Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB049465, Bryan F. Foster, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Laura Catheline Hernandez persuaded the victim to drive her and her boyfriend to get cigarettes. Her boyfriend then put a knife to the victim’s throat and started telling him where to drive. The victim escaped only by grabbing the knife — thus sustaining a severe slash wound to his hand — and jumping out of the car.
Defendant was found guilty of kidnapping for the purpose of carjacking (Pen. Code, § 209.5, subd. (a)), carjacking (Pen. Code, § 215, subd. (a)), and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). She was sentenced to a total of 10 years to life in prison.
Defendant contends that she could not be convicted of both carjacking and kidnapping for the purpose of carjacking, because the former is a lesser included offense of the latter. The People concede the error. Hence, we will vacate the carjacking conviction.
Defendant also contends that sentencing her for both kidnapping for the purpose of carjacking and assault with a deadly weapon violated Penal Code section 654 (section 654). We agree. Hence, we will stay the sentence for assault with a deadly weapon. Otherwise, we will affirm.
I
FACTUAL BACKGROUND
At defendant’s request, the victim, Tomardwaj Balgobin, agreed to drive her and her two companions (a man and a woman) to buy cigarettes. At a stoplight, defendant’s male companion put a knife up to the victim’s throat and started telling him which way to drive. Defendant told the victim, “Just do what he says.”
As the victim was slowing down to make a turn, he grabbed the knife with one hand, and he opened the car door. His hand was slashed severely. The man with the knife tried to stab him in the face but missed. The victim then jumped out of the car.
Two days later, defendant arranged for her mother to buy the victim’s car from a friend named “Jennifer.”
The man with the knife was eventually identified as defendant’s boyfriend. There was conflicting evidence as to whether defendant was, in fact, either the woman who asked for the ride or the go-between in the sale of the car. Defendant and defendant’s mother both testified that defendant had an alibi.
II
DUAL CONVICTION OF BOTH CARJACKING AND KIDNAPPING FOR THE PURPOSE OF CARJACKING
Defendant contends that carjacking is a lesser included offense of kidnapping for the purpose of carjacking, and therefore she could not be convicted of both. The People concede the error.
One court has held that carjacking is a lesser included offense of kidnapping for the purpose of carjacking; it reasoned that a kidnapping “during the commission of a carjacking” (Pen. Code, § 209.5, subd. (a)) requires a completed carjacking, not merely an attempted or intended carjacking. (People v. Contreras (1997) 55 Cal.App.4th 760, 763-765 [Third Dist.]; see also People v. Ortiz (2002) 101 Cal.App.4th 410, 415 [conceded by the People] [Second Dist., Div. Eight]; People v. Duran (2001) 88 Cal.App.4th 1371, 1379 [dicta] [Fourth Dist., Div. Three]; People v. Jones (1999) 75 Cal.App.4th 616, 627, fn. 3 [dicta] [Second Dist., Div. Four]; but see People v. Navarro (2007) 40 Cal.4th 668, 675 [declining to decide the issue].)
Rather than reexamine this holding, we rely on the People’s concession. “[M]ultiple convictions may not be based on necessarily included offenses. [Citations.]” (People v. Pearson (1986) 42 Cal.3d 351, 355, italics omitted.) Accordingly, we will vacate defendant’s carjacking conviction.
III
MULTIPLE PUNISHMENT FOR BOTH KIDNAPPING FOR THE PURPOSE OF CARJACKING AND ASSAULT WITH A DEADLY WEAPON
Defendant contends that the imposition of separate and unstayed sentences for both kidnapping for the purpose of carjacking and assault with a deadly weapon constituted multiple punishment in violation of section 654.
Section 654, subdivision (a), as relevant here, provides: “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.”
“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘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....’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] 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.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“‘“A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” [Citation.]’ [Citation.]” (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310 [Fourth Dist., Div. Two].)
The People concede that “[g]enerally, where a defendant uses a weapon as a means to facilitate another crime, the assault by virtue of the use of the weapon is deemed to have the same objective and intent and is therefore subject to section 654.” (See, e.g., People v. Cole (1985) 165 Cal.App.3d 41, 53 [defendant used knife to force kidnapping victim to move].) They argue, however, that here, after defendant’s boyfriend used the knife to “get the victim to give up his car, ” he also used it to try to stab the victim in the face. They conclude that the attempted stabbing was “separate and in addition to the conduct necessary to accomplish the carjacking. The kidnapping and carjacking had [already] been accomplished....”
We disagree. There was just one continuous assault. It began when the boyfriend put the knife up to the victim’s throat, and it culminated in the attempt to stab the victim. In closing argument, the prosecutor argued that the assault consisted of putting the knife up to the victim’s neck, which resulted in the injury to the victim’s hand; he did not so much as mention the failed stabbing.
Moreover, when the boyfriend tried to stab the victim, both the kidnapping and the carjacking were still very much under way. The initial act of holding the knife to the victim’s throat was an unsubtle threat that, if he did not cooperate, the boyfriend would stab him with the knife. The fact that ultimately he did not cooperate, and thus the boyfriend did try to stab him with the knife, is not evidence of any different intent or objective than the initial display of the knife.
Defendant aptly cites People v. Ridley (1965) 63 Cal.2d 671. There, the defendant and an accomplice robbed a pawnshop. When the accomplice pulled out a gun, the store owner tried to knock it out of his hand; the accomplice shot the store owner several times. The defendant then pulled out his own gun and announced that it was a holdup. (Id. at p. 673.) The Supreme Court held that section 654 precluded punishment for both robbery and assault with a deadly weapon on the store owner: “[I]t appears that the assault upon [the store owner] was the means of perpetrating the robbery and that both offenses were incident to one objective, robbery.” (Ridley, at p. 678.) Here, identically, the boyfriend’s display of the knife was incidental to a kidnapping and carjacking. The victim resisted, forcing him to actually use the knife; even so, the entire assault was simply the means of perpetrating a kidnapping and carjacking.
Finally, this whole argument focuses on the intent and objective of the boyfriend. The focus, however, should be on defendant’s intent, as an aider and abettor. (See People v. Bradley (2003) 111 Cal.App.4th 765, 768-771.) She evidently had the intent and objective of helping her boyfriend commit an assault (as well as a kidnapping and a carjacking). For example, while her boyfriend was holding the knife to the victim’s throat, she told the victim, “Just do what he says.” However, there is no evidence that defendant ever formed the separate intent of helping her boyfriend try to stab the victim. That was obviously something the boyfriend did in response to the victim’s attempt to escape.
We therefore conclude that the sentence on count 3 (assault with a deadly weapon) must be stayed.
IV
DISPOSITION
The conviction on count 2 (carjacking), and the related consecutive three-year term, are vacated. A retrial on count 2 is barred. Execution of the concurrent three-year term on count 3 (assault with a deadly weapon) is stayed; this stay will become permanent once defendant has served the remainder of her sentence. Defendant’s total sentence will be seven years to life in prison. The judgment as thus modified is affirmed. The superior court clerk is directed to prepare a new sentencing minute order and a new abstract of judgment reflecting these changes and to forward a certified copy of the new abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
We concur: McKINSTER Acting P.J., KING J.