Opinion
C078843
02-21-2017
THE PEOPLE, Plaintiff and Respondent, v. BILLY DEWAYNE WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF118317A)
Defendant Billy Dewayne Williams appeals his sentence following remand for resentencing following his initial appeal in case No. C070963. Previously, a jury convicted defendant of two counts of carjacking (Pen. Code, § 215, subd. (a); unless otherwise set forth, statutory references that follow are to the Penal Code; counts 1 and 2), two counts of second degree robbery (§ 211; counts 3 and 4), and one count of dissuading a witness (§ 136.1, subd. (b)(1); count 5). The jury found that defendant personally used a firearm in connection with all counts (§ 12022.53, subd. (b); counts 1 through 4; § 12022.5, subd. (a); count 5).
The court sentenced defendant to state prison for an aggregate term of 30 years eight months as follows: counts 1 and 2, the carjacking counts, the midterm of five years plus 10 years for gun use with sentence stayed on count 2 pursuant to section 654; counts 3 (victim Older) and 4 (victim Jauregui), the robbery counts, one-third the midterm (one year) plus one-third the midterm (three years four months) for the gun use to be served consecutively; and count 5, dissuading a witness, a consecutive, full midterm of three years (§ 1170.15) plus four years for gun use.
On appeal, defendant contended the carjackings were incidental to the robberies and that the two robberies and two carjackings were committed with the same intent and objective, that is, to take the victims' property. He argued the terms for the two robberies should have been stayed pursuant to section 654.
We concluded that the trial court's statement that the robberies involved separate victims did not cover whether defendant harbored separate intents and objectives in committing the carjacking and robberies. We remanded the matter to the trial court for those determinations, stating that "[i]f the court finds there was not a separate intent and objective for the carjackings and the robberies, the sentence imposed for counts 3 and 4, the two robbery counts and the gun use enhancements must be stayed pursuant to section 654."
We also concluded, and defendant conceded, section 654 did not bar separate punishment for count 2, the other carjacking count, since it was a separate conviction for an act of violence against another victim. We affirmed the convictions but vacated the sentence and remanded for resentencing.
On remand, the trial court resentenced defendant to state prison for an aggregate term of 34 years eight months as follows: count 1, carjacking, midterm of five years plus 10 years for gun use; count 2, carjacking, a consecutive one-third the midterm (one year eight months) plus one-third the midterm (three years four months) for gun use; count 3, robbery, a consecutive one-third the midterm (one year) plus one-third the midterm (three years four months) for gun use; count 4, robbery, a consecutive one-third the midterm (one year) plus one-third the midterm (three years four months) for gun use; and count 5, dissuading, a consecutive, full midterm of two years plus four years for gun use.
On defendant's prior appeal, the parties did not challenge the sentence imposed on count 5, dissuading a witness. On remand, in the trial court, the prosecutor and defense counsel agreed that the enhanced punishment of subdivision (c) of section 136.1 (two, three, or four years) was inapplicable because defendant had not been charged and convicted of violating subdivision (c), but rather he was charged and convicted of violating subdivision (b)(1) of section 136.1 which carried a lesser triad of 16 months, two, or three years. The trial court properly modified the unauthorized sentence of the midterm of three years to the authorized sentence of the midterm of two years for count 5. An unauthorized sentence is " 'subject to judicial correction when it ultimately [comes] to the attention of the trial court or [reviewing] court' [citation] . . . ." (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256.) The sentencing on count 5 is not at issue in this appeal.
In this appeal, defendant again contends section 654 barred punishment for the robberies (counts 3 and 4) because insufficient evidence supports the trial court's express finding of separate intents and objectives. We agree and will stay sentence on counts 3 and 4. Defendant also contends that double jeopardy barred the punishment on count 2. We will reject this contention.
FACTS
The facts are quoted from this court's opinion in defendant's first appeal, People v. Williams (June 25, 2013, C070963) [nonpub. opn.], except as modified in brackets.
"In the evening on August 10, 2011, Robert Older and Shane Jauregui stopped at a gas station in Stockton. They were traveling to Sacramento from southern California, stopping in Stockton as well, to sell audio and video equipment out of the back of their vehicle. At the gas station, Older saw defendant who was putting air into his car tires. Older showed defendant the equipment worth more than $50,000 at retail and defendant asked how much for a projector. After agreeing on a price, defendant pulled out a bundle of cash, saying it was $5,000, and saying that he wanted to make a deal for all the equipment but [explained he] could not fit it all in his car. Older and Jauregui followed defendant to a parking lot behind a grocery store to make the deal. Defendant had Older and Jauregui wait in the parking lot while defendant drove home to drop off other passengers in the car. Five minutes later, defendant returned with two men [in the same car]. After defendant got out of his car and Older got out of his vehicle, they greeted one another and discussed where to drop the equipment. Defendant then put Older in a headlock and held a gun to his neck. Defendant ordered Jauregui out of the passenger seat of the vehicle and one of defendant's cohorts opened Jauregui's door, pulling him out. Defendant and his cohorts stole the victims' wallets and other items from their pockets and threatened the victims telling them not to call the police, stating that they knew where the victims lived. [Defendant also told Older that he (defendant) intended to pay for the equipment but they killed his mother over a television.] [¶] When defendant's accomplice started to take a box from the victims' vehicle, defendant ordered him to stop and to just take the ['whole f------ truck.'] After throwing Older to the ground, defendant got in his car and drove away. Defendant's cohort got in the victims' vehicle and drove off with all the equipment. [The whole robbery and carjacking occurred rapidly, in about two minutes.] Older and Jauregui called the police and identified defendant from a photo lineup."
The next day, Older and Jauregui looked for their vehicle and found it parked in front of some apartments which were located where defendant had driven to drop off his passengers the previous day and near the grocery store where the victims were carjacked and robbed. Nothing was left in the victims' vehicle.
DISCUSSION
At resentencing, defense counsel argued defendant had a single intent and objective, that is, to deprive the two victims of all of their property on their persons and in their vehicle and that the robberies and carjacking occurred simultaneously similar to the facts in People v. Dominguez (1995) 38 Cal.App.4th 410 (Dominguez). The prosecutor submitted on the issue, stating his belief that the facts "could go either way" and noting that "if the defendant's intent was to . . . take the property out of the vehicle then there was no real reason to take the . . . personal items from the two victims" except that defendant was charged and convicted of dissuading a witness (§ 136.1; count 5) for telling the victims, " 'I now know who you are and where you live [be]cause I took your ID.' "
In finding a separate intent and objective for the robberies and carjackings, the court found as follows:
"That defendant made arrangements to meet the victims at the location near defendant's residence, Food-4-Less;
"The defendant arrived with others, in vehicles;
"The defendant took the victims' personal property using physical force and a firearm, accomplishing the robbery, in violation of Penal Code section 211;
"Defendant's cohorts begin to carry out the plan to remove the electronics from the victims' vehicle and take them away in the vehicles in which defendant arrived and his cohorts arrived at the Food-4-Less scene, thus demonstrating further their intent and objective to accomplish the robbery;
"However, during the - their effort to accomplish that separate [intent] and objective to complete the robbery, defendant then forms a new separate intent and objective and instructs the others not to remove the electronics but to take the vehicles themselves, with the electronics yet inside;
"Defendant used physical force and violence, the firearm also, to accomplish the carjacking, in violation of Penal Code section 215, pursuant to this newly formed intent and objective, this separately formed intent and objective. And I listened carefully for that at the time that the - all the evidence was presented because I anticipated this would be an issue.
"He informed his cohorts not to remove the electronics, as was the initial intent and objective upon their arrival at the Food-4-Less scene, which is made evident from their activities at the scene.
"But pursuant to that newly formed intent and objective, the separate intent and objective from the Penal Code section 211 violation, defendant directed, he and his cohorts accomplished the violation of Penal Code section 215, carjacking the entire vehicle with the electronics yet inside, thereby accomplishing the intent and objective in the carjacking to secure possession of the vehicle, facilitate and expedite their escape from the scene, to transport some of the stolen items, and to at least - to prohibit if at least make difficult a pursuit and detection, and to strand the victims in a city unfamiliar to them.
"These separate intents and objectives were accomplished by the carjacking, separate from the intent and objective to rob."
I
A person may be charged and convicted of both carjacking and robbery based on the same conduct. (§ 215, subd. (c); People v. Ortega (1998) 19 Cal.4th 686, 700.) "However, no defendant may be punished under [section 215] and Section 211 for the same act which constitutes a violation of both [section 215] and Section 211." (Ibid.; § 215, subd. (c); italics added.)
"Carjacking is defined as 'the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.' (Pen. Code, § 215, subd. (a).) Robbery is defined as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' (Pen. Code, § 211.) The similarities between the definition of carjacking and the definition of robbery are apparent at once. Both involve 'the felonious taking' of property that is 'in the possession of another' person. Both require that the taking be from the 'person or immediate presence' of the person. Both are 'accomplished by means of force or fear.' True, there are differences. Robbery can involve any type of personal property, while carjacking deals with a single form of property. Also, robbery requires an intent to permanently deprive the victim of possession of the property, while carjacking can be committed with the intent of temporary dispossession. By virtue of these differences, neither carjacking nor robbery is a necessarily included offense of the other. [Citations.] Nevertheless, there is an undeniable measure of overlap between robbery and carjacking." (In re Travis W. (2003) 107 Cal.App.4th 368, 373.)
"It is equally plain that the overlap between robbery and carjacking were expressly recognized by the Legislature when it made carjacking a crime. The statute making carjacking a crime also provides: 'This section shall not be construed to supersede or affect [Penal Code] Section 211. A person may be charged with a violation of this section and Section 211. However, no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211.' (Pen. Code § 215, subd. (c), added by Stats. 1993, ch. 611, § 6, p. 3508.) Concerning this provision our Supreme Court stated: 'There would be no need for the Legislature to preclude multiple punishment for carjacking and robbery unless a defendant could be convicted of both carjacking and robbery based upon the same conduct. Subdivision (c) of [Penal Code] section 215, therefore, constitutes an expression of legislative intent permitting multiple convictions of carjacking and robbery based upon the same conduct.' (People v. Ortega[, supra,] 19 Cal.4th [at p.] 700 [80 Cal.Rptr.2d 489, 968 P.2d 48].) These are unmistakable expressions from both the Legislature and our highest court that a carjacking can also be a robbery and thus within the statutory prohibition against double punishment for '[a]n act . . . that is punishable in different ways by different provisions' (Pen. Code, § 654)." (Travis W., supra, 107 Cal.App.4th at p. 375.)
" ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' [Citation.] However, if the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.] ' "The defendant's intent and objective are factual questions for the trial court; . . . there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]" [Citation.]' [Citation.] [¶] We review the trial court's findings 'in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.]" (People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085 (Green); italics added.)
People v. Correa (2012) 54 Cal.4th 331 (Correa) held that "section 654 does not bar multiple punishment for multiple violations of the same criminal statute," disapproving dictum in Neal v. State of California (1960) 55 Cal.2d 11, 18, footnote 1, as undermining the purpose of section 654. (Correa, at pp. 334, 341-343.) Correa announced a new rule which does not apply retroactively. (Id. at pp. 334, 344-345.) --------
Defendant contends the trial court's findings of multiple intents and objectives are not supported by substantial evidence. He argues the facts here are indistinguishable from those in Dominguez, supra, 38 Cal.App.4th 410 and distinguishable from those in Green, supra, 50 Cal.App.4th 1076.
Green found sufficient evidence that the defendant formed a separate intent and objective for the robbery and carjacking. Green and his cohort approached the victim who was in her car in an apartment complex garage. Green put a gun to her head and took her purse. Green's cohort left when Green asked the victim the number of her apartment. Green alone kidnapped the victim, drove her to an area where he sexually assaulted her, and then took her car. (Green, supra, 50 Cal.App.4th at pp. 1080-1081.) "Because the carjacking was thus separated in time and place from the initial robbery of [the victim's] purse and was interrupted by the sexual attack perpetrated by Green, the record contains sufficient evidence to support the trial court's explicit finding the taking of the purse and the taking of the vehicle were separate incidents which merited separate and additional punishment." (Id. at p. 1085.)
In Dominguez, the defendant entered the victim's van and put a gun to his neck, demanding everything he had and threatening to kill him. The victim handed over two rings and a chain and then fled from the van. The defendant took the victim's van. (Dominguez, supra, 38 Cal.App.4th at pp. 414-415.) Finding that sufficient evidence supported the trial court's finding that section 654 applied, Dominguez determined that the carjacking and robbery were "the same act" within the meaning of section 215, subdivision (c), and noted "[t]he long-standing rule [] that '. . . the theft of several articles at [the] same time constitutes but one offense [even where] such articles belong to several different owners.' " (Dominguez, at pp. 419-420.)
Claiming Dominguez is distinguishable, the People argue the robbery began and ended when defendant and his cohorts had taken the property from the victims' pockets and then defendant changed his intent and formed a new intent to steal the truck with all the equipment. We are not persuaded by the People's argument that defendant's intent and objective was at first to take the victims' property from their pockets, and then thereafter, his intent and objective was to take their vehicle.
" '[T]he purpose of section 654 "is to insure that a defendant's punishment will be commensurate with his culpability." ' [Citation.] 'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation.] ' "The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' [Citation.]" (People v. Capistrano (2014) 59 Cal.4th 830, 886.)
Thus, there must be evidence to support the findings of the trial court that defendant formed a separate intent and objective for the robberies and carjackings for which he was sentenced. We view the evidence in the light most favorable to the trial court's findings. (Capistrano, supra, 59 Cal.4th at p. 887.) If there is sufficient evidence, we affirm the trial court's ruling which imposed multiple punishment. If the evidence is insufficient to support the trial court's findings, we modify the judgment, staying sentence on the robberies.
Here, insufficient evidence supports the trial court's finding of separate intents and objectives in robbing and carjacking the victims. The trial court erroneously found that defendant and his two cohorts arrived in more than one vehicle to assist in the transport of the equipment. From this factual error, the trial court made its erroneous conclusions. The evidence at trial shows there were two vehicles, defendant's car and the victims' vehicle.
At the gas station, when shown the equipment worth $50,000 in the back of the victims' vehicle, defendant expressed interest and wanted to make a deal for all the equipment but could not fit it all in his car. He had the victims follow him to the parking lot behind the grocery store. Defendant then left to drop off other passengers in his car and then returned with two cohorts, all in the same car. Defendant and Older got out of their respective vehicles, greeted one another, and then defendant put Older in a headlock, holding a gun to his neck. While holding Older in a headlock using a firearm, defendant emptied Older's pocket, obtained Older's identification, and threatened to go to Older's house and kill him if he called the police. Defendant also said that he intended to pay for the equipment but they had killed his mother over a television. While still holding Older in a headlock, defendant ordered a cohort not to take a box from the victims' vehicle but to take the "whole f------ truck." One of defendant's cohorts took Jauregui out of the vehicle and removed everything from his pockets which included a wallet and $2,300 in cash and told him that they had his identification and not to go to the police. Defendant drove away in his car and defendant's cohorts were already gone in the victims' vehicle. The crimes occurred in about two minutes.
For example, in Capistrano, the defendant argued his carjacking convictions were actually vehicle thefts that were "part and parcel of a single course of conduct, beginning when the victims were removed from their cars and ending only when defendants left with the stolen items, which included the vehicles." (Capistrano, supra, 59 Cal.4th at p. 887.) Capistrano disagreed, noting that the defendant was charged and convicted him of "two distinct crimes of violence against the victims, robbery and carjacking." (Ibid.) Capistrano recounted the evidence supporting the trial court's ruling that the defendant harbored separate intents and objectives: "Defendant and his cohorts confronted the victims at two points. They first accosted them at their cars and then again, inside the victims' residences when they demanded the victims' money and property. Had defendant simply intended to commit a carjacking, he could have done so at the initial point of contact. The evidence reveals, however, that defendant had another, distinct purpose—to rob (and commit other crimes) inside the victims' homes. The elevation of the threat to the victims by forcing them into their homes where defendant committed additional crimes amounts to a separate criminal objective. (See People v. Green[, supra,] 50 Cal.App.4th [at p.] 1085 [defendant approached victim in her vehicle, robbed her of her purse, and then drove her to a secluded area where he attempted to rape her before driving off in her car; 'the record contains sufficient evidence to support the trial court's explicit finding the taking of the purse and the taking of the vehicle were separate incidents which merited separate and additional punishment'].)" (Capistrano, supra, 59 Cal.4th at p. 887.)
Here, defendant knew from the get-go (at the gas station) that the equipment worth $50,000 would not all fit in his car. He told Older he had planned to pay for the equipment but changed his mind, having returned to the parking lot in the same car. Defendant was the ringleader, instructing his cohorts to steal the victims' vehicle with the equipment. They stole the belongings in the victims' pockets, the equipment in the vehicle, and the vehicle to transport the equipment. The carjacking and robbery offenses occurred at the same time and place, simultaneously in the grocery store parking lot. Based on the facts of this case, defendant's intent was to steal all the victims' belongings. Insufficient evidence supports the trial court's finding defendant formed a separate intent and objective for each offense for which he was sentenced. Multiple punishments were thus not permitted.
Defendant could be punished for the carjacking which carries a longer sentence but not for the robberies - section 654 applied. We will modify the judgment, staying sentence on counts 3 and 4 and their respective enhancements.
II
Defendant contends double jeopardy barred the punishment for count 2. We disagree.
"When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing." (People v. Hanson (2000) 23 Cal.4th 355, 357.) There is an exception for an unauthorized sentence which may be corrected at any time, including on remand for resentencing even if a more severe sentence results.
When a sentence is vacated for sentencing error and remanded for resentencing, the trial court can impose a greater sentence than the original if the sentence was unauthorized. (See People v. Craig (1998) 66 Cal.App.4th 1444, 1448, 1450 ["after successful appeal of a conviction a defendant may not upon reconviction be subjected to an aggregate sentence greater than that imposed at the first trial" but "an unlawful or unauthorized sentence may be increased without offending double jeopardy"].)
Defendant argues the trial court originally imposed a concurrent midterm of five years for count 2 plus 10 years for the gun use. Defendant misreads the record. The trial court imposed sentence on counts 1 and 2, five years plus 10 years for both, but stayed sentence on count 2. The trial court concluded it was "require[d]" to stay sentence on count 2. In other words, the trial court believed that a stay was mandatory. In defendant's first appeal, we determined this was erroneous as defendant conceded (an issue defendant raised). We concluded that the trial court had misunderstood section 654, that is, it had legally erred and remanded for it to correct its ruling. "[A]n incorrect application of section 654 produces an unauthorized sentence which may be rectified on remand." (People v. Price (1986) 184 Cal.App.3d 1405, 1411; see also People v. Vizcarra (2015) 236 Cal.App.4th 422, 431-438.) This court remanded for the trial court to exercise its sentencing discretion and determine whether to impose a concurrent or consecutive sentence or stay sentence on count 2. On remand, the court exercised its sentencing discretion and imposed a consecutive one-third the midterm or one year eight months for count 2 plus one-third the midterm or three years four months for the gun use. The trial court did not err in imposing a consecutive sentence on count 2.
DISPOSITION
The judgment is modified, staying sentence on counts 3 and 4 and their respective enhancements, resulting in an aggregate sentence of 26 years. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
HULL, Acting P. J. We concur: ROBIE, J. MURRAY, J.