P. v.
Filed 2/4/13 P. v. Moore CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CURTIS LORENZO MOORE,
Defendant and Appellant.
D061132
(Super. Ct.
No. SCN275163)
APPEAL from
a judgment of the Superior Court
of
County, Richard E. Mills, Judge. Affirmed in part; reversed in part with
instructions.
A jury
convicted Curtis Lorenzo Moore of five felonies: kidnapping
for extortion (Pen. Code,
name="_ftnref1" title="">[1]
§ 209, subd. (a); count 1), kidnapping
during a carjacking (§ 209.5, subd. (a); count 2), robbery
(§ 211; count 4), burglary (§ 459; count 6), and
(§ 484e, subd. (a); count 7). On
counts 1 and 2, the court sentenced Moore
to concurrent indeterminate life terms with the possibility of parole. On counts 4, 6 and 7, the court sentenced him
to concurrent determinate terms of three years, 16 months, and 16 months,
respectively. The court stayed the
sentences on counts 2 and 7 under section 654.
On appeal, Moore
contends his conviction on count 6 must be reversed because under California
law the insertion of a stolen automated teller machine (ATM) card into an ATM
does not constitute burglary. He also
contends his conviction on count 7 must be reversed because under California
law he did not convey an ATM card. The
People concede these points, and we concur.
Additionally,
Moore asserts the court erred by not staying his sentence on count 4 under
section 654 on the ground the robbery and kidnapping for extortion (count 1)
were incident to the same intent and objective.
The People disagree, and we concur with them.
FACTS
On July 25, 2008, John Sung Do Kim, a limousine
driver, drove a client to an outlet center in Carlsbad. Kim was seated in the driver's seat of his
van waiting for his client to return, when Moore
pointed a gun at him and ordered him to move to the backseat, kneel down, and
keep his head lowered. Moore
tied Kim's hands and feet with plastic ties.
Moore searched Kim's
pockets, and Kim told Moore his
wallet "was right next to the door."
Moore took approximately
$200 and an ATM card from the wallet.
Moore
then drove the van around for about 40 minutes with Kim tied up in the
backseat. Moore
repeatedly demanded Kim's personal identification number for the ATM card, and
he eventually revealed it out of fear. Moore
stopped the van and got out, and Kim heard what sounded like cash being
dispensed from an ATM. He looked up and
saw Moore standing at an ATM.
Eventually,
Moore drove Kim back to the Carlsbad
outlet center. Moore
got out of the van, but told Kim to remain on the floor of the van and that he
would return to the van soon. After
waiting a period, Kim got out of the van with his hands and feet still tied and
got help.
Security
video from the ATM showed Moore
driving Kim's van and withdrawing cash, later determined to be $500, from the
ATM. Also, DNA consistent with Moore's
was found on the plastic ties that bound Kim.
DISCUSSION
I
Count 6: Burglary
"Under
section 459, a person is guilty of burglary if he or she enters any building
(or other listed structure) with the intent to commit larceny or any
felony." (People v. Davis (1998) 18 Cal.4th 712, 715 (Davis).) It has long
"been established that a burglary . . . can be
committed by using an instrument to enter a building." (Id. at
p. 716.)
In
ATM, or placing a forged check in a chute in the window of a check-cashing
facility, is not using an instrument to effect an entry within the meaning of
the burglary statute. Neither act
violates the occupant's possessory interest in the building as does using a
tool to reach into a building and remove property. It is true that the intended result in each
instance is larceny. But the use of a
tool to enter a building, whether as a prelude to a physical entry or to remove
property or commit a felony, breaches the occupant's possessory interest in the
building. Inserting an ATM card or
presenting a forged check does not. Such
acts are no different, for purposes of the burglary statute, from mailing a
forged check to a bank or check-cashing facility." (Davis,
supra, 18 Cal.4th at p. 722, fn.
omitted; People v. Carrington (2009)
47 Cal.4th 145, 187.)
The
burglary charge here was based on Moore's
insertion of Kim's ATM card into an ATM.
Moore asserts, the People
concede, and we concur, that the conviction on count 6 must be reversed for
lack of evidence.
title="">[3]
II
Count 7: Fraudulent Conveyance of Access Card
"Every
person who, with intent to defraud, sells, transfers, or conveys, an access
card, without the cardholder's or issuer's consent, is guilty of grand
theft." (§ 484e, subd. (a).) In People
v. Cordell (2011) 195 Cal.App.4th 1564, 1579, this court held that the
conduct defined in section 484e, subdivision (a), does not include the
defendant's unauthorized use of an
access card to purchase goods.
The
fraudulent conveyance charge here was based on Moore's
unauthorized use of Kim's ATM card to obtain cash from his bank account. Moore
asserts, the People concede, and we concur, that the conviction on count 7 must
be reversed for lack of evidence.
III
Count 4: Robbery
A
Additionally,
Moore contends the court erred by
not staying the concurrent sentence for robbery under the proscription against
separate punishment contained in section 654, because the robbery and the
kidnapping for extortion counts "were incident to one objective: obtaining Kim's money illegally." The People disagree with this point, and we
concur with them.
"In
general, a person may be convicted of,
although not punished for, more than
one crime arising out of the same act or course of conduct. 'In California,
a single act or course of conduct by a defendant can lead to convictions
"of any number of the offenses
charged." [Citations.]' [Citation.]
Section 954 generally permits multiple conviction[s]. Section 654 is its counterpart concerning
punishment. It prohibits multiple
punishment[s] for the same 'act or omission.'
When section 954 permits multiple conviction[s], but section 654
prohibits multiple punishment[s], the trial court must stay execution of
sentence on the convictions for which multiple punishment is
prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.)
"The
initial inquiry in any section 654 application is to ascertain the defendant's
objective and intent. If he entertained
multiple criminal objectives which were independent of and not merely
incidental to each other, he may be punished for independent violations
committed in pursuit of each objective even though the violations shared common
acts or were parts of an otherwise indivisible course of conduct." (People
v. Beamon (1973) 8 Cal.3d 625, 639.)
The court's
ruling under section 654 is subject to a substantial evidence standard of
review. (People v. Tarris (2009) 180 Cal.App.4th 612, 626.) " ' "We must 'view the evidence in
a light most favorable to the respondent and presume in support of the
[sentencing] order the existence of every fact the trier could reasonably
deduce from the evidence.' " ' "
(Id. at p. 627.)
"Numerous
cases support the proposition that . . . section 654 bars
multiple punishment for convictions of kidnapping for the purpose of robbery
and for committing that very robbery."
(People v. Porter (1987) 194
Cal.App.3d 34, 37-38 (Porter).) For instance, in People v. Knowles (1950) 35 Cal.2d 175, the defendant, in the
course of robbing a store, forced the victims at gunpoint to move from room to
room. Our high court held the defendant
could not be punished for both crimes because the defendant "committed no
act of kidnapping that was not coincident with the taking of personal
property. There was no seizure or
confinement that could be separated from the actual robbery as a separate and
distinct act." (
639; People v. Milan (1973) 9 Cal.3d
185, 197; People v. Lewis (2008) 43
Cal.4th 415, 434-439, 519.)
"Other
cases have found separate, although sometimes simultaneous, objectives under
the facts" for which double punishment does not run afoul of section
654. (People v. Latimer (1993) 5 Cal.4th 1203, 1212.) For instance, in Porter, supra, 194 Cal.App.3d 34, the court found a kidnapping
sufficiently distinguishable from a robbery to justify punishment for
each. In Porter, the defendant got into the victim's car and at knifepoint
stole the few dollars in the victim's wallet and took what he believed was an
ATM card from the wallet. The victim
tried to explain the card was a credit card, but the defendant forced the
victim to reveal the location of his bank.
The defendant drove the victim to the bank and threatened to make the
victim "remember how to use this card." When the defendant momentarily set his knife
down, the victim escaped. (
A jury
convicted the defendant of robbery and kidnapping for robbery, and the trial
court sentenced him to prison for life on the kidnapping count and a concurrent
upper term on the robbery count. On
appeal, the defendant argued the trial court erred by not staying the
concurrent sentence for robbery under section 654. The appellate court disagreed, concluding the
"record in this case supports the trial court's implied finding that the
two crimes for which appellant was sentenced involved multiple objectives, were
not merely incidental to each other, and were not a part of an indivisible
course of conduct." (
p. 38.) The opinion explains:
"A reasonable inference from the record is that
appellant and his companion initially planned only to rob the victim of the
contents of his wallet, but thereafter came up with a new idea: kidnapping the victim to his bank to compel
him to withdraw money from his account by means of what they thought was an
automated teller card. [Citations.] In this case the record suggests that
appellant was convicted of the robbery of the victim's wallet and of kidnapping
for the purpose of a different robbery involving the compelled withdrawal of
funds from an automated teller, which was unsuccessful. This is not, therefore, a case of punishing
appellant for kidnapping for the purpose of robbery and for committing 'that
very robbery.' [Citation.] Nor is this a case of multiple punishment for
taking several items during the course of a robbery. [Citation.]
What began as an ordinary robbery turned into something new and
qualitatively very different. No longer
satisfied with simply taking the contents of the victim's wallet, appellant
decided to forcibly compel the victim to drive numerous city blocks to a bank
where, only with the victim's compelled assistance, could appellant achieve a
greater reward. . . . In the unusual circumstances of this
case, appellant could be punished both for the robbery he committed and the
kidnapping for the purpose of a distinctly different type of
robbery." (Id. at pp. 38-39.)
Moore
mentions Porter, supra, 194 Cal.App.3d 34 only
in passing, and he has not cited any opinion that questions
as settled precedent in affirming
double punishment for robbery and kidnapping for robbery, when the defendant
robbed the victim of cash and electronic equipment in his home, and then
kidnapped the victim and drove him to a bank several blocks away where the
defendant used the victim's ATM card to obtain additional cash. (Smith,
supra, at pp. 1194-1195, 1199.) We
noted that if the Supreme Court disagreed with our analysis, it could rectify
the matter on review. (
subsequently dismissed the matter and ordered our opinion published. (People
v. Smith (1993) 862 P.2d 148; see also People
v. Latimer, supra,
cited Porter, supra, 194 Cal.App.3d at pp. 37-39, with approval in discussing
section 654 issue].)
Here, the
trial court expressly found Moore originally planned to steal cash from Kim's
wallet, and when he discovered Kim's ATM card he formed a separate intent to
kidnap Kim and transport him to an ATM to steal additional cash from his bank
account. Moore cites no evidence that
the kidnapping was part of his original intent rather than an opportunistic
reaction to finding Kim's ATM card. This
case is essentially indistinguishable from Porter,
supra, 194 Cal.App.3d 34, and
supports the court's finding of divisible criminal objectives.
B
Moore relies on this court's opinion in
159, in which we held that separate punishments for robbery and kidnapping for
robbery, which all took place at a bank's ATM's, violated section 654. Wiley, however,
does not mention Porter,
supra, 18 Cal.App.4th 1192, the facts of which are more analogous to the
facts here. In any event, the question
is whether substantial evidence
supports the trial court's finding, not whether the evidence would have
permitted a different determination. (
53 Cal.App.4th 861, 867 ["If the evidence gives rise to conflicting
inferences, one of which supports the trial court's findings, we must
affirm."].)
Moore also
cites People v. Anderson (2011) 51
Cal.4th 989, 994, which explains, "In California, '[t]he crime of robbery
is a continuing offense that begins from the time of the original taking until
the robber reaches a place of relative safety.' '' He also cites People v. Ortega (1998) 19 Cal.4th 686, 699, disapproved of on
another point in People v. Reed
(2006) 38 Cal.4th 1224, 1228 which explains, " 'When a defendant steals
multiple items during the course of an indivisible transaction involving a
single victim, he commits only one robbery or theft notwithstanding the number
of items he steals.' " (See also
25, disapproved of on another point in People
v. Montoya (2004) 33 Cal.4th 1031, 1036, fn. 4 ["a defendant who
steals various items by force or fear, in a continuing transaction, commits but
one offense and the loot may not be splintered into separate counts of theft
for purposes of multiple conviction[s]"].)
Moore
asserts he committed only one robbery, which continued from the time he stole
the cash from Kim's wallet until he left Kim's van after the ATM theft, and
thus section 654 necessarily prohibits separate punishments. He posits that since there was a single
robbery, he is being punished for kidnapping for the purpose of robbery and for
the very same robbery. In
1192, however, this court concluded we could consider the theft of cash from
the victim's home, and the subsequent theft of cash from his bank account with
an ATM card, as "separate and distinct" events in determining whether
section 654 prohibited punishment for both robbery and kidnapping for
robbery. (Smith, at p. 1197.) Implicitly, the court in Porter, supra,
conclusion. Moore has not persuaded us
another rule should apply.
DISPOSITION
The
convictions on counts 6 and 7 are reversed and the corresponding sentences are
vacated. The trial court is directed to
prepare an amended abstract of judgment accordingly, and to forward a certified
copy of it to the California Department of
Corrections and Rehabilitation. The
judgment is affirmed in all other respects.
McCONNELL,
P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
name="_ftn1" title="">[1] Future statutory references are also to the Penal Code.
name="_ftn2" title="">[2] Moore testified and claimed he and Kim were acquaintances
through gambling, and he agreed to help Kim stage a theft from his account to
cover a gambling debt so his wife would not learn about the debt. Moore, however, never mentioned a prior
relationship with Kim to police and there was no corroborating evidence of
one. Moore admitted that in 2009 he was
convicted of robbing a credit union using a BB gun that looked like a
semiautomatic weapon.
