P. v. Cazares

Filed 2/10/09 P. v. Cazares CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Jesus J. Cazares of carjacking (Pen. Code, 215,^[1]subd. (a); count 1), false imprisonment by violence ( 236; count 2), unlawful taking or driving of a motor vehicle (Veh. Code, 10851, subd. (a); count 3) and misdemeanor battery ( 242; count 4). In a separate proceeding, the court found true allegations that appellant had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a) (section 667(a)) and two strikes,^[2]and had served a prison term for a prior felony conviction ( 667.5, subd. (b)). The court imposed a prison term of 31 years to life, with the determinate portion of the sentence consisting of 25 years on count 1, five years on the prior serious felony enhancement alleged in connection with count 1 and one year on the prior prison term enhancement. The court imposed concurrent terms of 25 years to life on each of counts 2 and 3, and stayed execution of sentence on count 3 pursuant to section 654.

On appeal, appellant contends (1) imposition of a concurrent term on count 2 violates the section 654 proscription of multiple punishment, and (2) the abstract of judgment and sentencing minute order must be corrected because each document erroneously indicates the court imposed prior serious felony enhancements in connection with counts 2 and 3. We will direct the trial court to issue an amended abstract of judgment and an amended sentencing minute order, and otherwise affirm.

FACTS

Appellant and Pablo Barajas were good friends.^[3]One day during the last week in August 2007, at appellants home, Barajas performed some automobile repair work on appellants car. Appellant and Barajas began drinking beer during the afternoon, and at some point, Barajas asked to borrowed $100 from appellant. Appellant agreed to give Barajas the money, and Barajas agreed to return later that day, if there was still some time, and do some further work on appellants car. Barajas also agreed to telephone appellant later and tell him when he would return.

Thereafter, at approximately 1:00 p.m., Barajas left and drove in his pickup to his parents house. There, he drank some more beer, and after approximately two to three hours he began the drive home. However, he ran out of gas on the way.

His friend Adrianna Veloz and her 16-year-old son were walking by, and they helped Barajas push his pickup to a nearby gas station. There, Barajas refueled his truck and then drove Veloz and her son to Velozs house, a distance of approximately three blocks.

As Barajas and his two companions began to get out of the pickup, appellant pulled up in a van; he had a passenger with him. Appellant approached Barajas, who was still in his pickup, yelled at him and threatened to kill him, but Barajas did not believe the threat. Appellant was upset because Barajas did not finish the work for him or telephone him. Barajas opened the drivers side door, at which point appellant punched Barajas in the face.

According to Barajas, he told [appellant] to drive and we could go leave the truck at his house. At some point appellant and his passenger got in the pickup and, with Barajas sitting between the two men, appellant drove off. Appellant said they were going to go to his house, and Barajas was going to leave his pickup there, return the next day to get it, and finish the job.

During the drive, appellant calmed down and he and Barajas apologized to each other. When they arrived at appellants house, appellant just kept the keys and Barajas walked home.

Veloz testified to the following. At approximately 10:00 or 11:00 p.m., she and her son were walking home when they encountered Barajas; he had run out of gas. After she and her son helped Barajas push his truck to the gas station, Barajas refueled and gave Veloz and her son a ride home. She was still in the pickup, trying to get out, when it looked like two males just starting to attack [Barajas]. She did not see Barajas get hit, but [y]ou could hear it. At some point somebody took off with him in the truck, they forced him in the truck. Several of Velozs children were in the front yard; Veloz got them inside and called 911.

City of Farmersville Police Officer Rafael Vasquez testified he made contact with Barajas at Barajass home approximately one hour after the incident, at which time Barajas told the officer the following. Barajas was sitting in his pickup when appellant approached, punched Barajas several times in the face and threatened to kill him. Then, appellant forced Barajas to move over and got into the truck on the drivers side.

Officer Vasquez testified further that Barajass face was slightly swollen, and he did not appear to be intoxicated.

Barajas testified he was very drunk the night of the incident and that he may have said to Officer Vasquez that appellant forced him to move to the middle of the seat in the pickup.

DISCUSSION

Section 654

Appellant contends the imposition of concurrent terms for his convictions of false imprisonment and carjacking violates section 654 because both counts arose from a single, indivisible course of conduct.

Section 654, subdivision (a) provides, in relevant 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. Thus, under the plain language of the statute, multiple punishment may not be imposed for a single act or omission. ( 654, subd. (a).) In addition, however, section 654 prohibits multiple punishment for multiple acts which comprise an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.)

A course of conduct is indivisible if the defendant acts with a single intent and objective. (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory 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.] (People v. Harrison (1989) 48 Cal.3d 321, 335.) Separate objectives may be found when the objectives were either (1) consecutive even if similar or (2) even if simultaneous. (People v. Britt (2004) 32 Cal.4th 944, 952.)

The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) The trial court is vested with broad latitude in making its determination. [Citations.] (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The courts findings may be either express or implied from the courts ruling (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585), and our review of those findings is made in the light most favorable to the respondent and [we] presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.)

Appellant argues that his course of conduct in committing the count 2 and count 3 offenses was indivisible for section 654 purposes because he committed both offenses in order to achieve a single objective, viz. to seiz[e] the truck and tak[e] it to his residence. This contention is without merit.

The evidence supports the courts implied finding that these two offenses, although committed simultaneously, were committed with separate criminal objectives. The crime of false imprisonment requires for its commission some intended confinement or restraint of the person .... Any exercise of force or express or implied threat of force by which in fact the person is restrained from his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is such imprisonment. The imprisonment may be committed by acts or words merely operating on the will of the individual and/or by personal violence. (People v. Haney (1977) 75 Cal.App.3d 308, 313.) Carjacking involves the felonious taking of a motor vehicle .... ( 215, subd. (a).) The court reasonably could have concluded that the act of restraining Barajass liberty--by driving off in Barajass pickup with Barajas wedged between appellant and appellants accomplice--did not make the taking of the vehicle easier, and that therefore the false imprisonment of the victim did not facilitate the unlawful taking of the vehicle.

We find instructive Peoplev.Nelson (1989) 211 Cal.App.3d 634. There, the defendants entered the home of the victims, the McLeods, at night while the victims were asleep. One of the defendants entered the couples bedroom and hit Mrs. McLeod over the head with a bludgeon of some type. Mrs. McLeods assailant left the bedroom, but later one of the intruders returned and committed a second assault, breaking a chair over Mrs. McLeods head, and beating her with pieces of the chair and with a telephone. A jury convicted the defendants of burglary and two counts of assault, and the court ordered the terms on the three offenses to run consecutively.

The court rejected the defendants section 654-based challenge to the imposition of sentence on the three convictions. Although [t]he People concede[d], tacitly, that the first assault on Mrs. McLeod, which occurred immediately after the burglars entered the house, was part of the same plan and was therefore not separately punishable[,] the court declined to accept this concession. (Peoplev.Nelson, supra, 211 Cal.App.3d at p. 638.) The court stated: If defendants only object was to steal the victims gold and money, he could have accomplished that simply by waiting until they were away to enter their home. A rational plan designed to accomplish theft alone would rely on stealth instead of violence.... On this record, it is reasonable to infer, as we assume the trial judge did, that theft was not the burglars only object and purpose. Rather, they deliberately chose to enter the McLeod residence while the victims were at home, knowing as they must that their presence reduced the chances of a successful theft, because separate and apart from thievery they intended to inflict physical harm upon the victims. (Id. at pp. 638-639, fn. omitted.)

Similarly, here, if appellants sole objective was to take Barajass pickup, he could have accomplished this by simply allowing Barajas to exit the vehicle and then driving off. This factor supports the inference that appellant acted with two separate criminal objectives: (1) to take the vehicle, and (2) make the victim go where he did not wish to go. Therefore, imposition of sentences on counts 1 and 2 did not violate section 654.

Correction of the Abstract of Judgment and Minute Order

Under section 667(a), a person convicted of a serious felony is subject to a five-year enhancement if he or she has suffered a prior conviction of a serious felony. ( 667, subd. (a).)^[4]The count 1 offense--carjacking--is a serious felony. ( 1192, subd. (c)(27).) Accordingly, the court imposed a five-year section 667(a) enhancement in connection with count 1, and the abstract of judgment and minute order so indicate.

However, the minute order and abstract also indicate that the court imposed section 667(a) enhancements with respect to counts 2 and 3, even though the court did not do so. As appellant points out, neither false imprisonment (count 2) nor unlawful taking of a vehicle (count 3) qualifies as a serious felony. Therefore, although the information alleged section 667(a) prior serious felony enhancements in connection with counts 2 and 3, the court correctly found neither allegation true.

Appellant contends, and the People concede, the abstract of judgment and sentencing minute order should be corrected. We agree. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts].) We will order that the trial court issue an amended abstract of judgment and an amended sentencing minute order.

DISPOSITION

The trial court is directed to issue an amended abstract of judgment and amended sentencing minute order, each indicating that on each of counts 2 and 3, the court imposed a sentence of 25 years to life, which did not include a prior serious felony enhancement. The trial court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation and each appropriate person. In all other respects, the judgment is affirmed.

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^*Before Gomes, Acting P.J., Dawson, J., and Kane, J.

^[1] Except as otherwise indicated, all statutory references are to the Penal Code.

^[2] We use the term strike as a synonym for prior felony conviction within the meaning of the three strikes law ( 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.

^[3] Except as otherwise indicated, our factual statement is taken from Barajass testimony.

^[4] As used in section 667, subdivision (a), serious felony means a serious felony listed in section 1192.7, subdivision (c). ( 667, subd. (a)(4).)