Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA059682, Elden S. Fox, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Defendant Jovanny P. Theus, convicted of multiple counts of robbery, kidnapping, and forcible sex crimes, appeals from a judgment after a remand for resentencing. He contends he is subject to only one One Strike sentence under Penal Code section 667.61, subdivision (a) because all sexual offenses were committed during a single occasion. He contends further that under section 654 he cannot be punished for both kidnapping during the commission of a carjacking and kidnapping to commit robbery. We disagree with the first contention but agree with the second. We order the sentence on the kidnapping for carjacking count stayed and affirm the judgment as modified.
All subsequent references are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
We recounted the facts of this case in detail in our first unpublished decision, People v. Theus (Apr. 20, 2009, B207665 [nonpub. opn.]). Briefly stated, those facts are as follows: On the evening of February 21, 2006, defendant and another man, Denson Henderson, kidnapped the victim, Emily R., as she was walking down a street in West Hollywood after having parked her car. Emily was told that she was being robbed and was first dragged across the street where defendant looked through her purse. The men then asked her how much money she had in the bank and took her back to her car, where they looked through her wallet. Defendant drove Emily’s car to a branch of Bank of America, where Henderson took her to an ATM machine and instructed her to use her debit card to withdraw money. After Emily made three unsuccessful attempts, Henderson returned her to the car, saying they would go to another bank. While defendant drove, Henderson forced Emily to orally copulate him and stuck his fingers inside her vagina.
We take judicial notice of the record in defendant’s first appeal and of our decision in that appeal.
Emily was then taken to a converted garage, where she was kept for hours. She was repeatedly raped by the two men, who switched positions, took turns penetrating her vagina and anus and forced her to orally copulate them. Later, the men left the room and returned with a camera. They inserted objects in her vagina and took pictures of her. She was then asked to write down her personal information, and that night, Nakeya Whitman, a cohort of Henderson’s, attempted to withdraw money from Emily’s bank accounts. At some point, Emily was left alone with defendant. They talked, and he forced her to have sex with him. When Henderson returned, he told Emily that the men owed someone money. She offered to help them if they released her. She was eventually taken outside, where Henderson forced her to orally copulate him again. Defendant then drove her in her car to the 405 Freeway and left her there. She drove herself the rest of the way to Hollywood and was taken to a police station.
Defendant was charged with second degree robbery (count 1), kidnapping during commission of carjacking (count 2), kidnapping to commit robbery (count 3), attempted ATM robbery (count 4), kidnapping to commit sex crimes (count 5), three counts of forcible rape in concert (counts 8-10), three counts of forcible oral copulation in concert (counts 12-14), two counts of forcible sodomy in concert (counts 16, 17), and two counts of forcible sexual penetration by a foreign object in concert (counts 18, 25). Aggravated kidnapping allegations were attached to all forcible sex crime counts. One prior serious felony conviction also was alleged. Defendant was found guilty as charged. The trial court imposed One Strike sentences on the sex crime counts. It stayed the sentence on count 1. The sentences on counts 4, 8, 12, 16, and 18 were to run consecutively to the sentence on count 2. The sentences on counts 3, 5, 9, 10, 13, 14, 17, and 25 were to run concurrently to the sentences on count 2 and 8.
Henderson and Whitman were charged in the same information, which explains the breaks in the numbering of counts.
In our previous decision, we affirmed the judgment but remanded the case for resentencing, directing the trial court to evaluate the evidence under the former version of the One Strike law, section 667.61, subdivision (g), in effect when the crimes were committed. We ordered counts 4 and 5 stayed, but not count 2. Defendant was resentenced according to our decision, and appeals again.
Defendant filed this appeal immediately after his resentencing. He filed another appeal in case number B224432 after a later-held victim restitution hearing. On July 16, 2010, we ordered the two appeals consolidated.
DISCUSSION
I
On remand, the trial court imposed separate 25-years-to-life sentences under section 667.61, subdivision (a) for counts 8 (forcible rape in concert) and 18 (forcible sexual penetration by a foreign object in concert). Defendant argues that the sentence for count 18 is improper because all sexual offenses were committed during a single occasion. We disagree.
Section 667.61, also known as the One Strike law, provides for indeterminate terms of 25 or 15 years to life for certain forcible sex offenses committed under aggravating circumstances. (§ 667.61, subd. (a) & (b).) The aggravating circumstances include kidnapping that substantially increased the risk of harm to the victim. (Id., subd. (d)(2).) Former subdivision (g) stated that a One Strike sentence “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.” “[F]or the purposes of Penal Code section 667.61, subdivision (g), sex offenses occurred on a ‘single occasion’ if they were committed in close temporal and spatial proximity.” (People v. Jones (2001) 25 Cal.4th 98, 107 (Jones).) The sex crimes in Jones (one count of oral copulation and rape and three counts of sodomy) were committed in the backseat of a car over an hour and a half. (Id. at p. 101.) The court concluded that a single One Strike sentence should be imposed because the sexual assaults “occurred during an uninterrupted time frame and in a single location.” (Id. at p. 107.)
Section 667.61 was amended in 2006, after the crimes in this case occurred.
In People v. Fuller (2006) 135 Cal.App.4th 1336 (Fuller), the defendant raped the victim twice in her bedroom. They then got dressed and went into the living room. As he was leaving, the defendant changed his mind and raped the victim again. (Id. at p. 1339.) The court concluded that the rapes were committed on a single occasion because they took place in the victim’s apartment in the span of an hour. “The only movement was the short distance from her bedroom to the living room. Defendant kept [the victim] under his continuous and uninterrupted control during the entire time of the incident.” (Id. at p. 1343.)
Defendant contends that Jones and Fuller require us to conclude that the forcible rape in concert in count 8 was committed on the same occasion as the forcible sexual penetration by a foreign object in concert in count 18. In this case, all sex crimes with which defendant was charged occurred in the same space, the converted garage where Emily was kept for several hours from the late evening on February 21 to the early morning of February 22. The duration of her overall captivity was longer than the incidents in Jones and Fuller, even though her testimony does not make clear how long the sex crimes in question took to complete. But, unlike in Jones and Fuller, an appreciable break in the events in this case occurred when Emily was left alone after the initial series of sex crimes that included rape, sodomy and oral copulation in concert and before the next series of sex crimes that involved inserting objects in her vagina. While Emily testified that she did not attempt to escape because she was afraid, she was nevertheless left alone for a period of time before the men returned with the camera they used to photograph the inserted objects. This interruption distinguishes Jones and Fuller. The One Strike sentence for count 18 was properly imposed.
Emily testified that she was allowed to go to the bathroom at least twice during her captivity, but her testimony does not indicate exactly when these bathroom breaks occurred in relation to the sex crimes in question.
II
Defendant asks that we revisit an issue raised in his previous appeal—whether section 654 prohibits punishing him for both kidnapping during the commission of a carjacking (count 2) and kidnapping to commit robbery (count 3). The law of the case doctrine normally precludes reconsideration of an already decided issue in the same case. (People v. Boyer (2006) 38 Cal.4th 412, 441.) But failing to stay a sentence when a stay is required by section 654 would result in an unauthorized sentence in excess of the court’s jurisdiction. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) Because the law of the case doctrine is one of procedure, not jurisdiction, we choose not to apply it in this case “where its application will result in an unjust decision.” (People v. Stanley (1995) 10 Cal.4th 764, 787; see e.g. People v. Scott (1976) 16 Cal.3d 242 [reconsidering legality of pat down search]; Moore v. Kaufman (2010) 189 Cal.App.4th 604 [reconsidering voidness of judgment]).
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.” A course of criminal conduct is divisible into acts separately punishable under section 654 if the defendant had a separate objective for each offense. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) Multiple punishment is not permitted when all offenses were incident to one objective, but it is permitted for consecutive, although similar, objectives or simultaneous separate objectives. (Id. at p. 952.) The trial court’s finding that the defendant had separate objectives is reviewed for substantial evidence. (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
Section 209.5 punishes the kidnapping of a person during the commission of a carjacking and applies when “the victim is moved a substantial distance from the vicinity of the carjacking.” (§ 209.5, subd (a) & (b).) Section 209, subdivision (b) punishes the kidnapping of a person to commit robbery. In our previous decision, we concluded that section 209.5 was violated when Emily was dragged to her car with the objective of taking her car, whereas section 209 was violated when Emily was driven away from where she had parked, with the objective of forcing her to use her ATM card to obtain money. But because section 209.5, subdivision (b) requires that the victim be moved a substantial distance from the carjacking site, the kidnapping to facilitate the carjacking coincided with the kidnapping to commit robbery. Additionally, the kidnappers’ stated objective from the very beginning was to withdraw money from Emily’s bank account. Already on the street, they had asked Emily how much money she had in the bank. Before driving to the bank, they looked through her credit and debit cards. The taking of Emily’s car was, thus, incidental to their objective of driving Emily to an ATM to withdraw money from her bank account. Because there was only one objective, defendant cannot be punished for both kidnapping during the commission of a carjacking and kidnapping to commit robbery.
The potential term of imprisonment on both counts is the same: life with the possibility of parole, with a minimum eligibility for parole in seven years. (§§ 209, subd. (b)(1); 209.5, subd. (a); 3046, subd. (a)(1).) In defendant’s case, the minimum term of the sentence under each count is doubled under the Three Strikes law and a five-year prior serious felony enhancement is applied to each count. (§ 667, subd. (a)(1) & (e)(1); see also § 1170.12, subd. (c)(1).) We order the sentence on count 2 (kidnapping during the commission of a carjacking) stayed because we conclude that count 2 is incidental to count 3 (kidnapping to commit robbery) and because we already have ordered the sentence on count 4 (attempted ATM robbery) to be stayed under section 654, as duplicative to the punishment imposed on count 3. The abstract of judgment should be modified to reflect that the punishment for count 2 is stayed.
III
Defendant cites several discrepancies between the trial court’s oral pronouncement of sentence, the minute order, and the abstract of judgment.
Normally, the oral pronouncement of judgment controls over the abstract of judgment, which this court may order modified to correct clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)But under some circumstances a minute order or abstract of judgment may prevail over a reporter’s transcript, and the erroneous statement in the transcript may be deemed of no effect. (See People v. Cleveland (2004) 32 Cal.4th 704, 768; People v. Thompson (2009) 180 Cal.App.4th 974, 977-978.)
Defendant points out that the trial court incorrectly pronounced the sentences for counts 2 and 3 to be 15 years to life with a five-year enhancement instead of 14 years to life with a five-year enhancement. The court misspoke in this regard, but its misstatement is of no effect since other portions of the transcript, as well as the minute order and abstract of judgment, reflect the proper terms of 19 years to life for these counts.
Similarly, the trial court initially miscalculated the sentence on count 5 (kidnapping to commit sex crimes) as 33 years to life. The punishment for this count is the same as that for count 3 (kidnapping to commit robbery) as both are governed by section 209, subdivision (b)(1). The transcript reflects that the court corrected itself on the record, pronouncing a stayed sentence of 19 years to life. The minute order incorrectly states the sentence on count 5 as 33 years to life. The abstract of judgment does not reflect the sentence imposed. The minute order and abstract of judgment should be corrected to reflect the court’s final pronouncement of the stayed sentence on count 5.
The abstract of judgment incorrectly states that defendant is to pay the victim restitution fund $31,352.34. It should be modified to reflect that the trial court ordered defendant to pay the victim restitution fund $26,184.27.
The People contend that the abstract of judgment should be amended to reflect that the trial court imposed a five-year enhancement on count 16. That is incorrect. On remand, the court sentenced defendant to indeterminate terms under section 667.61, subdivision (a) only on counts 8 and 18. On counts 12 (forcible oral copulation in concert) and 16 (forcible sodomy in concert), it replaced the previously imposed indeterminate terms under the One Strike law with determinate terms. The court selected the middle term of seven years in sections 286, subdivision (d) and 288a, subdivision(d)(1) respectively and doubled it under section 1170.12, subd. (c)(1). It then imposed a single five-year enhancement on defendant’s aggregate determinate sentence. This was proper because a prior serious felony enhancement under the section 667, subdivision (a) is applied to every indeterminate term, but only once to a determinate sentence. (See People v. Williams (2004) 34 Cal.4th 397, 401-405; People v. Misa (2006) 140 Cal.App.4th 837, 845-846.) The abstract of judgment correctly reflects that the enhancement was imposed once on the determinate sentence.
DISPOSITION
Defendant’s sentence on count 2 (kidnapping during the commission of a carjacking) is ordered stayed pursuant to section 654. The superior court clerk shall prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment that reflects this change. The minute order and abstract of judgment shall be amended to reflect that the sentence on the stayed count 5 is 19 years to life. The abstract of judgment shall also be amended to reflect that defendant was ordered to pay the victim restitution fund $26,184.27. So modified, the judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.