P. v. Tucker

Filed 9/27/06 P. v. Tucker CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Samuel Horace Tucker appeals from a judgment convicting him of carjacking, robbery, assault with a deadly weapon, and other offenses. He contends there is insufficient evidence to support the jury’s finding that he inflicted great bodily injury during the commission of the carjacking and that the court made a number of sentencing errors. We reject defendant’s evidentiary challenge and one of the asserted sentencing errors, but agree that the judgment should be modified so that the sentences imposed on the robbery and assault counts are stayed.

Factual and Procedural History

Defendant was charged by indictment with six violations of the Penal Code:[1] attempted murder (§§ 664, subd. (a), 187, subd. (a) - count one); carjacking (§ 215 - count two); second degree robbery (§§ 211, 212.5 - count three); assault with a deadly weapon (§ 245, subd. (a)(1) - count four); evading a police officer (§ 2800.2, subd. (a) - count five); and assault on a police officer (§ 245, subd. (c) - count six). Counts one through three alleged that defendant used a deadly weapon within the meaning of section 12022, subdivision (b)(1), and counts one through four alleged that during the commission of the offenses defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The indictment also alleged that defendant had served four prior prison terms. (§ 667.5, subd. (b).) Defendant pled not guilty, and later entered a second plea of not guilty by reason of insanity.

The following evidence was presented at trial:

On January 25, 2003, Regina Razo was working in her florist shop in Richmond when defendant entered and asked the price of roses. Razo gave him the price of various flowers and defendant left. He returned a few minutes later and told her he would like to buy six yellow roses. As she went to the refrigerator for the roses, defendant accosted her with a knife, which she recognized as coming from her store. Defendant told her to remove her jewelry and then tore a necklace from her neck. A struggle ensued when defendant tried to tie her with ribbon. During the struggle, Razo was stabbed three times in the chest before she fell to the ground.

Defendant removed about $150 from the cash register, grabbed Razo’s purse and another $600 that was on her desk, and fled out the back door. From the parking lot behind the store, defendant yelled for the keys to Razo’s delivery van. When Razo said he already had them, defendant said, “Give me the keys before I hurt you some more.” She told him there was a spare set on a ledge by the back door. Defendant took the keys and escaped in the van.

Razo then called the police and was taken to the hospital. She was treated for a puncture wound, scrapes and abrasions to her chest and lacerations to her hands. Later she identified defendant in a photo lineup.

On February 2, 2003, Officer William Cantrell saw a man, later identified as defendant, in a silver van engaging in suspicious behavior. When he ran the license plate though the police computer, he determined the vehicle had been stolen during a robbery. Cantrell followed the van for a number of blocks, called for back-up, activated his lights and sirens, and pursued the van until it eventually stopped in a parking lot. When a second officer approached the driver’s side window, defendant lunged at the officer with a knife. Defendant was eventually subdued and arrested. Later, Razo identified the knife as coming from her shop.

After trial, the jury found defendant not guilty of the attempted murder of Razo, but guilty of all remaining counts and found true all of the enhancement allegations. The jury subsequently found defendant sane and found true the prior prison term allegations. Defendant was sentenced to prison for a total of 20 years. He timely filed a notice of appeal.

Discussion

1. Substantial evidence supports the jury’s finding that defendant inflicted great bodily injury during the commission of the carjacking.

The jury found true the allegations that defendant inflicted great bodily injury during the commission of both the robbery and the carjacking. Section 12022.7, subdivision (a) provides, “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” Defendant concedes that substantial evidence supports the enhancement allegation with regard to the robbery count, and thus that Razo’s wounds constituted great bodily injury. He contends, however, that the same injuries cannot be used to support the enhancement of his sentence on the carjacking conviction. He argues that because the robbery and carjacking were tried as separate and distinct crimes, the jury was required to find separate acts of personal infliction of great bodily injury. We disagree.

A defendant may be convicted of both carjacking and robbery based on the same conduct. (Pen. Code, § 215, subd. (c) [“This section shall not be construed to supersede or affect Section 211. A person may be charged with a violation of this section and Section 211”]; People v. Ortega (1998) 19 Cal.4th 686, 700, disapproved on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, 1231; People v. Dominguez (1995) 38 Cal.App.4th 410, 417-419.) Here, the evidence establishes that defendant entered the store, stabbed Razo, stole some items, threatened further harm if she did not give him the car keys, and then stole her van. The stabbing of Razo establishes the element of force or fear necessary for the commission of carjacking[2] and also supports the enhancement for the infliction of great bodily injury. That many of the same acts were also used to prove the robbery charge does not preclude their use under the carjacking count. (See People v. Ham (1970) 7 Cal.App.3d 768, 776, overruled on other grounds in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3 [“each count in an accusatory pleading . . . charges a separate and distinct offense [and] must stand on its own merit and the disposition of one count has no effect or bearing on the other counts of the accusation”].)

Defendant’s reliance on People v. Arzate (2003) 114 Cal.App.4th 390, is entirely misplaced. In that case there was insufficient evidence to support a great bodily injury enhancement to a charge of carrying a concealed weapon. (Id. at p. 401.) The court reasoned, “there is some question whether a person . . . can inflict great bodily injury in the commission of carrying a concealed firearm in a vehicle. The statutory requirement for true findings on these enhancement allegations dictates the . . . infliction of injury occur “in the commission“ of the underlying felony. Conceptually the crime of concealment would seemingly end with the firearm’s use and thus exposure. In other words, it seems logically inconsistent to be found guilty of both using the gun and inflicting injury while concealing the same gun within a vehicle.” (Id. at p. 400, fn. omitted.) The court distinguished, however, “crimes such as felony murder, burglary, robbery and kidnapping [which] involve affirmative actions, even beyond the initial physical act of entry or taking. These crimes encompass the further acts of asportation, escaping with the loot, reaching a place of temporary safety and the like. They are thus conceptually different from the crime at issue in this case which is complete with the conduct constituting the offense.” (Id. at p. 400-401, fn. omitted.)

Here, the commission of the carjacking offense could be found to have encompassed defendant’s conduct from the time he entered the store until after he left the scene in Razo’s van. Because Razo was stabbed during this time period, the infliction of great bodily injury occurred during the commission of the crime. Defendant’s argument that the carjacking did not commence until he demanded the car keys artificially narrows the course of the conduct in which he engaged in perpetrating the offense. The Attorney General cites People v. Masbruch (1996) 13 Cal.4th 1001, 1011, which provides some support for its position, but is also distinguishable in an important respect. In that case, evidence was held sufficient to support the jury’s finding that the defendant used a firearm in the commission of a rape by displaying the firearm more than an hour before the sexual attack. The court reasoned that the control and fear created by the display of the firearm continued throughout the encounter. “In considering whether a gun use occurred, the jury may consider a ‘video’ of the entire encounter; it is not limited to a ‘snapshot’ of the moments immediately preceding a sex offense.” (Ibid.) There is no comparable element of lingering consequences in the present case. Nonetheless, we agree with the Attorney General that the evidence permitted the jury to “reasonably conclude that appellant departed by the back door because he had cased outside the shop and knew the van was parked right there. At the time appellant reentered the shop and stabbed Ms. Razo, his purpose was to rob her and take the van to make his escape with the loot. He facilitated both offenses by stabbing Ms. Razo.”

2. Defendant’s sentence for robbery and assault with a deadly weapon should have been stayed pursuant to section 654.

Defendant’s 20-year prison sentence was calculated as follows: On count two, for carjacking, as the principal term, nine years plus a two year enhancement for the use of a deadly weapon and a three year enhancement for personal infliction of great bodily injury; a concurrent three-year sentence and one and three-year enhancements under count three for the robbery[3]; a concurrent three-year sentence and a three year enhancement under count four for the assault; a consecutive eight-month term on count five for evading an officer; a consecutive one year four month term on count six for assaulting a police officer; plus consecutive one year terms for each of defendant’s four prior prison sentences.

Defendant contends that the trial court erred in imposing concurrent sentences on the robbery and assault counts. He argues that because the crimes were close in time and incident to a single objective his sentence on those counts should have been stayed under section 654.[4] Defendant also argues that the court erred in imposing enhancements for the personal infliction of great bodily injury under both the carjacking and robbery convictions. He argues that one of the enhancements should be stricken under section 12022.7, subdivision (h), because there was only one victim. The Attorney General agrees that the sentence on the assault conviction should be stayed, but argues that the concurrent sentence on the robbery count and the two enhancements for great bodily injury were proper.

Section 654

“ ‘ “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.” ‘ [Citation.] However, if the offenses were independent of and not merely incidental to each other, the defendant may be punished separately even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.) “ ‘ “The defendant’s intent and objective are factual questions for the trial court; . . . there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.” ‘ “ (Id. at p. 1085.) “Further, the question whether the defendant held multiple criminal objectives is one of fact for the trial court, and its finding will be upheld on appeal if there is any substantial evidence to support it.” (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.)

As a general rule, “ ‘the theft of several articles at one same time constitutes but one offense.’ “ (People v. Dominguez, supra, 38 Cal.App.4th at p. 420.) In People v. Dominguez, for example, the trial court’s determination that a robbery and carjacking were pursuant to a single criminal objective was upheld where the victim had given the defendant both his jewelry and vehicle in response to the defendant’s demand, “ ‘ “Give me everything you have.” ‘ “ (Id. at pp. 414, 420.) However, in People v. Green, supra, 50 Cal.App.4th at page 1085, the court upheld a concurrent sentence based on a finding that the defendant demonstrated different criminal objectives when he approached a victim in her car, took her purse, drove off with her, sexually assaulted her, released the victim, and kept the car. The court reasoned, “Because the carjacking was thus separated in time and place from the initial robbery of [the victim’s] purse and was interrupted by the sexual attack ..., the record contains sufficient evidence to support the trial court’s explicit finding the taking of the purse and the taking of the vehicle were separate incidents which merited separate and additional punishment.” (Ibid.)

Here, the Attorney General suggests that defendant’s objective in taking Razo’s money was theft, but that his objective in taking her van was to escape. Although the court did not make an explicit finding in this regard, the Attorney General argues that substantial evidence supports an implicit finding that the crimes were committed with different objectives. (See People v. Nelson (1989) 211 Cal.App.3d 634, 638 [judgment imposing multiple terms implies finding that section 654 does not apply].) The trial court’s comments at sentencing, however, preclude any such implication. The court stated, “the reason I’m running counts three and four [robbery and assault] concurrent with count two [carjacking] is, in my mind, they . . . obviously were very close in time and place and also appear to have been pursuant to one overall objective, and that is to take property from Ms. Razo.” Accordingly, the court erred when it imposed concurrent sentences rather than staying the sentences on counts three and four.

Section 12022.7

As indicated above, section 12022.7 provides for a sentence enhancement where defendant is found to have personally inflicted great bodily injury during the commission of a crime. Subdivision (h) limits the number of enhancements that may be applied under that section by prohibiting “more than one of those terms for the same offense.” (Italics added.) This limitation was not violated here because the court imposed only one enhancement for the infliction of great bodily injury per offense. People v. Ausbie (2004) 123 Cal.App.4th 855, 864, disapproved on other grounds in People v. Reed, supra, 38 Cal.4th at p. 1228, relied on by defendant, is distinguishable. In that case, the court held that the subdivision (h) limitation of one enhancement per offense did not apply to offenses against multiple victims, but considered the question only because the defendant had been convicted of one count of assault with two sentence enhancements for infliction of great bodily injury. Here, the two enhancements were imposed under two separate counts for two different offenses.

Disposition

The judgment shall be modified to stay the sentences imposed on counts three and four and the abstract of judgment shall be corrected to reflect that defendant was convicted under count three of second degree robbery. In all other respects, the judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Parrilli, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

[1] All statutory references are to the Penal Code unless otherwise noted.

[2] Section 215, subdivision (a) reads: “ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, . . . against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”

[3] The abstract of judgment improperly states that defendant was convicted under count three of burglary rather than robbery. Pursuant to California Rules of Court, rule 12(c), this clerical error in the abstract of judgment should be corrected.

[4] Section 654, subdivision (a), provides in relevant 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.”