P. v. Pierson
Filed 7/29/13 P. v. Pierson 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
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
THE PEOPLE, Plaintiff and Respondent, v. LISA MARIE PIERSON et al., Defendants and Appellants. | D061659 (Super. Ct. No. SCD236309) |
APPEALS
from judgments of the Superior Court
of
County, Albert T. Harutunian III, Judge. Affirmed.
Mazur &
Mazur and Janice R. Mazur, under appointment by the Court of Appeal, for
Defendant and Appellant Pierson.
Cynthia M.
Jones, under appointment by the Court of Appeal, for Defendant and Appellant
Springs.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Andrew
Scott Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
The People charged appellants Lisa Marie Pierson and
Raymond Lavern Springs, Jr., with robbery (count 1) (Pen. Code, § 211);
by means of force likely to produce great bodily injury (count 2) (§ 245, subd.
(a)(l)); vehicle theft (count 3) (Veh. Code, § 10851, subd. (a)); and
§§ 236, 237, subd. (a)). Additionally,
the People charged Springs with rape of an unconscious person (count 5) (§ 261,
subd. (a)(4)) and forcible rape (count 6) (§ 261, subd. (a)(2)).
A jury found Pierson guilty of the
lesser included offense of grand theft
on count 1, not guilty on count 2, and guilty as charged on count 3. The jury was unable to reach a verdict as to
count 4 and as to the lesser included offense of simple assault on count
2. The trial court declared a mistrial
as to those counts, and dismissed the counts in the interest of justice. The same jury found Springs guilty as
charged. The trial court sentenced
Pierson to two years in the custody of the sheriff and sentenced Springs to an
aggregate term of 14 years four months in state
prison.
Appellants claim that the trial court
erred in failing to stay execution of their sentences on count 3 for auto theft
pursuant to section 654, in light of the trial court's imposition of sentences
on count 1 for robbery (Springs) and grand theft (Pierson). Appellants contend that the theft of the
victim's car keys formed the basis of their convictions on count 1 and that
this conduct was incidental to the criminal objective of stealing the victim's
car, which formed the basis of their convictions on count 3. Springs also contends that the trial court
erred in relying on the same aggravating factors in imposing sentences on
various counts, and that the trial court erred in relying on a stayed count
(count 5) in imposing an upper term full strength consecutive sentence on count
6.
We conclude
that section 654 did not require the trial court to stay appellants' sentences
on count 3, that Springs forfeited his claim that the trial court improperly
relied on the same aggravating factors in sentencing him on several different
counts, and that any error that the court committed in relying on a stayed
count in sentencing Springs on count 6 was harmless. We therefore affirm the judgments.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
A.
At trial, the People presented evidence that on August 23, 2011, at approximately 12:30 a.m., the victim, B.K. drove her car to a
liquor store a few blocks from her house.
not have enough money to buy the bottle of vodka that she had intended to
purchase. B.K. saw appellants exiting
the store and asked them for 50 cents.
Springs replied, "Yeah, no problem." B.K. began to walk with appellants, who she
believed were walking to their car.
The group eventually ended up in a
nearby motel room registered to Pierson.
Once inside the room, Danyale Young and Ana Lopez, whom B.K. did not
know, joined the group in the room.
Springs began asking B.K. sexual questions. B.K. said that she was going to leave. Springs forced B.K. back into her chair and
said, " 'You're not leaving.' "
After B.K. continued to ask to be
allowed to leave, Lopez asked for B.K.'s cell phone. When B.K. refused to give her phone to Lopez,
Lopez grabbed the phone from B.K.'s hand.
The group began to demand that B.K. smoke methamphetamine. After B.K. initially refused, Springs and
Lopez asked B.K. if she was a police officer.
B.K. denied that she was a police officer. In response, Springs ordered B.K. to take off
her clothes. Springs then barricaded the
door, "slammed [B.K.] down," and ordered her to "get
naked." B.K. had unfastened her
pants and had started to remove her bra when Springs directed Pierson to rip
B.K.'s bra off of her. Pierson complied. After B.K. was naked, Pierson said, "
'That's messed up, just let her put her clothes back on.' " B.K. was allowed to get dressed.
Shortly thereafter, B.K. went into
the bathroom with Pierson and
Lopez. Once they were
in the bathroom, the women hit B.K. repeatedly in the head. Lopez "socked" B.K., rendering her
unconscious. When B.K. regained
consciousness, Springs and Lopez told B.K. that they needed her car keys and
pried the keys from her hands. Springs
then punched B.K., rendering her unconscious again.
When B.K. regained consciousness,
Springs and B.K. were alone in the bedroom.
B.K. was on the bed and Springs was having sexual intercourse with
her. B.K. "clawed" at Springs,
who pulled her up by the hair and said, "Bitch, shut up." Springs then threw her back onto the bed and
continued to rape her. After Springs
finished raping B.K., he left the room.
Shortly thereafter, Springs, Pierson, Lopez and Young left the scene in
B.K.'s car.
title="">[4]
B.
1. Pierson
At Pierson's sentencing hearing,
the trial court discussed with the prosecutor whether section 654 applied with
respect to counts 1 and 3, as follows:
"The court: What was the basis for [count 1],
taking the phone and keys, or was it a phone and wallet?
"[The prosecutor]: It's the phone and keys. [The victim] didn't have a wallet.
"The court: So does the fact that it was in part [
the theft of the car? The jury wasn't asked to provide any distinction as to
what the basis for the theft of the person was.
So they didn't delineate that it was strictly the phone. And so, I guess, if it was potentially both,
is there a 654 issue for a theft that includes theft of keys and then a
separate charge for taking the vehicle [with] the keys?
"[The prosecutor]: It is a strong argument. It
seems that there would be. [The jury]
didn't specifically clarify whether they came back on the phone or the
keys. I don't believe it was necessary
for them to find her guilty of that count."
After this exchange, the court
stated that it would impose the midterm of two years on count 1. In imposing sentence on count 3, the court
rejected the application of section 654, as follows:
"[T]he court will run count three concurrent. I'm not sure, as a matter of law, that count
three would be 654 barred as to [count 1], because count one did involve a phone,
which I think is a different kind of theft than taking a vehicle. But I'm satisfied that even if it was not
654, concurrent sentencing would be appropriate, considering all relevant
circumstances, including that I don't believe that the defendant had a prior
prison term."
The court ultimately sentenced
Pierson to two years in the custody of the sheriff, comprised of the middle
term of two years on count 1, plus a two-year sentence on count 3, to be served
concurrently with the sentence on count 1.
2. Springs
At a separate sentencing hearing
for Springs, the following colloquy occurred pertaining to the potential
application of section 654 as to count 3:
"The court: Are you saying it's 654 barred?
"[Defense counsel]: I would, yes, your honor. The reason
being is that we believe it's covered by the robbery.
"The court: Okay. And so I wanted to find out, what
is the People's position as to what is or isn't 654 barred?
"[The prosecutor]: Your honor, the People's
position is that count 3 would not be.
That is a separate and distinct crime from the robbery. The robbery [was of] the keys and the cell
phone. And there were separate instances
of her being hit that were separate and apart from the force used for the
robbery. It's the People's position that
count 3 would not be 654 or subsumed by the robbery because the keys and the
vehicle were two separate and distinct acts."
After
discussing another sentencing issue, the court and counsel returned to the
subject of whether section 654 applied to count 3:
"The court: What's your response to the argument
that if the robbery was of car keys, then when someone steals somebody's car
keys and then drives off in the car, that's part and parcel of the same
offense?
"[The prosecutor]: Well, they could have stolen her
keys and not actually physically gone and gotten in her car. And given that the keys were stolen early in
the evening, there [were three] hours where she was with four of these
defendants. The keys were taken relatively soon. The vehicle was not stolen until the very end
of the evening after she was raped and Mr. Springs decided that they had to all
get out of there. It was at that point
that Young and Lopez went and took her vehicle, which was not close in time to
the stealing of the keys. And I think
that because this was over a [three-]hour period, each crime was committed at
different times in that evening. I think
[defense counsel's] argument would be stronger if this all happened in 30
minutes, but it didn't.
"[Defense counsel]: May I respond to that briefly,
your honor?
"The court: Okay.
"[Defense counsel]: With regards to the robbery of
the keys, what's the purpose of robbing someone of their car keys? There's really nothing of value on a key
chain aside from the fact that it leads to other things, to a person's car, to
open a safe. That's what a key chain is
for. It's access. And eventually that access was used. The car could not have been stolen but for
the robbery initially of the keys.
"[The prosecutor]: There were also two things
stolen from her person, her cell phone and her keys."
After permitting the People and defense counsel to
"make any argument you want as to sentencing," the court sentenced
Springs. As to count 1, the court
selected the upper term of five years.
In explaining its reasons for selecting the upper term, the court
stated:
"The court does believe that there are aggravating
factors—let me
back up and say that on an overall basis of this case,
as the court
views the case, as the court heard the evidence that was
presented during trial, that this case involved a
vulnerable victim
that was brutally beaten and raped.
"The defendant, I think, seeks to minimize his
responsibility and involvement. I think
that the evidence in the case establishes that the defendant was the primary
wrongdoer in this whole scenario, that he was orchestrating what was going on .
. . .
"[¶] . . . [¶]
"On count 1, the court does believe the upper term
is appropriate.
I believe there are aggravating factors that justify
selecting the
upper term including that the victim was vulnerable,
that the
defendant's convictions have become increasing—of
increasing
seriousness, that he has served prior prison terms, that
he was on
probation when this crime was committed, that this
offense
occurred in a situation where the victim was basically
being
abused and terrorized over an extended period of
time. And so I
think the upper term is fully supported here."
The court also imposed an upper
term of four years on count 2 (assault by means of force likely to produce
great bodily injury), but stayed execution of that sentence pursuant to section
654. The court stated, "I selected
the upper term of [four] years for the same reasons I just indicated why."
With respect to count 3 (auto theft),
the court found that section 654 did not apply, reasoning:
"Count 1 includes theft of a cell phone. If count 1 were purely a theft of keys, I
might agree that there would be a 654 bar.
But I think count 1 includes theft of a cell phone. And the later taking of the vehicle hours
later and driving away with it I think is not subsumed within a [robbery] of .
. . multiple items which included keys.
I don't think that defendant can steal a number of things from someone
and then not be responsible for hours later driving away in the person's
vehicle."
After determining that section 654
did not apply, the court sentenced Springs to a consecutive term of eight
months in prison on count 3 (one-third the two-year midterm). With respect to its decision to impose a
consecutive sentence, the court stated:
"I do believe that a consecutive sentence is
appropriate. And so I disagree with
probation's . . . recommendation . . . that the defendant
is adequately sentenced with other counts . . . . I think this is an extremely serious
case."
The court also imposed a
consecutive term of eight months in prison on count 4 (false imprisonment by
menace) (one-third the two-year midterm), noting that "[the victim] was
forced by the conduct of the defendant and co-defendants to remain against her
will for hours in a motel room, and there was a robbery that took place in the
course of a few minutes . . . ."
The court stayed execution of an
upper term eight-year sentence on count 5 (rape of an unconscious person) in
light of the court's imposition of a full strength consecutive eight-year upper
term sentence on count 6 (forcible rape).
In stating its reasons for providing aggravated sentences on counts 5
and 6, the court referred to the aggravating factors that it had cited in
connection with count 1. The court
sentenced Springs to a total term of 14 years four months in prison.
III.
DISCUSSION
A. The
trial court was not required to stay appellants' sentences on count 3 pursuant
section 654
Appellants contend that the trial
court was required to stay their sentences on count 3 for auto theft because
the theft of the victim's car keys, which appellants contend served as the
basis for their convictions on count 1, was incidental to the criminal
objective of the auto theft.
name="_ftnref5" title="">[5]
1.
Governing law and standard of review
Section 654 provides in relevant
part: "(a) An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. An acquittal or conviction and sentence under
any one bars a prosecution for the same act or omission under any other."
prohibits multiple punishment where a single criminal act or omission violates
more than one penal statute. This
statutory prohibition has been extended to cases in which the defendant engages
in an indivisible course of conduct with a single objective, violating several
different penal statutes in the process.
(See Neal v. State of California (1960) 55 Cal.2d 11, 19.) "If all of the crimes were merely
incidental to, or were the means of accomplishing or facilitating one
objective, a defendant may be punished only once. [Citation.]
If, however, a defendant had several 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.
[Citation.]" (People v.
Perry (2007) 154 Cal.App.4th 1521, 1525.)
" 'The
determination of whether there was more than one objective is a factual
determination, which will not be reversed on appeal unless unsupported by the
evidence presented at trial.'
[Citations.] '[T]he law gives the
trial court broad latitude in making this determination.' [Citation.]" (People
v. Wynn (2010) 184 Cal.App.4th 1210, 1215.)
The question of whether the trial
court erred in failing to stay execution of a sentence under section
654 is not waived on appeal by the failure to raise it in
the trial court. (People v. Bui (2011) 192 Cal.App.4th 1002, 1013.)
2.
Application
Appellants'
claims are based primarily on their contention that the theft of the victim's
car keys served as the basis for their convictions on count 1. Pierson contends, "[t]he inescapable
inference from the record is that the jury's guilty findings on the theft
charges against Springs and Pierson [in count 1] were based on theft of the car
keys." Similarly, Springs argues
his robbery conviction in count 1 "must . . . have been based on the
[taking of the car] keys."
In support of this contention,
appellants note that during deliberations, the jury asked the court whether a
perpetrator could be convicted of robbery and at the same time, an aider and
abettor be convicted of a lesser offense of theft, and that the court informed
the jury that this would be a permissible verdict. The appellants further observe that with
respect to count 1, the jury found Springs guilty of robbery and found Pierson
guilty of the lesser included offense of grand theft. Appellants also note that that while the
victim testified that Springs and Lopez pried her car keys out of her hands,
there was no evidence that Springs directly took the cell phone. Appellants contend that this evidence, when
considered in connection with the jury's questions and their verdicts,
demonstrates that the jury found that Springs was the direct perpetrator of the
robbery based on his taking of the victim's car keys, and that Pierson aided
and abetted the lesser offense of theft.
We are not persuaded.
To begin
with, the jury's question was just that, a question. To conclude that the jury must have based its
verdict on the theory of criminal liability posited in its question turns the
jury's question into a
one possible theory of liability that the jury considered was that the direct
perpetrator of count 1 was guilty of robbery and that the aider and abettor was
guilty of a lesser crime. The jury's
question does not establish that the jury ultimately based its verdict on such
a theory.
We also reject appellants'
contention that the jury's verdicts on count 1 finding Springs guilty of
robbery and Pierson guilty of the lesser included offense of theft demonstrates
that these convictions are based on the taking of the victim's car keys. Appellants reason that the jury would have
found Springs and Pierson guilty of the same
offense if the jury had based its conviction on count 1 on the taking of the
victim's phone, because there was no evidence that either Springs or Pierson
directly took the phone from the victim.
This argument fails because there was other evidence from which the jury
could have reasonably found that Springs aided and abetted a
Pierson aided and abetted a theft of
the phone.
B.K. testified that Springs
repeatedly used violence against her throughout the evening (e.g.
"slamm[ing] her down" while ordering her to take off her clothes,
punching her until she was conscious, and pulling her by her hair while raping
her). She also testified that Springs
was the primary driving force in the commission of the bulk of the crimes
committed against her. For example,
Springs barricaded the door to the motel room at the beginning of the
encounter, directed Pierson to rip off B.K.'s bra, and raped the victim.
urged Springs to permit B.K. to put her clothes back on after Springs had
ordered her to get naked, and that Pierson had hit her only "a couple of
times" during the evening. Based on
this evidence, the jury could have reasonably found beyond a reasonable doubt
that Springs had used violence in committing crimes against the victim, while
having a reasonable doubt whether Pierson was willing to do so. Further, Pierson's contention that "the
unrefuted evidence established that [Springs and Pierson] had exactly the same
level of culpability with respect to the phone" is not accurate. The People presented evidence that Springs
had the victim's phone number stored in the memory of his cell phone. In light of this evidence, the jury could
have reasonably found that Springs intended to assist in the taking of the
phone by force or fear, while Pierson intended only to assist in the theft of
the phone. Accordingly, we reject
appellants' argument that the theft of the victim's car keys necessarily served
as the basis for their convictions on count 1, and that the trial court was
therefore required to stay their sentences on count 3 for auto theft pursuant
to section 654.
title="">[7]
We also
reject appellants' contention that their sentences on count 3 must be stayed
pursuant to section 654 because any "ambiguity in the jury verdict
result[ed] solely from the manner in which the prosecutor presented its
case." (Citing Downs v. State of
California (1962) 202 Cal.App.2d 609 (Downs).) In
demonstrated that the defendant and an accomplice entered a building to steal
from a safe and that once inside the building, the defendants encountered two
janitors whom they restrained while they completed the theft. (Id. at p. 611.) The defendant contended that section 654
precluded the trial court from executing a sentence for both the robbery and
the burglary. (Downs, supra, at p.
611.) In arguing against the application
of section 654, the State argued that because the burglary was based on an
allegation of theft, the jury could have decided that the burglary was
complete before the defendants encountered the janitors, and thus, there was
substantial evidence to support a finding that the defendant's intent to commit
a robbery was separate from his
intent to commit a burglary. (
applied because there was a lack of substantial evidence that the defendant
harbored two separate objectives. In
reaching this conclusion, the court reasoned:
"Here, we think, however, the record does compel a
conclusion the plan was preconceived as to the robbery. Regardless of the wording of the information,
petitioner entered the telephone company building with the single purpose to
rifle its safe, hoping, no doubt, that this could be accomplished without
interference, but prepared for that event by carrying a gun which he intended
to and did threateningly use to consummate the crime. To urge that these guntoting miscreants had
limited their original object to safecracking only, upon the unlikely assumption
that nightly janitorial service was not performed in the telephone company
building is unrealistic and unsupported by the record. The information, had it been worded with
strict accuracy, would have accused petitioner of entering with intent to commit
either theft or robbery as might become necessary. [¶]
of conduct is divisible or indivisible cannot be made to depend upon astuteness
of the district attorney in drafting an information." (
where the evidence establishes that a defendant harbors a single objective in committing two crimes, section 654 applies
notwithstanding artful pleading by the prosecutor. However, in this case, there is substantial
evidence that the defendants held separate
objectives in taking the victim's phone (count 1)
circumstances. Accordingly, we reject appellants'
contention that section 654 applies in light of a purported
"ambiguity" in the verdicts resulting from the fact that appellants'
convictions on count 1 could have arisen from either of two discrete alleged
criminal acts—the theft of the victim's phone or the theft of her car keys.
Accordingly, we conclude that the
trial court was not required to stay appellants' sentences on count 3 pursuant
to section 654.
B.
trial court erred in relying on the same
aggravating factors in imposing
sentences on various counts
Springs claims that the trial court
erred in relying on the same aggravating factors in sentencing him to the upper
term on counts 1, 2, and 5, imposing consecutive sentences on counts 3 and 4,
and imposing a full strength consecutive upper term sentence on count 6. The People contend that Springs forfeited
this claim by failing to raise it in the trial court.
In People
v. Scott (1994) 9 Cal.4th 331 (Scott), the Supreme Court held that
"the waiver doctrine should apply to claims involving the trial court's
failure to properly make or articulate its discretionary sentencing
choices." (Id. at p. 353.)
court explained, "Included in this category are cases in which the stated
reasons allegedly do not apply to the particular case, and cases in which the
court purportedly erred because it doubled-counted
a particular sentencing factor, misweighed the various factors, or failed
to state any reasons or give a sufficient number of valid reasons." (Ibid., italics added.)
Springs did
not object in the trial court to the trial court's use of the same aggravating
factors in sentencing him on various counts.
Accordingly, Springs has forfeited this contention. We reject Springs's claim that the forfeiture
rule does not apply because the trial court purportedly was "fully
apprised of [his] argument for imposition of the lower term, concurrent
sentencing, and applying section 1170.1 [to] the forcible rape count." On the contrary, Springs failed to apprise
the trial court of the dual-use objection that he seeks to raise on
appeal. The fact that Springs raised
sentence in the trial court does not permit him to raise a new argument in support of a lesser sentence for the first time on
appeal.
C. Any error that the trial
court committed in relying on a stayed count in sentencing
Springs on count 6 is
harmless
Springs contends
that the trial court erred in relying on the facts underlying count 5
(rape of an unconscious person) for which the court stayed execution of
sentence pursuant to section 654, in imposing a full strength consecutive upper
term sentence on count 6 (forcible rape).
We conclude that any error was harmless.
1.
Factual and procedural background
The
trial court stayed execution of the sentence on count 5 pursuant to section
654, reasoning in part as follows, "[W]hen an individual begins raping an
unconscious person and that person regains consciousness, [] that is a
continuous course of conduct . . . and [] it's all the same intention of raping
someone." With respect to count 6,
the court imposed sentence as follows:
"On count 6, the court believes it has the
discretion to impose a consecutive or a concurrent term. The court chooses to select a full strength
consecutive. I think it is for
and also the fact that this is a situation which includes rape of an
unconsciousness person and continuing rape of a conscious person. I think that is an aggravating
circumstance. And so the court does
select the upper term of 8 years and it is full strength
consecutive." (Italics added.)
Through the italicized
language in the preceding quotation, the trial incorporated by reference its
statement of six aggravating factors supporting the imposition of an upper term
on count 1. (See pt. II.B.2,
2. Governing
law
" 'When a trial court has
given both proper and improper reasons for a sentence choice, a reviewing court
will set aside the sentence only if it is
court would have chosen a lesser sentence had it known
that some of its reasons were improper.'
[Citation.]" (People v.
Cruz (1995) 38 Cal.App.4th 427, 433-434.)
3.
We assume for purposes of this
opinion that the trial court erred in relying on the facts underlying count 5
in imposing Springs's sentence on count 6.
However, as Springs acknowledges in his brief, the trial court also
relied on six additional aggravating factors, and with respect to "every
sentencing decision the court made, it imposed the aggravated
sentence." Further, it is clear
from the trial court's statements at sentencing that the court would have found
additional aggravating factors in
imposing sentence on count 6 if defense counsel had contended that the court
had failed to state sufficient aggravating factors. For example, in denying probation, the court
stated that even assuming that Springs were eligible for probation, "The
court would not find him suitable for probation because of his extremely poor
performance on probation and parole . . . ." In light of these statements, we have no
doubt that the court would have concluded that Springs's "prior
performance on probation or parole was unsatisfactory" (Cal. Rules of
Court, rule 4.421(b)(5)) to support an aggravated term on count 6 if
court's stated reasons for imposing such a term.
In addition, the trial court's
statements at sentencing indicate that the trial court viewed Springs as having
committed a series of aggravated crimes.
As the trial court expressly stated in departing upward from the
probation officer's recommended sentence, "I think this is an extremely
serious case." Even assuming that
the trial court erred in the manner by which it articulated its reasons for
imposing an aggravated sentence on count 6, "Based on the trial
court's statements at sentencing . . . we conclude it is
not reasonably probable it would
have imposed any lesser sentence . . . ." (People
v. Ortiz (2012) 208 Cal.App.4th 1354, 1373-1374 [concluding that
resentencing was not required because if defense counsel had timely objected to
alleged improper reasons for imposing the upper term, "the trial court
could have, and
cited one or more of . . . five [other aggravating] factors as support for its
decision to impose [an aggravated sentence]"].)
Accordingly,
we conclude that any error that the trial court committed in relying on a stayed
count in sentencing Springs on count 6 is harmless.
IV.
DISPOSITION
The judgments are affirmed.
AARON, J.
WE CONCUR:
NARES,
Acting P. J.
HALLER,
J.
name="_ftn1" title="">[1] Unless
otherwise specified, all subsequent statutory references are to the Penal Code.
name="_ftn2" title="">[2] In
her opening brief, Pierson raised a claim pertaining to the calculation of
presentence credits. However, Pierson
filed a notice of abandonment as to that claim, stating that the trial court
had corrected the asserted error during the pendency of this appeal.
