Filed 5/27/16 P. v. Garcia CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040262
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F20580)

         v.

ELVIS LORENZO GARCIA,

         Defendant and Appellant.


         In the course of robbing a coffee shop, defendant Elvis Lorenzo Garcia sexually
assaulted an employee at knifepoint. Defendant then barricaded the employee in an
unplugged refrigerator and fled with $160. A jury found defendant guilty of forcible
sexual penetration by a foreign object, forcible sodomy, sexual battery by restraint,
second degree commercial burglary, second degree robbery, and aggravated kidnapping.
The jury found numerous enhancements to be true, including allegations that defendant
personally used a deadly and dangerous weapon in the commission of the offenses. The
trial court imposed an aggregate term of 65 years four months to life.
         Defendant raises several claims of sentencing error on appeal. First, he contends
the trial court erred under Penal Code section 667.61 by imposing a full consecutive term
for sodomy in addition to the term for penetration by a foreign object. Second, he
contends the court erred under section 654 by imposing separate punishments for second
degree robbery and aggravated kidnapping. Third, he contends the court erred by
         1
             Subsequent undesignated statutory references are to the Penal Code.
imposing a one-year weapon use enhancement on the aggravated kidnapping count
because the same factor was used to enhance the terms imposed for the sexual assaults.
Fourth, he contends the court erred by imposing a sentence on Count Eight because it was
a lesser included offense of Count Seven and the jury returned no verdict on Count Eight.
The Attorney General concedes the merits of the last two claims.
       We conclude the trial court did not abuse its discretion by imposing a full
consecutive term for sodomy. However, we agree with defendant that section 654
requires that the term imposed for second degree robbery must be stayed. As to the
remaining claims, we accept the Attorney General’s concessions and we grant the
requested relief. We will affirm the judgment as modified.2
                      I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offense
       In 2008, Jane Doe was a 23-year-old barista and manager at the Kind Grind coffee
shop in Santa Cruz. On the morning of March 19, she arrived at the shop to prepare for
opening. Shortly thereafter, defendant entered the shop, demanded money, and sexually
assaulted Doe at knifepoint. After assaulting her, defendant put Doe in an unplugged
refrigerator, pushed a table against the refrigerator door, and fled with $160 from the cash
register. Three years later, police matched defendant’s DNA to DNA found in sperm
collected from Doe’s body and underwear.
       1. Testimony of Jane Doe
       At trial, Doe testified as follows. At around 6:00 a.m. on March 19, 2008, she
walked from her apartment in Santa Cruz to the Kind Grind coffee shop at the mouth of
the lower harbor. She unlocked the doors, entered the shop, and began preparing it for
opening. Doe was alone at the time. The cash register drawer, holding $160 in bills and
$40 in change, had been placed in a refrigerator for safe keeping. About 15 to 20 minutes


       2
        Defendant raises additional claims in a separate petition for habeas corpus. (In
re Garcia, H042758.) We deny defendant’s petition in a separate order on this date.
                                             2
after Doe unlocked the doors, a young Latino man entered the shop. He was wearing
khaki pants, a blue shirt, and a black hooded sweatshirt with silver writing on it.
        Before Doe could tell the man the shop was still closed, he rushed toward her
while repeating, “Where is the money?” Doe saw the flash of a knife in his right hand.
The man put the knife to Doe’s neck, and she repeatedly told him, “Take the money. It’s
in the fridge.” The man told Doe to get on the floor, whereupon she laid on the floor face
down. While holding the knife to her back, the man told Doe to take her pants off. She
pleaded, “No. No. Please. No. No. Just take the money.” She feared he would stab or
kill her.
        Doe was unable to remove her pants while lying on the floor, so she pushed
herself up to a kneeling position. While she was trying to lower her pants, the man put
his hand into her shirt, moved it under her bra, and groped her breast. She again begged
the man, “Please stop.” After she pulled her pants down, he began sodomizing her from
behind. He inserted his penis into her anus, removed it, and inserted it again. At the
same time, the man was licking his fingers and touching her vagina. He reached around
her stomach and put his fingers inside her vagina. She kept begging him to stop, but he
told her, “shut the fuck up,” and “[b]e quiet.” The man inserted his penis into her anus
two or three times. He inserted his fingers in her vagina at the same time he was
sodomizing her. Doe could not tell whether defendant ejaculated. She estimated the
sexual assault lasted around three to five minutes.
        When the man finished sodomizing Doe, he told her, “Where’s the money. Get
the money.” She got up, pulled her pants up, and took him to the refrigerator where she
had stored the cash register drawer. The man followed her from behind. She took the
cash drawer out of the refrigerator and set it on a counter. The man then took her into the
kitchen and told her to get into another refrigerator. This second refrigerator was
unplugged, and there were no keys for the lock on the door. When Doe told the man the
doors would not lock, he took her to a gelato freezer, but the freezer did not have enough

                                              3
space for her. At that point, the man took her back to the unplugged refrigerator, and she
got in. He shut the door, and Doe heard the sound of a table being pushed against the
door. Doe stayed quiet until she heard the man leave, at which point she pushed her way
out of the refrigerator.
       After escaping from the refrigerator, Doe used the coffee shop’s telephone to call
911. Her cell phone was missing; she never saw it again. After the police arrived and
interviewed Doe, they took her to the Watsonville Hospital where she underwent a SART
exam. Police canvassed the area around the coffee shop but were unable to locate the
assailant at that time. When police examined the coffee shop’s cash register drawer,
there were no bills in it; only the change had been left behind.
       2. Medical, Forensic, and Other Evidence
       The SART exam uncovered evidence of physical trauma consistent with Doe’s
description of the offense. Doe arrived at the hospital at around 7:00 a.m. on the morning
of the assault, and the exam began at 10:20 a.m. Doe appeared to be in shock, and she
reported suffering pain in the genital and anal area. The SART nurse observed two linear
red marks on Doe’s neck and another linear red mark on her back. The marks were
consistent with a knife blade being pushed against Doe’s skin. Doe also had red marks
on her left knee.
       In the genital area, Doe exhibited redness on the labia minora consistent with
pressure being applied to her skin. She suffered two lacerations to the perineum tissue
just above the anus consistent with blunt force trauma. The lacerations appeared to be
fresh or recent. The anus exhibited redness and bruising, and a portion of the tissue had
suffered an abrasion. These injuries were consistent with blunt force from a penis. The
nurse recovered an opaque, viscous fluid with the appearance of semen from inside Doe’s
anal canal. The nurse collected swabs of the fluid and preserved them for further
analysis. Doe’s clothing and underwear were also collected and labeled as evidence.



                                             4
       Subsequent analysis of the fluid swabbed from Doe’s anus and underwear
revealed the presence of sperm. DNA extracted from the sperm was subsequently
matched to defendant’s DNA at 15 loci. The prosecution’s DNA expert estimated the
chance of a random match at 15 loci to be one in 23 quintillion for the Hispanic
population.3
       The police arrested defendant on March 11, 2011. His residence was directly
adjacent to the apartment building where Doe lived at the time of the offense. At the time
of his arrest, defendant was wearing a brand of shoes which featured treads having the
same pattern of tread prints left on the kitchen floor of the coffee shop.
   B. Procedural Background
       In September 2011, the prosecution charged defendant by information with eight
counts: Count One—Sexual Penetration by a foreign object using force and violence
(§ 289, subd. (a)(1)); Counts Two and Three—Sodomy by use of force (§ 286, subd.
(c)(2)); Count Four—Sexual battery by restraint (§ 243.4, subd. (a)); Count Five—
Second degree commercial burglary (§ 459); Count Six—Second degree robbery (§ 211);
Count Seven—Kidnapping to commit another crime (§ 209, subd. (b)(1)); and Count
Eight—Kidnapping (§ 207, subd. (a)). As to Counts One, Two, and Three, the
information included special allegations that defendant: (1) kidnapped the victim and the
movement of the victim substantially increased the risk of harm to the victim (§ 667.61,
subd. (d)(2)); (2) kidnapped the victim (§ 667.61, subd. (e)(1)); (3) committed the offense
during the commission of a burglary (§ 667.61, subd. (e)(2)); and (4) personally used a
dangerous or deadly weapon in the commission of the offense (§ 667.61, subd. (e)(4)).
As to all eight counts, the information alleged defendant personally used a deadly and
dangerous weapon. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).)
       The case proceeded to trial in June 2013. The jury found defendant guilty on
Counts One through Seven and found all allegations to be true. As to Count Eight

       3
           A quintillion is a billion billions.
                                                  5
(simple kidnapping), the court instructed the jury that it was a lesser included offense of
Count Seven (aggravated kidnapping), such that defendant could not be convicted of both
offenses for the same conduct. Having found defendant guilty on Count Seven, the jury
handed down no verdict on Count Eight.
       The trial court imposed an aggregate sentence of 65 years four months to life, as
follows: Count One—25 years to life, to run consecutively; Count Two—25 years to life,
to run consecutively; Count Three—25 years to life, to run concurrently with the term on
Count Two; Count Four—one year four months (one-third the midterm plus one-third the
term for the enhancement), to run consecutively; Count Five—three years (the midterm
of two years plus one year for the enhancement), stayed under section 654; Count Six—
six years (the upper term of five years plus one year for the enhancement), the principal
term; Count Seven—eight years to life (seven years to life plus one year for the
enhancement), to run consecutively; and Count Eight—seven years (the midterm of six
years plus one year for the enhancement), stayed under section 654.
                                       II. DISCUSSION
   A. Imposition of a Full Consecutive Term on Count Two
       Defendant contends the trial court erred at sentencing by imposing a full
consecutive term of 25 years to life on Count Two (sodomy). Defendant asserts two
grounds in support of this claim. First, he argues the trial court erroneously imposed the
term under subdivision (d) of section 667.6 (Section 667.6(d)), which mandates a full
consecutive term for certain offenses involving “the same victim on separate occasions.”
Defendant argues that the offenses charged in Counts One (sexual penetration by a
foreign object) and Two (sodomy) occurred simultaneously, not on separate occasions,
such that Section 667.6(d) did not mandate a full consecutive term for Count Two.
Second, defendant contends the trial court abused its discretion by imposing a full
consecutive term under subdivision (c) of section 667.6 (Section 667.6(c)). He argues
that the court’s stated reason for imposing a consecutive term—that the offense was

                                             6
“horrific” in nature—did not make the crime distinctively worse than any other act of
forcible sodomy. He further argues the trial court based its decision on a fact that was
also an element of the crime. Finally, he contends imposition of a consecutive term was
objectively unreasonable given several mitigating factors.
       The Attorney General responds that Section 667.6(d) mandated a full consecutive
term for the sodomy count because the defendant had an opportunity to reflect before
digitally penetrating the victim. Second, the Attorney General contends the trial court
was within its discretion by imposing a full consecutive term under Section 667.6(c)
based on the court’s finding that the offense was “horrific” in nature. Finally, the
Attorney General contends defendant forfeited his claim as to discretionary imposition of
the term by failing to object below.
       We conclude the trial court was within its discretion to impose a full consecutive
term for Count Two under Section 667.6(c). We do not reach defendant’s claim under
Section 667.7(d).
       1. Legal Principles
       Section 667.6 sets forth sentencing rules for defendants with multiple convictions
for certain sex offenses as set forth in subdivision (e) of that section. These offenses
include those charged in Counts One (forcible sexual penetration) and Two (sodomy).
(§ 667.6, subds. (e)(4) & (e)(8).) Section 667.6(d) mandates a full consecutive term
under certain circumstances, while Section 667.6(c) grants the court discretion to impose
a full consecutive term. The trial court invoked both provisions as grounds for the
sentence.
       As relevant here, Section 667.6(d) mandates a full consecutive term as follows:
“A full, separate, and consecutive term shall be imposed for each violation of an offense
specified in subdivision (e) if the crimes involve [. . .] the same victim on separate
occasions.” (§ 667.6, subd. (d), italics added.) “In determining whether crimes against a
single victim were committed on separate occasions under this subdivision, the court

                                              7
shall consider whether, between the commission of one sex crime and another, the
defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless
resumed sexually assaultive behavior. Neither the duration of time between crimes, nor
whether or not the defendant lost or abandoned his or her opportunity to attack, shall be,
in and of itself, determinative on the issue of whether the crimes in question occurred on
separate occasions.” (Ibid.)
       “A finding that the defendant committed the sex crimes on separate occasions
‘does not require a change in location or an obvious break in the perpetrator’s behavior.’
[Citation.] Once the trial court has found, under section 667.6, subdivision (d), that a
defendant committed the sex crimes on separate occasions, we will reverse ‘only if no
reasonable trier of fact could have decided the defendant had a reasonable opportunity for
reflection after completing an offense before resuming his assaultive behavior.’
[Citation.]” (People v. King (2010) 183 Cal.App.4th 1281, 1325.)
       Even if a full consecutive term is not mandated by Section 667.6(d) because the
crimes occurred on the same occasion, the court has the discretion to impose a full
consecutive term under Section 667.6(c): “In lieu of the term provided in Section 1170.1,
a full, separate, and consecutive term may be imposed for each violation of an offense
specified in subdivision (e) if the crimes involve the same victim on the same occasion.”
(§ 667.6, subd. (c), italics added.) “A decision to sentence under section 667.6,
subdivision (c) is an additional sentence choice which requires a statement of reasons
separate from those justifying the decision merely to sentence consecutively.” (People v.
Belmontes (1983) 34 Cal.3d 335, 347 (Belmontes).) “The sentencing judge is to be
guided by the criteria listed in [California Rules of Court] rule 4.425, which incorporates
rules 4.421 and 4.423, as well as any other reasonably related criteria as provided in rule
4.408.” (Cal. Rules of Court, rule 4.426(b).) “[W]hen a court exercises its discretion to
impose a full consecutive term under section 667.6, subdivision (c), the court ideally
should explain choosing consecutive rather than concurrent and full rather than

                                             8
subordinate, though the same reason may justify both choices. At a minimum the record
must reflect a recognition that two sentence choices are involved.” (People v. Senior
(1992) 3 Cal.App.4th 765, 781, citing Belmontes, 34 Cal.3d at p. 348.)
       2. Procedural Background
       The probation report recommended full consecutive terms of 25 years to life for
each of Counts Two and Three in addition to the term of 25 years to life for Count One.
As to circumstances in aggravation, the report stated: “The crime involved great
violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness (Rule 4.421 (a)(1)). The victim was
particularly vulnerable due to the early hour of the day and isolated in her place of
employment (Rule 4.421 (a)(3)). The defendant has engaged in violent conduct that
indicates a serious danger to society (Rule 4.421(b)(1)).” The only circumstance in
mitigation identified in the report was the lack of any prior convictions. (Cal. Rules of
Court, rule 4.423(b)(1).) The report concluded that “[t]he crimes involved separate acts
of violence or threats of violence (Rule 4.425(a)(2)), thus indicating consecutive terms;
per Rule 4.423(a)(2), the defendant committed multiple violent sex acts, thus indicating
consecutive sentences.”
       In a written sentencing memorandum, defendant objected to the imposition of full
consecutive sentences for Counts Two and Three in addition to the term imposed for
Count One. Defendant argued that the offenses in Counts Two and Three were
committed on a single occasion in a single course of uninterrupted conduct. Citing
California Rules of Court rule 4.426(a)(2) (incorporating the “separate occasions”
language of Section 667.6(d)), defendant argued that the offenses were not committed on
separate occasions, but on the same occasion. Defendant then conceded that Section
667.6(c) allows for the discretionary imposition of a full consecutive term, but he argued
that the court should not impose such a term. In response to the prosecution’s assertion
that a full consecutive term was justified by the “horrific” nature of defendant’s conduct,

                                             9
defendant argued that the facts of the offense were “significantly less horrific” than those
of most sexual assaults. Accordingly, defendant asked the court not to impose
consecutive terms for Counts Two and Three, but to impose concurrent terms for Counts
One through Three.
       At the sentencing hearing, defendant again argued that the offenses charged in
Counts One through Three occurred on the same occasion. As to the discretionary
imposition of full consecutive terms under Section 667.6(c), counsel for defendant stated,
“I have addressed that at some length in my memorandum and I don’t want to belabor the
point.” Nonetheless, counsel then briefly reiterated points raised in his sentencing
memorandum as to why the court should not impose such terms. Counsel added, “And,
again, this is not to gainsay the effect of this on Miss Doe and her life, but the fact of the
matter is as these cases go this is not a particularly horrific incident. It was relatively
short and as indicated a number of other things that we usually see happening in these
cases did not take place, so I would ask the Court to exercise its discretion to impose
concurrent sentences on Counts 1, 2 and 3 and thereby impose a single 25 to life.”
       As set forth above, the trial court imposed full, separate terms of 25 years to life
on Counts One and Two. The court ordered the term on Count Two to run consecutively.
The court also imposed a full term of 25 years to life on Count Three but ordered it to run
concurrently with the term for Count Two. The court based the imposition of
consecutive terms on both Section 667.6(d) and Section 667.6(c). As to Section 667.6(d),
the court found that defendant had an opportunity to reflect between the commission of
Counts One and Two. As to Section 667.6(c), the court addressed defense counsel as
follows: “I appreciate your zealous advocacy on behalf of your client, but we have a
good faith disagreement regarding the term horrific. I feel this was a horrific act, and I
feel the Court is well within its discretion to have a consecutive sentence regarding
Counts 1 and 2.” The court further stated that the imposition of a full consecutive term



                                              10
for Count Two was “based upon the Court’s exercise of discretion in light of the
circumstances surrounding this incident[].”

       3. Discretionary Imposition of a Full Consecutive Term Under Section 667.6(c)
          Was Not an Abuse of Discretion
       We first consider the trial court’s imposition of a full consecutive term for Count
Two under the court’s discretionary power granted by Section 667.6(c). The Attorney
General contends defendant failed to object to the discretionary imposition of the term,
forfeiting the claim on appeal. We disagree.
       Defendant initially opposed the imposition of full consecutive terms on both
mandatory and discretionary grounds in his written sentencing memorandum. He
specifically addressed the argument that the offense was “horrific” in nature, listing
several reasons why, in his view, his conduct was comparably less culpable than other
sexual assaults. He explicitly cited Section 667.6(c) and argued “that the court should
exercise its discretion not to impose such consecutive sentencing.” He lodged his
opposition to the discretionary term again at the sentencing hearing and cited the
supporting argument in his sentencing memorandum. The Attorney General argues that
defendant only claimed the court “should not” use its discretion to impose the term. She
claims he failed to argue that the court “could not” impose the term because it would be
an “abuse of discretion” to do so. But defendant was not required to use specific words
or phrases. He made known the substance of his opposition, putting the prosecution on
notice and placing the issue before the court for consideration. We find defendant
sufficiently stated his objections and we will consider the merits of the claim.
       The trial court based its decision to impose the discretionary full consecutive term
on the “horrific” nature of the offense and “in light of the circumstances surrounding this
incident[].” Defendant argues that in doing so the court based the decision on a fact that
was also an element of the offense. For this proposition, defendant relies on People v.
Young (1983) 146 Cal.App.3d 729 (Young). In Young, the defendant was convicted of


                                              11
assault with a deadly weapon, among other offenses. The trial court imposed the
aggravated term of five years based on the “ ‘extreme serious nature of the offense,’ ”
among other things. (Young, at p. 734.) The court of appeal held that the use of this
factor was improper: “Although technically the fact of extreme seriousness is not an
element of assault [citation], the factor should not be used to aggravate the assault term.
Factors may be used to aggravate when they have the effect of ‘making the offense
distinctively worse than the ordinary.’ [Citation.] To say an assault with a deadly
weapon is an extremely serious offense merely states the obvious and does not have an
effect of making the offense distinctly worse.” (Ibid.)
       As the Attorney General points out, the court in Young considered the trial court’s
use of the “extreme serious nature” factor to be an assessment of the generic crime; in
other words, assault with a deadly weapon is an inherently serious offense under the legal
definition of that offense. Here, the court stated, “I feel this was a horrific act.” (Italics
added.) The court then added that it was basing its assessment on “the circumstances
surrounding this incident[].” These statements made clear that the court found the
defendant’s actions to be “horrific” based on facts other than those comprising the
elements of the offense, making the crime “distinctively worse than the ordinary.”
(Young, supra, 146 Cal.App.3d at p. 734.) The court was within its discretion to make
such a finding.
       Using the same logic, defendant argues the court’s reliance on the “horrific”
nature of the offense violated California Rules of Court, rule 4.425(b)(2), which prohibits
imposition of a consecutive sentence based on “[a] fact used to otherwise enhance the
defendant’s prison sentence.” (Cal. Rules of Court, rule 4.425(b)(2).) Because defense
counsel did not cite this rule below, defendant frames this claim as one of ineffective
assistance of counsel. Regardless, defendant does not demonstrate how the horrific
nature of the crime was used to “otherwise enhance the defendant’s prison sentence.” If
counsel had lodged an objection under that rule, the trial court properly would have

                                              12
overruled it. Accordingly, defense counsel did not provide ineffective assistance.
(People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel does not provide
ineffective assistance of counsel by declining to lodge a futile objection].)
       Finally, defendant argues that imposition of a full consecutive term for Count Two
was objectively unreasonable based on his personal characteristics. He points to the fact
that he was 18 years at the time of the offense, evidence of his low IQ, and the lack of
any prior criminal record. He states that even without the additional term, he will still
serve a substantial sentence, and that public safety will still be protected because the
indeterminate sentence on Count One will allow the Board of Parole to assess his
dangerousness before releasing him. Defendant’s arguments are not without substance,
but nothing in these claims demonstrates an abuse of discretion by the trial court.
Furthermore, the court’s adherence to state sentencing laws did not violate defendant’s
federal due process rights.
       We conclude the court did not abuse its discretion by imposing a full consecutive
term for Count Two under section 667.6(c). Because the trial court could have imposed a
full consecutive term for Count Two under either Section 667.6(c) or 667.6(d),
defendant’s claim under the latter section is moot. Accordingly, we do not reach it. Even
assuming the court erred in finding the offenses involved separate occasions under
Section 667.6(d), it is not reasonably probable defendant would receive a more favorable
sentence on remand because the court would impose the same sentence under section
667.6(c). (See People v. Avalos (1984) 37 Cal.3d 216, 233 [use of improper factors for
sentencing not grounds for reversal where trial court would impose the same sentence
based on the violent nature of the crime].)

   B. The Imposition of Separate Terms for Robbery and Aggravated Kidnapping Under
      Section 654
       As set forth above, the trial court imposed full and separate terms for Count Six
(second degree robbery) and Count Seven (aggravated kidnapping). Defendant contends


                                              13
both offenses were committed for a single purpose during a single indivisible course of
conduct. Accordingly, he argues the trial court should have stayed the term imposed for
robbery under section 654. The Attorney General contends the trial court properly
declined to stay either of the terms based on an implied finding that defendant’s intent in
putting Doe into the refrigerator was a gratuitous act of violence separate from both the
robbery and sexual assault. We conclude the kidnapping and robbery were part of one
indivisible transaction with the intent and objective to take property from the victim.
Accordingly, the term imposed for Count Six must be stayed.
       1. Legal Principles
       Section 654, subdivision (a) provides, in 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.” Section 654
thereby bars the imposition of multiple sentences for a single act or omission, even
though the act or omission may violate more than one provision of the Penal Code.
(People v. Mesa (2012) 54 Cal.4th 191, 195.) “The purpose of the protection against
multiple punishment is to insure that the defendant’s punishment will be commensurate
with his criminal liability.” (Neal v. State of California (1960) 55 Cal.2d 11, 20 (Neal),
overruled in part on another ground as stated in People v. Correa (2012) 54 Cal.4th 331.)
       “[S]ection 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. [Citation.] Whether a course of
conduct is indivisible depends upon the intent and objective of the actor. [Citation.] 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.” (People v. Perez (1979) 23 Cal.3d 545,
551.) “On the other hand, if the evidence discloses that a defendant entertained multiple
criminal objectives which were independent of and not merely incidental to each other,

                                             14
he may be punished for the independent violations committed in pursuit of each objective
even though the violations were parts of an otherwise indivisible course of conduct.”
(Ibid.)
          Even where reasonable minds can differ on whether multiple crimes involve a
single act, we consider whether the crimes were focused on a single “intent and
objective.” (Neal, supra, 55 Cal.2d at p. 19; People v. Latimer (1993) 5 Cal.4th 1203,
1205-1206.) “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.” (Neal, supra,
55 Cal.2d at p. 19.) By contrast, “If [the defendant] entertained multiple criminal
objectives which were independent of and not merely incidental to each other, he [or she]
may be punished for independent violations 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. Beamon (1973) 8 Cal.3d 625, 639 (Beamon).)
          “Whether the facts and circumstances reveal a single intent and objective within
the meaning of Penal Code section 654 is generally a factual matter; the dimension and
meaning of section 654 is a legal question.” (People v. Guzman (1996) 45 Cal.App.4th
1023, 1028.) We apply the substantial evidence standard of review to the trial court’s
implied finding that a defendant harbored a separate intent and objective for each offense.
(People v. Braz (1997) 57 Cal.App.4th 1, 10; People v. Blake (1998) 68 Cal.App.4th 509,
512.)
          2. Section 654 Requires a Stay of the Sentence on Count Six
          Defendant contends the kidnapping and robbery were part of a single, indivisible
transaction committed for the single purpose of completing the robbery. We agree with
defendant that both offenses occurred in the same course of conduct. Upon finishing his
sexual assault of Doe, defendant immediately demanded money. Because the cash

                                              15
register tray was stored in a refrigerator, defendant moved Doe to the refrigerator,
whereupon Doe removed the register tray and placed it on a counter. Defendant then
took her to an empty, unplugged refrigerator, but the locks on the door did not work, so
he took her to a gelato freezer. After determining she could not fit in the freezer,
defendant took her back to the unplugged refrigerator and barricaded her inside by
pushing a table against the door. Defendant then fled with the money from the cash
register tray, completing both the robbery and the kidnapping. This sequence of events
shows that the actions underlying both offenses occurred simultaneously as part of the
same course of conduct.
       This evidence also demonstrates that defendant kidnapped Doe for the purpose of
completing the robbery. He had already committed the sexual assault by the time he
initiated his asportation of the victim, but he waited until after he had secured her in the
refrigerator before taking the money from the register tray. His objective in moving Doe
around the coffee shop and putting her in the refrigerator was to secure the money and
effectuate his escape. The jury likely found such intent by finding defendant guilty of
aggravated kidnapping. For this count, the trial court instructed the jury that it must find
that, when the asportation began, the defendant already intended to commit robbery,
sodomy, or sexual penetration. As the prosecution stated in closing argument, defendant
had already completed the sexual assault when he began moving the victim. Therefore, it
is likely the jury based its verdict on Count Seven on a finding that defendant committed
the kidnapping with the intent to commit robbery.
       In Beamon, supra, the California Supreme Court applied section 654 to a
defendant convicted of robbery and kidnapping for robbery. There, the defendant entered
the victim’s truck, ordered him to lie on the floor of the cab, and drove the truck away.
After defendant drove the truck for about 15 blocks, the victim engaged defendant in a
physical struggle, and the truck came to a halt. Codefendants approached the truck to
assist in the robbery, but the victim escaped. Applying the intent and objective test set

                                              16
forth above, the appellate court held both offenses were committed pursuant to a single
intent and objective, i.e. the robbery of the truck. (Beamon, supra, 8 Cal.3d at p. 639.)
Accordingly, the court stayed execution of the sentence for the robbery.
       The facts of Beamon are analogous to the facts here in that the sequence of events
demonstrated that both offenses occurred simultaneously with the common purpose of
completing the robbery. (See also People v. Lewis (2008) 43 Cal.4th 415, 519 [staying
sentence for robbery given conviction on kidnapping for robbery], overruled on other
grounds in People v. Black (2014) 58 Cal.4th 912; People v. La Stelley (1999)
72 Cal.App.4th 1396, 1400 [shoplifter who assaulted store employee at exit could not be
punished for both robbery and grand theft since defendant had single intent to steal
merchandise and reach place of safety with it].)
       The Attorney General argues that the kidnapping constituted a “gratuitous act”
that was unnecessary to facilitate the robbery. She compares the facts of the offense to
those in People v. Foster (1988) 201 Cal.App.3d 20 (Foster). There, the defendant and a
codefendant robbed a gas station while armed with a knife and a tire iron. After they
obtained the money, they locked two employees and a witness in a store cooler. The
defendant was convicted of robbery and false imprisonment. The appellate court rejected
the defendant’s claim under section 654 on the ground that “[t]he imprisonment of the
victims occurred after the robbers had obtained all of the money, and therefore was not
necessary or incidental to committing the robbery.” (Id. at p. 28, italics in original.) (See
also In re Jesse F. (1982) 137 Cal.App.3d 164, 171 [when there is an assault after the
fruits of the robbery have been obtained, and the assault is committed with an intent other
than to effectuate the robbery, it is separately punishable].)
       We are not persuaded that Foster applies to the facts of this case. In Foster and
other cases cited by the Attorney General, the defendant committed an act of violence
after the fruits of the robbery had been obtained. Here, defendant had not yet taken the
money from the cash register tray before he barricaded Doe in the refrigerator.

                                              17
Furthermore, his initial asportation of the victim—moving her to the refrigerator holding
the cash register tray—had no other conceivable purpose apart from retrieving the
money. The simultaneity of this conduct thereby demonstrated defendant’s intent. We
see no substantial evidence supporting a finding to the contrary. We also disagree with
Foster to the extent it mischaracterizes the applicable test under section 654. The
question is not whether the commission of the kidnapping was “necessary” to the
robbery, see Foster, 201 Cal.App.3d at page 28; rather, the issue is whether defendant
committed both offenses with the same intent and objective.
       Here, defendant’s actions show his intent and objective following the sexual
assault was to complete the robbery and secure his escape. In addition to barricading Doe
in the refrigerator, he took her cell phone to prevent her from calling the police. The
Attorney General argues that he could have taken the coffee shop’s telephone as well.
But Doe testified that the shop had two phones. One of the two phones was missing after
the robbery, apparently because defendant took that phone as well. Doe was able to call
911 because the other phone in the shop was hidden on a shelf under the counter, such
that defendant was unaware of its presence. Arguably, defendant’s intent and objective
was to escape from the crime scene altogether—i.e. to elude capture for the sexual
assaults as well as the robbery. However, the issue under section 654 in this appeal is
dual punishment for Counts Six and Seven; defendant is not challenging the imposition
of separate punishments for the kidnapping offense and the sexual assaults.
       Finally, we note that a stay of the sentence on Count Six is consistent with the
broader purpose of section 654 since the remaining sentence still reflects defendant’s
greater culpability. Because he was convicted of aggravated kidnapping—i.e.,
kidnapping for robbery—the trial court imposed a much harsher sentence of seven years
to life as compared with a determinate sentence of six years for simple kidnapping.
       For these reasons, we conclude section 654 requires that the sentence on Count Six
be stayed.

                                            18
   C. Imposition of a Sentence Enhancement for Use of a Deadly Weapon in Count
      Seven
       As set forth above, the jury found the allegations that defendant personally used a
dangerous and deadly weapon to be true with respect to all counts. (§ 12022,
subd. (b)(1).) In sentencing defendant to terms of 25 years to life on each of Counts One
through Three, the trial court relied on the weapon enhancement findings and the findings
that the offenses were committed in the course of a burglary. (§ 667.61, subds. (a), (c),
(d)(2), (e)(2), & (e)(3).) Similarly, on Count Seven, the trial court relied on the weapon
enhancement to impose an additional year of imprisonment. Defendant contends this
latter use of the weapon enhancement as to Count Seven was prohibited by
section 667.61, subdivision (f) because the same fact was used to enhance the sentences
on Counts One through Three. The Attorney General concedes this claim.
       We agree with defendant and accept the Attorney General’s concession. Section
667.61, subdivision (f) provides, in part: “If only the minimum number of circumstances
specified in subdivision (d) or (e) that are required for the punishment provided in
subdivision (a), (b), (j), (l), or (m) to apply have been pled and proved, that circumstance
or those circumstances shall be used as the basis for imposing the term provided in
subdivision (a), (b), (j), (l), or (m) whichever is greater, rather than being used to impose
the punishment authorized under any other provision of law, unless another provision of
law provides for a greater penalty or the punishment under another provision of law can
be imposed in addition to the punishment provided by this section.” (§ 667.61, subd. (f).)
       As to each of Counts One through Three, the jury found three enhancements that
could have been used to impose a term of 25 to life under subdivision (a) of section
667.61: (1) that defendant kidnapped the victim (§ 667.61, subd. (e)(1)); (2) that the
offense was committed in the course of a burglary (§ 667.61, subd. (e)(2)); and (3) that
defendant personally used a dangerous and deadly weapon (§ 667.61, subd. (e)(3)).
However, the court could not have relied on the kidnapping enhancement to impose the
term of 25 years to life for any of these counts because doing so would have foreclosed

                                             19
any punishment on Count Seven (aggravated kidnapping) under section 209, subdivision
(d) [a person may not be punished under section 209, subdivision (b) and section 667.61
for the same act that constitutes a violation of both section 209, subdivision (b) and
section 667.61]. Thus, as set forth above, the trial court could rely on only two factors to
impose terms of 25 years to life. Because subdivision (a) of section 667.61 requires at
least two of the factors listed in subdivision (e) to impose a term of 25 years to life, the
court utilized the “minimum number of circumstances” required, thereby triggering the
sentencing limitations set forth in subdivision (f).
       Accordingly, section 667.61 prohibited the trial court from relying on the weapon
use enhancement to impose an extra year on Count Seven. We will strike this term.
   D. Imposition of a Sentence on Count Eight
       Although the jury returned no verdict on Count Eight, the trial court nonetheless
imposed and stayed a sentence on Count Eight. Defendant contends the court erred by
imposing any sentence on this count. The Attorney General concedes this claim.
       We agree with defendant and accept the Attorney General’s concession. Because
the jury returned no verdict on Count Eight, the trial court erred by imposing any
punishment on that count. Accordingly, we will strike the term imposed on Count Eight.
And, as the Attorney General concedes, we must accordingly reduce the fees imposed by
the court. Under section 1465.8, the court imposed security fees totaling $320, equal to
$40 for each of the eight counts. Because defendant was convicted on only seven counts,
the court was only authorized to impose $280 in court security fees. (§ 1465.8,
subd. (a)(1).) Similarly, under Government Code section 70373, the court imposed
criminal conviction assessments totaling $240, equal to $30 for each of the eight counts.
But the court was only authorized to impose $210. (Govt. Code, § 70373, subd. (a)(1).)
We will reduce these fees accordingly.




                                              20
                                    III.   DISPOSITION
      The judgment is modified as follows: (1) On Count Six, the term of six years (five
years for the upper term and one year for the enhancement) is stayed under Penal Code
section 654; (2) on Count Seven, the one-year term imposed for the weapon use
enhancement is stricken; (3) on Count Eight, the term of seven years (six years for the
midterm and one year for the enhancement) is stricken; (4) the total amount of court
security fees imposed under Penal Code section 1465.8 is reduced from $320 to $280;
and (5) the total amount of criminal conviction assessments imposed under Government
Code section 70373 is reduced from $240 to $210. The judgment is affirmed as
modified.




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                           _______________________________
                           Márquez, J.




WE CONCUR:




_____________________________________
 Rushing, P. J.




______________________________________
 Grover, J.
