Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C160200
MARCHIANO, P.J.
Defendant Dhani Harris appeals from his conviction of carjacking (Pen. Code, § 215, subd. (a)), robbery (§ 211), assault with a semiautomatic firearm (§ 245, subd. (b)), and unlawful possession of a firearm following a prior conviction for a listed misdemeanor (§ 12021, subd. (c)(1)). Defendant contends the evidence was insufficient to support the conviction for carjacking. He further objects to the court’s determination during sentencing that section 654 did not apply, as well as its decision to impose consecutive sentences. As discussed below, we conclude that the carjacking conviction is supported by substantial evidence and that there was no error or abuse of discretion in the trial court’s sentencing choices.
Further statutory references are to the Penal Code. References to rules are to the California Rules of Court (rule).
Background
An information filed January 13, 2009, charged defendant with four felony counts: carjacking (§ 215, subd. (a)), second degree robbery (§ 211), assault with a semiautomatic firearm (§ 245, subd. (b)), and unlawful possession of a firearm (§ 12021, subd. (c)(1)). The counts for carjacking and second degree robbery included an enhancement allegation for personal use of a firearm in the commission of the offense.
At the conclusion of a trial for these charges, on December 11, 2009, the jury found defendant guilty on all counts, and found the enhancement allegations to be true.
On March 4, 2010, the trial court sentenced defendant to separate and consecutive terms of imprisonment for the four convictions and for the two enhancement allegations found to be true. Defendant’s total prison term was 26 years, with 531 days of credit.
Defendant’s appeal followed. (§ 1237, subd. (a).)
Discussion
A. The Conviction for Carjacking
“ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a), italics added.)
Defendant contends the evidence was insufficient to support the jury verdict convicting him of carjacking because he did not take the victim’s motor vehicle from the victim’s “immediate presence, ” within the meaning of section 215, subdivision (a). While defendant concedes that some appellate decisions have “expanded” the meaning of “immediate presence, ” he urges that the “better interpretation” of section 215 requires that the person in possession of the vehicle be “in or very close to” the vehicle when it is taken.
In reviewing this claim we examine the record in the light favorable to the judgment, to determine whether there is substantial evidence by which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We note that defendant testified on his own behalf, and his testimony was in sharp conflict with the testimony and evidence presented by the prosecution. As the verdict is supported by substantial evidence, we resolve this conflict in favor of the trier of fact. That is, we defer to the trier of fact on issues such as the credibility of witnesses and the inferences reasonably to be drawn from the evidence. (See People v. Snow (2003) 30 Cal.4th 43, 66.) Thus, we summarize the evidence in the light most favorable to the judgment.
On the morning of Thanksgiving Day, November 27, 2008, the victim Roosevelt Mosby was sitting in his Cadillac automobile in the parking lot of Pac N Save in Emeryville. He was calling a “party line” that he had used for some five years, which he described as “a line that gay, ” as well as “bisexual [and] some heterosexual” men and women used to arrange “sexual encounter[s].” Mosby left an outgoing message to the effect that he sought an encounter with “a mature mobile black man.” After receiving several replies, Mosby arranged to meet one individual at an adjacent parking lot for Casual Male. Defendant, driving a “greenish car, ” subsequently pulled into that lot and parked. Defendant approached Mosby and they engaged in a “little flirtation, ” which continued after defendant got into the passenger seat of Mosby’s vehicle. Mosby drove first to the parking lot of a nearby Home Depot, but the two decided to leave when they spotted Emeryville police officers in the vicinity. Driving to Aquatic Park in Berkeley, the two began a sexual encounter while Mosby was still seated in his vehicle, but defendant “freaked out” when another vehicle drove up. Defendant then directed Mosby to drive to the Berkeley Marina, to “where the bathroom was.” Mosby parked “near” the bathroom, and they discussed going into it because there were a “lot of people out.” Mosby was initially reluctant to go inside, because he did not like “being in confined spaces like that, ” but eventually he agreed to do so.
Mosby closed the windows and doors of his vehicle and, keeping the car keys with him, entered the bathroom after defendant did. Defendant entered the single bathroom stall and invited Mosby to come in and sit on the toilet, which Mosby did.
Defendant then produced a firearm “out of nowhere, ” at which point Mosby, who thought he was “going to die, ” “started hollering and just freaking out.” Defendant told Mosby to “shut up” or he would kill him, and demanded Mosby’s money and keys. Mosby gave defendant his keys “because he had the gun on [Mosby].” Mosby’s money, mobile phone, and other items were in a shoulder bag in the back seat of his vehicle. Defendant began to exit the stall, and Mosby attempted to leave at the same time. At the door of the bathroom, defendant hit Mosby in one eye with the gun, and Mosby fell. When Mosby emerged from the bathroom he saw defendant get into his vehicle and drive away. A bystander asked Mosby if he had been robbed and told him he had already called 911 to report the incident.
We are persuaded that the foregoing evidence provides substantial evidence to support the jury’s implicit finding that defendant feloniously took Mosby’s vehicle from his “immediate presence.” (§ 215, subd. (a).) The jury in this case was instructed that “immediate presence” meant “an area within the alleged victim’s reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.” (See CALJIC No. 9.46 (Fall 2010 ed.) pp. 636-638.) The Supreme Court approved such a definition of “immediate presence” in the context of the statutory elements of robbery. (People v. Hayes (1990) 52 Cal.3d 577, 626−627 (Hayes); see § 211.) One Court of Appeal concluded the legislature had “obviously” had the robbery statute in mind-and by extension the interpretation given to the identical statutory phrase “immediate presence”-when it enacted the carjacking statute three years after the Hayes decision. (People v. Medina (1995) 39 Cal.App.4th 643, 650 (Medina).) That court upheld a jury instruction that defined “immediate presence” within the meaning of the carjacking statute “to encompass an area in proximity to the vehicle.” (Id. at p. 651.) The reviewing court concluded further that the evidence satisfied the “immediate presence” element of carjacking when it showed that one of the perpetrators had lured the victim into a motel room some 20 feet from his vehicle, reasoning that the only reason the victim had not been in the vehicle was because he had been lured away by “trick or device.” (Id. at pp. 646-647, 651−652.)
The facts in this instance are analogous to those in Medina, supra, 39 Cal.App.4th 643 . Defendant persuaded Mosby to break off their encounter at Aquatic Park, where Mosby had remained in his vehicle. Mosby parked “near” the bathroom at the Marina, and defendant himself testified Mosby parked in the space “closest” to the bathroom. Because Mosby was at first reluctant to enter the bathroom and defendant encouraged him to do so, it is reasonable to infer that defendant was instrumental in persuading Mosby to leave his vehicle and enter the nearby bathroom. (See also People v. Hoard (2002) 103 Cal.App.4th 599, 602, 608 (Hoard) [“immediate presence” element of carjacking satisfied where defendant took victim’s keys from her in a store while her vehicle was parked in the store’s parking lot].)
Defendant urges that we depart from such decisions as Medina, supra, 39 Cal.App.4th 643, and Hoard, supra, 103 Cal.App.4th 599, and follow instead the principles stated in People v. Coleman (2007) 146 Cal.App.4th 1363 (Coleman). The facts of Coleman, however, are markedly distinguishable from those before us. In Coleman, the defendant forced an employee inside a store to give him the keys to her employer’s truck parked outside, and then drove away in the vehicle. (Id. at p. 1366.) The reviewing court held the “ ‘immediate presence’ ” element of carjacking was not satisfied because the employee was “not within any physical proximity to the [vehicle], [had] relinquished [keys that] were not her own, and there was no evidence that she had ever been or would be a driver or passenger in the [vehicle].” (Id. at p. 1373.) The court held these facts were simply too far removed from the type of conduct the carjacking statute was designed to address. (Ibid.) Here, by contrast, Mosby was indisputably the driver or possessor of the vehicle. Nor do the relevant “principles” of Coleman support defendant’s position, because the court in that case acknowledged that a carjacking “may occur where neither the possessor nor the passenger is inside or adjacent to the vehicle.” (Ibid.)
We conclude there was substantial evidence of “from the immediate presence” to support the jury verdict finding defendant guilty of carjacking.
B. Stay Under Section 654
1. Stay of Sentences for Robbery and Assault Convictions
“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.” (§ 654, subd. (a).) This prohibition is restated more particularly with respect to carjacking and robbery: “A person may be charged with a violation of this section [carjacking] and Section 211 [robbery]. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211.” (§ 215, subd. (c), italics added.)
Defendant argues the trial court erred when it failed to stay imposition of sentence pursuant to section 654 as to his convictions on counts two (second degree robbery), and three (assault with a semiautomatic firearm), once it had imposed punishment for the primary offense of carjacking.
With respect to the conviction for second degree robbery, defendant raises several objections: (1) defendant did not intend to rob Mosby of his keys, but took them only to accomplish the carjacking; (2) although defendant later took items from Mosby’s vehicle other than the money and keys he initially demanded, the taking of these items constituted a single act of robbery; and (3) section 215, subdivision (c), precludes punishment for both carjacking and robbery when both are accomplished by the same act.
As for the conviction for assault with a semiautomatic weapon, defendant claims that, when he struck Mosby in the face with his handgun, his purpose was not to commit an act of gratuitous violence, but to complete the act of taking the vehicle. Therefore, it was error not to stay imposition of the sentence for assault under section 654 once the trial court imposed punishment for his carjacking conviction.
“ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 19.)
At the sentencing hearing, the trial court concluded section 654 did not apply to preclude imposition of sentences for the robbery and assault convictions because defendant’s objectives in committing these crimes were distinct from his objective in committing the primary offense of carjacking. The court found defendant’s initial criminal objective was to rob Mosby of his keys and his money, but that his intent when he assaulted Mosby was “independent” of that objective. The court further found that, after defendant left in Mosby’s vehicle, he formed an independent criminal objective to take the items from the vehicle.
The question whether the defendant held multiple criminal objectives is one fact for the trial court. We uphold its findings if supported by any substantial evidence. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
The evidence showed that defendant demanded Mosby’s keys and money while they were in the bathroom. Although Mosby had no money on his person, he offered no resistance and handed over his keys. Defendant nevertheless struck Mosby in the face with his handgun, causing Mosby to fall, before exiting the bathroom and leaving in Mosby’s vehicle. Additional evidence, which we again view in the light most favorable to the judgment, showed that defendant drove Mosby’s Cadillac back to Emeryville and left it parked on a street about a block and a half from the parking lot where defendant had left his own vehicle. An Emeryville police officer spotted a black male nearby, whom he suspected because this individual turned and began walking away in the opposite direction when the officer made a U-turn. The officer subsequently detained this suspect-the defendant-who was found carrying a semiautomatic handgun, a Club anti-theft device, an air compressor, a car stereo, Mosby’s keys, mobile phone and identification, and Mosby’s shoulder bag with additional miscellaneous items. The air compressor, anti-theft device, and shoulder bag had all been taken from Mosby’s vehicle. Defendant testified he had not noticed Mosby’s shoulder bag before he drove off in Mosby’s vehicle. He admitted taking the shoulder bag from the vehicle, as well as the anti-theft device and a tape deck which he had removed from the dashboard of the vehicle and placed in the bag.
Thus, defendant’s initial criminal objective was to rob Mosby of his keys and money at gunpoint. He succeeded in obtaining the keys. Mosby offered no resistance, and defendant’s subsequent assault may properly be deemed a separate act based on an independent criminal objective, whether it was gratuitous or to facilitate escape. (See People v. Nguyen (1988) 204 Cal.App.3d 181, 193.)
Similarly, the evidence indicates defendant subsequently committed the crime of carjacking with the criminal objective of facilitating his escape from the scene of his robbery and assault. After defendant abandoned Mosby’s vehicle, he kept Mosby’s keys and additionally took Mosby’s shoulder bag, mobile phone, ID, and several other items he found inside the vehicle. The evidence that defendant retained the keys with other stolen items does not comport with his insistence that he did not intend to rob Mosby of them.
Nor do we agree with defendant’s argument that he could not properly be convicted of multiple crimes based on his taking items from the vehicle in addition to his initial taking of the keys. One decision he cites in support simply stands for the proposition that, when “a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible” under section 654. (People v. Bauer (1969) 1 Cal.3d 368, 377, italics added.) Here, defendant’s punishment for the crime of carjacking is not based on his taking of the keys or any of the items in the vehicle, but on his felonious, temporary taking of Mosby’s vehicle. Defendant relies on another decision that held a defendant could not be convicted of more than one count of robbery against a single victim simply because more than one item was taken (even if punishment for the second count was stayed under section 654). (People v. Marquez (2000) 78 Cal.App.4th 1302, 1308−1309.) Defendant in this case was not convicted of more than one count of robbery for taking multiple items.
We conclude substantial evidence supports the trial court’s findings. Defendant’s commission of the crimes of second degree robbery and assault with a semiautomatic firearm were based on independent criminal objectives so that section 654 did not preclude punishment for these crimes in addition to the imposition of punishment for carjacking. We further conclude the same evidence provides substantial support for the court’s implicit determination that its imposition of punishment for both the carjacking and robbery convictions did not constitute double punishment for the “same act” within the meaning of section 215, subdivision (c).
2. Stay of Sentence for Unlawful Possession of Firearm Conviction
Section 654 does not prohibit separate punishments for a crime that might involve the use of a firearm-such as robbery-and the unlawful possession of a firearm under section 12021, so long as the defendant’s possession of the firearm was not merely simultaneous with the crime involving its use, but continued before, during, and after that crime. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413 (Ratcliff).) In other words, the unlawful possession of a firearm in violation of section 12021 “is complete once the intent to possess is perfected by possession.” (Ratcliff, supra, 223 Cal.App.3d at p. 1414.) What an unlawful possessor does with the weapon in the commission of another crime is a separate and distinct transaction undertaken with an additional intent-necessarily something more than the mere intent to possess the proscribed weapon. (Ibid.)
Defendant concedes that his separate imposition of punishment for his conviction on count four (unlawful possession of a firearm under section 12021, subdivision (c)(1)), is supported by Ratcliff, supra, 223 Cal.App.3d 1401 and similar decisions. He suggests, however, that such decisions are contrary to “Supreme Court precedent, ” which, in his view, “imply that there must be evidence that the firearm was possessed for some purpose other than that of committing the instant offense.” By the “instant offense” defendant presumably refers to such crimes as those for which the jury convicted him, other than his violation of section 12021, subdivision (c)(1).
Section 12021, subdivision (c)(1) provides it is unlawful for a person convicted of specified misdemeanors to possess any firearm within 10 years of conviction.
This argument has no merit. The decision to which defendant refers as “precedent” states that “ ‘[w]hether a violation of section 12021, [ ], constitutes a divisible transaction from the offense in which [the possessor] employs the weapon depends upon the facts and evidence of each individual case.’ ” (People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford), quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821.) Thus, where the evidence shows unlawful possession prior to and separate from the primary offense, punishment for both crimes is appropriate, but where the evidence shows possession only in conjunction with the primary offense, punishment for unlawful possession is improper. (Venegas, supra, 10 Cal.App.3d at p. 821 .)
As we have summarized above, the evidence in this case, viewed in the light most favorable to the judgment, showed by reasonable inference that defendant was in possession of the semiautomatic firearm well before he initiated his robbery, assault, and carjacking. He later suddenly produced and brandished the weapon after Mosby followed him into the bathroom stall.
We conclude substantial evidence supports the trial court’s implicit finding that defendant’s unlawful possession of a firearm preceded his commission of the primary offense of carjacking, and that punishment for such possession was therefore not barred by section 654.
C. Consecutive Sentencing
After determining the inapplicability of section 654, discussed above, the trial court went on to determine whether to impose consecutive or concurrent sentences for defendant’s multiple convictions. (See rule 4.424.) The court imposed consecutive prison sentences-totaling 26 years-as follows: for count one (carjacking) an upper term of nine years (§ 215, subd. (b))-designated the principal term-together with a 10-year consecutive term for the linked allegation of firearm use (§ 12022.53, subds. (a)(5), (b) & (f)); for count two (second degree robbery) a consecutive one-year term (§§ 211, 213, subd. (a)(2), 1170.1, subd. (a)) together with a consecutive term of three years four months for the linked allegation of firearm use (§§ 12022.53, subds. (a)(4) & (b), 1170.1, subd. (a)); for count three (assault with a semiautomatic firearm) a consecutive two-year term (§§ 245, subd. (b), 1170.1, subd. (a)); and for count four (unlawful possession of a firearm) a consecutive eight-month term (§§ 18, 1170.1, subd. (a), 12021, subd. (c)(1)).
The trial court stated its reasons for imposing consecutive sentences. (See § 1170, subd. (c); rule 4.406(a) & (b)(5).) Regarding the subordinate term for the conviction on count two (robbery), the court directed it be served consecutively “because of the separate nature of the offenses committed and the separate independent criminal objectives.” With respect to the subordinate term for the conviction on count three (assault), the court ordered it to run consecutively “because the objectives here were predominantly independent of the other crimes committed and the separate nature of the offense.” Finally, as to the subordinate term for the conviction on count four (unlawful possession of firearm), the court determined it to be consecutive “because of the separate nature of this offense.” (See rule 4.425(a)(1).)
Defendant urges that the trial court abused its discretion to the extent that it ordered consecutive sentences to be served for the subordinate terms imposed on counts two, three, and four. He disagrees with the foregoing reasons given by the court, claiming the crimes “were all connected, ” “committed for the purpose of stealing Mosby’s property and moving [those] goods to a place of at least temporary safety, ” and were “close in time and also close in place, ” “occur[ing] during a single period of aberrant behavior.” Defendant also claims the court erred in failing to consider a factor in mitigation-that is, defendant had an “insignificant prior record” within the meaning of rule 4.423(b)(1), that consisted only of one prior misdemeanor conviction.
Defendant additionally suggests it was “possible” the trial court “misunderstood the scope of [its] discretion” based on a comment the court made when giving its tentative sentencing choices. ~(AOB 20; see 2 RT 353)~ On this point, the record overall shows the court was fully cognizant of the scope of its sentencing discretion.
A trial court has discretion to determine whether several sentences are to run concurrently or consecutively. We will not disturb that determination absent a clear showing of abuse. (Bradford, supra, 17 Cal.3d at p. 20.) An abuse of discretion is shown when the court exceeds the bounds of reason, all circumstances being considered. (Ibid.)
We reviewed above the trial court’s determinations regarding the inapplicability of section 654, and concluded the court’s express or implicit findings-regarding the independent criminal objectives for each of defendant’s crimes-were supported by substantial evidence. On that basis alone, we conclude that the court did not “exceed[ ] the bounds of reason” when it imposed consecutive terms in accordance with the reasons set out in rule 4.425(a)(1). (See Bradford, supra, 17 Cal.3d at p. 20.)
The trial court “may” consider factors in mitigation, as well as certain factors in aggravation, when making its decision to impose consecutive sentences. (Rule 4.425(b).) It is required, however, to state its reasons only in terms of the “primary factors” on which it has based its sentencing choice. (Rule 4.406(a); see People v. Black (2007) 41 Cal.4th 799, 822.) Moreover, it is apparent the court did have the opportunity to consider defendant’s prior criminal history, because, when the court gave its tentative sentencing decision, defendant’s trial counsel argued that defendant’s prior history was a mitigating factor relevant to the court’s “sentencing alternatives” generally. Accordingly, we see no abuse of discretion in the trial court’s failure to express consideration of defendant’s prior record as a factor in mitigation.
Disposition
The judgment is affirmed.
We concur: Margulies, J., Banke, J.