidence supports a finding that defendant intended to kill Maria believing that she was Esmeralda. Indeed, defendant later admitted to Maria that he had come to kill someone else.
Defendant argues that the jury reasonably could not have found that he mistook Maria for Esmeralda and intended to kill her. He notes that Maria and Esmeralda were not related, and there was no evidence that they looked alike. Although these circumstances support his argument, they do not preclude a finding of mistaken identity. On the contrary, when defendant first encountered Maria, he was wearing a ski mask, which could have affected his vision. Moreover, his repeated statement “Didn’t you tell me I was the only man” indicates that he thought he was attacking Esmeralda. Maria certainly had never told defendant that he was the only man, and defendant’s use of “you” could only have been a reference to Esmeralda.
We further agree with the Attorney General that, apart from mistaking Maria for Esmeralda, defendant’s subsequent conduct shows an intent to kill. After defendant repeated his statement, Maria screamed and tried to yell for help. Defendant dropped his gun, tried to tape her mouth shut, put a pillowcase around her head and over her mouth, and then pushed a pillow onto her face, keeping it there for 20 seconds after she had stopped struggling. This conduct reasonably reflects an attempt to suffocate Maria and supports a finding of intent to kill.
The Attorney General also notes that defendant “repeatedly attempted to throw a heavy mattress on top of [Maria], even after she told him that this too would kill her.” He argues that this conduct also supports a finding of intent to kill. However, viewing the attempt in light of all the evidence, we do not find that it supports an inference that he did so with the intent to kill her. After he attempted to suffocate Maria, he apologized. Moreover, defendant stopped trying to put the mattress on top of her when she protested. Thus, stopping his attempt does not so much suggest that he changed his mind about killing her as that he did not intend to kill her with the mattress in the first place.
Defendant’s reliance on People v. Miller (1935) 2 Cal.2d 527 (Miller) is misplaced. There, after threatening a man named Jeans, the defendant brought a rifle to a ranch owned by a constable. He appeared to load it and then walked toward the constable and Jeans. However, he did not aim or even lift the rifle. Jeans fled, and the constable took the gun from the defendant without resistance. (Id. at p. 529.) In finding insufficient evidence of attempted murder, the court explained, “so long as the equivocal quality [of the defendant’s conduct] remains no one can say with certainty what the intent of the defendant is. As stated in United States v. Ford [(1888)] 34 F. 26, 27, ‘the intention of the actor can alone be clearly ascertained by the movements which he had made to complete his design.’ ” “In the present case up to the moment the gun was taken from the defendant no one could say with certainty whether the defendant had come into the field to carry out his threat to kill Jeans or merely to demand his arrest by the constable. Under the authorities, therefore, the acts of the defendant do not constitute an attempt to commit murder.” (Id. at pp. 531-532.)
Here, by contrast, defendant lay in wait on Turtlerock Drive with the intent to kill Esmeralda and Martin. Indeed, defendant does not challenge his convictions for attempted premeditated murder. Moreover, his attempt to suffocate Maria with the pillow is not comparable to the equivocal conduct in Miller.
In short, the record supports the jury’s finding that defendant intended to kill the woman he encountered in the house, and his conduct toward her comprised direct but ineffectual acts toward realizing his goal.
Robbery
Robbery is the taking of personal property from another’s person, or in his or her immediate presence, against his or her will, by means of force or fear. (§ 211; People v. Reeves (2001) 91 Cal.App.4th 14, 51 (Reeves).) “The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot.” (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) Moreover, asportation continues until so long as the stolen property is being carried away to a place of temporary safety. (Id. at p. 1161.)
To support a charge of robbery, “[t]he wrongful intent and the act of force or fear ‘must concur in the sense that the act must be motivated by the intent.’ [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 34 (Marshall).) Thus, the intent must be formed either before or during the use of force or fear, and if the intent arises only after the use of force or fear, then the taking is theft, not robbery. (Ibid.) However, if, after an attack, the victim remains in fear while the property is being removed, then it is reasonable to find that the taking was accomplished by fear and constitutes robbery. (People v. Wright (1996) 52 Cal.App.4th 203, 210.) Moreover, if the perpetrator, having peacefully acquired the property, uses force to retain or escape with it, what would have been a mere theft is transformed into robbery. (People v. Cooper, supra, 53 Cal.3d at p. 1165, fn. 8; People v. Winkler (1986) 178 Cal.App.3d 750, 756; People v. Estes (1983) 147 Cal.App.3d 23, 27-28.)
Defendant asserts that he came to the house to attack Esmeralda and Martin. He took the property to make it look like a robbery and then waited hours for them to arrive. When Maria arrived, he attacked her. Under the circumstances, he argues that the attack was unrelated to and not motivated by an intent to steal. Thus, he claims the evidence failed to establish the requisite connection between force and intent to steal to support a conviction for robbery. We disagree
The record does not establish when defendant took the property—i.e., either before Maria arrived, or after he tied her up. He told the police that he entered the house and “was looking around . . . for information about [Esmeralda] and the male occupant.” He said he was there for five hours and started to fall asleep. And he said that he took the property to make it look as if the motive for the attack had been robbery, but he did not say when he took it. Maria testified that after defendant tried to suffocate her, he apologized, said he wanted to leave, and tied her hands and feet to the bed. He also tried to put a mattress on top of her, but stopped when she pleaded with him. From her position, she could not see whether he went into the closet before he left the room. She said she just heard some noises.
Regardless of when defendant first took the property, the record supports his robbery conviction.
Defendant’s admission that he wanted the incident to look like a robbery and the fact that he took property with him when he left supports a finding that he intended to steal before he entered the house and maintained that intent throughout the entire episode. Thus, even if, as defendant suggests, he took the property before Maria arrived, the jury reasonably could have found that later, after he realized that Maria was not Esmeralda, he used force with the intent to retain the property and escape with it. Alternatively, if defendant took the property after tying Maria up, the jury reasonably could have found that he used force with the intent to both take and carry away the property so as to make the episode look like a robbery. The record supports both factual scenarios, and either one is sufficient to sustain defendant’s conviction. (People v. Seaton (2001) 26 Cal.4th 598, 640, 644.)
At oral argument, defendant conceded that he entered the house with the intent to steal.
Moreover, that defendant may have had other reasons for initially attacking Maria and later using force to restrain her does not preclude a conviction for robbery because defendant may have simultaneously entertained multiple and independent objectives in using force, including the intent to steal.
Defendant cites Reeves (2001) 91 Cal.App.4th 14 and Marshall, supra, 15 Cal.4th 1 for the proposition that “there is no robbery if a defendant steals property in a home[,] and, rather than flee when he has the opportunity, he chooses to stay to commit an assault.” However, defendant’s reliance is misplaced.
In Reeves, the defendant entered the victim’s home, woke her up, and assaulted her. She screamed and resisted. He fled when he heard sirens. Later, the victim’s roommate discovered that some jewelry was missing. (Reeves, supra, 91 Cal.App.4th at pp. 51-52.) On appeal, the court concluded that because the defendant had taken the jewelry before the assault, the trial court should have instructed on theft. The court explained, “This is not a case of a perpetrator who, having peacefully acquired property, uses force to retain or escape with it.” (Id. at pp. 52-53.) Rather, the defendant had the opportunity to leave with the property but chose instead to wake the victim and assault her. There was no evidence he did so with the intent to steal her property. (Id. at p. 53) Here, the court instructed on theft. Moreover, Reeves does not suggest that the evidence here was insufficient to show robbery. Rather, unlike the facts in Reeves, the evidence here reveals an intent to steal and the use of force to obtain and/or retain the property and escape with it to a place of temporary safety.
Defendant’s reliance on Marshall is equally misplaced. There, the defendant killed a woman. Later, the police stopped him and found that he had a note that she had written to a grocery store. (Marshall, supra, 15 Cal.4th at p. 12.) He was convicted of murder and robbery based on taking the letter. On appeal the court reversed because the evidence did not support a finding that the defendant killed the victim to obtain a piece of paper that had no inherent value or possible significance to the defendant. (Id. at pp. 34-35.) Here, defendant admitted that he took property to make it look like a robbery; the parties stipulated that the property was worth over $400; and, as noted, the jury reasonably could have found that he used force to obtain the property and/or escape with it.
Instructions
Defendant contends the court gave inadequate robbery instructions and an erroneous instruction on the possession of recently stolen property.
Robbery Instructions
Defendant claims that the court erred in failing to instruct the jury that “there is no robbery if the thief had the opportunity to flee without using force, but remained and applied force for an unrelated purpose.” (Italics added.) He argues that the instructions did not adequately inform the jury that the use of force must be motivated by the intent to steal.
It is settled that “the court must instruct sua sponte on ‘the “general principles of law governing the case;” ’ i.e., those ‘“closely and openly connected with the facts of the case before the court.” ’ [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 118, quoting People v. Hood (1969) 1 Cal.3d 444, 492.)
In analyzing a claim of inadequate instructions, we do not focus on a single instruction but instead review the entire charge to the jury in light of the evidence and the arguments of counsel to determine whether there is a “reasonable likelihood” that the jury understood the instructions in the manner proposed by the defendant. (Estelle v. McGuire (1991) 502 U.S. 62, 72; Boyde v. California (1990) 494 U.S. 370, 378-381; People v. Holt (1997) 15 Cal.4th 619, 677; People v. Clair (1992) 2 Cal.4th 629, 663; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.)
Here, the court instructed the jury that to convict the defendant of robbery, the People had to prove that “(1) the defendant took property that was not his own; [¶] (2) The property was taken from another person’s possession and immediate presence; [¶] (3) The property was taken against the person’s will; [¶] (4) The defendant used force or fear to take the property or to prevent the person from resisting and; [¶] (5) When the defendant used force or fear to take the property he intended to deprive the owner of it permanently or to remove it from the owner’s possession for a period of time that the owner will be deprived of the major portion of the value or enjoyment of the property. [¶] The defendant’s intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear then he did not commit robbery.” (Italics added; see CALCRIM No. 1600.) The court further instructed the jury that “[p]roperty is within a person’s immediate presence if it is sufficiently within his or her physical control that he or she could keep possession of it not prevented by force or fear.” In addition, the court instructed on the lesser offense of grand theft—i.e., the taking without the use of force or fear.
In our view, the italicized language clearly indicated that robbery requires findings that (1) the purpose of the use of force was to take property or prevent another person from resisting the taking; (2) the intent to take must have arisen before or during the use of force; and (3) at the very time force was used, the defendant intended to permanently deprive the victim of the property. Under the circumstances, we find no reasonable likelihood that jurors thought they could convict defendant of robbery even though they found that his use of force was unrelated to the theft and defendant’s intent to permanently deprive. Nor do we find a reasonable likelihood that they did so. Indeed, if, in accordance with the court’s instructions, the jury found that defendant harbored an intent to steal before or during his use of force and that when he used force he intended to permanently deprive the owner of the property, there is no reasonable likelihood that the jury found that the use of force was wholly unrelated to the theft or that the use of force was not “motivated,” at least in part, by his intent to steal.
Moreover, we note that the prosecutor did not suggest that (1) defendant’s use of force was unrelated to the intent to steal, (2) the use of force need not be motivated by an intent to steal, or (3) defendant did not intend to steal the jewelry when he used force and fear against Maria. The prosecutor noted that it was unclear when defendant took the property, and he could have taken it after he used force against Maria. Indeed, defense counsel reiterated this evidentiary ambiguity, stating that “we don’t know when that jewelry was taken . . . .”
In short, we do not find that the robbery instructions were inadequate.
Possession of Recently Stolen Property
The court gave CALCRIM No. 376, instructing the jury as follows: “If you conclude that the defendant knew he possessed property and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of robbery or burglary or grand theft based on those facts alone. However, if you also find that the supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove that he committed robbery or burglary or grand theft. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of robbery or burglary or grand theft.”
Defendant claims this instruction, especially its reference to “slight” evidence, is defective in that it diluted the prosecution’s burden to prove the charge of robbery beyond a reasonable doubt and thus violated his constitutional rights.
CALJIC No. 2.15, the predecessor to CALCRIM No. 376, has repeatedly withstood similar challenges to its constitutionality. (People v. Snyder (2003) 112 Cal.App.4th 1200, 1225-1229 and cases cited there; People v. Williams (2000) 79 Cal.App.4th 1157, 1172-1174 and cases cited there. More recently, the court in People v. O’Dell (2007) 153 Cal.App.4th 1569, 1573-1577, rejected such a challenge to CALCRIM No. 376.
In our view, CALCRIM No. 376, like CALJIC No. 2.15, “correctly prohibits the jury from drawing an inference of guilt solely from conscious possession of recently stolen property but properly permits the jury to draw such an inference where there is additional corroborating evidence. As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution’s burden of proof or implicates a defendant’s right to due process.” (People v. Williams, supra, 79 Cal.App.4th at p. 1173.)
In support of his claim, defendant cites United States v. Hall (5th Cir. 1976) 525 F.2d 1254, and United States v. Gray (5th Cir. 1980) 626 F.2d 494 (Gray), United States v. Partin (5th Cir. 1977) 552 F.2d 621. Those cases involved a conspiracy instruction tied to the substantive element of a conspiracy charge. For example, in Gray, the jury was instructed on the elements of conspiracy and then told that “[t]he Government need only introduce slight evidence of a particular defendant’s participation, once the conspiracy is established, but must establish beyond a reasonable doubt that each member had a knowing, special intent to join the conspiracy.” (Gray, supra, 626 F.2d at p. 500.) The Fifth Circuit has consistently condemned that instruction, finding that it lowers the reasonable doubt standard. (Ibid.; United States v. Brasseaux (5th Cir. 1975) 509 F.2d 157, 161, fn.5 and cases cited there.)
Here, the issue was whether guilt may be inferred from the possession of recently stolen property. The federal cases are not analogous or persuasive; nor do we find CALCRIM No. 376 reasonably susceptible of being misinterpreted to lower the prosecution’s burden of proof concerning robbery, especially when that instruction is viewed in light of all of the court’s instructions.
Multiple Punishment
Defendant contends that section 654 bars multiple punishment for false imprisonment in addition to attempted murder and robbery and also bars separate firearm and bodily injury enhancements to the false imprisonment conviction.
In his opening brief, defendant claimed section 654 barred multiple firearm enhancements for attempted murder, robbery, and false imprisonment. However, he concedes in his reply brief that separate firearm enhancements were permissible. (People v. Palacios (2007) 41 Cal.4th 720.)
Section 654 is intended “to ensure that a defendant’s punishment is commensurate with his [or her] culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552.) The statue bars multiple punishment for both a single act that violates more than one criminal statute and multiple acts, where those acts comprise an indivisible course of conduct incidental to a single criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19.) Conversely, where a defendant commits multiple criminal offenses during a single course of conduct, he or she may be separately punished for each offense that he or she committed pursuant to a separate intent and objective. (People v. Beamon (1973) 8 Cal.3d 625, 637-639.)
Whether a single course of conduct is divisible into different offenses based on separate intents and objectives is a question of fact for the trial court, and its express or implied findings will be upheld on appeal when they are supported by substantial evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) In this regard, we review the trial court’s determination in the light most favorable to the judgment and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Ibid.)
Section 236 defines false imprisonment as “the unlawful violation of the personal liberty of another.” “Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or go where he does not wish to go, is false imprisonment.” (People v. Agnew (1940) 16 Cal.2d 655, 659-660.)
Defendant restrained Maria’s liberty from the time he first encountered her until he fled. During that time, he held a gun to her head, dragged her into the bedroom and threw her on the floor, tried to suffocate her, and then tied her to the bed. Although each of these acts restrained Maria’s liberty, they do not constitute separate crimes. Rather, Maria’s continuous and uninterrupted restraint constituted a single violation of the statute. (Cf. People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335 [reversing one of two kidnapping convictions, where initial abduction was continuous despite two separate movements of the victim]; People v. Masten (1982) 137 Cal.App.3d 579, 588, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8 [unanimity instruction unnecessary despite separate movements of the victim because initial kidnapping is an ongoing offense as long as detention continues]; Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 410 [for purposes of statute of limitations, kidnapping is a continuous offense]; see also People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121 [false imprisonment is a lesser offense included in kidnapping].)
With this in mind, we analyze different aspects of Maria’s restraint to see whether the circumstances support the trial court’s implicit finding that defendant had a purpose separate from and independent of the attempted murder and robbery.
The record establishes that defendant’s restraint of Maria before he realized who she was both facilitated and constituted the attempted murder. (E.g., People v. Latimer, supra, 5 Cal.4th at pp. 1216-1217 [where kidnapping incidental to rape, no separate punishment]; People v. Nubla (1999) 74 Cal.App.4th 719, 730 [same re assault and false imprisonment]; People v. Martinez (1980) 109 Cal.App.3d 851, 858 [same] (Martinez).) Moreover, if, as defendant suggests, he took the property before he attacked Maria, then insofar as the initial attack and restraint allowed him to retain possession, the false imprisonment also facilitated the robbery and therefore was incidental to defendant’s intent to steal. Thus, the circumstances do not support a finding that defendant’s initial acts of restraint served a third purpose unrelated to the attempted murder and robbery.
Next, we turn to defendant’s act of restraint after he realized that Maria was not Esmeralda: tying her to the bed. Clearly, tying Maria to the bed did not facilitate the attempted murder because by that time, he had abandoned the intent and effort to kill Maria. Indeed, the crime of attempted murder was complete, and therefore, tying Maria up represented a gratuitous act of force and violence separate from defendant’s prior intent to kill. Accordingly, section 654 would not bar separate punishment for false imprisonment, if defendant’s only two offenses were attempted murder and false imprisonment. (E.g., People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191 [robbery and assault separately punishable where assault represented a gratuitous act of violence against a helpless victim unnecessary to commission of the robbery]; People v. Johnson (1969) 270 Cal.App.2d 204, 206 [same]; People v. Coleman (1993) 48 Cal.3d 112, 162 [same re burglary and assault]; People v. McGahuey (1981) 121 Cal.App.3d 524, 529 [same].)
However, as to the robbery, tying up Maria was not a subsequent gratuitous act of forcible restraint. Maria had struggled against defendant from the moment he attacked her. Although defendant abandoned his intent to kill, he did not abandon his intent to steal and make the incident look like a robbery. Moreover, when he tied Maria up, the robbery was far from complete. Rather, tying her up was essential to committing the robbery, in that it both facilitated it and established some of its elements. Thus, if defendant took the property before Maria arrived, then his subsequent acts of restraint transformed the initial theft into robbery. They allowed him to retain the property, and facilitated his unhampered escape to a place of temporary safety. Alternatively, if defendant obtained the property after he tied Maria up, then that forcible restraint facilitated both the initial taking and the asportation.
The Attorney General concedes that tying Maria up facilitated the taking and asportation elements of robbery. However, he argues that it also reflected a separate objective: to keep Maria from drawing attention to his offense so he could successfully escape detection. In support, he cites People v. Saffle (1992) 4 Cal.App.4th 434 (Saffle).
In Saffle, the defendant came to the victim’s home armed with a knife, ordered her to lie down, and then sexually attacked her. Thereafter, someone knocked at the door. The defendant threatened to kill the victim and her children if she reported him. The victim believed him and opened the door. Two of her acquaintances came in, but she did not tell them what had just happened. (Saffle, supra, 4 Cal.App.4th at p. 437.) The defendant was convicted of various sexual offenses and false imprisonment based on the ongoing restraint. (Id. at p. 436.) In upholding separate punishment for false imprisonment, the Saffle court noted that after completing his sexual assault, the defendant wielded a knife and subjected the victim and her children to threats of future bodily injury. (Id. at p. 439.) The court opined that doing so indicated that the defendant’s objective changed. His interest in sexual gratification was over, and his subsequent conduct was intended to dissuade the victim from ever reporting the incident, conduct for which defendant could have been separately prosecuted. (Ibid.; § 136.1, subds. (a)(2) and (c)(1) [dissuading a witness].) Thus, because the subsequent act of restraint furthered an independent and unlawful objective, that offense could be separately punished. (Saffle, supra, 4 Cal.App.4th at p. 440.)
The court distinguished the facts from those in Martinez, supra, 109 Cal.App.3d 851. (Saffle, supra, 4 Cal.App.4th at p. 439.) In Martinez, the defendant was convicted of assault with intent to commit rape and false imprisonment. (Martinez, supra, 109 Cal.App.3d at p. 854.) The defendant assaulted his victim, dragged her under a bridge, and attempted, unsuccessfully, to rape her. After stopping, he restrained her for a few moments to convince her not to report him. (Id. at p. 858.) On appeal, the court stayed separate punishment for false imprisonment, finding that the offense was incidental to the assault. (Ibid.) The Saffle court noted that unlike the defendant in Martinez, Saffle had completed his sexual offenses and then threatened the victim and her children to dissuade her from reporting the crime. (Saffle, supra, 4 Cal.App.4th at pp. 439-440.)
Saffle is distinguishable from this case. As noted, defendant tied Maria to the bed before the robbery was complete, and that act of restraint was incidental and essential to its completion. Moreover, there is no evidence that defendant separately threatened future violence against Maria, and the record does not suggest that he tied her up to dissuade her from ever reporting his crimes. Indeed, tying her up had no reasonable tendency to dissuade her from reporting the incident or otherwise prevent her from ever doing so. On the contrary, she reported it as soon as she freed herself. Rather, tying Maria up simply enabled defendant to take or retain the property and make his escape to a place of temporary safety. Thus, whereas the threats of future harm in Saffle after the underlying sexual assault was over indicated a purpose independent of that assault, tying Maria up, by itself, does not similarly support a finding that the restraint served a purpose apart from defendant’s underlying intent to complete the robbery.
Moreover, under the facts of this case, we reject the Attorney General’s claim that tying Maria up to prevent Maria from drawing attention to his offense and successfully escape detection represents a purpose independent of the robbery. In our view, the Attorney General’s articulation of a separate intent is merely another way of saying that defendant tied Maria up so that he could complete the robbery by successfully escaping to a place of temporary safety without Maria interfering.
We recognize that tying Maria up to complete the robbery also allowed him to escape detection for the burglary and assault. However, that consequence necessarily flowed from and was inherent in his effort to complete the robbery. Thus, given the continuous nature of the incident, we consider it speculation to find that in tying Maria up, defendant harbored three separate and independent objectives: to avoid detection for burglary; to avoid detection for assault; and to avoid detection for robbery.
Under the circumstances, therefore, the record does not support the trial court’s implicit finding that defendant falsely imprisoned Maria for a reason separate from and independent of the attempted murder and robbery. Accordingly, we conclude that section 654 bars separate punishment for false imprisonment, and we shall modify the judgment accordingly.
In light of our conclusion, we need not address defendant’s claim that section 654 barred enhancements to the conviction for false imprisonment for use of a fire arm and the infliction of great bodily injury. Where the imposition of a particular term violates section 654, the appropriate remedy is to stay that term. (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 886; accord, People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Since the term for false imprisonment must be stayed, the enhancements associated with that conviction must also be stayed, regardless of the merits of defendant’s claim that they were barred by section 654 even if a separate term for false imprisonment were not barred.
Disposition
The judgment is modified to stay the eight-month consecutive term imposed for false imprisonment along with the associated enhancements for using a firearm and infliction of great bodily injury. As modified the judgment is affirmed. The Clerk of the Superior Court is directed to prepare a new abstract of judgment that reflects the stays and correctly lists the offenses of which defendant was convicted. (See fn. 5, ante.)
WE CONCUR: PREMO, J., ELIA, J.
The People have also brought to our attention the fact that the abstract of judgment incorrectly reflects convictions for second degree burglary (count 4) and first degree burglary (count 5). Those convictions should have been listed, respectively, as first degree burglary and first degree robbery.