Filed 10/10/17 P. v. Munguia-Hernandez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant was found guilty by a jury of 18 crimes: kidnapping for the purpose of robbery (Pen. Code, § 209, subd. (b)(1)); felony false imprisonment (Pen. Code, §§ 236, 237, subd.(a)); first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)); (Pen. Code, § 209, subd. (b)(1)); dissuading a victim or witness from testifying by force or threat (Pen. Code, § 136.1 subd. (c)(1)); making a criminal threat (Pen. Code, § 422); committing an assault with “a stun gun or less lethal weapon” (Pen. Code, § 244.5); extortion (Pen. Code, § 518); theft from an elder (Pen. Code, § 368, subd. (d)); four counts of the unlawful use of personal identifying information (Pen. Code, § 530.5, subd. (a)); and six counts of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). The jury found true enhancement allegations that the false imprisonment, kidnapping, robbery, and four of the burglaries were committed against a person older than 65. (Pen. Code, § 667.9, subd. (a).)

After staying execution of some sentences pursuant to Penal Code section 654 (section 654), the trial court sentenced defendant to state prison for a term of seven years to life for the kidnapping, and a consecutive aggregate term of 16 years and eight months.

Defendant contends his kidnapping conviction is not supported by substantial evidence from which a trier of fact could conclude that the movement of the victim increased the risk of harm to her. In a related claim, he contends that if the kidnapping conviction is proper, he could not be convicted of the lesser included offense of false imprisonment. The majority of his remaining contentions seek to have additional sentences stayed pursuant to section 654. Finally, defendant insists the “multiple punishments imposed in this case violated [his] federal constitutional protection against double jeopardy.”

The Attorney General concedes that defendant should not have been convicted of false imprisonment, and that that conviction should be reversed. This is the sole error shown. In all other respects, we affirm the judgment.

KIDNAPPING

Evidence

The victim of the kidnap and the false imprisonment was Joanne B., who was

66-years-old at the time. She testified that on the morning of March 17, 2014, she returned from shopping to her home in San Mateo. She did not know that defendant was already in her home. Joanne was in her living room when defendant suddenly appeared, ordering her to “get down.” Once on the ground, Joanne resisted, kicking defendant’s face. Defendant was carrying a Taser. He used this weapon repeatedly on Joanne to overcome her resistance to his commands (“ ‘[y]ou hurt me so I’m going to hurt you’ ”). Defendant also brandished a knife and handgun, and reminded Joanne, “I could hurt you.” Then the threats escalated: “He kept saying that he could kill me and that . . . he would kill me if I didn’t do what he told me to do.”

Defendant put a large cloth duffel bag over Joanne’s head and ordered her to move. Unable to see, and afraid she would fall, she followed his orders to go from the living room, then through the hall, and into the dining room. Defendant made her sit in a chair, and then “bound my feet together and he taped my arms and hands to the arms of the chair.”

After defendant made Joanne tell him the pin number for her debit card, and with her still pinioned in the chair, defendant rolled it and her to her bedroom. Defendant told her he was going to the bank. He then shoved a sock in her mouth, taped her mouth shut, and put her into the closet. According to Joanne, “several times during that period, he threatened that if I went to the police, he would come back; he would kill me; he would burn my house down; and since he had my cell phone, he’d go after my family.”

After what seemed to Joanne to be “an eternity,” during which she loosened some of her restraints, defendant “came back and took me out of the closet.” She testified that when defendant reappeared, “after he brought me out of the closet, he . . . was really angry because I had gotten a little loose and . . . I actually did catch a glimpse of him. He put me in another chair, put another bag on my head, and he moved me . . . [through] the hallway” to the dining room. He was again making threats (i.e., “behave myself or he was going to kill me”; “if I did it again, he’d . . . kill me”). It was now 2:50 p.m.

This time defendant “bound me up quite tightly. He really secured me with duct tape and other kinds of tape; wire cords. There was no way I could move. . . . I couldn’t move my head at all.” Joanne was literally bound hand and foot. She testified about a “wire or a stiff cord,” some kind of “restraint” being around her neck. “[L]ater in the evening, I got cold so he took a blanket off my bed, wrapped it around, and then duct taped . . . that to me.”

Joanne stayed in this condition through the night, except when she had to relieve herself. When she became hungry, defendant fed her slices of apple. Joanne was still bound when defendant made her take sleeping pills and Vicodin. Joanne did not know whether defendant was also in her home during that time, but he was there in the morning.

In the morning, defendant fed Joanne some cottage cheese (again, while she still had the duffel bag over her head), led her to the bathroom and ordered her to undress and shower. As Joanne was putting on the clothing defendant threw into the shower, he told her “ ‘I’m going to let you go.’ ” Defendant then pulled a baseball cap over Joanne’s eyes, “led me out to the living room,” “and he told me to get down on the floor and he bound my feet.” Joanne testified to defendant’s final words: “He said that he wanted me to count from 1,000 backwards to one; and that it might be a test; and if he was still there, I would have to do it again. But if he was gone, . . . he left a knife underneath my couch so that I could crawl over to it and free my legs.” “[T]he last thing he said . . . to me was . . . ‘Don’t call the police.’ ” Joanne did the countdown, used the knife to free herself, and—because she had no working phone—drove to a friend’s home, where she called the police.

Tape from the video security system at the school next to Joanne’s home showed that defendant repeatedly left and returned. His final departure was just three minutes before noon, almost exactly 24 hours after Joanne came home from her shopping. The jury also saw evidence from which it could conclude that once Joanne told defendant the pin number of her debit card, he left, used it to withdraw money from an ATM, and then returned to Joanne’s home.

Legal Principles

“Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” (Pen. Code, § 207, subd. (a).) “Any person who kidnaps or carries away any individual to commit robbery, . . . shall be punished by imprisonment in the state prison for life with the possibility of parole,” but “only . . . if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.” (Id. § 209, subd. (b).)

“The Supreme Court has explained that the determination whether the movement in any particular case meets this standard involves a consideration of ‘the “scope and nature” of the movement,’ and ‘the context of the environment in which the movement occurred.’ [Citation.] [¶] Recently, the court reexamined the question when evidence of a forced movement of a victim is sufficient to satisfy this standard, and noted that the standard ‘suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment.’ [Citation.] The court also noted that ‘whether the victim’s forced movement was merely incidental to the [underlying crime] is necessarily connected to whether it substantially increased the risk to the victim.’ [Citation.] Some of the circumstances that should be considered when determining whether the movement increased the risk to the victim include ‘whether the movement decreases the likelihood of detection, increases the danger inherent in a victim’s foreseeable attempts to escape, or enhances the attacker’s opportunity to commit additional crimes.’ [Citation.] The court instructed that measured distance is relevant, but ‘no minimum distance is required to satisfy the asportation requirement’ of aggravated kidnapping ‘so long as the movement is substantial’ [citation], and ‘each case must be considered in the context of the totality of its circumstances.’ [Citation.] Thus, ‘n some cases a shorter distance may suffice in the presence of other factors, while in others a longer distance, in the absence of other circumstances, may be found insufficient.’ [Citation.]” ([i]People v. Corcoran (2006) 143 Cal.App.4th 272, 278–279, fn. omitted.)

Application

“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt . . . . In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends . . . .’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the [trier of fact’s decision.] [Citation.] [¶] The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

Defendant contends there is insufficient evidence that Joanne’s forced movements increased the risk of injury beyond the minimum inherent in the nature of robbery. He is mistaken. Joanne was not subjected to “brief movements” that were “necessarily incidental to the crime of armed robbery” (People v. Daniels (1969) 71 Cal.2d 1119, 1130–1131, 1134), but a day-long ordeal of degrading bondage that allowed defendant to take his time going through her house in search of valuables, without fear that Joanne would interfere. With Joanne bound and gagged, defendant’s search could take place with minimal fear of detection. The violence inflicted before and after Joanne was effectively paralyzed certainly prevented her from summoning help or trying to escape. (See People v. Simmons (2015) 233 Cal.App.4th 1458, 1471–1472.) There was an ample basis from which the jury could conclude that the “scope and nature” of Joanne being tied to a chair by defendant over a 24-hour period and wheeled around her home increased the risk of harm and was far more than an incidental movement that was incidental to robbing her.

FALSE IMPRISONMENT

An accused may not be convicted of an offense and a necessarily included lesser offense. (People v. Lewis (2008) 43 Cal.4th 415, 518.) Because felony false imprisonment is a necessarily included lesser offense of kidnapping (People v. Eid (2014) 59 Cal.4th 650, 657), defendant contends he may not be convicted of both, and thus the false imprisonment charge must be set aside. The principle is well established (e.g., People v. Shadden (2001) 93 Cal.App.4th 164, 171; People v. Ratcliffe (1981) 124 Cal.App.3d 808, 819–821), and the Attorney General agrees. It will be so ordered.

SECTION 654

The remainder of defendant’s contentions involve the alleged non-application of section 654 by the trial court. The relevant language of the cited statute is as follows: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (Pen. Code § 654, subd. (a).)

“It is well settled that section 654 protects against multiple punishment, not multiple conviction. [Citation.] The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the ‘same act or omission.’ [Citation.] However, because the statute is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.] [¶] It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, 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.’ ” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

“ ‘The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ [Citation.] ‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162.)

“A trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.) Implied determinations are ordinarily shown when the trial court does not mention section 654 and imposes separate sentences. (People v. Osband (1996) 13 Cal.4th 622, 730–731; People v. Tarris (2009) 180 Cal.App.4th 612, 626.) This court recently noted that trial courts enjoy broad latitude in making these determinations, and the record is viewed most favorably in support of those determinations. (People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4.) And, we note, at the time of sentencing the trial court made an express—and detailed—finding that defendant had not been truthful in his testimony at trial.

Intimidation and Extortion Counts

Defendant was convicted of count 9, in which it was alleged that “On and between 03/17/2014 and 03/18/2014,” he “did willfully, knowingly, maliciously, and unlawfully prevent or dissuade or attempt to prevent and/or dissuade Joanne [B.], a victim and/or witness of a crime, by means of force or threats of unlawful injury to the person or damage to the property of . . . herself or another from making a report of such victimization to a peace officer, state or local law enforcement officer, probation, parole or correctional officer, prosecuting agency, or judge, in violation of Penal Code section 136.1 (C)(1), a felony.”

Defendant was convicted of count 10, in which it was alleged that “On and between 03/17/2014 and 03/18/2014,” he “did willfully and unlawfully threaten to commit a crime resulting in death or great bodily injury to Joanne [B.] with the specific intent that the statement be taken as a threat and said Joanne [B.] was reasonably in sustained fear of . . . her safety or the safety of . . . her immediate family, in violation of Penal Code section 422, a felony.”

Defendant contends that the sentence imposed on count 10 must be stayed because every threat he made to Joanne “served the single objective of intimidating her into complying with his criminal scheme.” With greater specificity, he asserts that his threats “were all motivated by the singular desire to gain compliance from the victim by inducing fear so that he might complete the crime without incident,” “the crime” apparently being the taking Joanne’s property. He relies on People v. Mendoza (1997) 59 Cal.App.4th 1333.

But Mendoza is immediately distinguishable because it involved a single utterance which, although it was charged and convicted as distinct offenses, would only support sentence for the intimidation count because “the two offenses were based on the same words.” (People v. Mendoza, supra, 59 Cal.App.4th 1333, 1345–1346.) Here, by contrast, the evidence showed a number of statements made during the course of almost an entire day. Defendant’s initial direct threats (e.g., “I could hurt you”; “ ‘[y]ou hurt me so I’m going to hurt you’ ”; “if I didn’t behave myself, he was going to kill me”), coupled with display of the gun and knife, could be viewed as motivated by the intent to compel Joanne to cease her resistance. It was only after Joanne was tied up, had her jewelry stripped off, and had provided her PIN number that defendant, about to leave and try to use that information to get money from Joanne’s debit card, that the threats of retribution come (“he threatened that if I went to the police, he would come back [and] kill me”). Because Joanne’s physical resistance had been overcome, the trial court, as the trier of fact, could conclude that a different intent was at work, defendant now wanting to ensure her silence. Therefore, we conclude that substantial evidence does support the trial court’s implied determination that “ ‘defendant formed a separate intent and objective for each offense’ ” (People v. Coleman, supra, 48 Cal.3d 112, 162), intents that were “not merely incidental to each other” (People v. Harrison, supra, 48 Cal.3d 321, 335).

Extortion and Personal Information Counts

Defendant was convicted of count 14, in which it was alleged that “On or about 03/17/2014,” he “did wilfully and unlawfully extort money or other property from Joanne [B.] by means of force or fear, in violation of Penal Code section 518[,] a felony.”

Defendant was convicted of counts 15, 16, and 17 in which it was alleged that “On or about 03/17/2014” and “03/18/2014,” he “did willfully and unlawfully obtain personal identifying information of another person[,] Joanne [B.], without the authorization of that person, and used that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, or medical information in the name of the other person, without the consent of that person, in violation of Penal Code section 530.5 (A) a felony.”

Defendant contends that “punishment for extortion should have been stayed” because “the acts which formed the basis for the extortion charge were the same acts as those giving rise to the counts alleging dissuading a witness, criminal threats and unauthorized use of identifying information.” Based on the four elements of extortion, defendant reasons: “The first two elements, the act of threatening the victim and the intent to use such threat to obtain the victim’s consent to give up property, were punished in the counts alleging that appellant dissuaded a witness . . . and made criminal threats.” “As to the last two elements, [Joanne] consenting to and giving appellant her property, such acts were punished in counts 15 through 17 for unauthorized use of identifying information . . . . As appellant’s act of obtaining and using [Joanne’s] PIN code was punished in counts 15 through 17, he cannot be punished again for these same acts as extortion.”

Defendant errs in treating the elements of offenses as usable only once. Time can reanimate them. “ ‘ “Under section 654, ‘a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]’ [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his . . . intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]” [Citation.]’ [Citation.]” (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113; see People v. Deegan, supra, 247 Cal.App.4th 532, 542 [“even if a course of conduct is ‘directed to one objective,’ it may ‘give rise to multiple violations and punishment’ if it is ‘divisible in time.’ ”].) This principle is not necessarily qualified by commonalities or overlapping elements of offenses: “Where a defendant is guilty of similar and related crimes committed over a short period of time but nonetheless entertained multiple intents and purposes, sentencing may be imposed on each crime.” (People v. Ibarra (2007) 151 Cal.App.4th 1145, 1153, italics added.)

The preceding discussion showed how Joanne’s ordeal could be segmented as commencing with criminal threats, followed later by threats with the more precise intent of dissuading her from contacting law enforcement. In between are the extortion and obtaining personal information. Extortion requires the use of fear, but wrongfully obtaining another’s personal information does not. Extortion may be by means of acquiring personal information, but the motive for such acquisition is entirely different. The record has substantial evidence from which the trial court could conclude that defendant entertained multiple, and independent, criminal intents. (People v. Harrison, supra, 48 Cal.3d 321, 335; People v. Coleman, supra, 48 Cal.3d 112, 162.)

Burglaries

Defendant was convicted of the six charged counts of burglarizing Joanne’s home. One of those counts was stayed. He does not dispute the videotape evidence showed him entering the victim’s residence at least four times, yet he contends “section 654 . . . prohibits [his] sentences for multiple burglaries committed at the same residence within a short period of time.” In the circumstances of this case, we cannot agree.

“Every person who enters any house, room . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” (Pen. Code, § 459, italics added.) It is not the first entry, or the one which proves most lucrative, that is punished, but every entry. (See People v. Washington (1996) 50 Cal.App.4th 568, 579 [“every entry with the requisite intent supports a separate conviction”].) It is now settled that a person may be convicted of repeatedly burglarizing the same residence. (See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 142, pp. 189–190 and decisions cited.)

Certainly, the trial court was not required to accept defendant’s chronological characterization. Quite the contrary, the court had a more than ample basis for determining that the ordeal of the bound and gagged victim was anything but “short.” It was established that defendant’s first departure was to use Joanne’s debit card to obtain cash. The court could conclude that each of defendant’s subsequent entries had the same larcenous motive. The systematic ransacking of Joanne’s home, and the theft of many items, may be taken as proof of this deduction. It is immaterial whether defendant actually took more of Bettini’s property, because “burglary occurs regardless of whether a theft is accomplished or even attempted.” (People v. Washington, supra, 50 Cal.App.4th 568, 577; In re William S. (1989) 208 Cal.App.3d 313, 318 [“the second entry in this case was inspired by a desire to purloin additional loot”].)

The evidence also showed that Joanne’s peril was not ended once she was tied up: it was when defendant first returned, and found that she had partially freed herself, that Joanne was subjected to more threats and even more severe restriction. And once Joanne had been well and truly immobilized, defendant was free to search for more loot without hindrance and minimal fear of detection. No other reason would explain defendant’s lengthy occupation of the premises. If “[t]he purpose of the burglary laws is to forestall situations that are dangerous to personal safety caused by the unauthorized entry of an intruder into an inhabited dwelling” (People v. Richardson (2004) 117 Cal.App.4th 570, 574), it is hard to see how this purpose is not promoted by punishing a person who ties up a 66-year-old homeowner, and then comes and goes as he pleases. Defendant’s comings and goings certainly afforded him “ ‘ “opportunity to reflect and renew his . . . intent.” ’ ” (People v. DeVaughn, supra, 227 Cal.App.4th 1092, 1113.) The record has substantial evidence from which the trial court could conclude that on each entry into Joanne’s residence, defendant entertained an independent and indivisible intent to steal her property. (People v. Harrison, supra, 48 Cal.3d 321, 335; People v. Coleman, supra, 48 Cal.3d 112, 162.)

DOUBLE JEOPARDY

Defendant’s final contention assumes he “was given . . . multiple sentences for committing a single criminal act,” and from this assumption he asserts a violation of his constitutional right against double jeopardy. The preceding discussion establishes that defendant’s assumption if faulty. The dependent claim of constitutional violation fails accordingly.

DISPOSITION

The conviction for false imprisonment (count 1) is vacated. The judgment of conviction is affirmed in all other respects. The clerk of the trial court is directed to prepare an amended abstract of judgment, and to forward a certified copy to the Department of Corrections and Rehabilitation.

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Richman, J.

We concur:

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Kline, P.J.

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Miller, J.

A146465; P. v. Munguia-Hernandez