P. v. Williams
Filed 6/25/13 P. v. Williams CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
BILLY DEWAYNE WILLIAMS,
Defendant and Appellant.
C070963
(Super. Ct. No.
SF118317A)
A jury
convicted defendant Billy Dewayne Williams of two counts of
(a); unless otherwise stated, all statutory references that follow are to the
Penal Code; counts 1 & 2), two counts of
3 & 4), and one count of dissuading a
witness (§ 136.1, subd. (b)(1); count 5). The jury found that defendant personally used
a firearm in connection with all counts (§ 12022.53, subd. (b) (counts
1-4); § 12022.5, subd. (a) (count 5)).
The court
sentenced defendant to state prison
for an aggregate term of 30 years eight months.
Defendant
appeals, contending the trial court committed sentencing error. We will vacate the sentence and remand for
resentencing.
Facts and Proceedings
In the
evening on August 10, 2011,
Robert Older and Shane Jauregui stopped at a gas station in Stockton. They were traveling to Sacramento
from southern California,
stopping in Stockton as well, to
sell audio and video equipment out of the back of their vehicle. At the gas station, Older saw defendant who
was putting air into his car tires.
Older showed defendant the equipment worth more than $50,000 at retail
and defendant asked how much for a projector.
After agreeing on a price, defendant pulled out a bundle of cash, saying
it was $5,000, and saying that he wanted to make a deal for all the equipment
but could not fit it all in his car.
Older and Jauregui followed defendant to a parking lot behind a grocery
store to make the deal. Defendant had
Older and Jauregui wait in the parking lot while defendant drove home to drop
off other passengers in the car. Five
minutes later, defendant returned with two men.
After defendant got out of his car and Older got out of his vehicle, they
greeted one another and discussed where to drop the equipment. Defendant then put Older in a headlock and
held a gun to his neck. Defendant
ordered Jauregui out of the passenger seat of the vehicle and one of
defendant’s cohorts opened Jauregui’s door, pulling him out. Defendant and his cohorts stole the victims’
wallets and other items from their pockets and threatened the victims telling
them not to call the police, stating that they knew where the victims lived.
When
defendant’s accomplice started to take a box from the victims’ vehicle,
defendant ordered him to stop and to just take the vehicle. After throwing Older to the ground, defendant
got in his car and drove away.
Defendant’s cohort got in the victims’ vehicle and drove off with all the
equipment. Older and Jauregui called the
police and identified defendant from a photo lineup.
On each of
the carjacking counts (counts 1 & 2), the trial court imposed the midterm
of five years plus 10 years for gun use.
The court stayed sentence pursuant to section 654 on count 2. On each of the robbery counts (counts 3
(Older) & 4 (Jauregui)), the court imposed one-third the midterm (one year)
plus one-third the midterm (three years four months) for the gun use to be
served consecutively. Pursuant to
section 1170.15, the court imposed a consecutive, full midterm of three years
for dissuading a witness (count 5) plus four years for gun use.
Defendant
contends the carjackings were incidental to the robberies and that the two
robberies and two carjackings were committed with the same intent and
objective, that is, to take the victims’ property. He argues the terms for the two robberies
should have been stayed pursuant to section 654.
We conclude
that insufficient evidence supports
the trial court’s implied finding that defendant formed a separate intent and
objective for the carjackings and robberies.
We also conclude that the trial court erroneously determined that the
sentence on the second carjacking offense had to be stayed.
Discussion
A person
may be charged and convicted of both carjacking and robbery based on the same
conduct. (§ 215, subd. (c);
686, 700.) “However, no defendant may be
punished under [section 215] and Section 211 for the same act which constitutes a violation of both [section
215] and Section 211.†(§ 215,
subd. (c), italics added.)
“Carjacking
is defined as ‘the felonious taking of a motor vehicle in the possession of
another, from his or her person or immediate presence, or from the person or
immediate presence of a passenger of the motor vehicle, 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.’ (Pen. Code,
§ 215, subd. (a).) Robbery is
defined as ‘the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.’
(Pen. Code, § 211.) The
similarities between the definition of carjacking and the definition of robbery
are apparent at once. Both involve ‘the
felonious taking’ of property that is ‘in the possession of another’
person. Both require that the taking be
from the ‘person or immediate presence’ of the person. Both are ‘accomplished by means of force or
fear.’ True, there are differences. Robbery can involve any type of personal
property, while carjacking deals with a single form of property. And, robbery requires an intent to
permanently deprive the victim of possession of the property, while carjacking
can be committed with the intent of temporary dispossession. By virtue of these differences, neither
carjacking nor robbery is a necessarily included offense of the other. [Citations.]
Nevertheless, there is an undeniable measure of overlap between robbery
and carjacking.†(In re Travis W. (2003) 107 Cal.App.4th 368, 373.)
“It is
equally plain that the overlap between robbery and carjacking [was] expressly
recognized by the Legislature when it made carjacking a crime. The statute making carjacking a crime also
provides: ‘This section shall not be
construed to supersede or affect [Penal Code] Section 211. A person may be charged with a violation of
this section and Section 211. However,
no defendant may be punished under this section and Section 211 for the same
act which constitutes a violation of both this section and Section 211.’ (Pen. Code § 215, subd. (c), added by
Stats. 1993, ch. 611, § 6, p. 3508.)
Concerning this provision our Supreme Court stated: ‘There would be no need for the Legislature
to preclude multiple punishment for carjacking and robbery unless a defendant
could be convicted of both carjacking and robbery based upon the same
conduct. Subdivision (c) of [Penal Code]
section 215, therefore, constitutes an expression of legislative intent
permitting multiple convictions of carjacking and robbery based upon the same
conduct.’ (People v. Ortega[, supra,]
19 Cal.4th [at p.] 700.) These
are unmistakable expressions from both the Legislature and our highest court
that a carjacking can also be a robbery and thus within the statutory
prohibition against double punishment for ‘[a]n act … that is punishable in
different ways by different provisions’ (Pen. Code, § 654).†(In re
Travis W., supra, 107 Cal.App.4th at p. 375.)
“ ‘
“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. [Citations.] If all 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.] ‘ “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.
[Citation.]†[Citation.]’ [Citation.]
[¶] We review the trial court’s
findings ‘in a light most favorable to the respondent and presume in support of
the order the existence of every fact the trier could reasonably deduce from
the evidence. [Citation.]’ [Citation.]â€
(People v. Green (1996)
50 Cal.App.4th 1076, 1084-1085.) In
passing, we note that People v. Correa (2012)
54 Cal.4th 331 (Correa) held
that “section 654 does not bar multiple punishment for multiple violations of
the same criminal statute,†disapproving dictum in Neal v. State of California (1960) 55 Cal.2d 11, 18, footnote
1, as undermining the purpose of section 654.
(Correa, at p. 334; see also
a new rule which does not apply retroactively.
(Id. at pp. 334,
344-345.)
Relying
upon People v. Dominguez (1995)
38 Cal.App.4th 410, defendant argues the robberies and carjackings together
constituted a single transaction to steal everything belonging to the
victims. In Dominguez, the defendant entered the victim’s van and put a gun to
his neck, demanding everything he had and threatening to kill him. The victim handed over two rings and a chain
and then fled from the van. The
defendant took the victim’s van. (
the trial court’s finding that section 654 applied, Dominguez determined that the carjacking and robbery were “the same
act†within the meaning of section 215, subdivision (c), and noted “[t]he
long-standing rule . . . that ‘. . . the theft of several
articles at [the] same time constitutes but one offense [even where] such
articles belong to several different owners.’ †(Id. at
p. 420.)
The People
argue Dominguez is distinguishable in
that here, the robbery began and ended when defendant and his cohorts had taken
the property from the victims’ pockets and, “[i]ndependently, the carjacking
occurred while [defendant] was holding Older at gunpoint and his associate
drove the truck away.†The People claim
defendant had time to reflect between the robbery and carjacking. The People rely upon the facts as argued by
the prosecutor that defendant stole items from Older’s pockets and directed his
cohorts to steal items from Jauregui’s pockets and to take the vehicle with the
equipment rather than taking the equipment out of the vehicle. The People claim, “It could reasonably be
inferred that after [defendant] and his associate robbed Jauregui and Older,
the robbers could have easily made their getaway in their car without
committing the carjacking. Even if the
stereo equipment inside the truck was the object of their robbery, [defendant’s]
partners could have simply removed the equipment from the truck, given that
[defendant] was holding Older at gun point outside the truck.†The People note that the carjacking and
robbery involved separate objects (the vehicle and the victims’ wallets, cell
phones and other items taken from their pockets) and simply claim the offenses
were not committed simultaneously. The
People rely upon the trial court’s statement that the robberies were separate
acts, involving two victims.
The trial
court’s statement that the robberies involved separate victims did not cover
whether defendant harbored separate intents and objectives in committing the
carjacking and robbery. Under the
circumstances, it is appropriate that we remand the matter to the trial court
for those determinations. If the trial
court finds there was not a separate intent and objective for the carjacking
and the robberies, the sentence imposed for counts 3 and 4, the two robbery
counts and the gun use enhancements must be stayed pursuant to section 654. As defendant concedes, section 654 did not
bar separate punishment for count 2, the other carjacking count. “It is well established that section 654 does
not bar the imposition of multiple punishment when a defendant suffers separate
convictions for acts of violence committed against more than one victim.†(People
v. Fuhrman (1997) 16 Cal.4th 930, 941; see also Correa, supra,
54 Cal.4th at p. 341.) The
sentencing triad for carjacking is greater than that for second degree robbery
(§§ 213, subd. (a)(2), 215, subd. (b)) (both have the same gun use
enhancement) and must be imposed.
(§ 654, subd. (a); People v.
Kramer (2002) 29 Cal.4th 720, 722-723.)
Disposition
The
sentence is vacated and the matter remanded for resentencing in accordance with
this opinion. The judgment is otherwise
affirmed.
HULL ,
Acting P. J.
We concur:
ROBIE ,
J.
DUARTE , J.
