Opinion
A148899
05-03-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES ALBERT KESSELRING IV, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1502595)
A jury found defendant Charles Albert Kesselring guilty of evading a police officer (Veh. Code, § 2800.2); vehicle theft (Veh. Code, § 10851); carjacking involving the personal use of a deadly weapon (Pen. Code, §§ 215, 12022); second degree robbery involving the personal use of a deadly weapon (Pen. Code, §§ 211, 12022); making criminal threats involving the personal use of a deadly weapon (Pen. Code, §§ 422, 12022); and assault with a deadly weapon (Pen. Code, § 245). The trial court found true allegations that defendant had two prior felony convictions (Pen. Code, § 667.5). Defendant does not challenge the validity of these convictions or enhancement findings. His appeal puts at issue only certain aspects of his aggregate sentence of 15 years and 8 months.
All of defendant's contentions are founded on Penal Code section 654, subdivision (a), which provides: "An act or omission that is punishable 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."
All of defendant's contentions relate to just the counts for carjacking and robbery, and their respective personal weapon use findings. Initially, he argues that the robbery and its personal use finding must be stayed because it "was accomplished by the same act and had the same intent and objective as . . . [the] carjacking, namely, to steal everything of value" from the victim. Next, defendant argues that both of the personal use enhancements must be stayed for the same reason. Defendant's final variation on the theme is that if we reject his first two arguments, we should at least stay the personal use enhancement to the robbery.
Penal Code "[s]ection 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.] ' "The proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one." [Citation.] "The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' " (People v. Assad (2010) 189 Cal.App.4th 187, 200, quoting People Coleman (1989) 48 Cal.3d 112, 162.)
"A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.) This court recently noted that trial courts enjoy broad latitude in making these determinations, and the record is viewed most favorably in support of those determinations. (People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4.)
All of defendant's arguments hinge on the premise that there is proof of only one criminal intent. This is incorrect.
The salient facts are these: The victim, Linden Mills, was employed as a delivery driver by West Side Pizza. Late on the night of May 26, 2015, he was sent to make a delivery at the community center in Manilla, a small community which is several miles north of Eureka. He saw two people in a parking lot, and confirmed that the delivery was for them. Still in his vehicle, Mills was looking to see if he could make change for a $50 bill. According to Mills, defendant produced a machete, "held it a couple of inches from my neck," and "asked me unkindly to get out of my truck." Defendant then told Mills to "get on the fucking floor," "if you move I'll fucking kill you." Once on the ground, Mills was asked by defendant "where is your fucking wallet?" "I said, 'It's in my back pocket,' and he reached down and removed it . . . . And then he said, 'Where is your fucking cell phone?' I said, 'It's in my car.' " Defendant then ordered Mills to run. Mills was about 500 feet away when he saw defendant get into the truck and drive away.
This was not, as it was in People v. Corpening (2016) 2 Cal.5th 307, a situation where "different crimes were completed by a 'single physical act.' " (Id. at p. 311; see Pen. Code, § 215, subd. (c) ["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"], italics added.) Corpening is especially pertinent as a contrast. There, our Supreme Court held that Penal Code section 654 precluded punishing for robbery a carjacker who also obtained personal property inside the vehicle. Here, however, the crimes were accomplished by discrete physical acts. Mills was ordered out of his vehicle, and complied under the clear threat of defendant's machete in his face. He left the car, leaving the keys in the ignition and engine running. The carjacking was complete when defendant drove away. (See People v. Lopez (2003) 31 Cal.4th 1051, 1059-1060 ["felonious taking" element of carjacking requires asportation or movement of the vehicle].)
True, the robbery occurred between defendant obtaining possession of Mills's truck by force or fear, and his moving it, thereby satisfying the final element of carjacking. Also true, as the same victim, Mills was further subjected to force or fear in surrendering possession of his wallet. But it is not true that the chronology homogenizes two intents into one as a matter of law. (See People v. Capistrano (2014) 59 Cal.4th 830, 887 ["The temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective"]; People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085 ["if the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts"].) The offenses are not " ' "indivisible in time." ' " (People v. Hicks (1993) 6 Cal.4th 784, 789.) The trial court could have concluded that indeed, in defendant's language, there was but a single criminal objective—"to steal everything of value." However, it expressly concluded "the objectives for stealing the personal property . . . is totally separate from wanting to take the vehicle." The question is whether, as a matter of fact, there is substantial evidence to support that determination. (People v. Brents, supra, 53 Cal.4th at p. 618.)
It is pointless to deny that theft was planned from the outset. Whether it was directed at the vehicle or the driver's personal property, or both, is not dispositive. It could have been either, which was joined with the other when defendant took account of Mills's vulnerability, alone, at night, in a place with no one nearby. There was certainly time enough for defendant to form a new, opportunistic, independent intent for felonious taking, one that accomplished with new threat. The record has substantial evidence to support the trial court's determination that defendant had two criminal objectives, and could thus be subject to two separate sentences, as was the case in People v. Capistrano, supra, 59 Cal.4th at page 887 and People v. Green, supra, 50 Cal.App.4th at page 1085. Moreover, as the crimes were separate, so too are their enhancements.
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.