Filed 12/15/15 P. v. Fantuzzi CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B258992

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA081047)
         v.
                                                                     ORDER MODIFYING OPINION
ALEXIS A. FANTAUZZI,                                                 AND DENYING REHEARING

         Defendant and Appellant.                                    [CHANGE IN JUDGMENT]



THE COURT:
         It is ordered that the opinion filed herein on November 23, 2015, be modified as
follows:
Page 1: First paragraph, second line, the disposition statement is modified to read as
follows:
         Reversed in part, affirmed in part as modified, and remanded.
Page 19: Delete the Disposition as it currently reads and substitute the following:
The enhancements for the prior strike conviction from the state of Washington are
reversed. The judgment is modified to vacate defendant’s conviction in count 1 for
simple kidnapping. The matter is remanded for resentencing. In all other respects the
judgment is affirmed.

This modification effects a change in judgment.

Appellant’s Petition for Rehearing is denied.
Filed 11/23/15 P. v. Fantauzzi CA2/3 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B258992

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA081047)
         v.

ALEXIS A. FANTAUZZI,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Leslie E. Brown, Judge. Reversed in part and affirmed in part as modified.


         James Koester, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and Nima
Razfar, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       A jury found defendant Alexis Agustin Fantauzzi guilty of kidnapping as a lesser
included offense of kidnapping to commit rape (Pen. Code, § 207)1 (count 1); kidnapping
during a carjacking (§ 209.5, subd. (a)) (count 2); misdemeanor child molesting (§ 647.6,
subd. (a)(1)) (count 3); misdemeanor escape from arrest (§ 836.6, subd. (b)) (count 4);
and vandalism over $400 (§ 594, subd. (a)) (count 5). Defendant admitted having
suffered a 2010 conviction in the state of Washington for the crime of robbery in the
second degree, and the trial court found this to be a strike conviction.
       The trial court sentenced defendant to life with the possibility of parole in count 2,
with a minimum parole eligibility term of 14 years due to the strike conviction. The
court imposed a consecutive determinate sentence of three years in count 5, doubled to
six years because of the prior strike conviction, and consecutive sentences of one year for
each of counts 3 and 4. The court also imposed a consecutive five-year term under
section 667, subdivision (a)(1) for the prior conviction. The high-term sentence of eight
years in count 1 was stayed pursuant to section 654. Defendant’s total sentence was a
determinate term of 13 years with a consecutive life term.
       Defendant appeals on the grounds that: (1) his conviction in count 1 must be
vacated because kidnapping is a necessarily included offense to count 2; (2) the trial court
prejudicially erred in failing to instruct on the lesser included offense of simple
kidnapping in count 2; (3) there is no substantial evidence that defendant’s prior
conviction in Washington was a serious felony; and (4) the misdemeanor sentence in
count 4 must be stayed under section 654.
                                          FACTS
       In June 2012, B.2 was finishing her senior year in high school. While driving to a
final examination, she stopped at the red light at Webb Way and Pacific Coast Highway
(PCH). As she waited, a man, later identified as defendant, opened the passenger door of


1      All further references to statutes are to the Penal Code unless stated otherwise.
2      At the time of trial, B. was using a different name.


                                              2
her vehicle, pushed her belongings from the passenger seat, and entered the vehicle. B.
asked defendant to get out of her car, but he did not desist. He unplugged B.’s phone
from the charger, undid her seat belt, grabbed her arm and shoulder, and dragged her
toward him. He then pushed her over the center console and into the back of the car. B.
froze because she did not know what to do. Defendant got into the driver’s seat and put
his hand on B. as she lay on the back seat, angrily telling her to stay down. Defendant
turned right onto PCH.
       B. attempted to see out of the windows although her head was down. Defendant
drove a substantial distance toward Santa Monica and then turned the car around and
headed back toward Malibu. He told B. to get in the front seat and to put the seat in the
reclined position. When B. did not immediately respond, defendant became angry. B.
then got into the passenger seat and pushed the button to lower it. Defendant became
angry because the seat moved slowly, and B. was frightened.
       Defendant asked B. personal questions, such as her name, age, birthday, and
address, and she gave him mostly untruthful responses. He asked when people would
notice she was gone and if she knew of any hotels or secluded areas. B. was shaking and
crying. Defendant asked how to get to the freeway and said he was going to take her to
Canada or Mexico. Defendant placed his hand on B.’s thigh and held it there. He also
rubbed up and down her thigh and moved further up her leg and asked her if she was
really 17. He rubbed her vagina over her clothing. Defendant continually made U-turns
and pulled off the highway to the side of the road. At one of these stops, he squeezed her
breast and vagina with his hand. At one point, defendant covered B.’s face with a blanket
he found in the car.
       After defendant had driven around for an hour or more, the car needed gas.
Defendant pulled into a gas station and got out of the car. He angrily told B. to stay
down. When defendant entered the gas station building, B. peeked over the top of the
back window and tried to get the attention of one of the attendants. When a man looked
at her, B. mouthed “help me.” The man beckoned to other people and pointed at her car.
When defendant came out and began pumping gas, one man asked to see defendant’s

                                             3
driver’s license. Defendant refused, and the man told defendant he was calling the
police, and he knew the license plate number. B. did not think she would be safe if she
tried to get out of the car because she would not have time to unbuckle her seat belt and
unlock the door.
       Siros Azimi was the manager of the gas station where defendant stopped. He
identified surveillance video filmed at the time of the incident. His attention was drawn
to B.’s car, and he read her lips saying, “Help.” She looked scared and was crying.
Azimi saw defendant get back in the car and drive off. Azimi called 911 and gave the
license plate number. Michael Miller was at the gas station and noticed that B. was
crying and in obvious distress. He then saw that she was pleading, “Please, please help
me.” As defendant was pumping gas, Miller asked him what was going on. Defendant
got in the car and Miller stood in front of the car and said, “I don’t know what’s going on.
. . . But you may as well just let her leave now.” Other people were gathering around the
car. Defendant put the car in reverse and backed out.
       Defendant drove along PCH and then turned onto Kanan Dume Road. He pulled
off the road and parked the car behind some plants and waited. He told B. they were
being followed. He then continued up the road and stopped in a turnout where there were
trash cans. He took B.’s phone and GPS unit, put them in a trash can, and put trash on
top of them. A man who had been at the gas station was on his way to the freeway when
he saw B.’s SUV on Kanan Dume Road. He realized it was the same vehicle that had
been at the center of the encounter at the gas station. He called 911 and then followed the
vehicle to the turnout. At that point, sheriff’s deputies pulled up. The deputies arrested
defendant.
       B.’s ordeal lasted four or five hours. She testified that during that time, defendant
said he was there to protect her and that he was saving her from people following her and
trying to kidnap her. He told her that fate had brought them together. He said he was
sending people to her house to protect her family. He told B. he wanted to go to Canada
so they could be together.



                                             4
       As defendant was being transported to the sheriff’s station by Deputy Jill
Greenwood, he took off his seat belt and began moving around. Upon reaching the
station, defendant lay across the back seat and began kicking out the window on the right
side of the car. He succeeded in pushing the frame away from the body of the car.
       At approximately 10:00 p.m., Deputy Matthew Lewis transported defendant from
the sheriff’s station to the jail in downtown Los Angeles. While Deputy Lewis and
another deputy, Deputy Durfee, proceeded along the freeway, defendant lay down in the
rear seat and began kicking the rear passenger window. Defendant ignored orders to
stop. He bent the frame and kicked the window out. Deputy Lewis turned on the
overhead lights and proceeded to move from the No. 1 lane to the shoulder through heavy
traffic. Defendant lunged headfirst toward the opening he had made in the window. As
defendant leaned out the window, Deputy Durfee was able to grab defendant’s handcuffs
and hold him inside the car. Deputy Lewis parked on the shoulder and pushed defendant
back inside.
Defense Evidence
       Defendant presented no evidence in his behalf.
                                      DISCUSSION
I. Count 1 Conviction as a Lesser Included Offense of Count 2
       A. Argument
       Defendant contends that the conviction of simple kidnapping in count 1 is a
necessarily lesser included offense of his conviction for kidnapping during the
commission of a carjacking in count 2. Therefore, the conviction in count 1 must be
vacated, since multiple convictions may not be based on necessarily lesser included
offenses. Respondent agrees.
       B. Relevant Authority
       “‘[I]f a crime cannot be committed without also necessarily committing a lesser
offense, the latter is a lesser included offense within the former.’” (People v. Reed (2006)
38 Cal.4th 1224, 1227.) A defendant may not be convicted of both an offense and a
lesser included offense. (Ibid.; see also People v. Anderson (2009) 47 Cal.4th 92, 103-

                                             5
104.) For purposes of avoiding improper multiple convictions, only the statutory
elements test is to be used in determining whether an offense is necessarily included in
another. (Reed, at p. 1229.)
       C. Conviction Must Be Vacated
       Defendant was convicted in count 2 of violating section 209.5, subdivision (a),
which prescribes punishment for “[a]ny person who, during the commission of a
carjacking and in order to facilitate the commission of the carjacking, kidnaps another
person who is not a principal in the commission of the carjacking . . . .” In count 1,
defendant was convicted of simple kidnapping in violation of section 207, which
provides: “Every person who forcibly, or by any other means of instilling fear, steals or
takes, or holds, detains, or arrests any person in this state, and carries the person into . . .
another part of the same county, is guilty of kidnapping.”
       Clearly, simple kidnapping is a necessarily included offense of count 2, since
kidnapping is one of the elements of section 209.5. Therefore, the conviction in count 1
must be vacated.
II. Lack of Instruction on Simple Kidnapping in Count 2
       A. Argument
       Defendant contends that, had the jury been instructed on simple kidnapping in
count 2, it could readily have determined there was insufficient evidence to conclude the
kidnapping was intended to facilitate the carjacking and reasonably found him not guilty
of count 2. Defendant maintains there was considerable ambiguity as to whether he
intended the kidnapping as a means to facilitate the carjacking or whether his target
offense was the kidnapping of B. with the carjacking being merely incidental to that
objective. According to defendant, his conviction in count 2 should be reversed and
remanded for a new trial.
       B. Relevant Authority
       “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence. On the other hand, the
court is not obliged to instruct on theories that have no such evidentiary support.”

                                                6
(People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) “[T]he existence of
‘any evidence, no matter how weak’ will not justify instructions on a lesser included
offense, but such instructions are required whenever evidence that the defendant is guilty
only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.”
(Ibid.) “‘Substantial evidence’ in this context is ‘“evidence from which a jury composed
of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater,
was committed.” (Ibid.; People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
       An appellate court “appl[ies] the independent or de novo standard of review to the
failure by the trial court to instruct on an assertedly lesser included offense.” (People v.
Cole (2004) 33 Cal.4th 1158, 1218.) If the trial court fails in its duty to instruct on a
lesser included offense supported by the evidence, the error is at most one of state law
alone. (Breverman, supra, 19 Cal.4th at p. 165.) It does not require reversal unless “an
examination of the entire record establishes a reasonable probability that the error
affected the outcome.” (Id. at pp. 165, 178.)
       C. Instruction Not Required; Harmless Error
       We disagree with defendant and conclude the trial court had no sua sponte duty to
instruct on simple kidnapping as a lesser included offense in count 2. As noted, section
209.5, subdivision (a), provides: “Any person who, during the commission of a
carjacking and in order to facilitate the commission of the carjacking, kidnaps another
person who is not a principal in the commission of the carjacking shall be punished by
. . . .” With respect to count 2, defendant’s jury was instructed that the People were
required to prove that the defendant committed a carjacking, that during the carjacking he
held another person by using force or by instilling reasonable fear, that he moved the
other person a substantial distance, and that he moved the person with the intent to
facilitate the carjacking or to help himself escape or to prevent the other person from
sounding an alarm.3 (CALCRIM No. 1204.) (Italics added.) The jury was also



3      The instruction also listed the following elements: that the person moved must not
be one of the carjackers, that the person must not have consented to the movement, and

                                              7
instructed that carjacking and false imprisonment were lesser crimes of kidnapping
during a carjacking as charged in count 2. (CALCRIM No. 1204.)
       The evidence showed that defendant entered the victim’s vehicle and immediately
took control of it. He grabbed B. by the arm, pulled her out of the driver’s seat, and
pushed her into the back seat. He held her down and continued to drive the car for an
extended period of time, during which he asked her how to get to the freeway and
indicated he wanted to drive to Mexico or Canada. Although simple kidnapping is a
lesser included offense to the charge of kidnapping for carjacking (People v. Medina
(2007) 41 Cal.4th 685, 700), defendant clearly desired to, and did, commit a completed
carjacking, and he took B. along with him, at least initially, to facilitate that carjacking.
(See People v. Lopez (2003) 31 Cal.4th 1051, 1062 [carjacking is complete when the
perpetrator drives off with the carjacking victim in the car].) Kidnapping B. was much
easier than attempting to push B. out of the car. Defendant did not appear to have a
weapon, which would require him to use force and struggle with B. This would have
taken time, attracted attention, and quite possibly caused an accident. The kidnapping
allowed defendant to make a fast getaway from the intersection. It also prevented B.
from sounding the alarm.
       That defendant later showed a prurient interest in his young female victim, and
that he appeared to be somewhat unsure of his next move, do not create a scintilla of
ambiguity regarding his intention to steal a car by means of kidnapping the driver.
Defendant was in effect lying in wait at the stop light until a potential victim came along.
His apparent sexual interest in B. does not negate the fact that defendant committed a
carjacking and chose as his carjacking victim a person who was less likely to be able to
offer resistance and whom he could control within the car and ensure his escape. The trial
court had no duty to give the additional lesser-included instruction when there was no




that the defendant did not actually and reasonably believe that the other person consented.
(CALCRIM No. 1204.)


                                               8
evidence the offense was less than that charged. (Breverman, supra, 19 Cal.4th at p. 162;
People v. Pham (1993) 15 Cal.App.4th 61, 68.)
       In any event, it is not reasonably probable that a result more favorable to
defendant would have resulted in the absence of the alleged error. (Breverman, supra,
19 Cal.4th at pp. 165, 178; People v. Watson (1956) 46 Cal.2d 818, 836.) Even if the
jury had been instructed on simple kidnapping, the only reasonable inference to be drawn
from the evidence was that a completed carjacking took place, and defendant kidnapped
B. in order to accomplish it. As stated in Breverman, the test of prejudice focuses on
what the jury is likely to have done in the absence of the error, not on what a reasonable
jury could do. (Breverman, at p. 177.) Defendant’s jury was not likely to have found
him not guilty of the offense in count 2 merely because he developed an interest in B. as
well as in the car. The prosecutor told the jury members that if they found defendant did
not intend to permanently or temporarily deprive B. of her car, they should find he
committed false imprisonment, and the jury did not do so. Defendant’s argument is
without merit.
III. Washington State Prior as a Strike Offense
       A. Argument
       Defendant contends that, since the Washington theft statute does not include the
element of intent to permanently deprive the victim of the property, the Washington
statute is broader than the California theft statute. Therefore, under the least-adjudicated-
elements test, a second degree robbery under the Washington statute is not equivalent to a
second degree robbery under the California statute, and defendant did not suffer a prior
strike. Moreover, the prosecution did not present substantial evidence that when
defendant committed the robbery in Washington, he specifically intended to permanently
deprive the victim of the keys he forcibly took from the victim.
       B. Proceedings Below
       Defense counsel filed a motion to strike the allegation of a strike prior conviction,
arguing that defendant’s conviction did not qualify as a serious felony in California for
the reasons stated ante. At the hearing on the motion, the People introduced a packet

                                              9
from the Washington Department of Corrections, a certified copy of the amended
information, and an additional packet containing a certified document with defendant’s
statement regarding the facts of his crime. The documents were received as evidence
over the defense objection. The prosecutor stated that both the California and
Washington statutes involve nonstatutory elements—elements not contained in the actual
code sections—that are nevertheless contained in the jury instructions for those crimes.
The statutes themselves are virtually identical. Moreover, the court could look at the
entire record of conviction, and defendant’s statement is that he went up to a person, hit
him in the face, and took his car keys. It defied logic to say that defendant would punch
the person, take the keys, and then give them back. The circumstances of the crime
combined with the statutory requirements clearly met with the requirements in California.
The defense argued that the circumstances of the crime did not aid the prosecution, since
theft of the keys could lead to “a situation . . . like joyriding which does not require the
permanent deprivation of property.”
       The court denied the defense motion, stating it had reviewed the submissions and
heard the arguments, and “when taking it all together, both the law and, in particular, the
facts that were set forth in the plea that was made by the defendant in the referenced case
. . . [t]he court agrees with the People on balance that taken together, all of that, that it
would be this Court’s opinion that the Washington law was sufficiently similar to
constitute a prior for purposes of this matter.”
       C. Relevant Authority
       Section 667, subdivision (a)(1) provides for a five-year enhancement to the
sentence of “any person convicted of a serious felony who previously has been convicted
of a serious felony in this state or of any offense committed in another jurisdiction which
includes all of the elements of any serious felony” Section 667, subdivision (d), which
defines serious and/or violent felonies for purposes of the Three Strikes law, provides in
subsection (d)(2) that “[a] prior conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state prison shall
constitute a prior conviction of a particular serious and/or violent felony if the prior

                                               10
conviction in the other jurisdiction is for an offense that includes all of the elements of a
particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony
as defined in subdivision (c) of Section 1192.7.”
         “The People must prove all elements of an alleged sentence enhancement beyond
a reasonable doubt. [Citation.]” (People v. Miles (2008) 43 Cal.4th 1074, 1082.) “To
qualify as a serious felony, a conviction from another jurisdiction must involve conduct
that would qualify as a serious felony in California.” (People v. Avery (2002) 27 Cal.4th
49, 53 (Avery).)
         D. Prior Conviction Enhancement Must Be Reversed
         Robbery is a strike offense under California law. (§1192.7, subd. (c)(19).) On
July 29, 2010, defendant pleaded guilty to second degree robbery in violation of
Washington statutes 9A.56.210 and 9A.56.190. Former section 9A.56.190 of the Revised
Code of Washington provided: “A person commits robbery when he unlawfully takes
personal property from the person of another or in his presence against his will by the
use or threatened use of immediate force, violence, or fear of injury to that person or his
property or the person or property of anyone. Such force or fear must be used to obtain
or retain possession of the property, or to prevent or overcome resistance to the taking; in
either of which cases the degree of force is immaterial. Such taking constitutes robbery
whenever it appears that, although the taking was fully completed without the knowledge
of the person from whom taken, such knowledge was prevented by the use of force or
fear.” (1975 1st Ex. Sess. ch. 260, § 9A.56.190.)4 At the time of defendant’s prior
conviction, the Supreme Court of Washington had interpreted a 1975 revision to its state
criminal code as deleting the common law requirement of intent to “permanently
deprive” from its theft offenses. (State v. Komok (Wash. 1989) 783 P.2d 1061, 1063-
1064.)


4     At the time of defendant’s conviction and currently, section 9A.56.210 provides
merely that a person is guilty of robbery in the second degree if the person commits
robbery, and robbery in the second degree is a class B felony. (Rev. Code Wash.,
§ 9A.56.210.)

                                              11
       The California robbery statute reads: “Robbery is 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.” (§ 211, italics added.) Thus,
as the prosecutor below argued, the statutes are virtually identical, except for the added
language in the Washington statute regarding a taking without the victim’s knowledge.
Nevertheless, in California, the intent element necessary to establish the crime of theft is
generally described as the specific “intent to permanently deprive the owner of
possession of the property.” (Avery, supra, 27 Cal.4th at p. 54; People v. Guerra (1985)
40 Cal. 3d 377, 385; People v. Ortega (1998) 19 Cal.4th 686, 693.) In Avery, while
examining the intent requirement in section 484 (defining theft), our state Supreme Court
noted that California’s theft statute “does not itself expressly require an intent to
permanently deprive. Rather, it merely says that, to be guilty of theft, the person must
‘feloniously steal’ the property; it does not further define the intent requirement.” (Avery,
supra, 27 Cal.4th at p. 55.) Avery explained that, although the statute is silent on intent,
“the ‘statute is declaratory of the common law’ and so includes the common law intent
requirement” (ibid., quoting People v. Davis (1998) 19 Cal.4th 301, 304, fn.1), which, as
noted, is generally described as “the intent to permanently deprive the owner of
possession of the property” (Avery, at p. 54).
       People v. McGee (2006) 38 Cal.4th 682, 706 (McGee) established a procedure for
determining whether an out-of-state prior conviction qualifies as a strike offense in
California. Under McGee, when the definition of robbery under California and a
different state’s law differs, “the enumeration of the elements of the offense does not
resolve the issue.” Therefore, a reviewing court is required to “examine the record of the
prior proceeding to determine whether that record is sufficient to demonstrate that the
conviction is of the type that subjects the defendant to increased punishment under
California law.” (Ibid.; see also People v. Woodell (1998) 17 Cal.4th 448, 452-461.)
This inquiry was to be narrowly limited ‘“only to those record documents reliably
reflecting the facts of the offense for which the defendant was convicted.”’ (People v.
Trujillo (2006) 40 Cal.4th 165, 177; People v. Reed (1996) 13 Cal.4th 217, 223.) The

                                              12
court could not make an independent determination regarding a disputed issue of fact
relating to the defendant’s prior conduct (see Woodell, at p. 460), but rather was obliged
to examine the record of the prior proceeding to determine whether that record was
sufficient to demonstrate that the conviction was of the type that would subject the
defendant to increased punishment under California law. (McGee, at p. 706.)
       In the instant case, the certified records from Washington show that defendant was
convicted of second degree robbery. The charging document states that the defendant,
Alexis Fantauzzi, “did unlawfully and with intent to commit theft take the personal
property of another, to wit: car keys, from the person and in the presence of Caleb
Woods, against his will by the use or threatened use of immediate force, violence and
fear of injury to such person.” Defendant’s handwritten statement on plea of guilty
states: “On or about March 31, 2010, in King County, WA, I unlawfully and with intent
to commit theft, took personal property, to wit: keys, from the person of and in the
presence of Caleb Woods, by use of force or by threatened use of immediate force,
violence or fear of injury. I hit him.” The certificate of probable cause, contained within
the plea agreement, stated that defendant confronted the victim and demanded his car
keys when the victim got out of his car. When the victim refused, defendant punched
him at least three times in the face and head and then fled on foot. After a search of the
area, police spotted defendant and detained him. Defendant, later identified by the
victim, said he was looking for a car to steal so that he could run over the people who
raped his wife.
       Defendant observes that the Washington statute does not contain the intent to
permanently deprive, and he argues that the trial court in his case erred in looking beyond
the statute in making its determination that his Washington robbery conviction was a
strike offense. He asserts that evolving jurisprudence from the United States Supreme
Court likely precludes any factfinding beyond the statutory elements of a prior
conviction. In this vein, he cites Shepard v. United States (2005) 544 U.S. 13 (Shepard)
and Descamps v. United States (2013) ___ U.S. ___ [133 S.Ct. 2276] (Descamps). Both
cases interpreted the boundaries of permissible inquiries into a defendant’s prior

                                             13
convictions for purposes of enhancing sentences under the Armed Career Criminal Act
(ACCA). (Shepard, at pp. 15-16; Descamps, at p. 2281.)
       According to Descamps, Taylor v. United States (1990) 495 U.S. 575 (Taylor)
“established the rule for determining when a defendant’s prior conviction counts as one
of ACCA’s enumerated predicate offenses . . . .” (Descamps, supra, 133 S.Ct. at p.
2283.) Under Taylor, a sentencing court could look only to the statutory definitions, or
the elements, of a defendant’s prior crimes, and not to the facts underlying the
convictions to determine whether the crime committed was the equivalent of the
“generic”ACCA offense. (Descamps, at p. 2283.) As Shepard noted, Taylor held that a
court sentencing under the ACCA could also look to the charging documents and jury
instructions to determine whether a prior conviction after a jury trial was for generic
burglary. (Shepard, supra, 544 U.S. at p. 16.)
       The question in Shepard was whether, in following the “categorical” approach
imposed by the ACCA, a sentencing court could look at police reports or complaints to
determine if an earlier conviction by guilty plea necessarily admitted a conviction for
generic burglary. (Shepard, supra, 544 U.S. at pp. 16, 19.) Shepard held that, under the
Taylor rule, these documents could not be consulted. (Shepard, at p. 16.) The Shepard
court went on to approve a sentencing court’s use of a restricted range of documents
when making such a determination: “the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or some comparable judicial
record of this information.” (Id. at p. 26.)
       Subsequently, in Descamps, the court reiterated that, under the ‘“categorical
approach,”’ a past conviction can be enhanced only if the elements of the prior conviction
are the same or narrower than those of the generic offense. (Descamps, supra, 133 S.Ct.
at p. 2281.) Descamps stated that the court had previously approved a variant of that
method, the “modified categorical approach,” which could be used only when the
conviction was for a violation of a divisible statute, i.e., a statute that sets out one or more
elements in the alternative. In these latter cases, a sentencing court may consult a limited

                                               14
class of documents, such as indictments and jury instructions, to determine which
alternative was violated by the defendant and then compare the elements of the actual
offense committed with those of the generic crime. (Id. at pp. 2281, 2283.) Descamps
noted that the modified categorical approach was properly applied in Shepard, supra, 544
U.S. 13, which involved a divisible Massachusetts burglary statute that covered entries
into boats and cars, as well as the “generic burglary” of entry into a building. (Descamps,
at p. 2284; Shepard, at pp.16-17.)
       In Descamps, the court reversed the Ninth Circuit, which had ruled that a court
could look at underlying facts to determine whether a prior conviction qualified as an
ACCA predicate even though the elements of a violation of a nondivisible statute (in that
case, burglary) failed to satisfy the categorical test. (Descamps, supra, 133 S.Ct. at pp.
2281-2283.) Descamps held that, because the California burglary statute at issue was
broader than the generic statute (it did not require the entry to have been unlawful), the
defendant’s prior conviction was not a predicate under ACCA. (Descamps, at pp. 2282-
2283.) And because the statute contained a single indivisible set of elements, the court
could not scrutinize documents, including the plea colloquy, to discover whether the
element of unlawful entry could be found. (Id. at pp. 2285-2286.)
       The Descamps court stated that a finding of a predicate offense would undeniably
increase the maximum penalty and therefore raise serious Sixth Amendment concerns if
it went beyond merely identifying a prior conviction. (Descamps, supra, 133 S.Ct. at p.
2288.) Descamps criticized the Ninth Circuit for authorizing the court to attempt to
discern what a trial showed or a plea proceeding revealed about the defendant’s
underlying conduct. (Ibid.) “The Sixth Amendment contemplates that a jury—not a
sentencing court—will find such facts, unanimously and beyond a reasonable doubt. And
the only facts the court can be sure the jury so found are those constituting elements of
the offense—as distinct from amplifying but legally extraneous circumstances.” (Ibid.)
       The California Supreme Court has not spoken on the effect of the Descamps
decision on McGee. In the California Courts of Appeal, Descamps has been seen as
signaling the end of the type of factfinding approved by McGee. In People v. Saez (2015)

                                             15
237 Cal.App.4th 1177 (Saez), the court considered “whether a strike determination that
does not run afoul of McGee . . . may nevertheless violate the Sixth Amendment.” (Saez,
at pp. 1205-1206.) In Saez, the defendant had sustained a conviction by plea in
Wisconsin, where he admitted to the elements of false imprisonment while armed and to
the reckless use of a dangerous weapon in his guilty plea. He did not admit or waive his
Sixth Amendment rights regarding other facts, such as whether he personally used a
firearm. (Saez, at pp. 1190, 1206.) The Saez court agreed that the simple fact of the
defendant’s convictions of the Wisconsin statutes did not establish that his offense was a
serious felony under section 1192.7, subdivision (c). (Id. at pp. 1194-1195.) The only
way to determine whether the offense the defendant committed included all the elements
of a serious felony in California was to look to the record of the prior conviction. (Id. at
p. 1195.) Saez concluded that the trial court’s reliance on the Wisconsin record of
conviction in order to declare the offense a strike was in accord with McGee, but violated
the Sixth Amendment under Descamps. (Saez, at pp. 1195, 1198.) The court reversed
the strike determination. (Id. at pp. 1198, 1209.)
       A few months later, People v. Marin (2015) 240 Cal.App.4th 1344 (Marin)
reached the same conclusion. The Marin court concluded (and the respondent conceded)
that the evidence was insufficient to prove that Marin’s prior vehicular manslaughter
conviction was a strike. Neither the elements of the offense nor the evidence presented
by the prosecution, showed that he personally inflicted great bodily injury “on any
person, other than an accomplice,” as required under section 1192.7, subdivision (c)(8).
(Id. at pp. 1348, 1350.) The court held that under Descamps, the judicial factfinding
authorized by McGee violates the Sixth Amendment right to a jury trial. That right is not
violated, however, when the factfinding is limited to the documents approved in Taylor
and Shepard, i.e., indictment, jury instructions, plea colloquy, and plea agreement.
(Marin, at pp. 1348-1349, 1363.) Marin further concluded that under Descamps, the
Sixth Amendment does not prohibit judicial factfinding beyond the statutory elements of
the prior conviction if, in entering a guilty plea to the prior offense, the defendant waived
his right to a jury trial with respect to such facts and either admitted the facts, or the court

                                              16
found them true with defendant’s assent. (Marin, at p. 1349.) The court reversed the true
finding on the strike allegation and remanded the matter to the trial court for further
proceedings. (Id. at p. 1366.) According to the Marin court’s understanding of
Descamps, the prosecution should be given an opportunity to prove the relevant facts by
resorting to documents in the record of conviction, and the defendant was entitled to a
jury trial on the issue of whether he personally inflicted great bodily injury, unless he
waived his right to a jury trial.
       “The specific intent with which an act is performed is a question of fact.” (In re
Albert A. (1996) 47 Cal.App.4th 1004, 1008.) In the instant case, under the reasoning of
Saez and Marin, the sentencing court in defendant’s case violated his Sixth Amendment
rights by finding his Washington conviction to be a strike. The Washington robbery
statute is broader than the elements of robbery in California, which include the intent to
permanently deprive the owner of the property. Thus, the simple fact of defendant’s prior
Washington conviction did not establish that the offense was a serious felony under
section 1192.7, subdivision (c). In addition, assuming the trial court properly considered
the documentation related to defendant’s guilty plea, which consisted of documents
approved in Taylor and Shepard, the intent element was not clearly established.
Therefore, we must reverse the true finding on the prior conviction allegation and modify
defendant’s sentence accordingly.
IV. Section 654 and Count 4
       A. Argument
       Defendant contends that under section 654 the trial court should have stayed his
sentence for the misdemeanor escape in count 4. The attempted escape in count 4 and the
vandalism in count 5 were incident to a single course of criminal conduct and shared the
single intent of escaping from custody.
       B. Relevant Authority
       Section 654 provides in pertinent part: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that



                                             17
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”
       Section 654 precludes double punishment not only for a single act, but also for an
indivisible course of conduct motivated by a single intent or objective. (People v.
Latimer (1993) 5 Cal.4th 1203, 1207-1209.) When section 654 applies, the proper
procedure is to stay imposition of sentence on one of the crimes, with the stay to become
permanent on completion of the term imposed on the other. (People v. Pearson (1986)
42 Cal.3d 351, 360.) The determination of whether the facts reveal a single intent and
objective is generally a factual matter, whereas the application of section 654 to the facts
is a question of law. (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.) If the court
makes no express finding on the issue, a finding that the crimes were divisible “inheres in
the judgment” and must be upheld if supported by substantial evidence. (People v.
Nelson (1989) 211 Cal.App.3d 634, 638.)
       C. No Violation of Section 654
       We disagree with defendant’s claim that his two acts of kicking out patrol car
windows were part of a single course of conduct, even if his goal was to escape both
times. Defendant’s course of conduct was not indivisible.
       The entire circumstances must be considered in determining whether the course of
conduct is divisible and whether the crimes were committed with different intents. (See,
e.g., People v. Hooker (1967) 254 Cal.App.2d 878, 880-881.) Therefore, although the
nature of the offenses is relevant, it is not determinative. B.’s ordeal ended at
approximately 10:00 a.m., and defendant was shortly thereafter transported in the first
police car. The second trip did not occur until approximately 12 hours later. Defendant
clearly committed two different crimes at two different locations, and each crime was
complete within itself.
       Defendant’s second act of smashing the window was more violent, and his intent
was clearly to escape. It also involved different risks. (People. v. Kwok (1998) 63
Cal.App.4th 1236, 1256 [when each entry of burglar into a residence creates a separate
and distinct risk of violent confrontation, they are separately punishable].) The first time

                                             18
defendant smashed the patrol car window, he was already inside the parking lot of the
police station. The second time, the police were obliged to cross from one side to the
other of a busy freeway while one officer held onto defendant’s handcuffs after defendant
hurled himself headfirst through the broken window. This seriously endangered
defendant, other drivers, and the police officers. Moreover, as in Kwok, defendant’s two
acts of destroying police car windows were separated by a long period of time during
which he had the opportunity to reflect. (Id. at pp. 1256-1257; People v. Gaio (2000) 81
Cal.App.4th 919, 935-936.) Defendant was properly sentenced in counts 4 and 5.
                                      DISPOSITION
       The enhancements for the prior strike conviction from the state of Washington are
reversed, and the judgment is modified to vacate defendant’s conviction in count 1 for
simple kidnapping. The judgment is modified to reflect that defendant’s minimum parole
eligibility is seven years, the six-year sentence in count 5 is reduced to three years, and
the five-year enhancement under section 667, subdivision (a)(1) is stricken, for a total
determinate sentence of five years with consecutive life term. In all other respects, the
judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       CHAVEZ, J.


       HOFFSTADT, J.




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