P. v. Adame









Filed 11/17/10 P. v. Adame CA2/6





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. DAVID ADAME et al., Defendants and Appellants.

2d Crim. No. B213536 (Super. Ct. No. KA084318) (Los Angeles County)

David Adame, Monica Vasquez, and Patrick Delgado appeal the judgments entered after a jury convicted each of them of second degree robbery (Pen. Code,[1] § 211), kidnapping to commit robbery (§ 209, subd. (b)(1)), dissuading a witness (§ 136.1, subd. (c)(1)), and carjacking (§ 215, subd. (a)). The jury also found true allegations that appellants committed the crimes for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)(C) & (b)(4)).[2] The trial court sentenced Adame to 52 years to life in state prison. Delgado was sentenced to 37 years to life, and Vasquez received a sentence of 30 years to life. Appellants contend (1) the court erred in admitting Vasquez's recorded jailhouse conversations; (2) the evidence is insufficient to support their convictions for dissuading a witness; and (3) the court sentenced them on both the robbery and kidnapping counts in violation of section 654. Vasquez also contends the court erred in refusing to instruct the jury on the defenses of duress and necessity, and claims her sentence amounts to cruel and unusual punishment. Adame and Delgado also contend they received constitutionally ineffective assistance of counsel at sentencing. We shall order sentencing stayed on the robbery count as to each appellant pursuant to section 654. We shall also order the case remanded for resentencing as to Delgado and Vasquez. Otherwise, we affirm.
STATEMENT OF FACTS
Sometime between 12:00 and 2:00 a.m. on August 27, 2008, Guillermo Tagalogon arrived at an apartment complex in an area of Pomona controlled by the 12th Street gang. Adame and Delgado approached Tagalogon as he stood near his car and asked what he was doing there. Tagalogon replied that he was looking for his friend "Tommy."[3] At some point they were joined by a group of about seven other people that included Vasquez. Tagalogon had met Vasquez through a mutual friend who was a member of the Cherryville gang, a rival of the 12th Street gang.
Vasquez whispered something to Adame, then struck Tagalogon in the face with a car key. Vasquez accused Tagalogon of being a member of the Cherryville gang and told him he was "in the wrong neighborhood." Adame also accused Tagalogon of being a Cherryville gang member and said he had "fucked up" by coming into 12th Street gang territory.
After Tagalogon complied with Adame's demand to hand over his car keys, several members of the group rifled the car taking Tagalogon's golf clubs, camera, and other items. Vasquez hit Tagalogon several times. Adame took Tagalogon's wallet, which held about $200, and checked the name on Tagalogon's driver's license to see if it was on a "shit list" that Adame kept. He was not.
Appellants blindfolded Tagalogon and ordered him into the back of his car. Adame got in the back seat with Tagalogon, while Delgado sat in the front passenger seat and Vasquez drove. Appellants continued to accuse Tagalogon of being a Cherryville gang member and discussed where they should take him.
After they had driven for awhile, either Adame or Delgado told Tagalogon that they knew where he lived. Vasquez drove to Tagalogon's apartment building, but Tagalogon refused to lead them to his apartment because he feared for his family's safety. Appellants forced Tagalogon to write a note stating that he had lent them his car, then dropped him off at a nearby freeway exit ramp. Tagalogon walked home; his wife called the police.
Pomona police officers stopped Tagalogon's car at about 4:00 a.m. Adame was driving and Delgado was in the front passenger seat. Vasquez was not in the car. Adame was also holding Tagalogon's cell phone. When told that the car had been reported stolen, Adame produced the note Tagalogon had written. The police brought Tagalogon to an in-field showup, where he identified his car as well as Adame and Delgado. Vasquez was arrested after Tagalogon told the police that she had been involved and identified her from a six-pack photographic lineup.
When Tagalogon was interviewed by the police later that morning, he said appellants accused him of being a spy for the Cherryville gang, blindfolded him and forced him into his car, took his wallet and other property, and then drove around before dropping him off. Appellants also told him that they would hurt him and his family if he contacted the police or conveyed any information to the Cherryville gang.
Vasquez's sister and Vasquez's boyfriend "Frank" visited her at the jail. A police recording of the conversation was played for the jury. In the course of that conversation, Vasquez called herself "stupid" and said she was "regretting it." She described how she had "socked" Tagalogon several times and said the prosecution would have no witnesses if he did not appear in court. She believed that she might be able to construct an alibi because Adame and Delgado had dropped her off shortly before they were pulled over, but worried that the police would find the "heat strap" when they searched her house.[4] Vasquez complained that she was "gonna look at time" even though "we only had him kidnapped for two hours." She also said that Adame had wanted to kill Tagalogon and either Adame or Delgado was going to "open the door and let him . . . off with a fucking diesel next to us." She asked her sister to contact Tagalogon and tell him she was just drunk and that she would give him "whatever he wants" if he dropped the charges. She believed that she was "fucked" and admitted she "wasn't thinking" when she had done "that."
Pomona Police Detective Robert McCrary testified on behalf of the prosecution as a gang expert. Cherryville and 12th Street are rival gangs, and the incident took place in 12th Street gang territory. Delgado stipulated at trial that he was a member of the 12th Street gang. Based on his experience and discussions with other gang officers, Detective McCrary opined that Adame was a member of the 12th Street gang and was known as "Speedy" or "Negro" and that Vasquez associated with that gang. The detective further opined that Tagalogon was associated with the Cherryville gang. When presented with a hypothetical based on the facts of the case, Detective McCrary opined that appellants committed the acts with which they were charged in order to promote and benefit the 12th Street gang. The presence of a Cherryville gang associate in 12th Street gang territory would have been perceived as a threat and the crimes committed against the associate would instill fear in him, project the strength of the 12th Street gang, and raise the status of those who participated in the crimes. The actions would also instill fear and intimidation in the community generally, thereby making it easier for the gang to commit other crimes.
DISCUSSION
I.
Vasquez's Recorded Statements
Adame and Delgado contend that Vasquez's recorded "jailhouse" conversation was admitted in violation of their Sixth Amendment confrontation rights pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and in violation of their federal right to due process as contemplated by People v. Partida (2005) 37 Cal.4th 428 (Partida). They also assign as error the court's denial of their request to redact certain statements under Evidence Code sections 352 and 1230.[5]
We reject Adame's and Delgado's federal constitutional claims. While we agree that two of Vasquez's statements did not meet the requirements of Evidence Code section 1230, we conclude that the error in admitting those statements was harmless.
A. Background
Prior to trial, the prosecution filed an in limine motion seeking to admit a transcript of the 47-minute long recording of the conversation Vasquez had with her sister Bertha and boyfriend "Frankie" while she was in jail. In that conversation, Vasquez makes self-incriminating statements such as, "I had the keys rolled up in my hand and I socked him," "I got dropped off," and "We only had him kidnapped for two hours." Vasquez is also heard stating that "Speedy [Adame] wanted him to disappear" and that either Adame or Delgado was planning to "open the door and let him . . . off with a fucking diesel next to us." She also claims that she was drunk when the incident occurred and urges Bertha and Frankie to convince Tagalogon to drop the charges. The prosecution moved to admit the entire conversation as a declaration against penal interest under Evidence Code section 1230. The prosecution also asserted that the statements were admissible against all three defendants because they were nontestimonial and therefore did not violate any confrontation rights under Crawford.
At the hearing on the motion, Delgado's attorney argued that the entire conversation was testimonial. Adame's attorney joined in that argument and added that the evidence should be excluded because it contained several self-serving statements and therefore lacked sufficient guarantees of trustworthiness. Counsel for Adame later added that "besides trying to make excuses about being drunk or being angry, there's also a shifting of blame within the statement, and I believe that also goes to its inherent unreliability." The trial court concluded that the entire conversation was nontestimonial. The court also found that the entire conversation was admissible under Evidence Code section 1230 as contemplated in People v. Greenberger (1997) 58 Cal.App.4th 298, because it contained numerous statements that were "clearly against . . . her own penal interest."
Before the recording was played at trial, Delgado's attorney asked the court to "exercise its discretion" by redacting Vasquez's statements that Adame "wanted him to disappear" and was going to "open the door and let him . . . off with a fucking diesel next to us." Counsel argued that the statements should be excluded because "I have no opportunity to cross-examine anybody with respect to the truth and veracity of this particular statement, and it is a very prejudicial statement in and of itself. And I think that it can be eliminated and still have the rest of the tape played pursuant to the transcript, and the People will get what they want, and it will be a more fair trial for Mr. Delgado." Adame's attorney joined in the request and asked the court to exercise its discretion to redact the statements under Evidence Code section 352. The prosecutor countered that the statements were "highly relevant" because they highlighted the violent nature of the incident and demonstrated why Tagalogon was "living in fear and afraid to testify against these individuals . . . ." The prosecutor further argued that the statements were admissible under People v. Greenberger because they "clearly portray[] exactly what was going on in that car and prior to getting in that car . . . ." In rebuttal, Adame's attorney added that the statements should be excluded as self-serving.
The court declined to redact the statements. In doing so, the court reasoned: "I don't think that the inference that she's trying to lay it all off on [Adame and Delgado] is consistent with the totality of the statement as contained in the transcript. [¶] And the statement relating to Speedy [Adame] wanting to make him disappear is consistent with the victim's comments that [Vasquez] had made statements about taking the guy to the place, at least his interpretation thereof. Taken with the rest of the testimony, it does not seem to be particularly exculpatory at all." The recording of Vasquez's entire conversation was subsequently played for the jury.
B. Analysis
1. Confrontation Clause
"The Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" (Crawford, supra, 541 U.S. at p. 42.) Out-of-court testimonial statements by a witness who cannot be cross-examined are inadmissible to establish the truth of an asserted matter. (Id. at p. 59.) "'Testimony' . . . is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' [Citation.]" (Id. at p. 51.) A testimonial statement is one the declarant "'. . . would reasonably expect to be used prosecutorially' . . ." [or a] 'statement[] made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . .' [Citation.]" (Id. at pp. 51-52.)
Adame and Delgado contend that Vasquez's jailhouse conversation was testimonial because an objectively reasonable person in her position would have known the statements were being recorded. We disagree with the very premise of this assertion because no objectively reasonable person would make inculpatory statements under such circumstances. In any event, a statement is not testimonial unless it "bears testimony," i.e., resembles testimony given for use in a formal proceeding and is made under circumstances that would lead the declarant to reasonably expect that it might be used for that purpose. The United States Supreme Court has recognized that "statements from one prisoner to another" are "clearly nontestimonial" and therefore do not implicate the Confrontation Clause. (Davis v. Washington (2006) 547 U.S. 813, 824-825.) "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law-right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement." (Crawford, supra, 541 U.S. at p. 51.) Because Vasquez's statements to her jailhouse visitors were plainly the sort of "casual remarks" that are nontestimonial in nature, they were not subject to exclusion under the Confrontation Clause.
2. Evidence Code sections 352 and 1230
Adame and Delgado assert that the court committed prejudicial error in failing to excise the portions of Vasquez's statements that either did not fall within the hearsay exception for statements against penal interest (Evid. Code, § 1230) or were unduly prejudicial (id. § 352).[6] We agree that Vasquez's statement regarding Adame wanting to kill Tagalogon should have been excluded, but deem the error harmless.
A hearsay statement is admissible as a declaration against penal interest if the proponent of the evidence can show that (1) the declarant is unavailable; (2) the declarations were against the declarant's penal interest when made; and (3) the declaration was sufficiently reliable to warrant its admission despite its hearsay character. (Evid. Code, § 1230[7]; People v. Lawley (2002) 27 Cal.4th 102, 153.) "'[T]he precedents in the hearsay area provide a persuasive reminder that declarations against penal interest may contain self-serving and unreliable information' and, consequently, 'an approach which would find a declarant's statement wholly credible solely because it incorporates an admission of criminal culpability is inadequate.' [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 611 (Duarte).) "Even a hearsay statement that is facially inculpatory of the declarant may, when considered in context, also be exculpatory or have a net exculpatory effect. [Citation.] Ultimately, as the high court has noted, 'whether a statement is self-inculpatory or not can only be determined by viewing it in context.' [Citation.]" (Id. at p. 612.)
In light of these concerns, our Supreme Court has dictated that "'the hearsay exception should not apply to collateral assertions within declarations against penal interest.' [Citation.] In order to '"protect defendants from statements of unreasonable men if there is to be no opportunity for cross-examination,"' we have declared [Evidence Code] section 1230's exception to the hearsay rule 'inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.' [Citations.]" (Duarte, supra, 24 Cal.4th at p. 612.) "[A] hearsay statement 'which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) does not meet the test of trustworthiness and is thus inadmissible.' [Citations.]" (Ibid.)
According to the People, Vasquez's hearsay statements that Adame wanted to kill Tagalogon and that either Adame or Delgado was going to "open the door and let him . . . off with a fucking diesel next to us" are admissible under Evidence Code section 1230 because they "supplied additional context regarding the circumstances of the crimes" in which he admittedly participated and were "an integral part of her description of the crimes, which directly shed light on the serious, vicious nature of the attack on Tagalogon." We are not persuaded. Even if these remarks might have had some tendency to implicate Vasquez when considered in the context of her other statements, they are not "specifically disserving" to her penal interests. As Delgado notes, Vasquez never suggested or implied that she had acquiesced in any plan to kill Tagalogon, or even that she had participated in any discussions to that effect. The criminal intent she attributes to Adame is exclusive and unmistakably identifies him as a more culpable perpetrator. Because Vasquez did not testify, Adame was deprived of the opportunity to undermine this damning evidence through cross-examination. This is precisely the type of "collateral assertion" that fails to qualify as declaration against penal interest under Evidence Code section 1230. The court thus erred in failing to excise those statements from the transcript of Vasquez's recorded conversation. In light of this conclusion, it is clear that the court also erred in admitting the statements over appellants' Evidence Code section 352 objection.
We conclude, however, that appellants suffered no prejudice as a result of the error. As we have already noted, any error in admitting Vasquez's entire conversation was harmless beyond a reasonable doubt. It necessarily follows that the court's error in failing to excise certain statements was also harmless.[8] (People v. Watson (1956) 46 Cal.2d 818; see also Duarte, supra, 24 Cal.4th at pp. 618-619 [applying Watson standard of review to error in admitting hearsay under Evid. Code, § 1230], and People v. Fudge (1994) 7 Cal.4th 1075, 1103 [evidentiary errors under state rules of evidence evaluated under "standard of review . . . announced in [Watson], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension"].)
3. Due Process
Adame and Delgado claim the admission of Vasquez's recorded statements violated their due process rights as contemplated in Partida, supra, 37 Cal.4th 428. Our Supreme Court held that a defendant who fails to raise a due process challenge to the admission of evidence in the trial court may nevertheless raise "a very narrow due process argument on appeal" that the asserted error in admitting the evidence over their Evidence Code section 352 objection "had the additional legal consequence of violating due process." (Partida, at p. 435.) Adame and Delgado fail to demonstrate that this is one of those "rare and unusual cases" in which the admission of evidence amounts to a due process violation. (People v. Albarran (2007) 149 Cal.App.4th 214, 232.) To make this showing, they would have to establish not only that there were no permissible inferences to be drawn from the evidence, but also that its admission so infected the case that the entire trial was rendered fundamentally unfair. (Id. at pp. 229-230.) As we have noted, only two brief statements were erroneously admitted. In light of the quantity and quality of the independent evidence of appellants' guilt, it cannot be said any portion of Vasquez's statement served to render the trial fundamentally unfair. Appellants' due process claim accordingly fails.[9]
II.
Sufficiency of the Evidence – Dissuading a Witness (§136.1, subd. (c)(1))
Appellants contend the evidence is insufficient to sustain their convictions for dissuading a witness in violation of section 136.1, subdivision (c)(1). We disagree.
In evaluating claims of insufficient evidence, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.) We must "'". . . presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' [Citation.]" (People v. Rayford (1994) 9 Cal.4th 1, 23.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
To convict appellants of violating subdivision (c)(1) of section 136.1, the jury had to find that they used force or expressly or impliedly threatened the use of force with the specific intent to dissuade Tagalogon from reporting their crimes to the police. (People v. Young (2005) 34 Cal.4th 1149, 1211.) Sufficient evidence was presented to support the finding that all three appellants were guilty of the crime. When the police officer who interviewed Tagalogon shortly after the incident testified at trial, he was asked whether Tagalogon had told him "whether or not the three defendants made any threats toward his family . . . ." The police officer responded, "He said . . . they told him that if he called the police or if he took any information back to the other gang, that they would harm his family." The officer subsequently added, "He said that they told him they would kill him." This evidence is sufficient by itself to support a finding that all three appellants either made threatening statements to dissuade him from reporting their crimes or expressly joined in statements made by one of their codefendants. While appellants note that Tagalogon disputed the police officer's characterization of what he said, testified that he could not recall whether the remark was made by Adame or Delgado and that no direct threat had been made, and also testified that Delgado said nothing during the entire car ride, this conflicting evidence is irrelevant to our analysis. In deciding whether the evidence is sufficient to support the convictions, we do not reweigh the evidence or evaluate the credibility of witnesses. (People v. Young, supra, at p. 1181.)
In any event, other evidence independently supports appellants' convictions for dissuading a witness. Tagalogon testified that either Adame or Delgado told him, "[W]e know where you live, you don't want to say something that will get you in trouble because we know where you live, and stuff of that nature." In other words, whoever spoke purported to do so on behalf of all of them. Neither of the two who did not utter the statement made any effort to disavow it. Moreover, all three appellants worked together to rob Tagalogon, blindfold him, force him into his car, and drive him around while discussing what to do with him, all of which were intended to instill fear and thereby discourage him from reporting the crimes. In light of this evidence, the jury could infer that all three appellants either directly perpetrated the crime of dissuading a witness or aided and abetted its commission. (See In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094 ["Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense"]; People v. Campbell (1994) 25 Cal.App.4th 402, 409 [quoting same].)
III.
Instructions on Duress and Necessity
Vasquez argues that the court erred in rejecting her request to instruct the jury on the affirmative defenses of duress and necessity. [10] We conclude that the instructions were properly refused.
Trial courts are required to instruct on a requested defense theory only when it is supported by substantial evidence. (People v. Crew (2003) 31 Cal.4th 822, 835.) "In reviewing the evidence to determine whether [the court's] exclusion of a requested instruction was error, '"[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused."' [Citation.]" (People v. Strozier (1993) 20 Cal.App.4th 55, 63.) "Even so, the test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that 'deserve[s] consideration by the jury, i.e., "evidence from which a jury composed of reasonable [people] could have concluded"' that the specific facts supporting the instruction existed. [Citations.]" (People v. Petznick (2003) 114 Cal.App.4th 663, 677.) We do not determine the credibility of the evidence. We merely decide whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Salas (2006) 37 Cal.4th 967, 982.)
"Duress is available as a defense to defendants who commit a crime 'under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.' [Citations.] An essential component of this defense is that the defendant be faced with a direct or implied demand that he or she commit the charged crime. 'The defense of duress, unlike the necessity justification, requires that the threat or menace be accompanied by a direct or implied demand that the defendant commit the criminal act charged.' [Citation.] In contrast, the necessity defense is available when the defendant reasonably believed there was a threat of harm and no other means to alleviate the harm, and the harm sought to be avoided by the defendant's conduct was greater than the harm sought to be prevented by the law defining the charged offense. [Citations.]" (People v. Saavedra (2007) 156 Cal.App.4th 561, 567.) "Because the defense of duress requires a reasonable belief that threats to the defendant's life (or that of another) are both imminent and immediate at the time the crime is committed [citations], threats of future danger are inadequate to support the defense." (People v. Coffman (2004) 34 Cal.4th 1, 100.) A threat of unspecified harm to be carried out at some undefined time, a "phantasmagoria of future harm," is insufficient. (People v. Otis (1959) 174 Cal.App.2d 119, 125.)
"To justify an instruction on the defense of necessity, there must be evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency. [Citations.]" (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)
Vasquez requested the duress and necessity instructions based on Detective McCrary's testimony to the effect that she might have reasonably concluded she faced an immediate threat of harm if she did not take action to demonstrate that she no longer associated with members of the Cherryville gang. This testimony is insufficient to warrant either instruction. The duress instruction was unnecessary because there was no evidence of an express or implied demand that Vasquez commit any of the crimes with which she was charged. On the contrary, the uncontroverted evidence shows that it was Vasquez who instigated the incident by accusing the victim of being a rival gang member and then physically assaulting him. This evidence is also fatal to a defense based on necessity, in that Vasquez plainly contributed to the "emergency" that purportedly led her to act. (People v. Pepper, supra, 41 Cal.App.4th at p. 1035.)
The record is also devoid of any evidence that Vasquez believed she would face an immediate danger of death or serious bodily harm if she did not act as she did, much less a reasonable belief. Vasquez also fails to identify any evidence suggesting that she had no legal alternative to committing robbery, kidnapping, and carjacking, or that a reasonable person in her position would have believed that her actions were necessary under the circumstances. Indeed, her recorded statements make it clear that her participation in the crimes was both voluntary and willful. Simply put, "There was no gun to [her] head. The suggestion that [her] participation was coerced . . . is pure speculation." (People v. Petznick, supra, 114 Cal.App.4th at pp. 677-678.) The dearth of any evidence that Vasquez acted under duress or by necessity also renders any error in failing to instruct on those affirmative defenses harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Salas, supra, 37 Cal.4th at p. 984 [recognizing that the Supreme Court has yet to decide which standard of prejudice applies to the failure to instruct on an affirmative defense]; but cf. U.S. v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202 [concluding that "[t]he right to have the jury instructed as to the defendant's theory of the case . . . can never be considered harmless error"].)
IV.
Section 654
Appellants contend the court violated section 654's ban on multiple punishment by sentencing them for both robbery (count 1) and kidnapping for robbery (count 2). The People concede that multiple punishment would be improper if the evidence merely supported a finding that the kidnapping was undertaken for the purpose of completing the robbery that involved the forceful taking of Tagalogon's wallet and belt and the items that were taken from his car. They claim, however, that the evidence is also sufficient to support a finding "that a second, independent robbery occurred during the car ride when appellants forced Tagalogon to buy gas for the car."
We agree with appellants that the court was required to stay sentencing on the robbery counts pursuant to section 654 because the jury's verdicts were plainly based on the prosecution's stated theory that the kidnapping was committed for the purpose of completing a robbery that was already underway. We further conclude that the case must be remanded for resentencing as to Delgado because the staying of the robbery counts effectively erases the court's discretionary decision to subject him to lesser punishment than Adame based on its finding of mitigating facts. (Cal. Rules of Court, rules 4.421 & 4.423.)
Section 654 prohibits punishment for more than one offense arising from the same act or from an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216.) Whether a course of conduct is divisible depends on the intent and objective of the actor. (Id. at p. 1208.) If all the offenses were incident to one objective, the defendant may only be punished for one offense. (Ibid.) If the defendant had multiple independent criminal objectives, he may be punished for each offense. When, as here, the trial court does not state any reasons for its section 654 ruling, we will deem the court to have made an implied finding that the offenses had a separate objective. (See People v. Blake (1998) 68 Cal.App.4th 509, 512.) Application of section 654 is a question of fact for the trial court, whose findings will be upheld if supported by substantial evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 626- 627.) In making such findings, however, "a trial court must accept and rely upon the same factual basis which the jury unanimously selected and relied upon to convict the defendant on a particular count. Such a rule protects the defendant's federal and state constitutional rights to a jury trial and ensures that he or she is punished for only those offenses the jury found beyond a reasonable doubt that he or she committed." (People v. Coelho (2001) 89 Cal.App.4th 861, 876.)
It is well settled that section 654 bars multiple punishment for convictions of kidnapping for the purpose of robbery and for committing that same robbery. (People v. Beamon (1973) 8 Cal.3d 625, 639.) Here, the prosecution's theory of the case at trial was that appellants were guilty of robbery based on the forcible taking of Tagalogon's wallet and belt in addition to the items taken from his car, and that the kidnapping was committed for the purpose of completing that robbery. The People note that there was also conflicting evidence regarding whether appellants had forced Tagalogon to pay for gas during the course of the kidnapping, but the prosecution did not ask the jury to find appellants guilty of robbery or kidnapping for robbery on that basis. Under the circumstances, the decision to sentence appellants on both counts cannot be based on an implicit finding that appellants committed a second, independent robbery in the course of the kidnapping.
People v. Siko (1988) 45 Cal.3d 820, is instructive. The issue in that case was whether the defendant was properly subjected to separate punishment for a lewd and lascivious conduct conviction based on a single incident that also provided the basis for his convictions of forcible rape and sodomy. In arguing that multiple punishment did not run afoul of section 654, the People pointed to evidence purporting to demonstrate that the defendant committed lewd acts other than the rape and sodomy. The court rejected this claim and found that the sentence had to be stayed in accordance with section 654, reasoning that "[t]here is no showing that the lewd-conduct count was understood in this fashion at trial. Indeed, a review of the record demonstrates the contrary." (People v. Siko, supra, at p. 826.) The court noted that "the charging instrument and the verdict both identify the lewd conduct as consisting of the rape and the sodomy rather than any other act. Nor did anything in the prosecutor's closing argument or in the court's instructions suggest any different emphasis." (Ibid.)
Similarly, in People v. Bradley (2003) 111 Cal.App.4th 765, 770, the defendant was found guilty of robbery and attempted murder. The latter conviction was based on the prosecution's theory that the defendant was guilty as an aider and abettor in that the crime was a natural and probable consequence of the robbery. In concluding that multiple punishment was barred under section 654, the court reasoned: "In this case, the jury could have been offered the opportunity to find appellant indeed entertained a specific intent to attempt the robbery victim's murder. But presumably recognizing this was not a viable option, the prosecutor elected not to submit that possibility to the jury. So the jurors obviously made no such finding. Instead the jurors predicated appellant's guilt of the attempted murder count solely on the theory the prosecution tendered, a theory only requiring appellant to entertain a single objective-to rob that victim. [¶] In our view, the trial court cannot countermand the jury and make the contrary finding appellant in fact personally had both objectives." (People v. Bradley, supra, at p. 770.)
We also note the People fail to establish that any forcible taking of Tagalogon's money to pay for gas was not simply part of the ongoing robbery of which appellants were convicted. The prosecution's theory was that the robbery was still underway when appellants kidnapped Tagalogon because they had not yet reached a place of temporary safety, and that the crime was not completed until appellants dropped Tagalogon off on the side of the road. It logically follows that the forcible taking of Tagalogon's money to pay for gas was merely one of the several items of property that were taken during the course of a single robbery, as opposed to evidence of a second robbery. Pursuant to section 654, "the taking of several items during the course of a robbery may not be used to furnish the basis for separate sentences. . . . [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." (People v. Bauer (1969) 1 Cal.3d 368, 376-377.)
Because it is clear that appellants' convictions for robbery and kidnapping for robbery are based on the same forcible takings, i.e., those which preceded the kidnapping, the court erred in failing to stay the robbery convictions in accordance with section 654. Ordinarily, we would simply order all three robbery sentences stayed and that would be the end of the matter. Delgado persuasively argues, however, that the court should be given the opportunity to resentence him on the remaining counts because merely staying his robbery term would effectively render his sentence identical to Adame's, i.e., an aggregate indeterminate term of 37 years to life, a result the court plainly did not intend. In ordering Adame's robbery term to run consecutive to the indeterminate terms, the court noted that he was the "dominant participant" in the crimes. As to Delgado, the court imposed a concurrent term for the robbery to account for his lesser role and noted the "relative absence[] of criminal activity [in his] background." In a similar vein, the court imposed a concurrent term on the robbery count as to Vasquez and ordered her sentence on the section 136.1 count to run concurrent to the other indeterminate terms, thereby reflecting a determination that Vasquez was worthy of less punishment than both of her codefendants.
Because the staying of the robbery convictions effectively eliminates the court's discretionary decision to subject Delgado to a lesser term than Adame, we remand the matter for resentencing as to Delgado. The court's exercise of its discretion on remand as to Delgado could also undermine its discretionary goal of sentencing Vasquez to a lesser term, so the matter is remanded as to her as well.[11]
V.
Ineffective Assistance of Counsel
Adame contends that his trial attorney provided ineffective assistance of counsel by failing to argue for lesser sentences.[12] To prevail on this claim, he must establish both deficient performance and prejudice, i.e., a reasonable probability that the court would have imposed lesser sentences had counsel argued for them. (Strickland v. Washington (1984) 466 U.S. 668, 687.) He fails to make either showing.
Adame's convictions for kidnapping, carjacking, and dissuading a witness all required mandatory, indeterminate sentences. (§ 209, subd. (b)(1) [kidnapping]; §186.22, subd. (b)(4)(B) [carjacking]; § 186.22, subd. (b)(4)(C) [dissuading a witness].) The court therefore had no discretion to impose lesser sentences on those counts. The court did exercise discretion in deciding to impose the terms consecutively (§ 669; Cal. Rules of Court, rule 4.425), but was not required to state its reasons for doing so (People v. Murray (1990) 225 Cal.App.3d 734, 750). While counsel did not expressly argue in favor of concurrent terms, there is no indication the court would have ruled differently had counsel done so. Adame identifies factors he construes as mitigating - e.g., his age and relative lack of a significant adult criminal history - yet fails to demonstrate that the court ignored these factors in sentencing him. Because the record does not clearly show that the court's sentencing choices were irrational or arbitrary, we must presume it weighed all aggravating and mitigating circumstances in the proper exercise of its sentencing discretion. (Cal. Rules of Court, rule 4.409; People v. Superior Court (Alvarez) 14 Cal.4th 968, 977.)
Equally unavailing is Adame's attempt to establish a reasonable probability that trial counsel may have persuaded the court to impose a lesser term on the robbery count. In sentencing Adame to the upper term, the court noted that he was the "dominant participant" in the crime and therefore warranted greater punishment than his codefendants. Adame fails to explain how the court would have considered this factor less compelling had counsel pointed out other factors that were readily apparent from the record. Adame's claim of ineffective assistance fails.[13]
VI.
Cruel and Unusual Punishment
Vasquez asserts that her sentence of 30 years to life amounts to cruel and/or unusual punishment under the state and federal Constitutions. We disagree.[14]
A sentence is cruel or unusual under California law if "'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Norman (2003) 109 Cal.App.4th 221, 230, quoting In re Lynch (1972) 8 Cal. 3d 410, 424.) In making that determination, courts consider the nature of the offense and offender, and compare the sentence with sentences imposed for more serious crimes in California and for the same crime in other jurisdictions. (Ibid.) Similarly, a sentence is cruel or unusual under the Eighth Amendment to the United States Constitution only if it is "grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271; Ewing v. California (2003) 538 U.S. 11, 21.) The analysis under federal constitutional law is virtually identical to the analysis under state law, and "the federal Constitution affords no greater protection than the state Constitution . . . ." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) In addition, the length of a sentence for a felony "is purely a matter of legislative prerogative[]," and courts should be reluctant to review such legislative mandates. (Rummel, supra, at p. 274; Hutto v. Davis (1982) 454 U.S. 370, 374.)
Vasquez was sentenced to 30 years to life for committing robbery, kidnapping for robbery, carjacking, and for dissuading a witness, all for the benefit of a criminal street gang. The record demonstrates that Vasquez initiated the entire incident by accusing the victim of belonging to a rival gang and then physically attacking him. As the court noted at sentencing, "we wouldn't be here today but for her initial activities." Her probation report characterized her as a "very dangerous" gang associate. Even if we assumed that the Eighth Amendment to the United States Constitution contains a proportionality guarantee outside the context of capital punishment, this is not one of those exceedingly rare cases in which the sentence is grossly disproportionate to the severity of the crime. (Ewing v. California, supra, 538 U.S. at p. 21.)
In asserting that her sentence constitutes cruel and unusual punishment, Vasquez defines herself as "a mere teenager" and notes her lack of a prior criminal history. She also refers to the fact that her father went to prison when she was young and is now serving a life sentence, and also offers her purported alcoholism as another mitigating factor. She characterizes her crimes as having been "carried out in a fairly benign manner" and cites cases in which defendants convicted of murder have received lesser sentences. (See, e.g., People v. Thongvilay (1998) 62 Cal.App.4th 71, 88-89.) She also notes that she was willing to accept package plea bargains that were rejected by one of her codefendants, and claims that she only rejected a subsequent offer because she feared that doing so would endanger her life and that of her family. These arguments were all raised at sentencing, and the court took them into consideration in imposing concurrent terms on two of Vasquez's counts of conviction. The Legislature has determined that certain gang-related offenses warrant lengthy prison terms, and nothing about the nature of the offenses or the offender in this case serves to transform the prescribed sentence into cruel or unusual punishment. (See, e.g., People v. Wingo (1975) 14 Cal.3d 169, 174.) It simply cannot be said that the sentence imposed here "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch, supra, 8 Cal.3d at p. 424.)
DISPOSITION
Adame's sentence on count 1 (robbery) is ordered stayed pursuant to section 654. The superior court clerk shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. As so modified, the judgment against Adame is affirmed.
The matter is remanded for resentencing as to Delgado and Vasquez. As with Adame, the sentences for robbery shall be stayed pursuant to section 654. In addition, the court may exercise its discretion to reconsider the aggregate sentences imposed. (See fn. 11, infra.) In all other respects, the judgments as to Delgado and Vasquez are affirmed.
NOT TO BE PUBLISHED.




PERREN, J.


We concur:



GILBERT, P.J.



COFFEE, J.

Bruce F. Marrs, Judge

Superior Court County of Los Angeles
______________________________


Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant David Adame.
Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant Patrick Delgado.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant Monica Vasquez.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Michael R. Johnsen, Deputy Attorney General, for Plaintiff and Respondent.

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