Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06WF3312, Thomas M. Goethals, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury found Heruvey Rudy Madera guilty on all 10 counts charged for crimes committed on December 9, 24, and 28, 2006. The jury found Madera guilty of the following crimes committed on December 24 and 28: carjacking (count 1, Pen. Code, § 215(a)), unlawfully driving or taking a motor vehicle (count 2, Veh. Code, § 10851(a)), robbery (count 3, § 211), participating in a criminal street gang (count 4, § 186.22(a)). None of the issues on appeal pertains specifically to counts five through 10, the crimes committed on December 9, 2006, or to the enhancements imposed solely on those counts.
Further code references are to the Penal Code unless otherwise indicated. The designation of “subdivision” or “subd.” is omitted from code citations because the use of parentheses surrounding a letter already establishes the reference to a subdivision.
The jury found Madera guilty of the following crimes committed on December 9: two counts of robbery (counts 5 and 6, § 211), dissuading a witness (count 7, § 136.1(b)(1)), gang-related graffiti (count 8, § 186.22(d)), participating in a criminal street gang (count 9, § 186.22(a)), and unlawful possession of a firearm by a felon (count 10, § 12021(a)(1)). As to counts 5, 6, and, 7, the jury also found Madera used a firearm in the commission of the offenses (§ 12022.53(b)).
The jury also found Madera committed counts 1, 2, 3, 5, 6, and 7 for the benefit of a criminal street gang (§ 186.22(b)(1)) and had not remained free from prison custody for a period of five years (§ 667.5(b)). The trial court sentenced Madera to a prison term of 15 years to life.
In his opening brief, Madera argued: (1) the trial court erred under section 654 by imposing a sentence on count 3 concurrent to the sentence on count 1; (2) the trial court erred by imposing a 10-year sentence for the gang enhancement allegations on count 2 pursuant to section 186.22(b)(1)(C) and should have imposed a five-year term enhancement pursuant to section 186.22(b)(1)(B); (3) the trial court erred by denying him conduct credits; and (4) the trial court erred by staying rather than striking the prior conviction alleged under section 667.5.
As to the first argument, we conclude substantial evidence supported the implied finding Madera had multiple, independent criminal objectives in committing the crimes of carjacking and robbery on December 24, 2006. The trial court therefore did not err under section 654 by imposing concurrent sentences on those counts.
As to argument two, the Attorney General acknowledges the trial court erred by imposing a 10-year term enhancement and explains the court should have imposed a two, three, or four year term enhancement under section 186.22(b)(1)(A). Madera agrees. The Attorney General concedes arguments three and four. We appreciate the Attorney General’s commendable candor, and we agree with those concessions.
Accordingly, we remand for the limited purposes set forth in the disposition but in all other respects affirm.
Facts
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
In light of the issues raised on appeal, the relevant facts are limited to those pertaining to counts 1 through 4.
During the night of December 24, 2006, Adam Van Dersande drove a Chrysler PT Cruiser automobile to a gas station to buy ice cream and cigarettes. As Van Dersande walked back to his car after making his purchases, Madera and Francisco Marquez approached him and asked for a ride to their car, which they said had broken down on the 91 Freeway. Van Dersande agreed. Madera sat in the front passenger seat and Marquez sat in the backseat on the driver’s side.
While Van Dersande drove toward the 91 Freeway, Madera asked to use his cell phone to call a tow truck. Van Dersande handed his cell phone to Madera, who made a call. As they approached the 91 Freeway, Marquez reached his arm around Van Dersande’s neck and placed Van Dersande in a chokehold. Van Dersande felt a knife pressing against his neck. Madera told him to pull into a parking lot at a McDonald’s restaurant.
Van Dersande drove into the parking lot and stopped. Madera reached over, took the keys out of the ignition, and told Van Dersande to take everything out of his pockets. Marquez continued to hold Van Dersande in chokehold and press a knife against his neck. Van Dersande took out his lighter, cigarettes, and wallet. After taking these items, Madera got out of the car and walked around the car to the driver’s side. As Marquez released Van Dersande from the chokehold, Madera pulled him out of the car. Madera told Van Dersande, “‘[g]et out of here. We’re going to kill you.’”
Van Dersande ran to a truck parked nearby and told the driver he had been carjacked. Van Dersande borrowed a cell phone and called the police.
On December 28, 2006, Garden Grove police officer Douglas Pluard saw a car matching the description of Van Dersande’s stolen PT Cruiser. After confirming the car was Van Dersande’s, officer Pluard activated his patrol car lights and siren and followed the stolen car. The car stopped, and three men jumped out of it and ran toward a condominium complex. The driver was wearing a dark-colored jacket. Officer Pluard called for backup and pursued the men. Police officers found Madera in a backyard shed, along with a dark-colored jacket matching the description of the one worn by the driver. A gas card belonging to Van Dersande fell out of the jacket pocket.
Madera was a member of “Too Fucking Sick” (2FS), a criminal street gang, and had the gang moniker “Casper.” Garden Grove Police detective Peter Vi testified that in his opinion Madera committed the charged crimes for the benefit of a criminal street gang.
Discussion
1. Section 654-Multiple Punishments for Carjacking and Robbery
The jury convicted Madera of carjacking (count 1) and robbery (count 3) occurring on December 24, 2006. The trial court imposed the term of 15 years to life for the carjacking with a concurrent sentence for the robbery and gang enhancements. Madera argues the carjacking and robbery were part of a continuous course of indivisible criminal conduct, and, therefore, section 654 required the trial court to stay sentence on count 3.
Section 215 creates and defines the crime of carjacking and makes it a felony. Section 211 defines the crime of robbery. Section 215(c) states: “This section shall not be construed to supersede or affect 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.” (Italics added.) Whether section 215(c) should be interpreted consistently with section 654 has not been decided. Cases addressing multiple punishments for carjacking and robbery have decided the issue under section 654. (E.g., People v. Green (1996) 50 Cal.App.4th 1076, 1083-1085; People v. Dominguez (1995) 38 Cal.App.4th410, 419 (Dominguez) [“The prosecutor conceded... § 654’s applicability in the trial court”].)
Section 654(a) reads in relevant part: “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.” Section 654 prohibits multiple sentences where a single act violates more than one statute, or where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct with a single intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19-20; People. v. Vu (2006) 143 Cal.App.4th 1009, 1033.)
Under the multiple and independent criminal objectives test, “if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” (People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted; see also People v. Latimer (1993) 5 Cal.4th 1203, 1207-1213.) “[C]ases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous.” (People v. Britt (2004) 32 Cal.4th 944, 952.)
Whether a defendant entertained multiple criminal objectives is a question of fact and the trial court’s express or implied findings on that question will be upheld if supported by substantial evidence. (People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) “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 [of fact] could reasonably deduce from the evidence. [Citation.]’” (People v. Green, supra, 50 Cal.App.4th 1076, 1085.)
Here, assuming the crimes of carjacking and robbery were part of a single course of criminal conduct, sufficient evidence supported the trial court’s implied finding Madera harbored separate criminal objectives in committing those crimes. Carjacking and robbery in this case involved separate objects: (1) Van Dersande’s car, and (2) Van Dersande’s personal property from his wallet. The crimes of carjacking and robbery were not committed simultaneously, and Madera engaged in separate acts to commit each crime. To commit robbery, Madera demanded that Van Dersande empty his pockets while Marquez held him in a chokehold and pressed a knife to his neck. To commit carjacking, Madera pulled Van Dersande from the PT Cruiser as Madera released him from the chokehold and told him to run away. It could be reasonably inferred that Madera took the keys out of the ignition as part of the robbery because doing so prevented Van Dersande’s escape by car.
The trial court could conclude Madera harbored two separate criminal objectives-(1) robbing Van Dersande of his wallet (and cigarettes and lighter), and (2) carjacking Van Dersande’s car.
Madera relies on Dominguez, supra, 38 Cal.App.4th 410, arguing its facts are similar to those in this case. In Dominguez, the defendant entered a van, put a weapon to the driver’s neck, and said “‘“[g]ive me everything you have. If you turn around, I’ll kill you.”’” (Id. at p. 414.) The driver gave the defendant two rings and a chain, then fled. (Id. at pp. 414-415.) The defendant was convicted of carjacking and robbery. The trial court made an express finding that section 654 barred punishment for robbery in addition to carjacking. (Id. at p. 420.)
The appellate court concluded substantial evidence supported that trial court’s finding because the defendant committed both robbery and carjacking by same act-putting a weapon next to the victim’s neck and demanding the victim turn over everything he had-and the victim simultaneously gave the defendant jewelry and the van. (Dominguez, supra, 38 Cal.App.4that pp. 419-420.) The Dominguez court did not hold, as a matter of law, that section 654 precludes punishment for both carjacking and robbery when a defendant takes the victim’s car and other personal property.
Here, in contrast, the trial court impliedly found section 654 did not bar punishment for both carjacking and robbery. Substantial evidence supported that finding. Unlike Dominguez, the robbery and carjacking did not take place simultaneously but in two separate and distinct steps: First, Madera demanded that Van Dersande empty his pockets, then Madera walked around to the passenger side of the car and pulled him out. The robbery was not “merely an ‘incident to and a means of perpetrating’” the carjacking, or vice versa. (People v. James (1977) 19 Cal.3d 99, 120.)
Relying on People v. Bauer (1969) 1 Cal.3d 368, Madera argues he can be punished only once for robbing Van Dersande of multiple items of personal property. In Bauer, the defendant and his accomplice entered the home of three women, tied them up, and took several items of personal property from the home. The defendant and his accomplice then drove away in a car belonging to one of the women. The court held the defendant could not be punished for both robbery and car theft because both were part of one indivisible transaction. (Id. at pp. 375-376.) “[W]here a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible.” (Id. at pp. 376-377.) But, as Bauer recognized, “[t]he divisibility of a course of conduct depends upon the intent and objective of the actor.” (Id. at p. 376.) Here, the evidence supported a finding Madera entertained two criminal objectives.
Madera also relies on People v. Ortega (1998) 19 Cal.4th 686 (Ortega), People v. Gamble (1994) 22 Cal.App.4th 446 (Gamble), and People v. Irvin (1991) 230 Cal.App.3d 180 (Irvin). None of these cases address the issue presented here. In Ortega, the Supreme Court concluded “a defendant may be convicted of both carjacking and robbery, or of both carjacking and theft, ” but not of both robbery and theft based on the commission of a single act or course of conduct. (Ortega, supra, 19 Cal.4th at pp. 659-690.) The Court distinguished and did not address the issue whether section 654 permits multiple sentences based on those same combinations of offenses. (Id. at pp. 692-693.)
In Irvin, the Court of Appeal concluded a defendant could not be convicted of both robbery and grand theft of an automobile because grand theft is a necessarily included offense of robbery. (Irvin, supra, 230 Cal.App.3d at pp. 184-185.) In Gamble, the Court of Appeal confirmed its conclusion in Irvin. (Gamble, supra, 22 Cal.App.4th at p. 452.) Neither case deals with multiple punishments for carjacking and robbery.
2. Enhancement Under Section 186.22 to Count 2
Madera argues the trial court erred by imposing a 10-year enhancement pursuant to section 186.22(b)(1)(C) on count 2 (unlawfully driving a motor vehicle) because that enhancement applies only to serious or violent felonies, as listed in section 667.5(c). Madera argues the appropriate enhancement is the five-year term under section 186.22(b)(1)(B).
The Attorney General agrees with Madera the trial court erred by imposing the 10-year sentence enhancement and advises the trial court should have imposed a two-, three-, or four-year term as an enhancement under section 186.22(b)(1)(A). In his reply brief, Madera agrees with that proposition.
Count 2 did not charge a serious felony as defined in section 1192.7(c) or a violent felony as defined in section 667.5(c). We therefore direct the trial court to modify the judgment by striking the 10-year enhancement imposed on count 2 pursuant to section 186.22(b)(1)(C) and by exercising its discretion on remand in selecting a term of two, three, or four years as an enhancement under section 186.22(b)(1)(A).
3. Presentence Custody Credit
Madera contends the trial court erred by denying him any presentence conduct credit. The abstract of judgment reflects 687 days of actual credit and 120 days of conduct credit for a total of 807 days of credit. Madera was arrested on December 28, 2006, and sentenced on March 13, 2009. Therefore, as Madera points out, he was entitled to 807 days of actual credit. Under section 293.11, he was entitled to conduct credit of 15 percent of the number of days of actual credit, or 121 days. The Attorney General agrees, and so do we.
Accordingly, we will order the trial court to modify the judgment by crediting Madera with 807 days of actual credit and 121 days of conduct credit for a total of 928 days of presentence custody credit.
4. Prison Prior Enhancement
Madera argues the trial court erred by staying rather than striking the prior prison term enhancement imposed under section 667.5(b). The Attorney General agrees. A trial court must either impose or strike prison prior allegations under section 667.5(b). (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The Attorney General states: “Accordingly, as it appears the trial court’s intention was not to impose punishment on this enhancement, respondent agrees that the judgment should be modified to reflect that the court struck, rather than stayed the prison prior enhancement.”
We will order the judgment modified to strike the prison prior enhancement under section 667.5(b).
Disposition
The matter is remanded with directions to the trial court to:
1. Modify the judgment by striking the 10-year sentence enhancement pursuant to section 186.22(b)(1)(C) to count 2 and by exercising its discretion in selecting an enhancement term to count 2 under section 186.22(b)(1)(A).
2. Modify the judgment to credit Madera with 807 days of actual credit and 121 days of conduct credit for a total of 928 days of presentence custody credit.
3. Modify the judgment by striking the prison prior enhancement under section 667.5(b).
4. Prepare an amended abstract of judgment, and forward a certified copy of it to the Department of Corrections and Rehabilitation, Division of Adult Operations.
As modified, and in all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.