P. v. Caines
Filed 12/9/13 P. v. Caines CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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.
LUKE WAINE CAINES, JR.,
Defendant
and Appellant.
E057233
(Super.Ct.No.
RIF1202963)
OPINION
APPEAL
from the Superior Court
of
County. Michael B.
Donner, Judge. Reversed in part with
directions; affirmed in part as modified.
Gideon
Margolis, 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, Eric Swenson and Barry
Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury found defendant and appellant Luke Caines Jr., guilty of (1) four counts
of kidnapping for purposes of robbery
(Pen. Code, § 209, subd. (b)(1));
name="_ftnref1" title="">[1] (2) six counts of robbery (§ 211); (3)
and one count of dissuading a witness
(§ 136.1, subd. (c)(1)). Defendant
admitted suffering (1) a prior strike conviction (§§ 667, subds. (c) & (e)(1),
1170.12, subd. (c)(1)); (2) a prior serious felony conviction (§ 667, subd.
(a)); and (3) three prior convictions that resulted in prison terms (§ 667.5,
subd. (b)). The trial court sentenced
defendant to prison for a determinate term of 19 years plus an indeterminate
term of 14 years to life.
Defendant
raises four issues on appeal. First,
defendant contends substantial evidence does not support two of his robbery convictions
(§ 211). Second, defendant contends his
robbery sentences must be stayed pursuant to section 654 because the crimes
involve the same intent as his convictions for kidnapping for purposes of
robbery. The People concede defendant is
partially correct, in that the sentences for the postkidnapping robberies
should be stayed, but the sentences for the prekidnapping robberies should not
be stayed.
Third,
defendant asserts the trial court misunderstood it had the discretion to impose
a concurrent, rather than a consecutive, sentence for the crime of dissuading a
witness. The People agree with
defendant’s third contention. Fourth,
defendant contends the trial court erred by imposing fees for all counts
charged, even though defendant was found not guilty of some counts. The People agree with defendant’s fourth
contention.
title="">[2] We reverse defendant’s sentence in Count 14,
direct the trial court to resentence defendant for Count 14, and modify other
aspects of defendant’s sentence and fees, but otherwise affirm the judgment.
A. PROSECUTION’S CASE
On
March 8, 2012, at approximately 9:30 p.m., four college students, Andrew, Zachary,
Justin, and Michelle
name="_ftnref3" title="">[3] (collectively “the victimsâ€), went to a Rite
Aid drug store in Riverside to purchase alcohol for an upcoming fraternity
event in Las Vegas. The victims went to
the store in Andrew’s car. The victims
went into the store together, but after approximately five minutes, Justin,
Zachary, and Michelle returned to the car, while Andrew stayed inside the store
to purchase the alcohol. Justin was
seated in the back passenger seat. Michelle
sat in the back driver’s side seat. Zachary
sat in the front passenger’s seat.
Shortly
after the group entered the car, before the doors were locked, defendant opened
the back passenger door, next to Justin.
Defendant pushed Justin into the middle of the backseat, entered the
car, and said he had a gun. Defendant
said “he needed $600 in order to get food for his kids for the night,†and also
to fix his car, which had “broken down.â€
Within approximately one minute, Andrew returned to the car and sat in
the driver’s seat. When Andrew turned
around, he saw defendant in the backseat.
Defendant said, “I need $600 and I have a gun, so don’t do anything
dumb.†The victims never saw a gun, but
defendant held his hand in his sweatshirt pocket as though he had a gun.
The
victims gave defendant the cash they had with them, “but it was not a lot.†Defendant said the cash was insufficient and
directed Andrew to drive to the Bank of America across the street so the victims
could withdraw cash using their credit cards or ATM cards. Defendant threatened to “use the gun†if the victims
did not comply. Andrew drove to the
bank. Defendant instructed the victims
to withdraw everything from their accounts.
The victims made withdrawals from the drive-up ATM one at a time. Andrew withdrew $100 from his account. Justin withdrew $120, which was all the money
he had. Zachary, who was in the
passenger seat not near the ATM, had to give his card to Michelle so she could
withdraw the money from his account. $80
was taken from Zachary’s account, which overdrew his account. Michelle withdrew $40.
At
the drive-up ATM, while Michelle and Justin were withdrawing money, Andrew “casuallyâ€
leaned out of his open window and called 911.
Andrew held the phone by his chin and whispered to the 911 operator that
he was being robbed and his location.
The phone was not next to Andrew’s ear, so he could not hear the
operator. Defendant asked Andrew who he
was calling. Andrew said he was not on
the telephone. Defendant asked if Andrew
was “calling [Andrew’s] dealer.†Andrew
responded, “[Y]eah, I’m calling my dealer,†because Andrew was afraid of being
harmed for calling the police. Defendant
told Andrew that he should not call the police.
Andrew asked if defendant wanted him to close his window. Defendant responded, “[N]o, because I don’t
want to get any glass on your lap from the bullets.â€
While
the victims were withdrawing money, police arrived at the bank. The officers drove past the victims and
defendant. Zachary thought about trying
to get the officers’ attention, but felt he would be risking his life if he did
so, so he did nothing. Video cameras at
the bank captured the incident, including the police officers’ arrival.
Defendant
said he still needed $180. Andrew said
he could withdraw more money at Citibank.
Defendant agreed to go to Citibank.
The police cars were in front of Andrew, so he attempted to make an
illegal U-turn, in hopes of capturing the officers’ attention. Defendant told Andrew “to straighten up
because [Andrew was] hold[ing] a lot of people’s lives in [his] hands.†As a result, Andrew made a legal U-turn and went
to Citibank.
Andrew
withdrew $180 at Citibank. Video cameras
recorded Andrew withdrawing money at Citibank.
Defendant directed Andrew to drive to a fast food restaurant, but then
directed Andrew to return to the Rite Aid.
Defendant told Andrew to call Andrew’s father and have him deposit
$1,000 in each of the four victims’ accounts.
Defendant had taken Andrew’s telephone, so Andrew dialed his mother’s
telephone number from Justin’s telephone.
Due to Justin’s telephone being from a different area code, Andrew
accidentally called “a completely random woman,†rather than his mother. Because Andrew was taking too long, defendant
took Justin’s telephone from Andrew.
Defendant spoke to the woman on the telephone who then ended the call
because “she had no idea what was going on.â€
At
that point, defendant directed Zachary to dial a telephone number on Zachary’s
telephone. Defendant took the telephone
and spoke to someone. Defendant asked
the victims if they wanted to see his children.
Andrew said he did not want to see defendant’s children. Defendant asked Michelle if she wanted to go
to a movie. Defendant gave approximately
$100 to Michelle, which he said was “for the trouble [she had] been though.†Defendant then “jumped out of the car†and
said, “‘You just got punked.’†Andrew
“sped away as fast as [he] possibly could because [he] was afraid that
[defendant] was going to take his gun out and shoot through [the] windows.†Defendant was arrested on May 22, 2012.
B. DEFENSE’S CASE
Defendant
testified in his own defense. The
following is defendant’s version of the events: Defendant was selling drugs at the Rite Aid on
the night of March 8, 2012. Justin asked
defendant if he had “any sprinkles,†which refers to methamphetamine. Defendant confirmed he had methamphetamine
and asked how much Justin wanted. Justin,
Zachary, and Michelle entered the car; Justin called defendant over to the car. Justin opened the door and told defendant,
“‘Get in the car.’†Defendant entered
the car. Defendant, Justin, and Zachary
discussed how much methamphetamine they wanted to purchase and the price for
the various amounts.
Zachary
had $67. Defendant had $200 worth of
methamphetamine on his person. The three
students asked to sample the drugs, which defendant allowed. Zachary and Justin consumed some of the
methamphetamine. When Andrew entered the
car, Zachary asked Andrew if he had any cash.
Andrew gave Zachary $80, which Zachary gave to defendant for the drugs
Zachary kept when he took some methamphetamine to sample.
The
victims and defendant agreed that defendant would sell them one-half ounce of
methamphetamine for $600. Andrew
suggested going to Bank of America to get more money for the purchase. At one point, Andrew tried to call his drug
dealer to get a lower price than that quoted by defendant. The victims could not get the entire $600
from Bank of America, so Andrew volunteered to go to Citibank to get the rest
of the money. Andrew “darted out in[to]
traffic,†and defendant said, “‘Hey, man.
Be careful. You got four lives
back here.’†Andrew withdrew more cash,
and then the group returned to Rite Aid.
At
Rite Aid, defendant was looking for a person who could give him more
methamphetamine to sell to the victims. Andrew
became upset saying, “‘Dude, you’re wasting our fucking time. We could have gotten it from my dealer
earlier.’†Defendant used Zachary’s
telephone to call another person who sells methamphetamine, but the call was
unsuccessful. Defendant returned the
money to Justin and Michelle. Defendant
exited the car and the victims drove away.
A. SUBSTANTIAL EVIDENCE
Defendant
contends substantial evidence does not support his convictions for Counts 6 and
10. Count 6 pertains to robbing Andrew
at the Bank of America. Count 10
pertains to robbing Zachary at the Bank of America. Defendant asserts the two Bank of America
robberies are indivisible from the robberies in the Rite Aid parking lot,
therefore, there is not substantial evidence of separate robberies taking place
at the Bank of America.
The
Bailey doctrine was created in
The case provides, “Whether a series of wrongful acts constitutes a
single offense or multiple offenses depends upon the facts of each case, and a
defendant may be properly convicted upon separate counts charging grand theft
from the same person if the evidence shows that the offenses are separate and
distinct and were not committed pursuant to one intention, one general impulse,
and one plan. [Citation.]†(Id.
at p. 519.)
The
People assert the Bailey doctrine was
designed to address the difference between misdemeanors and felonies. For example, multiple petty thefts could be
aggregated to a single charge of grand theft.
The People contend that since “[t]here is no such thing as grand
robbery,†the Bailey doctrine is
inapplicable in this case. We elect to
decide the matter on the evidence of this case, rather than address the broader
legal issue.
“As
with all factual questions, on appeal we must review the record to determine
whether there is substantial evidence to support a finding that the defendant
harbored multiple objectives.
[Citations.] The
law only in the absence of any evidence from which the jury could have reasonably
inferred that the defendant acted pursuant to more than one intention, one
general impulse, or one plan.
[Citation.]†(
971, 984.)
The
jury could reasonably infer that in the Rite Aid parking lot, defendant’s
intent was to rob Andrew and Zachary of the cash they had on their
persons. This inference is supported by
defendant taking the s victims’ cash. Defendant
did not immediately announce his intent to go to the banks. For example, defendant did not enter the car
and say, “Take me to the bank and withdraw all your money.†After defendant took the victims’ cash he
decided he wanted more money. At that
point, defendant formulated the intent to go to Bank of America and take money
from the victims’ accounts.
Since
there is nothing indicating defendant intended to steal money from the victims’
bank accounts when he entered the car, the jury could reasonably conclude
defendant harbored two separate intents.
Initially at the Rite Aid, defendant intended to take only the cash the victims
had in their immediate possession. After
the Rite Aid robbery was complete, defendant intended to take something else—the
money from the victims’ bank accounts.
The jury could find the intents did not exist simultaneously. The jury could find the intents developed
separate and apart from one another.
Thus, there were two distinct intents, two distinct impulses, and two distinct
plans. (See Bailey, supra, 55 Cal.2d
at p. 519 [“one intention, one general impulse, and one planâ€].)
Defendant
asserts the evidence reflects a single intent of taking $600 from the victims. Defendant points to contradictory evidence of
a single intent, but we must interpret the record in the light most favorable
to the judgment. (People v. Loza (2012) 207 Cal.App.4th 332, 346-347.) We agree the record could be read as
reflecting a single intent to take $600 from the victims in any way possible,
e.g., via cash, bank accounts, and credit cards. However, the record can all also be
interpreted as reflecting two separate plans or intents. The first intent was to enter the car and
take the money the victims had with them.
The second intent developed when defendant discovered the victims “didn’t
have a lot†of cash. At that point a new
intent and plan developed, which was to take any money defendant could obtain
from the victims’ bank and credit card accounts. This second plan or intent is supported by
the evidence that defendant was checking the victims’ account balances and
requiring the victims to overdraw their accounts, i.e., take more money than
the victims actually had in their accounts.
Since we can reasonably read the record in a manner that supports the
judgment, we find defendant’s argument to be unpersuasive.
Defendant
relies on the case of People v. Irwin
(1991) 230 Cal.App.3d 180 (Irwin) to
support his argument. In
drive-thru lane of a McDonald’s restaurant.
The defendant approached, held a knife to the victim’s chest, and
ordered her to “‘scoot over.’†The
defendant sat in the driver’s seat, moved the car across the parking lot toward
a store that was closed. As the
defendant drove, he demanded the victim’s money and purse. The victim gave the money and purse to the
defendant. As the defendant neared the
closed store, he ordered the victim out of the car. The victim exited the car and the defendant
drove away. (Id. at pp. 183-184.)
On
appeal, the defendant asserted “the trial court should have dismissed the grand
theft of an automobile count because it was a lesser and necessarily included
offense of the robbery.†(
not a lesser included offense of robbery.
The appellate court reasoned, “Robbery is a crime which is frequently
spread over distance and varying periods of time. It is generally committed in three phases,
which are assault of the victim, seizure of the victim’s property, and the
robber’s escape to a location of temporary safety. [Citation.]
The crime of robbery is not confined to the taking of property from the
victim, and the crime is not completed until the robber has won his way to a
place of temporary safety.
[Citation.] Thus, a robbery may
be a continuing crime, spread over distance and time. [Citation.]
That defendant here relieved the victim of her purse and money and then
a short time later removed her car from her does not alter the continuing
nature of the robbery.†(
The
appellate court wrote, “We find no authority for the proposition that a robber
may be charged with and convicted of a separate robbery, or an additional
offense of grand theft, because he or she took more than one item from a
solitary victim during a single course of conduct.†(Irwin,
had neither ceased to threaten violence toward the victim nor had yet made his
escape at the time he let the victim out of her car and drove away, there was
but one act of robbery, and that occurred concurrently with the accompanying
acts of theft (i.e., the taking of the victim’s purse, money and car).†(Id.
at p. 186.)
In
evaluating the evidence, the appellate court cited the “small distance across
the parking lot†that the defendant and the victim travelled and “the few
seconds which elapsed between each taking.â€
The court concluded the thefts were part of “a continuous transaction,â€
and the automobile theft was “necessarily included†within the robbery. (Irwin,
The
evidence in this case is distinguishable from that in Irwin. In the instant case,
defendant demanded the victims’ money at the Rite Aid. When the amount proved insufficient,
defendant moved to a new plan, intent, or impulse, which was to take anything
he could get from the victims’ bank and credit card accounts. In Irwin,
everything was taken in the same parking lot within seconds. There is nothing indicating the
money and then asked for the purse, then evaluated the worth of the purse and
asked for the car. Rather, the items in
scheme or plan. Since the evidence in
the instant case supports a finding of two separate intents, we find
B. SECTION 654
1. PROCEDURAL
HISTORY
Defendant
was convicted of four counts of kidnapping for robbery (§ 209, subd. (b)(1)): Count 1 pertained to Andrew, Count 2 pertained
to Zachary, Count 3 pertained to Justin, and Count 4 concerned Michelle. Defendant was convicted of six counts of
robbery: Count 5 concerned taking
Andrew’s cash at Rite Aid; Count 6 concerned taking Andrew’s money at Bank of
America; Count 7 pertained to taking Andrew’s cellular telephone at Bank of
America; Count 9 concerned taking Zachary’s cash at the Rite Aid; Count 10
concerned taking Zachary’s money at Bank of America; and Count 11 concerned
taking Justin’s money at Bank of America.
At
the sentencing hearing, the trial court deemed Count 5 to be the principle
count and imposed a six-year prison term for that Count. The sentences for Counts 6, 7, 9, 10, and 11
were ordered to be served concurrent to the sentence for Count 5. The trial court imposed a consecutive term of
14 years to life for Count 1 and concurrent terms of 14 years to life in Counts
2, 3, and 4.
2. DISCUSSION
Defendant
contends his six robbery sentences (Counts 5, 6, 7, 9, 10, and 11) should have
been stayed pursuant to section 654 because a defendant may not be sentenced
for both kidnapping for robbery (§ 209, subd. (b)(1)) and robbery (§ 211). The People concede defendant is partially
correct. The People assert the Bank of
America robbery sentences should be stayed because those robberies occurred
after the kidnappings, but the Rite Aid robbery sentences should not be stayed
because those robberies took place before defendant formed the intent to kidnap
the victims.
“‘Section
654 precludes multiple punishment for a single act or indivisible course of
conduct punishable under more than one criminal statute. Whether a course of 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. [Citation.]
If all of the offenses are incident to one objective, the court may
punish the defendant for any one of the offenses, but not more than one. [Citation.]
If, however, the defendant had multiple or simultaneous objectives,
independent of and not merely incidental to each other, the defendant may be punished
for each violation committed in pursuit of each objective even though the
violations shared common acts or were parts of an otherwise indivisible course
of conduct. [Citation.]’ [Citation.]†(People
v. Hairston (2009) 174 Cal.App.4th 231, 240.)
As
set forth ante, substantial evidence
supports the finding that defendant had separate intents for the Rite Aid and
Bank of America robberies. The same
reasoning separates the Rite Aid robberies from the kidnappings for purposes of
robbery. There is nothing indicating
defendant intended to steal money from the victims’ bank accounts when he
entered the car; rather, he only intended to take the cash in their immediate
possession. After the Rite Aid robbery
was complete, defendant decided he wanted more money, and then formed the
intent to take all the money in the victims’ bank accounts. At that point, with that new intent formed, defendant
kidnapped the victims and robbed them at Bank of America. Thus, the Rite Aid robberies are separate and
distinct from the kidnappings and Bank of America robberies. However, the kidnappings and Bank of America
robberies share the same intent—the intent to take all the money in the victims’
bank accounts.
Since
the kidnappings and Bank of America robberies share the same intent, we
conclude the trial court erred by not staying defendant’s robbery sentences in
Counts 6, 7, 10, and 11. We will direct
the trial court to stay defendant’s sentences in Counts 6, 7, 10, and 11.
C. SENTENCING DISCRETION
1. PROCEDURAL
HISTORY
At
the sentencing hearing, the trial court said, “With respect to Count 14, a
violation of Penal Code Section 136.1(c)(1), the sentence is prescribed by law
to be a mandatory consecutive sentence.
I’m sentencing the defendant to a term of midterm, three years in state
prison, doubled to six years because of the strike, to run consecutive to Count
5.â€
2. ANALYSIS
Defendant
asserts the trial court was not aware it had the discretion to impose a
concurrent, rather than a consecutive, sentence for the crime of dissuading a
witness (§ 136.1, subd. (c)(1)) (Count 14). The People agree with defendant’s contention.
We
apply the de novo standard of review when interpreting a statute. (People
v. Whaley (2008) 160 Cal.App.4th 779, 792.)
We first examine the statutory language, giving the words their usual
and ordinary meanings. If the wording is
unambiguous, then we presume the Legislature meant what it wrote and the plain
language of the statute governs. (
Section
1170.15 provides, “Notwithstanding subdivision (a) of Section 1170.1 which
provides for the imposition of a subordinate term for a consecutive offense of
one-third of the middle term of imprisonment, if a person is convicted of a
felony, and of an additional felony that is a violation of Section 136.1 or 137
and that was committed against the victim of, or a witness or potential witness
with respect to, or a person who was about to give material information
pertaining to, the first felony, or of a felony violation of Section 653f that
was committed to dissuade a witness or potential witness to the first felony,
the subordinate term for each consecutive offense that is a felony described in
this section shall consist of the full
middle term of imprisonment for the felony for which a consecutive term of
imprisonment is imposed, and shall include the full term prescribed for any
enhancements imposed for being armed with or using a dangerous or deadly weapon
or a firearm, or for inflicting great bodily injury.†(Italics added.)
Under
the foregoing italicized language, if the sentencing court chooses to impose a
consecutive term for the dissuading a witness conviction, then that term must
be the full term and not one-third of the full term as section 1170.1,
subdivision (a), provides. However,
section 1170.15 does not mandate that a term imposed for a dissuading a witness
conviction must be a consecutive term. Therefore,
the trial court’s belief that 1170.15 required the court to impose a
consecutive sentence is incorrect. The
sentencing court retained discretion to impose either a concurrent or
consecutive term, but if it chose a consecutive term, then it had to be the
full term and not one-third. Therefore,
the Count 14 sentence must be reversed and the trial court must determine whether
to impose a concurrent or consecutive term for the dissuading a witness
conviction. We express no opinion as to
whether upon resentencing the term should be consecutive or concurrent.
D. BOOKING FEE
Defendant
contends the trial court erred by imposing security fees (Pen. Code, § 1465.8)
and criminal conviction assessments (Gov. Code, § 70373) for all 14 counts
charged, even though defendant was found not guilty of three counts.
Penal
Code section 1465.8, subdivision (a)(1), provides, “To assist in funding court
operations, an assessment of forty dollars ($40) shall be imposed on every
conviction for a criminal offense . . . .â€
Government Code section 70373, subdivision (a)(1), provides, “To ensure
and maintain adequate funding for court facilities, an assessment shall be
imposed on every conviction for a criminal offense . . . .â€
By
their plain language both statutes require fees to be applied based upon the
number of a defendant’s convictions. The
trial court ordered defendant to pay $560 pursuant to Penal Code section
1465.8. The fee is $40 per conviction,
which means the court imposed the fee for 14 convictions. We will direct the trial court to change the Penal
Code section 1465.8 fee to $440, for 11 convictions. The trial court ordered defendant to pay $420
pursuant to Government Code section 70373.
The fee is $30 per felony conviction, which means the court imposed the
fee for 14 convictions. We will direct
the trial court to change the fee amount to $330, for 11 convictions.
Defendant’s
sentence for Count 14 (Penal Code, § 136.1, subd. (c)(1)) is reversed and the
trial court is directed to resentence defendant for Count 14. Defendant’s sentences in Counts 6, 7, 10, and
11 are stayed pursuant to Penal Code section 654. Defendant’s Penal Code section 1465.8 fee is
modified to the total amount of $440.
Defendant’s Government Code section 70373 fee is modified to the total
amount of $330. The trial court is
directed to issue a minute order and an amended abstract of judgment reflecting
(1) the sentence for Count 14 imposed at the resentencing hearing, and (2) the
stayed sentences in Counts 6, 7, 10, and 11.
The minute order should also reflect the fee modifications. The trial court is directed to forward a
certified copy of the amended abstract to the Department of Corrections and
Rehabilitation. (Pen. Code, §§ 1213,
1216.) In all other respects, the
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.
name="_ftn1" title=""> [1]
All subsequent statutory references will be to the Penal Code unless
indicated.
In his opening brief, defendant raised a fifth issue. Defendant asserted there is insufficient
evidence that he can afford to pay a booking fee. The People cited the recently decided case of
People v. McCullough (2013) 56
Cal.4th 589 to support their position that defendant forfeited this contention
by failing to raise it at the trial court.
In defendant’s reply brief, he concedes the issue has been
forfeited. As a result, we do not review
this issue.
