Opinion
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. CR0600610
Mihara, J.
Defendant Andrew Lopez appeals from a judgment of conviction entered after he pleaded no contest to carjacking (Pen. Code, § 215, subd. (a) – count three), assault with a deadly weapon (§ 245, subd. (a)(1) – count four), and assault on a peace officer (§ 148 – count five). Defendant also admitted that count four was “committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members” (§ 186.22, subd. (b)(1)) and that he personally inflicted great bodily injury on a person in the commission of count four. (§ 12022.7, subd. (a).) The trial court sentenced defendant to 18 years in state prison. We conclude that the trial court did not err under section 654 and affirm the judgment.
All further statutory references are to the Penal Code.
The statement of facts is based on the probation officer’s report, the police reports, and the interview with the victim.
At approximately 9:45 p.m. on April 6, 2006, Sheriff’s Deputy Mike Mull was dispatched to a residence where he found Carlos Gonzalez holding his side and bleeding profusely. Gonzalez stated that defendant, who was wearing a San Francisco 49er’s shirt, approached him and asked whether he was a Sureno gang member. Gonzalez replied that he was not. Defendant told Gonzalez that he was a Northerner.
Gonzalez eventually agreed to give defendant a ride to his cousin’s house. Before they arrived at their destination, defendant told Gonzalez to stop the car. After Gonzalez stopped, defendant pulled out a knife and said, “‘Give your car or you will get blood.’” Defendant then stabbed Gonzalez in the right side of his abdomen. As Gonzalez exited his vehicle, defendant stabbed him in the back. Defendant then drove away in Gonzalez’s vehicle and Gonzalez ran to a nearby residence where he summoned help.
Other deputies were later dispatched to the scene of a hit-and-run collision involving Gonzalez’s car. While Mull was en route to the scene, he was advised that a woman had reported that a man with a knife was trying to get into her house. Mull and other deputies went to that address, and located defendant behind a fence. Defendant hit one of the deputies, but was eventually arrested. During the search of defendant’s residence pursuant to a warrant, deputies found gang indicia.
II. Discussion
Defendant claims that he stabbed Gonzalez to gain control of his car and that his “attack on Gonzalez ceased as soon as Gonzalez abandoned any attempt to resist.” Thus, he argues that since his convictions for carjacking (count three) and assault (count four) were parts of an indivisible course of conduct, the trial court erred in failing to stay his sentence for count four pursuant to section 654.
Section 654 provides in relevant part: “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.” (§ 654, subd. (a).) Thus, “[s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) Whether multiple offenses are incident to one objective “depends on the intent and objective of the actor.” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The trial court’s determination that a defendant maintained multiple criminal objectives is a question of fact which must be upheld if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) Where a term is prohibited under section 654, the proper procedure is to impose and stay sentence. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.)
Here, there was substantial evidence to support the finding that defendant had multiple objectives. Defendant said, “‘Give your car or you will get blood,’” and stabbed Gonzalez in the abdomen. Thus, defendant stabbed Gonzalez once to obtain possession of the car. However, Gonzalez abandoned any attempt to resist when he was exiting his vehicle. It was at this point that defendant stabbed Gonzalez in the back. In committing this assault, defendant’s objective was no longer to obtain possession of the vehicle. Instead, defendant committed a gratuitous act of violence that required separate punishment. Accordingly, the trial court properly sentenced defendant to serve a separate term of imprisonment for count four.
Defendant also claims that the trial court and both counsel agreed at the change of plea hearing that counts three and four were part of the same indivisible course of conduct. We disagree with this characterization of the record. At this hearing, the following colloquy occurred: “THE COURT: Now, the maximum sentence for Counts 3, 4 and 5 with all of the special allegations would be that you would -- now this also, as I understand it, Count 3 and Count 4 would be part of the same indivisible conduct, do you agree, Counsel? [¶] [PROSECUTOR]: There may be a 654 issue. [¶] [DEFENSE COUNSEL]: Yes.” Thus, the prosecutor did not agree that section 654 applied to counts three and four. When the sentencing hearing was held over two months later, neither the prosecutor nor defense counsel raised the issue of section 654. Moreover, in imposing sentence, the trial court impliedly found that one of the two incidents of stabbing was not incidental to or a means to accomplish the carjacking. Accordingly, there was no agreement that these counts constituted an indivisible course of conduct.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.