Filed 7/30/13 P. v. McMahon 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Placer)


THE PEOPLE,                                                                                  C070324

                   Plaintiff and Respondent,                                    (Super. Ct. No. 62105882A)

         v.

DILLON JAMES MCMAHON,

                   Defendant and Appellant.




         A jury convicted defendant Dillon James McMahon of kidnapping during a
carjacking (Pen. Code, § 209.5, subd. (a))1, kidnapping for robbery (§ 209, subd. (b)),
and carjacking (§ 215, subd. (a)). The first two convictions were based on the same
victim and the same circumstances.
          The trial court sentenced defendant to life with the possibility of parole plus 23
years and 4 months.2



1   Subsequent section references are to the Penal Code.
2 The determinate sentence included an 11-year 4-month term for a separate conviction
in Nevada County.

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       Defendant’s sole argument on appeal is that he was improperly convicted of both
kidnapping during a carjacking and kidnapping for robbery, because kidnapping during a
carjacking should be treated as a lesser necessarily included offense. We disagree and
shall affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Defendant approached his first victim, Suzanne Hood, around noon as she was in
her car preparing to leave the parking lot of her bank. He reached inside her car, told her
not to move because he had a gun, turned off her ignition, took her keys, and got in the
car on the front passenger’s side. Hood drove where defendant directed her. When they
stopped, defendant pointed a gun at Hood and ordered her out of the car. Hood got out.
Defendant allowed her to keep her purse then drove off with the car.
       Around 5:30 p.m. that day, defendant attempted to pawn a camera that had been in
Hood’s car. The next morning, Hood’s car was found submerged in a lake with the key
in the ignition and the headlights on. Hood’s stereo had been ripped out and most of her
property had been removed.
       Two days later the second victim, Judith Jones, was sitting in her car when
defendant and another man approached her and asked for money to make a phone call.
When Jones opened her door to get her purse, defendant held a broken bottle to her neck
and said he wanted the car. The two men got in her car and defendant drove off.
Defendant was eventually apprehended in Jones’s car with co-defendant John Adrian.
                                      DISCUSSION
       Count one, kidnapping during a carjacking, and count two, kidnapping for
robbery, both stemmed from the first incident in which Hood was the victim. The trial
court stayed the sentence on count two pursuant to section 654.
       Defendant argues he should not have been convicted of both counts because count
one was a lesser included offense of count two since the object of both crimes was the
car. He is wrong.

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       “ ‘In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. “In California, a single act or
course of conduct by a defendant can lead to convictions ‘of any number of the offenses
charged.’ (§ 954, italics added; People v. Ortega [(1998)] 19 Cal.4th [686,] 692 [80
Cal.Rptr.2d 489, 968 P.2d 48].)” (People v. Montoya (2004) 33 Cal.4th 1031, 1034 [16
Cal.Rptr.3d 902, 94 P.3d 1098].) Section 954 generally permits multiple conviction.
Section 654 is its counterpart concerning punishment. It prohibits multiple punishment
for the same “act or omission.” When section 954 permits multiple conviction, but
section 654 prohibits multiple punishment, the trial court must stay execution of sentence
on the convictions for which multiple punishment is prohibited. [Citations.]’ [Citation.]”
(People v. Sloan (2007) 42 Cal.4th 110, 116.)
       A judicially created exception to the rule permitting multiple convictions prohibits
multiple convictions where one is a necessarily included offense. (People v. Sloan,
supra, 42 Cal.4th at p. 116.) A crime is a necessarily included offense of the greater
offense if the greater offense cannot be committed without also necessarily committing
the lesser offense. (Ibid.) “Two tests have traditionally been applied in determining
whether an uncharged offense is necessarily included within a charged offense—the
statutory or legal ‘elements’ test and the ‘accusatory pleading’ test. ‘Under the elements
test, if the statutory elements of the greater offense include all of the statutory elements of
the lesser offense, the latter is necessarily included in the former. Under the accusatory
pleading test, if the facts actually alleged in the accusatory pleading include all of the
elements of the lesser offense, the latter is necessarily included in the former. [Citation.]’
[Citation.]” (Id. at p. 117.)
       Defendant’s argument that he cannot be convicted of both crimes where the car is
the object of the robbery is in effect an argument that we should apply the accusatory
pleading test. He argues that in this case, the carjacking was the robbery, because the car
was the property that he intended to take.

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       While the accusatory pleading test may be appropriate in determining whether an
uncharged offense is necessarily included within a charged offense, it is settled that the
accusatory pleading test does not apply in deciding whether multiple convictions of
charged offenses are proper. (People v. Sloan, supra, 42 Cal.4th at pp. 117-118.)
       The statutory elements of kidnapping for robbery, which defendant claims is the
greater offense, are: (1) intent to commit robbery; (2) taking, holding, or detaining a
person by force or fear; (3) moving the person a substantial distance that is; (4) beyond
that merely incidental to the commission of a robbery; and (5) lack of consent. (§ 209
subd. (b); CALCRIM No. 1203.) The statutory elements of kidnapping during a
carjacking are: (1) commission of a carjacking; (2) during which another person was
taken, held, or detained by force or fear; (3) moving the person a substantial distance
from the vicinity of the carjacking; (4) the asportation was to facilitate the carjacking or
prevent raising an alarm; (5) the other person was not one of the carjackers; and (6) lack
of consent. (§ 209.5; CALCRIM No. 1204.)
       Kidnapping for robbery does not contain all the elements of the offense of
kidnapping during a carjacking because it lacks the element of a carjacking. Thus,
kidnapping during a carjacking is not a necessarily included offense of kidnapping for
robbery.
                                       DISPOSITION
       The judgment is affirmed.


                                              BLEASE                    , Acting P. J.

We concur:


           HULL                     , J.


           MAURO                    , J.


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