Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI800206, John M. Tomberlin, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
A jury convicted defendant and appellant David Soloman Rosas of two counts of attempted carjacking (Pen. Code, §§ 664, 215), and one count of making a criminal threat (§ 422). The jury also found true the allegation as to all counts that defendant personally used a deadly or dangerous weapon. (§ 12022, subd. (b).) Defendant contends the sentence he received for his criminal threat conviction should have been stayed pursuant to section 654, and that his custody credits were improperly calculated. We agree, modify the judgment, and impose omitted court security fees.
All further statutory references are to the Penal Code unless otherwise indicated.
I. BACKGROUND
Around 11:00 p.m. on January 25, 2008, the victims (the driver and the passenger) drove to a closed gas station in a truck to move a friend’s stalled car into an adjacent parking lot. As the driver was walking from his truck to the stalled vehicle, he saw defendant 50 to 75 feet away. Defendant said, “What’s up ese.” The driver responded, “what’s up.” Defendant then told the driver, “come here.” Growing scared, the driver turned around and began walking back to his truck. Defendant then said, “come here you pussy.” The driver began running. Defendant ran after him. The driver ran to the passenger side bed of the truck. Defendant went to the driver’s side and told the driver, “I’m going to fuckin’ kill you.” As he was speaking, defendant “reached out his pocket and started lifting up his arms.” Afraid that defendant had a gun, the driver ducked down and ran toward a sheriff’s patrol car that was parked in the parking lot of a bar adjacent to the closed gas station. As he was running away, the driver looked back and saw defendant inside his truck. The door was open and defendant’s arm was raised toward the passenger.
The passenger had been waiting in the truck. She saw the driver “backing up and shaking his head.” Defendant then got in the truck. She noticed that defendant had something in his right hand; it looked like he had a gun. Defendant screamed something like “I’m going to kill you.” With his sweatshirt over the object, defendant pointed the object at the passenger’s head and kept yelling at the passenger until she exited the truck.
The driver located a sheriff’s deputy inside the adjacent bar. The deputy ran out of the bar and toward the truck. The deputy saw defendant in the truck pointing an object at the passenger, who had her hands up. After making eye contact with the deputy, defendant ran out of the truck. While being chased, defendant made a hand motion. The deputy then heard “what sounded like metal dragging across the ground.” The deputy caught up to defendant and apprehended him. Defendant admitted to the deputy that “he was armed with a box-blade knife.” Defendant told the deputy that he “chose” the driver because defendant “believed that if he attempted to take [the driver’s] vehicle, he’ll be an easy target. He wouldn’t give any resistance.” Defendant also admitted that he told the driver that he was going to kill him, but claimed “he really didn’t mean it.” A search of the gas station resulted in the recovery of a “box-cutter style type knife.”
The People stated during closing that, “in the statements made to [the deputy], [defendant] identified that he intended to take the vehicle. He knew that he wanted to take the vehicle, and he knew that [the driver] was one of the people who could stop him, because it was in his possession at the time. [¶]... [¶]... One of the means that the defendant used to take the vehicle or attempt to take the vehicle was to expose the box cutter in the way it was pointed at [the driver]. [¶] This element goes a little bit to both the taking of the motor vehicle and the intent behind it. Intent can be seen, because as noted in the testimony, [the driver] was not chased. Instead, once [defendant] had effectively made [the driver] run from the scene in fear of his life, he got into the vehicle. He didn’t chase [the driver]. He didn’t want to continue to chase him with that weapon. His intent was to scare him, get him out of the area and enter into the vehicle.”
In distinguishing the two carjacking counts, the People stated: “[The driver] was in possession of the vehicle. Defendant... knew it. That’s why he sought him first. That’s why he threatened him first.”
In discussing defendant’s intent, the People stated: “His intent was not to chase down these people, not to chase down [the passenger] or [the driver]. His intent was to take that vehicle. [¶]... We have a statement made by [defendant] to the victim, ‘I’m going to kill you.’ It’s very direct. It’s effective for the information that [defendant] wanted to convey to [the driver]. It was effective. It made [the driver] flee from the scene. Additional force was used on [the driver]. Perhaps [defendant] felt that telling someone he is going to kill him when he was only five feet away from him was not enough. [¶] After causing [the driver] to step back to retreat back to his car instead, ‘I’m going to kill you’ is not enough.” “Defendant tells [the deputy] why he wanted to take the vehicle—why he wanted to take [the driver’s] truck. He said, ‘I wanted to leave the area. My intention was to get in the vehicle, take it and go.’ ”
In addressing an intoxication defense to negate intent, the People stated during closing: “[Defendant] stated, ‘I intended to scare the victims. I did tell them that I was going to kill them. I didn’t want to hurt anybody, but I did tell them I was going to kill them. I did brandish a weapon, and they ran. And I wanted them to run because I wanted to take that car.’ ”
As “[c]riteria affecting the decision to impose consecutive rather than concurrent sentences,” the probation officers report stated: “(1) The crimes and their objectives were not predominantly independent of each other. [¶] (2) The crimes did involve separate acts of violence or threats of violence. [¶] (3) The crimes were not committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”
For the first carjacking conviction, defendant was sentenced to the aggravated term of four years six months, with an additional three-year consecutive sentence for the deadly weapon enhancement. For the second carjacking conviction, defendant was sentenced to 10 months consecutive (one-third the midterm), with an additional one year consecutive (one-third the midterm) for the deadly weapon enhancement. For the criminal threat conviction, defendant was sentenced to eight months consecutive (one-third the midterm), with one year consecutive (one-third the midterm) for the deadly weapon enhancement. Thus, a total term of 11 years was imposed. Only one court security fee was imposed.
The trial court stated that it made its decision “for the reasons that are stated in the probation report, [with which it concurs]. Each of those is separate and distinct. All of which require, in [the court’s] opinion, appropriately require separate and distinct punishment.”
II. SECTION 654
The first carjacking conviction and the criminal threat conviction were both as to the driver victim. Defendant contends that section 654’s prohibition on multiple punishment for the same act precluded a separate sentence for his conviction for making a criminal threat. Defendant’s specific contention is that the criminal threats were made as part of an indivisible course of conduct in attempting to take the truck. The People argue that defendant engaged in a series of spontaneous acts; threatening the driver to see how he would react, and then taking advantage of scaring the driver away by attempting to take the truck. Defendant contends the People are impermissibly changing their position and offering a new theory on appeal. We agree with defendant that there is no substantial evidence that defendant had an objective and intent other than taking the vehicle. Because we agree with defendant on the merits, we do not address the theory issue.
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) In determining whether the facts call for the application of section 654, the threshold inquiry is to determine the defendant’s objective and intent. (People v. Coleman (1989) 48 Cal.3d 112, 162.) When a court sentences a defendant to separate terms, it makes an implicit determination that the defendant held more than one criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) “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.)
The only direct evidence of intent is defendant’s statement to the deputy that he targeted the driver because he believed the driver would not give any resistance if he attempted to take the vehicle. The People’s theory of the case was explicitly stated in their closing argument: defendant intended to scare the victims so he could take the vehicle. The People now argue that the threats were spontaneous and that the decision to take the truck was spontaneous after the driver was scared off. However, defendant’s statements, “what’s up ese,” “come here,” and “come here you pussy” were not criminal threats under section 422. His criminal threat was stating, “I’m going to fuckin’ kill you,” as he appeared to reach for a weapon. The combination of this statement and the act of reaching are what established the element of force or fear in the attempted carjacking. Section 654 prohibits these acts from being punished twice. Nothing about the series of events and statements serves as circumstantial evidence that defendant harbored different criminal objectives. The only direct evidence of intent was defendant’s statement to the deputy that he threatened the driver so he could take the vehicle. Thus, there is no substantial evidence to support an implicit determination that defendant held more than one criminal objective.
Accordingly, the sentence on defendant’s conviction for criminal threats must be stayed pursuant to section 654.
III. CUSTODY CREDITS
Defendant was arrested on January 25, 2008, and sentenced on June 20, 2008. At the sentencing hearing, defendant was given credit for 141 actual days served, and 21 days conduct credit pursuant to section 2933.1. Defendant contends he served 148 actual days, and the People agree. They are correct.
Defendant also contends that he should have received conduct credit under section 4019 rather than section 2933.1. The People do not concede the point because defendant’s crime involved violence even though his attempt was incomplete.
If “current convictions are not ‘violent’ within the meaning of section 667.5, subdivision (c), the trial court properly [awards] presentence conduct credits under section 4019 rather than section 2933.1.” (People v. Thomas (1999) 21 Cal.4th 1122, 1130.)
While carjacking is a violent felony under section 667.5, attempted carjacking is not. (See People v. Ibarra (1982) 134 Cal.App.3d 413, 425 [“Section 667.5, subdivision (a), does not apply to attempts to commit the crimes referred to as violent felonies”].) Thus, defendant is entitled to credits under section 4019. Calculated by the “two-for-four” method, his credits should have been 148 actual days and 74 conduct days, for a total of 222 days. (See People v. Browning (1991) 233 Cal.App.3d 1410, 1413.)
In an effort to avoid a procedural bar on raising the issue of credit calculation on appeal, appellate counsel for defendant raised both the issue of the number of actual days served, as well as the issue of how his conduct credits should be awarded with the trial court. The issue was raised in a letter to the superior court titled “Non-Appearance Motion to Correct Record... and Request for Compliance with California Rules of Court, Rule 8.340” dated June 24, 2009, and an untitled letter dated July 22, 2009. After the second letter, the trial court amended the abstract of judgment to calculate credits under section 4019, but did not revise the actual days served. We permitted supplemental briefing to address the trial court action. The People’s supplement justifiably complains that the difference between credits under section 4019 or section 2933.1 is not a ministerial one of mere calculation, and the lack of a noticed motion denied them an opportunity to respond. Nonetheless, the People concede that we should address the issue. After receiving its copy of the People’s supplement, the trial court amended the sentencing minutes and the abstract of judgment to increase the actual days of custody to 148 and the conduct credits to 74. Appellate counsel for defendant then requested a second opportunity for supplemental briefing. We denied the request because the arguments on this issue were already before us.
As corrected by the trial court, defendant has received the custody credits to which he is entitled.
IV. COURT SECURITY FEES
Although not raised by the parties, we note that only one $20 court security fee was imposed.
Former section 1465.8, subdivision (a)(1), provided In relevant part, “a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense....” (Italics added.)
This language is mandatory. “Section 1465.8’s legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date.” (People v. Alford (2007) 42 Cal.4th 749, 754, italics added.) This includes convictions in which the sentence was stayed pursuant to section 654. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) Where no fee is imposed at all the judgment should be modified on appeal to included the fee. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.)
Accordingly, the judgment should be modified to include a $20 court security fee for each of the three counts of which defendant was convicted.
V. DISPOSITION
As corrected in the January 7, 2010 amendment to the sentencing order, and the January 13, 2010 amended abstract of judgment, the calculation of custody credits is affirmed. The judgment is modified to stay the sentence for the criminal threats conviction (count 3) pursuant to section 654, and impose two additional $20 court security fees, for a total of $60.
The superior court clerk is directed to amend the sentencing minute order and abstract of judgment to state the sentences for the criminal threats conviction (count 3) and its appurtenant deadly weapon enhancement are stayed pursuant to section 654, and court security fees are $60. After amending the abstract, the clerk is directed to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J. KING J.