Opinion
NOT TO BE PUBLISHED.
Superior Court County of Los Angeles, Ct. Nos. BA322633, BA322866, Lance A. Ito, Judge
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Robert Lee Hale appeals a judgment after his conviction of two counts of first degree robbery (Pen. Code, § 213, subd. (a)(1)) (counts 11 & 12), kidnapping to commit robbery (§ 209, subd. (b)(1)) (count 16), attempted second degree robbery (§§ 664, 211) (count 17), second degree robbery (§ 211) (count 19), grand theft of a firearm (§ 487) (count 20), false imprisonment by violence or menace (§ 236) (count 21), second degree burglary (§ 459) (count 23), possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 24), possession of ammunition by a felon (§ 12316, subd. (b)(1)) (count 25), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) (count 26), with jury findings that a principal was armed with a firearm (§ 12022, subd. (a)(1)) (counts 11, 12, 16, 17, 19, 20, 21 & 23), that Hale personally used and intentionally discharged a firearm (§ 12022.53, subds. (b), (c)) (counts 11 & 12), and Hale's discharge of a firearm caused great bodily injury (§ 12022.53, subd. (d)).
All statutory references are to the Penal Code unless otherwise stated.
The trial court found that Hale fell within the purview of the Three Strikes law. The prosecution requested that Hale be sentenced to 189 years to life. Instead, the court sentenced him to an aggregate term of 330 years to life.
We conclude, among other things, that: 1) sufficient evidence supported Hale's conviction as an aider and abettor of the robbery of an armored car guard, 2) the trial court did not abuse its discretion in denying Hale's motion to sever certain counts to be tried separately, 3) there was no prosecutorial misconduct, 4) Hale has not shown ineffective assistance of his trial counsel, 5) the court did not abuse its discretion in denying Hale's motion to be cocounsel with his defense attorney, 6) Hale's conviction of theft of a firearm (count 20) is a lesser-included offense of robbery, 7) Hale's conviction of false imprisonment (count 21) is a lesser-included offense of kidnapping, and 8) there were multiple sentencing errors that require this matter to be remanded for resentencing. We strike the convictions in counts 20 and 21. We remand for resentencing in other counts. In all other respects, we affirm.
FACTS
The Samuels' Home Invasion Robbery
On the evening of January 14, 2007, Marcus Samuels was at home with Lou Harice and Lisa Pipkins. They were playing cards and drinking. Pipkins made a phone call and then left.
Hale and Kenny Johnson immediately entered with handguns and began "ransacking the house." They tied Samuels' hands together and asked him "where was the money." Samuels told them he "didn't have it, [he] sent it with [his] wife."
Hale put a knife to Samuels' throat and said, "I'm leaving with your life or handful of money." Hale took the knife, "carved three lines" in Samuels' back, and said, "If you don't tell me, I will cut your throat." Hale then told Johnson to shoot Samuels. Samuels gave them the money.
At trial Samuels identified Hale as one of the robbers. The prosecutor asked, "Are you positive it was Mr. Hale that was with Mr. Johnson that night?" Samuels: "I am 150 percent positive."
Harice testified that when Hale entered Samuels' residence, Hale "put a gun to [his] head." Harice unsuccessfully tried to take the gun away from Hale. During the robbery, Hale shot Harice in the hip, and said, "I'm sorry, I didn't mean to shoot you." The prosecutor asked, "Do you have any doubt that Mr. Hale was one of the two men in the house that day?" Harice said, "He was the man that shot me...."
The Laundromat Robbery
At 6:37 a.m., on March 23, 2007, Hale and Johnson opened an outside door to the Laundromax Cleaners and entered a "money room." They were not aware that several security cameras were recording their activities.
Martha Dorado, the manager of the laundromat, arrived and asked employee Margarita Perez to open the door to the money room. When Perez opened the door, Johnson, who was inside and holding a gun, grabbed her.
Dorado was in the parking lot. She saw what happened to Perez. Dorado started to run into the laundromat intending to call the police. Hale stopped her and said, "[S]tay outside."
A short time later, Johnson opened the money room door, walked outside towards Dorado and forcibly took her at gun point from the parking lot into the money room. He ordered her to open a cabinet and give him the money.
While Johnson and Dorado were in the money room, Luis Najera, a guard for the Loomis armored car company, arrived to "make a delivery and a pick-up." He had a nine-millimeter gun in his holster. He knocked on the door and was immediately confronted by Johnson who pointed a gun at Najera's face. Najera raised his hands in the air. Johnson took the nine-millimeter gun from Najera's holster. Then Hale and Johnson left.
The Police Investigation
Detective Eric Crosson studied the video of the surveillance tapes and concluded that Hale and Johnson were a "very organized" team. On May 10, 2007, Crosson was driving less than a half a mile from the laundromat. He saw a man sweeping a driveway who fit the description of one of the robbers on the laundromat video. It was Hale. Crosson and another detective approached him. Hale was nervous and stuttered. In a search of his bedroom, police found a loaded.357 revolver and various types of ammunition. In a search of Hale's car, police found a parole information sheet that contained a photograph of Johnson.
The police searched Johnson's residence and found a gun. Ballistics tests showed that it was the weapon that fired the bullet in the Samuels' robbery. A shell casing, which police found at Samuels' house, also came from that gun. Crosson believed that Johnson and Hale were the team who committed the Samuels' and laundromat robberies. He obtained a search warrant for Pipkins' phone records. Crosson discovered that she had called Johnson's cell phone at the time of the Samuels' robbery. Pipkins had listed her address as 8416 South Harvard. That was also Hale's address.
The Defense Case
In the defense case, Mitchell Eisen, a psychologist, testified that crime witnesses who see a weapon will often focus so intensely on it that they are unable to give valid descriptions of the perpetrators.
Andnette Hale, Hale's daughter, testified that in December 2006 she took Hale to the hospital for cancer surgery. When she visited him at home in January 2007, Hale had "a D-catheter" and he "couldn't get out of the bed." In February, the catheter was removed. When he walked, he was "hunched over" and took "baby steps." In March, he walked with a cane, "but he still was slow and... hunched over." On cross-examination, she said she was not with Hale on January 14, 2007, or March 23, 2007, and did not know where he was on those dates.
Sandra Hale, a licensed vocational nurse who was married to Hale's brother, testified that Hale had prostate cancer surgery. In January 2007, he was able to walk, but "he walked real slow" and was in pain. On cross-examination, she said that Kaiser hospital records reflected that on December 27, 2006, Hale was released from the hospital, he was able to walk and he had no pain. The records also reflected that he was able to leave the hospital by himself.
Police Officer Fred Williams testified that after the Samuels' robbery he interviewed Harice. Harcie told Williams that before the robbery he and others in the Samuels' residence had been smoking "primo, " a substance "laced with marijuana." Harice said he was not able to identify who shot him. On cross-examination, Williams said that Harice told him that he had been drinking alcohol and a friend was smoking primo. Willams added, "I don't know if I mixed the names up with Harice and Maurice. So it could be a typo."
Hale did not testify.
DISCUSSION
I. Conviction for Robbery of the Armored Car Guard
Hale contends Johnson committed the robbery of Najera, the armored car guard, and took his gun "when [Najera] unexpectedly showed up at the laundromat." He claims his convictions in counts 19 and 20 as an aider and abettor to this robbery and theft must be reversed because Johnson's actions were not the natural and probable consequence of their underlying plan to commit the laundromat robbery. He argues these were consequently separate crimes committed solely by Johnson. We disagree.
"'[An aider and abettor] is guilty not only of the offense he intended to facilitate and encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets....'" (People v. Prettyman (1996) 14 Cal.4th 248, 261.) "'It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator.'" (Ibid.) Consequently, where a group of burglars are interrupted by a police officer, and one of them shoots the officer to "protect[]... the group from arrest or detection" (ibid.), each is criminally responsible, "even though it was not intended as a part of the original design or common plan." (Id. at p. 260.)
Here, because Najera was an armed guard, he could have interrupted Johnson's and Hale's crime and apprehended them. Johnson's actions were in furtherance of the goal of protecting Hale and himself from arrest or detention. (People v. Prettyman, supra, 14 Cal.4th at p. 261.) By taking Najera's gun, Johnson allowed Hale and himself to escape. We reject Hale's suggestion that Johnson's actions were unrelated to their underlying plan. The jury could reasonably infer that those who plan robberies expect that a major goal is to prevent interference by third parties. Johnson took action for that purpose. The evidence is sufficient.
II. The Motion to Sever Counts
Hale notes that he moved the trial court to have separate trials on several of the counts because he claimed one trial on all counts was prejudicial. He contends the court abused its discretion by denying his motion to sever the home invasion counts from the laundromat robbery counts. We disagree.
As a general rule, the prosecution is entitled to join offenses against a defendant and try them in one case. (People v. Soper (2009) 45 Cal.4th 759, 773.) "The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." (Ibid.) "If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice...." (Id. at pp. 774-775.) Where "properly joined charges are of the same class, the circumstance that the evidence underlying those charges would not be cross-admissible at hypothetical separate trials is, standing alone, insufficient to establish that a trial court abused its discretion in refusing to sever those charges." (Id. at p. 775.)
Joinder may be prejudicial where the prosecution joins a strong case involving a minor crime with a weak case involving a major offense. But that is not the case here. Both of the joined offenses involve the same class of crime-robbery. The trial court found that the evidence in these cases was cross-admissible. This finding is supported by the record. During the investigation of the laundromat robbery, police found evidence linking Hale and Johnson to that robbery and to the home invasion case. The video surveillance tape, Pipkins' phone records and the ballistics evidence were highly probative evidence in identifying a pattern and the pair who committed the robberies. (People v. Haston (1968) 69 Cal.2d 233, 249-250.)
Hale claims that evidence of "innocent employees being assaulted with a gun" in the laundromat case would inflame the jury. If so, the evidence of the victims being assaulted in the home invasion also would inflame the jury. These were both violent crimes committed by a pair of robbers who terrorized their victims. Most likely any jury would consider these to be serious crimes. Hale has not shown an abuse of discretion.
III. Prosecutorial Misconduct
Hale contends the prosecutor committed prejudicial misconduct by misstating the law regarding the proof necessary to convict him of possession of a firearm by a felon and possession of ammunition by a felon (counts 24 and 25). We disagree.
"Prosecutorial misconduct is reversible under the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.'" (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) "'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.'" (Ibid.) A prosecutor engages in misconduct by misstating the law. (People v. Gray (2005) 37 Cal.4th 168, 217.)
Here the trial court instructed jurors that Hale could be convicted of possession of a firearm and possession of ammunition by a felon if he were in "constructive possession" of these items. The court said, "'Constructive possession' does not require actual possession, but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons." (Italics added.) This was a proper instruction on constructive possession. (People v. Montero (2007) 155 Cal.App.4th 1170, 1177.)
Hale notes that in his argument to the jury the prosecutor, while discussing the elements of the offense of possession of a firearm by a felon, said, "[A]s long as Mr. Hale knew that there was a gun next to his bed... then he's in possession, constructive possession...." Hale claims this was a misstatement of law because the prosecutor omitted the element that the defendant must be shown to have had the right to control the gun.
The Attorney General correctly notes that Hale never objected to these remarks at trial. That constitutes a waiver of his claim. (People v. Morales (2001) 25 Cal.4th 34, 43-44.) If error occurred, it easily could have been corrected with appropriate objection.
But here there was no error. Hale focuses on one sentence by the prosecutor and suggests he was trying to nullify the trial court's instruction on constructive possession. But that is not the case.
Hale fails to note that immediately prior to making this statement the prosecutor told jurors, "Mr. Hale is a convicted felon, he's not supposed to have a gun. It's illegal. This was a constructive possession case. Right to control. These are the elements...." (Italics added.)
A few minutes earlier, while discussing constructive possession, the prosecutor said, "Constructive possession. ... That's where someone has the right to control a piece of property, even though they don't have it with them." (Italics added.) The totality of the prosecutor's remarks was consistent with the trial court's instructions on constructive possession. He made no attempt to nullify or eliminate the right of control element.
Moreover, the trial court instructed jurors, "If anything concerning the law said by the attorneys in their arguments or at any other time during the course of the trial conflicts with my instructions on the law, you must follow my instructions." "Absent any contrary indication, we presume the jury followed this instruction." (People v. Gray, supra, 37 Cal.4th at p. 217.) Hale has not shown grounds for reversal based on prosecutorial misconduct.
IV. Ineffective Assistance of Counsel
Hale contends his trial counsel was ineffective because he failed to object to Detective Crosson's opinions about his "guilt." We disagree.
Ineffective assistance is established by showing "that counsel's performance was deficient" and "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687.) "[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
Hale claims the prosecution used Crosson to render an improper opinion on his guilt. But the prosecutor never asked Crosson to opine on Hale's guilt. He asked him: 1) what was the "break" in the case that linked the two robberies together, and 2) to explain why Johnson was not the only suspect, even though the gun used in the home invasion was found in Johnson's residence. Crosson explained how he evaluated the information he obtained during his investigation to connect Hale and Johnson to the two crimes.
Crosson said, "In my experience, criminals generally stay with the same crime partners. They are comfortable with each other. They know how each other works. [¶] If you watch the video in the laundroma[t], they appear very organized. Mr. Hale opens the door for Kenny Johnson, comes in at the low ready, almost military-type fashion, clears the location. These two are comfortable with each other. [¶]... Seemed like to me they were also involved in this one together, and the physical descriptions also matched on the crime report."
Hale has not shown what an objection from his trial counsel would have achieved. A major goal of the defense was to show that the police investigation was flawed. Counsel could have reasonably concluded that the best method of establishing reasonable doubt was to show that the investigating officer's reasons for linking Hale to the two crimes contained gaps or unreasonable assumptions. But, to show that, it is necessary for the officer to initially explain his reasoning, and then impeach it. On cross-examination, Hale's counsel asked Crosson about deficiencies and omissions that he saw in Crosson's conclusions, his reports, and the results obtained from the police searches.
In argument to the jury, Hale's counsel claimed the investigation was not adequate and the police had jumped to erroneous conclusions. He said that the police were thinking to themselves, "I think we got it right here. Case closed. No more investigation needed. Why remove any doubt?... Why do a thorough investigation? Let's just end it right here and toss it to some people to decide." By impeaching the investigation, he was trying to plant the seeds of reasonable doubt. That is a well established tactic used by defense counsel.
Hale's attorney also could have reasonably concluded that the jury could determine from its view of the laundromat surveillance DVD that Crosson's conclusions were unreasonable. Counsel may have believed that the DVD impeached Crosson because the physical activity of the two robbers was inconsistent with the evidence he presented in the defense case about Hale's medical condition, or because their actions appeared to him to be disorganized. He could have reasonably concluded that by discrediting Crosson's theory that this was a "military" style crime, that he could ask jurors to disbelieve his remaining conclusions and impeach the credibility of the police investigation. Hale suggests that we must conclude that his trial counsel acted out of neglect, not trial strategy. But this record is not sufficiently complete for us to make such an assumption. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
Moreover, even had these portions of Crosson's testimony been excluded, Hale has not shown that the result would change. The prosecution's case was strong. The eyewitness testimony about the Samuels' robbery was supported by ballistics evidence, phone records and Pipkins' connections to Hale and Johnson. There was a surveillance tape at the laundromat and eyewitness testimony which showed that Hale and Johnson committed both of these crimes. The jury found the testimony of the crime victims to be persuasive. Sandra Hale's testimony on cross-examination undermined a substantial portion of the defense case. It is appellant's burden to show that any deficient performance by counsel was prejudicial to the defense. (Strickland v. Washington, supra, 466 U.S. at p. 687.) Hale has not met this burden, and consequently he has not shown ineffective assistance.
V. Cocounsel Status
Hale claims the trial court erred by denying his request to be cocounsel with his defense attorney. We disagree.
Hale's trial counsel told the court, "[M]y client asked that he have the ability to co-chair with counsel. In that respect, I think he would like to ask questions of the witnesses if he feels that my questions are insufficient or ineffective." The court denied the request.
"'As long as a defendant is represented by counsel at trial, he has no absolute right to participate personally in his own defense.'" (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1310.) The court has discretion to allow a defendant to be a cocounsel. But the defendant must make a strong showing "that the cause of justice would be served" and that cocounsel status would not interfere with the orderly trial process. (Id. at p. 1311.)
Here the showing made for cocounsel status was inadequate. There was no explanation as to why Hale could not suggest questions that his counsel could ask. "Counsel did not claim that he would not be able to cross-examine these witnesses effectively. Also, appellant was going to sit at the counsel table and could assist trial counsel during trial." (People v. Crabtree, supra, 169 Cal.App.4th at p. 1311.) There was no abuse of discretion.
VI. Conviction for Theft (Count 20)
Hale contends his conviction on count 20 (grand theft of a firearm) must be reversed because it is a lesser-included offense of second degree robbery in count 19. The Attorney General concedes the error.
The victim of the robbery in count 19 was Najera, the armored car guard, and the theft for count 20 was the taking of Najera's gun during that robbery.
Grand theft of an item taken during the commission of a robbery is a lesser necessarily included offense of the crime of robbery. (People v. Cole (1982) 31 Cal.3d 568, 582.) "'If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.'" (Ibid.)
VII. Staying the Sentence on Count 25 Possession of Ammunition by a Felon
Hale contends the court erred by "impos[ing] consecutive third-strike sentences" for possession of a gun by a felon (count 24) and possession of ammunition by a felon (count 25). He claims "punishment on count 25 should have been stayed." We agree.
The trial court stated, "Count 24, possession of a firearm by a felon, defendant is sentenced to state prison for 25 years to life, consecutive. [¶] Count 25, possession of ammunition by a felon, the defendant is sentenced to state prison for the indeterminate term of 25 years to life, consecutive."
In People v. Lopez (2004) 119 Cal.App.4th 132, the defendant, a second strike offender, was sentenced to six years for unlawful possession of a firearm and a concurrent six year term for unlawful possession of ammunition. The ammunition was in the firearm. We concluded that the sentence for unlawful possession of ammunition should have been stayed under section 654. We stated, "In resolving section 654 issues, our California Supreme Court has recently stated that the appellate courts should not 'parse[] the objectives too finely.' [Citation.] To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely." (Id. at p. 138.) We added, "While possession of an unloaded firearm alone can aid a person committing another crime, possession of ammunition alone will not. The former may be used as a club and a victim may be fearful that the firearm is loaded. While the latter may be thrown at a victim, it is extremely unlikely that possession of bullets alone would scare anyone but the most timid." (Ibid.)
The Attorney General argues that this case is distinguishable from Lopez, and consequently consecutive life sentences are appropriate. We disagree.
Here the prosecution presented testimony that police found a.357 revolver in a dresser drawer in the bedroom. The gun contained six rounds, and police found "other types of ammo" in the bedroom and on top of the dresser. In count 25 of the information, the prosecution alleged that Hale possessed "ammunition and reloaded ammunition." In its instructions to the jury, the trial court said, "In order to prove this crime, each of the following elements must be proved: [¶] 1. A person knowingly owned, possessed, or had under his custody or control, ammunition or reloaded ammunition...." (Italics added.) Section 12316, subdivision (b)(1) makes it a crime for a felon to "possess, or have under his or her custody or control, any ammunition or reloaded ammunition." (Italics added.)
The prosecution did not separate the facts alleged about ammunition and reloaded ammunition into separate counts. It simply alleged possession of both types of ammunition in count 25. Given the jury instruction, the jury could have convicted Hale on count 25 based on his possession of reloaded ammunition alone, in other words, the six rounds of ammunition that were loaded into his gun. That would fall directly within Lopez, and a stay would be required.
The Attorney General suggests that this case is factually more aggravated than Lopez because the police found both a weapon with ammunition in it and other ammunition in the bedroom. Had the prosecution separated the ammunition and reloaded ammunition allegations into two counts, and there were guilty verdicts on both, he would be in a position to make this argument. But because these allegations were united into one count, the Attorney General can only speculate what the jury found. After finding Hale guilty of possession of the gun, the jury may have determined that he was guilty of count 25 simply because that gun was loaded. It may not have reached the issue of who possessed the loose ammunition. Moreover, even if the trial court assumed there were unanimous jury findings on both types of ammunition, it could not adopt the Attorney General's suggestion that count 25 be divided into two parts for sentencing, i.e., a stayed sentence for the reloaded ammunition to comply with Lopez, and a consecutive sentence for the remainder.
Even if the Attorney General's position is correct, we disagree that this case involves more aggravating circumstances for rejecting a stay than in Lopez. The facts may differ in these cases regarding the location and types of ammunition, but the justification for staying count 25 is the same. Here there were no findings that Hale kept these items in his room for different purposes; and, as in Lopez, the trial court "did not identify multiple criminal objectives." (People v. Lopez, supra, 119 Cal.App.4th at p. 138.) The two crimes involved the same conduct possession. There was only one event the police searched Hale's bedroom and found these items.
Whether they found the ammunition in the gun, or separate from it, the underlying fact remains that there was no affirmative act by Hale other than a single incident of "simultaneous possession." The Attorney General seeks to divide this event into separate parts based on his possession of different items, but such a division is artificial and unwarranted. (People v. Rowland (1999) 75 Cal.App.4th 61, 65 ["defendant is subject to only one conviction for his simultaneous possession of three sharp wooden sticks in prison"]; People v. Harris (1977) 71 Cal.App.3d 959, 971 ["it would be unreasonable to fragment the simultaneous possession of the various articles described in Penal Code section 537e into separate acts of possession by category of the items enumerated"]; People v. Bowie (1977) 72 Cal.App.3d 143, 156 ["appellant possessed all 11 checks at the same time and was guilty of only [one] violation of Penal Code section 475"]; People v. Puppilo (1929) 100 Cal.App. 559, 566 ["possession of both revolvers was simultaneous in point of time. These facts would, we are satisfied, constitute but one offense"].)
Moreover, as a general rule, "a defendant may not receive multiple sentences where a single criminal act results in violation of more than one criminal statute." (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044.) Applying that rule here is appropriate. This case is not analogous to cases where felons stockpile multiple weapons, store ammunition in different locations, or where the prosecution presents evidence to support a finding that ammunition was stored for specifically defined purposes or uses. The Attorney General suggests that the trial court could impliedly find that there were different criminal objectives because there were different types of ammunition. But such a finding must be supported by evidence, not speculation. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) Here there was no showing that Hale had other weapons for the different types of ammunition, or that he had any plans to use that ammunition.
In Lopez, the gun and ammunition posed a far greater threat to the police than in this case. Lopez was a combative defendant who "reached towards the front of his pants several times" and defied the officer's orders to submit to a patdown search. (People v. Lopez, supra, 119 Cal.App.4th at p. 135.) He had a loaded nine-millimeter handgun in his right front pocket and the safety was off. (Ibid.) There, a stay was required under section 654 to further the policy of precluding multiple punishment for the closely connected crimes, notwithstanding Lopez's aggressive conduct.
Here, by contrast, the police simply found these items in a room during a search. They were not confronted or threatened by Hale. This case and Lopez are similar, but there were more aggravated circumstances in Lopez because the loaded gun was in his pants. The purpose of section 654 is "'"to insure that the defendant's punishment will be commensurate with his criminal liability."'" (People v. Chaffer, supra, 111 Cal.App.4th at p. 1044.) But here the disparity is enormous between the long consecutive sentence Hale received and the stayed sentence Lopez received. Section 654 was enacted to preclude "extreme or disproportionately severe" sentences, particularly where the offenses are passive closely connected possession crimes and did not involve violence directed against any victim. (People v. Brooks (1985) 166 Cal.App.3d 24, 30; People v. Bauer (1969) 1 Cal.3d 368, 378; People v. Barthel (1965) 231 Cal.App.2d 827, 836 [where defendant was convicted of bookmaking, sentence must be stayed for possession of betting paraphernalia].)
There is no justification for imposing both a 25-year-to-life consecutive sentence for the possession of the gun and a 25-year-to-life consecutive sentence for the ammunition, given that the only factual showing was that these items were simply found together in a room. To "'parse[] the objectives too finely'" for the purpose of imposing consecutive sentences for these possession offenses is unauthorized. (People v. Lopez, supra, 119 Cal.App.4th at p. 138.) Count 25 must be stayed.
VIII. False Imprisonment A Lesser-Included Offense of Kidnapping for Robbery?
Hale contends that his conviction in count 21 for false imprisonment of Dorado must be reversed and stricken because it is a lesser-included offense of kidnapping Dorado to commit robbery (count 16). We agree.
False imprisonment during the commission of kidnapping is a lesser-included offense of kidnapping. (People v. Shadden (2001) 93 Cal.App.4th 164, 171; People v. Chacon (1995) 37 Cal.App.4th 52, 65.) Kidnapping necessarily involves a detention of the victim. Consequently, when a defendant is convicted of kidnapping, he or she may not also be convicted and sentenced for the included offense of false imprisonment. (People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121; People v. Patrick (1981) 126 Cal.App.3d 952, 965.)
The Attorney General contends convictions for both counts are proper. He argues that Johnson forced Dorado from the parking lot into the money room of the laundromat where he detained her. He claims "the restraint on Dorado's movement during the kidnapping was not the basis for the false imprisonment." He states, "The false imprisonment was based on Johnson keeping Dorado in the money room and preventing her from leaving."
But the Attorney General's analysis contains erroneous assumptions about the nature of the detention and the duration of the kidnapping. "'[F]orcible detention of a victim is an element of kidnapping and as long as the detention continues, the crime continues.'" (People v. Chacon, supra, 37 Cal.App.4th at p. 60.) "[T]he crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety." (People v. Barnett (1998) 17 Cal.4th 1044, 1159.)
In Shadden, the defendant was convicted of kidnapping to commit rape and false imprisonment. He forcibly dragged the victim through a business establishment into a small room where he detained her to sexually assault her. We reversed the false imprisonment conviction because the defendant "may not be convicted of both kidnapping and a lesser included offense." (People v. Shadden, supra, 93 Cal.App.4th at p. 171.)
The Attorney General suggests that the detention here was a separate and divisible event from the kidnapping. But the video surveillance DVD refutes that claim. The kidnapping started before, but continued through the period when Dorado was detained. The DVD reflects a rapid succession of events. Dorado enters the money room with Johnson and he orders her to open the money cabinet. Shortly thereafter Najera arrives and knocks on the door. Najera is robbed and Hale and Johnson promptly leave. The DVD shows that immediately after these rapidly occurring events, Dorado and her employees were freely going in and out of the money room and calling the police.
The detention of Dorado in the money room was relatively brief and it was consistent with the goal of facilitating the underlying offense. The Attorney General's argument might have been stronger if, after completing the Najera robbery, Hale and Johnson decided to force the employees into the money room and place an outside lock on that door to prevent them from opening it. But they did not do that because their goal was simply to complete their plan and leave. Dorado's ordeal was substantial, but it was not comparable to the extreme emotional trauma experienced by the sexual assault victim in Shadden during her detention. Here, as in Shadden, Hale may not be convicted of both kidnapping and its lesser-included offense.
Hale's conviction in count 21 for false imprisonment is reversed and stricken.
IX. Staying the Sentence on Count 23 (Burglary)
Hale contends the trial court erred by imposing a consecutive sentence of 26 years to life on count 23 (burglary of the laundromat). He claims the court should have stayed the sentence.
The Attorney General agrees, and notes that Hale "was already punished for that offense when he was sentenced for the kidnapping to commit robbery and attempted robbery offenses."
The Attorney General correctly notes that the burglary of the laundromat was committed for the same purpose as the other two crimes. Consequently, imposing a sentence on this count involves multiple punishment under section 654.
"Section 654 bars multiple punishment for an indivisible course of conduct which violates more than one statute, and divisibility depends in turn on the defendant's intent: if all his offenses were 'incident to one objective, ' the defendant may be punished only once." (People v. James (1977) 19 Cal.3d 99, 119.) Consequently, entering a business with the intent to commit a robbery constitutes "a burglary which [is] merely an 'incident to and a means of perpetrating' the intended robbery." (Id. at p. 120.) "It is settled that in such circumstances the defendant cannot be punished for both offenses." (Ibid.) Count 23 must be stayed.
X. Consecutive Sentencing for Counts 11, 16 and 19
Hale notes that the reporter's transcript reflects that, in pronouncing sentence, the trial court did not indicate whether the sentences on count 11 (58 years to life for first degree robbery), count16 (36 years to life for kidnapping to commit robbery), and count 19 (36 years to life second for degree robbery) were to run consecutively or concurrently. He claims that consequently these sentences are concurrent. (People v. Black (2007) 41 Cal.4th 799, 822.) He is correct. (§ 669.)
The minute order reflects that these sentences are consecutive. But where there is a conflict between the reporter's transcript and the clerk's minutes, the reporter's transcript prevails. "Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes." (People v. Price (2004) 120 Cal.App.4th 224, 242.)
Consequently, the sentences on counts 11, 16 and 19 are to run concurrently.
XI. Staying the Sentence on Count 17
Hale contends the trial court erred by not staying the sentence on count 17 (attempted robbery of Dorado) because it had sentenced him for the offense of kidnapping Dorado to commit robbery (count 16). He claims the court exceeded the ban on multiple punishment under section 654 by imposing consecutive sentences of 36 years to life for each of these offenses.
The Attorney General agrees. He states, "[T]he kidnapping of Martha Dorado to commit the crime of robbery and the attempted robbery of Dorado were committed pursuant to a single intent and objective, i.e., to steal the laundromat's money." Hale and the Attorney General claim that this case falls squarely within People v. Beamon (1973) 8 Cal.3d 625, 639-640. We agree.
In Beamon, the Supreme Court said, "Defendant was convicted of kidnapping for the purpose of robbery and for the commission of that very robbery. We are compelled to the conclusion as a matter of law that on the record here both crimes were committed pursuant to a single intent and objective, i.e., to rob Ashcraft of the truck or its contents.... Pursuant to section 654, defendant may therefore be punished for only one of such crimes." (People v. Beamon, supra, 8 Cal.3d. at pp. 639-640, citations & fn. omitted.)
Beamon is on point. Here, the prosecution presented no evidence to support a finding of multiple criminal objectives. (People v. Lopez, supra, 119 Cal.App.4th at p. 138.) The DVD surveillance video is the complete second-by-second documentation of all the crimes committed at the laundromat. It fully supports Hale's and the Attorney General's position that there was only a single criminal objective. The trial court exceeded the ban on multiple punishment under section 654.
XII. Staying the Sentences for the Section 12022, Subdivision (a)(1) Enhancements
Hale notes that on count 11 the trial court imposed a 20-year enhancement for the personal discharge of a firearm under section 12022.53, subdivision (c), and a consecutive one-year firearm enhancement under section 12022, subdivision (a)(1).
On count 12, the trial court imposed a 25-year-to-life sentence for the personal discharge of a firearm with great bodily injury enhancement (§ 12022.53, subd. (d)) and a consecutive one-year sentence for the firearm enhancement under section 12022, subdivision (a).
Hale claims the one-year enhancements under section 12022, subdivision (a)(1) for counts 11 and 12 should have been stayed. The Attorney General agrees.
The trial court may impose a one-year firearm enhancement where the defendant is a principal in the commission of a felony "if one or more of the principals is armed with a firearm...." (§ 12022, subd. (a)(1).) But this one-year enhancement must be stayed where the court also imposes a more serious firearm enhancement under section 12022.53. (People v. Sinclair (2008) 166 Cal.App.4th 848, 854.) Here the multiple punishment the trial court imposed for these firearm enhancements was unauthorized. (Ibid.)
Consequently, the one-year firearm enhancements imposed under section 12022 subdivision (a)(1) on counts 11 and 12 must be stayed. (People v. Sinclair, supra, 166 Cal.App.4th at p. 854.)
XIII. The Crime Prevention Fine
In sentencing, the trial court ordered Hale to pay multiple crime prevention fines. It said Hale "is to pay the $10 crime prevention fund fine per Penal Code section 1202.5 as to counts 11, 12, 17, 19, 20 and 23."
Hale contends the court erred because it had no authority to impose multiple $10 crime prevention fines. The Attorney General agrees..
Hale was convicted of multiple crimes. The trial court imposed six $10 crime prevention fines.
A $10 crime prevention fine was applicable to this case. But the "crime prevention fine can be imposed only once '[i]n any case.'" (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) "Thus, only one $10 fee could be imposed." (Ibid.) The five additional fines are unauthorized.
DISPOSITION
We strike the theft conviction in count 20 and the false imprisonment conviction in count 21. We remand for resentencing and direct the trial court to amend the abstract of judgment to reflect that counts 17, 23 and 25 are stayed. The sentences in counts 11, 16 and 19 are to run concurrently. The one-year enhancements in counts 11 and 12 are stayed. The $10 crime prevention fund fine in counts 12, 17, 19, 20 and 23 are stricken. In all other respects, the judgment is affirmed.
We concur: YEGAN, J., PERREN, J.,