P.
v. Zamora
Filed
2/26/13 P. v. Zamora CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH
APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. JOHN ANTHONY ZAMORA, Defendant and Appellant. | H037159 ( Super. Ct. No. WF00306) |
A jury
convicted defendant John Anthony Zamora of attempted murder, shooting at an
occupied vehicle, possession of a firearm by a felon,
cohabitant, kidnapping, false imprisonment, and
firearm-discharge, and firearm-causing-bodily-injury
allegations for purposes of sentence enhancements to the attempted murder and
shooting convictions. And the trial
court found true three prior-prison-term allegations for purposes of one-year
sentence enhancements. The trial court
sentenced defendant to 38 years to life as follows: 34 years to life for attempted murder (nine
years plus 25-years-to-life for firearm-causing-bodily-injury enhancement);
stayed five years for shooting; concurrent 16 months for possession;
consecutive one year for corporal injury; concurrent three years for
kidnapping; stayed 16 months for false imprisonment; stayed 180 days for
domestic battery; and consecutive three years for prior prison terms.
On appeal,
defendant contends that (1) the trial court erred in instructing the jury on
kidnapping, (2) he was wrongly convicted of both kidnapping and false
imprisonment, (3) he was wrongly convicted of both corporal injury and domestic
battery, (4) his consecutive one-year sentence for corporal injury constitutes
improper multiple punishment (Pen. Code, § 654), and (5) the abstract of
judgment does not reflect that the sentences for shooting (but not the
enhancements) and false imprisonment were stayed. The People concede defendant’s second and
fifth contentions and we agree that the concessions are appropriate. We otherwise disagree with defendant. We will therefore modify the judgment by
striking the conviction for false imprisonment and affirm the judgment as
modified. And we will order the abstract
conformed to reflect that the base term sentence for shooting at an occupied
vehicle is stayed.
background
Defendant
had an acrimonious, violent relationship with Deleyne Padilla that Padilla
ended in August 2007. But on September 16, 2007, defendant’s
mother drove defendant to Padilla’s home on Larkin
Valley Road in Watsonville
so he could attempt reconciliation. She
exited the vehicle, entered the home, and explained to Padilla that defendant
wished to speak with her. Padilla agreed
to speak with defendant and went with the mother to the vehicle. She sat in the front passenger seat and the
mother sat in the driver’s seat.
Defendant was sitting in the back seat.
After conversing with Padilla for several minutes, defendant began to
argue with Padilla. Padilla exited the
vehicle and began walking away.
Defendant then got out, pursued Padilla, grabbed Padilla, and threw her
onto the back seat of the vehicle.
Padilla “flew across and hit the other . . . passenger door.†Defendant got into the back seat and
instructed his mother to drive away. The
mother drove away, and the two in the back seat began arguing. After concluding that Padilla had been
avoiding him, defendant hit Padilla at least three times in the face while the
vehicle was on Airport Road
crossing a bridge connecting to Highway 1 toward Monterey. He then bit Padilla on the hand. At some point, the mother pulled over and
told defendant to stop hitting Padilla.
After defendant agreed, she drove to Mesa
Village Park
on Green Valley Road where
defendant exited the vehicle. She then
drove Padilla home. Padilla reported the
incident to the police, and the investigating officer observed two red and
purple bruised eyes, a swollen cheek and nose, and bite marks on her hand.
The above
incident formed the basis for the corporal injury, kidnapping, false
imprisonment, and domestic battery convictions.
The next described incident formed the basis for the attempted murder,
vehicle shooting, and firearm possession convictions.
Defendant
was in custody until April 2008. After
he was released, Padilla went to see him at his home. They talked about reestablishing their
relationship and became intimate. They
began seeing each other every day. And
they began arguing after Padilla discovered that defendant was seeing a woman
named Veronica. During one argument in a
restaurant, defendant grabbed Padilla’s
the room, pinned Padilla against a wall, and threw a punch near her face. During another argument at a friend’s home,
defendant pulled out a revolver. On May
21, the two argued over the telephone.
Padilla hung up on defendant and refused to answer his subsequent calls
and text messages. During the late
evening of May 21 and early morning of May 22, Padilla drove her car around
back roads with her brother-in-law as a passenger. She told him about her abusive situation and
stressful condition. As she returned to
her home and drove up a hill on her narrow, one-car, dirt driveway, a second
car approached going down the driveway toward Padilla’s car. The cars stopped at a bumper-to-bumper
distance. Defendant exited the second
vehicle with a gun in his hand, ran toward the passenger’s side of Padilla’s
vehicle, pointed the gun into the car, and tried to get inside, but the door
was locked. He tried the rear passenger
door but that was also locked. He
angrily commanded that Padilla unlock the door, and Padilla eventually
complied. Defendant got in the back
seat, pointed the gun at Padilla, and started to argue with her. He demanded her cell phone, and Padilla gave
it to him. Defendant read Padilla’s call
list and broke the cell phone in half.
At defendant’s command, Padilla backed her car off the road and the
second car drove away. Defendant then
demanded that Padilla drive him to a friend’s home and get rid of her
brother-in-law. Padilla instead drove
around a neighborhood while defendant argued with her. She stopped at a 7-Eleven store, went inside,
and purchased cigarettes for defendant.
She then returned to the car and drove to the intersection of Chappel
Road and Ross Avenue. During the drive, she refused to take defendant
to his friend’s home or drop off her brother-in-law. She turned left on Ross. Defendant then told Padilla to stop and drop
him off. Padilla stopped the car, and
defendant exited from the right passenger rear door. Padilla then “hit the gas.†Defendant fired a shot from his revolver that
shattered the rear window of Padilla’s car, sprayed chunks of glass on
Padilla’s back, and punctured Padilla’s wrist that was holding the steering
wheel. Padilla slowed down the car, and
she and her brother-in-law slouched down.
Defendant then fired another shot that hit the dashboard and shattered
glass. Padilla managed to drive out of
range. But her pain caused her to turn
the driving over to her brother-in-law who drove her to the hospital.
instruction on kidnapping
To be convicted of simple
kidnapping, the defendant must have moved the victim a “ ‘
(2009) 179 Cal.App.4th 428, 435 (Bell).) In this case, the trial court instructed the
jury in the language of the simple kidnapping
instruction, CALCRIM No. 1215, and, in doing so,
explained the “substantial distance†element as follows: “Substantial distance means more than a
slight or trivial distance. In deciding
whether the distance was substantial, you must consider all the circumstances
related to the movement. Thus, in
addition to considering the actual distance moved, you may also consider other
factors, such as whether the movement increased the risk of physical or
psychological harm, increased the danger of a foreseeable escape attempt, gave
the attacker a greater opportunity to commit additional crimes, or decreased
the likelihood of detection.â€
contends that the trial court erred by failing to instruct the jury sua sponte
to consider whether his movement of Padilla was incidental to the charged
crimes of corporal injury or domestic battery.
Aggravated
kidnapping, such as kidnapping for robbery, requires movement of the victim
“that is not merely incidental to the commission of the underlying crime and
that increases the risk of harm to the victim over and above that necessarily
present in the underlying crime itself.â€
(People v. Martinez
(1999) 20 Cal.4th 225, 232 (Martinez);
Pen. Code, § 209, subd. (b).) Thus, in People
v. Daniels (1969) 71 Cal.2d 1119, 1130-1131, the Supreme Court held that
moving victims from one room to another in order to rob or rape them was not
kidnapping because “the brief movements which [the defendants] compelled their
victims to perform were solely to facilitate such crimes.â€
however, simple kidnapping does not include the requirement that the movement
be beyond that “ ‘merely incidental to’ †an underlying crime because, in
simple kidnapping, no underlying crime is required. (Bell, supra, 179 Cal.App.4th at p. 436.) Historically, asportation for simple
kidnapping required only an assessment of the “actual distance†the victim was
moved. (People v. Caudillo (1978)
21 Cal.3d 562, 574; see also People v. Stanworth (1974) 11 Cal.3d 588,
603.) Martinez changed the
historical standard and required the finder of fact to “consider the totality
of the circumstances†in deciding whether a victim’s movement was
substantial. (Martinez, supra, 20 Cal.4th at p.
237.) “Thus, in a case where the
evidence permitted, the jury might properly consider not only the actual
distance the victim is moved, but also such factors as whether that movement
increased the risk of harm above that which existed prior to the asportation,
decreased the likelihood of detection, and increased both the danger inherent
in a victim’s foreseeable attempts to escape and the attacker’s enhanced
opportunity to commit additional crimes.â€
(Ibid.) In addition, the
jury could consider “whether the distance a victim was moved was incidental to
the commission of†an “associated crime.â€
(Ibid.) Bell held
that an “ ‘associated crime,’ †within the meaning of the Martinez
holding, “is any criminal act the defendant intends to commit where, in
the course of its commission, the defendant also moves a victim by force or
fear against his or her will. It is not
more complicated than that.†(Bell, supra, at pp. 438-439.)
In Bell, the defendant drove away with his
former wife in the passenger seat after he was approached by police attempting
to arrest him. He traveled about 70
yards down the street, stopped to let the victim out, and then continued his
reckless evasion of the police. He was convicted
of both reckless evasion and kidnapping.
The trial court gave the same instruction the trial court gave in this
case and, as here, did not give the optional language, which stated, “ ‘In
order for the defendant to be guilty of kidnapping, the other person must be
moved or made to move a distance beyond that merely incidental to the
commission of [the associated crime].’ â€
(Bell, supra, 179
Cal.App.4th at p. 440; CALCRIM No.
Bell
held that it was reversible error not to have given an instruction in the
optional language. It reasoned that,
given the evidence, the jury could have decided that the defendant’s movement
of the victim 70 yards down the street was not substantial but merely
incidental to the associated reckless-evasion crime. Bell
also held that the bracketed, optional language in CALCRIM
No. 1215 was misleading because it suggested that the
“merely incidental†finding was a threshold consideration. Bell believed that the language in the
pattern instruction could have led a jury to think that it had to acquit a
defendant if “the movement was compelled ‘in the course of’ committing the
associated crime, regardless of the increased risk of danger to the victim, or,
for that matter, that the distance was ‘substantial’ by any reasonable
measure.†(Bell, supra, 179 Cal.App.4th at p. 440.) Thus, according to Bell, a correct instruction would
be: “ ‘[I]n addition to considering the
actual distance moved, you may also consider other factors such as whether the
[distance the other person was moved was beyond that merely incidental to the
commission of the crime of evading a police officer]’ †or the other
circumstances currently listed in CALCRIM No.
injury and domestic battery crimes “took place substantially while his mother
moved the pair at his direction.†He
concludes that “Those two offenses were associated crimes because [he]
committed them while [Padilla] was moved against her will by force and
fear.†Thus, according to defendant, had
the jury been correctly instructed, the jury might have decided the movement
was not “substantial†because the movement was merely incidental to the
associated crimes.
We are convinced beyond a reasonable doubt that
such an instruction would not have affected the verdict. (See Chapman v. California (1966) 386 U.S. 18, 24.)
Even
if the jury were to have found that the movement of Padilla was incidental to
one or the other assaultive crimes defendant committed, any reasonable jury
would still have found the movement to be substantial. Defendant moved Padilla from Larkin
Valley Road in Watsonville
to Airport Road across a
bridge to Highway 1 and ended the movement at Mesa
Village Park
on Green Valley Road. While the precise distance between the
beginning and end of the movement does not appear in the record, considering
that multiple roads and a bridge were encountered, the movement was “
‘substantial’ by any reasonable measure.â€
(Bell, supra,
179 Cal.App.4th at p. 440.) Application
of all the other factors further supports a finding that the movement was
“substantial.†The movement increased
the risk of harm to Padilla as she remained in the car with defendant; it
increased the danger inherent in Padilla’s foreseeable attempt to escape; it
gave defendant the opportunity to commit additional crimes against Padilla; and
it decreased the likelihood of detection by keeping Padilla away from a public
place where she might have attracted attention or called for help. No reasonable jury would have found, simply
because defendant committed additional crimes against Padilla while his mother
drove them, that the movement was merely
incidental to these other crimes and not “substantial†in and of itself. We therefore conclude that any error in
failing to instruct on the incidental movement factor was harmless beyond a
reasonable doubt.
convictions for kidnapping and false imprisonment
The People
concede that “it appears that the false imprisonment conviction and the
kidnapping conviction were based on the same act of forcing Padilla into the
car and driving off.â€
“If both
the false imprisonment count and kidnapping count relate to the same act,
double conviction . . . is prohibited.â€
(People v. Ratcliffe (1981)
124 Cal.App.3d 808, 820.)
We agree with the parties’
assessment of the facts and will therefore strike defendant’s false
imprisonment conviction.
convictions for corporal injury and domestic battery
Defendant contends that he could
not be convicted of committing corporal injury and domestic battery because
domestic battery is a lesser included offense to corporal injury and the
“beating of . . . Padilla constituted one continuous course of conduct.†We disagree.
Penal Code
section 954 generally permits multiple convictions: “An accusatory pleading may charge . . .
different statements of the same offense†and “the defendant may be convicted
of any number of the offenses charged.â€
The issue must be distinguished from the closely related question of
whether a defendant may receive multiple punishments based on a single act or
course of conduct. (People v. Ortega
(1998) 19 Cal.4th 686, 692, disapproved on another point in People v. Reed
(2006) 38 Cal.4th 1224, 1228.) Penal
Code section 654 prohibits multiple punishments for the same act or
omission. Our high court has recognized
the tension between Penal Code sections 954 and 654. The solution adopted, in general, is “to
permit multiple convictions on counts that arise from a single act or course of
conduct--but to avoid multiple punishment, by staying execution of sentence on
all but one of those convictions.†(
at p. 692.) In fact, that is what the
trial court did in this case, as defendant acknowledges.
It is true that a defendant “cannot
be convicted of both an offense and a lesser offense necessarily included
within that offense, based upon his or her commission of the identical
act.†(People v. Sanchez (2001)
24 Cal.4th 983, 987.) Thus, the proper
analysis involves a determination of whether the multiple charged crimes are
for the identical act. In making this
analysis, we review the record in the light most favorable to the judgment to
determine whether it discloses substantial evidence--that is, evidence which is
reasonable, credible, and of solid value--such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt of the multiple
crimes charged against him or her.
v. Johnson (2007) 150 Cal.App.4th 1467, 1476-1477.) We emphasize that the substantial evidence
test is not based on how the prosecutor summed up the evidence in closing
argument, what the jury found from the evidence, or how the trial court viewed
the evidence for purposes of Penal Code section 654. It is based on what the record supports.
convictions were based on different applications of force to Padilla.â€
In Johnson, we determined that multiple
convictions for violating Penal Code section 273.5 (corporal injury on a
spouse) were proper where the convictions were based on multiple injuries inflicted
during a single course of conduct.
There, the defendant beat the victim about the face and head, held her
by the throat against the wall, and stabbed her in the arm. We agreed with the reasoning of People v.
Harrison (1989) 48 Cal.3d 321, 326, in which our Supreme Court rejected the
contention that the defendant could not be convicted of multiple acts of
digital penetration committed in the course of a 10-minute attack on the
victim.
Here, defendant first assaulted
Padilla by throwing her into the back of the car. From this evidence, the jury could have
concluded that the crime of domestic battery was complete. Defendant next assaulted Padilla when, after
arguing with her, he beat her in the car on the way to Mesa Village
Park. From
this evidence, the jury could have concluded that the crime of corporal injury
was complete. We are satisfied that (1)
the crimes charged here are analogous to the separate counts of corporal injury
on a spouse in Johnson, and (2) the evidence is sufficient to support the two
convictions. Further, pursuant to Penal
Code section 654, the trial court properly stayed the punishment for domestic
battery. There was no improper multiple
conviction.
consecutive
sentence for corporal injury
one-year consecutive sentence for corporal injury should have been stayed under
Penal Code section 654 because Padilla suffered the corporal injury during the
same course of conduct as the kidnapping.
We disagree.
Penal Code section 654 provides in
part, “(a) An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. . . .â€
“[I]t is well settled that [Penal
Code] section 654 applies not only where there was but one act in the ordinary
sense, but also where there was a course of conduct which violated more than
one statute but nevertheless constituted an indivisible transaction. [Citation.]
Whether a course of conduct is indivisible depends upon the intent and
objective of the actor.†(People v.
Perez (1979) 23 Cal.3d 545, 551.) If
all the offenses were incident to one objective, the defendant may not be
punished for more than one, e.g., a defendant who attempts murder by setting
fire to the victim’s bedroom could not be punished for both arson and attempted
murder, because his primary objective was to kill, and the arson was the means
of accomplishing that objective and thus merely incidental to it. (Ibid.) “On the other hand, if the evidence discloses
that a defendant entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be punished for
the independent violations committed in pursuit of each objective even though
the violations were parts of an otherwise indivisible course of conduct.†(Ibid.) For example, the objectives to drive while
intoxicated and to drive with a suspended license were separately punishable,
though they occurred simultaneously. (Id.
at p. 552.) The purpose of the
protection against multiple punishment is to insure that the defendant’s
punishment will be commensurate with his criminal culpability. (Id. at p. 552, fn. 4.)
“A trial
court’s implied finding that a defendant harbored a separate intent and
objective for each offense will be upheld on appeal if it is supported by
substantial evidence.†(People v.
Blake (1998) 68 Cal.App.4th 509, 512.)
evidence supports that defendant’s objective in kidnapping Padilla was to
imprison Padilla in his vehicle so that he could discuss with her their failing
relationship. And it also supports that,
once the discussion had deteriorated into an argument, defendant’s objective in
beating Padilla was to hurt rather than imprison her. Defendant’s point that there was a single
objective to hurt Padilla because kidnapping does not facilitate voluntary
discussion is simply a view of the evidence at odds with the evidence supporting
the judgment.
In short,
the evidence supports that defendant had a clear objective to cause physical
injury to Padilla, independent of his objective in restraining her freedom.
disposition
The
judgment is modified to strike the conviction for false imprisonment (count 6),
recalculate the mandatory court security fee (Pen. Code, § 1465.8) from $280 to
$240 (to reflect six rather than seven convictions at $40 each), and
recalculate the mandatory court facilities funding fee (Gov. Code, § 70373)
from $210 to $180 (to reflect six rather than seven convictions at $30
each). As so modified, the judgment is
affirmed. The abstract of judgment is
amended to reflect that the base five-year sentence for shooting (count 2) is
stayed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
