Opinion
A145491
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN HARVEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-132594-3)
Defendant Kevin Harvey appeals a judgment entered upon a jury verdict finding him guilty of kidnapping for sexual purposes, kidnapping for carjacking, and carjacking. He contends that there is insufficient evidence he committed kidnapping for purposes of carjacking and that the trial court committed sentencing error. We shall order the sentence modified and otherwise affirm the judgment.
I. BACKGROUND
On the day of the crimes, Jane Doe went to a store in Antioch and bought three cases of water. As she returned to her car, two men approached her. One of them, later identified as defendant, appeared to be on the phone, trying to give someone directions. He told Doe he did not live in the area and asked her for help. Doe tried to give him directions, then became uncomfortable and went to the driver's side of the car so she could leave. Defendant came close to her, put his hand in his pocket, and showed her what appeared to be a gun. He told her to get in the car and said that he did not care if she was a police officer, because he could kill her anyway. Doe got into the car, and defendant got into the rear driver's side seat. He told her to drive around to pick up his friend. He jabbed the gun into the back of the seat and yelled at her to put her hands down. Doe drove to the place defendant's friend was standing, and he got into the passenger-side back seat of the car.
Defendant and his companion whispered to each other, and defendant told Doe where to drive in an aggressive tone of voice. As they drove, Doe heard defendant tell his companion that because he had hesitated, defendant would not bring him along. Doe dropped the companion off in front of a cemetery.
Defendant told Doe to drive toward Pittsburg, and they went into a church parking lot and parked in back of the church. Defendant ordered Doe to look at him, and talked to her about God and religion. They stayed behind the church about five minutes, and defendant said they should go to a gas station and get gas. He directed her to a nearby gas station, but she was unable to pump gas there. Defendant did not want Doe to see the cashier, and he told her to drive back to the church.
Defendant asked Doe to pray for him and said he wanted to be a better person. When she asked defendant to let her go, he told her she had just bought herself more time. Defendant was sitting in the front passenger seat, and he asked about a tattoo on her right ankle. He grabbed her leg, pulled it to the passenger side, kissed her foot repeatedly, and told her he wanted her to be his "queen."
At some point, defendant directed Doe to drive the car down a gravel road to a secluded spot. She did so because she was afraid. He kissed her foot again and kissed her mouth, becoming angry when she pulled away. He told her to get in the back seat, rubbed her foot against his genitals, kissed her chest and neck, causing bruising, touched her breasts and vagina over her clothes, and tried to unclasp her bra. He made several references to oral sex. Doe pretended she was having a panic attack and was unable to breathe, and defendant allowed her to drive the car away from that location when she told him she needed to use a bathroom. She thought they had been at that location three hours or more.
Doe and defendant found a portable restroom, and she used it. They drove again, and defendant directed her to park in a church parking lot, then took the car keys. They got out of the car, and defendant took a canopy that was in the back of the car, thinking it was a tent, and a rolled-up banner. There was a ravine near the parking lot, and defendant told Doe to go down the hill. Defendant started walking down the hill, turned to reach for Doe, then slipped. Doe ran toward the church and hid. She heard defendant get into the car and thought he had taken the car, but later found that he had not done so.
A police officer testified that he found Doe's car still in the church parking lot.
After 20 or 30 minutes, Doe came out of her hiding place, walked down the street, and asked someone in the area to let her call the police. The entire episode, from the time Doe was abducted, spanned approximately eight hours.
The jury found defendant guilty of kidnapping with intent to commit a sexual crime (Pen. Code, § 209, subd. (b), count 1), kidnapping for carjacking (§ 209.5, count 2), and carjacking (§ 215, subd. (a), count 3). The court found true allegations that defendant had suffered four prior serious felony convictions pursuant to sections 667, subdivisions (b) through (i), and 1170.12; one prior serious felony conviction pursuant to section 667, subdivision (a)(1); and a prison term for a violent felony pursuant to section 667.5, subdivision (a). It dismissed the carjacking count as a lesser included offense of kidnapping for carjacking. Defendant was sentenced to a total prison term of life with the possibility of parole plus 55 years to life, calculated as follows: For count 2, the principal term, life with the possibility of parole, and an additional 25 years to life for the third strike; an identical term for count 1; and an additional five years for the prior serious felony enhancement (§ 667, subd. (a)(1)).
Penal Code section 209, subdivision (b)(1) provides: "Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole." For the sake of convenience, we shall refer to this offense as "kidnapping for sexual purposes." All statutory references are to the Penal Code.
The trial court had granted a motion for judgment of acquittal on a fourth count, which alleged defendant attempted to kidnap another person, Jane Doe 2, for sexual purposes.
II. DISCUSSION
A. Evidence of Kidnapping for Carjacking
Defendant contends the evidence is insufficient to show he committed kidnapping for purposes of carjacking. In reviewing such a challenge, we are constrained by well-established principles. We " 'review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1362 (Ortiz).) " '[T]he power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.' " (Id. at p. 1363.)
Section 209.5, subdivision (a) provides: "Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole." (Italics added.) Carjacking, in turn, is defined as "the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, . . . 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).)
Defendant's argument is based on the italicized portion of section 209.5. He argues the evidence shows he kidnapped Doe to facilitate not the carjacking but the intended sexual assault—that is, to transport Doe to a place he could commit one of the sex crimes enumerated in section 209, subdivision (b). Because the evidence shows that his sole intent was to commit sex crimes against Doe and that the carjacking was merely incidental to that intent, he argues, the jury could not reasonably have concluded he kidnaped Doe with the intent to commit carjacking.
A plain reading of the statutes undermines this argument. Defendant does not dispute that the record supports a conclusion that he was committing a carjacking when he showed Doe a gun and ordered her to drive. (See People v. Alvarado (1999) 76 Cal.App.4th 156, 161-162, disapproved on other grounds in People v. Lopez (2003) 31 Cal.4th 1051, 1063, fn. 2 [defendant exercised dominion and control over car by ordering victim to stop the car].) Nor does he dispute that by doing so, he was kidnapping Doe. We conclude a jury could also reasonably conclude his action in directing Doe to drive her own car—in effect, using her as the means of carjacking—was intended to facilitate the carjacking.
People v. Duran (2001) 88 Cal.App.4th 1371 (Duran) presents a similar factual scenario. The defendant there was in an accident; when another car stopped to help him, the defendant pulled a gun on the driver, forced him back into the car, threatened his wife and child, and ordered him to drive away from the scene. (Id. at pp. 1374-1375.) The appellate court affirmed convictions of kidnapping for carjacking, reasoning that by threatening to kill the family if the driver did not drive where he wanted to, and by telling him at gunpoint where to drive, the defendant imposed his dominion and control over the car. (Id. at p. 1377.) Here, defendant likewise imposed control over Doe's car when he ordered her to drive at gunpoint.
Defendant's argument, in essence, is that he cannot be convicted of kidnapping for carjacking because the reason he committed the carjacking was to facilitate the intended sexual offenses, not to obtain the vehicle for an independent purpose. This argument confuses the concepts of motive and intent. " 'Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.' " (People v. Wilson (2008) 43 Cal.4th 1, 22.) Defendant argues that the vehicle in question, a Kia Sportage, was not expensive and was unlikely to be an intended target of the attack. However, a step in defendant's course of conduct was committing the crime of carjacking by asserting control of Doe's vehicle, and the evidence supports a conclusion that defendant kidnapped Doe in order to facilitate that crime. The fact that there is no evidence defendant intended to profit financially from the carjacking does not change that conclusion.
At this juncture, we are not considering whether defendant could properly be punished for both kidnapping offenses. We shall address that issue later. The question we now address is merely whether the evidence supports a finding that defendant committed the offense of kidnapping for carjacking.
Defendant contends People v. Perez (2000) 84 Cal.App.4th 856 (Perez) supports his position. We disagree. The section 209.5 holding in Perez supports the Attorney General, not defendant. The defendant there and another man approached the victim of the carjacking and demanded his keys and money. The victim gave them his keys and wallet, and they drove away with him in the car, telling him they would go to his house. (Id. at p. 859.) The defendant was convicted of both kidnapping during the commission of a carjacking (§ 209.5) and kidnapping during the commission of a robbery (§ 209). (Id. at p. 858.) On appeal, the defendant contended the kidnapping was not intended to "facilitate" the carjacking because, since he and the other man already had the car keys, the kidnapping did not make removal of the car any easier. (Id. at p. 860.) Our colleagues in Division Two of this court rejected this "myopic view of the word 'facilitate,' " concluding that "if there is substantial evidence that appellant intended the kidnapping to effect an escape or prevent an alarm from being sounded, his conviction for kidnapping during the commission of a carjacking must stand." (Id. at pp. 860-861.) In the case before us, the carjacking similarly allowed defendant to escape. Moreover, if anything, the facts here even more strongly support a section 209.5 conviction because, here, defendant had Doe drive the car, thus facilitating his crime.
A closely related issue arose in Ortiz. The defendants there were convicted of violating section 209.5 after they stopped a car with two people in it and drove away. (Ortiz, supra, 208 Cal.App.4th at pp. 1359, 1361-1362.) One of the victims said he believed he was kidnapped because he had not paid a large drug debt. (Id. at p. 1361.) On appeal, the defendants recognized there was substantial evidence to support a finding that they committed both kidnapping and carjacking, but argued there was insufficient evidence to show they kidnapped the victims in order to facilitate the carjacking. (Id. at p. 1365.) The Court of Appeal disagreed, concluding the jury could reasonably infer the defendants kidnapped the victims for the dual purposes of taking them and taking the car (a late-model BMW) to hold or sell in partial payment of the drug debt. (Id. at pp. 1365-1366.) The court continued, "Defendants do not cite any cases holding, nor are we persuaded, that the sole, or primary, intent of a section 209.5 offense must be to facilitate a carjacking. Rather, based on the plain language of section 209.5, we believe that offense requires there be an intent that the kidnapping facilitate the carjacking, even if there are other concurrent intents for the kidnapping." (Id. at p. 1366.) Defendant argues that Ortiz is inapplicable here because there is no evidence defendant intended to sell Doe's vehicle and thus no evidence of a separate intent to facilitate carjacking it. However, under the plain statutory language discussed above, defendant may properly be convicted of a violation of section 209.5 if the kidnapping was intended to facilitate the carjacking, even if his motivation in doing so was to allow him to commit sexual offenses against Doe.
B. Multiple Punishment for Kidnapping Offenses
Defendant contends that, even if he could properly be convicted of both kidnapping for carjacking and kidnapping for sexual purposes, sentence for one of the crimes must be stayed pursuant to section 654. We agree with him on this point.
Under section 654, "[a]n 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." This statute "allows multiple convictions arising out of a single act or indivisible course of conduct, but bars multiple punishment for those convictions." (People v. Mitchell (2016) 4 Cal.App.5th 349, 354.) In general terms, "[s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358.)
" '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. [¶] . . . [¶] 'If, on the other hand, defendant harbored "multiple criminal objectives," which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." ' " (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005; accord People v. Centers (1999) 73 Cal.App.4th 84, 98.) We review a trial court's finding on whether section 654 applies for substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438; People v. Rodriguez, at p. 1005.)
On the facts before us, we cannot avoid the conclusion section 654 applies. There was only one kidnapping, although that kidnapping violated two different statutes. The evidence does not suggest any objective behind the carjacking other than to enable defendant to commit sexual crimes against Doe. People v. Latimer (1993) 5 Cal.4th 1203, 1216-1217, is instructive on this point. There, the defendant was convicted of both rape and kidnapping after he kidnapped the victim, drove her to a desert, and raped her. (Id. at p. 1206.) Although "[i]t could be argued that defendant had two intents: (1) to drive the victim against her will to an isolated area, and (2) to rape her," our high court concluded separate punishment for the kidnapping and rape was improper under section 654, reasoning that " '[s]ince the kidnapping was for the purpose of committing the sexual offenses and [defendant] has been punished for each of the sexual offenses,' section 654 bars execution of sentence on the kidnapping count." (Id. at p. 1216.)
The court in People v. Dowdell (2014) 227 Cal.App.4th 1388 (Dowdell) reached a similar conclusion. The defendant there was convicted of kidnapping for ransom and kidnapping during a carjacking. (Id. at p. 1393.) He argued one of the sentences should be stayed because both kidnapping offenses were complete when the victim's truck was first moved. (Id. at p. 1415.) The appellate court rejected the defendant's characterization of events, noting that after the initial kidnapping and an attempt to withdraw money from an ATM, the defendant threatened the victim again before driving to another ATM. (Ibid.) However, although "reasonable minds [could] differ as to whether the defendant's conduct entailed more than one act," the evidence showed his sole objective throughout the course of the kidnapping was to obtain money, and any other objective was "merely incidental to his primary goal of getting [the victim's] money." (Id. at pp. 1415-1416.) Because there was no evidence the defendant had any objective " 'independent of and not merely incidental to' the acquisition of money," section 654 required a stay of one of the two sentences. (Id. at p. 1416.)
The Attorney General attempts to distinguish Dowdell on the ground that there is evidence defendant had a separate purpose in carjacking Doe's car. He argues that one goal of the kidnapping was to drive defendant's companion across town. Nothing in the record suggests that defendant kidnapped Doe in order to give his friend a ride; rather, the evidence is that defendant had his companion leave the car because of his hesitancy about committing the crimes. As to defendant's objective in carrying out the kidnapping for carjacking, there is no basis to conclude it was anything other than incidental to his primary goal of committing sex crimes against Doe.
Other cases support this conclusion. In People v. Douglas (1995) 39 Cal.App.4th 1385, 1394-1395 (Douglas), the defendant was convicted of kidnapping for robbery and received sentencing enhancements for kidnapping during rape and forcible oral copulation. (Id. at p. 1391.) The appellate court ordered the sentencing enhancements stayed, concluding the trial court had no grounds to punish the defendant again for the identical kidnapping. (Id. at p. 1394.) People v. Wiley (1994) 25 Cal.App.4th 159, 162- 163, on somewhat different facts, reached a similar conclusion. The defendant there was convicted of both kidnapping for robbery and kidnapping for ransom; the appellate court concluded that both offenses were "incident to one objective, obtaining [the victim's] money illegally," and could be punished only once. (Id. at p. 163.) Similarly here, the kidnapping for carjacking was incident to defendant's objective of sexually assaulting Doe.
We note that the court in Douglas reasoned in part that "[a]lthough the kidnapping was committed with the independent and additional intent to commit sexual offenses, defendant was sentenced separately for each of those sexual offenses, which accounted for his culpability for those offenses." (Douglas, supra, 39 Cal.App.4th at pp. 1394-1395.) Here, defendant did not succeed in committing the sexual offenses enumerated in section 209, subdivision (b).
Accordingly, we conclude sentence on one of the two kidnapping counts must be stayed. Because the trial court selected count 2 as the principal term, we shall order the sentence on count 1 stayed.
C. Three Strikes Sentencing
As to each of the kidnapping counts, the trial court imposed a life sentence (§§ 209, 209.5) and a consecutive sentence of 25 years to life under the three strikes law (§ 667, subd. (e).) Defendant contends the court should have imposed sentence solely under the three strikes law, and should not have imposed additional sentences under the kidnapping statutes. The Attorney General concedes this point.
Under section 667, subdivision (e)(2)(A), where a defendant has two or more serious and/or violent felony convictions, "the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions. [¶] (ii) Imprisonment in the state prison for 25 years. [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 . . . ." (Italics added.) The parties agree that the appropriate "term for the current felony conviction"—that is, for either of the kidnapping offenses—under this statute is 25 years to life, and that the trial court erred in imposing both that term and the terms specified in the kidnapping statutes.
The Attorney General also contends the trial court erred in imposing the five-year enhancement for a prior serious felony (§ 667, subd. (a)(1)) only once, rather than separately for each kidnapping count. We agree. (People v. Williams (2004) 34 Cal.4th 397, 400, 405 [§ 667, subd. (a) enhancements should be applied individually to each count of third strike sentence].) However, because we conclude the sentence on one of the kidnapping counts must be stayed, the additional five years for the enhancement of the sentence for that count must be stayed as well.
III. DISPOSITION
The judgment shall be modified to (1) strike the life with parole sentences for counts 1 and 2, (2) impose five-year enhancements under section 667, subdivision (a)(1) for both counts 1 and 2, and (2) reflect a stayed sentence for count one, for a total executed sentence on count 2 of 30 years to life. As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward it to the California Department of Corrections and Rehabilitation.
/s/_________
Schulman, J. We concur: /s/_________
Reardon, J. /s/_________
Streeter, J., Acting P.J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.