Opinion
H022866.
10-10-2003
THE PEOPLE, Plaintiff and Respondent, v. RICHARD GABLE STEVENS, Defendant and Appellant.
I. Statement of the Case
A jury convicted defendant Richard Gable Stevens of assault with a firearm, three counts of kidnapping, three counts of second degree robbery, three counts of false imprisonment, three counts of making a terrorist threat, and willful discharge of a firearm with gross negligence. (Pen. Code, §§ 245, subd. (a)(2); 207, subd. (a); 211; 212.5, subd. (a); 236; 237; 422.) The jury further found that in committing one or more of these offenses, defendant personally and intentionally discharged or simply used a firearm. (§§ 1203.06; 12022.5, subd. (a); 12022.53, subds. (b) & (c).) The court sentenced defendant to a total of 50 years and four months.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant was also charged with attempted murder. However, the jury could not reach a verdict on that charge, and the court declared a mistrial. The charge was later dismissed.
The abstract of judgment erroneously lists the robbery convictions as robbery in the first degree. Although defendant initially was charged with first degree robbery, the information was amended to charge second degree robbery. Accordingly, we shall direct the Clerk of the Superior Court to correct this clerical mistake.
On appeal from the judgment, defendant claims there is insufficient evidence to support the convictions for kidnapping and discharge of a firearm. In addition, he claims that he could be convicted of only one count of making a terrorist threat. Defendant also claims instructional error concerning the asportation element of kidnapping and the mental elements of kidnapping, assault, discharge of a firearm, false imprisonment, and personal use of a firearm. He further claims the court erred in failing to give a unanimity instruction and an instruction defining gross negligence. Last, defendant claims the court erred in separately punishing him for the kidnappings, threats, and assault.
We conclude that there is insufficient evidence to support defendants convictions for kidnapping. We modify the judgment accordingly and affirm the judgment as modified.
II. Facts
On July 5, 1999, Christopher Gimelli, Gregory Smutnak, and Miranda Machado were working at the National Shooting Club, an indoor shooting range and retail firearm store in Santa Clara. Around noon that day, defendant came into the store and wanted to rent a particular rifle. Although it was unavailable, defendant remained in the store for a couple of hours, looking at guns and talking and laughing to himself. He finally left but returned at around 7:30 p.m. At that time, he rented a semi-automatic rifle, bought ammunition and targets, and went to the firing range.
Some time later, Smutnak went to the range and told defendant the store would be closing soon. Defendant went into the store to make a phone call but then returned to the firing range. A few minutes later, he burst into the store, pointed his rifle at Gimelli, Smutnak, and Machado, and repeatedly shouted, " `Get your fucking hands up or Ill blow your fucking heads off. " Machado was on the phone, and he told her to " `[h]ang that fucking phone up or Im gonna blow your head off. " All three did as they were told.
Defendant ordered Gimelli and Smutnak to one area of the store, and threatened to kill them if they refused. Machado started to scream. Defendant warned, " `You better shut up or Im gonna kill you. " He then directed her to a counter and demanded more ammunition. Machado put some on the counter. During this interaction with Machado, defendant fired two shots toward Machado, missing her both times by less than two feet. Defendant then demanded extra magazines for his rifle. When Gimelli explained that they were in a locked glass case, defendant ordered all three toward the case, again warning, " `Keep your fucking hands up, or Ill blow your fucking heads off. " Defendant then fired into the case and took the magazines himself.
It is not clear when defendant fired the two shots. Machado said it was before he demanded the ammunition; Gimelli said it was after he demanded the ammunition; and defendant said it was after Machado produced the ammunition.
After that, defendant ordered everyone to the front of the store. He then made a telephone call, apparently to his mother. After the call, he ordered all three to the back wall, and he went to the front door. He thanked them for being so nice, put the muzzle of his rifle under his chin, and said he was going to kill himself. Gimelli and Smutnak tried to dissuade him. He said he was already dead, pointed the rifle at all three, warned them to stay put, and told them to watch the 10:00 oclock news. He then left.
A few moments later, defendant came back in and said, "`Youre coming with me." Defendant backed out the door and made his three victims to follow him outside into the parking lot. Outside, he walked quickly to the corner, where an alley runs next to the building. They followed him slowly, letting the distance between them increase. At the corner, defendant peered down the alley. However, when defendant took his eyes off the victims, Gimelli drew a handgun he was carrying and shot defendant twice. Defendant dropped his rifle and the ammunition and ran down the alley. Defendant was later arrested and taken into custody.
The Defense
The defendant pleaded not guilty by reason of insanity. The issue of defendants sanity was tried to the court, and the court found that defendant was sane at the time of the offenses.
The defense was that defendant suffered from depression, and on the day of the incident, he suffered a psychotic break and acted mindlessly on angry impulses. Thus, because he was in such a mental state, he did not form the intent required by the charged offenses. In support of this defense, defendant presented evidence concerning his troubled family background and employment history. He also presented expert testimony concerning his mental disorder.
Defendant testified and admitted, or at least did not deny, all of the conduct attributed to him. However, he said that when he came into the store from the firing range, he did not know what he was going to do and did not know what he intended to do. He thought of harming others and himself but never intended to do so. He said that during the entire episode, he was confused, angry about his painful life, and not thinking clearly.
III. Sufficiency of Evidence of Kidnapping
Defendant contends that there is insufficient evidence to support the asportation element of kidnapping. We agree.
When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320.)
Asportation is an element of kidnapping and requires that the forcible movement of a victim be "substantial in character," that is, "more than slight" or "trivial." (People v. Martinez (1999) 20 Cal.4th 225, 233; People v. Stanworth (1974) 11 Cal.3d 588, 601; Cotton v. Superior Court (1961) 56 Cal.2d 459, 464-465.)
In People v. Caudillo (1978) 21 Cal.3d 562, the California Supreme Court held that the sole criterion for determining asportation was the actual distance a victim was moved. (Id. at p. 574.) However, in People v. Martinez, supra, 20 Cal.4th at pp. 235-237, and footnote 6, the court overruled Caudillo. The Martinez court held that in determining whether asportation was substantial, the trier of fact should consider the "totality of circumstances," including "not only the actual distance the victim is moved, but also such factors as whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victims foreseeable attempts to escape and the attackers enhanced opportunity to commit additional crimes." (Id. at p. 237, fn. omitted.) The court explained, however, that contextual circumstances such as an increased risk of harm, chance of escape, or opportunity to commit additional crimes are not additional elements or requirements. Rather, the court reaffirmed that the trier need only find that movement was substantial in character. On the other hand, the court cautioned that these "contextual factors, whether singly or in combination, will not suffice to establish asportation if the movement is only a very short distance." (Ibid.)
Here, the parties agree that the kidnapping convictions were based solely on the victims asportation out of the store. However, they disagree on how far outside the store the victims were forcibly moved. According to defendant, the victims traveled only six or seven feet outside the front door. The People assert that they traveled approximately 17 feet. We conclude that in either case, the movement was not "substantial in character."
The evidence is not clear on this point. Gimelli said he and the others were six or seven feet outside the front door when he shot defendant. However, investigators found four spent shell casings from Gimellis gun on the sidewalk at distances between 17 and 28 feet from the front door.
Moreover, the distance from the front door to the corner was approximately 34 feet, and defendant testified that when he was shot, he was at the corner, and Gimelli was approximately halfway between him and the front door.
We have reviewed cases decided both before and after Martinez. None suggest that moving a victim up to 17 feet from inside a store out into a public parking lot constitutes movement that is substantial in character. (Cf. People v. Sheldon (1989) 48 Cal.3d 935, 952 [moving victim from a garage, to hallway in the house, to the kitchen, and then to the den insufficient]; People v. Green (1980) 27 Cal.3d 1, 65, 67 [moving victim 90 feet insufficient]; People v. Brown (1974) 11 Cal.3d 784, 788-789 [moving victim 75 feet insufficient]; People v. Thornton (1974) 11 Cal.3d 738, 767 [moving victim from front to back of laundromat insufficient]; People v. Daly (1992) 8 Cal.App.4th 47, 56 [moving victim 40 feet insufficient]; People v. John (1983) 149 Cal.App.3d 798, 804-810 [moving victim 465 feet asportation insufficient].)
In claiming that the mere movement of victims a distance of 17 feet is substantial in character, the People cite People v. Smith (1995) 33 Cal.App.4th 1586, People v. Salazar (1995) 33 Cal.App.4th 341, and People v. Bradley (1993) 15 Cal.App.4th 1144. However, the Peoples reliance is misplaced. In Smith, the kidnapping occurred at night, and the victim was forcibly moved at knifepoint 40 to 50 feet from a driveway, which was open to street view, to the interior of a camper located at the bottom of a driveway behind a house. (People v. Smith, supra , 33 Cal.App.4th at p. 1594.) In Salazar, the victim was dragged 29 feet, from an exterior, semi-public walkway into a motel room and then into the rooms bathroom. (People v. Salazar, supra, 33 Cal.App.4th at pp. 344, 347.) In Bradley, the victim was taken from a public phone booth and forcibly walked 50 to 60 feet along the side of the store to a dimly lighted, enclosed dumpster area. (People v. Bradley, supra, 15 Cal.App.4th at p. 1150.) The movement in these cases not only involved substantially greater distances but also occurred under circumstances that unequivocally intensified and aggravated the asportation: Each victim was taken from a public place to a more secluded or private area, dramatically reducing the possibility of detection and increasing the risk of harm and opportunity for the defendant to commit additional crimes.
The People argue that the surrounding circumstances here too render the movement of 17 feet substantial in character. They assert taking the victims outside prevented them from using a phone or activating an alarm inside the store and thereby increased defendants chances of escape and afforded him an opportunity to commit further crimes. We are not persuaded. Taking the victims into a public parking lot at gunpoint immediately exposed defendant and his conduct to public view. Doing so dramatically increased the possibility that others would see what was happening, call police, intervene, and/or prevent, or at least sharply reduce, defendants chances of a successful escape. Moreover, we fail to see how bringing the victims outside made it easier for defendant to commit more crimes than he could have had he kept them inside the store. In our view, moving the victims out the door and into the parking lot for up to 17 feet was no more substantial in character than moving them around inside the store. Indeed, it appears that the cumulative amount forcible movement inside the store greatly exceeded 17 feet.
Defendant testified that he came back to get the victims and get them out of the store because he did not want them to have access to guns. He said he was not concerned at the time that they would call the police.
The People further argue that the movement in the parking lot was substantial because taking the victims outside increased their risk of danger and harm, in that defendant might have shot them if they tried to escape; or they could have been hit in a shootout with waiting police. Again, we are not persuaded. The risk that defendant might have shot the victims was no greater outside the store than it was inside, and, because defendant had threatened the victims and fired his rifle inside the store, it is highly unlikely his victims would have attempted to flee once they were outside. We further note that when defendant went outside the first time, the police were not waiting, and there is no evidence they had been alerted that an incident was taking place.
In sum, therefore, the particular contextual circumstances here do not necessarily or unequivocally render the asportation of victims in full view of the public substantial in character. Indeed, as the Martinez court explained, contextual factors cannot transform slight or trivial movement into asportation that is substantial in character. (People v. Martinez, supra, 20 Cal.4th at p. 237.) Moreover, we note that the jurors could have been confused on this very point because the courts instructions permitted them to consider contextual factors in determining whether movement was substantial, but they did not warn that such factors could not by themselves make slight movement substantial in character.
Defendant claims that this omission by itself compels reversal. However, given our conclusion, we need not address the merits of this claim.
In sum, therefore, the evidence is not sufficient to support the asportation element of defendants convictions for kidnapping, and therefore, the convictions cannot stand.
The People argue that if we find the evidence insufficient to support convictions for kidnapping, then we should modify the convictions to attempted kidnapping.
After oral argument, the parties submitted further letter briefs on this issue.
Section 1181, subdivision 6 provides that "When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed." (Italics added.)
Although one cannot successfully commit a kidnapping without attempting to do so, a conviction for kidnapping that fails because of insufficient asportation does not necessarily include a proper conviction for attempted kidnapping because not all of the elements of attempted kidnapping are included in kidnapping: an attempt requires specific intent; simple kidnapping does not. (People v. Thornton, supra, 11 Cal.3d at p. 765, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [kidnapping requires general intent]; People v. Cole (1985) 165 Cal.App.3d 41, 47-48 [attempted kidnapping requires specific intent].) Thus, because the jury was not asked to find the specific intent element of attempted kidnapping, defendant objects to the reduction of his conviction to that offense. This objection fails because in People v. Martinez, supra, 20 Cal.4th 225, the California Supreme Court reduced the defendants conviction to attempted kidnapping under section 1181. (Id. at p. 241; see People v. Daly, supra, 8 Cal.App.4th 47 [reducing conviction and cited with approval in Martinez].) Given the Supreme Courts implicit approval of the practice, we cannot declare it to be improper. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
Defendant alternatively argues that it is not appropriate to reduce his convictions because the evidence that he specifically intended to kidnap his victims is equivocal. We agree.
In People v. Martinez, supra, 20 Cal.4th 225, the defendant grabbed the victim and announced that someone was going to pay for what had been done to him. He then forced the victim at knife-point through various rooms of her house, then outside across a 15-foot porch, the backyard, and a parking area, which bordered on a five-acre vacant lot. At this point, officers responding to the scene spotted defendant and the victim between 2 trees, approximately 40 to 50 feet from the back of the residence. Although the court reversed the kidnapping conviction because the defendant had not moved the victim a sufficient distance under then applicable law, it reduced the conviction to attempted kidnapping. The Supreme Court opined that the evidence "shows that, but for the prompt response of the police, the movement would have exceeded the minimum asportation distance . . . ." (Id. at p. 241, italics added.)
As noted, defendants objection to the propriety of reducing his conviction was based, in part, on the fact that the conviction did not include a jury finding on an essential element of attempted kidnapping: specific intent to commit the crime. Because the Due Process Clause of the Fourteenth Amendment prohibits states from depriving an accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense beyond a reasonable doubt (Carella v. California (1989) 491 U.S. 263, 265; People v. Kobrin (1995) 11 Cal.4th 416, 423), we understand the "but for" test employed in Martinez to mean that a reduction to attempted kidnapping is proper and appropriate under section 1181 where the evidence establishes beyond a reasonable doubt that movement would have been substantial, and thus the kidnapping would have been completed, if the incident had continued without interruption. Under such circumstances, the perpetrators intent to commit kidnapping—i.e., accomplish the substantial and unlawful movement of another by force—is manifest, and he or she may properly be held liable for the attempt.
Turning to the record, we point out that the issue is not whether there is sufficient evidence to support a jury finding that "but for" being shot, defendant would have completed a kidnapping or that just before he was shot, he specifically intended a more substantial movement of his victims. There is such evidence: Defendant left the store, came back and told the victims they were coming with him, and forced them to follow him out into the parking lot. (Cf. People v. Cole, supra, 165 Cal.App.3d 41 [conviction for attempted kidnapping supported by substantial evidence].) Rather, the question is whether the evidence convinces us beyond a reasonable doubt that defendant would have taken his victims farther and thus specifically intended to do so. In this regard, the evidence is more equivocal than it was in People v. Martinez, supra, 20 Cal.4th 225 and People v. Daly, supra, 8 Cal.App.4th 47 [victim forced at gunpoint across parking lot but escaped as defendant attempted to force her into his van].)
First, there is no evidence that defendant had some ulterior purpose for kidnapping the victims—i.e., to rob or assault them or use them as hostages. Moreover, the record reveals that once outside the store, defendant quickly walked ahead of the victims to the corner, rather walking behind them to maintain control over and guide them to a particular destination. When they lagged behind, he did not stop and order them to hurry up. Thus, defendants conduct is consistent with his testimony that he just wanted to get the victims out of the store and away from the guns. It does not suggest that he specifically intended to bring them around the corner into the alley and/or drive them away in his truck. In this regard, we note evidence that defendants truck, which was parked in the alley, had no rear seats, making it difficult to accommodate and conceal the victims if he did intend to take them with him in the truck.
Given all of the evidence, we believe that a trier of fact could have had a reasonable doubt concerning whether defendant specifically intended to commit a kidnapping. In other words, we cannot say beyond a reasonable doubt that but for being shot, defendant would have completed a forcible movement of the victims that was substantial in character. Under the circumstances, therefore, we decline to reduce defendants kidnapping convictions to convictions for attempted kidnapping.
IV. Instruction on Robbery
Defendant contends that courts instructions on robbery were flawed because they failed to tell the jury that the force or fear used to accomplish an unlawful taking must be motivated by a larcenous intent. He argues that because there was evidence that his use of force was motivated by "anger stemming from an acute depressive and psychotic episode" and not an intent to steal, the instructional error compels reversal of the robbery convictions. We find no merit to this claim.
In People v. Green, supra, 27 Cal.3d 1, the court held that "the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal in order to satisfy the requirement of section 20: if the larcenous purpose does not arise until after the force has been used against the victim, there is no `joint operation of act and intent necessary to constitute robbery." (Id. at p. 54, fn. omitted.)
Here, the court instructed the jury that "[e]very person who takes personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent permanently to deprive that person of the property, is guilty of the crime of robbery . . . ." (See CALJIC No. 9.40.) The court further explained, "In order to prove [robbery], each of the following elements must be proved: [¶] 1. A person had possession of property of some value, however, slight; [¶] 2. The property was taken from that person or from his or her immediate presence; [¶] 3. The property was taken against the will of that person; [¶] 4. The taking was accomplished either by force or fear; and[,] [¶] 5. The property was taken with the specific intent permanently to deprive that person of the property." (Ibid.) In addition, the court instructed the jury that in connection with the robbery counts, "there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists, the crime to which it relates is not committed."
Although the instructions did not expressly require a finding that the use of force or fear be motivated by a larcenous intent, we believe they implicitly did so. Taken together, the instructions required the jury to find that (1) defendant took property by using force or fear and (2) at the time of the taking, he had a larcenous intent. Because the instructions require a practical nexus between the taking and use of force or fear and require that the taking and larcenous intent be concurrent, the instructions reasonably ensure that a jury would have to find that the use of force or fear and the taking were motivated by the same intent.
In any event, any potential ambiguity here was harmless. There was overwhelming evidence that defendants use of force and fear was motivated, at least in part, by a larcenous intent. As noted above, defendant came into the store from the firing range, pointed his rifle at the victims, and threatened to kill them if they moved. He pointed his rifle at Machado and ordered her to get him some ammunition. Machado immediately complied. A short time later, he demanded extra magazines for his rifle. When Gimelli said they were in a locked glass case, defendant directed all three victims to the case, warning them to " `Keep your fucking hands up, or Ill blow your fucking heads off. " He then shot out the glass, reached in, and took the magazines himself.
Given this evidence, especially the nearly simultaneous display of force, demand for ammunition and magazines, and the taking, we find no reasonable possibility that the lack of a Green instruction here affected the verdict. In our view, no rational jury could have found that although defendant took property by force with a larcenous intent, his use of force or fear was not motivated by the same intent. Indeed, we consider such a finding to be inconceivable. Under the circumstances, therefore, the lack of an instruction was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see Neder v. United States (1999) 527 U.S. 1, 7-10 [instructional error concerning element subject to federal harmless error test]; People v. Hughes (2002) 27 Cal.4th 287, 353.)
V. Instructions on Firearm Enhancements
Defendant contends that the court committed instructional error related to the mental element of the enhancements for using and discharging a firearm. (§§ 12022.5, subd. (a) & 12022.53, subd. (c).) Defendant correctly notes that both enhancements require a finding that defendant acted intentionally. Defendant points out that the court included the enhancements in the instruction requiring the concurrence of act and general intent (see CALJJIC No. 3.30) and not the instruction requiring the concurrence of act and specific intent (see CALJIC No. 3.31). Defendant argues that it was error to characterize the enhancements as requiring general, rather than specific, intent.
Section 12022.5, subdivision (a) provides, in relevant part, " . . . [A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.
Section 12022.53, subdivision (c), provides, in relevant part, " . . . [A]ny person who is convicted of a [specified felony], and who in the commission of that felony intentionally and personally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years."
Section 12022.53, subdivision (c) expressly requires intentional conduct. Section 12022.5, subdivision (a) does so as a result of judicial construction. (See In re Tameka C. (2000) 22 Cal.4th 190, 197; People v. Johnson (1995) 38 Cal.App.4th 1315, 1319.)
Defendant further argues that the court compounded this error by omitting the enhancements in the instruction permitting jurors to consider defendants mental disorder in determining whether he formed the specific intent required by certain offenses. (See CALJIC No. 3.32.) Defendant claims the errors compel reversal because the jurors might have found that because of his disorder, he did not form the intent to use or discharge the rifle. This claim is meritless.
"When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intent is deemed to be a general criminal intent. As a general rule, a statute proscribing willful behavior is a general intent offense. The only intent required for a general intent offense is the purpose or willingness to do the act or omission. [Citation.] When the definition of a crime refers to the defendants intent to do some future act or achieve some additional consequence, the crime is deemed to be a specific intent crime. [Citation.]" (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1166-1167; e.g., People v. Williams (2001) 26 Cal.4th 779, 787-788 [assault with a firearm is a general intent offense].)
In our view, the same analysis applies in determining whether an enhancement requires a general or specific intent. The enhancements here describe acts—using and discharging a firearm—but not the performance of these acts with the intent to do some future act or achieve some additional consequence. Rather, the enhancements require only the general intent to perform the proscribed act: Did the perpetrator knowingly and willfully use and/or discharge a firearm, that is, did the perpetrator know what he was doing, intend to do what he was doing, and do so as a free agent. (See People v. Atkins (2001) 25 Cal.4th 76, 85.)
It follows from our analysis that the court properly included the enhancements in the instruction on the concurrence of act and general intent and excluded them from the instruction on the concurrence of act and specific intent. (Cf. People v. Thurston (1999) 71 Cal.App.4th 1050 [proper to include infliction of corporal punishment in CALJIC No. 3.30 because offense requires only general intent].)
It further follows that the court properly excluded the enhancements from the instruction concerning the use of evidence of a mental disorder. (See CALJIC No. 3.32.) This instruction mirrors the provisions of section 28, subdivision (a), which provides, "Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." (Italics added.)
The court instructed the jury, "You have received evidence regarding a mental disorder of the defendant at the time of the commission of the crimes charged, namely, count[s] 1 [premeditated murder], 6, 7, 8 [robbery], 12, 13, and 14 [making terrorist threats]. [¶] You should consider this evidence solely for the purpose of determining whether the defendant actually formed the required specific intent, premeditated, deliberated or harbored malice aforethought, which is an element of the crimes and allegation in Count 1. And the specific crimes this instruction relates to would be Counts 1, 6, 7, 8, 12, 13, and 14."
Defendant cites no authority for the proposition that, despite the limitations set forth in section 28, a court may permit the jury to consider evidence of a mental disorder in determining whether the defendant formed the general intent required by an enhancement.
In any event, excluding the enhancements from CALJIC No. 3.32 was harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24; Neder v. United States, supra, 527 U.S. at pp. 7-10; People v. Hughes, supra, 27 Cal.4th at p. 353.)
The evidence that defendant knowingly and willingly used and fired his rifle during the commission of his offenses is so overwhelming, if not conclusive, that no rational juror could have found that he did not intentionally do so. In addition to the victims testimony, which was compelling evidence of intentional action, defendant admitted that after using the firing range, he entered the store and, knowing his rifle was still loaded, fired a couple of rounds toward Machado. He explained that he was angry at her but did not know why and opined that he could have shot her if he had wanted to do so. Defendant also admitted that after Machado gave him the ammunition, he moved the victims toward the glass case where the magazines were kept and then shot into the case to get the magazines.
In addition, we note that the jury rejected the evidence of mental disorder and found that defendant formed the specific intent to commit robbery and make terrorist threats. Under the circumstances, it is inconceivable the jurors would have found that although defendant formed the specific intent for these substantive offenses, he did not form the general intent for the enhancements attached to them
In a related claim, defendant notes that when the trial court orally instructed the jury concerning the enhancement for discharging a firearm, it stated, "The term `intentionally and personally discharged a firearm" as used [in] this instruction, means that the defendant himself must have discharged it." Defendant argues that the oral instruction erroneously omitted the word intentionally in its definition. However, the oral omission was harmless. The written instructions available to the jury were complete. Moreover, as discussed above, no rational juror could have found that defendant did not intentionally fire his rifle.
Concerning the enhancement for "personally" using a firearm, the court instructed the jury that the term "personally used a firearm" means that the defendant must have "intentionally displayed a firearm in a menacing manner, intentionally fired it or intentionally struck or hit a human being with it."
VI. Instruction on Assault with a Firearm
Defendant contends that the courts instruction on assault was defective because it did not require a finding that the defendant knew facts that would have put a reasonable person on notice that his conduct would naturally and probably result in an unlawful touching. He claims the omission was prejudicial because the jury could have found that he was unaware that intentionally shooting his rifle twice in Machados direction would naturally and probably result in a battery.
In People v. Colantuono (1994) 7 Cal.4th 206, the California Supreme Court explained that "the mental state for assault . . . is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery." (Id . at p. 214, italics added.) Because the italicized language arguably implied that the mental state for assault is objective, akin to a negligence or reckless standard, and would permit a conviction based on facts a defendant should have known but did not actually know, the court in People v. Williams (2001) 26 Cal.4th 779 found it necessary to further clarify the mental state for assault. (Id. at p. 787.) The court explained that "a defendant is only guilty of assault if he intends to commit an act `which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences. [Citation.] Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. [Citation.] In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur." (Id. at pp. 787-788, fn. omitted.) For example, the court stated that "a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (Id. at p. 788, fn. 3.)
In this case, the court instructed the jury that "[i]n order to prove an assault, each of the following elements must be proved: [¶] A person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person; and [& para;] At the time the act was committed, the person intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person; and [¶] At the time the act was committed, the person had the present ability to apply physical force to the person of another." (See CALJIC No. 9.00.)
We agree that the courts instruction does not expressly reflect the holding in Williams. However, we find any possible instructional ambiguity concerning the knowledge requirement to be harmless.
In claiming reversible prejudice, defendant notes that although he admitted shooting at Machado, he did not aim at her or intend to kill her even though he could have. Defendant argues that "[t]hese facts inescapably lead to the conclusion, based on the defense version of the evidence, that defendant did not shoot in the direction of Machado with any idea of hitting or hurting her. In other words, shooting with the idea of missing, and not hitting someone, does not always establish actual knowledge by the perpetrator that the offending act by its nature would probably and directly result in physical force being applied to another." Under the circumstances, defendant claims that with proper instruction, the jury could have found that he lacked sufficient knowledge to establish an assault. This claim is meritless.
First, we note that in Williams, the court considered the lack of clearer instruction on the knowledge requirement "largely technical and . . . unlikely to affect the outcome of most assault cases, because a defendants knowledge of the relevant factual circumstances is rarely in dispute." (People v. Williams, supra, 26 Cal.4th at p. 790.) In that case the court explained that the defendant "admitted he loaded his own shotgun with two shotgun rounds. He further testified that he knew that King, the alleged victim, `was crouched on the far side of the truck between the rear fender and the cab. Finally, defendant admittedly fired a warning shot at Kings truck even though he knew that King was in the near vicinity. In light of these admissions, defendant undoubtedly knew those facts establishing that his act by its nature would directly, naturally and probably result in a battery." (Ibid.)
The circumstances here are essentially the same. In Williams, the defendant knowingly fired a warning shot at a truck, knowing the victim was in the general area. There was no evidence in that case that the defendant aimed at or intended to hit the victim. Here, defendant knew he was firing his rifle in Machados direction. These facts establish that his conduct "by its nature would directly, naturally and probably result in a battery." (People v. Williams, supra, 26 Cal.4th at p. 790.) This is especially so because there was evidence that defendant aimed and shot from his chest rather than his shoulder. Although he may not have intended to hit Machado, he still was aware of facts about his conduct which would lead a reasonable person to realize that a battery would directly, naturally, and probably result. Indeed, had Machado moved suddenly just before defendant fired the first or second time, she could well have been shot and killed. Accordingly, we find any potential instructional ambiguity to be harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24; Neder v. United States, supra, 527 U.S. at pp. 7-10; People v. Hughes, supra, 27 Cal.4th at p. 353.)
VII. Instructions on Discharge of a Firearm with Gross Negligence
Defendant contends the court erred in failing to define the term gross negligence as used in section 246.3. The People, on the other hand, argue that a definition was unnecessary because a jury would not need guidance to understand the term.
Section 243.3 provides, "Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison."
The trial court has a sua sponte duty to instruct the jury on the general principles of law relevant to and governing a case. (People v. Michaels (2002) 28 Cal.4th 486, 529.) This duty does not require the court to amplify or clarify commonly understood words used in jury instructions; but it does require the court to define technical terms that have meanings peculiar to the law. (People v. Bland (2002) 28 Cal.4th 313, 334.)
Section 246.3 does not include a definition of "gross negligence" and thus the term has "the meaning commonly attributed to it in criminal law." (People v. Alonzo (1993) 13 Cal.App.4th 535, 539, italics added.) Generally, where negligence is required as a predicate for a criminal act, "ordinary negligence sufficient for recovery in a civil action will not suffice; to constitute a criminal act the defendants conduct must go beyond that required for civil liability and must amount to a `gross or `culpable departure from the required standard of care. [Citations.] The conduct must be aggravated or reckless; that is, it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life. The conduct must show an indifference to the consequences, and this has been said to require knowledge, actual or imputed, that the act tends to endanger anothers life. [Citation.]" (People v. Peabody (1975) 46 Cal.App.3d 43, 47; accord, Williams v. Garcetti (1993) 5 Cal.4th 561, 573-574.)
Accordingly, CALJIC No. 3.36 explains that "gross negligence" means "negligent acts which are aggravated, reckless or flagrant and which are such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for danger to human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen and it must appear that the danger to human life was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent act."
In People v. Brucker (1983) 148 Cal.App.3d 230, 239, the court held that the failure to define the term "culpable negligence" as used in the instruction on accident was error because the term has a technical meaning peculiar to the law, which is not commonly understood by the average person. (Accord, People v. Thurmond (1985) 175 Cal.App.3d 865, 872; see People v. Lara (1996) 44 Cal.App.4th 102, 109-110.) Indeed, the numerous instructions used in civil cases to define and explain the elements of a cause of action for negligence indicate that the term negligence itself has a special and technical meaning in the law. (See BAJI Nos. 3.00, 3.10, 3.11.)
Given this authority, we conclude that gross negligence is a technical term that jurors would not commonly understand without additional guidance. However, the lack of definitional guidance here does not compel reversal.
Gross negligence, as a basis for criminal liability, requires the performance of an act that could injure or kill another person under circumstances showing a disregard of or indifference to such consequences. (See CALJIC No. 3.36.)
First, we observe the obvious: Loaded guns are inherently dangerous, and firing one inherently carries potentially imminent deadly consequences. (People v. Clem (2000) 78 Cal.App.4th 346, 353; People v. Taylor (1992) 6 Cal.App.4th 1084, 1099.) Thus, when one should reasonably expect other people to be in the vicinity, where they could be injured or killed, the failure to exercise reasonable care in firing a gun necessarily involves disregard of or indifference to these consequences. Indeed, section 246.3 was enacted "to deter the discharge of firearms on holidays such as New Years and the Fourth of July . . . ." (People v. Alonzo, supra, 13 Cal.App.4th at p. 539; see People v. Leslie (1996) 47 Cal.App.4th 198, 201.) Thus, for example, in Alonzo, where the defendant shot a firearm into the air at 2 a.m. in a parking lot near stores that were still open, the court found it "beyond dispute" such conduct constituted gross negligence. (People v. Alonzo, supra, 13 Cal.App.4th at pp. 539-540; see also, e.g., People v. Higareda (1994) 24 Cal.App.4th 1399 [defendant fired a shotgun in the direction of a pursuing car]; People v. Superior Court (Rodrigo O.) (1994) 22 Cal.App.4th 1297 [minor shot at a car]; In re Londale H. (1992) 5 Cal.App.4th 1464 [shooting at a crowd].)
We further note that here the court instructed the jury that "[e]very person who willfully and unlawfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a violation of Penal Code Section 246.3, a crime. [¶] In order to prove this crime, each [of] the following elements must be proved: [¶] 1. A person willfully and unlawfully discharged a firearm; [¶] 2. The person who discharged the firearm did so in a grossly negligent manner; and [¶] 3. The discharge of the firearm was done in a manner which could result in injury and death to a person." (See CALJIC No. 9.03.3.)
This instruction substantially compensated for the lack of an express definition of gross negligence because it required the jury to find that defendants intentional conduct could have resulted in the injury or death of another person—i.e., that injury or death was reasonably foreseeable.
Here, defendant intentionally fired his rifle twice toward Machado, missing her both times by less than two feet. In our view, no rational juror could have found that (1) such conduct was reasonable; (2) defendant was unaware that his conduct involved the risk injury or death; or (3) he did not disregard or was not indifferent to these potential consequences. Indeed, during closing argument, the prosecutor stated, "The last count is a discharge of a firearm with gross negligence. I dont think Counsel and I are gonna disagree at all. At the very least defendant was grossly negligent. I have a hard time believing we will disagree." Although defense counsel did not expressly agree with the prosecutor, he did not expressly disagree. Nor did he argue that defendants conduct did not reflect gross negligence.
Under the circumstances, therefore, we conclude that the failure to define gross negligence was harmless beyond a reasonable doubt and could not have affected the verdict. (See Chapman v. California, supra, 386 U.S. at p. 24; Neder v. United States, supra, 527 U.S. at pp. 7-10; People v. Hughes, supra, 27 Cal.4th at p. 353.)
Defendant also contends that the court erred in excluding this offense from the instructions on the concurrence of act and intent.
Section 246.3 requires that a person "willfully discharge[] a firearm in a grossly negligent manner." Because willfully means intentionally (see § 7, subd. (1); In re Trombley (1948) 31 Cal.2d 801, 807), a violation of section 246.3 has a general intent component. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438-1439.) Thus, technically, the court should have included it in the instruction on the required concurrence of act and general intent. However, the omission was harmless because defendant admitted he willfully fired his rifle.
VIII. Sufficiency of the Evidence re Discharge of a Firearm
Defendant contends there is insufficient evidence to support his conviction for discharge of a firearm with gross negligence. He notes his testimony that he did not aim toward Machado with the intention of hitting her. He further notes that his shots missed her. He argues, in essence, that this evidence precludes a finding that discharging his rifle could have resulted in injury or death. Again, this claim is meritless.
Even assuming the jury believed defendants testimony, his intent and skill at aiming the gun and the fact that he ultimately missed her are not determinative concerning whether shooting at Machado could have caused injury or death. We note evidence that he missed her by less than two feet, and he held the gun at his chest when he fired. This evidence supports a finding that defendant was aware of facts which would lead a reasonable person to realize that a battery would result. Indeed, if, as noted, Machado had suddenly moved when defendant pointed his rifle in her direction, she could well have been shot.
IX. Instruction on False Imprisonment
Defendant contends that the court erroneously instructed the jury that false imprisonment is a general intent crime. We disagree.
Defendant acknowledges that this court and other courts have held that false imprisonment is a general intent crime. (People v. Fernandez (1994) 26 Cal.App.4th 710, 716; People v. Olivencia (1988) 204 Cal.App.3d 1391, 1397-1398; People v. Swanson (1983) 142 Cal.App.3d 104, 109.) However, defendant argues that these cases were wrongly decided. He claims that People v. Zilbauer (1955) 44 Cal.2d 43, 51, People v. Agnew (1940) 16 Cal.2d 655, 659-660, and People v. Haney (1977) 75 Cal.App.3d 308, 313, imply that false imprisonment requires a specific intent. We disagree.
In People v. Olivencia, supra, 204 Cal.App.3d at pp. 1399-1400, we rejected similar reliance on Agnew and Haney for the proposition that the offense involves a specific intent. (Accord, People v. Fernandez, supra, 26 Cal.App.4th at pp. 717-718.) Moreover, although Zilbauer cites Agnew, its citation does not imply that false imprisonment is a specific intent offense.
Defendant claims that just as the use of force or fear for purposes of robbery has to be motivated by a larcenous intent (People v. Green, supra, 27 Cal.3d at p. 54), the use of violence, menace, fraud or deceit by which one falsely imprisons another must be motivated by an intent to restrain personal liberty. He argues that the court failed to instruct the jury accordingly.
Accepting defendants position for purposes of argument only, we find the instructional omission harmless. There is overwhelming evidence that defendants use of violence against the victims was motivated by a desire to restrain them. When he came into the store from the firing range, he pointed his rifle at them and ordered them to put their hands up. He ordered Gimelli and Smutnak to one area of the store by threatening to kill them. He pointed his rifle at Machado and made her to go to the counter to get ammunition. When Machado started screaming, defendant warned, " `You better shut up or Im gonna kill you. "He then directed Machado to the cashier counter, pointed the rifle at her. Machado put the boxes on the counter. He made all three walk to the glass case, again threatening to kill them. And later, he ordered everyone to the back of the store and kept his rifle trained on them while he made a phone call.
Defendant admitted this conduct, and the expert testimony concerning his state of anger and confusion does not suggest that he did not intend to restrain his victims liberty. Under the circumstances, no rational jury could have concluded that while using force to restrain his victims, defendant was not motivated by a desire to do so. (See Chapman v. California, supra, 386 U.S. at p. 24; Neder v. United States, supra, 527 U.S. at pp. 7-10; People v. Hughes, supra, 27 Cal.4th at p. 353.)
X. Multiple Convictions for Making Terrorist Threats
Section 422 provides, in relevant part, "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat . . . which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
Defendant contends that he could have been convicted of only one count of making terrorist threats (§ 422), and therefore two of his convictions must be reversed. According to defendant, when there is only one threat, there is only one offense no matter how many people hear it. In support of his claim, defendant cites People v. Lobaugh (1971) 18 Cal.App.3d 75 and Wilkoff v. Superior Court (1985) 38 Cal.3d 345.
In People v. Lobaugh, supra, 18 Cal.App.3d 75, the defendant was convicted of three counts of felony drunk driving which causes bodily injuries (former Veh. Code, § 23101, now § 23153) based on a single accident, in which his three passengers were injured. (People v. Lobaugh, supra, 18 Cal.App.3d. at p. 78.) In determining whether there can be as many violations as there are injured persons, the court pointed out that "the fundamental concern of the state is not the outrage done the victims, but rather the prevention of `drunken driving and the punishment of those who so conduct themselves." (Id. at p. 79.) Thus, because the act proscribed by the statute was driving under the influence, a single instance gives rise to only one crime no matter how many people are injured. (Id. at pp. 79-80.)
In Wilkoff v. Superior Court, supra, 38 Cal.3d 345, the court approved the analysis and conclusion in Lobaugh as it applied to the crime of driving under the influence. (Id. at p. 349.) The court contrasted that offense with vehicular manslaughter. Since the gravamen of that offense is homicide, a defendant could be charged with multiple counts based on the number of fatalities caused by a single incident. (Id. at pp. 349-350.)
Defendant asserts that the purpose of section 422 is to prevent threats not protect people from them. Thus, as with a single incident of drunk driving, a single threat constitutes only one offense no matter how many people are harmed.
Initially, we point out that defendants legal theory does not suggest that multiple threats cannot support multiple convictions. The record here reveals that defendant uttered more than one threat. As summarized above, when defendant entered the store after using the firing range, he said, " `Dont fucking move or Im gonna blow your fucking heads off. " A short time later, when Machado started to scream, he warned, " `You better shut up or Im gonna kill you. " Later, when defendant directed the victims to the glass case, he said, " `Keep your fucking hands up, or Ill blow your fucking heads off. " And later, when defendant first backed out the door, he told the three not to move or he would kill them. Thus, even if we accept defendants legal theory, the theory does not appear applicable in this case.
In any event, we reject defendants legal theory on the merits. If section 422 proscribed only making a threat, then merely uttering threatening words out loud or writing them down would be a crime. However, the statute "is not violated by mere angry utterances or ranting soliloquies, however violent. One may, in private, curse ones enemies, pummel pillows, and shout revenge for real or imagined wrongs—safe from section 422 sanction." (People v. Teal (1998) 61 Cal.App.4th 277, 281.) Rather, the statute requires more than a threat; it requires a victim who suffers harm, namely, a sustained fear of death or injury. (See In re Ricky T. (2001) 87 Cal.App.4th 1132, 1141.) Thus, in People v. Martinez (1997) 53 Cal.App.4th 1212, 1221, the court explained that the statute was intended to protect people from fear and intimidation and was enacted in response to the growing number and severity of threats against peaceful citizens. Indeed, the court in People v. Solis (2001) 90 Cal.App.4th 1002, 1024, deemed a violation of section 422 a crime of "psychic violence" because it required the intentional commission of an act that caused mental terror. (See People v. Thornton (1992) 3 Cal.App.4th 419, 424.)
We consider the gravamen of the section 422 to be the infliction of sustained fear on another person by means of a threat of death or injury. Thus, making a threat is like an assaulting someone, and it is settled that a person may be convicted of multiple counts of assault based on a single assaultive act where there is more than one victim. (See Wilkoff v. Superior Court, supra, 38 Cal.3d at p. 352; e.g., People v. Prater (1977) 71 Cal.App.3d 695, 699.) Thus, we conclude that defendant was properly convicted of three violations of section 422.
Our analysis is consistent with People v. Solis, supra, 90 Cal.App.4th 1002, where the court held making a terrorist threat is a crime of violence and therefore comes within the multiple-victim exception to section 654. Thus, a defendant may be punished more than once for a single threat if that harms more than one person. (Id. at pp. 1024-1025.)
Understandably, defendant does not claim that the three concurrent terms imposed for the three counts violates the proscription against multiple punishments in section 654.
XI. Unanimity Instruction
As noted, there was evidence that defendant uttered more than one threat during the incident and discharged his rifle at Machado and into the glass case. Defendant contends that the court erred in failing to give an instruction requiring the jury to unanimously agree on the factual basis for the three counts of making threats and one count of discharging a firearm. (See CALJIC No. 17.01.) We disagree.
"Defendants in criminal cases have a constitutional right to a unanimous jury verdict. [Citation.] From this constitutional principle, courts have derived the requirement that if one criminal act is charged, but the evidence tends to show the commission of more than one such act, `either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citations.]" (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) However, " . . . [N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. `The "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.) Moreover, the failure to give a unanimity instruction is harmless when disagreement by the jury concerning the factual basis for conviction is not reasonably probable. (People v. Jenkins (1994) 29 Cal.App.4th 287, 298; People v. Melendez (1990) 224 Cal.App.3d 1420, 1430; People v. Burns (1987) 196 Cal.App.3d 1440, 1458.)
In this case, defendant committed most of the offenses in rapid succession during a continuous transaction inside the store. The evidence concerning each threat defendant uttered and each shot he fired was of equal probative value, weight, and credibility. Moreover, defendant did not proffer a separate defense to various acts or suggest that some occurred but others did not. In essence, the defense conceded his conduct but denied he formed the intent required to impose criminal liability. Under the circumstances, there was no reasonable basis for the jury to distinguish one threat or one discharge of the rifle from the others concerning whether committed some but not others. Rather, if the jury found that he committed any of them, it must have found that he committed them all. Consequently, we conclude that no unanimity instruction was required; and, if one were required, then the failure to give it was harmless. (See People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Matute (2002) 103 Cal.App.4th 1437, 1449-1450.)
XII. Multiple Punishment
Defendant contends that separate punishment for the kidnappings, assault on Machado, and threats violates the proscription against multiple punishment in section 654. Given our reversal of the kidnapping convictions, we focus on the propriety of separate punishment for the other offenses.
Section 654, subdivision (a) provides, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
The court did not separately punish defendant for the three counts of false imprisonment and the substantive offense of discharging a firearm. Rather, it stayed the terms for these offenses under section 654.
"Section 654 is intended to ensure that punishment is commensurate with a defendants criminal culpability. [Citations.]" (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) It prohibits separate punishment for multiple acts that violate different statutes where those acts comprise an indivisible course of conduct incident to a single criminal objective and intent. (Ibid.; see Neal v. State of California (1960) 55 Cal.2d 11, 19.) On the other hand, one may properly be punished for each and every offense that occurs during single episode if they were committed with an objective and intent separate and independent from, and not merely incidental to, another. (People v. Beamon (1973) 8 Cal.3d 625, 637-639.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial courts determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Concerning the assault on Machado, we note that a separate act of violence against a helpless and unresisting victim, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191.) Here, defendant said he fired his rifle at Machado after she produced the ammunition. He also said he did so because he was angry at her. This evidence supports an implied finding that the assault was a gratuitous act of anger and violence against Machado unrelated to his larcenous intent. (Cf. People v. Coleman (1989) 48 Cal.3d 112, 162 [assault committed after robbery].) Thus, separate punishment for the assault does not violate section 654.
Similarly, the court could have reasonably concluded that defendants verbal threats were angry acts of intimidation intended generally to establish dominance and control over his victims and, at given moments, to move them from one part of the store to another, stop Machado from screaming, and prevent them from obtaining weapons. Indeed, defendant testified that when he left the firing range, entered the store, and uttered his first threat, he did not know at the time what he wanted them to do. Under the circumstances, the evidence supports a finding that the threats were sufficiently independent of, not incident to, the robbery to warrant separate punishment.
XIII. Disposition
We modify the judgment by striking the convictions for kidnapping in counts 3, 4, and 5 and the sentences imposed on those counts as well as the enhancements under section 12022.5, subdivision (a) that were alleged in connection with the kidnapping counts. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare a new abstract of judgment reflecting these modification and convictions for second, not first, degree robbery. (See fn. 2, ante, p. 1.)
WE CONCUR: Rushing, P.J. and Premo, J.