P. v. Alvarez
Filed 9/19/13 P. v. Alvarez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
CLIFFORD ALLEN ALVAREZ,
Defendant
and Appellant.
E056968
(Super.Ct.No.
SWF025162)
OPINION
APPEAL
from the Superior Court
of
County. Mark Mandio,
Judge. Affirmed.
James
R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and William M. Wood and
Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Clifford Allen Alvarez is serving a sentence for attempting to kidnap two girls
who were under 14 years of age, one of whom he also threatened. In this appeal, he challenges the trial
court’s imposition of consecutive sentences as to his
girl on the grounds that Penal Code section 654
I. PROCEDURAL
BACKGROUND AND FACTS
Approximately
3:20 p.m. on March 11, 2008, 13-year-old Jane Doe 1 (Doe
1) was walking home from middle school.
On Temeku Drive,
defendant, who was in a vehicle, approached her from behind. He asked her where Margarita
Road was, and she replied that she did not
know. She kept walking, feeling
apprehensive. Defendant “slowed up again
next to [her]†and asked where La Serena Road was. She told him she had not lived in the area
for very long and she did not know the streets.
She continued to walk away.
Defendant
“inched†the vehicle up, stopped again next to Doe 1, and told her to get in
his vehicle. She asked, “‘Are you
serious?’†He replied, “Yes.†She asked the same question two more times,
and he answered in the affirmative, but the last time, “he stopped being polite
and said, ‘Yes, get in my car.’†She
started stammering, and then he said, “‘You need to get in my car. If you run, I will shoot you.’†She began to panic and was shaking. Defendant then softened his approach and told
her, “‘Look if you get in my car, I won’t hurt you. You’ll be fine. Just get in my car.’†Doe 1 saw defendant turn away and reach
down. She knew there was a compartment
there. She seized the opportunity to get
away by throwing her backpack and running through a gate into someone’s
backyard. When she stopped, turned
around, and locked the gate, she saw that defendant’s car “had turned around
and zoomed back up the road.†Remaining
in the backyard, she called the police on her cell phone.
That
same afternoon, defendant approached 11-year-old Jane Doe 2 (Doe 2) and
attempted to get her into his vehicle.
Defendant never threatened to hurt Doe 2 or say he had a weapon. Another minor who was with Doe 2 wrote down
the license plate number of defendant’s van.
The license plate number was run through the Department of Motor
Vehicles database, and defendant was traced to his home in Temecula. Does 1 and 2 identified defendant in an
in-field showup at his home.
Defendant
was charged with attempted kidnapping (§§ 664, 207, subd. (a)) in counts 1
(Doe 1) and 2 (Doe 2) and making a criminal threat (§ 422) in count 3 (Doe
1). As to counts 1 and 2, it was alleged
that the crime was committed against a person who was under the age of 14;
however, defendant’s section 995 motion was granted as to these
enhancements. Following a jury trial,
defendant was convicted of counts 1 and 3.
A mistrial was declared as to count 2.
Defendant subsequently pled guilty to count 2. He was sentenced to the middle term of two
years six months on count 1, a concurrent term of two years six months on count
2, and a consecutive term of eight months on count 3.
II. CONSECUTIVE SENTENCES ON ATTEMPTED KIDNAPPING
AND
MAKING CRIMINAL THREATS
Defendant
contends the trial court erred in not staying his sentence for criminally
threatening Doe 1 (count 3) pursuant to section 654 because it was based on the
same conduct in attempting to kidnap her (count 1).
In
sentencing defendant, the trial court stated:
“I do not believe, number one, that Count 3 is 654 to Count 1. I could be wrong, but it appears to me that
there is a separate intent. The first,
Count 1, is an intent to commit a kidnapping.
In other words, in this specific instance to get somebody who was in
between a child and a teenager into your van.
[¶] And, two, when that wasn’t
working, to terrorize that person sufficiently so that they—you could
effectuate your first purpose. But the
purpose of the second crime was separate in that you were essentially trying to
stun them by terrorizing them. And I see
that as a different and separate intent and a separable crime, even if it was
meant to effectuate intent of the first crime.â€
Section
654, subdivision (a), provides in pertinent 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.â€
“Section
654 prohibits multiple punishment for a single act or an indivisible course of
conduct. [Citations.] Whether a defendant’s conduct constitutes a
single act under section 654 depends on the defendant’s intent in violating
penal statutes. If the defendant harbors
separate though simultaneous objectives in committing the statutory violations,
multiple punishment is permissible.
[Citation.] This question is one
of fact for the trial court, and we uphold the trial court’s finding if it is supported
by substantial evidence.
[Citation.]†(
Cal.App.4th 587, 645 [Fourth Dist., Div. Two].)
Accordingly, multiple punishment is proper if the defendant entertained
multiple criminal objectives which were independent of each other. (People
v. Harrison (1989) 48 Cal.3d 321, 335.)
Generally,
to establish a kidnapping has occurred, “‘the prosecution must prove three
elements: (1) a person was unlawfully
moved by the use of physical force or fear; (2) the movement was without
the person’s consent; and (3) the movement of the person was for a substantial
distance.’ [Citation.]†(People
v. Dalerio (2006) 144 Cal.App.4th 775, 781, fn. omitted.) “An attempt to commit a crime consists of two
elements: a specific intent to commit
the crime, and a direct but ineffectual act done toward its commission.†(§ 21a.)
“The act must go beyond mere preparation, and it must show that the
perpetrator is putting his or her plan into action, but the act need not be the
last proximate or ultimate step toward commission of the substantive
crime. [Citation.]†(People
v. Kipp (1998) 18 Cal.4th 349, 376.)
Thus, for the offense of attempted simple kidnapping, the prosecution
need not prove the victim was moved for a substantial distance. Rather, the prosecution must show the
defendant attempted to move the victim with the requisite specific intent. (People
v. Cole (1985) 165 Cal.App.3d 41, 50.)
According
to defendant, the trial court’s statement in support of its decision to run the
sentences consecutively, “acknowledges that the criminal threat (count 3) was
committed to effectuate the kidnapping (count 1).†We disagree.
The attempted kidnapping was complete by the time defendant asked Doe 1
to get in his vehicle. He was also
convicted of attempting to kidnap Doe 2, but he never threatened to harm
her. Thus, the fact that he threatened
to shoot Doe 1 if she ran away was gratuitous.
Courts have held that section 654 “‘cannot, and should not, be stretched
to cover gratuitous violence or other criminal acts far beyond those reasonably
necessary to accomplish the original offense.’â€
(People v. Cleveland (2001) 87
Cal.App.4th 263, 272.) “‘[A]t some point
the means to achieve an objective may become so extreme they can no longer be
termed “incidental†and must be considered to express a different and more
sinister goal than mere successful commission of the original
crime. . . .’†(
Here, defendant’s threat to shoot Doe 1 if she ran constituted a
gratuitous criminal act beyond that necessary to accomplish the crime of
attempted kidnapping. Thus, separate
punishment was appropriate.
III. DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
