P. v. Song

 

 

 

 

 

 

 

 

 

 

 

 

Filed 6/13/13  P. v. Song CA2/5

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   DEQIANG SONG,               Defendant and Appellant.

B241253         (Los Angeles County       Super. Ct. No. GA081110)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Candace J. Beason, Judge.  Affirmed as modified, remanded with
directions.

            Janet J.
Gray, 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, James William Bilderback II and
Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

 

 

 

 

 

 

I.  INTRODUCTION

 

            A jury
convicted defendant, Deqiang Song, of kidnapping for ransom and willful,
deliberate, premeditated attempted murder in counts 1 and 2 respectively.  (Pen. Code,href="#_ftn1" name="_ftnref1" title="">^[1] §§  209,
subd. (a), 664, 187, subd. (a).)  The
jury found that in the commission of the kidnapping for ransom, defendant:  caused the victim, Ling S., to suffer bodily
harm; intentionally confined her in a way that created a substantial risk of
death; and personally used a deadly and dangerous weapon, a knife.  (§§ 
209, subd. (a), 12022, subd. (b)(1).) 
The jury further found that in the commission of the attempted murder,
defendant personally used a knife and inflicted great bodily href="http://www.sandiegohealthdirectory.com/">injury.  (§§ 12022, subd. (b)(1), 12022.7, subd.
(a).)  Defendant was sentenced to an
indeterminate term of life without the possibility of parole on count 1.  Defendant was consecutively sentenced to an
indeterminate life term and a determinate four-year term on count 2.  We modify the judgment as to assessments and
presentence custody credit.  We remand in
order for the trial court to impose or strike the personal knife use
enhancement (§ 12022, subd. (b)(1)) as to count 1.  We affirm the judgment in all other respects.

 

II.  THE EVIDENCE

 

            Defendant
and Ling met through a mutual friend. 
They had seen each other socially about three times prior to September 8, 2010.  Ling considered defendant a friend.  On September
8, 2010, defendant took Ling to the Arcadia Mall in Santa
Anita.  Defendant waited in his sport
utility vehicle while Ling shopped.  Ling
purchased a white tank top at Wet Seal. 
When Ling returned, defendant asked her to ride to San
Gabriel with him. 
Defendant purportedly intended to pick up a friend.  Ling agreed. 
After about an hour’s drive, Ling began to feel tired and uncomfortable.
 She had pain in her lower back.  She testified, “I asked him how much longer
is it going to be, because it’s been quite some time, and I really wanted to go
home.”  Defendant told her they would be
there soon.  Defendant drove a total of
77 miles until they reached a remote desert area.  Defendant stopped his sport utility vehicle,
went to the back and opened the rear hatch. 
He came around to the passenger side, opened the passenger door and
placed a knife with a seven to eight-inch blade against Ling’s throat.  He bound her wrists and ankles with clear
tape.  He told her to move to the back
seat.  Defendant sat down next to Ling.  He took her cellular telephone from her purse
and used it to call her father. 
Defendant told Ling, “I’m calling your Dad because I want some
money.”  When Ling’s father answered,
defendant told him:  “Your daughter is
with me.  . . .  If you want[] her back, you need to give me
$100,000.”  Ling’s father said:  “Don’t you kill her.  I’ll pay you.” 

            Ling’s
father asked to hear his daughter’s voice. 
Defendant placed the telephone to Ling’s ear.  Ling told her father, “Dad, don’t give him
money.”  Defendant hung up.  He appeared to be frustrated and
annoyed.  He told Ling, “You talk too
much.”  Defendant moved to the front
seat.  Ling asked defendant to take her
home.  She promised not to tell the
police.  She told defendant: “You picked
the wrong person.  I don’t have
money.  Our family doesn’t have
money.”  Defendant was very angry.  He turned around and slapped Ling.  Defendant returned to the rear seat and sat
next to Ling.  Defendant said, “I’ll ask
you the last time, do you have money or not?” 
Ling said, “No.”  Defendant said,
“If your family doesn’t have money, then I’ll kill you.”  Defendant told Ling to turn around, to turn
her back to him.  He took a piece of rope
from a compartment next to the car door. 
He strangled Ling with the rope until she was unconscious.  While Ling was unconscious, defendant beat
her about the face, slit her throat with a knife, and dragged her 40 to 50 feet
into some bushes.   

            When Ling
regained consciousness, she was lying on the ground.  Defendant and his sport utility vehicle were
gone.  Ling could not open her left eye.  She was bleeding from an open slit on her
neck.  Ling’s shoes and purse were
missing.  But the tape that had bound her
wrists and ankles had been removed.  It
was starting to get dark.  Ling saw
lights in the distance.  She struggled to
her feet and slowly walked toward the light. 
Shoeless, she walked between one-quarter and one-half of a mile.  When she reached a residence, she yelled for
help.  She lay on the ground by the front
gate and repeatedly called for help. 
Finally, someone came to Ling’s aid.

            Ling’s eyes
were swollen and her face was bruised. 
There was a serious wound on her neck. 
There was blood everywhere.  She
was slipping in and out of consciousness. 
She was transported by helicopter to the Antelope Valley Hospital where
she underwent emergency surgery.  More
than 20 stitches were required to close the slash wound to her neck.  The knife missed Ling’s carotid artery by a
quarter of an inch.  Had that artery been
cut, Ling probably would have bled to death. 
The surgeon, Dr. Pavel Petrik, described Ling’s other injuries, “She had
obvious beating injuries to the eyes and some bleeding underneath . . . .”   She had been bleeding in the white parts of
her eyes.

            Ling
remained hospitalized for several days. 
The whites of her eyes stayed red for two to three months after the
attack.  The trial court described the
scar on Ling’s neck, “There appears to be a red, thin line below . . . where an
Adam’s apple would be, and it’s from the left side to the right side in a sort
of a wide U-shape.”

            After
leaving Ling to die in the desert, defendant continued to telephone her
father.  Meanwhile, her father notified
the police.  During telephone calls
monitored by law enforcement officers, Ling’s father said he had only $10,000
in savings.  Defendant agreed to accept
that amount.  Defendant instructed Ling’s
father to bring the money to a supermarket parking lot.  Ling’s father was instructed to place the
money underneath his car, and then to walk away.  The police gave Ling’s father fake money in a
paper bag and began watching the parking lot. 
Defendant was arrested immediately after retrieving the money from
beneath Ling’s father’s car.  Defendant’s
sport utility vehicle was parked nearby. 
It was covered by a fine layer of dirt. 
His fingerprints were on the bottom of the rear hatch.

            While still
hospitalized, Ling identified defendant in a photographic lineup.  Sheriff’s deputies searched defendant’s sport
utility vehicle and residence.  In
defendant’s sport utility vehicle, they found Ling’s cellular telephone,
driver’s license and credit cards.  They
also found latex gloves, paperwork in defendant’s name, Ling’s receipt from Wet
Seal, a machete and a knife with an 8-inch blade.  The knives did not have any blood on
them.  In defendant’s bedroom, officers
found a Coleman cooler with Ling’s purse resting on top.  The contents of the cooler included a bloody
knife, latex gloves, clear tape, and a Wet Seal bag containing a white
shirt.  Also, there was a bloody white
cord in the cooler.  Defendant’s
fingerprints were on several of the items in the Coleman cooler.  Ling’s blood was on the knife. 

            Deputy
Mario Cortez investigated the area where Ling was attacked.  He found tire tracks on a dirt road.  The tire tracks ended abruptly.  In the area where the tire tracks terminated,
Deputy Cortez found two sections of red-stained rope, and two silver
sandals.  There was a 40 to 50-foot drag
mark leading away from where the tire tracks ended.  There was a red stain on the ground that
appeared to be blood.  The red stain was
somewhere before the drag mark ended.  No
defense witnesses testified.

 

III.  DISCUSSION

 

A.  The Motion To Amend The Amended Information

 

            The
information was filed on March 22, 2011. 
On October 27, 2011, the prosecutor filed an amended information.  During her jury argument, the prosecutor
orally moved to amend the October 27, 2011 amended information.  The prosecutor moved to amend the amended
information to include bodily harm and confinement allegations.  Defense counsel objected.  The amended information was never actually
modified in writing.  The jury was
instructed on the necessity of returning bodily harm and confinement
findings.  The count 1 aggravated
kidnapping written verdict form includes bodily injury and confinement
findings.  The jury found the bodily harm
and confinement allegations to be true. 

Defendant argues that amendment to
the amended information was improper. 
Section 209, subdivision (a) defines the crime of kidnapping for ransom
and sets forth two degrees of punishment. 
When the victim “suffers death or bodily harm” or is intentionally
confined in a manner so there is a substantial likelihood of death, the
punishment is life without parole.  When
the victim does not so suffer or is not so
confined, the punishment is life with the possibility of parole.  (§ 209, subd. (a); People v. Centers (1999) 73 Cal.App.4th 84, 91; see >People v. Williams (1980) 101 Cal.App.3d
711, 723, fn. 2.)  The amended
information did not allege that Ling suffered bodily harm or was intentionally
confined in a manner exposing her to a substantial likelihood of death.  During closing argument, as noted, the trial
court allowed the prosecutor to amend the amended information to so
allege.  Defense counsel objected on due
process grounds.  The trial court
observed that the additional allegations had been discussed previously, before
jury selection and during jury instruction discussions.  The trial court inquired whether the
amendment would result in a change in defense strategy.  Defense counsel conceded that it would
not.  The jury found true the bodily harm
and substantial likelihood of death allegations.

            On appeal,
defendant argues the amendment violated his constitutional due process
rights.  He further asserts the trial
court abused its discretion under section 1009, governing amendments to
accusatory pleadings.  (See >People v. Miralrio (2008) 167
Cal.App.4th 448, 458 [review of a decision under section 1009 is for an abuse
of discretion]; People v. Bolden (1996)
44 Cal.App.4th 707, 716 [same].)  These
arguments are without merit.  No
amendment was necessary.  And there is no
showing of prejudice to defendant.

         In
People v. Britton (1936) 6 Cal.2d 1,
2, the defendants were charged with and convicted of kidnapping for the purpose
of robbery in violation of section 209. 
When Britton was decided, the
applicable version of section 209 (Stats. 1933, ch. 1025, § 1, pp. 2617-2618)
provided, “‘Every person who seizes, confines, inveigles, entices,
decoys, abducts, conceals, kidnaps or carries away any individual by any means
whatsoever with intent to hold or detain, or who holds or detains, such
individual for ransom, reward or to commit extortion or robbery or to exact
from relatives or friends of such person any money or valuable thing, or who
aids or abets any such act, is guilty of a felony and upon conviction thereof
shall suffer death or shall be punished by imprisonment in the state prison for
life without possibility of parole, at the discretion of the jury trying the
same, in cases in which the person or persons subjected to such kidnap[p]ing
suffers or suffer bodily harm or
shall be punished by imprisonment in the state prison for life with possibility
of parole in cases where such person or persons do not suffer >bodily harm.’”  (People
v. Britton, supra, 6 Cal.2d at pp. 2-3, italics added.)  In 1982, section 209, subdivision (a) was
amended to extend the life without parole penalty to cases where the victim is
“intentionally confined” in a manner which exposes him or her to a substantial
likelihood of death.  (Stats. 1982, ch.
4, § 1, pp. 4-5.)

In Britton the defendants were sentenced to life without the
possibility of parole.  On appeal, a
defendant argued the trial court had no authority to impose sentence >without the possibility of parole
because the indictment contained no allegation the victim suffered bodily
harm.  (People v. Britton, supra, 6 Cal.2d. at p. 4.)  Our Supreme
Court held the sentence was warranted under the indictment and evidence.  (Id. at
p. 6.)  Our Supreme Court explained:  “Section 209 of the Penal Code, for the
purpose of this case, defines but one criminal act or offense, viz.,
kidnap[p]ing for purpose of robbery, for which any one of several punishments
may be imposed, depending entirely upon the circumstances surrounding its
commission.  A charge in the language of
the statute that the accused had kidnap[p]ed his victim for the purpose of
robbery in violation of the statute apprises the accused of what he will be
expected to meet and of the several punishments prescribed therefor, any one of
which, upon conviction, may be imposed upon him.  The indictment here involved charged the
offense in the language of the statute and referred thereto.  [¶]  It
is well settled in this state that an indictment or information need not allege
the particular mode or means employed in the commission of an offense, except
when of the essence thereof. (14 Cal. Jur. 55, sec. 41, and authorities there
cited.)  In other words, particulars as
to manner, means, place or circumstances need not in general be added to the statutory
definition.  (People v. Giacamella [(1886)] 71 Cal. 48, 49; People v.
Russell [(1889)] 81 Cal.
616, 617.)  The indictment or information
need only charge the essential elements of the statutory offense.  It then fairly apprises the defendant of what
he is to meet at the trial.  [¶]  So far as the present case is concerned, the
essence of the offense denounced in section 209 as a felony is the seizing,
confining, kidnap[p]ing, etc., of the victim for the purpose of robbery.  If upon the trial of such offense, or upon
plea of guilty, it develops that the victim suffered bodily harm, the jury or
the court, as the case may be, may in its discretion fix the punishment at
death or life imprisonment without possibility of parole or, should the victim
not have suffered bodily harm, life imprisonment with possibility of parole is
prescribed as punishment.”  (>People v. Britton, supra, 6 Cal.2d at
pp. 4-5; People v. Holt (1949)
93 Cal.App.2d 473, 476; People v. Haley (1941)
46 Cal.App.2d 618, 624-625; 17A Cal.Jur.3d Criminal Law: Crimes Against the Person,
§ 339.)

            >People v. Holt, supra, 93 Cal.App.2d at
page 476 is to the same effect. 
Following guilty pleas to kidnapping for robbery, the trial court took
testimony from a kidnapping victim and found he suffered bodily harm.  The defendants were sentenced to life without
the possibility of parole.  On appeal,
the defendants sought reversal of their sentences on grounds the information
did not allege the victim suffered bodily harm. 
(Ibid.)  The Court of Appeal, citing >Britton, held:  “It is now established
law in this state that an indictment or information need only charge the
essential elements of the statutory offense. 
When this is done the accused is fairly apprised of what he is called
upon to meet at the trial.  Except when the particular mode or means
employed in the commission of a crime are of the essence thereof, they need not
be alleged.  The essence of the offense denounced by
section 209 of the Penal Code as a felony is the seizing, confining,
kidnapping, etc., of the victim.  Where,
as in the case now before us, it developed upon the plea of guilty that the
victim suffered bodily harm the court was justified in the exercise of its
discretion to fix the penalty at life imprisonment without possibility of
parole.  In the instant case the information
charged the offense in the language of the statute.  This was sufficient not only to inform
appellants of the charge they were expected to meet but also, of the several
punishments prescribed therefor, any one of which, upon conviction or plea of guilty,
might be imposed upon them, depending upon the circumstances surrounding the
commission of the offense [citations].” 
(Ibid.)

            And
in People v. Haley, supra, 46
Cal.App.2d at pages 624-625, the Court of Appeal for the Third Appellate
District also followed Britton.  “The defendant was not prejudiced by the
amendment of three counts of the indictment by adding to each of them the
statement that the kidnapped persons ‘suffered bodily harm’ incident to the
commission of the crimes charged.  (>People v. Britton, [supra,] 6 Cal.2d 1.)  The
amendments were made by leave of court, without resubmitting the indictment to
the grand jury.  It is true an indictment
may not be amended in that manner so as to ‘change the offense charges.’  (Sec. 1008, Penal Code.)  The addition of the language mentioned did
not change the offense charged.  It
merely supplied the statement of facts which may be considered by the jury in
determining the penalty for the crime as provided by section 209 of the Penal
Code.  The Britton case declares that the section last mentioned defines but
one criminal offense.  These challenged
counts of the indictment charged the defendant with kidnapping named
individuals with the intention of holding or detaining them for the purpose of
robbery.  That offense is not changed by
adding the statement that the victims suffered bodily harm in the commission of
the crimes.  The allegation with relation
to bodily harm is not an essential element of the crime of kidnapping.  The changes in the present indictment in that
regard were therefore harmless.”  (>People v. Haley, supra, 46 Cal.App.2d at
pp. 624-625.)

         Here, the amended information charges
defendant with the essential elements of kidnapping for ransom in the language
of section 209, subdivision (a).  It
alleges, “On or about September 8, 2010, in the County of Los Angeles, the
crime of KIDNAPPING FOR RANSOM, in violation of PENAL CODE SECTION 209(a), a
Felony, was committed by DEQIANG SONG, who did unlawfully seize, confine,
inveigle, entice, decoy, abduct, conceal, kidnap, and carry away LING S. with
the intent to hold and detain, and who did hold and detain, the said LING S.
for ransom, reward, extortion, and to exact from relatives and friends of said
LING S. money and other valuable things, to wit, MONEY.”  The amended information thus apprised
defendant of what he would be expected to meet at trial.  When it developed at trial that Ling suffered
bodily harm and was intentionally confined in a manner exposing her to a
substantial likelihood of death, the jury could so find.  Those findings affected the penalty imposed;
they did not change the nature of the offense charged.  (People
v. Haley, supra, 46 Cal.App.2d at p. 624.) 
There was no violation of defendant’s due process rights or abuse of
discretion under section 1009.  (>People v. Britton, supra, 6 Cal.2d at
pp. 4-5; People v. Holt, supra, 93
Cal.App.2d at p. 476; People v. Haley,
supra, 46 Cal.App.2d at pp. 624-625.)

            Further,
there is no showing of prejudice.  As we
have held:  “[I]t does not constitute a
denial of due process to permit amendment of an information during trial if the
amendment does not change the nature of the offense charged nor prejudice the
defendant’s rights.  [Citation.]”  (People
v. Garringer (1975) 48 Cal.App.3d 827, 833; accord, People v. Haley, supra, 46 Cal.App.2d at p. 625 [amendment to
allege victim suffered bodily harm did not change offense and was therefore
harmless]; see People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1580-1581
[“A court may allow amendment of an accusatory pleading at any time up to and
including the close of trial so long as there is no prejudice to the
defendant”]; People v. Graff (2009)
170 Cal.App.4th 345, 361 [same].)  In the
trial court, defense counsel, Robert Cornforth, admitted the amendment to the
amended information had no effect on his strategic decisions.  Nor has such an argument been made on
appeal.  Further, at trial Mr. Cornforth
never asserted that defendant was not properly advised of any right or
concerning any issue because of the amendment to the amended information.  And no such argument has been made on
appeal.  There is no showing the
amendment had any adverse effect on the defense strategy. 

 

B.  Sufficiency Of The Evidence Of Bodily Harm

 

            Defendant
argues there was insufficient evidence
he caused Ling to suffer bodily harm within the meaning of section 209,
subdivision (a).  He reasons the
kidnapping was over once he undertook efforts to murder Ling.  Defendant argues:  “Here, the bodily injury inflicted was not
part of the forcible kidnapping.  As
impliedly found by the [trial] court, the attempted murder involved a separate
intent outside of the kidnapping. 
[Defendant] had ascertained that Ling’s father had no money for ransom,
which was confirmed by Ling.  Ling also
stated that she had no money.  It was at
that point that the bodily harm was inflicted, after efforts to obtain a ransom
were abandoned, and the bodily harm was inflicted, that was the apparent basis
for the consecutive sentence imposed for the attempted murder.  Prior to the acts comprising the attempted
murder, Ling’s hands were bound, and she remained unharmed.” 

         In
reviewing a challenge to the sufficiency of the evidence, we apply the
following standard of review:  “In
reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one.  ‘“The proper test for
determining a claim of insufficiency of evidence in a criminal case is whether,
on the entire record, a rational trier ofname="SDU_739"> fact
could find the defendant guilty beyond a reasonable doubt.  [Citations.] 
On appeal, we must view the evidence in the light most favorable to the
People and must presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence. [Citation.]”’  (People v. Ochoa (1993) 6 Cal.4th
1199, 1206; see Jackson v. Virginia (1979) 443 U.S. 307, 319.)”  (People
v. Smith (2005) 37 Cal.4th 733, 738-739.)

            To convict
defendant of kidnapping for ransom, the jury was required to find:  he kidnapped Ling; he intentionally held or
detained Ling without her consent; and he did so to get money.  (CALCRIM No. 1202; see People v. Eid (2010) 187 Cal.App.4th 859, 868-869 & fn. 6; >People v. Greenberger (1997) 58
Cal.App.4th 298, 365-367 & fn. 52.) 
“Bodily harm,” within the meaning of section 209, subdivision (a) means,
as the Court of Appeal held in People v.
Schoenfeld (1980) 111 Cal.App.3d 671, 685: 
the kidnapped victim suffered substantial or serious injury; the injury
resulted from the application of physical force; and the physical force
exceeded the amount necessarily involved in effectuating the kidnapping.  (See People
v. Chacon (1995) 37 Cal.App.4th 52, 59.)

            Here, there
was evidence defendant kidnapped Ling at knifepoint.  He placed a knife against her throat and
bound her feet and hands.  He telephoned
her father and demanded ransom.  After
Ling told defendant her family had no money, defendant slapped her.  He subsequently strangled her until she lost
consciousness.  He also beat her about
the face and slit her throat with the knife. 
Because Ling was unconscious, we do not know exactly when all of the
wounds and injuries were inflicted.  The
jury could reasonably have concluded defendant inflicted bodily harm in the
commission of the kidnapping when he: 
put a knife to Ling’s throat; bound her wrists and ankles; slapped her;
strangled her until she was unconscious; beat her about the face; and slit her
throat.  The jury could further conclude
defendant attempted to kill Ling well after the ransom demand was made by
leaving her in a remote desert area to die. 
Hence there was substantial evidence defendant caused Ling to suffer
bodily harm during the commission of the kidnapping.

 

C.  Unanimity Instruction

 

            Defendant
argues the trial court had a sua sponte duty to instruct the jury it had to
agree on the act constituting the kidnapping. 
A unanimity instruction is required when evidence supporting an offense
charged in a single count consists of more than one criminal act.  (People
v. Russo (2001) 25 Cal.4th 1124, 1132; People
v. Ortiz (2012) 208 Cal.App.4th 1354, 1374-1375.)  Here, defendant reasons a unanimity
instruction was required because the prosecution presented evidence of two
discreet acts to prove kidnapping for ransom. 
First, that during the drive to the desert Ling told defendant she was
uncomfortable and she wanted to go home. 
Second, when defendant stopped the car and bound Ling’s hands and
feet.  These two discreet acts in
defendant’s view required an unanimity instruction be given.

That argument mischaracterizes the
prosecution.  The prosecutor never
asserted two discreet acts could each constitute kidnapping.  Instead, the prosecution relied on a
continuous course of conduct as constituting kidnapping for ransom.  The evidence showed a continuous course of
conduct from the time defendant bound Ling’s wrists and ankles to the time he
abandoned her in the desert after assaulting her.  (People
v. Cortez (1992) 6 Cal.App.4th 1202, 1209 [no unanimity instruction required
where kidnapping was a prolonged, uninterrupted detention]; >People v. Ordonez (1991) 226 Cal.App.3d
1207, 1231 [no unanimity instruction required where kidnapping was a continuous
act and victim never regained liberty throughout kidnapping]; see >People v. Thomas (1994) 26 Cal.App.4th
1328, 1335 [only one kidnapping occurred where there was a single abduction
followed by a continuous detention period].) 
Under continuous course of conduct circumstances, no unanimity instruction
is required.  (People v. Maury (2003) 30 Cal.4th 342, 423; People v. Cortez, supra, 6 Cal.App.4th at p. 1209; >People v. Ordonez, supra, 226 Cal.App.3d
at p. 1231.)

 

D.  Sentencing

 

1.  Consecutive Sentences

 

            Defendant
challenges the consecutive sentences on counts 1 and 2 as violating section
654, subdivision (a).  Section 654,
subdivision (a) provides in part, “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.”  Defendant reasons, “[T]he
record shows that the kidnapping for ransom with bodily harm and the attempted
murder were part and parcel of the same indivisible transaction.”  Our Supreme Court set forth the test for
determining the application of section 654, subdivision (a) in >Neal v. State (1960) 55 Cal.2d 11, 19,
disapproved on another point in People v.
Correa (2012) 54 Cal.4th 331, 334, 338-344: 
“Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of section 654 depends on the
intent and objective of the actor.  If
all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.”  (Accord, People
v. Jones (2012) 54 Cal.4th 350, 372.) 
Our review is for substantial evidence to support the trial court’s
implied determination defendant harbored a separate intent and objective for
each offense, kidnapping for ransom and attempted murder.  (People
v. McKinzie (2012) 54 Cal.4th 1302, 1368; People v. Osband (1996) 13 Cal.4th 622, 730-731.)

            The
evidence in this case supports the trial court’s implied determination
defendant intended, initially, to kidnap Ling for ransom, but later formed an
intent to kill her.  Defendant drove 77
miles to a remote desert area.  He put a
knife to Ling’s throat and bound her wrists and ankles.  He telephoned her father and demanded
ransom.  But when Ling said the family
had no money, defendant told her, “If your family doesn’t have money, then I’ll
kill you.”  He strangled her until she
was unconscious.  While she was unconscious,
he beat her about the face and slit her throat. 
Because the victim was unconscious, we do not know exactly when the
injuries and wounds were inflicted. 
Defendant subsequently left Ling to die in a remote desert area.  The trial court could reasonably conclude
that leaving Ling to die in the desert well after the ransom demand was made
evidenced a separate intent and objective for purposes of section 654.  (See People
v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1658; People v. Porter (1987) 194 Cal.App.3d 34, 38; People v. Ratcliffe (1981) 124 Cal.App.3d 808, 817; >People v. Roth (1964) 228 Cal.App.2d
522, 534-545; People v. Fields (1961)
190 Cal.App.2d 515, 518.)

 

2.  Personal Knife Use Enhancement

 

            The trial
had the authority to sentence defendant for both deadly weapon use and
inflicting great bodily damage. 
(§1170.1, subds. (f)-(g); People
v. Ahmed (2011) 53 Cal.4th 156, 168.) 
But the trial court failed to either impose or strike the section 12022,
subdivision (b)(1) personal knife use enhancement on count 1.  (See People
v. Jones (2007) 157 Cal.App.4th 1373, 1380-1383 [trial court retains
authority to strike section 12022, subdivision (b) enhancement]; see, e.g., >People v. Meloney (2003) 30 Cal.4th
1145, 1154; People v. Wilson (2002)
95 Cal.App.4th 198, 200; People v. Ruiz
(1992) 3 Cal.App.4th 1251, 1255.)  The
failure to impose or strike the enhancement is a legally unauthorized sentence
subject to correction for the first time on appeal.  (People
v. Irvin (1991) 230 Cal.App.3d 180, 190; see People v. Thomas (1992) 4 Cal.4th 206, 209-210; >People v. Lopez (2004) 119 Cal.App.4th
355, 364.)  Upon remittitur issuance, the
trial court must either impose or strike the section 12022, subdivision (b)(1)
enhancement on count 1.  (>People v. Jones, supra, 157 Cal.App.4th
at p. 1383; see People v. Jordan (1986)
42 Cal.3d 308, 319, fn. 7; People v.
Bradley (1998) 64 Cal.App.4th 386, 400, fn. 5.)

 

3.  Statement Of Sentencing Reasons

 

            Defendant
argues the trial court failed to state its reason for imposing consecutive
sentences.  To begin with, the sentencing
rules, with their statement of reasons requirements, have no application to
indeterminate sentences.  (Cal. Rules of
Court, rule 4.403; People v. Black
(2007) 41 Cal.4th 799, 823; People v.
Felix (2000) 22 Cal.4th 651, 658-659.) 
In any event, defendant acknowledges that he forfeited this argument (>People v. Gonzalez (2003) 31 Cal.4th
745, 751; People v. Scott (1994) 9
Cal.4th 331, 353.)  He asserts his
counsel was ineffective for failing to object. 
We find the trial court did give its reasons for consecutive sentences.  Therefore, defense counsel was not
ineffective for failing to object.  The
trial court considered:  a victim
statement, letters written by defendant’s mother and wife, and defendant’s
prior criminal record.  The court found
the crime was particularly heinous.  This
was a sufficient statement of the trial court’s reasons for imposing
consecutive sentences.  In any event,
defense counsel was under no duty to make meritless
motions or contentions.  (People v.
Frye (1998) 18 Cal.4th 894, 985, disapproved on another point in >People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22; People v. Price (1991) 1 Cal.4th 324, 387.)  As noted, the Judicial Council sentencing
rules have no application to indeterminate sentences.  Moreover, given the record before us, it is
not reasonably probable a sentence more favorable to defendant would have been
imposed had an objection been interposed. 
(See People v. Davis (1995) 10
Cal.4th 463, 552; People v. Champion (1995)
9 Cal.4th 879, 934, overruled on other grounds as noted in People v. Combs (2004) 34 Cal.4th 821, 860.) 

 

 

 

4.  Court Operations And Facilities Assessments

 

            The trial
court declined to impose court operations (§ 1465.8, subd. (a)) or court
facilities assessments (Gov. Code, § 70373, subd. (a)(1)) on count 2.  [“The court will not impose those fees as to
count 2.”]  This was a legally
unauthorized sentence.  The assessments
are mandatory.  (People v. Robinson (2012) 209 Cal.App.4th 401, 405; >People v. Rodriguez (2012) 207
Cal.App.4th 1540, 1543, fn. 2; People v.
Woods (2010) 191 Cal.App.4th 269, 271-273.) 
The judgment must be modified to impose the assessments on count 2.

 

5.  Presentence Custody Credit

 

            The trial
court gave defendant credit for 591 days in presentence custody.  However, defendant was arrested on September
9, 2010, and sentenced on May 10, 2012. 
Therefore, he should have received credit for 610 days in presentence
custody.  (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48; >People v. Morgain (2009) 177 Cal.App.4th
454, 469.)  The judgment must be modified
to so provide.

 

6.  Abstract Of Judgment

 

            The
abstract of judgment misstates defendant’s sentence on count 2 as life >without the possibility of parole.  It must be corrected to reflect the sentence
imposed—life with the possibility of
parole.  In addition, the abstract of
judgment must be corrected to reflect the judgment as modified as discussed
above and the disposition of the sentence enhancement on count 1.

 

 

 

 

IV.  DISPOSITION

 

            The
judgment is modified to impose a $30 court facilities assessment (Gov. Code, §
70373, subd. (a)(1)) and a $40 court operations assessment (Pen. Code, §
1465.8, subd. (a)) on count 2.  Further,
the judgment must be modified to award defendant credit for 610 days in
presentence custody.  In all other
respects, the judgment is affirmed.  Upon
remittitur issuance, the trial court must either impose or strike the Penal
Code section 12022, subdivision (b)(1) personal knife use enhancement on count
1.  The clerk of the superior court must
prepare an amended abstract of judgment that reflects:  the disposition of the sentence enhancement
on count 1; a sentence of life with the possibility of parole on count 2; a $30
court facilities assessment and a $40 court operations

assessment on count 2; and 610 days of presentence custody
credit.  The clerk of the superior court
must deliver a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.

 

                                                NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

                                                TURNER,
P.J.

            We concur:

 

 

            KRIEGLER,
J.                                                          

 

 

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