Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA085687, Lance A. Ito, Judge.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Andre Lamar Lonnie appeals from the judgment entered following his convictions by jury on two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187; counts 1 & 2), two counts of second degree robbery (Pen. Code, § 211; counts 3 & 4) with, as to each of the above offenses, personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (c)), count 5 – unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), count 7 – aggravated assault upon a peace officer (Pen. Code, § 245, subd. (c)), count 10 – assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), count 11 – escape by force or violence (Pen. Code, § 4532, subd. (b)(2)), count 12 – custodial possession of a weapon (Pen. Code, § 4502, subd. (a)), and count 13 – bringing a weapon into jail (Pen. Code, § 4574, subd. (a)). The court sentenced appellant to prison for life with the possibility of parole, plus 103 years. We modify the judgment and, as modified, affirm it with directions.
As discussed infra, the court later set aside the finding as to the attempted murder underlying count 1 that the offense was deliberate and premeditated.
FACTUAL SUMMARY
1. People’s Evidence.
a. The Events of July 17, 2006.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on July 17, 2006, Nagawa Kamel was a cashier at a Gardena gas station. About 9:00 a.m., appellant entered the gas station’s store, gave Kamel $20, and said he wanted $10 worth of gas. Kamel did not have change, so she entered the store’s office, where her boss was, to get change. While Kamel was in the office, she looked at the office’s closed circuit television monitor and saw appellant looking around the store. Kamel returned to appellant, gave him change, and he left.
Appellant returned about an hour later and asked for cigarettes. Kamel repeatedly told appellant she needed his identification. Appellant eventually produced a gun and pointed it at Kamel’s face. Kamel ducked and fled towards the office. Appellant, attempting to murder Kamel (count 2), fired a shot. The bullet struck glass on a Pepsi refrigerator located near the office door.
Garabet Kurbessoian, the station’s owner, heard Kamel scream his name and heard a gunshot. Kurbessoian looked at the monitor and saw appellant jump over the counter and try to open the register. Kurbessoian went to the office door and saw appellant taking money from the register and putting the money in his pockets.
Kurbessoian told appellant to put the money down and leave. A gun battle ensued between appellant and Kurbessoian, during which appellant tried to shoot and murder Kurbessoian (count 1). Kurbessoian shot appellant, wounding him. Appellant fled from the store with his gun and the money, thereby robbing Kamel (count 3) and Kurbessoian (count 4). Appellant unlawfully drove away in a Pontiac automobile belonging to Antwine Byrd (count 5).
b. The Events of March 29, 2007.
On March 29, 2007, Los Angeles County Sheriff’s Deputy Oscar Van Wie, a bailiff in a Compton courtroom, was in a jail lockup. Van Wie told appellant to exit a cell and face the wall. Shortly thereafter, appellant began hitting Van Wie and put pepper spray (this fact relates to counts 12 and 13) in his eyes. The two fought as appellant attempted to escape from jail (count 11), and appellant obtained Van Wie’s keys. At one point, appellant, using Van Wie’s keys, began opening a door leading towards another courtroom. At another point, Van Wie placed himself between appellant and the gun locker, because Van Wie did not know if appellant had Van Wie’s gun key.
During the struggle, appellant slammed Van Wie against the gun locker. Appellant had his left arm around Van Wie’s neck. Appellant, using his right hand, held a shank to Van Wie’s neck (count 7). The shank was a Bic razor. Jaime Corona, a court clerk, intervened, appellant and Corona struggled (count 11), and appellant jabbed the shank towards Corona (count 10). At one point, Corona was choking appellant, and appellant repeatedly told Corona to kill appellant.
2. Defense Evidence.
a. The Events of July 17, 2006.
In defense, appellant testified he had asked an acquaintance for a gun because appellant needed to walk through unsafe neighborhoods. The acquaintance (who was not Byrd) gave appellant a gun, and later loaned the acquaintance’s car, a Pontiac, to appellant.
Appellant subsequently drove to the gas station to get gas. He gave Kamel a $20 bill and asked for $10 worth of gas. Kamel said she did not have change. She walked to the back of the store, and returned with Kurbessoian. Kurbessoian gave appellant $10. Appellant put gas in his car and left.
Appellant later returned to the gas station to buy a cigar and a drink. He was wearing a gun between his belt and pants. When appellant asked Kamel for a cigar, she asked him if he was 21 years old. Appellant, who did not have identification, decided to put money on the counter. As he reached in his pocket for money, the gun fell. Appellant picked up the gun and put it in his back pocket, and tried to keep the gun below the counter so that Kamel would not see what was happening. Kamel walked away and entered a doorway. Appellant denied he was in the store to commit robbery. He denied picking up the gun and pointing it at Kamel’s face, demanding money, opening the register, or taking money from it.
About 30 to 45 seconds after Kamel entered the doorway, appellant heard someone say, “ ‘Hey, you, get out of here.’ ” When appellant heard the voice a second time, he looked over his shoulder and saw someone peeking out from the office. Appellant asked if the person was referring to appellant. Appellant saw a firearm extend outside the doorway.
Appellant was about to tell the person that appellant would leave when appellant heard the first shot. After he heard the second shot, appellant fell. Appellant reached for his weapon, got up, and shot twice. Appellant heard the office door slam, and appellant fled towards the store’s entrance. Kurbessoian opened the office door and fired his gun three times. One of those three bullets hit appellant. Appellant fled, later went to the Pontiac, and drove away.
b. The Events of March 29, 2007.
On March 29, 2007, appellant brought pepper spray which he had made, and a shank, to the courthouse. Appellant attacked Van Wie and attempted to get Van Wie’s key to get to the gun locker because appellant did not want to live. At the time, appellant did not feel he was being properly represented by counsel, did not feel he was going to “make it back to the streets,” and did not feel he was going to be with his family any more. Appellant testified, “I was kill me now or else.” Appellant also testified that he was punching Van Wie to disable him because appellant wanted to get away and get out of the courthouse. Appellant used pepper spray on Van Wie, but did not put a shank to Van Wie’s throat or use the shank on Corona.
CONTENTIONS
Appellant claims (1) the trial court erroneously imposed a full 20-year firearm enhancement on each of counts 3 and 4, (2) the trial court erroneously failed to instruct on attempted robbery as a lesser included offense of each of counts 3 and 4, (3) the jury convicted appellant of attempted robbery, not robbery, as to each of counts 3 and 4, (4) the trial court erroneously denied appellant’s motion for a new trial because there was insufficient evidence that the attempted murder of Kamel was premeditated and deliberate, (5) there was insufficient evidence that the attempted murder of Kamel was premeditated and deliberate, (6) Penal Code section 654, barred multiple punishment on counts 7, 10, 11, 12, and 13, (7) the trial court erroneously imposed a full consecutive term on count 12, and (8) the abstract of judgment must be corrected.
DISCUSSION
1. Imposition of a Full 20-Year Firearm Enhancement on Each of Counts 3 and 4 Was Error.
At the April 8, 2008 sentencing hearing, the trial court selected the term imposed for the attempted murder of Kurbessoian as the principal term, and imposed, inter alia, a consecutive subordinate term as to each of counts 3 and 4, plus a full 20-year Penal Code section 12022.53, subdivision (c) enhancement as to each of counts 3 and 4. Respondent concedes that, since the terms on counts 3 and 4 were consecutive subordinate terms, the Penal Code section 12022.53, subdivision (c) enhancement as to each of counts 3 and 4, should have been one-third of 20 years, i.e., six years eight months. (People v. Moody (2002) 96 Cal.App.4th 987, 989-994; Pen. Code, §§ 1170.1, 1170.11.) We accept the concession. We will modify the judgment accordingly.
2. The Trial Court Did Not Err by Failing to Instruct on Attempted Robbery as a Lesser Offense of Robbery (Counts 3 & 4).
Appellant claims the trial court erred by failing to instruct on attempted robbery as a lesser included offense of each of counts 3 and 4. We disagree. “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) An “attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Pen. Code, § 21a.)
We have recited the pertinent facts. Based on the People’s evidence, appellant committed both robberies. Based on the defense evidence, appellant lacked intent to rob anyone, made no demand for money, and neither took, nor made an effort to take, money from the register. Notwithstanding appellant’s suggestion to the contrary, no reasonable jury could have concluded that appellant intended to rob but took perpetrative steps falling short of the commission of the actus reus of robbery. In sum, as to counts 3 and 4, appellant was guilty, if at all, of robbery; therefore, the trial court did not err by failing to instruct on attempted robbery as a lesser included offense of those counts. (Cf. People v. Leach (1985) 41 Cal.3d 92, 106.)
3. The Jury Convicted Appellant of Two Counts of Robbery, Not Attempted Robbery.
a. Pertinent Facts.
Counts 3 and 4 of an amended information filed on July 12, 2007, allege that appellant committed second degree robbery involving Kamel and Kurbessoian, respectively. In particular, the amended information alleges as count 3, in pertinent part, that “On or about July 17, 2006,... the crime of SECOND DEGREE ROBBERY, in violation of PENAL CODE SECTION 211,... was committed by ANDRE LAMAR LONNIE, who did unlawfully, and by means of force and fear take personal property from the person, possession, and immediate presence of NAGWA KAMEL.” The amended information alleges the same language in count 4, except that the name Gary Kurbessoian replaces the name Nagwa Kamel. The amended information did not allege attempted robbery. Neither the allegations in count 3, nor the allegations in count 4, contained the word “attempt,” and neither count alleged attempted robbery.
The court instructed the jury on, inter alia, robbery (CALJIC No. 9.40), and a store employee as a victim of robbery (CALJIC No. 9.40.3). The court did not instruct on attempted robbery as a lesser offense of robbery. During jury argument, the parties disputed whether appellant committed robberies, but appellant did not explicitly argue that appellant committed attempted robberies.
The jury verdict form as to count 3, states, in pertinent part, “We, the Jury in the above-entitled action, find the Defendant, ANDRE LAMAR LONNIE, GUILTY of the crime of SECOND DEGREE ROBBERY, who did unlawfully and by means of force and fear attempt to take personal property from the person, possession and immediate presence of NAGWA KAMEL, in violation of Penal Code Section 211, a Felony, as charged in Count 3 of the Information.” (Italics added.) The jury verdict form as to count 4 reflects the same language, except that the form refers to count 4, not count 3, and the name Gary Kurbessoian replaces the name Nagwa Kamel.
The clerk read the jury verdict forms as to, inter alia, counts 3 and 4. The jury collectively agreed that these were the jury’s verdicts and, when individually polled, each juror agreed that these were the juror’s verdict. The court directed the clerk to record the verdicts as read, and the parties indicated the court could excuse the jury.
During sentencing, the People argued appellant harbored a premeditated intent to kill. Appellant’s counsel replied, “I think clearly, I see the robbery.” Appellant did not argue he committed attempted robbery. The court indicated without objection that counts 3 and 4 were two separate robberies, and the court sentenced appellant accordingly. Appellant did not object that he should have been sentenced for attempted robberies.
b. Analysis.
Appellant, noting that each of the jury verdict forms for counts 3 and 4 contains the phrase “attempt to take personal property” (italics added), argues the jury convicted him of the attempted robbery, not robbery, of Kamel and Kurbessoian. We disagree.
Penal Code section 1149 states, “When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.” Moreover, “[t]he oral declaration of the jurors endorsing the result is the true return of the verdict. There is no requirement that the verdict be in written form. (Pen. Code, § 1149; People v. Mestas [(1967)] 253 Cal.App.2d 780[.])” (People v. Lankford (1976) 55 Cal.App.3d 203, 211; see Stone v. Superior Court (1982) 31 Cal.3d 503, 511.) Finally, “ ‘[t]here are innumerable authorities which declare that the form of the verdict is immaterial if the intention to convict of the crime charged is unmistakably expressed. [Citations.]’ [Citations.]” (People v. Bratis (1977) 73 Cal.App.3d 751, 763.)
The amended information alleged in counts 3 and 4 that appellant committed second degree robbery of Kamel and Kurbessoian, respectively. Those allegations did not contain the word “attempt” or allege attempted robbery. As discussed in part 2 of the Discussion, there was no evidence of merely attempted robbery. Even if, as appellant asserts, the “evidence and arguments in this case left open the question about whether a robbery had been completed,” that fact, without more, would not establish the commission of attempted robbery but would be consistent with no robbery having been committed. Notwithstanding appellant’s arguments and his citations to the record, no reasonable jury could have concluded, based on the evidence in this case, that appellant merely attempted to rob Kamel and/or Kurbessoian.
The jury’s oral declarations were the true verdicts, and those declarations affirmed the contents of the jury verdict forms as read by the court clerk. As to each of counts 3 and 4, the forms referred to (1) “SECOND DEGREE ROBBERY,” not attempted robbery, (2) Penal Code section 211, not Penal Code section 664, and (3) a violation of Penal Code section 211, “as charged in... the Information.” (Italics added.) As mentioned, each of counts 3 and 4 in the amended information alleged robbery, not attempted robbery, and those counts did not contain the word “attempt.”
We conclude the jury’s intention to convict appellant of the crimes charged in counts 3 and 4—second degree robbery—is unmistakably expressed. That this was everyone’s understanding as to the jury’s verdicts is corroborated by what occurred at sentencing. We hold the jury convicted appellant of second degree robbery as to each of counts 3 and 4, and did not convict him of the attempted robbery of Kamel or Kurbessoian.
4. The Trial Court Properly Denied Appellant’s Motion for a New Trial, and There Was Sufficient Evidence that the Attempted Murder of Kamel Was Deliberate and Premeditated.
a. Pertinent Facts.
Counts 1 and 2 alleged that appellant committed attempted willful, deliberate, and premeditated murder against Kurbessoian and Kamel, respectively. Appellant filed a motion for a new trial on the grounds, inter alia, that there was insufficient evidence that the attempted murders were deliberate and premeditated. Appellant argued in the written motion that the jury could infer from the fact that appellant had been at the gas station an hour earlier and was carrying a firearm that he planned to commit a robbery, but there was no evidence that he planned to commit murder.
At the sentencing hearing and hearing on appellant’s motion, the prosecutor argued, as to the attempted murder of Kamel, as follows. When appellant pointed the gun at Kamel and she fled from the register towards the office, the use of force or fear was complete and appellant had free access to the register. Nonetheless, appellant pointed the gun in Kamel’s direction and fired. Appellant clearly intended to kill, and had no other reason to point the gun and shoot it at Kamel. The facts that appellant cased the location earlier and brought a loaded handgun into the gas station evidenced a willful, deliberate, and premeditated intent to kill before appellant entered the gas station.
Appellant argued as follows. The weak link in appellant’s case was that he returned to the gas station an hour later. He began the robbery, it went awry when Kamel fled, and appellant fired the gun “to prevent his apprehension, thinking she’s the only person there.” Appellant committed only attempted second degree murder as to Kamel.
After argument, the court, commenting on premeditation and deliberation, stated, “[t]he evidence as to Miss Kamel, the fact that defendant had cased the gas station – I don’t recall if it was an hour or two hours before, but a short period before that – he came back, that he parked the car a distance away, I mean clearly he had planned – there’s more evidence showing planning and consideration, and knowing that there is a lone victim there, or at least that was his impression. [¶] So the motion for new trial or setting aside the premeditated finding as to count 1 [sic], Miss Kamel, that motion is denied. [¶] As to count 2 [sic], the attempted murder of Mr. Kurbessoian, that motion is granted. I am going to set aside the deliberation and premeditation finding. I find that the evidence is inadequate to show any meaningful deliberation and premeditation at that point.”
As discussed infra, the trial court at this point, as well as later during sentencing, erred by associating count 1 with Kamel, and count 2 with Kurbessoian. As mentioned, counts 1 and 2 pertained to Kurbessoian and Kamel, respectively.
b. Analysis.
Appellant presents related claims that (1) there was insufficient evidence that the attempted murder of Kamel was willful, deliberate and premeditated, and (2) the trial court erroneously denied appellant’s motion for a new trial to the extent the motion was based on that alleged insufficiency. We review appellant’s challenge to the sufficiency of the evidence supporting his conviction in accordance with the usual rules on appeal (People v. Ochoa, supra, 6 Cal.4th at p. 1206) and review the trial court’s denial of his motion for a new trial for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1159.)
The trial court’s granting of appellant’s motion for a new trial to the extent the motion was based on insufficiency of evidence of premeditation and deliberation as to the attempted murder of Kurbessoian is not at issue in this appeal.
Moreover, “willful” means intentional; “deliberate” means arrived at as a result of careful thought and weighing of considerations for and against; and “premeditated” means considered beforehand. (People v. Perez (1992) 2 Cal.4th 1117, 1123.)
Further, “[a]n intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time.” (People v. Stitely (2005) 35 Cal.4th 514, 543.) “[P]remeditation can occur in a brief period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’ [Citations.]” (People v. Perez, supra, 2 Cal.4th at p. 1127.) Premeditation and deliberation can thus occur in rapid succession. (People v. Bloyd (1987) 43 Cal.3d 333, 348.)
The act of obtaining a weapon is evidence of planning consistent with a finding of premeditation and deliberation. (People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082.) The method of killing alone “can sometimes support a conclusion that the evidence sufficed for a finding of premeditated, deliberate murder.” (People v. Memro (1995) 11 Cal.4th 786, 863-864.) An execution-style shooting at close range may also establish premeditation and deliberation. (People v. Hawkins (1995) 10 Cal.4th 920, 957.) Moreover, the assailant’s use of a firearm against a defenseless person may show sufficient deliberation. (People v. Bolin (1998) 18 Cal.4th 297, 332-333.) Finally, firing at vital body parts shows preconceived deliberation. (Ibid; People v. Thomas (1992) 2 Cal.4th 489, 517-518.)
There was substantial evidence as follows. Appellant entered the store on two occasions on July 17, 2006, and cased the store the first time with a loaded gun. He returned the second time with a loaded gun, intending to commit robbery and, as a ruse, asked Kamel for cigarettes. Appellant eventually produced the gun and pointed it at Kamel’s face. Kamel fled towards the office. At that point, appellant could have freely accessed the money in the register.
However, as an alternative to simply taking the money and leaving, appellant consciously decided to try to murder the defenseless Kamel by shooting her at close range while she was facing away from him, and the bullet struck glass on a Pepsi refrigerator near the office door. The jury, at trial, and the trial court, considering appellant’s motion for a new trial, reasonably could have concluded appellant fired the shot to prevent Kamel from getting help, either from Kurbessoian, or by her calling the police. Appellant argued below that he fired the gun to prevent his apprehension.
We conclude there was sufficient evidence that appellant committed the attempted willful, deliberate, and premeditated murder of Kamel, and that the trial court did not abuse its discretion by denying appellant’s motion for a new trial. (Cf. People v. Guerra, supra, 37 Cal.4th at p. 1159; People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
5. No Impermissible Multiple Punishment Occurred.
Appellant claims the trial court’s sentencing scheme violated Penal Code section 654 as to counts 7, 10, 11, 12, and 13. For the reasons discussed below, we disagree.
a. Pertinent Facts.
The court sentenced appellant to prison for a total term of life with the possibility of parole plus 103 years as follows. The court began with the sentences for the attempted murders. The court stated, “As to count 1 [sic], the sentence of the court is the term of life imprisonment with the possibility of parole.” The court also imposed a 20-year Penal Code section 12022.53, subdivision (c) firearm enhancement as to that count, “for a total state prison sentence on count 1 [sic] of life plus 20 years.”
The court then stated, “The court elects as an indeterminate [sic] term count 2 [sic], the attempted murder of Mr. Kurbessoian.” The court concluded there were multiple aggravating factors and that there was no mitigating factor. The court stated, “The court elects the high term of nine years.” The court also imposed a 20-year Penal Code section 12022.53, subdivision (c) firearm enhancement.
As to each of counts 3 and 4 (the robberies), the court imposed a consecutive subordinate term of one year, plus 20 years for a Penal Code section 12022.53, subdivision (c) firearm enhancement. As to count 5 (unlawful driving or taking of a vehicle), the court imposed a consecutive subordinate term of eight months. As to count 7 (aggravated assault upon a peace officer), the court imposed a consecutive subordinate term of 16 months. As to count 10 (assault with a deadly weapon upon Corona), the court imposed a consecutive subordinate term of eight months, then stated that the “eight months is stayed pursuant to Penal Code section 654, being the same conduct as in count 7.” As to count 11 (escape by force or violence), the court imposed a consecutive upper term of six years. As to count 12 (custodial possession of a weapon), the court imposed a consecutive middle term of three years. As to count 13 (bringing a weapon into jail), the court imposed a consecutive subordinate term of one year.
b. Analysis.
(1) Counts 7, 10, and 11.
As mentioned, the court imposed a sentence on count 7. There is no dispute the trial court concluded Penal Code section 654 applied to count 10. Appellant was sentenced to prison for six years as to count 11 (escape by force or violence).
Appellant claims the trial court could impose sentence on (1) either count 7 or count 10, and (2) count 11, but could not impose sentence on (1) counts 7 and 10, and (2) count 11. He argues he attempted to escape by force or violence (count 11), and that he used force or violence for purposes of Penal Code section 4532, subdivision (b)(2), when he committed the offenses at issue in counts 7 and 10; therefore, if the court imposed sentence on count 11, the court could impose sentence on count 7, or on count 10, but not on counts 7 and 10.
Although the parties refer to escape by force or violence, Penal Code section 4532, subdivision (b)(2), proscribes such an escape or an attempt to commit such an escape. We note the jury was instructed that attempt to commit such an escape was an element of a violation of Penal Code section 4532, subdivision (b)(2). Penal Code section 4532, subdivision (b), provides, in relevant part, “(1) Every prisoner arrested and booked for, charged with, or convicted of a felony,... who is confined in any county or city jail,... [or] is in the lawful custody of any officer or person,... who escapes or attempts to escape from a county or city jail, prison,... or from the custody of any officer or person in whose lawful custody he or she is,... is guilty of a felony and, if the escape or attempt to escape was not by force or violence, is punishable by imprisonment in the state prison for 16 months, two years, or three years, to be served consecutively,... [¶] (2) If the escape or attempt to escape described in paragraph (1) is committed by force or violence, the person is guilty of a felony, punishable by imprisonment in the state prison for a full term of two, four, or six years to be served consecutively to any other term of imprisonment, commencing from the time the person otherwise would have been released from imprisonment and the term shall not be subject to reduction pursuant to subdivision (a) of Section 1170.1,...” (Italics added.)
We note the trial court properly could have concluded that appellant had multiple alternative criminal objectives when committing the offense at issue in count 7, i.e., (1) the criminal objective of escaping from jail, and (2) the criminal objective of obtaining from the gun locker a firearm to use to commit assault with a firearm upon Van Wie so that Van Wie might be forced to kill appellant, who was despondent.
The trial court’s disposition of count 10 was ambiguous. If, as the trial court concluded, Penal Code section 654 barred punishment on that count, the court erred by purporting to impose a prison term of eight months and then staying that term pursuant to Penal Code section 654. When Penal Code section 654 applies to bar punishment, the section bars a concurrent or consecutive sentence as punishment. (People v. Jones (1985) 164 Cal.App.3d 1173, 1182.)
We will modify the judgment to clarify that Penal Code section 654 applies to the disposition of count 10. As so modified, the judgment will afford appellant all the relief he seeks insofar as counts 7, 10, and 11 are concerned, i.e., imposition of sentence on either count 7 or count 10, but not on both counts, plus imposition of sentence on count 11.
(2) Counts 11, 12, and 13.
Appellant claims he committed the offenses at issue in counts 12, and 13, in order to commit the offense at issue in count 11; therefore, he was properly punished on count 11, but could not be punished on either count 12 or count 13. For the reasons discussed below, we conclude appellant was properly punished on counts 12 and 13.
Penal Code section 4502, subdivision (a), provides, in relevant part, “Every person who, while at or confined in any penal institution, while being conveyed to or from any penal institution, or while under the custody of officials, officers, or employees of any penal institution, possesses or carries upon his or her person or has under his or her custody or control... any dirk or dagger or sharp instrument,... is guilty of a felony and shall be punished by imprisonment in the state prison for two, three, or four years, to be served consecutively.” The amended information alleged this offense as “custodial possession of weapon[.]” (Capitalization omitted.)
Penal Code section 4574, subdivision (a), states, “... any person, who knowingly brings or sends into, or knowingly assists in bringing into, or sending into,... any jail... or within the grounds belonging or adjacent to any such institution, any... deadly weapons,... and any person who, while lawfully confined in a jail... possesses therein any... deadly weapon,... is guilty of a felony and punishable by imprisonment in the state prison for two, three, or four years.”
As for counts 12 and 11, the trial court reasonably could have concluded that appellant, while being conveyed to jail, possessed the shank. That is, the trial court reasonably could have concluded that appellant’s possession of the shank (count 12) was antecedent to his attempt, once he was inside jail, to escape by force or violence (count 11); therefore, appellant’s criminal objective in his antecedent possession of the shank was different from his criminal objective in attempting to escape. (Cf. People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1149.) Moreover, the trial court also reasonably could have concluded that appellant possessed the shank with multiple alternative criminal objectives, i.e., (1) to effect an escape (count 11), and (2) to obtain from the gun locker a firearm to use to commit assault with a firearm upon Van Wie so that Van Wie might be forced to kill a despondent appellant.
As for counts 13 and 11, similarly, the trial court reasonably could have concluded that appellant’s bringing of the shank into the jail (count 13) was antecedent to his attempt, once he was inside jail, to escape by force or violence (count 11); therefore, appellant’s criminal objective in bringing the shank into jail was different from his criminal objective in attempting to escape. (Cf. People v. Jones, supra, 103 Cal.App.4th at pp. 1142-1149.) And again, the trial court reasonably could have concluded that appellant brought the shank into jail with multiple alternative criminal objectives, i.e., (1) to effect an escape, and (2) to obtain from the gun locker a firearm to use to commit assault with a firearm upon Van Wie so that Van Wie might kill appellant.
We reject appellant’s arguments that Penal Code section 654 barred multiple punishment on counts 7, 10, 11, 12, and 13. (Cf. People v. Latimer (1993) 5 Cal.4th 1203, 1211; People v. Bradley (2003) 111 Cal.App.4th 765, 769, fn. 3; People v. Jones, supra, 103 Cal.App.4th 1139, 1143; People v. Nguyen (1988) 204 Cal.App.3d 181, 190.)
6. The Trial Court Erred by Imposing a Full Three-Year Term As to Count 12.
As mentioned, the trial court imposed as to count 12 (custodial possession of a weapon), a consecutive middle term of three years. Respondent concedes this was error and that the trial court should have imposed as to count 12 a consecutive subordinate term of one year (as one-third the middle term of three years). (Pen. Code, §§ 1170.1, subd. (a), 4502, subd. (a), see fn. 6, ante.) We will modify the judgment accordingly.
7. Appellant’s Sentence Must Be Clarified and the Minutes and Abstract of Judgment Must Be Amended.
There is no dispute that, when ruling on appellant’s motion for a new trial, as well as during sentencing, the trial court erroneously associated counts 1 and 2 with Kamel and Kurbessoian, respectively, instead of associating counts 1 and 2 with Kurbessoian and Kamel, respectively. The April 8, 2008 sentencing minute order, and the abstract of judgment, reflect these ruling and sentencing errors as well.
Moreover, there is no dispute that as to count 12, the abstract of judgment erroneously reflects the offense as “poss wpn court meeting,” (capitalization omitted), i.e., possession of a weapon in a courthouse or open meeting (Pen. Code, § 171b, subd. (a)), although the abstract of judgment should reflect that the offense was custodial possession of a weapon.
We will modify the judgment accordingly with directions to the trial court to amend the abstract of judgment.
DISPOSITION
The judgment is modified by modifying appellant’s sentence to reflect that (1) counts 1 and 2 pertained to victims Garabet Kurbessoian and Nagwa Kamel, respectively; as to count 1 (Kurbessoian), the court sentenced appellant to prison for attempted murder for the upper term of nine years plus, pursuant to Penal Code section 12022.53, subdivision (c), a term of 20 years; and as to count 2 (Kamel), the court sentenced appellant to prison for attempted willful, deliberate, and premeditated murder for life with the possibility of parole plus, pursuant to Penal Code section 12022.53, subdivision (c), a term of 20 years; (2) as to each of counts 3 and 4, appellant is sentenced to prison for a consecutive subordinate term of six years eight months; (3) execution of sentence on count 10 (assault with a deadly weapon) is stayed pending completion of appellant’s sentence on his remaining convictions, such stay then to become permanent; and (4) as to count 12, appellant is sentenced to prison for a consecutive subordinate term of one year, and, as so modified, the judgment is affirmed.
The trial court is directed (1) to amend its April 8, 2008 sentencing minute order to reflect that the trial court granted appellant’s motion for a new trial as to count 1 (Kurbessoian) to the extent the trial court set aside the premeditation and deliberation finding pertaining to count 1, but denied the motion as to count 2 (Kamel), and (2) to forward to the Department of Correction an amended abstract of judgment reflecting the above modifications to the judgment and reflecting that appellant’s offense as to count 12 is custodial possession of a weapon.
We concur: KLEIN, P. J., CROSKEY, J.