Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. Nos. RIF130518, RIF127978 & SWF005925 J. Thompson Hanks, Judge.
James R. Bostwick, Jr., 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, Senior Assistant Attorney General, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster Acting P.J.
A jury found defendant guilty of attempted carjacking (Pen. Code, §§ 664/215), attempted robbery (Pen. Code, §§ 664/211), and vandalism that caused more than $400 in damages (Pen. Code, § 594, subd. (b)(1)). Defendant admitted suffering three prior felony convictions that resulted in prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to state prison for a term of six years 10 months. Defendant contends his sentence for vandalism must be stayed pursuant to section 654, because that conviction resulted from the same indivisible course of conduct as the carjacking conviction. Additionally, defendant comments upon errors contained in the abstracts of judgment for the instant case (case No. RIF130518) and associated probation violation cases (case Nos. RIF127978 & SWF005925). We affirm the judgment with directions.
All further references to code sections will be to the Penal Code unless otherwise noted.
The abstract of judgment and minute order do not reflect defendant’s correct sentence, which will be discussed post.
FACTS
On May 29, 2006, Cesar, his wife, and their two children drove to the Mr. Taco restaurant in Rubidoux. The family parked, exited their car, and walked towards the restaurant. As the family approached the front door of the restaurant, defendant blocked the doorway. Cesar and his wife did not know defendant. Defendant said, “You’re not going to go in, you fucking Mexican.” Defendant then grasped the car keys in Cesar’s hand, which were attached to a fabric key chain, and said, “Give me the keys.” Defendant and Cesar argued and struggled over the keys. Cesar eventually pulled the keys from defendant’s grasp. Restaurant employees opened the front door, defendant stepped to the side or was pushed by the door, and the family entered the restaurant.
Maria was at a laundromat in the same strip mall as the Mr. Taco restaurant when the incident occurred between defendant and Cesar. Maria witnessed defendant block the door to the restaurant and struggle with Cesar over the car keys. Maria called 911 and continued to wait for her laundry cycle to be complete. After Maria folded her clothes she called her husband, Arturo, to help her load the bags of laundry into her truck.
When Maria’s husband arrived with their two children, defendant asked Arturo, “You want to fight? You want to fight? You have a problem with me?” Arturo told defendant to calm down. Maria and Arturo began loading laundry into Maria’s truck. Defendant then began yelling, in reference to Maria’s truck, “Whose truck is this?” Maria informed defendant that it was her truck. Defendant then yelled, “Fucking move it. You can’t park here.” Defendant then told Maria, “Give me your fucking keys.” Maria refused. Defendant said, “If you’re not going to move it, I’m going to move it.” Maria told defendant that she would move her truck when she was done loading her laundry. Defendant then lifted his shirt to expose his tattoos and began yelling, “You’re my raza, you’re my people. Give me your fucking keys. I’m telling you right now give me the fucking keys.”
Maria had the keys to her truck in her hand. Defendant tried to take the keys from Maria by grabbing them. Maria then moved towards Arturo’s car. Defendant then told Maria, “If you don’t move your truck, I’m going to break your windows.” Defendant then took a metal magazine rack from an area near the laundromat and threw it into Maria’s truck causing scratches in the paint.
Arturo sold the truck that was involved in the incident; he reduced the price of the truck by $2,000 due to the scratches in the paint.
Maria went to Arturo’s car to call the police and Arturo drove away in the truck to find a police officer. Arturo located Riverside County Sheriff’s Deputy Adams who followed him to the strip mall. Deputy Adams eventually arrested defendant. When patting down defendant for weapons, Deputy Adams discovered a syringe in defendant’s pocket. Deputy Adams tested the substance in the syringe with a NarcoPouch test kit, and the substance tested positive for methamphetamine.
The jury found defendant guilty of attempting to carjack Maria (count 2), attempting to rob Cesar (count 3), and vandalism (count 4); however, the jury found defendant not guilty of attempting to carjack Arturo (count 1). At defendant’s sentencing hearing, defendant’s trial counsel requested that defendant’s sentence for the vandalism conviction (count 4) be served concurrent to the carjacking conviction (count 2). The court implicitly denied defendant’s request, as discussed post, and noted that defendant’s act of vandalism constituted “separate conduct.”
DISCUSSION
1.
SENTENCING
Defendant contends his sentence for vandalism should be stayed pursuant to section 654, because that conviction resulted from the same indivisible course of conduct as the carjacking conviction. Defendant argues that the act of the throwing the magazine rack was one of several acts he committed that constituted the element of “force or fear” required as part of the crime of carjacking (§ 215, subd. (a)). We disagree.
Section 654 provides that a trial court may not punish a defendant under more than one provision of the Penal Code if the defendant’s crimes result from an indivisible course of conduct. (People v. Siko (1988) 45 Cal.3d 820, 823.) Whether a course of conduct is divisible is determined by the intent and objective of the defendant at the time of the offense. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1442-1443.) “‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” (People v. Evers (1992) 10 Cal.App.4th 588, 602.) “However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
“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 court’s determination in the light most favorable to the [People] and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)
Maria testified she was afraid of defendant, “[b]ecause he was acting erratically, and he was causing people . . . that weren’t doing anything to him, he was trying to fight them or cause problems with them.” When Maria refused to move her car and give defendant her keys, defendant became frustrated and told Maria, “If you don’t move your truck, I’m going to break your windows.” Defendant then threw the magazine rack into Maria’s truck. Defendant’s statement expressed anger and frustration. Defendant did not state that he was vandalizing the truck in order to steal it, but as retaliation for Maria refusing to comply with his demands to move the truck. We conclude that the trial court correctly determined that defendant harbored the separate and independent intent of punishing Maria by vandalizing her truck. (See People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300 [trial court properly found a separate criminal objective where defendant acted out of frustration].) Accordingly, the trial court did not err by not staying defendant’s sentence for count 4 pursuant to section 654.
2.
ABSTRACTS OF JUDGMENT AND MINUTE ORDER
Due to the offenses in the instant case, the trial court found defendant in violation of his probation for two prior cases (case Nos. RIF127978 & SWF005925). Defendant filed separate notices of appeal for the two probation violation cases. Defendant, in a footnote, remarks that the abstracts of judgment for the instant case and the probation violation cases contain errors. The People agree. We also agree and find further errors in the minute order for the sentencing hearing in the instant case.
Issues set out in footnotes rather than as a separate topic with a separate heading will generally be disregarded (see Cal. Rules of Court, rule 8.204(a)(1)(B)); however, because this issue is related only to clerical errors, we will address it.
The abstract of judgment for case No. RIF130518 incorrectly memorializes that defendant was found guilty by the court. The abstract of judgment should be amended to reflect that defendant was found guilty by a jury.
The abstract of judgment for case No. RIF130518 further reflects that defendant’s sentences for counts 3 and 4 are to be served concurrently to his sentence for count 2. The minute order for case No. RIF130518 memorializes the same concurrent sentences as the abstract of judgment. Contrary to the concurrent sentences noted in the abstract and the minute order, the reporter’s transcript notes that at the sentencing hearing the trial court made the following pronouncement: “As to Count 3, it’s separate conduct occurring at a separate time. I’d like to sentence him consecutively to -- it would be two years because it’s an attempt, and one-third of that would be eight months. So as to Count 3, it’s eight months. [¶] As to Count 4, again separate conduct, and that would be -- that’s two years, and so that will again be eight months. So it’s two and half or 30 months [for count 2] plus 8 [for count 3], plus 8 [for count 4].” The trial court did not explicitly state that the sentence for count 4 would be served consecutively to counts 2 and 3, but we conclude by the statement “plus 8, plus 8” that it implicitly determined the sentence for count 4 would be served consecutively.
Generally, when there is a discrepancy between the clerk’s minute order and the oral pronouncement recorded in the reporter’s transcript, then the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Therefore, we conclude the court’s oral pronouncement is controlling and the minute order and abstract of judgment in case No. RIF130518 must be corrected to reflect that defendant’s sentences for counts 3 and 4 are to be served consecutively.
In regards to the probation violation cases (case Nos. RIF127978 & SWF005925), defendant contends the abstracts of judgment fail to note whether the sentences are to be served consecutively or concurrently. The abstracts of judgment for the probation violation cases should be amended to note that the sentences for those cases are to be served consecutively, in order to properly reflect the decision of the trial court. (§ 669.)
DISPOSITION
The judgment is affirmed. The trial court is directed to modify the abstract of judgment in case No. RIF130518 to reflect that defendant was found guilty by a jury and that defendant’s sentences for counts 3 and 4 are to be served consecutively. The trial court is also directed to correct the minute order, dated March 2, 2007, in case No. RIF130518 to note that defendant’s sentences for counts 3 and 4 are to be served consecutively. The trial court is further directed to correct the abstracts of judgment for case Nos. RIF127978 and SWF005925 to note that the sentences for those cases are to be served consecutively. The trial court is directed to forward the corrected abstracts of judgment to the Department of Corrections and Rehabilitation.
We concur: Richli J., Gaut J.