P.
v. Ayala
Filed
2/26/13 P. v. Ayala
CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
>
THE PEOPLE, Plaintiff and Respondent, v. JOSE A. AYALA, Defendant and Appellant. | B233612 ( Super. Ct. No. LA065579) |
APPEAL from
a judgment of the Superior Court of Los
Angeles County.
Michael Jesic, Judge.
Affirmed as modified.
Lynette
Gladd Moore, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant
Senior Assistant Attorney General, James William Bilderback II and Mark E.
Weber, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Appellant Jose Ayala was convicted, following a jury
trial, of one count of false imprisonment by violence in violation of
two counts of assault with a firearm in violation of section 245, subdivision
(a)(2), one count of making criminal threats in violation of section 422 and
one count of kidnapping for ransom in violation of section 209, subdivision
(a). The jury found true the allegations
that a principal was armed with a firearm in the commission of the false
imprisonment, criminal threats and kidnapping offenses within the meaning of
section 12022, subdivision (a)(1).
The trial
court stayed sentence on the false imprisonment and section 207 kidnapping
pursuant to section 654. The court
imposed a term of life in prison with the possibility of parole for the
kidnapping for ransom conviction. The
trial court imposed a determinate term of five years in state prison,
consisting of the mid-term of three years for the first assault conviction,
plus one year (one-third the midterm) for the second assault conviction, plus
one year (one-third the midterm plus one-third of the firearm enhancement term)
for the criminal threats conviction.
Appellant
appeals from the judgment of conviction, contending that the trial court erred
in failing to stay sentence on the criminal threats and two assault convictions
pursuant to section 654. He further
contends that his conviction for false imprisonment must be stricken, as it is
a lesser included offense of kidnapping.
Respondent contends that the restitution fine shown in the
be corrected to reflect the amount imposed by the trial court at
sentencing. We agree that one of the
assault convictions must be stayed pursuant to section 654 and the conviction
for false imprisonment by violence stricken.
We also agree that the amount of the restitution fine should be
stricken. We affirm the judgment of
conviction in all other respects.
Facts
In June 2010, 15-year-old I.P. was
staying with Marina Gonzalez in an apartment at 6859
Laurel Canyon Boulevard. I.P. was a runaway. Appellant lived a few doors down in the same
building. One day, I.P. and a friend
entered appellant's apartment to look for I.P.'s cell phone. I.P. found the phone in appellant's bedroom
with the battery removed, became angry and decided to steal various items from
appellant's apartment, including laptop computers, some video game consoles, an
iPod, and a phone.
A few days later, a man named Woody
came to Gonzalez's apartment looking for I.P.
Woody and I.P. went out into the hallway. Woody asked her where the stolen items
were. When I.P. tried to go back into
Gonzalez's apartment, Woody grabbed her arm.
Woody pulled out a revolver, placed it against I.P.'s ribs and he walked
her, holding her arm, down to appellant's apartment. Woody told I.P. that she was not going
anywhere "until we find our stuff."
Inside appellant's apartment, appellant placed I.P. in a chair and tied
her hands behind her back. Woody kept
asking I.P. where his missing items were.
Appellant untied I.P.'s hands and
told her to make a phone call to have the stolen items returned. I.P. could not recall a number to call. Woody broke the phone in half and appellant
retied I.P.'s hands. Woody demanded that
I.P. tell them where the stolen items were and hit her on the side of her face
with the hand that was holding the revolver.
Woody later gave the revolver to a third man, codefendant Douglas
Castaneda. Castaneda then pointed the revolver
at I.P. and threatened to kill her if she did not tell them where the stolen
items were.
After about 15 or 20 minutes,
appellant and the other men decided to move I.P. to a body shop that appellant
owned. The shop was three or four miles
from appellant's apartment. Appellant
put a blanket over I.P.'s head and walked her from his apartment to his
SUV. At the same time, Woody held a gun
to I.P.'s head and threatened to shoot her if she screamed. Appellant drove, with I.P. in the front
passenger seat next to him. Woody sat in
the back.
At the body shop, appellant and Woody
chained I.P. to a chair. Castaneda
arrived, got a shotgun from the shop's bathroom, pointed the shotgun at I.P.
and asked I.P. where the stolen items were.
Castaneda also told I.P. that "if I mention this to the cops that
he was going to kill me and my whole family."
The men eventually told I.P. they
were going to let her go. They told her
that if she did not return with the stolen items in two days, or if she went to
the police, they would kill her and her family.
They told her to write down the names of her family members and their
address. She had to do this twice, then
Woody compared the two lists to see if they matched. Castaneda again threatened I.P. that "he
will kill my family if I tell the cops or if anything happens to his boys . . .
."
Appellant and Woody took I.P. to
appellant's SUV, drove her a few blocks away from the body shop, told her to
get out and left her on the side of the road.
I.P. flagged down an elderly couple who gave her a ride and dropped her
off near Gonzalez's apartment building.
I.P. went to the apartment, gathered her belongings and left.
For the first few days after her
abduction, I.P. did not tell anyone what had happened because she was scared by
the threats to kill her and her family.
Then, I.P. turned herself in. A
day after turning herself in, I.P. reported her abduction to a mental health
counselor who called the police.
Los Angeles Police Department
officers investigated I.P.'s claims, searched appellant's apartment and body
shop and arrested appellant on July
14, 2010.
Appellant did not present any
evidence at trial. His codefendant
Castaneda called several witnesses.
Castaneda was found not guilty of any of the charges against him, and
the testimony of his witnesses is not relevant to any issue on appellant's
appeal, and so that testimony is omitted.
Discussion
1.
Section 654
Appellant
contends that the trial court violated section 654 when it imposed separate
sentences on the kidnapping for ransom, assaults and criminal threats
convictions. We agree in part.
Section 654
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." (§
654, subd. (a).)
"'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.]" (People
v. Latimer (1993) 5 Cal.4th 1203, 1208.)
In determining whether section
654's prohibition against double punishment applies, courts must examine the
defendant's objective in violating different provisions of the Penal Code. (People
v. Britt (2004) 32 Cal.4th 944, 952.)
"[T]here must be evidence to support the implied finding of the
trial court that this defendant formed a separate objective and intent for the
several offenses for which he was sentenced." (People
v. Laster (1971) 18 Cal.App.3d 381, 394.)
Appellant
contends that there is evidence of only one intent for all of the crimes. His intent in kidnapping I.P. was to get his
property back, and the assaults and criminal threats were made to ensure that
she returned with his property after she was released to retrieve the property. Respondent contends that there is evidence of
two different objectives. Appellant
wanted to get his property back, but he also wanted to avoid detection and
conviction after I.P. was released. We
agree with respondent in large part.
Appellant
received four separate sentences. He was
sentenced consecutively for kidnapping for ransom, two counts of assault with a
firearm and one count of criminal threats.
One of the assault convictions must be stayed pursuant to section 654.
Appellant was convicted of
kidnapping for ransom, reward, or extortion in violation of section 209,
subdivision (a).
title="">[2] Extortion is the obtaining of property from
another, with her consent, induced by a wrongful use of force or fear. (§ 518.)
Here, the objective of appellant's kidnapping for ransom or extortion was
to get his property back from the kidnap victim, I.P. The first assault, using a revolver in the
apartment, was accompanied only by demands that the victim return the property,
and can only be viewed as having the objective of getting appellant's property
back. The assault was in apparent
response to the victim's refusal to tell appellant where his property was or to
call someone and tell them to bring the property back and was clearly designed
to get the victim to return the property.
It was not a gratuitous act of violence but was part of the
extortion. (Compare People v.
190-191 [§ 654 did not apply when robber shot victim after victim gave up valuables and was lying on floor] and cases
cited therein; see also People
(1982) 31 Cal.3d 897 [§ 654 did not apply when robber shot one victim in the
back for no apparent reason while
another victim opened safe].)
The extortion, in turn, was the
object of the kidnapping. A violation of
section 209 occurs when a person kidnaps "another person by any means
whatsoever with intent to hold or detain, or who holds or detains, that person
for ransom, reward or to commit extortion." (§ 209, subd. (a).) As such, the assault cannot be punished
separately. (See People v.
[carjacking and kidnapping for robbery could not be punished separately when
prosecutor argued that taking the victim's car was the object of the robbery];
Cal.4th 415 [kidnappings for robbery and robberies of the kidnap victims could
not be punished separately when the crimes were committed with the single
objective of robbing the victims of their cars and or cash from their bank
accounts].)
The second
assault, involving a shotgun at the body shop, was made concurrently with
threats to kill the victim and her family if the victim contacted police and
thus had the additional objective of avoiding detection. Since there was a separate objective for this
assault, it may be sentenced separately.
Criminal threats to the victim were
also made at the body shop and also had the additional intent of avoiding
detection. Many of the criminal threats
were made after the men decided to let the victim go and after the victim used
the bathroom. I.P.'s testimony about
events after she returned from the bathroom focused on the men's verbal
threats.
part, to force her to write down her name and address and her family's
name. As the prosecutor argued, the
kidnappers viewed this writing as "insurance" for the future. This, the criminal threats had a different
and an additional objective than the assault with the shotgun. Further, the two acts can be viewed as
divided by the men's decision to end the kidnapping. Thus, the two acts were not part of an
indivisible course of conduct and could be sentenced separately. (See People
v. Trotter (1992) 7 Cal.App.4th 363, 366-368 [three shots fired at
pursuing officer with intent to deter pursuit could be punished separately
under section 654].)
2. False imprisonment
The trial
court stayed sentence on the false imprisonment by violence conviction pursuant
to section 654. Appellant contends that
false imprisonment is a lesser included offense of kidnapping, and that both
convictions cannot stand. He contends
that such double conviction violates his right to due process. Respondent contends that appellant has
forfeited this claim by failing to raise it in the trial court. We agree that the conviction for false
imprisonment should be stricken. We see
no forfeiture.
As the
California Supreme Court has explained:
"[T]his court has long held that multiple convictions may
offenses. [Citations.] We recently affirmed this policy in
568, in which the defendant was convicted of robbery and grand theft for the
same act. We held the grand theft
conviction must be reversed 'because it is a lesser necessarily included
offense of the crime of robbery.'
[Citation.]" (
Cal.3d 351, 355.)
This Court
long ago found that false imprisonment is a lesser included offense of
kidnapping. (People v.
Court of Appeal recognized, "[i]f both the false imprisonment count and
kidnaping count relate to the same act, double conviction as well as double
punishment is prohibited." (
Cal.App.3d 808, 819-820.)
Here, the
false imprisonment charge and the kidnapping charge were based on the same act.
conviction must be stricken.
Respondent
bases its forfeiture argument on the dissent to a case decided by this Court
more than twenty years ago. (
Cal.App.3d 1117, 1122, fn. 1 [conc. & dis. opn. of Turner, P. J.].) The majority opinion is Magana had remained good law for over 20 years. We decline respondent's invitation to
overrule it and adopt the position of the dissent. We do not find respondent's other citations,
to a family law case and a civil case, to be persuasive.
3. Restitution fine
Respondent
contends that the abstract of judgment should be corrected to reflect the
amount imposed by the trial court at the sentencing hearing. We agree.
"The
oral pronouncement of judgment controls over any discrepancy with the minutes
or the abstract of judgment.
[Citations.]" (
Cal.App.4th 859, 864.) The trial court
imposed a restitution fine of $200 at the sentencing hearing. The minute order and abstract of judgment
show a fine of $100.
Disposition
The
conviction for false imprisonment by violence (count 1) is stricken. Sentence is stayed on the count 3 assault
with a firearm conviction pursuant to section 654. Sentence on the count 4 assault conviction is
now the midterm of three years.
Appellant's determinate sentence is now four years in state prison. The $100 restitution shown in the abstract of
judgment is ordered corrected to $200 to reflect the amount of the fine imposed
by the trial court at sentencing. The
judgment of conviction is affirmed in all other respects. The clerk of the superior court is directed
to prepare an amended abstract of judgment reflecting these changes and
corrections and to deliver a copy to the Department of Corrections and
Rehabilitation.
ARMSTRONG,
Acting P. J.
We concur:
MOSK,
J.
KRIEGLER,
J.
to the Penal Code unless otherwise indicated.
violation of section 207. Simple
kidnapping carries a sentence of three, five or eight years in state
prison. (§ 208.) Sentence on the simple kidnapping conviction
was stayed in favor of kidnapping for ransom conviction which carries a life
sentence and so it is not at issue.
