P. v. Johnson

Filed 8/21/06 P. v. Johnson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Following a jury trial, appellant Walter Johnson was convicted of two counts of carjacking (Pen. Code, § 215, counts one and two), and one count of attempted second-degree robbery (Pen Code, §§ 211, 212.5, subd. (c), 664, count three). Appellant admitted that he served a prior prison term (Pen. Code, § 667.5, subd. (b)), that he suffered a prior "strike" conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), and a prior serious felony conviction (Pen. Code, § 667, subd. (a)).

Pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, appellant moved the court to dismiss the strike prior. At appellant's sentencing hearing, on August 4, 2005, the court denied appellant's Romero motion. The court sentenced appellant to a state prison term of 15 years consisting of the following: on count one, the mid-term of five years doubled pursuant to Penal Code sections 667, subdivisions (b)-(i) and 1170.12, plus five years for the prior serious felony conviction pursuant to Penal Code section 667, subdivision (a). The court struck the one-year prison prior in the interests of justice and imposed concurrent sentences on the remaining counts. In addition, among other things, the court ordered appellant to "pay a court security fee of $20 and a $10 fine with penalty assessment under 1202.5."

Appellant filed a timely notice of appeal.

On appeal, appellant raises two issues. First, he contends that his sentence on the attempted robbery conviction should have been stayed pursuant to Penal Code section 654. Second, he was "assessed an illegal penalty." We agree with appellant's first issue. On the second issue, however, we are compelled to remand the case to the lower court to make factual findings.

Facts

Just after midnight on February 7, 2004, Gregory Montoya and his brother-in-law Sandro Saucedo were looking for a liquor store in San Jose to purchase beer and wine. They had just picked up their paychecks in Gilroy. The two men stopped at a USA Mini Mart on Alum Rock Avenue in San Jose.

According to Montoya, Saucedo remained in the car while he went inside to purchase some alcohol. However, once inside he learned that the market did not stock alcohol. Montoya asked an African American male in the store the location of the nearest market where he could buy alcohol. Montoya identified appellant as the man he asked for directions. Appellant pointed Montoya in the right direction, and Montoya returned to the car. The store's security cameras recorded the encounter. Before Montoya and Saucedo drove off, appellant approached the car and essentially offered to show them the way if they gave him a ride. Appellant explained that his car had broken down. Montoya and Saucedo agreed and appellant got into the back seat of the car.

Following appellant's directions, Saucedo drove to liquor store. At the store, Montoya purchased a bottle of vodka and a bottle of beer. He returned to the car where Saucedo and appellant were waiting and put the bottles in the trunk. The three men left the store. According to Montoya appellant appeared to be looking for something as he directed them down neighborhood streets. Eventually, just by another Mini Mart, appellant told them to make a right turn and pull down the side of the Mini Mart. Appellant said, "this would be fine." The area where they stopped was darker than the front of the store and there was no one there.

According to Montoya, as soon as the car stopped, appellant's demeanor changed from being friendly to threatening. Appellant told Saucedo and Montoya to " 'Get out of the fucking car before I bust a cap in the back of your head.' " Appellant's demand that they get out of the car was closely followed by him telling them to give him their wallets. Montoya briefly looked back at appellant and saw him holding a silver, metallic object in his hand, close to his waist. Montoya told appellant that he did not have a wallet. Montoya and Saucedo slowly got out of the car. Immediately, appellant got out of the car, "quickly ran around behind the car around to the front of the car and jumped in the driver's seat." Appellant left with the car's tires "screeching."

Montoya and Saucedo called the police from the Mini-Mart saying that they had been robbed and carjacked.

On February 9, 2004, appellant was driving a vehicle that ran a stop sign in view of an East Palo Alto Police Officer. The vehicle's license plates had been removed. The officer activated his siren and stopped the car. Following an on-scene investigation, the officer determined that the car was the same car stolen from Saucedo. Appellant was taken into custody. Ultimately, the car was returned to the owners.

Discussion

Penal Code Section 654

Appellant contends that the trial court violated section 654 when it imposed concurrent periods of confinement for attempted robbery and carjacking because "the record establishes the attempted robbery of Montoya was part of an indivisible transaction encompassing the carjacking."

Appellant asserts that while the facts here show the "temporally unified commission of two distinct offenses -- carjacking and attempted robbery -- neither appears to have been the means or incidental to the commission of the other. Appellant's jacking of the [car] and attempting to rob Montoya could have been effected independently of each other, arguably, at least, neither act was 'incidental' to or in furtherance of the other."

Respondent argues that the "taking of the car was an act of violence, real or threatened, against each victim, both of which could be separately punished. The attempted taking of personal property from Montoya was a separate act of violence or threatened violence which made the situation more intrusive and more dangerous."

Respondent is missing the point. The question is not whether these two acts were separate acts; rather, the question is whether appellant harbored a separate intent and objective for each offense.

"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen. Code, § 654.) "[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction." (People v. Perez (1979) 23 Cal.3d 545, 551.)

"[B]ecause the statute is intended to ensure that defendant is punished 'commensurate with his culpability' [citation], its protection has been extended to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' [Citation.] . . . If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)

"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) If there is no express finding on the issue in the record, a finding that the crimes were divisible is inherent in the judgment. (See People v. Harrison, supra, 48 Cal.3d at p. 335.)[1]

On appeal, we review the trial court's findings in the 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. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.) We affirm the sentence if substantial evidence supports a trial court's express or implied determination that punishment for crimes occurring during a course of conduct does not involve section 654. (People v. Osband (1996) 13 Cal.4th 622, 730.)

At the outset, we note that Penal Code section 215 "sh[ould] 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).)

As noted, Penal Code section 654 prohibits multiple punishments where the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective. "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." (Neal v. State of California (1960) 55 Cal.2d 11, 19.)

As a general rule, the theft of several articles at one time constitutes but one offense. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420 (Dominguez).) Therefore, the simultaneous taking of several articles from a single victim is not subject to multiple punishments. (Ibid.) This is true when the thief takes both a vehicle and personal property at the same time. (Id. at pp. 414, 420.)[2] However, when a robbery of personal property is separate in time and place from a carjacking, the two offenses may be sentenced separately. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)

Here, appellant unsuccessfully tried to relieve Montoya of his wallet and successfully took the car from the victims virtually simultaneously.[3] Appellant told Montoya to get out of the car and leave his wallet behind. Thus, Montoya was in the car when the attempted robbery of the wallet occurred, and the taking of the car occurred immediately thereafter when Montoya left the car and appellant got out of the back seat and into the front seat of the car. The attempted robbery of the wallet was not separate in time and place from the carjacking. We cannot find anything in the record to indicate that appellant had anything other than one intent and objective--that is, to relieve Montoya of property he had in his possession.

Respondent asserts that it appears that in drafting Penal Code section 215 the Legislature deliberately rejected Neal's intent and objective test for multiple punishments because there is no mention of an indivisible course of conduct in Penal Code section 215's limitation on multiple punishment for the "same act." Since Penal Code section 654 has been part of our penal jurisprudence for over a century, we are disinclined to find that it does not apply to Penal Code section 215 without explicit proof of such from the Legislature. (See In re M. S. (1995) 10 Cal.4th 698, 726.) Our review of the Legislative history of Penal Code section 215 reveals no such explicit proof.

Accordingly, we conclude that while appellant may be punished separately as to each victim for one crime of violence committed in an indivisible course of conduct, pursuant to section 654, he may not be separately punished for both the attempted robbery and the carjacking of Montoya. Both crimes were committed against the same victim at the same time with the single objective of relieving Montoya of his property and by means of the same force and/or fear.

Where, as here, a defendant has been found guilty of two offenses, "punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation]." (People v. Deloza (1998) 18 Cal.4th 585, 592.)

Fines and Penalty Assessments

The probation report prepared for appellant's sentencing hearing recommended a "$10 fine plus penalty assessments be imposed pursuant to Section 1202.5 of the Penal Code." At appellant's sentencing hearing, the court imposed a "$10 fine with penalty assessment under 1202.5." Neither the reporter's transcript, nor the probation report, details the calculation of the penalty. However, in the fines section of the abstract of judgment the following notation appears: "Case A: $10+22.50PA per PC 1202.5." Appellant contends that he was assessed an illegal penalty and that this court should correct the abstract of judgment to reflect the appropriate penalty amount. Specifically, appellant asserts that by his calculations he was assessed $3.50 in excess of the sum mandated by statute.

Penal Code section 1202.5, subdivision (a) permits imposition of a fine of $10 where, as here, appellant was convicted of violating Penal Code section 215.[4] This $10 fine is payable to the county for transmission to the local law enforcement entity where the offense took place to "implement, support, and continue local crime prevention programs." (Pen. Code, § 1202.5, subd. (b)(1).)

There are other applicable assessments on this fine. Penal Code section 1465.7 establishes a 20 percent surcharge, here, $2, to be collected by the court clerk and transmitted to the state. (Pen. Code, § 1465.7, subds. (a), (c).) Penal Code section 1464 requires a 100 percent penalty assessment, here $10, to be collected by the county and transferred to the State Penalty Fund. (Pen. Code, § 1464, subds. (a), (e).) Government Code section 76000 requires a 70 percent ($7) county assessment. However, this $7 additional penalty "shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by [Government Code] Section 76100 as of January 1, 1998, when the money in that fund is transferred to the state under [Government Code] Section 70402. The amount each county shall charge as an additional penalty under this section shall be as follows: . . . [¶] Santa Clara $5.50." (Gov. Code, § 76000, subd. (e).)

In addition, Government Code section 70372 requires a 50 percent state courthouse construction penalty, in this case $5, to be collected by the county and transferred to the state.[5] However, Government Code section 70375 mandates a reduction in this state courthouse construction penalty by the amount collected for deposit into the local courthouse construction fund.[6]

By appellant's calculations, he should be required to pay only $29. He reaches this amount as follows: "$10 (1202.5 (a)) + $10 (1464 (a)) =$20 +$7 (Gov. Code section 76000) =$27 + $2 (20% of base fine under section 1465.7 (a))." Respondent disagrees and calculates the amount as follows: "Penal Code section 1464 required a $10 assessment. Government Code section 76000, subdivision (e) required an additional $5.50, and Penal Code section 1465.7's 20-percent surcharge on the base fine added an additional $2. Overstating the Government Code section 76000, penalty assessment by $1.50, appellant concludes that he could be liable for $29. The actual subtotal so far is $27.50." Respondent continues, "Appellant overlooks Government Code section 70372, subdivision (a), which authorizes a state court facilities construction penalty of $5. This brings our total, to $32.50, or precisely the amount imposed by the sentencing court." Respondent goes on to note that Government Code section 70375 "permits" a reduction in the state court facilities construction penalty (Gov. Code, § 70372) for county contributions.[7]

In fact, Government Code section 70375, subdivision (b) mandates that the amount authorized by Government Code section 70372 be reduced by "(1) The amount collected for deposit into the local courthouse construction fund established pursuant to [Government Code] Section 76000. [¶] (2) The amount collected for transmission to the state for inclusion in the Transitional State Court Facilities Construction Fund established pursuant to [Government Code] Section 70401 to the extent it is funded by money from the local courthouse construction fund."[8]

We are not able to determine whether Santa Clara County has established a local courthouse construction fund under Government Code section 76100 or whether Santa Clara County is participating in the Transitional State Court Facilities Construction Fund under Government Code section 70401. Accordingly, we are unable to determine whether this surcharge should be reduced in accordance with Government Code section 70375. Therefore, we are compelled to remand this case to the trial court to make these factual findings. (See People v. Taylor (2004) 118 Cal.App.4th 454, 456-460.)

We remind the trial court that in order to facilitate review of this issue, as well as assist in collection efforts, it was and is incumbent upon the trial court to recite each specific fee, fine, and penalty assessment and its statutory basis. (See People v. Taylor, supra, 118 Cal.App.4th at pp. 456-460; People v. High, supra, 119 Cal.App.4th at p. 1200.)

Disposition

The judgment is modified to reflect that the sentence for attempted robbery is hereby stayed pursuant to Penal Code section 654. The trial court is directed to amend the abstract of judgment to so reflect and forward a certified copy to the Department of Corrections. In addition, the case is remanded to the trial court to determine the amount of the court facilities surcharge under Government Code sections 70372, 70375, 70401, and 76100. The trial court shall prepare a new abstract of judgment, including its finding of the applicable amount of the court facilities surcharge and forward a certified copy to the Department of Corrections.

______________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] In this case, the trial court did not make an express finding that Penal Code section 654 did not apply.

[2] In Dominguez, the defendant entered the victim's van, placed a cold metallic object to the victim's neck, and demanded everything he had. (Dominguez, supra, 38 Cal.App.4th at p. 414.) The victim handed over his jewelry and then fled the van. The Dominguez court held that the "same act was essential to" the taking of both the jewelry and the van and "thus is not separately punishable under . . . section 654." (Id. at p. 420.) The Dominguez court declined to address the issue of whether the Legislature in enacting subdivision (c) of Penal Code section 215 had declared its intent that Neal v. California's single intent and objective test not be used to determine multiple punishment issues for convictions of carjacking and robbery. (Dominguez, supra, 38 Cal.App.4th at p. 419.)

[3] It is understood that Penal Code section 654 does not preclude multiple punishment where each of the counts is an "act of violence" against a separate person. (People v. Ridley (1965) 63 Cal.2d 671, 678.)

[4] Relevant here, Penal Code section 1202.5, subdivision (a) provides: "(a) In any case in which a defendant is convicted of any of the offenses enumerated in Section . . . 215 . . . the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed."

[5] Relevant here, Government Code section 70372 provides: "(a) Except as otherwise provided in this article, there shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . ."

[6] Relevant here, Government Code section 70375, subdivision (b) provides: "In each county, the amount authorized by [Government Code] Section 70372 shall be reduced by the following: [¶] (1) The amount collected for deposit into the local courthouse construction fund established pursuant to [Government Code] Section 76100. [¶] (2) The amount collected for transmission to the state for inclusion in the Transitional State Court Facilities Construction Fund established pursuant to [Government Code] Section 70401 to the extent it is funded by money from the local courthouse construction fund."

[7] Respondent goes on to note that Government Code section 29550.2 authorizes booking and classification fees and other administrative costs, which are determined locally. Accordingly, respondent concludes that these administrative costs would support a much higher fee had they been imposed. Respondent is missing the point: they were not imposed and therefore, cannot enter into the calculation.

[8] "The Legislature enacted Government Code section 70372 as part of the Trial Court Facilities Act of 2002. [Citation.] The Lockyer-Isenberg Trial Court Funding Act of 1997 (the 1997 Act) had shifted funding of trial courts from counties to the state in order to provide a more stable funding source for trial court operations. [Citation.] The 1997 Act also created a Task Force on Court Facilities (the Task Force) that was asked to review the status of court facilities and recommend how to allocate funding responsibilities for maintenance and construction between counties and the state. [Citation.] [¶] The Trial Court Facilities Act of 2002 was the first of what was expected to be a series of bills to implement the recommendations of the Task Force. [Citation.] Senate Bill No. 1732 created a new fund, the Court Facilities Trust Fund, for the deposit of county payments for the operation and maintenance of court facilities transferred to the state. The fund would also be a source of funding to implement Task Force recommendations regarding repair, renovation, modification, and construction of court facilities. [Citation.]" (People v. High (2004) 119 Cal.App.4th 1192, 1198.)