P. v. Lovest
Filed 1/30/14 P. v. Lovest
CA2/2
OFFICIAL REPORTS
California Rules
of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTWONE
MARKEYS LOVEST,
Defendant and Appellant.
B244651
(Los
Angeles County
Super. Ct. No. GA076543)
APPEAL
from a judgment of the Superior Court of
Los Angeles County.
Janice Claire Croft, Judge. Affirmed as modified and remanded with
directions.
Jean
Ballantine, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________
In
an information filed by the Los Angeles District Attorney, defendant and
appellant Antwone Markeys Lovest was charged with kidnapping to commit robbery
(count one; Pen. Code, § 209, subd. (b)(1)),
criminal threats (count three; § 422), burglary (count four; § 459), and grand
theft (count seven; § 484e, subd. (d)).
As to counts one through three, it was further alleged that appellant
personally used a deadly and dangerous weapon in the commission of the offenses
within the meaning of section 12022, subdivision (b)(2). Appellant pleaded not guilty and denied the
special allegation.
Trial
was by jury. The jury found appellant guilty
of counts two, three, four, and seven, but was unable to reach a verdict on
count one. It found the deadly weapon
allegation true as to counts two and three.
Retrial on count one was by jury.
On retrial, the jury found appellant guilty on count one and found the
section 12022, subdivision (b)(1), allegation to be true.
The
sentenced appellant to life in state prison plus five years eight months. The sentence was composed of a life term on
count one plus one year for the weapon enhancement, a consecutive three-year
term on count two plus one year for the weapon enhancement, and a consecutive
eight-month term on count seven. Appellant
was ordered to pay restitution and assessments.
He was granted 1,250 days of presentence custody credit.
Appellant
timely filed a notice of appeal. On
appeal, he argues: (1) Section 654
requires a stay of sentence on counts two, three, and seven because all of the
offenses were within a single, continuing course of conduct for the single
purpose of taking money from the victim; (2) The sentencing in violation of
section 654 violates his right to due process and the prohibition against
double jeopardy; (3) The trial court erred in denying an award of presentence
conduct credits; (4) The trial court’s imposition of a $240 restitution fine
and a $240 parole revocation fine reflects an intent to impose the minimum
fines; because the statutory minimum at the time of the offense was $200, the
fines must be corrected.
We
agree with the parties that appellant’s sentence on count two must be
stayed. We also agree that appellant should
have been awarded 1,438 days of presentence custody credit. Therefore, we correct the sentence. Upon remand, we direct the trial court to
modify the abstract of judgment to stay appellant’s sentence on count two and
award him 1,438 days of presentence custody credit. In all other respects, the judgment is
affirmed.
I. First
Trial
A. Prosecution Evidence
On
March 31, 2009, Kyle Chang (Chang) arrived at Almansor Park in Alhambra. As Chang listened to the radio in his car,
appellant approached him and asked for the time. Chang told him that it was a quarter to four. Chang heard appellant say,
“‘Where are th[o]se guys?,’†as if he was waiting for someone. Appellant then walked away.
When
Chang exited his car, appellant was standing near the rear of his car with a
gun drawn. He ordered Chang back into
the vehicle. Appellant got into the
backseat and calmly ordered Chang to drive.
Chang exited the parking lot and turned south on Almansor Street. Appellant told Chang to give him his wallet
and cell phone. Fearing for his life,
Chang complied. Appellant looked through
Chang’s wallet and asked if his name was Kyle.
When Chang responded in the affirmative, appellant asked him for his ATM
pin. Chang told appellant that he did
not know it. Appellant accused Chang of
lying.
Appellant
directed Chang to turn east on Valley Boulevard, south on New Avenue, east on Garvey Avenue,
and south on Rosemead
Boulevard. He then directed Chang to take the 60 Freeway
east, telling him that he needed to go to the
to go to, appellant told him to “shut up and drive.†He asked Chang for his pin multiple times,
but Chang maintained that he did not know it.
Appellant told Chang that they were “just going to keep driving until
[he] remember[ed].†Mentioning Chang’s
address, appellant told Chang that he had better remember the pin or he would
go to Chang’s house and hold his family hostage. He asked Chang what he did for a living and
how much money was in his bank account.
Appellant
directed Chang to go south on the 605 Freeway, and then south on the 5 Freeway. Appellant threatened to “blow [Chang’s]
brains out.†He told him, “‘Good thing
you speak English because the last guy didn’t, so I had to shoot him in the
leg.’†At appellant’s direction, Chang
exited the freeway and drove south on Brookhurst Street. Appellant was becoming more
upset that Chang was not giving him his pin.
He told Chang that he was going to “hog tie†him and “have some of his
homies have fun with [him].â€
Chang
tried to drive recklessly to draw attention to himself. Appellant told Chang that he was not a good
driver. When Chang suggested that
appellant drive, appellant told him that he could not because he had a
suspended license. Appellant tried to
dial a number on Chang’s phone. He told
Chang that he had a lousy cell phone and that, if he made it “‘out of this
alive,’†he should get a new one. When
they reached Bixby Avenue, appellant instructed Chang to make a U-turn.
As
they were traveling north on the 5 Freeway, appellant called the customer
service number on Chang’s American Express credit card. Appellant told the customer service
representative that his friend needed his pin.
The representative told appellant that he needed to speak directly to
Chang. As appellant held the phone to
Chang’s ear, he answered the representative’s security questions. Chang authorized appellant to speak to the
representative on his behalf. As Chang
drove north on the 605 Freeway, a new pin was created.
Appellant
directed Chang to drive west on the 10 Freeway and then to exit at Peck Road. He drove south on Peck Road and
west on Elliot Avenue. Still on the phone with the
customer service representative,
appellant told Chang to pull to the side of the street. After doing so, Chang opened the door and
ran. He tried to flag down passing
cars. He banged on their windows until a
woman stopped. He explained to her what
had happened and she drove him to the El Monte Police Department. There, he spoke to detectives.
That
evening, someone using Chang’s American Express credit card was given a cash
advance at an ATM on Santa
Anita Avenue in El Monte. Ten minutes later, another attempt was made
to withdraw money at an ATM on Rosemead Boulevard in Rosemead.
On
April 20, 2009, police went to the home of appellant’s father in Upland. Appellant had been living there for several
weeks. Police recovered a BB gun in a
laundry basket that was identified as belonging to appellant. The BB gun was a replica of an actual
firearm. According to Alhambra Police
Detective James Hammond, a projectile fired from the gun could break the skin
or cause permanent damage to a person’s eye.
B. Defense Evidence
According
to appellant’s father, appellant began having mental health problems at the age
of 9. He began using drugs at around the
age of 16. Appellant’s mother also
suffered from mental health
issues, having been diagnosed as bipolar.
She was hospitalized on one occasion for her mental illness. Appellant was placed in foster care when he
was 14 after a fight with his stepmother.
This experience caused appellant’s mental health to deteriorate. He was diagnosed with schizophrenia at the age
of 17.
Psychiatrist
Gordon Plotkin evaluated appellant.
Appellant had abuse in his history.
He developed a mental illness in 2002.
He was hospitalized for psychiatric reasons on six occasions. He was homeless for a period of time and used
methamphetamine. As time went on,
appellant developed manic symptoms—insomnia, paranoia, and hallucinations. He was diagnosed with bipolar disorder,
schizoaffective disorder, substance-abuse psychotic disorder, and paranoid
schizophrenia. He was initially treated
with anti-depressants, but when his psychiatric symptoms became more
pronounced, he was prescribed anti-psychotic medications. He hears the voice of the person who molested
him (his mother’s boyfriend). He
suffered the molestation at a young age.
He was placed in foster care and then sent to hospitals for
evaluation.
In
his interview with Dr. Plotkin, appellant stated that he had a history of
experiencing hallucinations when he went off his medications. Prior to the crime in this case, appellant
had been off his medication for several days and had been using methamphetamine
for five consecutive days. He was
sleepless, paranoid, hearing voices, and disorganized in his thinking. He believed that people were looking for
him. The voices provided appellant with
a running commentary that justified the paranoia he was feeling.
Appellant’s
CT scan was abnormal; it showed that his brain had atrophied. Appellant told Dr. Plotkin that, at the time
of the incident with Chang, he was seeking medical help. The use of methamphetamine amplifies a
person’s psychotic symptoms. In Dr.
Plotkin’s opinion, at the time of the incident, appellant was suffering from a
major mental disorder—probably bipolar disorder, but possibly
schizophrenia. It also could have been
schizoaffective disorder or substance-induced psychotic disorder. In the past, when appellant reached this
psychological state, he would go to the hospital. Appellant was likely not thinking lucidly
when he ordered Chang into the car.
Appellant would have had trouble thinking rationally.
II. Retrial
The
evidence presented at the retrial largely mirrored the evidence presented at
the first trial, except that appellant and his wife, Rosalba Lovest (Rosalba),
testified at the retrial. Rosalba met
appellant in 2001 when she was 16 years old.
They attended the same high school.
They developed a relationship in 2001 and began living together in 2003. Rosalba last lived with appellant in
2008.
When
they lived together, Rosalba noticed that appellant had mental health
problems. He was aggressive and suffered
from nightmares. He was so scared of the
dark that he would urinate outside their bedroom because he did not want to walk
into the bathroom. On one occasion,
appellant was caring for his mother and suffered a breakdown. Rosalba found him in the shower with cuts to
his forearms.
In
November 2008, after they separated, appellant called Rosalba and told her that
he was hearing voices and that the voices were telling him to kill
himself. She took him to the
hospital. He was subsequently
transferred to a “psyche ward.†On one
occasion in January 2009, Rosalba took their son to visit appellant. Appellant screamed, “‘He’s coming,’†and
threw them to the floor. He told them
that “Marshall†(the name of mother’s boyfriend who molested appellant) wanted to
hurt him again and that he was coming after them.
Appellant
testified that on March 31, 2009, he walked home
from El Monte to Almansor Park. He was trying to “loseâ€
someone that was following him. He had
used methamphetamine on two occasions that day, and he had been using it for
the prior four days as well. He was
hearing voices, one of which was Marshall’s voice. He started hearing
voices after Marshall molested him at age 6.
Appellant always felt like Marshall was after him. After he was
molested, appellant moved to his father’s house, but his father began to hit
him. He was placed in foster care at age
9.
Appellant
used methamphetamine on the day of the incident because he was paranoid; he
wanted to stay awake and watch everything.
He arrived at Almansor Park at around 3:00
p.m.
He wanted to go to a crowded area.
He was carrying the BB gun because he had been robbed on an earlier
occasion. When he saw Chang, he was
hearing voices and high on methamphetamine.
He wanted to go to the hospital because he was high and the voices were
“screaming in [his] head.†Earlier that
day, appellant had gone to a mental health facility and said that he was
hearing voices and that he was high. The
facility told him to go to a hospital.
At
the time appellant asked Chang for the time, he felt that people were closing
in on him. He told Chang to get into the
car because he (appellant) wanted to leave California. He felt that his life was in danger, and he
was going to use Chang’s money to leave the state. Appellant also wanted to go to Rosemead Ingleside Hospital. He threatened Chang when he learned that
Chang had lied to him about being a doctor.
He also threatened Chang because it was “a life and death situationâ€; he
needed to leave California. The voices were telling
appellant to get away.
Appellant
withdrew the $200 from the ATM on Santa Anita to give to his friend so that his
friend would drive him to Arizona. Appellant did not kidnap Chang
for the purpose of robbing him; he was trying to go to a hospital. He was not in his normal mental state. After the incident with Chang, appellant
decided to “get clean.†He called his
father, who invited him to live with him in Upland.
DISCUSSION
I. The sentence
on count two must be stayed; section 654 does not require that the sentences on
counts three and seven be stayed
Appellant argues that section 654
required that his sentences on counts two, three, and seven be stayed because
all of the offenses were within a single, continuing course of conduct for the
single purpose of taking money from Chang.
A. Relevant proceedings
On
count one (kidnapping to commit robbery; § 209, subd. (b)(1)), the trial court
sentenced appellant to life in state prison plus an additional year for the
deadly weapon enhancement. On count two
(robbery; § 211), the trial court imposed a consecutive three-year sentence
plus an additional year for the deadly weapon enhancement. On count three (criminal threats; § 422), the
trial court imposed a concurrent three-year sentence plus an additional year
for the deadly weapon enhancement. And
on count 7 (theft of access card information; § 484e, subd. (d)), the trial
court imposed a consecutive eight-month term.
B. Applicable law
Section
654 prohibits punishment for two offenses arising from a single, indivisible
course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) If all of the crimes were merely incidental to,
or were the means of accomplishing or facilitating one objective, a defendant
may only be punished once. (
independent criminal objectives, he may be punished for each crime committed in
pursuit of each objective, even though the crimes shared common acts or were
parts of an otherwise indivisible course of conduct. (People
v. Latimer, at p. 1208; People
v. Perry, at p. 1525.)
“[M]ultiple
crimes are not one transaction where the defendant had a chance to reflect
between offenses and each offense created a new risk of harm,†and separate
sentences may be imposed on offenses that are divisible in time. (People
v. Felix (2001) 92 Cal.App.4th 905, 915.)
Even if acts are committed pursuant to a single objective, section 654
does not prohibit multiple punishment if the acts are “temporally separated in
such a way as to afford the defendant opportunity to reflect and to renew his
or her intent before committing the next one.â€
(People v. Gaio (2000) 81
Cal.App.4th 919, 935.) The question of
whether the defendant harbored a “single intent†is a factual determination
made by the trial court. (
335.) On appeal, the trial court’s
factual determination must be sustained if supported by substantial
evidence. (People v. Perry, supra,
154 Cal.App.4th at p. 1525.)
C. The sentence on count
two must be stayed
The
People agree that appellant’s sentence on count two should have been
stayed. To commit the kidnapping for
robbery of which appellant was convicted in count one, appellant (obviously)
needed to intend to rob Chang. (CALCRIM
No. 1203.) Because the kidnapping for
robbery (count one) and the robbery (count two) were committed for the same
objective, sentence on the robbery conviction should have been stayed pursuant
to section 654. (People v. Lewis (2008) 43 Cal.4th 415, 519.)
D. Sentences were properly imposed on counts
one and seven because appellant had an opportunity to reflect and renew his
intent before acquiring Chang’s access card information
However, substantial evidence
supports the trial court’s refusal to apply section 654 to counts one and
seven. People v. Lopez (2011) 198 Cal.App.4th 698 is instructive. In that case, the defendant stole the
victim’s purse and used her credit card to make a purchase at a convenience
store. (Id. at p. 705.) He
received concurrent sentences for theft of personal property and using the
stolen access card. (
sentence for using the stolen access card should have been stayed pursuant to
section 654 because both offenses involved the same indivisible course of
conduct. (People v. Lopez, supra, at pp. 701–702, 716–717.) The Court of Appeal disagreed, explaining
that “the amount of time that it took for [the defendant] to drive to the
7-Eleven, park the car, and walk into the store was sufficient for him to
reflect upon what he had already done (stolen [the victim’s] purse and its
contents including the access card) and what he was about to do (use the access
card to obtain merchandise).†(
388, 399; People v. Clair (2011) 197
Cal.App.4th 949, 960.)
Here, appellant demanded Chang’s
wallet and cell phone as Chang was backing out of the parking spot in the Almansor Park parking
lot. One to two minutes later, appellant
asked Chang what his name was. And,
“after that,†appellant asked for Chang’s pin, which Chang did not know. Appellant did not acquire the final piece of
Chang’s access card account information (the new pin) until after they had
driven to Orange County and were on their way back.
During that journey, appellant had sufficient time to reflect on what he
had done (kidnapped and robbed Chang and forced him to drive dozens of miles
through two counties) and renew his intent before demanding that Chang create a
new pin for him to use. This is
especially true given the fact that appellant and Chang discussed multiple
topics (sports, their families, their high schools, Chang’s lack of sexual
experience) unrelated to appellant’s crimes during the drive. Because appellant’s acquisition of Chang’s
access card account information was divisible in time and place from his
robbery and kidnapping of Chang, substantial evidence supported the trial
court’s imposition of sentences on both counts one and seven.
E.
Sentences were properly imposed on counts three and seven because appellant
harbored independent criminal objectives in committing those offenses
Similarly,
substantial evidence supports the trial court’s refusal to apply section 654 to
counts three and seven. Appellant’s
claim on appeal that he threatened Chang for the purpose of obtaining his
access card account information is supported by the record. But, the record also supports a finding that
appellant issued the threats for a separate, independent criminal purpose—to
punish Chang for lying to him about being a doctor. Appellant so testified, and the testimony of
a single witness constitutes substantial evidence. (People
v. Mejia (2007) 155 Cal.App.4th 86, 93.)
Because appellant’s efforts to obtain Chang’s money and his threats to
Chang did not arise from a single objective, imposition of sentence on both
counts three and seven did not violate section 654. (People
v. Sandoval (1994) 30 Cal.App.4th 1288, 1299–1300.)
F. Sentencing did not violate the federal
Constitution
Appellant
argues that the sentences imposed in violation of section 654 violate his right
to due process and the Fifth Amendment’s prohibition against double
jeopardy. In light of our conclusion
that appellant’s sentence did not violate section 654, it necessarily follows
that there was no constitutional violation.
(People v. Boyer (2006) 38
Cal.4th 412, 441, fn. 17.)
II. Appellant
is entitled to additional presentence
custody credits
Appellant
argues that the trial court erred in denying him an award of presentence
custody credits and miscalculated his actual days of presentence
confinement. The People agree.
It
appears that the trial court failed to recognize that 2012 was a leap
year. Thus, appellant is entitled to
1,251 actual days of credit, instead of 1,250 days.
Furthermore,
the trial court refused to award appellant presentence conduct credits because
he received a life sentence. However,
“neither section 2933.1 nor section 4019 contains any express provision making
defendants ineligible for presentence conduct credit if they receive an
indeterminate life sentence.†(
457, 462.) Because appellant was
convicted of violent felonies, his presentence conduct credit is limited to 15
percent of his actual days of presentence confinement. (§§ 667.5, subds. (c)(9) & (c)(14);
2933.1, subd. (a).) Thus, he should have
been awarded 187 days of conduct credit, for a total presentence credit award
of 1,438 days.
III.
Appellant’s claim that the trial
court erred in its imposition of the restitution and parole revocation fines
has been forfeited and is without merit
In
March 2009, when appellant committed his crimes, section 1202.4, subdivision
(b)(1), provided for a minimum restitution fine of $200 for a person convicted
of a felony. Section 1202.45 required
(and still requires) the trial court to impose a parole revocation fine “in the
same amount as†the restitution fine imposed under section 1202.4, subdivision
(b). The Legislation authorizing an
increase in the amount of the minimum restitution fine under section 1202.4,
subdivision (b)(1), from $200 to $240 became effective on January 1, 2012,
after the commission of appellant’s crimes.
(People v. Kramis (2012) 209
Cal.App.4th 346, 349–350, fn. 2.)
Appellant
argues that the trial court’s imposition of a $240 restitution fine and a $240
parole revocation fine reflects an intent to impose the minimum fines; because
the statutory minimum fines at the time of the offense were $200 each, the
fines imposed violate ex post facto principles and must be corrected.
Appellant
did not raise this issue with the trial court.
As such, it has been forfeited on appeal. (In re
Sheena K. (2007) 40 Cal.4th 875, 880–881; People v. White (1997) 55 Cal.App.4th 914, 917 [the rule of
forfeiture applies to ex post facto claims].)
Our analysis could stop here.
For
the sake of completeness, we note that appellant’s claim lacks merit. A law violates the ex post facto clause if it
inflicts a greater punishment for the crime than was available when the crime
was committed. (In re Robert M. (2013) 215 Cal.App.4th 1178, 1186.) Here, there was no ex post facto application
of section 1202.4, subdivision (b)(1), because the trial court had the
discretion (in 2009 and in 2012) to impose a restitution fine up to $10,000;
thus, appellant was not subjected to increased punishment when the sentencing
court ordered him to pay $240.
Appellant’s
argument notwithstanding, there is no evidence in the appellate record that the
trial court misunderstood the law or intended to impose the statutory minimum
fine (which would have been $200). The
trial court never said that it was imposing the minimum restitution fine; the
fact that it selected $240 without comment does not compel the conclusion that
the trial court intended to impose anything other than that amount.
DISPOSITION
The judgment is affirmed as
modified. The matter is remanded to the
trial court with directions to amend the abstract of judgment to reflect that appellant’s
sentence on count two is stayed and that he is awarded 1,438 days of
presentence custody credit. In all other
respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________________, Acting
P. J.
ASHMANN-GERST
We concur:
______________________________,
J.
CHAVEZ
______________________________,
J.
FERNS
unless otherwise indicated.
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
