Opinion
B159671.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. JESSIE LIPSCOMB et al., Defendants and Appellants.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant Eric Darnell Fuller. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Jessie Lipscomb. Linda Casey Mackey, under appointment by the Court of Appeal, for Defendant and Appellant Demar Jerome Thomas. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found all four defendants in this case guilty of carjacking, robbery and assault. Three of the defendants — Eric Fuller, Jessie Lipscomb and Demar Thomas — are parties to this appeal. They contend the trial court erred in refusing to dismiss this case, strike the testimony of two prosecution witnesses, or declare a mistrial after it came to light during trial that an audiotape of a police interview with the two witnesses had not been turned over to the defense and was now missing. They also contend, among other things, the trial court should have stayed their sentences on the robbery convictions rather than imposing concurrent sentences. We conclude, and the People concede, defendants are correct on the latter issue. Accordingly, we modify the judgments to reflect defendants sentences on the robbery convictions are stayed. We reject the remainder of defendants contentions and affirm the judgments as modified.
FACTS AND PROCEEDINGS BELOW
The victim in this case, Glen Booth, visited his friend, Felita Hammond, after midnight one morning. Booth parked his Mercedes on the street in front of the apartment complex where Hammond lived. Booth and Hammond stood outside talking, near the back end of Booths Mercedes. A Chevrolet Cavalier pulled into a driveway and stopped next to the apartment complex. Hammond walked over to the Cavalier and talked to the driver, defendant Jessie Lipscomb. Hammond had known Lipscomb and the back seat passenger, defendant Demar Thomas, for about 20 years. They lived around the same area and had gone to school together. Hammond had seen the front seat passenger, David Santana, on occasion in her neighborhood. After a few minutes, the Cavalier drove off and Hammond walked back to where Booth was standing.
Santana is not a party to this appeal.
About 10 or 15 minutes later, the Cavalier returned and double parked on the street, a few feet away from Booths Mercedes. There were four men in the car. Defendant Eric Fuller, whom Hammond also had known for 20 years, was now sitting in the front passenger seat. Lipscomb was still driving, Thomas was sitting in the back seat on the drivers side, and Santana was sitting in the back seat on the passengers side. Booth did not know any of these men.
Fuller, Thomas and Santana got out of the Cavalier and surrounded Booth. Fuller stood to Booths left, Thomas stood to Booths right and Santana stood in front of Booth. Santana said to Booth: "Lets break bread." Booth understood this as a command to give up all of his valuables. According to Felita, Santana also told Booth to "[d]ump out [his] motherfucking pockets." Hammond stepped in between Santana and Booth and said Booth was not going to give them any of his possessions. Lipscomb got out of the Cavalier and said something like, "[k]ill that nigger" or "[s]hoot that motherfucker."
Hammond ran into her apartment and dialed 911. Hammond told the 911 operator one of the men had a gun. She later admitted she lied when she said that. She was nervous and she believed the police would respond sooner if they thought someone had a gun. In any event, she assumed one of the men had a gun because she heard Lipscomb say, "[s]hoot that motherfucker."
Lipscomb hit Booth in the head with a hard object, which Booth believed was a liquor bottle. As a result of the blow, Booth was "dazed and stunned" and had a bump on his head. Someone else punched Booth in the mouth, which caused his lip to bleed. Santana grabbed Booths gold bracelet, necklace and ring. Booth did not resist because he did not know if the men had any weapons.
After the police arrived, Booth noticed there was a liquor bottle on the ground near where the men were standing.
Photographs of Booths injuries were admitted into evidence at trial.
Fuller entered Booths Mercedes and the other three men got back in the Cavalier. The keys to the Mercedes were in the ignition. As Fuller tried to start the Mercedes, Booth went to the drivers side of the car and stood by the back door. He asked Fuller not to take the car. Fuller raised what Booth believed was a handgun and asked: "You want me to shoot you?" The Mercedes drove away with the Cavalier following it.
The Mercedes stopped down the street and the Cavalier pulled up next to it. The two cars sat side-by-side in the middle of the street for a few minutes until the police arrived. Booth and Hammond pointed out the two cars to the police. As the first black and white patrol unit approached the cars, the Mercedes drove off and a chase ensued. The patrol car followed the Mercedes and the Cavalier followed the patrol car.
At some point, the Cavalier pulled in front of the patrol car and stopped, blocking the patrol cars path. Another police unit picked up the chase. Lipscomb, Thomas and Santana were arrested. The police recovered a ring from Santana, which apparently was Booths ring. Eventually, Fuller crashed the Mercedes and he too was arrested. The police did not find any other jewelry or any weapons in either of the cars or along the chase route. Booth and Hammond identified all of the defendants at the crime scene.
A jury found all four defendants guilty of carjacking, second degree robbery and misdemeanor assault, and not guilty of assault with a deadly weapon. The jury also found Fuller guilty of evading a peace officer in willful or wanton disregard of safety. The jury found not true the allegations Fuller personally used a handgun within the meaning of section 12022.53, subdivision (b), and a principal was armed with a handgun within the meaning of section 12022, subdivision (a)(1), during the carjacking. The jury also found not true the allegation Lipscomb personally used a deadly and dangerous weapon (a bottle) within the meaning of section 12022, subdivision (b) during the robbery.
Penal Code section 215, subdivision (a). All further statutory references are to the Penal Code unless otherwise noted.
Section 245, subdivision(a)(1).
Vehicle Code section 2800.2, subdivision (a).
Fuller and Lipscomb waived their rights to a jury trial on the prior conviction allegations in the information. Fuller admitted he had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1) and the Three Strikes Law, and a prior prison term within the meaning of section 667.5, subdivision (b). The trial court found true the allegations Lipscomb had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a)(1) and the Three Strikes Law, and two prior prison terms within the meaning of section 667.5, subdivision (b). The court struck the prior prison term allegations as to both Fuller and Lipscomb under section 1385.
Sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
The trial court sentenced Fuller to 24 years and four months in prison. On count 1 (carjacking), the court imposed the upper term of nine years, doubled under the Three Strikes Law, plus a five-year enhancement under section 667, subdivision (a)(1), for a total term of 23 years. On count 2 (assault), the court sentenced Fuller to six months in the county jail and stayed the sentence under section 654. On count 3 (robbery), the court imposed the upper term of five years, plus a five-year enhancement under section 667, subdivision (a)(1). The court ordered the sentence on count 3 to run concurrently with the sentence on count 1. On count 4 (evading a peace officer), the court imposed the middle term of eight months, doubled under the Three Strikes Law, for a total term of 16 months.
The trial court sentenced Lipscomb to 37 years to life in prison. On count 1 (carjacking), the court imposed the upper term of nine years, tripled under the Three Strikes Law, plus two five-year enhancements under section 667, subdivision (a)(1), for a total term of 37 years to life. On count 2 (assault), the court sentenced Lipscomb to six months in the county jail and stayed the sentence under section 654. On count 3 (robbery), the court imposed a sentence of 25 years to life under the Three Strikes Law to run concurrently with the sentence on count 1.
The trial court sentenced Thomas to five years in prison. On count 1 (carjacking), the court imposed the middle term of five years. On count 2 (assault), the court sentenced Thomas to six months in the county jail and stayed the sentence under section 654. On count 3 (robbery), the court imposed the middle term of three years to run concurrently with the sentence on count 1.
DISCUSSION
I. THE TRIAL COURT PROPERLY REFUSED TO IMPOSE DEFENDANTS REQUESTED SANCTIONS BASED ON THE PROSECUTION/LAPDS FAILURE TO TURN OVER AN AUDIOTAPE OF AN INTERVIEW WITH BOOTH AND HAMMOND.
Defendants argue the Los Angeles Police Department (LAPD) violated their constitutional rights to due process by failing to preserve an audiotape of a police interview with witnesses Booth and Hammond. Defendants contend the trial court erred in refusing to dismiss this case, strike the testimony of Booth and Hammond, or declare a mistrial after it came to light during trial that the audiotape had not been turned over to the defense and was now missing. In response, the People argue the trial court had no duty under the Constitution to impose any sanction against the prosecution because (1) the evidence is not constitutionally material and (2) the officers did not act in bad faith in failing to turn over the tape. In any event, the trial court did impose a sanction by instructing the jury on the prosecution/LAPDs discovery obligations, their failure to disclose the tape, and the effect of this omission on the credibility of Booth and Hammond.
Lipscomb and Thomas raised this issue in their appellate briefs. All three defendants join in the arguments of each of the other defendants.
Under the due process clause of the Fourteenth Amendment, state law enforcement agencies have a duty to preserve "evidence that might be expected to play a significant role in the suspects defense." Evidence "meet[s] this standard of constitutional materiality" only if it "possess[es] an exculpatory value that was apparent before the evidence was [lost or] destroyed" and is "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." A failure to preserve evidence which is only "potentially useful," and not constitutionally material, does not qualify as a due process violation unless the defendant can show the police acted in bad faith. Absent a due process violation, a trial court is not required to impose any sanction (including a jury instruction).
California v. Trombetta (1984) 467 U.S. 479, 488; People v. Cooper (1991) 53 Cal.3d 771, 810.
California v. Trombetta, supra, 467 U.S. at page 488; People v. Cooper, supra, 53 Cal.3d at page 810.
Arizona v. Youngblood (1988) 488 U.S. 51, 58; People v. Cooper, supra, 53 Cal.3d at page 810.
People v. Cooper, supra, 53 Cal.3d at page 811.
During a break in the trial, Officer Contreras, one of the LAPD patrol officers involved in the incident, asked the prosecutor if she had the audiotape of an interview he and his partner, Officer Karle, had conducted with Booth and Hammond. At this point in the trial, Booth and Hammond already had given their trial testimony. Neither the prosecutor nor defense counsel had any prior knowledge of the tape. After discussing the matter with Officer Contreras and defense counsel, the prosecutor brought the issue to the trial courts attention. The court held a hearing under Evidence Code section 402. Officers Contreras and Karle and Detective DOrazio testified about this matter outside the presence of the jury.
Officer Karle said he interviewed Booth and Hammond at the crime scene, and he took notes during the interviews. After defendants were taken into custody, some of the officers drove Booth and Hammond to the police station. Officer Karle decided to conduct a tape-recorded interview with Booth and Hammond at the station. He had never taped a witness interview before (and hasnt since). He decided to tape-record this particular interview because he believed the police report would be "complex," given the number of police units involved in the chase and the multi-location crime scene.
Three patrol cars and a police helicopter were involved in the pursuit.
Officer Karle said he interviewed Booth and Hammond "separately," but in the same room. The witnesses sat at a table, about five or six feet away from each other. Officer Karle did not begin the interview until he had turned on the tape machine. He also took notes as Booth and Hammond talked. About 10 minutes into the interview, Officer Contreras entered the room, and he stayed there for the remainder of the interview. The interview lasted about 45 minutes to an hour. The officers did not ask Booth and Hammond about their criminal histories. According to Officer Karle, Booth and Hammond gave the same account of the incident at the station as they had given previously at the crime scene.
After the interview, Officer Contreras took the tape machine to the "report-writing room." Officer Karle left the station to drive Booth home. Officer Karle said he never saw the tape again after Officer Contreras took it. Although Officer Contreras listened to the tape as he wrote the arrest report, he did not reference the tape in the report. He acknowledged this was "a mistake."
One of the two officers submitted the various reports related to the incident to the watch commander. Neither could recall who did it. Both officers believed the tape was attached to the arrest report when it was submitted. At some point, Officer Karle destroyed all of the notes he took during the interviews with Booth and Hammond. He said this was his normal practice. He acknowledged, however, the disclosure statement he signed required him to attach all notes and tapes, or explain if any notes or tapes were lost or destroyed. He did neither. Officer Karle later wrote a supplemental report about evidence found at the crime scene and Booths injuries. He did not reference the tape in this supplemental report.
The case was assigned to Detective DOrazio. He did not learn about the tape until the prosecutor telephoned him during trial. He and other officers searched for the tape at the police station, but did not find it. He said it is not a "normal" practice for officers to tape-record witness statements.
After listening to the testimony and the arguments of counsel, the trial court found the officers were negligent in their failure to preserve the tape and disclose its existence in the various reports. The court did not find the officers acted intentionally, maliciously or in bad faith. The court also concluded the lost and/or destroyed evidence is potentially relevant, but not constitutionally material. The court stated it was "not able to conclude that this evidence has an exculpatory or exonerative value."
Defendants asked the trial court to dismiss the case or strike the testimony of Booth and Hammond. The court rejected these proposed sanctions as "too draconian." The court also found defendants request for a mistrial inappropriate given "the state of the evidence." The court asked counsel to help it draft a jury instruction "regarding the status of the missing evidence and what [the jurors] should consider," based on CALJIC No. 2.28.
During the trial, the jury heard testimony from Officers Contreras and Karle and Detective DOrazio about the missing tape and the destroyed interview notes. Officer Contreras testified it is "unusual" to interview two witnesses together and it is not common to tape-record witness statements. Officer Karle conceded it is preferable to interview witnesses separately. The arrest report Officer Contreras prepared does not mention Booth and Hammond were interviewed at the station. According to Officer Karle, nothing he heard during the interview at the station was missing from the arrest report. Officer Contreras said he was able to recall and testify about what Booth and Hammond said during the interview at the station.
The trial court instructed the jury as follows: "The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. Officers of the Los Angeles Police Department are under an obligation to disclose the existence of evidence and retain any such evidence within their care, custody and control. Delay in the disclosure of evidence and/or failure to provide a specific item of evidence will deny a party a sufficient opportunity to prepare for trial, cross-examine a witness at trial, or impeach the testimony of a witness at trial.
"Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the People and members of the LAPD failed to disclose at least 30 days before trial and provide to any defendant the following evidence: [¶] (1), that an interview with Glen Booth and Felita Hammond was tape recorded at the Newton Station; and [& para;] (2), a copy of the actual tape recording of that interview. [& para;] The failure by officers of the LAPD to timely disclose evidence and actually provide such evidence was without lawful justification.
"The weight and significance of any delayed disclosure and missing evidence are matters for your consideration. You may infer that any such evidence if disclosed and produced would have affected negatively the credibility of Glen Booth and Felita Hammond. You should consider whether the untimely disclosed evidence and failure to produce such evidence pertain to a fact of importance, something trivial, or subject matters already established by other credible evidence."
In reviewing defendants motion for sanctions, "we must determine whether, viewing the evidence in the light most favorable to the superior courts finding, there was substantial evidence to support its ruling." We conclude there is substantial evidence supporting the trial courts finding the missing tape does not qualify as constitutionally material evidence. Based on the record before us, we cannot conclude the information on the tape has any exculpatory value which was not made known to the defense during its extensive cross-examination of Booth, Hammond and the officers. Defendants concede they were able to impeach Booth and Hammond with many inconsistencies between what they testified to at trial and what they told the police the morning of the incident. Defendants also questioned Booth and Hammond at trial about their prior criminal convictions. Moreover, defendants cross-examined Officers Contreras and Karle about the tape-recorded interview. Officer Contreras said he played the tape as he wrote the arrest report. Officer Karle said he could not recall anything Booth or Hammond said during the tape-recorded interview which was not reflected in the arrest report. We find the information on the tape falls within the category of potentially useful evidence, not constitutionally material evidence.
People v. Roybal (1998) 19 Cal.4th 481, 510; People v. Memro (1995) 11 Cal.4th 786, 831.
Accordingly, absent proof of bad faith conduct on the part of the officers, the failure to preserve the tape does not constitute a due process violation. We conclude the trial courts finding the officers acted negligently, and not in bad faith, also is supported by substantial evidence. Officers Contreras and Karle both said they believed the tape was attached to the arrest report when the package of reports was submitted to the watch commander. If the officers had purposely intended to get rid of the tape, it seems unlikely Officer Contreras would have asked the prosecutor if she had the tape. The defense would not even have known about the tape but for Officer Contreras disclosure. Moreover, the fact Officer Karle destroyed his interview notes (per his usual practice), and failed to indicate this on the disclosure statement, is not evidence he purposely lost or destroyed the tape. Again, the only reason the defense learned Officer Karle took notes and destroyed them is because the officers were forthright about this information.
Despite defendants urging, we do not conclude a bad faith finding is warranted based on the fact the officers interviewed Booth and Hammond together and tape-recorded the interview. The fact the officers deviated from "normal" or "customary" practice does not indicate some evil motive with respect to the preservation of the tape.
Because there was no due process violation here, the trial court was not required to impose any sanction. But it did. The court gave a strongly-worded instruction, disapproving of the officers conduct and permitting the jury to infer there was information on the tape which would have reflected negatively on the credibility of Booth and Hammond. Assuming for purposes of argument there was a due process violation based on bad faith conduct in failing to preserve the tape, we would find the trial court acted well within its discretion in choosing a jury instruction as the appropriate sanction. Based on defendants opportunity to cross-examine and impeach Booth, Hammond and the officers, we agree with the trial courts conclusion the other proposed sanctions requested by defendants were too draconian or not appropriate based on the state of the evidence.
People v. Memro, supra, 11 Cal.4th at page 831 ("`It is settled that trial courts "enjoy a large measure of discretion in determining the appropriate sanction that should be imposed" because of the failure to preserve or destruction of material evidence").
II. THE TRIAL COURT PROPERLY DECLINED TO INSTRUCT THE JURY ON UNLAWFUL TAKING OR DRIVING OF A VEHICLE.
Fuller contends the trial court erred in refusing to instruct the jury on the crime of unlawful taking or driving of a vehicle, which he argues is a lesser included offense of carjacking. The People dispute this crime is a lesser included offense. In the alternative, the People argue "an instruction on the lesser offense was unwarranted because the jury could not reasonably have concluded that the force-or-fear element of carjacking was missing."
Vehicle Code section 10851, subdivision (a).
"`Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." Instructions on a lesser included offense "are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury." "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury."
People v. Breverman (1998) 19 Cal.4th 142, 154, footnote 5.
People v. Breverman, supra, 19 Cal.4th at page 162.
People v. Breverman, supra, 19 Cal.4th at page 162; People v. Lopez (1998) 19 Cal.4th 282, 288 ("`A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] "there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser").
People v. Breverman, supra, 19 Cal.4th at page 162.
Section 215 defines carjacking as "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."
Under Vehicle Code section 10851, subdivision (a), "[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with the intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense . . . ."
As Fuller points out, the use of force or fear is an element of carjacking but not unlawful taking or driving of a vehicle. Fullers argument in support of his request for an instruction on the latter offense is based entirely on his assertion "there is a question as to whether the Mercedes was taken with the requisite force or fear, required for the aggravated offense of carjacking." As discussed more fully below, we disagree with Fullers assertion. Because we find a reasonable jury could not conclude the offense was accomplished without force or fear — i.e., there is not substantial evidence defendants were guilty only of unlawful taking or driving of a vehicle and not carjacking — we conclude the trial court properly refused to give the requested instruction. Accordingly, we need not decide whether unlawful taking or driving of a vehicle is a lesser included offense of carjacking.
As the People note, the issue of whether unlawful taking or driving of a vehicle is a lesser included offense of carjacking is currently under review in the California Supreme Court. (People v. Montoya (2002) 103 CalApp.4th 25 review granted January 15, 2003 (S111662).)
According to Booth and Hammond, Lipscomb threatened Booths life before defendants took any of Booths property. Lipscomb struck Booth in the face, apparently with a bottle, and one of the other men punched Booth in the face. Only then did Santana take Booths jewelry and Fuller enter Booths car. According to Booth, when he asked Fuller not to steal his car, Fuller threatened to shoot him. Photographs of Booths injuries were admitted into evidence at trial.
There is no question the force or fear element of carjacking is established. Fuller does not argue (nor can he) any other element of carjacking is not met. Thus, there is no evidence, let alone substantial evidence, supporting Fullers argument defendants were guilty of some lesser offense. Accordingly, we find the trial court properly refused to instruct the jury on unlawful taking or driving of a vehicle (even assuming for purposes of argument this crime is a lesser included offense of carjacking).
III. THERE IS SUFFICIENT EVIDENCE SUPPORTING THOMAS CONVICTIONS FOR CARJACKING AND ROBBERY ON AN AIDER AND ABETTOR THEORY OF LIABILITY.
Thomas contends there was insufficient evidence for a jury to find he aided and abetted the carjacking and robbery. He argues he was "merely present" at the scene, but "did not participate" in the crimes.
When an appellant challenges the sufficiency of the evidence, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." We reverse only where the record clearly shows there is no basis upon which the evidence can support the jurys verdict.
People v. Johnson (1980) 26 Cal.3d 557, 578.
People v. Montero (1986) 185 Cal.App.3d 415, 424, citing People v. Redmond (1969) 71 Cal.2d 745, 755.
To convict a defendant of a crime based on an aider and abettor theory of liability, a jury must find the defendant "act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." "[M]ere presence at the scene of a crime is insufficient to establish aider and abettor liability."
People v. Beeman (1984) 35 Cal.3d 547, 560.
People v. Salgado (2001) 88 Cal.App.4th 5, 15.
Thomas is one of the three men who surrounded Booth before Santana said, "Lets break bread," or, in other words, give up all of your valuables. Although Thomas did not say anything to Booth, strike him, or enter his car, he had a role to play in these crimes. As the prosecutor argued to the jury, he was there to intimidate Booth. He helped convey the message Booth would have to take on three men if he refused to turn over his property.
Thomas stresses the fact he did not drive away from the scene in the stolen Mercedes. That he drove away in the Cavalier, however, does not indicate a lack of participation in or promotion of the offenses. The Cavalier did not merely drive away from the scene. Instead, it stopped down the street next to the Mercedes, presumably so the four men could plan their next moves. During the police chase, the Cavalier took on an active role in the getaway. It passed the black and white patrol car following the Mercedes and blocked the patrol cars path.
See People v. Salgado, supra, 88 Cal.App.4th at page 16 ("evidence that [the defendant] drove away in the [stolen] car raises an inference, when viewed in the context of the events that soon followed [including a drive-by shooting], that he promoted and encouraged the carjacking. The jury could reasonably conclude that [the defendant] contributed to the threat that led [the victim] to surrender his car").
Based on the foregoing, there is sufficient evidence Thomas aided and abetted the carjacking and robbery. He was not merely present at the scene of these crimes. A reasonable jury could find he acted with knowledge of the (criminal) reason the men returned to Hammonds residence, and with an intent to encourage and facilitate the crimes: He helped his partners intimidate the victim and, as a passenger in the Cavalier, played a role in Fullers attempted escape in the Mercedes.
IV. THE TRIAL COURT SHOULD HAVE STAYED DEFENDANTS SENTENCES ON THE ROBBERY CONVICTIONS.
Defendants contend the trial court erred in imposing concurrent sentences on the robbery convictions rather than staying these sentences under section 654. The People concede defendants "appear to be correct" on this issue.
Section 654, subdivision (a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Section 654 prohibits punishment for two offenses which arise from the same course of conduct and were incident to the same objective and intent. The People acknowledge defendants "conduct constituted an essentially indivisible transaction with one objective — the theft of Booths possessions of value." The People also note "the same force or fear which rendered [defendants] guilty of robbery was also what made them guilty of carjacking."
People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.
During sentencing, the trial court noted the "offense of robbery was committed on the same occasion as the offense of carjacking in this case. . . . [T]here is a definite close temporal and spatial proximity of the offense of robbery to the offense of carjacking." The court also recognized both offenses "are based upon the same set of operative facts, namely the underlying goal to rip off Mr. Booth, to carjack his vehicle, and to steal property from his person." Notwithstanding these findings, the court concluded "the provisions of Penal Code Section 654 do not apply in this case."
We disagree with the trial courts conclusion. It is clear the convictions for carjacking and robbery arose from the same course of conduct and were incident to the same objective and intent, as the People concede. Booth understood Santanas order, "Lets break bread" to mean give up all of your valuables, including the jewelry and the car. We therefore apply section 654 and modify the judgments to reflect defendants sentences on the robbery convictions are stayed.
See People v. Dominguez (1995) 38 Cal.App.4th 410, 420 (concluding "the carjacking and robbery . . . constituted `the same act" where the defendant "placed [a] cold metallic object to the back of the victims neck and demanded `everything he had . . . . Simultaneously, the victim handed over his jewelry and van by handing over the jewelry and fleeing the van").
People v. Thompson (1989) 209 Cal.App.3d 1075, 1080 ("Where section 654 precludes multiple punishment and the trial court erroneously fails to stay the terms subject to section 654, the appellate court must stay the sentence on the lesser offenses while permitting execution of the greater offense consistent with the intent of the sentencing court").
DISPOSITION
The judgments are modified to reflect defendants sentences on the convictions for robbery are stayed. Upon issuance of the remittitur the superior court shall cause its clerk to prepare amended abstracts of judgment and to forward them to the Department of Corrections. In all other respects the judgments are affirmed.
We concur PERLUSS, P.J., WOODS, J.