Ramirez
Filed 2/1/13 P. v. Ramirez CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS RAMIREZ et al.,
Defendants and
Appellants.
F062512
(Super.
Ct. Nos. BF131871A & BF131871C)
APPEAL from
a judgment of the Superior Court
of Kern County. John W. Lua, Judge.
Madeline
McDowell, under appointment by the Court of Appeal, for Defendant and Appellant
Jesus Ramirez
Stephen M. Hinkle, under
appointment by the Court of Appeal, for Defendant and Appellant Zane Molina
Hubbard.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and Clifford
E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury
convicted appellants Jesus Ramirez and Zane Molina Hubbard of multiple
offenses. In this appeal they both
contend the evidence was insufficient to sustain their convictions for making
criminal threats pursuant to Penal Code section 422
were committed for the benefit of a criminal street gang. They further maintain the trial court erred
when it failed to instruct sua sponte on attempted criminal threats and
violated section 654 in sentencing.
Lastly, Hubbard contends the photo lineup used to identify him was
flawed and requires reversal of all his convictions.
We reject their contentions, with
the exception of one conviction for solicitation and certain claims of error
regarding imposition of terms of imprisonment on the enhancements. We therefore affirm the remaining convictions
and remand for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
Ramirez was
charged in an incident involving Anna Deluna; Ramirez and Hubbard were charged
jointly with offenses arising from an altercation with Alex Vargas.
Incident
The Deluna
incident formed the basis of counts 1 through 6 and 13. On April 5, 2010, Deluna met up with Ramirez
to sell him some marijuana.
When Deluna arrived where Ramirez
was waiting, he jumped into the backseat of her car, claiming he needed to look
at the marijuana. Ramirez then told
Deluna he was going to rob her and pulled out two guns. Ramirez took the keys to Deluna’s car,
searched her, and then searched the car.
Ramirez took Deluna’s phone and her money, an amount between $200 and
$400.
Ramirez tried to get Deluna to drive
him to other drug dealers so he could rob them and offered to give Deluna
one-half of whatever he obtained from the robberies. Deluna did not respond. They drove around for about 30 minutes,
eventually returning to where they had started.
Ramirez instructed Deluna to get
out of the car, after which he exited the car and went around to where she
stood. Ramirez hugged and kissed her and
then told her he had her driver’s license and address and would kill her if she
told the police. Ramirez then drove off
in Deluna’s car. Deluna contacted her
grandmother, who called the police.
Deluna identified Ramirez from a
photo lineup and in court as the person who had robbed her. She was certain of the identification of
Ramirez as the perpetrator.
Vargas Incident
The Vargas
incident formed the basis of the charges set forth in counts 7 through 12
against both Ramirez and Hubbard.
On April
22, 2010, Vargas was driving his red Mustang on Texas Street when he approached
Christina Silvas and asked if he could buy some marijuana from her. Silvas told Vargas to come back in an
hour. Silvas then told her boyfriend,
Ramirez, that a man in a red Mustang was following her.
Vargas
returned in one hour as instructed.
Ramirez came out of a house and approached Vargas, asking him for a ride
so he could deliver some keys to a truck.
Vargas thought Ramirez was Silvas’s brother and agreed to give Ramirez a
ride. During the ride, they picked up
Hubbard and returned to where they had started.
Ramirez was in the front seat with Vargas; Hubbard was in the
backseat. At this point, both Ramirez
and Hubbard pulled out guns and took Vargas’s hat, jacket, identification,
CD’s, and other items. Ramirez pointed
the gun at Vargas and said, “Don’t move,†or he would shoot.
Ramirez and
Hubbard ordered Vargas to get into the trunk of the Mustang. Vargas resisted, but Ramirez stated he would
shoot Vargas unless Vargas complied.
Vargas got into the trunk and the car sped away. Vargas remained in the trunk for about 30
minutes, during which time he was worried he would be shot when the car
stopped. Vargas was taken out of the
trunk of the car and left on a rural dirt road.
He walked about 30 minutes to a farmhouse and used the phone there to
call police.
Vargas
identified Ramirez and Hubbard from photo lineups and also at trial. He was certain that Ramirez and Hubbard were
the two men who had robbed and kidnapped him.
On April
23, 2010, officers searched Silvas’s residence and found identification and
items belonging to Vargas.
On April 25 Ramirez was spotted by
police. He fled and was chased into a
residence on South Owens Street. Ramirez
hid in the attic and was extracted by force.
After he was subdued, Silvas arrived on the scene and was yelling
hysterically that Ramirez was her boyfriend.
Silvas told
police that two of her friends, whom she called Spooky and Menace, had come to
her house after the robbery and had given her Vargas’s items that were found in
her residence; Menace also showed her money taken from Vargas’s wallet. Silvas said Menace was her boyfriend and
identified Ramirez as Menace. Silvas
also identified Hubbard from a photo and stated Hubbard was Spooky.
Ramirez was
charged with kidnapping to commit robbery (count 1), kidnapping to commit
carjacking (count 2), criminal threats (count 3), dissuading a witness from
testifying (count 4), solicitation to commit robbery (count 5), being an active
participant in a criminal street gang (count 6), and being a felon in
possession of a firearm (count 13).
Ramirez and Hubbard were charged with kidnapping to commit robbery
(count 7), carjacking for the purpose of kidnapping (count 8), assault with a
semiautomatic firearm (count 9), criminal threats (count 10), active
participation in a criminal street gang (count 11), and being a felon in
possession of a firearm (count 12).
It also was alleged that the
offenses set forth in counts 1, 2, 3,
4, 5, 7, 8, 9, 10, 12
alleged as to counts 1, 2, 3, 4, 6, 7, 8, 9, 10, and 11. As to 12 counts against Ramirez and all six
counts against Hubbard, it was alleged that both had served two prison terms.
At trial Officer Eric Littlefield
testified as a gang expert. Littlefield
testified that Varrio Bakers is an active gang in Bakersfield with several
hundred members. Its primary activities
include weapons violations, assaults with a deadly weapon, witness
intimidation, robbery, car thefts, carjacking, murders, and narcotics
sales. The Varrio Bakers gang claims the
area between Brundage Lane to the south, Dr. Martin Luther King Boulevard or
Washington Street to the east, H Street or Eye Street to the west, and East Truxtun
to the north as their turf.
Littlefield opined that both
Ramirez and Hubbard were active members of the Varrio Bakers gang. He based this opinion on their gang tattoos,
their history of offenses, and their prior contacts with police where both claimed
membership in the Varrio Bakers gang.
In response to a hypothetical based
upon the offenses committed against Deluna, Littlefield opined that the
offenses would benefit the gang because they involved use of a firearm,
victimization of others, and theft of the victim’s vehicle, which could be used
in the commission of other crimes. In
response to a second hypothetical based upon the offenses committed against
Vargas, Littlefield opined that these offenses would benefit the gang for the
same reasons as the first hypothetical, plus the offenses were committed by
gang members acting in concert. The
parties stipulated that Varrio Bakers was a criminal street gang.
The jury convicted Ramirez and
Hubbard of all charges, and all enhancements were found true except for the
firearm allegation appended to count 4.
In a court trial, the prior prison enhancements were found true.
The Sentences
The trial court sentenced Ramirez
to an indeterminate term of 37 years to life, plus 16 years, and a determinate
term of 24 years. It sentenced Hubbard to
an indeterminate term of 15 years to life and a determinate term of 24 years 4
months.
DISCUSSION
Both Ramirez and Hubbard contend
the evidence was insufficient to sustain their convictions for making criminal
threats pursuant to section 422 and to support the findings that the crimes
were committed for the benefit of a criminal street gang. They further maintain the trial court erred
when it failed to sua sponte instruct on attempted criminal threats and
violated section 654 in sentencing.
Ramirez separately contends the evidence was insufficient to sustain the
count 5 conviction for solicitation to commit robbery. Lastly, Hubbard separately contends the photo
lineup used to identify him was flawed and requires reversal of all his
convictions.
Hubbard
Identification
Hubbard contends the photo lineup
used to identify him was unduly suggestive and unreliable, thus his convictions
must be reversed. We disagree that his
convictions must be reversed.
The trial court held an Evidence
Code section 402 hearing to decide whether Vargas’s identification of Hubbard
as one of the perpetrators would be admissible.
The trial court found that the photographic lineup was suggestive
because only one picture, Hubbard’s, showed a person with tattoos on his face;
the other five photos depicted people without facial tattoos. The trial court also found, however, that the
photo lineup did not taint Vargas’s in-court identification of Hubbard.
In ruling that the photo lineup had
not tainted Vargas’s in-court identification of Hubbard, the trial court noted
that Vargas had given a detailed description of Hubbard to the police
immediately after the incident and had had an opportunity to view Hubbard
during the incident, when it was daylight.
The physical characteristics described by Vargas prior to being shown
the photo lineup were consistent with Hubbard’s physical characteristics. At the Evidence Code section 402 hearing,
with Hubbard not present, Vargas accurately described Hubbard from his
recollection of the incident. He was
subject to cross-examination as to his recollection and description. He accurately described physical
characteristics of Hubbard, even when a question suggested an erroneous answer,
and accurately described physical attributes of both Ramirez and Hubbard. He later identified both Hubbard and Ramirez
in court.
In determining the admissibility of evidence,
the trial court has broad discretion.
Under Evidence Code section 402, a trial court’s ruling on admissibility
implies whatever finding of fact is prerequisite thereto. A separate or formal finding is unnecessary
unless otherwise required by statute. On
appeal, a trial court’s decision to admit or not admit evidence following a
hearing under Evidence Code section 402 is reviewed for abuse of
discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197.)
In reviewing Hubbard’s contention
that the photo lineup tainted any identification of him as a perpetrator, we
accept the trial court’s resolution of disputed facts and inferences, as well
as its evaluation of the credibility of witnesses. (People
v. Whitson (1998) 17 Cal.4th 229, 248.)
We “‘“‘give great weight to the considered conclusions’ of a lower court
that has previously reviewed the same evidence.†[Citations.]’†(Ibid.)
This court, however, independently
reviews a trial court’s ruling that an identification procedure was not unduly
suggestive or tainted a later identification.
(People v. Avila (2009) 46
Cal.4th 680, 698-699.) In considering
whether the totality of the circumstances suggests a misidentification because
an eyewitness has been subjected to undue suggestion, a court looks to numerous
factors, such as (1) the opportunity of the witness to view the suspect at the
time of the offense; (2) the accuracy of the witness’s prior description of the
suspect; (3) the level of certainty demonstrated at the time of identification;
(4) the witness’s degree of attention at the time of the incident; and (5) the
lapse of time between identification and the incident. (People
v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).)
The evidence established that
Vargas accurately described Hubbard physically shortly after the incident and
before being presented with a photo lineup; Vargas had the opportunity to
observe Hubbard somewhat closely during the incident; and Vargas accurately
described Hubbard’s physical characteristics when cross-examined at the
Evidence Code section 402 hearing, even answering accurately when a question
suggested an incorrect response. Vargas
described Hubbard’s distinctive facial tattoos in his initial statements to
police. Vargas also was very certain of
his identification of Hubbard. These
facts and the totality of the circumstances do not suggest an in-court
misidentification by Vargas. (
168.)
Once it is established that an
identification procedure used was unnecessarily suggestive, exclusion of
identification testimony is required only if the suggestive identification
procedures tainted the in-court identification.
(People v. Yeoman (2003) 31
Cal.4th 93, 123.) Hubbard has failed to
meet his burden of establishing that the photo lineup tainted Vargas’s in-court
identification, even though the trial court concluded the photo lineup was
suggestive. (Cunningham, supra, 25 Cal.4th at pp. 989-990.)
In light of these principles and
the totality of the circumstances, we conclude the trial court did not err in
concluding the photo lineup did not taint the in-court identification of
Hubbard.
Sufficiency
of the Evidence
Multiple contentions regarding the
sufficiency of the evidence are raised by Ramirez and Hubbard. Ramirez contends the evidence was
insufficient to sustain the count 7 offense for solicitation to commit robbery. Ramirez and Hubbard both contend the evidence
was insufficient to sustain the count 10 convictions for criminal threats and
to support the section 186.22 enhancements appended to counts 7, 8, 9, and
10.
We agree with Ramirez on the
sufficiency of the evidence to support count 7.
We, however, reject the other claims.
Standard of Review
When
assessing a challenge to the sufficiency of the evidence, we examine the entire
record in the light most favorable to the judgment below to determine whether
it contains substantial evidence from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. (People
v. Johnson (1980) 26 Cal.3d 557, 578.)
The same standard applies when assessing a federal constitutional due
process claim: “[T]he critical inquiry
on review of the sufficiency of the evidence to support a criminal conviction
must be not simply to determine whether the jury was properly instructed, but
to determine whether the record evidence could reasonably support a finding of
guilt beyond a reasonable doubt.†(
318, fn. omitted (Jackson).) “The standard is the same, regardless of
whether the prosecution relies mainly on direct or circumstantial
evidence. [Citation.]†(People
v. Vazquez (2009) 178 Cal.App.4th 347, 352 (Vazquez).)
“‘Before a judgment of conviction
can be set aside for insufficiency of the evidence to support the trier of
fact’s verdict, it must clearly appear that upon no hypothesis whatever is
there sufficient evidence to support it.’
[ Citation.]†(
1236, 1245; see also Jackson, supra,
443 U.S. at p. 319.) Generally, the
testimony of a single witness is sufficient to prove a disputed fact unless the
testimony is inherently improbable or physically impossible. (People
v. Young (2005) 34 Cal.4th 1149, 1181; People
v. Scott (1978) 21 Cal.3d 284, 296.)
The trier of fact makes credibility
determinations and resolves factual disputes.
(People v. Estrella (1995) 31
Cal.App.4th 716, 724-725 (Estrella).) We will not substitute our evaluation of a
witness’s credibility for that of the fact finder. (Vazquez,
supra, 178 Cal.App.4th at p. 352.)
In conducting a review for sufficiency of the evidence, we presume in
support of the judgment the existence of every fact the trier of fact
reasonably could deduce from the evidence.
(People v. Lee (2011) 51
Cal.4th 620, 632.)
Solicitation to Commit Robbery
Ramirez contends, and the People
concede, the evidence was insufficient to sustain the count 5 conviction for
solicitation to commit robbery. We
agree.
Section 653f, subdivision (a)
provides in relevant part: “Every person
who, with the intent that the crime be committed, solicits another to … commit
or join in the commission of … robbery … shall be punished by imprisonment .…†Solicitation of robbery must be proven “by
the testimony of two witnesses, or of one witness and corroborating
circumstances.†(Id., subd. (f).) The
provision set forth in subdivision (f) was enacted “to guard against
convictions for solicitation based on the testimony of one person who may have
suspect motives.†(People v. Phillips (1985) 41 Cal.3d 29, 76.)
Here, Deluna testified that Ramirez
solicited her to commit robbery of other drug dealers. No other witness testified to the
solicitation. There also was no
corroborating evidence from any other source, as the People concede.
Corroborative evidence is
additional evidence of a different character related to the same point. Corroborative evidence need not be strong and
need not be sufficient in itself, without the aid of other evidence, to
establish the fact in question. (
728, 731.) Although section 653f
requires corroboration, the statute does not specify what type of evidence is
necessary. Courts have construed this
statute to mean that the “corroborating evidence must tend to connect the
defendant with the offense.
[Citations.]†(
224.)
Although we have no reason to doubt
the truthfulness of Deluna’s testimony on this point, the plain language of the
statute requires a second witness or corroborating evidence, neither of which
was present in this case. Consequently,
we must reverse the count 5 conviction for solicitation to commit robbery.
Criminal Threats
Ramirez and Hubbard contend the
evidence was insufficient to sustain the count 10 conviction for criminal
threats because there was no evidence Vargas was in sustained fear. We disagree.
To convict a defendant of violating
section 422, the prosecution must prove all of the following elements: “(1) that the defendant ‘willfully
threaten[ed] to commit a crime which will result in death or great bodily
injury to another person,’ (2) that the defendant made the threat ‘with the
specific intent that the statement … is to be taken as a threat, even if there
is no intent of actually carrying it out,’ (3) that the threat—which may be
‘made verbally, in writing, or by means of an electronic communication
device’—was ‘on its face and under the circumstances in which it [was] made, …
so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate prospect of execution
of the threat,’ (4) that the threat actually caused the person threatened ‘to
be in sustained fear for his or her own safety or for his or her immediate
family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’
under the circumstances. [Citation.]†(People
v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
A sustained fear under the statute
need only occur over “a period of time that extends beyond what is momentary,
fleeting, or transitory.†(
1149, 1156 (Allen).) Moreover, in determining if a criminal threat
has been made, the jury is entitled to consider “all of the circumstances†and
“the threatening statement does not have to be the sole cause of the victim’s
fear.†(People v. Solis (2001) 90 Cal.App.4th 1002, 1014 (
Here, ample evidence was presented
from which a reasonable jury could have inferred that Vargas was in sustained
fear. Both Ramirez and Hubbard had
guns. Vargas was told at one point not
to move or he would be shot. Ramirez
later told Vargas to get into the trunk of the car; Vargas initially resisted,
but complied after Ramirez stated Vargas would be shot unless he did as he was
told. Vargas testified that during the
30 minutes he spent in the trunk of the car, “I was worried that I was going to
get shot.â€
Vargas testified he was worried he
would be shot, even after he complied with the directives of Ramirez and
Hubbard. Any reasonable person would be
in sustained fear of his or her safety when threatened by two men with
guns. (Toledo, supra, 26 Cal.4th at pp. 227-228.) Vargas’s testimony also established that he
sustained this thought for at least 30 minutes while in the trunk of the
car. This constitutes more than a
momentary or fleeting amount of time. (
1156.)
It is of no consequence that Vargas
did not use the term “sustained fear†to convey his thoughts and feelings
during his testimony. The statute does
not require specific words be used by a victim in order to convey the sense of
sustained fear and Ramirez and Hubbard have cited no case so stating.
In People v. Fierro (2010) 180 Cal.App.4th 1342, a challenge to the
sufficiency of the evidence supporting a criminal threat conviction was
rejected where the defendant stood by the victim’s car, displayed what appeared
to be a gun, and threatened to kill the victim “‘right now.’†(Id.
at p. 1346.) The victim was
“‘scared to death during the whole ordeal.’â€
(Ibid.) In finding that the sustained fear element
was proven, the appellate court reasoned the victim testified clearly that he
was facing a gun, was scared for his safety, and that this mental state was not
fleeting. This was sufficient to prove
the element of sustained fear. (
We also reject the related
contentions of Ramirez and Hubbard that the trial court erred in not instructing
sua sponte on attempted criminal threats because the evidence established all
the elements of a section 422 offense.
The trial court is not required to instruct on offenses for which there
is no evidentiary support. (
142, 162 (Breverman).)
Assuming for purposes of argument
the instruction should have been given, any failure to do so does not warrant
reversal. In a noncapital case, the
trial court’s failure to instruct sua sponte on all lesser included offenses that
are supported by the evidence must be evaluated for prejudice solely under
836. (Breverman, supra, 19 Cal.4th at p. 178.) Under that standard, “A conviction of the
charged offense may be reversed in consequence of this form of error only if,
‘after an examination of the entire cause, including the evidence’ (Cal.
Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would
have obtained a more favorable outcome had the error not occurred (
fn. omitted.) In light of the evidence
supporting the offense of criminal threats, it is not reasonably probable a
result more favorable to Ramirez and Hubbard would have been obtained if an
instruction on the attempted offense had been given.
Gang Enhancements
Ramirez and Hubbard argue that the
section 186.22 gang enhancements appended to counts 7, 8, 9, and 10 should be
reversed because the evidence was insufficient to establish the crimes were
committed for the benefit of a criminal street gang. First, Ramirez and Hubbard claim the
testimony of Littlefield, alone, was insufficient to support the gang
enhancements. Second, they assert the
testimony of Ramirez’s girlfriend established the crimes were personal, not
gang related. We disagree.
The mental element of the gang
enhancement requires substantial evidence from which the jury can infer that in
committing the gang-related criminal act, the defendant specifically intended
to engage in or promote criminal gang conduct.
(People v. Albillar (2010) 51
Cal.4th 47, 68.) Ramirez and Hubbard
first contend that the gang expert’s opinion that the crimes were committed for
the benefit of the gang by itself was insufficient to satisfy this requirement. In Albillar,
specifically stated, “Expert opinion that particular criminal conduct benefited
a gang … can be sufficient to raise the inference that the conduct was
‘committed for the benefit of … a[] criminal street gang’ within the meaning of
section 186.22.†(Id. at p. 63; see also People
v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.)
Moreover, it is not just the gang
expert’s opinion that provides evidence that supports the gang
enhancements. Both Ramirez and Hubbard
repeatedly had claimed membership in the Varrio Bakers gang and had gang
tattoos. That two gang members came
together to assist each other in the commission of the crimes suggests they
were committed for the benefit of the gang.
(People v. Miranda (2011) 192
Cal.App.4th 398, 412-413.) The Varrio
Bakers gang “claimed†the area where the offenses occurred and robbery and
carjacking were two of the primary offenses committed by members of the
gang. These factors also support the
inference they were committed for the benefit of the gang. (Id. at
pp. 412-413; People v. Gardeley (1996)
14 Cal.4th 605, 619.)
None of the cases cited by Ramirez
and Hubbard in support of their claim that expert testimony cannot form the
basis of a finding on a gang enhancement was decided after Albillar. Further, in all of
the cases cited by Ramirez and Hubbard, the crimes lacked at least one of the
elements relied upon to establish a gang connection, be it commission with a
fellow gang member, commission of offenses in the gang’s turf, or commission of
offenses commonly committed by the gang.
In People v. Ochoa (2009) 179 Cal.App.4th 650, 662 and
1192, 1199, there was no evidence the defendant committed the crimes in concert
with other gang members or gang territory.
In People v. Ramon (2009) 175 Cal.App.4th 843, 853, there was no
evidence the crimes committed were one of the primary activities of the
gang.
Unlike People v. Killebrew (2002) 103 Cal.App.4th 644, 652, where the gang
expert impermissibly testified to the defendant’s subjective knowledge and
intent, here the gang expert explained in a hypothetical how the crimes would
benefit the gang and further its activities.
Killebrew does not preclude
the prosecution from eliciting testimony from an expert that allows a jury to
infer the motive for a crime or a defendant’s intent. (People
v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.)
Additionally,
the defense suggested the crimes against Vargas were motivated by Ramirez’s
reaction to Vargas following Silvas home and “stalking females†in the area
rather than any gang motivation. This
argument was based on the testimony of Silvas, Ramirez’s girlfriend, who
testified that she told Ramirez a man in a red Mustang, Vargas, was following
her. Although this was some slight
evidence from which the jury could have concluded the crimes against Vargas
were personal and not gang related, it is the province of the jury to assess
the credibility of witnesses. The trier
of fact makes credibility determinations and resolves factual disputes. (Estrella,
supra, 31 Cal.App.4th at pp. 724-725.)
We will not substitute our opinion of a witness’s credibility for that
of the fact finder. We can reject
testimony that the jury finds credible only if it is inherently improbable or
impossible, which is not the case here.
(People v. Sanchez (1995) 12
Cal.4th 1, 31.)
Here,
there is no basis upon which to reject the jury’s findings because sufficient
evidence supports those findings.
Sentencing
Issues
Ramirez and Hubbard raise two
primary sentencing issues, and Hubbard challenges his custody credits.
First, Ramirez and Hubbard contend
the trial court erred by imposing consecutive sentences for the count 9 and 10
convictions because these offenses were an indivisible course of conduct with
the count 7 offense and imposition of punishment should have been stayed
pursuant to section 654.
Second, they claim the trial court
erred in imposing both the firearm and the gang enhancements on counts 9 and 10
because imposition of both enhancements is precluded by section 1170.1,
subdivision (f), a claim the People concede is correct.
Finally, Hubbard asserts he is
entitled to an additional six days of custody credit, and the People
agree.
Consecutive Sentences
Ramirez and Hubbard argue contend
the trial court should have stayed imposition of punishment on counts 9 and 10
pursuant to section 654. They contend
counts 9 and 10 arose from an indivisible course of conduct with the same
criminal intent as the count 7 offense and that the assault and criminal
threats simply were a means to accomplish the kidnapping. We disagree.
The count 7 offense was kidnapping
to commit robbery, the count 9 offense was assault with a semiautomatic
firearm, and the count 10 offense was criminal threats. All the offenses pertained to the course of
conduct with Vargas.
Section 654 has been interpreted to
prohibit multiple punishments for a single act, as well as an indivisible
course of conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) “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. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offense but not
for more than one.†(
On the other hand, if the evidence
discloses that a defendant entertained multiple criminal objectives independent
of and not merely incidental to each other, the trial court may impose
punishment for independent violations committed in pursuit of each objective,
even though the violations shared common acts or were part of an otherwise
indivisible course of conduct. (
84, 98; People v. Cleveland (2001) 87
Cal.App.4th 263, 267-268.)
Whether a course of conduct is
indivisible depends on a defendant’s intent and objective, not temporal
proximity of offenses. (
788-789; People v. Jones (2002) 103
Cal.App.4th 1139, 1143.) “The
determination of whether there was more than one objective is a factual
determination, which will not be reversed on appeal unless unsupported by the
evidence presented at trial.
[Citation.] The factual finding
that there was more than one objective must be supported by substantial
evidence. [Citation.]†(People
v. Saffle (1992) 4 Cal.App.4th 434, 438.)
An offense is classed as a
“general intent†crime when the required mental state entails only an intent to
do the act that the law deems unlawful; an offense is classed as a “specific
intent†crime when the required mental state entails an intent to cause the
resulting harm. (People v. Davis (1995) 10 Cal.4th 463, 517-519.) Motive is irrelevant to a general intent
crime. (People v. Kelly (1990) 51 Cal.3d 931, 959.)
Here, the evidence supports the
trial court’s implicit finding that Ramirez and Hubbard harbored multiple
criminal objectives.
Vargas testified that after he
drove Ramirez to meet Hubbard, Hubbard climbed in the backseat and then Ramirez
and Hubbard pulled out their guns and pointed them at Vargas. Vargas was told not to move or he would be
shot. At that point, the assault was
complete. Assault is a general intent
crime and requires only the intent to willfully commit an act, the direct,
natural, and probable consequences of which, if completed successfully, would
probably result in physical force being applied to another. (People
v. Williams (2001) 26 Cal.4th 779, 787-788.)
Next, Hubbard and Ramirez ordered
Vargas to step out of his car and climb into the trunk. While Vargas was preparing to climb into the
trunk, Ramirez and Hubbard robbed him of personal property and then, with
Vargas in the trunk, drove for at least 30 minutes. Kidnapping for robbery requires that the
perpetrator have the specific intent to commit robbery. (People
v. Tribble (1971) 4 Cal.3d 826, 830-832.)
When Vargas resisted climbing into
the trunk, Ramirez and Hubbard threatened to shoot him. While in the trunk, Vargas was worried he was
going to be shot. Toledo, supra, 26 Cal.4th at pages 227-228 enumerates the elements
necessary to prove the offense of making criminal threats under section
422. The prosecution must prove “(1)
that the defendant ‘willfully threaten[ed] to commit a crime which will result
in death or great bodily injury to another person,’ (2) that the defendant made
the threat ‘with the specific intent that the statement … is to be taken as a
threat, even if there is no intent of actually carrying it out,’ (3) that the
threat—which may be ‘made verbally, in writing, or by means of an electronic
communication device’—was ‘on its face and under the circumstances in which it
[was] made, … so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an immediate prospect
of execution of the threat,’ (4) that the threat actually caused the person
threatened ‘to be in sustained fear for his or her own safety or for his or her
immediate family’s safety,’ and (5) that the threatened person’s fear was
‘reasonabl[e]’ under the circumstances.
[Citation.]â€
The trial court reasonably could have found
from these circumstances that Ramirez and Hubbard’s intent initially was to
carjack Vargas and the specific intent to commit kidnapping for robbery was
formed as the incident progressed. The
purpose of the initial assault was to obtain control of the vehicle; the
objective later became to rob and kidnap Vargas. The objective in threatening Vargas before he
climbed into the trunk was to instill fear—a distinctly separate intent from
the required intent to commit kidnapping for robbery. Since the record supports the trial court’s
implicit finding that Ramirez and Hubbard had separate objectives in committing
each offense, the trial court did not violate section 654 when it imposed
consecutive punishment for counts 7, 9, and 10.
(Cf. Solis, supra, 90
Cal.App.4th at p. 1022; People v. Nichols
(1994) 29 Cal.App.4th 1651, 1656-1658.)
Enhancements
Ramirez and Hubbard contend the
trial court erred in imposing both the firearm and gang enhancements on counts
9 and 10. The People agree, and so do
we.
In People v. Rodriguez (2009) 47 Cal.4th 501, 508-509, the California
Supreme Court held that when a defendant is convicted of a violent felony
within the meaning of section 667.5, subdivision (c)(8), based upon the
defendant’s use of a firearm under section 12022.5, a trial court’s imposition
of both the section 12022.5 enhancement and the section 186.22, subdivision
(b)(1)(C) enhancement violates section 1170.1, subdivision (f). The California Supreme Court concluded that
the proper remedy was not to strike one of the enhancements, but to remand for
resentencing. (Rodriguez, at p. 509.) A
remand allows a trial court to restructure its sentencing choices. (Ibid.)
Here, the trial court imposed both
the section 12022.5 enhancement and the section 186.22, subdivision (b)(1)
enhancement on counts 9 and 10, in violation of section 1170.1, subdivision
(f).
The second part of Ramirez and
Hubbard’s contention on imposition of punishment on the enhancements is that
the trial court correctly stayed imposition of punishment on the firearm
enhancements appended to counts 7 and 10 pursuant to section 654, but erred in
imposing punishment on those underlying offenses. They argue punishment for counts 7 and 10
also should be stayed pursuant to section 654.
The California Supreme Court has
determined that section 654 applies to enhancements and can operate to bar
imposition of punishment of multiple enhancements tied to a single offense
based upon the same act. (
162-164.) We have concluded, however,
that section 654 does not operate to bar consecutive sentences for counts 7, 9,
and 10 because they had different objectives and intent. As for the punishment to be imposed on the
various enhancements appended to these counts and the application of section
654, we decline to address this issue further in this appeal because the sentence
will be vacated and the matter remanded for resentencing in light of the
violation of section 1170.1, subdivision (f).
Custody Credits
Hubbard claims he is entitled to
six additional days of custody credit.
Hubbard was arrested in Sacramento on April 28, 2010. He was booked into the Kern County jail on
May 3, 2010, and presentence custody was calculated from that date.
The People agree, and so do we,
that Hubbard is entitled to six additional days of custody credit, as it
appears he was not credited with time from the date of his arrest in Sacramento
County but only from the time he was in custody in Kern County.
DISPOSITION
The
conviction on count 5 is reversed. The
convictions on the remaining counts and the true findings on the enhancements
are affirmed. The sentences are vacated
and the matter remanded for resentencing.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
DETJEN, J.
further statutory references are to the Penal Code unless otherwise stated.
