Opinion
H044729
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. DARRYL POTEAT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1556950 )
In September 2015, defendant Darryl Poteat and another man robbed a Morgan Hill video game store. An employee and five customers, including a seven-year-old boy, were present during the robbery. Defendant and his accomplice stole their wallets and cell phones and forced them into a storage closet.
A jury convicted defendant of four counts of second degree robbery, six counts of kidnapping, and one count of trespassing. The trial court sentenced defendant to a third strike sentence of 33 years to life consecutive to eight years. On appeal, defendant challenges the sufficiency of the evidence supporting his kidnapping convictions and asserts various challenges to his sentence. We reverse one of defendant's kidnapping convictions and remand for resentencing.
I. BACKGROUND
A. Factual Summary
1. The Robberies
On September 5, 2015, J.L. was at work at GameStop, a video game store in Morgan Hill. At about 10:40 that morning, J.L. was organizing merchandise and chatting with his friend, Kevin F., who had come in to make a purchase. A man dressed in dark clothing with a black bandana over his nose and mouth and his head covered by a hat and hoodie entered the store. While pointing what appeared to be a handgun at J.L. and Kevin, the man told them to get in the storage room at the back of the store. A second man, who was dressed similarly to the first, entered. Kevin was made to lie down on his stomach and his hands were tied behind his back. At some point, his cell phone was taken from his back pocket.
To protect personal privacy interests, we refer to the victims by their first names and last initials or by initials only. (Cal. Rules of Court, rule 8.90.)
Meanwhile, one of the men forced J.L. to move from the storage room to the cash register, open it, and put cash into a plastic bag. J.L. then was forced back into the storage room and made to unlock the console room, a smaller room accessible from the storage room where big ticket items—like video game consoles—were kept. At the direction of one of the men, J.L. removed game consoles from the console room.
Jaymie E. and her seven-year-old son entered the store to make a return. As they waited at the counter for an employee to help them, a man wearing a gray hoodie with a black handkerchief over his face and carrying a gun came out of the back. The man told Jaymie: "Get in the back. I'm not going to hurt your boy. Just get in the back. Give me your phone and give me your wallet." The man took Jaymie's cell phone and wallet. She and her son then went into the storage room, as instructed, and sat down while J.L. removed merchandise from the console room. After a short time, the masked men made Jaymie, her son, Kevin, and J.L. get into the console room.
Leah C. and her boyfriend Michael N. also entered the GameStop while the robbery was in progress. They were looking at video games near the front of the store when a man with a black bandana over his face approached, told them to "get in the back," and "herd[ed]" them into the storage room at gunpoint. Leah estimated that she walked 40 or 50 steps from the front of the store to the storage room. In the storage room, a second masked and armed man told them to empty their pockets. Leah had nothing with her; Michael handed over his wallet. The men then told Leah and Michael to get in the console room; they noticed there were already other people inside.
The men closed the door to the console room. After several minutes, J.L. decided to check and see if the men were gone. They were. The customers exited the console room and called the police.
2. Witness Tip Leads to Identification of Defendant as a Suspect
The Morgan Hill GameStop is located in the same shopping complex as a Target. At about 10:00 a.m. on September 5, 2015, M.N. was walking from the parking lot toward the Target when a beat-up red Buick attracted his attention. M.N., a criminal investigator for the Santa Clara County District Attorney with 25 years of experience as a San Jose Police detective, noticed that the vehicle was driving around the parking lot, but that the driver did not appear to be looking for a parking spot. Instead, the driver and the passenger—both black males—were staring straight ahead and appeared focused. M.N. thought their behavior was suspicious and decided to watch the Buick. According to M.N., the vehicle circled the Target and then parked near a row of stores that included a GameStop. After parking, the two men sat in the vehicle. M.N. took down the Buick's license plate number, which he recorded as 5AJR758. He watched for about five minutes, during which the men remained in the car, before going into Target to complete his shopping.
According to M.N.'s Target receipt, he checked out at 10:41 a.m. On the way to his vehicle, M.N. looked in the direction of the Buick. He saw two individuals wearing baseball hats with hoodies pulled up over them and carrying plastic bags run towards the Buick and get in it.
3. Defendant's Apprehension After Fleeing Police
Police responded to the GameStop. M.N. provided responding officers with a description of the red Buick and the vehicle's license plate number. A records check indicated that the Buick was associated with the address of a nearby apartment complex. Officers responded to the apartment complex to conduct surveillance. Just before 1:00 p.m. on the day of the robbery, officers observed a red Buick driven by a black male approach the apartment complex. The driver parked the vehicle, exited, and ran.
The Santa Clara Sheriff's Office SWAT team responded to assist the Morgan Hill Police Department. Officers searched each apartment in the six-unit apartment building. Early the following morning, officers entered the final unsearched apartment—unit No. 9. When they did, defendant surrendered.
4. The Investigation
Defendant's girlfriend testified that she and defendant lived at the apartment complex in question, in unit No. 10. She owned a maroon Buick with license plate number 5AJR758; she shared the Buick with defendant.
In the apartment defendant shared with his girlfriend, police discovered a large hole in the ceiling and a step ladder directly below the hole. Police also discovered a hole in the sheet rock dividing the attic space above unit No. 10 from the attic space above unit No. 9. And police observed damage to the ceiling of unit No. 9, where they found defendant the morning following the robbery.
Police searched the red Buick. Inside the center console, they found two rolls of cash (totaling $395) and two cell phones. Officers found two gray Sharks hats in the car. A "pistol type pellet gun" was found in the pocket on the back of the front passenger seat. In the trunk, officers discovered two Xbox consoles, a PlayStation 4 console, and an Xbox controller. All of the items were in boxes.
Police recovered the rope used to tie up Kevin from the GameStop. Defendant's DNA was found on that rope.
B. Procedural History
The Santa Clara County District Attorney charged defendant with four counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) for robbing J.L. (count 1), Kevin (count 3), Jaymie (count 5), and Michael (count 9); six counts of kidnapping (§ 207, subd. (a)) for kidnapping J.L. (count 2), Kevin (count 4), Jaymie (count 6), Jaymie's son (count 7), Leah (count 8), and Michael (count 10); and one count of misdemeanor trespassing (§ 602.5, subd. (a); count 11). For purposes of count 7, it was alleged that the victim was under the age of 14 (§ 208, subd. (b)). The information further alleged that defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (§ 667, subd. (a)) and had served two prior prison terms for violent felonies (§ 667.5, subd. (a)).
All further statutory references are to the Penal Code unless otherwise noted.
The case proceeded to a jury trial in February 2017. After deliberating for under two hours, jurors returned guilty verdicts on all counts and found true the allegation that Jaymie's son was under 14 years old. On February 24, 2017, the court struck one of the prior prison term allegations (§ 667.5, subd. (a)) at the prosecutor's request. Defendant then admitted the remaining prior conviction allegations.
On April 10, 2017, the trial court denied defendant's motion to dismiss his prior strike convictions under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and imposed a third-strike sentence of 33 years to life, consecutive to eight years. The court imposed an indeterminate term of 33 years to life on count 7—the aggravated term of 11 years (§ 208, subd. (b)) tripled by the Three Strikes law (§ 667, subd. (e)(2)(A)(i))—plus five years for the prior serious felony enhancement (§ 667, subd. (a)) plus three years for the violent felony prior prison term (§ 667.5, subd. (a)). On each of the remaining felony counts (counts 1-6 and 8-10), the court imposed a concurrent term of 25 years to life consecutive to eight years (five years for the prior serious felony enhancement (§ 667, subd. (a)) plus three years for the violent felony prior prison term (§ 667.5, subd. (a)). As to the count 11 misdemeanor, the court imposed a concurrent term of 364 days, which it deemed served.
The court properly enhanced each of the indeterminate terms by five years pursuant to section 667, subdivision (a), plus three years pursuant to section 667.5, subdivision (a). (See People v. Tua (2018) 18 Cal.App.5th 1136, 1141 ["Prior serious felony enhancements are added once to each count on which an indeterminate sentence is imposed and once for the combined counts on which an aggregate determinate term has been imposed."]; (People v. Minifie (2018) 22 Cal.App.5th 1256, 1263-1265 [holding the same rule applies to section 667.5 enhancements].)
The court also imposed various fines and fees, including a $10,000 restitution fine (§ 1202.4, subd. (b)(2)); a $10,000 parole revocation restitution fine, which was suspended pending successful completion of parole (§ 1202.45); a $1,200 court operation assessment (also known as a court security fee) (§ 1465.8); and a $300 court facilities assessment (also known as a criminal conviction assessment) (Gov. Code, § 70373). Finally, defendant was ordered to pay victim restitution in the amounts of $288.64 to J.L., $75 to Michael, $1,275 to Kevin, and $46,612.89 to the apartment complex.
The oral pronouncement of judgment, the minute order, and the abstract of judgment are inconsistent with respect to the amounts of the court operation and court facilities assessments. The court orally imposed a $1,200 court operation assessment, the minute order indicates a $440 court operation assessment, and the abstract of judgment indicates a $430 court operation assessment. The court orally imposed a $300 court facilities assessment; the minute order and abstract of judgment indicate a $330 court facilities assessment. We need not resolve these discrepancies, given we are remanding for resentencing. We note, however, that a $40 court operation assessment is to be imposed on every conviction for a criminal offense, except parking offenses (§ 1465.8, subd. (a)) and a $30 court facilities assessment is to be imposed on every conviction for a misdemeanor or felony, except parking offenses (Gov. Code, § 70373).
Defendant's liability for the victim restitution is joint and several with his codefendant, who reached a negotiated plea before trial.
II. DISCUSSION
A. Sufficiency of the Evidence Supporting the Kidnapping Convictions
Defendant argues that his convictions for kidnapping are unsupported by sufficient evidence. Specifically, he says there was no substantial evidence of the asportation element of simple kidnapping because his movement of the victims to the back of the store was merely incidental to the robbery. We agree as to the employee but disagree as to the customers.
1. Legal Principles and Standard of Review
Section 207, subdivision (a) provides: "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." " 'To prove a defendant guilty of kidnapping, the prosecution must establish that (1) the defendant took, held, or detained another person by using force or by instilling reasonable fear; (2) using that force or fear, the defendant moved the other person, or made the other person move a substantial distance; and (3) the other person did not consent to the movement.' [Citations.] The second element, that the victim be moved a substantial distance, is called the asportation element. [Citation.]" (People v. Perkins (2016) 5 Cal.App.5th 454, 464-465 (Perkins).) "To establish asportation for a simple kidnapping, the prosecution must prove the victim's movement was ' "substantial in character." ' " (Id. at p. 465.) The trier of fact determines whether the movement was substantial in character by considering the totality of the circumstances. (Ibid.) Relevant considerations include the actual distance the victim was moved; whether that movement increased the risk of harm to the victim by, for example, decreasing the likelihood of detection, increasing the danger of foreseeable escape attempts, or giving the attacker the opportunity to commit additional crimes; and, in a case involving an associated crime, whether the distance the victim was moved was incidental to the commission of that crime. (Id. at pp. 465-466; CALCRIM No. 1215; People v. Martinez (1999) 20 Cal.4th 225, 233 (Martinez), overruled on other grounds in People v. Fontenot (2019) 8 Cal.5th 57.)
Whether a movement was incidental to the commission of the underlying crime depends on the context of the environment in which the movement occurred. (People v. Dominguez (2006) 39 Cal.4th 1141, 1151 (Dominguez).) "[W]hen in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him—whether it be a residence, . . . or a place of business or other enclosure—" the movement "generally" will be deemed incidental to the robbery itself. (Daniels, supra, 71 Cal.2 at p. 1140.) For example, in People v. Washington (2005) 127 Cal.App.4th 290, 299 (Washington), the Court of Appeal concluded that the movement of two bank employees a distance of 15 feet within the bank was incidental to the underlying bank robbery "because the movement occurred entirely within the premises of the bank and each victim moved the shortest distance between their original location and the vault room. Thus, there was no excess or gratuitous movement of the victims over and above that necessary to obtain the money in the vault. Also, given that the cooperation of two bank employees was required to open the vault, the movement of both [victims] was necessary to complete the robbery." (Id. at p. 299.) The Washington court derived the following rule from caselaw: "robbery of a business owner or employee includes the risk of movement of the victim to the location of the valuables owned by the business that are held on the business premises. Many retail businesses hold large amounts of cash or other valuable personal property on the business premises, frequently in a secure area away from public view, often in a safe or a vault. . . . The fact thresholds within the business are crossed cannot elevate robbery to aggravated kidnapping, given that all of the movement occurred within close proximity to where the robbery commenced and the only thresholds crossed were those that separated appellants from the [business's] property." (Id. at p. 300.)
We recognize that Dominguez and many of the other cases we cite here address section 209, subdivision (b), which proscribes kidnapping to commit robbery or certain sex offenses (i.e., aggravated kidnapping). Aggravated kidnapping requires that "the movement of the victim [be] beyond that merely incidental to the commission of . . . the intended underlying offense." (§ 209, subd. (b)(2).) This case, of course, involves simple kidnapping, not aggravated kidnapping. We nevertheless rely on aggravated kidnapping cases because, for purposes of determining whether a movement of a victim is incidental to the commission of the underlying or associated crime, the analysis is identical under section 207 and 209. (See People v. Salazar (1995) 33 Cal.App.4th 341, 347, fn. 7 [" 'incidental to' analysis [in section 207 case] applies with equal force in an aggravated kidnapping case"]; Martinez, supra, 20 Cal.4th at p. 237 [citing cases decided under section 207 and section 209 in support if its holding that a jury should consider whether the movement was incidental to the associated crime in a section 207 case]; People v. Daniels (1969) 71 Cal.2d 1119, 1131 (Daniels) [with respect to the issue of incidental movement, the distinction between simple kidnapping under section 207 and aggravated kidnapping under section 209 is one "without a difference"].) What differs between the two statutory provisions is the implication of a finding that a movement was merely incidental. Such a finding compels a not guilty verdict on an aggravated kidnapping charge, as section 209, subdivision (b) "only appl[ies] if the movement of the victim is beyond that merely incidental to the commission of . . . the intended underlying offense." (209, § subd. (b)(2).) By contrast, such a finding does not preclude a guilty verdict on a simple kidnapping charge, as whether the movement was incidental is "simply one of several factors to be considered . . . under the 'totality of circumstances' test . . . . " (People v. Bell (2009) 179 Cal.App.4th 428, 440 (Bell).)
In People v. Hoard (2002) 103 Cal.App.4th 599, 607 (Hoard), the Court of Appeal held that the movement of two jewelry store employees a distance of 50 feet to the office at the back of the store was merely incidental to the robbery. The court reasoned that "[c]onfining the [employees] in the back office gave defendant free access to the jewelry and allowed him to conceal the robbery from any entering customers who might have thwarted him. Defendant's movement of the two [employees] served only to facilitate the crime with no other apparent purpose." (Ibid.)
However, circumstances exist "in which a robber can properly be convicted of kidnaping even though he does not take his victim outside the premises in question." (People v. Timmons (1971) 4 Cal.3d 411, 415.) Such was the case in People v. Vines (2011) 51 Cal.4th 830 (Vines), overruled on other ground by People v. Hardy (2018) 5 Cal.5th 56, 104). There, during the robbery of a McDonald's restaurant, the defendant moved four employees from the back of the restaurant downstairs to the basement and into a freezer, where he locked them inside. (Vines, supra, at p. 870.) Our Supreme Court concluded that the movement of the victims was not "merely incidental" to the commission of the robbery. (Id. at p. 871.) And in People v. Leavel (2012) 203 Cal.App.4th 823, 836, the Court of Appeal concluded there was sufficient evidence that the defendant's "forcible movement of [the victim] was not 'merely incidental' to the commission of the robbery," where the six-foot-tall, 250-pound defendant moved the 69-year-old victim around her home by grabbing her neck and arm. The court reasoned that the defendant "had no cause to manhandle [the cooperative victim] to achieve his robbery objective." (Ibid.)
Generally, "[k]idnapping is punishable by imprisonment in the state prison for three, five, or eight years." (§ 208, subd. (a).) But "[i]f the person kidnapped is under 14 years of age at the time of the commission of the crime, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years." (§ 208, subd. (b).)
"[W]e 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." (People v. Cortes (1999) 71 Cal.App.4th 62, 71.) "In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (Ibid.)
2. Analysis
To establish the asportation element of the simple kidnapping charges, the prosecution was required to prove that the victims' movement was substantial in character based on the totality of the circumstances. (Perkins, supra, 5 Cal.App.5th at p. 465.) Defendant misstates the law when he contends that the prosecution could not establish the asportation element without showing that the movement was not incidental to the commission of the robbery. Instead, as noted above, whether or not the movement was incidental to the robbery was "simply one of several factors to be considered by the jury (when permitted by the evidence) under the 'totality of circumstances' test . . . . The factor is not a separate threshold determinant of guilt or innocence, separated from other considerations bearing on the substantiality of the movement . . . ." (Bell, supra, 179 Cal.App.4th at p. 440.) Accordingly, in analyzing defendant's sufficiency of the evidence challenge, we consider not just whether the movement was incidental to the associated crime (the robbery), but all the factors relevant to the totality-of-the-circumstances analysis.
The relevant circumstances are different for the employee and the customers because the defendant needed to move the employee to gain access to the store's valuables. The same cannot be said of the customers. We therefore conduct two totality-of-the-circumstances analyses—one for the employee and one for the customers.
a. The Employee
We begin by considering the movement of the employee. The robbers forced the employee to move from the cash register to the storage room, where they tied up his friend. The employee then was forced back to the cash register where he was made to put money into a bag. Next, the employee was forced back to the storage room where he was made to unlock the console room, remove game consoles, and give them to one of the robbers. Finally, the employee (along with the customers) was made to get into the console room. The robbers closed, but did not lock, the door to the console room.
The parties point to no evidence in the record as to the actual distance of these movements and we have found none. All the movements were within the confines of the video game store, so we can deduce that the movements were over distances of feet or tens of feet.
The robbers moved the employee "to the location[s] of the valuables owned by the business that are held on the business premises"—namely, to the cash register and the console room. (Washington, supra, 127 Cal.App.4th at p. 300.) As in Washington, all "the movement occurred entirely within the premises of the [store]" and "the cooperation of . . . [the] employee[] was required to open the [register and the console room], [such that] the movement of [the employee] was necessary to complete the robbery." (Id. at p. 299.) In contrast to Washington, there were some arguably "gratuitous movement[s]" of the employee. (Ibid.) Specifically, the initial movement from the register to the storage room and then back to the register, as well as the final movement from the storage room into the console room were not strictly necessary to obtain the money and merchandise. That said, the movement of the employee into the console room was analogous to the movement of the employees to the office at the back of the store in Hoard, a movement that was held to be was merely incidental to the robbery. "Confining the [employee] in the [console room] served only to facilitate the crime" by enabling the robbers to make their getaway "with no other apparent purpose." (Hoard, supra,103 Cal.App.4th at p. 607.) Accordingly, we conclude that Washington and Hoard govern and that the movement of the employee was incidental to the robbery.
It follows from our conclusion that the movements of the employee were incidental to the robbery that those movements "did not substantially increase the risk of harm [to the employee] beyond that inherent in the robber[y itself]." (People v. Adame (1971) 4 Cal.3d 417, 418; Daniels, supra, 71 Cal.2d at p. 1140 [same]; People v. Mutch (1971) 4 Cal.3d 389, 397-399 [30 to 40 foot movements of company employees during robberies held "merely incidental to the robberies" and found not to have "substantially increase[d] the risk of harm beyond that inherent in the robberies themselves" even where employees "were repeatedly struck with a gun" because "[p]istol-whipping, unfortunately, is a risk inherent in the crime of armed robbery"].)
In sum, defendant's conviction in count 2 of kidnapping the employee was not supported by sufficient evidence and, therefore, cannot stand.
b. The Customers
Defendant and his accomplice forcibly moved the customers from the store to the storage room and ultimately into the console room. Again, the record contains no measurements as to the actual distance each customer was moved. One of the customers, Leah, estimated that she was moved a distance of 40 or 50 steps.
Unlike the movement of the employee, the movement of the customers was not incidental to the robbery. Whereas the robbers needed the employee to move to and open the register and the console room, movement of the customers was not necessary to complete the robbery. That "[l]ack of necessity is a sufficient basis to conclude [that the movement was] not merely incidental . . . ." (People v. James (2007) 148 Cal.App.4th 446, 455 (James).)
Finally, jurors reasonably could have concluded that the movement of the customers increased the risk of harm—both physical and psychological—to those customers. (See CALCRIM No. 1215 [risk of harm refers to both physical and psychological harm].) The movement reduced the possibility of escape by increasing the distance between the customers and the front exit and confining them to a smaller space where the robbers could more easily guard them all. The movement also decreased the likelihood of detection by passersby or other customers. And jurors reasonably could have inferred that being herded into a small room by masked men at gunpoint increased the risk of (if not inflicted actual) psychological harm on the customers, particularly the seven-year-old boy.
Based on the totality of the circumstances discussed above, sufficient evidence supports the jury's finding that the movement of the customers was substantial in character. Put differently, substantial evidence supports the asportation element of the kidnappings charged in counts 4, 6, 7, 8, and 10.
B. Section 654
Defendant argues that his sentence violates section 654, subdivision (a), which precludes multiple punishment. In particular, he maintains that he kidnapped Kevin (count 4), Jaymie (count 6), and Michael (count 10) with the single objective of robbing them and the store, such that the trial court erred in punishing him for both kidnapping and robbing each of those victims. Instead, says defendant, the court was required to stay punishment on either the robbery convictions (counts 3, 5, and 9) or the kidnapping convictions (counts 4, 6, and 10). We agree.
1. Statutory Principles and Standard of Review
Section 654 provides, in relevant part, "[a]n 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." "[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor." (People v. Perez (1979) 23 Cal.3d 545, 551.) If multiple offenses were incident to one objective, the defendant may not be punished for more than one. Thus, a defendant who attempts murder by setting fire to the victim's bedroom may not be punished for both arson and attempted murder, because his primary objective was to kill, and the arson was the means of accomplishing that objective and thus merely incidental to it. (Ibid.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (Ibid.) For example, the objectives to drive while intoxicated and to drive with a suspended license were separately punishable, though they occurred simultaneously. (Id. at p. 552.) The purpose of the protection against multiple punishments is to ensure that the defendant's punishment will be commensurate with his criminal culpability. (Id. at p. 551, fn. 4.)
Whether a defendant's multiple crimes involved multiple objectives generally is a question of fact for the sentencing court. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Where, as here, the trial court makes no express findings on the issue, its imposition of separate sentence terms may constitute an implied finding that the offenses were divisible. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) "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." (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
2. Analysis
Where a defendant commits one crime for the sole purpose of facilitating his commission of a second crime, section 654 applies and prohibits punishing the defendant for both crimes. (See People v. Hensley (2014) 59 Cal.4th 788, 828 [where victim was shot solely to "facilitate" robbery, section 654 precluded punishing defendant for both attempted murder and robbery]; People v. Nguyen (1988) 204 Cal.App.3d 181, 191 (Nguyen) [section 654 applies where a defendant commits "a criminal act in order to accomplish another"].) Here, the evidence shows defendant's intent was to obtain money and property from the video game store and its patrons. He and his accomplice moved the victim from the store to the storage room and then into the console room to facilitate the robberies. Substantial evidence does not support the trial court's implied finding that defendant harbored any objective other than stealing money and property. (See People v. Latimer (1993) 5 Cal.4th 1203, 1216 [defendant who drove the victim against her will to an isolated area and raped her could not be punished for both the rapes and the kidnapping where the evidence did "not suggest any intent or objective behind the kidnapping other than to facilitate the rapes"].)
At first blush, it might appear that the foregoing conclusion—that the kidnappings were carried out solely to facilitate the robberies such that multiple punishment is barred by section 654—is inconsistent with our prior conclusion that the movement of the customers was not incidental to the robbery. It is not. The movement of a robbery victim may facilitate a robbery and yet not be incidental to it. (See In re Earley (1975) 14 Cal.3d 122, 130 ["movements to facilitate [robbery or rape] that are for a substantial distance rather than brief are not incidental thereto"]; James, supra, 148 Cal.App.4th at pp. 454-455 ["Standing alone, the fact that the movement of a robbery victim facilitates a robbery does not imply that the movement was merely incidental to it"].)
The Attorney General contends multiple punishment is permitted here because defendant inflicted an act of gratuitous violence against the victims when, after obtaining the money and property, he forced them into the console room. We are not persuaded. Courts have held that section 654 "cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense. Once robbers have neutralized any potential resistance by the victims, an assault or attempt to murder to facilitate a safe escape, evade prosecution, or for no reason at all, may be found by the trier of fact to have been done for an independent reason." (Nguyen, supra, 204 Cal.App.3d at p. 191.) But this case did not involve assault or attempt to murder the victims. Nor does the act of requiring the victims to enter the cramped console room and closing, but not locking, the door constitute the sort of violence addressed by the rule in Nguyen. (See id. at p. 190 [defendant's accomplice shot the victim after robbing him and forcing him to lie on the floor]; People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272 [following Nguyen and holding § 654 did not bar punishment for robbery and attempted murder where defendant "repeatedly hit his 66-year-old feeble, unresisting victim on the head and body with a two-by-four board," using "far more [force] than necessary to achieve" the robbery].) Instead, it was an act reasonably calculated to facilitate the carrying away of the stolen property.
In sum, we conclude that the trial court erred by imposing sentence for both robbery and kidnapping of Kevin, Jaymie, and Michael. The proper remedy for failing to apply section 654 is to stay the execution of the sentence imposed for the offense carrying the lesser punishment. Here, defendant was sentenced under the Three Strikes law to 25-years-to-life terms on each of the relevant counts (3-6, 9, and 10). As discussed in the following section, remand for resentencing is required. Accordingly, we shall direct the trial court on remand to select the offenses for which execution of sentence will be stayed.
C. Remand for the Exercise of Sentencing Discretion
Defendant admitted the allegation that he had suffered a prior serious felony conviction and the trial court enhanced each of the indeterminate terms by five years pursuant to section 667, subdivision (a), as it was statutorily required to do at the time of defendant's sentencing. (Former § 667, subd. (a)(1) ["In compliance with subdivision (b) of [s]ection 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively"]; former § 1385, subd. (b) ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667"].) Sections 667, subdivision (a) and 1385, subdivision (b) have since been amended to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2; People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)
The amendments to sections 667, subdivision (a) and 1385, subdivision (b) apply retroactively to defendant because his case was not final at the time they took effect. (Garcia, supra, 28 Cal.App.5th at p. 973; People v. Jones (2019) 32 Cal.App.5th 267, 272 (Jones); People v. Jimenez (2019) 32 Cal.App.5th 409, 426; see In re Estrada (1965) 63 Cal.2d 740, 744 ["If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies"].)
The parties dispute whether remand is appropriate in this case. " 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, [our Supreme Court has] held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Below, the People argued for a sentence of 58 years to life consecutive to eight years and the defense requested a 19-year sentence. The trial court imposed a sentence of 33 years to life consecutive to eight years, as recommended by the Probation Department. The trial court made no statements from which we can infer that it would have declined to strike defendant's prior serious felony conviction for sentencing purposes if it had had the discretion to do so. (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining to remand for resentencing because "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence. . . . by imposing two additional discretionary one-year enhancements" and describing the defendant as " 'the kind of individual the law was intended to keep off the street as long as possible' "].) Given the trial court's decision not to impose the maximum sentence and the absence of any such statements, we conclude that remand is appropriate to allow the trial court to exercise its discretion as to whether to strike defendant's prior serious felony conviction for sentencing purposes.
D. Due Process Challenge to Fines and Fees
Defendant asserts that the trial court erred in imposing the court operations assessment (§ 1465.8) and the court facilities assessment (Gov. Code, § 70373) and failing to stay the $10,000 restitution fine (§ 1202.4, subd. (b)(2)) without determining whether he had an ability to pay those amounts, citing People v. Dueñas (2019) 30 Cal.App.5th 1157.
Defendant notes that he also was ordered to pay more than $46,000 in victim restitution. We do not understand defendant to be challenging the victim restitution order under Dueñas. To the extent that he is asserting such a challenge, we reject it. Dueñas did not address victim restitution under section 1202.4, subdivision (f), defendant cites no case extending Dueñas to victim restitution, and our own research has disclosed no such case. (People v. Evans (2019) 39 Cal.App.5th 771, 777 (Evans) [same].) Victim restitution under section 1202.4, subdivision (f) "implements the state constitutional mandate that 'all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.' [Citations.]" (Evans, supra, at p. 777.) Accordingly, we decline to extend Dueñas to victim restitution. (Id. at p. 777 [same].)
1. Forfeiture
Defendant concedes he did not object to the imposition of any of the challenged fines and fees below. "Section 1202.4, subdivision (b), requires a court to impose a restitution fine in an amount not less than $300 and not more than $10,000 in every case where a person is convicted of a felony unless it finds compelling and extraordinary reasons not to do so. Section 1202.4, subdivision (c), specifies a defendant's inability to pay is not a compelling and extraordinary reason to refuse to impose the fine, but inability to pay 'may be considered only in increasing the amount of the restitution fine in excess of the minimum fine [of $ 300].' . . . Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed. [Citations.] [¶] Here, the trial court imposed the maximum restitution fine. [Defendant] was thus obligated to object to the amount of the fine and demonstrate his inability to pay anything more than the $300 minimum. Such an objection would not have been futile under governing law at the time of his sentencing hearing. [Citations.]" (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1154.) Accordingly, defendant forfeited the argument that he is unable to pay the restitution fine. (Ibid.; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [where "the trial court imposed the statutory maximum restitution fine" and defendant failed to object in inability to pay grounds, Dueñas claims held forfeited]; People v. Lowery (2020) 43 Cal.App.5th 1046, 1053 [same].) Given that the restitution fine is significantly higher than the court operations and court facilities assessments, we likewise conclude defendant cannot now assert an inability to pay those lesser amounts. (Ibid.)
2. Ineffective Assistance of Counsel
Defendant contends that if an objection was necessary to preserve his challenge to the fines and fees, then trial counsel provided ineffective assistance in failing to object. To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
The record does not disclose why counsel did not request an ability to pay hearing or object to the $10,000 restitution fine on inability to pay grounds. There is no evidence that counsel was asked for and failed to provide an explanation. And we cannot say that there could be no satisfactory explanation for counsel's inaction. The record shows defendant had a history of employment and had significant family support. It is conceivable that he in fact has the ability to pay. Given the state of the record, defendant's ineffective assistance of counsel claim is "more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009; see People v. Keene (2019) 43 Cal.App.5th 861, 864-865 [rejecting claim that trial counsel was ineffective in failing to object to fines and fees on inability to pay grounds where the record shed no light on why counsel did not object].)
III. DISPOSITION
The judgment is reversed. On remand, the trial court shall strike defendant's conviction on count 2 due to insufficiency of the evidence and resentence defendant on the remaining counts, staying pursuant to Penal Code section 654 the sentences imposed for either counts 3, 5, and 9 or counts 4, 6, and 10 and exercising its discretion as to whether to strike defendant's prior serious felony conviction for sentencing purposes.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P. J. /s/_________
MIHARA, J.