P. v. Hinojosa
Filed 1/25/13 P.
v. Hinojosa CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD
APPELLATE DISTRICT
(Yolo)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
PAUL
ALEXANDER HINOJOSA,
Defendant and
Appellant.
C065555
(Super. Ct. No.
CR092112)
Defendant Paul Alexander Hinojosa
carjacked and kidnapped a father and his three young sons in an attempt to
obtain money from the father. The jury
convicted defendant of kidnapping for the purpose
of robbery ( ADDIN BA xc <@st>
xl 30 s BXKTXS000001 xpl 1 l "Pen. Code, § 209, subd. (b)(1)" Pen.
Code, § 209, subd. (b)(1)
BXKTXS000031 xpl 1 l "G.S." G.S.));
kidnapping a child under age 14 for extortion ( ADDIN BA xc <@osdv>
xl 35 s BXKTXS000032 xpl 1 l "§§ 209, subd. (a), 667.9, subd. (c)" §§ 209,
subd. (a), 667.9, subd. (c) (count 2 - victim M.P.));
xl 16 s BXKTXS000033 xpl 1 l "§ 209, subd. (a)" § 209,
subd. (a) (counts 3 & 4 – victims R.J
& C.J.)); carjacking where a victim was under age 14 ( ADDIN BA xc <@osdv>
xl 35 s BXKTXS000034 xpl 1 l "§§ 215, subd. (a), 667.9, subd. (c)" §§ 215,
subd. (a), 667.9, subd. (c) (count 5 - victim M.P.));
assault ( ADDIN BA xc <@osdv> xl 5 s BXKTXS000035 xpl 1 l "§ 240" § 240)
as a lesser included offense of
xl 19 s BXKTXS000036 xpl 1 l "§ 245, subd. (a)(1)" § 245,
subd. (a)(1) (count 7 – victim ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 xpl 2 G.S.)); felony child
endangerment ADDIN BA xc <@rec> xl 70 s
BXKTXS000037 xpl 1 l "(§ 273a,
subd. (a) (counts 9, 10, & 11 - victims M.P., R.J. and C.J.))" (§ 273a,
subd. (a) (counts 9, 10, & 11 - victims M.P., R.J. and C.J.)).
The jury found that defendant
personally used a deadly or dangerous weapon in the commission of all
counts for which defendant was convicted except count 7.
The jury found defendant not guilty
of witness dissuasion. ( ADDIN BA xc <@osdv>
xl 7 s BXKTXS000039 xpl 1 l "§ 136.1" § 136.1 (count 8).)
The trial court found that defendant
had served two prior prison terms. ( ADDIN BA xc <@osdv>
xl 18 s BXKTXS000040 xpl 1 l "§ 667.5, subd. (b)" § 667.5,
subd. (b).)
The court sentenced defendant to an
aggregate determinate term of 17 years four months plus four consecutive
indeterminate terms of “seven years to Life.â€
On appeal, defendant contends
(1) the child endangerment counts must be reversed because there was
insufficient evidence of “circumstances likely to produce death or great
bodily harmâ€; (2) the sentence imposed on the felony child endangerment
counts should have been stayed pursuant to ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654;
(3) the prosecutor’s misstatement of reasonable doubt, coupled with the
trial court’s overruling of a defense objection to the argument, was
reversible error; and (4) the abstract of judgment must be corrected to
reflect four life terms with the possibility of parole instead of four terms
of “seven years to Life†on counts 1 through 4.
We agree that the sentence imposed
by the trial court on the felony child endangerment counts violates ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654. We also agree that a correction to the
indeterminate-term abstract of judgment is required, but disagree as to the
nature of the correction. Accordingly,
we modify the judgment, order modification of the determinate-term abstract and
correction of the indeterminate-term abstract and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case-in-Chief
On May 2, 2009, ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. drove his three sons,
15-year-old C.J., 13-year-old R.J., and nine-year-old M.P., to a Woodland car wash to clean the
family car. While ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. and the children were
washing the car, defendant approached ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. and requested a
cigarette and money. ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. explained that he had
neither cigarettes nor money. Defendant
then asked for a ride to his home on the other side of the city. ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. refused because his
children were with him and defendant would not fit in the car. After persistent requests, ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. relented and agreed to
drive defendant home because rainfall appeared to be imminent. The children seated themselves in the rear
seat, while defendant seated himself in the front passenger seat. Defendant began directing ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S.’s driving.
ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. noticed that defendant
seemed abnormally nervous and fidgety.
Thereafter, defendant pulled what ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. believed to be a
pistol from beneath his sweatshirt and pointed the gun at ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S.’s rib cage.
Defendant said he would shoot ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. if he did not do
exactly as told. Shocked and scared, ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. pulled the car to the
side of the road. Defendant shouted at ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. to continue driving,
and ADDIN BA xc <@$ost>
xl 4 s BXKTXS000031 G.S. complied. ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. asked defendant to
calm down and said he would do what defendant wanted. M.P. began to cry, saying in a scared voice,
“Papi, what’s happening, what’s happening[?]â€
Defendant demanded that ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. drive to a bank and
that he withdraw $600 from his bank account. ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. did not have money in
the bank but he agreed, hoping that driving to town would provide him an
opportunity to buy time and decide what to do.
Defendant demanded that ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. give him the driver’s
license, money, and credit cards from his wallet. Defendant said he wanted the address on ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S.’s driver’s license so
that, if anything happened to defendant, he could go to G.S’s house and kill ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. and his family. When ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. asked defendant not to
do this in front of the children, defendant replied, “I don’t give a shit†or
“I don’t want to hear that shit.â€
Defendant said he was the one with the gun and could do anything he
wanted.
While ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. drove, defendant waved
the gun around, pointing it in turn at ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. and at the
children. All of the children started to
cry. Defendant told ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. to tell the children
to shut up “or I’m going to kill every single little fucker.†He told the children that if they were not
quiet he would take them to a field and shoot them.
C.J. recalled that defendant asked
the boys to give him any electronics they had.
M.P. tried to sneak his cellular telephone from his pocket so that he
could call 911, but defendant noticed, asked M.P. if he had a cell phone and
demanded that M.P. hand it over. Instead,
M.P. put the phone back in his pocket and told defendant he did not have
a cell phone.
Defendant’s hand trembled and he
behaved in a nervous and erratic manner.
ADDIN BA xc <@$ost>
xl 4 s BXKTXS000031 G.S. thought defendant did
not know what he was doing and this scared ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. He believed defendant’s gun was real and
capable of shooting him. When the car
came to an intersection in town, ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. asked if he could let
the children out of the car. Defendant
refused and explained that he was “in control of everything.â€
ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S.’s attention was
divided between defendant and the traffic and signal lights on Main Street,
and he felt his fear and nervousness interfered with his ability to safely
operate the car. ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. thought about driving
to the police department, but he could not safely make a necessary turn and
feared that defendant might figure out what he was trying to do. ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. looked back and saw
the children’s faces and knew they were very frightened.
Ten to 12 minutes after the incident
began, ADDIN BA xc <@$ost>
xl 4 s BXKTXS000031 G.S. stopped the car at an
intersection on Main Street for a red light.
Defendant was looking all around.
ADDIN BA xc <@$ost>
xl 4 s BXKTXS000031 G.S. put the car in park,
tried to grab defendant’s gun with his left hand, and punched defendant’s face
with his right.
ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. yelled to the children
to run and get help. M.P. and R.J. fled
from the car. C.J., who had been
attempting to choke defendant’s neck, fled when ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. told him to go. The children exited the car using the
passenger side door because there were cars to the left. There was also a line of cars behind them at
the red light, and the boys ran in the street to the nearest motorists, asking
them to call the police. The children
then noticed a Ross department store and ran there.
Inside the car, ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. and defendant
continued to struggle over the gun.
Using the butt of the gun, defendant repeatedly hit ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. in the face, causing
several swollen and red areas and giving ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. a headache that
persisted for several days. Suddenly,
the gun broke into two pieces, cutting ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S.’s finger in the
process. ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. stopped fighting for
the broken gun, and defendant fled from the car, still holding onto the gun. ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. then ran in the
direction he had last seen the children, leaving the car behind. There were 10 cars behind him honking,
but he was focused on trying to get to his kids. A few minutes later, he was reunited with the
children at the shopping center.
Defendant fled through the shopping
center to a restaurant where he previously had been employed. After former coworkers refused his requests
for a ride, defendant fled to a nearby residential area. He entered a family residence and requested
assistance, saying he was running from the police because he had attempted to
rob someone. Instead of helping
defendant, the family called the police.
When defendant tried to run, a family member tackled him and put him in
a choke hold. The police arrived shortly
thereafter and arrested defendant.
The arresting officers noted that
defendant matched the broadcast description of the kidnapping and robbery
suspect. An officer asked defendant what
he had done with the gun. Initially,
defendant denied having a gun; then he claimed to have had only
a screwdriver. He eventually
admitted having a gun. He then led the
officers to the gun where he had hidden it at the restaurant. The weapon, a broken pellet gun, was not
loaded with pellets or an air cartridge.
During the abduction, ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. feared that defendant
would shoot the children.
M.P. was really scared during the
incident. He wanted to get out of the
car, but thought he would be shot. M.P.
had nightmares for several days after the incident, and for two months
afterwards, M.P. could not sleep by himself.
When the family drove past the area where the kidnapping had occurred,
M.P. would look down or close his eyes and become visibly frightened.
During the incident, R.J. felt as if
he were going into shock. His body was
frozen and his vision went black and white.
His heart was beating very fast and he was thinking he did not want this
to be the last day of his life.
C.J. testified that he was terrified
during the incident and did not know what to do. The entire time they were in the car, he was
scared of being shot. C.J. thought about
jumping out of the car, but he did not want to leave his brothers.
DISCUSSION
I. Child Endangerment
Defendant contends the child
endangerment counts must be reversed because there was insufficient evidence of
“circumstances likely to produce death or great bodily harm.†We disagree.
“On appeal, the test of legal
sufficiency is whether there is substantial evidence, i.e., evidence from which
a reasonable trier of fact could conclude that the prosecution sustained its
burden of proof beyond a reasonable doubt.
[Citations.] Evidence meeting
this standard satisfies constitutional due process and reliability
concerns. [Citations.] [¶]
While the appellate court must determine that the supporting evidence is
reasonable, inherently credible, and of solid value, the court must review the
evidence in the light most favorable to the prosecution, and must presume every
fact the jury could reasonably have deduced from the evidence. [Citations.]
Issues of witness credibility are for the jury. [Citations.]â€
( ADDIN BA xc <@cs> xl 46 s BXKTXS000002 xhfl Rep xpl 1 l
"
479-480" People v.
Boyer (2006) 38 Cal.4th 412, 479-480.)
ADDIN BA xc <@osdv> xl 29 s
BXKTXS000042 l "Section 273a,
subdivision (a)" Section 273a,
subdivision (a), provides: “Any person who, under circumstances or conditions likely to produce great bodily harm
or death, willfully causes or permits any child to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or having the care or
custody of any child, willfully causes or permits the person or health of that
child to be injured, or willfully causes or permits that child to be placed in
a situation where his or her person or health is endangered, shall be punished
by imprisonment in a county jail not exceeding one year, or in the state prison
for two, four, or six years.†(Italics
added.) The prosecution proceeded on the
second branch of this omnibus statute, asserting that defendant willfully
inflicted unjustifiable mental suffering on the boys.
“It is for the trier of fact to determine
whether the act was done ‘under circumstances or conditions likely to produce
great bodily harm or death[.]’
[Citations.]†( ADDIN BA xc <@$cs>
xl 37 s BXKTXS000003 xhfl Rep xpl 1
‘ “the probability of serious injury is
great.†’ †( ADDIN BA xc <@cs>
xl 51 s BXKTXS000004 xhfl Rep xpl 1 l "People
v. Chaffin
(2009)
Chaffin (2009) 173 Cal.App.4th 1348,
1352.)
“ ‘[T]here is no requirement that the actual result be great bodily
injury.’ †( ADDIN BA xc <@$cs>
xl 37 s BXKTXS000003 xhfl Rep xpl 1
Looking at the evidence in the light
most favorable to the judgment, we conclude that a rational jury could have
determined that the probability of serious injury was great from the
totality of the volatile circumstances and other conditions here. ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S.,
the children’s father and the driver of the car, had what he thought was a
firearm aimed at his chest and his children were highly upset. He was distracted while driving and felt his
nervousness interfered with his ability to operate the vehicle safely. They were traveling on city streets with
other vehicles. Under these
circumstances and conditions, the likelihood of a collision causing injury or
death to the children was high.
Moreover, given the circumstances, the likelihood of resistance by the
distracted ADDIN BA xc <@$ost> xl
4 s BXKTXS000031 G.S.
could have resulted in a collision.
The children could have jumped from the moving car in desperation and
been injured, or they could have joined their father in fighting with
defendant. When the opportunity
presented itself, while they were stopped at the red light, the children left
the car by running into the street, where they could have been struck by a
vehicle in traffic. A myriad of
seriously injurious outcomes were probable on these frightening facts, and it
seems miraculous that something more serious did not happen.
Indeed, such circumstances
illustrate the reason why before kidnapping was made a statutory basis for
first degree felony murder, courts had recognized kidnapping to be an
of second degree felony murder. An
“inherently dangerous felony†for purpose of the second degree felony murder
doctrine “is ‘an offense carrying “a high probability†that death will
result.’ †( ADDIN BA xc <@cs>
xl 52 s BXKTXS000007 xhfl Rep xpl 1 l "People
v. Greenberger
(1997)
Greenberger (1997) 58 Cal.App.4th 298, 377.)
In ADDIN BA xc <@cs> xl
43 s BXKTXS000008 xhfl Rep l "People v. Pearch (1991)
Pearch (1991) 229 Cal.App.3d 1282, a murder case involving simple
kidnapping, the court observed, “Threats of serious harm or death made with a
show of willingness to carry through on those threats present an inherently
dangerous situation.†( ADDIN BA xc <@$cs>
xl 40 s BXKTXS000008 xhfl Rep xpl 1 Pearch,
supra, 229 Cal.App.3d at
p. 1298.) In ADDIN BA xc <@cs> xl 50 s
BXKTXS000009 xhfl Rep l "
1228" People v.
Ordonez (1991) 226 Cal.App.3d 1207,
1228,
the court held, “kidnapping for ransom, extortion or reward [citation] is an
offense carrying ‘a high probability’ that death will result. It therefore is an offense inherently
dangerous to human life, and supports a conviction for second degree felony
murder.â€
Defendant contends that the
circumstances of the incident as it actually occurred were not likely to
produce great bodily harm or death. He
points out that ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S.
did not violate any traffic laws or come close to causing any collisions. As we have noted, there is no requirement
that actual injury result. Likewise,
there is no requirement that the “actual result†be erratic driving, a
collision, an escape from a moving car, or a fight with defendant. The element of the crime at issue is the
infliction of mental suffering “under circumstances and conditions
death,†not circumstances and conditions which actually produce great bodily injury or death. Setting aside the inherent dangerousness and
high probability of death associated with kidnapping, and looking at the
evidence here in a light most favorable to the prosecution, a jury could
reasonably find that the circumstances and conditions we described above were
likely to produce great bodily harm or death.
The child endangerment counts are supported by substantial evidence.
II. ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 Section 654 Contentions
As we have noted, the court
sentenced defendant to determinate and consecutive indeterminate terms. Defendant was sentenced to an aggregate
determinate term of 17 years four months, consisting of the following:
Count 9 – felony child endangerment: upper term of six years plus one year for its
weapon enhancement;
Count 10 – felony child endangerment: one year four months plus four months for its
weapon enhancement;
Count 11 - felony child endangerment: one year four months plus four months for its
weapon enhancement;
Enhancements: four years for
weapon enhancements on counts 1 through 4, and one year for the age
enhancement on count 2.
The sentence on count 5, carjacking, was imposed and stayed
pursuant to ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654. The court imposed a six-month concurrent
sentence on count 7, assault.
Consecutive to the determinate terms, defendant was sentenced on
counts 1 through 4 to four consecutive indeterminate terms of
“7 years to Life.â€
Defendant contends the trial court erred when it refused to stay the
sentence on the child abuse counts (counts 9 through 11) pursuant to ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654. He asserts that the conviction on those
counts was based on the same conduct underlying the kidnap for extortion counts
(counts 2 through 4) against the same victims and that all of these
offenses were committed with the singular objective of obtaining money from ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. On this point, we agree.
At the
consecutive sentences for the child endangerment counts violated ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654. The trial court rejected the argument,
stating, “I do find that the violations of abusing or endangering the health of
a child proof presented at trial show separate elements were met for these
crimes, separate and apart for [sic]
the kidnapping for ransom.â€
B. Analysis
ADDIN BA xc <@osdv> xl 28 s
BXKTXS000043 l "Section 654,
subdivision (a)" Section 654,
subdivision (a), provides in pertinent part: “An act . . . that is punishable in
different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in
no case shall the act . . . be punished under more than one
provision. . . . â€
Our high court held, “Whether a
course of criminal conduct is divisible and therefore gives rise to more than one act within
the meaning of ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654 depends on
the intent and objective of the
actor. If all of the offenses were
incident to one objective, the defendant may be punished for any one of such
offenses but not for more than one.†( ADDIN BA xc <@cs>
xl 42 s BXKTXS000010 xhfl Rep xpl 1 l "Neal v.
California
(1960)
55 Cal.2d 11, 19, italics added ( ADDIN BA xc <@$cs>
xl 4 s BXKTXS000010 xpl 2 Neal);
disapproved on other grounds in ADDIN BA xc <@cs> xl 43 s
BXKTXS000011 xhfl Rep xpl 1 l "People v. Correa (2012)
54 Cal.4th 331, 334 ( ADDIN BA xc <@$cs>
xl 6 s BXKTXS000011 xpl 2 Correa).) “If, on the other hand, [a] 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.] ( ADDIN BA xc <@cs>
xl 44 s BXKTXS000012 xhfl Rep xpl 1 l "People v.
Harrison
(1989)
48 Cal.3d 321, 335.) Although
recognizing this test is problematic, our high court determined stare decisis
policies warranted its continued vitality.
( ADDIN BA xc <@cs> xl 56 s BXKTXS000013 xhfl Rep xpl 1 l
"
5 Cal.4th 1203, 1208, 1209-1212 ( ADDIN BA xc <@$cs>
xl 7 s BXKTXS000013 xpl 2 Latimer).) This test -- described as the “ ADDIN BA xc <@$cs>
xl 4 s BXKTXS000010 Neal test†or the “intent and objective test†( ADDIN BA xc <@$cs>
xl 32 s BXKTXS000013 xhfl XRef xpl 1 Latimer, supra,
at the time defendant was sentenced, yet the trial court failed to apply
it.
Recently, our high court held,
“[s]ection 654 prohibits multiple punishment for a single physical
act that violates different provisions of law.†( ADDIN BA xc <@cs>
xl 42 s BXKTXS000014 xhfl Rep xpl 1 l "People v. Jones (2012)
54 Cal.4th 350, 358.) But in so
doing, the court recognized, “what is a single physical act might not
always be easy to ascertain. In some
situations, physical acts might be simultaneous yet separate for purposes of ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654.†( ADDIN BA xc <@$id>
xl 5 s ID xpl 1 Ibid.) In holding that the
possession of a single firearm could be punished only once despite the
defendant having been convicted of three firearm offenses associated with the
possession, the majority considered, but did not reject the intent and
objective test. The court reasoned,
“[r]ather than force the court to divine what objective or objectives the
defendant might have had in possessing the firearm, we find it better to rely
on ADDIN BA xc <@osdv>
xl 13 s BXKTXS000044 l "section 654’s" section 654’s
actual language in resolving this
single-act case. . . .
[W]e conclude this case
involves a single act or omission that can be punished but once.†( ADDIN BA xc <@$cs>
xl 23 s BXKTXS000014 xhfl XRef xpl 1
italics added; see ADDIN BA xc <@$id> xl 13 s ID xhfl
Rep xpl 1 id. at p. 352.)
In ADDIN BA xc <@cs> xl 36 s BXKTXS000015
xhfl Rep l "
54 Cal.4th 191, the court also focused on the acts committed by the
defendant rather than his intent or objective.
There, the defendant was convicted of three offenses for two separate
shootings -- assault with a firearm ( ADDIN BA xc <@osdv>
xl 19 s BXKTXS000045 xpl 1 l "§ 245, subd. (a)(2)"
§ 245, subd. (a)(2)), felon in possession of a
firearm (former ADDIN BA xc <@osdv> xl 21 s
BXKTXS000046 xpl 1 l "§ 12021,
subd. (a)(1)" § 12021, subd. (a)(1)), and active participation
in a criminal street gang ( ADDIN BA xc <@osdv>
xl 19 s BXKTXS000047 xpl 1 l "§ 186.22, subd. (a)"
§ 186.22, subd. (a)). ( ADDIN BA xc <@$cs>
xl 27 s BXKTXS000015 xhfl XRef xpl 1 Mesa, supra,
imposed for both the firearm and gang charges.
( ADDIN BA xc <@$id> xl 18 s ID xhfl Rep xpl 1 Id. at pp. 194-195.)
The court held that ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654 prohibits
punishing the defendant for active participation in a criminal street gang in
addition to the assault and firearms charges because the acts upon which the
gang crime was based –- possessing and shooting the firearms -- were the same
acts underlying the assault and firearms convictions. ( ADDIN BA xc <@$id>
xl 18 s ID xhfl Rep xpl 1 Id.
at pp. 197-198.) In applying ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654, the court
rejected application of the intent and objective test in the context of that
case, noting “[o]ur case law has found multiple criminal objectives to be a
predicate for multiple punishment only in circumstances that involve, or arguably
involve, multiple acts. The rule does
not apply where, as here . . . , the multiple convictions at
issue were indisputably based upon a single act.†( ADDIN BA xc <@$id>
xl 13 s ID xhfl Rep xpl 1 Id.
at p. 199.)
Thus, the ADDIN BA xc <@$cs> xl 4 s
BXKTXS000010
remains in play where there are multiple acts involving a course of conduct,
such as the present case.
The question of whether the
defendant entertained multiple criminal objectives is a question of
fact for the trial court, and the law gives the trial court broad latitude in
making this determination. ( ADDIN BA xc <@cs>
xl 51 s BXKTXS000016 xhfl Rep xpl 1 l "People v.
Hutchins
(2001)
1308, 1312.) The trial court’s
findings will be upheld on appeal if substantial evidence supports them. ( ADDIN BA xc <@cs>
xl 47 s BXKTXS000017 xhfl Rep xpl 1 l "People v.
McKinzie
(2012)
54 Cal.4th 1302, 1368 ( ADDIN BA xc <@$cs>
xl 8 s BXKTXS000017 xpl 2 McKinzie).) We view the evidence in a light most
favorable to the People and presume the existence of every fact in support of
the court’s determination that the court could reasonably deduce from the
evidence. ( ADDIN BA xc <@$cs>
xl 48 s BXKTXS000016 xhfl Rep xpl 1 Hutchins, supra,
pp. 1312-1313.)
The trial court’s finding that child
endangerment and kidnapping have “separate elements†does not justify multiple
punishments because it simply reflects the fact that defendant’s conduct was
punishable under more than one statute.
Whether the crimes have different elements is irrelevant for purposes of
ADDIN BA xc <@$st> xl
11 s BXKTXS000029 section 654. Indeed, if that were the test, ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654 would
rarely apply to prevent multiple punishment for multiple crimes committed
during a course of conduct. In such
situations, courts must look to the intent
and objective of defendant. This,
the trial court did not do.
The People contend the trial court
did not violate ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654, but at
the same time argue defendant “abducted the children to use them as
leverage against [ ADDIN BA xc <@$ost>
xl 4 s BXKTXS000031 xpl 1 G.S.] to accomplish a robbery.†The People also argue “[defendant] used the
presence of the children to extort money from their father, but he enjoyed a
separate but simultaneous intent to intimidate and control his victims by
brandishing a weapon and threatening them with
death . . . .â€
The People’s argument proves too
much. As the argument demonstrates, the
reason defendant did those things was precisely for the purpose of instilling
fear to facilitate the kidnapping and to obtain money from the father of these
children by extortion. Indeed, this was
the very argument advanced by the prosecutor to the jury. We consider the prosecutor’s election when
determining whether double punishment is barred by ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654. (See ADDIN BA xc <@$cs> xl 38 s
BXKTXS000017 xhfl Rep xpl 1 McKinzie, supra,
54 Cal.4th at p. 1369 [“The Attorney General concedes
. . . that defendant could not be punished for both carjacking
and kidnapping for robbery because the prosecutor argued to the jury that the
victim’s car was the object of the robberyâ€].)
Here, the prosecutor told the jury,
“the kidnapping for extortion related specifically to the kids. Essentially the defendant is using the kids
and threatening them with force and violence in order to get [ ADDIN BA xc <@$ost>
xl 4 s BXKTXS000031 xpl 1 G.S.] to give him his wallet and money from the
bank. [¶] . . . [¶] . . . It was like he was using the kids to get what
he wanted and that’s exactly what he was doing, and that’s extortion.†In rebuttal, the prosecutor reemphasized
defendant’s purpose, saying defendant used the children as the “vehicle for the
extortion.†In arguing child endangerment,
the prosecutor told the jury that defendant’s conduct caused the children
mental suffering. It was obvious to the
father and to people who encountered the children after they fled from the
vehicle that they were “traumatized.â€
The prosecutor did not argue that defendant had some other
separate purpose in terrifying the children.
Consistent with her argument to the
jury concerning the kidnapping for extortion charges, the prosecutor argued in
her sentencing brief that “[d]efendant was not going to rob the children, he
just used them as pawns to make their
father more compliant to his demands.â€
(Italics added.) Thus,
defendant’s objectives in committing kidnapping for extortion as to each child
were not different from his objectives in committing the child endangerment
charges. He threatened them to extort
money from their father.
At oral argument on appeal, the
People contended that defendant had an entirely separate objective in
committing the child endangerment charges.
According to this new theory, defendant intended to intimidate the
children to deter the family from reporting him to the police.
argued different acts supported that charge. In closing argument, the prosecutor pointed
out that defendant told ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S., “give me your ADDIN BA xc <@$id> xl 5 s ID xhfl
Rep ID,
I want to know where you live,†“he demanded to know where [ ADDIN BA xc <@$ost>
xl 4 s BXKTXS000031 xpl 1 G.S.] lived because he said if anything
. . . happened to him, he was going to go to [G.S’s] house and kill
everybody at the house. [¶]
. . . In other words,
. . . what the defendant[] was communicating was if you report this
to the police and I get arrested, I’m going to come back and get you, so you
better not report it. [¶]
. . . That was the practical effect of asking for [G.S’s]
identification so he could know where he lived. . . . [ ADDIN BA xc <@$ost>
xl 4 s BXKTXS000031 xpl 1 G.S.] heard that loud and clear, don’t call the
police.â€
dissuasion, the prosecutor conceded in her sentencing brief that “there were
not separate acts constituting kidnapping and child endangerment
. . .â€
For purposes of applying ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654, a trial
court must consider the acts upon which the prosecutor grounded the prosecution
of each charge. (See ADDIN BA xc <@$cs> xl 44 s
BXKTXS000017 xhfl Rep xpl 1
BXKTXS000049 xpl 2 l "[the prosecutor’s
argument reflected election of the entry into home, rather than his previous
entry into the attached garage, as the act upon which the burglary charge and
special circumstance were grounded, and the trial court could reasonably
conclude that the defendant had a different intent and objective when he
earlier entered the garage, kidnapped the victim and took her to a remote
location in the trunk of her car, which he took from the garage]" [the prosecutor’s argument
reflected election of the entry into home, rather than his previous entry into
the attached garage, as the act upon which the burglary charge and special
circumstance were grounded, and the trial court could reasonably conclude that
the defendant had a different intent and objective when he earlier entered the
garage, kidnapped the victim and took her to a remote location in the trunk of
her car, which he took from the garage]; ADDIN BA xc <@cs> xl 40 s
BXKTXS000020 xhfl Rep xpl 1 l "People v. Siko (1988)
45 Cal.3d 820, 826 [the prosecution’s closing argument did not suggest
“any different emphasis†other than the acts supporting the charge of lewd acts
with a minor under the age of 14 were the same acts underlying the rape
and sodomy].) Otherwise, the punishment for the
charge will have no relationship to the acts upon which the jury’s verdict is
based. Indeed, this court has previously
noted that “where there is a basis for identifying the specific factual basis
for a verdict, a trial court cannot find otherwise in applying ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654.†( ADDIN BA xc <@cs>
xl 49 s BXKTXS000021 xhfl Rep xpl 1 l "People v. McCoy (2012)
208 Cal.App.4th 1333, 1339, citing ADDIN BA xc <@$cs> xl 32 s
BXKTXS000020 xhfl Rep xqt xpl 1 Siko, supra,
45 Cal.3d at p. 826.) Such is
the case when a prosecutor makes an election.
Because the prosecutor elected to ground prosecution of the witness
dissuasion charge on specified acts and specifically relied on other acts --
the threats to the children -- as acts supporting the jury’s guilty verdict on
the kidnap for extortion and child endangerment charges, we hold the
People to that election in analyzing the applicability of ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654 here.
Consistent with the prosecution’s
election and the evidence in the record, we conclude that defendant’s intent
and objective when he threatened the children was to extort money from ADDIN BA xc <@$ost> xl 4 s
BXKTXS000031 G.S. Thus, defendant cannot be punished both for
the child endangerment convictions and the kidnap for extortion
convictions. We must modify
the judgment to stay the sentence imposed on counts 9 through 11 and
the enhancements associated with those counts pursuant to ADDIN BA xc <@$st> xl 11 s
BXKTXS000029 section 654.
III. Prosecutor’s Comment on
Reasonable Doubt
Defendant contends the prosecutor’s
misstatement of reasonable doubt during her rebuttal argument, coupled with the
trial court’s overruling of a defense objection to the argument, was error
requiring reversal. We disagree.
A. Background
During closing argument, defense
counsel argued the following: “The
decisions you make are not going to have to last for a day, a week, or a
month. The decisions you make about the
law and the evidence and the facts in this trial is [sic] going to have to last with you for the rest of your
lives. That is how important the
decisions you are going to have to make [sic]. It’s a very difficult position to be sitting
in the judgment of another. [¶] And to give you a little bit more of an idea
as to how -- how certain you have to be in regards to your decisions, we used
to be able to argue that this decision that you make is as important as who you
choose to marry. [¶] We can’t make that argument anymore because
the divorce rates now are roughly about fifty percent, so if you think about
it, it’s really kind of a mindblower in that the decisions that you make
in this trial are more important than the decision that you’ve made on who you
wanted to spend the rest of your life with.
[¶] That is how important these
decisions are. That is how important
you have to be certain as to the decisions that you actually make. [Sic.]â€
The prosecutor responded to defense
counsel’s argument in rebuttal. The
following argument, objections and rulings took place at that time:
“[THE PROSECUTOR]: The last thing I want to talk to you a little
is about reasonable doubt. [Defense
counsel] kind of makes this sound like a huge mountain that is totally
unattainable, but that’s not the case. [¶] Proof beyond a reasonable doubt is the
standard that is used in criminal cases in every courtroom across the nation
every single day. It’s used in DUI
cases. It’s used in murder cases. It is the same standard, and it is attained
by -- jurors find proof beyond a reasonable doubt in cases all the time. [¶]
It’s not unreachable, and it’s not illusive [sic]. I mean, all it is is
an abiding conviction
show you that he did it, and
up if you think he did it, that’s an abiding conviction. [¶]
When you think about -- when you are finally done with this case and are
able to go home and talk to your friends and family about it, because I’m sure
they’ve all been dieing [sic] to know
what is this case about and you have to tell them I can’t -- I can’t tell you,
but think about what you wanted to tell them.
[¶] When you are finally able to
and you’ve been released from the case and your verdict is in and you’re
finally able to tell them about what this case is all about, do you want to say
‘gosh, I sat on this trial where this man and these kids were kidnapped, and
this man tried to rob them, and he had a gun.
It wasn’t a real gun, but they thought it was.’ I mean, if that’s how you’re going to
describe the case and that’s how you’ve been thinking in your head when your
friends and family have asked you what’s going on, that’s how you’ve been
wanting to talk about it, that’s proof beyond a reasonable doubt.
“[DEFENSE COUNSEL]: Objection.
“THE COURT: Sustained.
“[DEFENSE COUNSEL]: Move to strike.
“THE COURT: The last statement will be stricken. [¶]
The instruction on reasonable doubt is contained. [Sic.] Both attorneys have argued what it is, and
the instruction is in your packet about what reasonable doubt is and what the
People’s burden of proof is.â€
The prosecutor then continued her
rebuttal argument.
“[THE PROSECUTOR]: If you -- an abiding conviction just means
you feel good about the decision you’ve made.
Tomorrow when you wake up, you feel good about the decision you made,
you feel like you’ve made the right choice.
“[DEFENSE COUNSEL]: “Objection, Your Honor. Misstatement of the law.
“THE COURT: “Overruled.
She can continue.â€
The prosecutor then continued.
“[THE PROSECUTOR]: “And the week after, you feel good about the
decision you made, and the week after, and the month after, and so on and so
forth. I mean, don’t -- well... [¶]
The point is that it is really not so high of a standard that you can’t
reach it. Okay. An abiding conviction is not, you know, it’s
not a decision like who you’re going to marry.
Okay. It -- I’m just -- I’ll
leave you with this: That the evidence
in this case has proved beyond a reasonable doubt that the defendant committed
these crimes.â€
No objection was made to the
prosecutor’s comment about marriage.
B. Analysis
“ ‘The applicable federal and state
standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s . . .
intemperate behavior violates the federal Constitution when it comprises a
pattern of conduct “so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.†’ †[Citations.]
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves “ ‘ “the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.†’ †[Citation.]’
[Citation.]†( ADDIN BA xc <@cs>
xl 41 s BXKTXS000022 xhfl Rep xpl 1 l "People
v. Hill (1998)
Cal.4th 800, 819" People v.
Hill (1998) 17 Cal.4th 800, 819 ( ADDIN BA xc <@$cs>
xl 4 s BXKTXS000022 xpl 2
A prosecutor commits misconduct when
he misrepresents the standard of proof or trivializes the quantum of evidence
required to meet the standard of proof.
( ADDIN BA xc <@$cs> xl 38 s BXKTXS000022 xhfl Rep xpl 1 Hill, supra,
17 Cal.4th at pp. 828-829.)
“When the claim focuses on the prosecutor’s comments to the jury, we
determine whether there was a reasonable likelihood that the jury construed or
applied any of the remarks in an objectionable fashion.†( ADDIN BA xc <@cs>
xl 47 s BXKTXS000023 xhfl Rep xpl 1 l "People v. Booker (2011)
51 Cal.4th 141, 184-185 ( ADDIN BA xc <@$cs>
xl 6 s BXKTXS000023 xpl 2 Booker);
ADDIN BA xc <@cs> xl
48 s BXKTXS000024 xhfl Rep xpl 1 l "People v. Pierce (2009)
172 Cal.App.4th 567, 572 ( ADDIN BA xc <@$cs>
xl 6 s BXKTXS000024 xpl 2 Pierce).)
Defendant made two timely objections
to the prosecutor’s argument. The trial
court sustained defendant’s first objection to the prosecutor’s remarks,
ordered the comments stricken, and admonished the jury. Defendant does not seek reversal based
on those comments. Defendant claims
reversible error based on the comments preceding the second objection, which
was expressly grounded on “[m]isstatement of the law,†and the court’s decision
to overrule that objection, as well as the comments the prosecutor made
thereafter.
Defendant contends that the
prosecution’s comment that “an abiding conviction just means you feel good
about the decision you’ve made,†was a misstatement of law because it
impermissibly reduced the prosecution’s burden of proof to a mere duty to
persuade jurors to make a decision about which they felt good. In context, we do not see it that way. The prosecutor’s remarks before
she was not equating her burden of proof with the creation of good feelings but
was illustrating the temporal nature of the term “abiding.â€
The prosecutor argued “an abiding
conviction just means you feel good about the decision you’ve made. Tomorrow
when you wake up, you feel good about the decision you made, you feel like
you’ve made the right choice.
[¶] . . . [¶] And
the week after, you feel good about the decision you made,
so on and so forth.†(Italics
added.) This argument was responsive to
and consistent with defense counsel’s argument that the “decisions you make
about the law and the evidence and the facts in this trial is [
the rest of your lives.†The
prosecutor’s comments evoked and focused on the concept of permanence. (See ADDIN BA xc <@$cs> xl 45 s
BXKTXS000024 xhfl Rep xpl 1 Pierce, supra,
172 Cal.App.4th at pp. 573-574 [no reasonable likelihood that
jury was misled by prosecutor’s remarks evoking permanence].)
The trial court did not err by
overruling the defense objection to the prosecutor’s argument. There is not a reasonable likelihood the jury
construed or applied the prosecutor’s remarks in an objectionable fashion. ( ADDIN BA xc <@$cs>
xl 40 s BXKTXS000023 xhfl Rep xpl 1
at pp. 184-185.) No reasonable juror would have understood the
prosecutor’s argument to mean that, contrary to the court’s instructions,
“ ‘all’ proof beyond a reasonable doubt means is that jurors would
wake up and ‘feel good’ about their decision.â€
The prosecutor’s argument was neither deceptive nor reprehensible, and
it did not constitute misconduct. ( ADDIN BA xc <@$cs>
xl 33 s BXKTXS000022 xhfl Rep xpl 1 Hill,
Defendant contends the prosecutor’s
statement -- made after trial counsel’s second objection -- that an abiding conviction is not
like deciding who to marry was improper.
No objection was made to this comment.
Because a timely objection and admonishment would have cured any harm
engendered by the argument, any challenge to those portions is forfeited on
appeal. ( ADDIN BA xc <@cs>
xl 45 s BXKTXS000025 xhfl Rep xpl 1 l "People v.
Martinez (2010)
Defendant contends any objection at
that point would have been futile because the court had just overruled
defendant’s misstatement of law objection.
( ADDIN BA xc <@$cs> xl 33 s BXKTXS000022 xhfl Rep xpl 1 Hill, supra,
17 Cal.4th at p. 820.) But the
court, just moments before, had also sustained defendant’s first
objection. And in ruling on the second
objection, the court merely permitted the prosecutor to continue based upon
what she had said up to that point. That
ruling did not signal that an objection to what might be said thereafter
would not be sustained. Defendant has
not established futility.
Finally, we conclude the
prosecutor’s comment was not prejudicial, even under a standard of beyond a
reasonable doubt. The evidence was
overwhelming. (See ADDIN BA xc <@$cs> xl 35 s
BXKTXS000023 xhfl Rep xpl 1 Booker, supra,
51 Cal.4th at p. 186 [jury properly instructed on the
prosecution’s burden of proof and evidence of defendant’s guilt was
overwhelming]; ADDIN BA xc <@cs> xl 67 s
BXKTXS000026 xhfl Rep xpl 1 l "People v.
Katzenberger (2009)
1264, 1268-1269
[prosecutor’s use of puzzle picture of the Statue of Liberty with missing
pieces to illustrate reasonable doubt was misconduct, but the error was
harmless, in part, because of the strength of the evidence].)
We reject the assertion made by the
defense at oral argument that our high court’s decision in ADDIN BA xc <@cs> xl 38 s
BXKTXS000027 xhfl Rep l "
(2012)
342 ( ADDIN BA xc <@$cs>
xl 6 s BXKTXS000027 xpl 1
reviewing court cannot consider the strength of the prosecution’s case in
evaluating whether the error was harmless in this context. In ADDIN BA xc <@$cs> xl 6 s
BXKTXS000027 Aranda, the court discussed the application of the
the erroneous omission of the standard reasonable doubt instruction. ( ADDIN BA xc <@$cs>
xl 40 s BXKTXS000027 xhfl Rep xpl 1
BXKTXS000027 Aranda, the court noted that when employing the
court normally “looks to the ‘whole record’ to evaluate the error’s effect on
the jury’s verdict. [Citation].†( ADDIN BA xc <@$cs>
xl 35 s BXKTXS000027 xhfl Rep xpl 1 Aranda, supra,
55 Cal.4th at p. 367.) “[T]he
effect of such an error is assessed by asking whether there is a reasonable
possibility that the verdict in question was not based upon a finding of guilt
beyond a reasonable doubt. If, after
examination of the record, the reviewing court concludes beyond a reasonable
doubt that the jury must have found the defendant’s guilt beyond a reasonable
doubt, the error is harmless. If, on the
other hand, the reviewing court cannot draw this conclusion, reversal is
required.†( ADDIN BA xc <@$id>
xl 5 s ID xpl 1 Ibid.)
Our high court went on to
note that the harmless error analysis is different when the trial court omits
instruction on reasonable doubt. “No
matter how overwhelming a court may view the strength of the evidence of the
defendant’s guilt, that factor is not a proper consideration on which to
conclude that the erroneous omission of
the standard reasonable doubt instruction was harmless under Chapman.†[¶]
[A] reviewing court applying the Chapman
standard to determine the prejudicial
effect of the erroneous omission of the standard reasonable doubt instruction should
evaluate the record as a whole--but not rely upon its view of the overwhelming
weight of the evidence supporting the verdict--to assess how the trial court’s
failure to satisfy its constitutional obligation to instruct on the
prosecution’s burden of proof beyond a reasonable doubt affected the jury’s
determination of guilt. If it can be
said beyond a reasonable doubt that the jury must have found the defendant’s
guilt beyond a reasonable doubt, the error is harmless. If the reviewing court cannot draw this
conclusion, reversal is required.†( ADDIN BA xc <@$cs>
xl 35 s BXKTXS000027 xhfl Rep xpl 1
Here,
unlike in ADDIN BA xc <@$cs> xl
6 s BXKTXS000027
properly instructed on reasonable doubt.
The trial court read the standard reasonable doubt instruction during the
preliminary instructions. It reread the
instruction as part of the predeliberation instructions. And the trial court reinforced the primacy of
that instruction after sustaining defendant’s first objection to the
prosecutor’s closing argument. ADDIN BA xc <@$cs> xl 6 s
BXKTXS000027 Aranda
does not help defendant here.
The evidence showing that defendant
kidnapped and terrorized a father and his young sons for the purpose of
obtaining money from the father was overwhelming. Considering the “whole record,â€
including the overwhelming evidence of guilt, we conclude that even if the
prosecutor’s argument was misconduct, any
error was harmless beyond a reasonable doubt.
IV. Correction of the
Abstract
Defendant contends, and the People
concede, the abstract of judgment must be corrected to reflect sentences on
counts 1 though 4 of “life with the possibility of parole.†We agree that the abstract needs to be
modified, but disagree with the parties that it should not reflect the minimum
term of seven years imposed by the trial court.
The abstract of judgment in this
case consists of two Judicial Council forms.
One form (form CR-292) sets forth defendant’s indeterminate terms and
the other (form CR-290) sets forth defendant’s determinate terms. Box 5. on form CR-292 indicates “LIFE
WITH THE POSSIBILITY OF PAROLE†and leaves a blank to fill in the counts. Box 6. provides alternative boxes to
reflect the minimum term for the various indeterminate sentences for which
parole is possible. The clerk checked
box 6.c., and filled in the blank for the minimum term by typing the
number “7,†so that the form reads “7 years to Life on counts 1, 2, 3, 4.†This accurately reflects the trial court’s
pronouncement during the sentencing hearing.
The punishment for violation of ADDIN BA xc <@osdv> xl 37 s
BXKTXS000050 l "section 209,
subdivisions (a) and (b)" section 209,
subdivisions (a) and (b), where no person suffers death or bodily
harm, is “imprisonment in the state prison for life with the possibility of
parole.†ADDIN BA xc <@osdv> xl 32 s
BXKTXS000051 l "Section 3046,
subdivision (a)(1)" Section 3046,
subdivision (a)(1) provides that the minimum parole eligibility for a
life term is seven years whenever the minimum term is not specified.
In ADDIN BA xc <@cs> xl 40 s
BXKTXS000028 xhfl Rep l "
21 Cal.4th 86 ( ADDIN BA xc <@$cs>
xl 9 s BXKTXS000028 xpl 1 Jefferson),
our high court discussed how trial courts should pronounce such sentences in
the context of addressing what term to double when a person with one strike is
convicted of a gang-related attempted deliberate and premeditated murder. The court observed that the term of
imprisonment for attempted deliberate and premeditated murder is life with the
possibility of parole ( ADDIN BA xc <@osdv>
xl 16 s BXKTXS000052 xpl 1 l "§§ 664, 187, 189" §§ 664, 187, 189). ( ADDIN BA xc <@$cs>
xl 37 s BXKTXS000028 xhfl Rep xpl 1
at p. 93.) The court further
observed that normally, the minimum term for an indeterminate term of life
imprisonment for attempted deliberate and premeditated murder is seven years as
provided in ADDIN BA xc <@osdv> xl 12 s
BXKTXS000053 l "section 3046" section 3046
( ADDIN BA xc <@$cs> xl 26 s BXKTXS000028 xhfl XRef xpl 1 Jefferson, supra, at
p. 96), but ADDIN BA xc <@osdv> xl 34 s
BXKTXS000054 l "section 186.22,
subdivision (b)(4)" section 186.22,
subdivision (b)(4) provides a mandatory minimum term of 15 years
for gang-related attempted murder. ( ADDIN BA xc <@$cs>
xl 27 s BXKTXS000028 xhfl XRef xpl 1 Jefferson, supra, at
p. 100.)
As for pronouncing judgment and what should be reflected in the
abstract, our high court wrote, “The Court of Appeal in this case
. . . held that the trial court's oral pronouncement of sentence
should not have included the minimum term established by ADDIN BA xc <@osdv> xl 24 s
BXKTXS000055 l "sections 186.22
and 3046" sections 186.22
and 3046, because the question of when defendants should be released on
parole is ‘a matter addressed by the Board of Prison Terms in determining the
prisoner’s parole eligibility.’ The
Court of Appeal therefore modified the judgments by striking each defendant’s
15-year minimum term. The Attorney
General contends that the Court of Appeal was wrong and that it is not improper
for the trial court to include, as part of a defendant’s sentence, the minimum
term of confinement the defendant must serve before becoming eligible for
parole. . . . [W]e agree
with the Attorney General. By including
the minimum term of imprisonment in its sentence, a trial court gives guidance
to the Board of Prison Terms regarding the appropriate minimum term to apply,
and it informs victims attending the sentencing hearing of the minimum period
the defendant will have to serve before becoming eligible for parole. Thus, when the trial court here pronounced
defendants’ sentences, it properly included their minimum terms
. . . .†( ADDIN BA xc <@$cs>
xl 50 s BXKTXS000028 xhfl Rep xpl 1 Jefferson, supra,
21 Cal.4th at pp. 101-102, fn. 3.) Based on our reading of ADDIN BA xc <@$cs> xl 9 s
BXKTXS000028 Jefferson, it is appropriate to check both box 5. on the
indeterminate-term abstract, indicating that defendant has been sentenced to
life with the possibility of parole and
box 6.c., specifying the mandatory minimum term -- here, seven years.
The judgment is modified to stay the
sentence imposed on counts 9, 10, and 11 and the associated enhancements
pursuant to ADDIN BA xc <@st> xl 22 s
BXKTXS000029 l "Penal Code
section 654" Penal
Code section 654. As modified, the
judgment is affirmed.
The trial court is directed to
prepare an amended determinate-term abstract of judgment (form CR-290),
indicating that defendant’s sentence on counts 9, 10 and 11 have been stayed,
and correcting the indeterminate-term abstract of judgment (form CR-292) to
reflect terms of life with the possibility of parole on counts 1
through 4 in box 5. of form CR-292, but specifying the minimum
term of seven years on those counts in box 6.c. The court is further directed to forward
certified copies of the amended and corrected abstracts to the
MURRAY , J.
We
concur:
HULL ,
Acting P. J.
ROBIE , J.
name="_ftn1" title="">[1] Undesignated statutory
references are to the ADDIN BA xc <@ost> xl 10 s
BXKTXS000030 l "Penal Code"
| Description | Defendant Paul Alexander Hinojosa carjacked and kidnapped a father and his three young sons in an attempt to obtain money from the father. The jury convicted defendant of kidnapping for the purpose of robbery ( "Pen. Code, § 209, subd. (b)(1)" Pen. Code, § 209, subd. (b)(1)[1] (count 1 - victim "G.S." G.S.)); kidnapping a child under age 14 for extortion ( "§§ 209, subd. (a), 667.9, subd. (c)" §§ 209, subd. (a), 667.9, subd. (c) (count 2 - victim M.P.)); kidnapping for extortion ( "§ 209, subd. (a)" § 209, subd. (a) (counts 3 & 4 – victims R.J & C.J.)); carjacking where a victim was under age 14 ( l "§§ 215, subd. (a), 667.9, subd. (c)" §§ 215, subd. (a), 667.9, subd. (c) (count 5 - victim M.P.)); assault ( "§ 240" § 240) as a lesser included offense of assault with a deadly weapon ( "§ 245, subd. (a)(1)" § 245, subd. (a)(1) (count 7 – victim 2 G.S.)); felony child endangerment "(§ 273a, subd. (a) (counts 9, 10, & 11 - victims M.P., R.J. and C.J.))" (§ 273a, subd. (a) (counts 9, 10, & 11 - victims M.P., R.J. and C.J.)).[2] |
| Rating |
