Filed 9/29/16 P. v. Statler CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A142141
v.
CHARLES VASIL STATLER, (Lake County
Super. Ct. No. CR931371)
Defendant and Appellant.
Defendant Charles Vasil Statler appeals from the trial court’s judgment after jury
trial sentencing him to 27 years and eight months in state prison for kidnapping,
carjacking, making criminal threats and numerous sentencing enhancements. The sole
issue raised by defendant on appeal is that the trial court should have stayed his
punishments for kidnapping and making criminal threats pursuant to Penal Code section
654 because all of his actions in question were part of one indivisible course of conduct
and objective: to force his victim to tell him what she knew about purportedly stolen
marijuana worth about $150,000. We conclude there is substantial evidence that
defendant’s actions were divisible and taken for multiple objectives. Therefore, we
affirm the judgment.
1
BACKGROUND
In March 2014, the Sonoma County District Attorney filed an amended
information charging defendant with kidnapping (Pen. Code, § 207, subd. (a); count 1),1
carjacking (§ 215, subd. (a); count 2), false imprisonment (§ 236; count 3), robbery
(§ 211; count 4), grand theft (§ 487, subd. (c); count 5), unlawfully driving and taking a
vehicle (Veh. Code, § 10851, subd. (a); count 6), and making criminal threats (§ 422;
count 7). The district attorney also alleged as to some or all of the counts that defendant
had a prior serious or violent felony conviction, had prior serious and violent felony
convictions, and had served a prior prison term, making him eligible for certain sentence
enhancements. A jury trial began later that same month.
I.
Sheri Reese’s Testimony
The prosecution’s main witness was Sheri Reese. She testified that over about
eight hours in the afternoon and evening of December 4, 2012, defendant and two other
men forcibly took her and her car to several different locations while one or the other of
them threatened to rape and otherwise harm her and/or her elderly housemate, sought and
eventually took about two pounds of marijuana from her home and demanded she tell
them who stole approximately $150,000 of marijuana.
According to Reese, in 2012 she worked trimming marijuana on a property in
Upper Lake, California with defendant’s nephew, Robert Whitmire. Defendant worked
there as well. At one point, defendant told Reese he had been convicted of voluntary
manslaughter for killing a man he had hit too hard, which scared Reese.
Reese testified that sometime before December 4, 2012, with defendant present,
Whitmire dropped off approximately two pounds of marijuana at Reese’s home for Reese
to trim. Reese kept this marijuana in a safe in her garage. At about 2:15 in the afternoon
of December 4, 2012, Reese was driving her Ford Escape on a street in Upper Lake when
a white SUV driven by defendant cut in front of her car and blocked it. Defendant and
1
All statutory references herein are to the Penal Code unless otherwise stated.
2
two other men, whose names Reese later learned were Ricky McCullough and Danny
Austin, jumped out of the SUV and screamed at her, telling her not to go anywhere or she
would be killed. Defendant told her not to try and run. He screamed at her, “ ‘You know
why.’ ” Reese did not know what he was talking about.
Defendant pulled the keys out of Reese’s car’s ignition and forcibly took them
from her. He told her she was coming with him, that he would kill her if she tried to run
and that she “was in the worse possible trouble that [she] could ever imagine.”
Defendant jumped in her car and the men “physically” made her get into the back seat of
the SUV, McCullough holding her arm as they did so. Defendant took her purse, which
had a nonworking phone in it, and would not let her have any of her things thereafter.
She did not see the phone again.
McCullough, Reese and Austin then drove in the SUV a block and a half to
Reese’s house and defendant drove Reese’s car there. Defendant wanted the marijuana
Whitmire had dropped off there and told Reese she was going to give it to him.
Defendant stayed in the car as Austin and Reese went into her garage. However, Reese
said she did not have the combination to the safe, and the group left after a few minutes.
Defendant told her that if she did not do what he said or give him the information he
wanted it was possible the elderly woman Reese lived with “would get the shit beat out of
her.”
Next, defendant drove the SUV, with Reese and Austin in it, to the property where
Reese and defendant had worked together. McCullough drove Reese’s car there. Austin
told Reese to tell them what they needed to know if she did not want to be hurt, and that
if she just cooperated it would be all over. Defendant screamed at her that she had better
tell him what he needed to know or he would kill her, rape her or bring her to a club and
have everybody there do whatever they wanted to her, including sodomize her.
Defendant told her “[h]e wanted the name of someone who was responsible for stealing
from his sister’s boy” what he said was about $150,000 of marijuana. Reese told him she
did not know. Defendant called her a liar and said he was going to do whatever it took to
3
get the information out of her. He told her he thought she was responsible for stealing the
marijuana because she was the only one allowed on the property.
When the group got to the property, they left Reese’s car by a creek and continued
onto the property in the SUV, with defendant driving. They drove on the back side of the
property for 20 minutes to half an hour, until they arrived at an area with tents where
Reese had previously seen marijuana being dried. Defendant screamed at her the whole
time. Austin continued to try to coax her to talk, but told her that he ultimately would do
what defendant wanted.
Defendant exited the car while Austin continued to talk to Reese. Defendant came
back to the vehicle and said, “ ‘You know, you’re going to tell me what I need to know,
otherwise we’ll have our way with you. We’ll do whatever the fuck we want to you.
Hell, we can leave you here with one of these boys and they’ll do whatever they want.
They can have fun screwing you all over the property.’ ” Defendant said Austin had
come from out of town to “carry out anything he wanted him to do” to Reese and had “no
problems cutting people’s fingers off or breaking their hand or doing whatever it takes to
get the information out.” At some point, defendant wanted to know where Reese’s
children lived. When she told him she did not know anything about the stolen marijuana,
defendant demanded the name of somebody who did, and said that “[a]s long as it was a
credible name [she] would be released and nothing would happen to [her] or anybody
else.” She refused to just give him any name, as she had no idea who had stolen the
marijuana. Defendant threatened to put her in her car and set it on fire. At another point,
defendant said to someone on the phone, “ ‘She has no idea how much trouble she’s in,
you know, she fucked with the wrong family.’ ”
At another point, defendant told Austin to cut off Reese’s fingers. Austin got a
tool–a pliers or wire cutter–and put it on Reese’s fingers. Austin told her to give him any
name, but she refused and pushed her fingers further into the tool and told him to cut her
fingers off because she was not going to tell him anything. Austin told Reese he would
not really harm her, but said he could not speak for defendant or McCullough. She was
only slightly injured by the tool, which was her own fault, not Austin’s. Around the time
4
Austin put the tool on her fingers, the men found she had a “Go Phone” in her pocket.
Defendant grabbed it and was angry with her for having it; she did not see this phone
again either.
Defendant drove the others off the property in his SUV, with McCullough getting
out by the creek to drive Reese’s car off the property as well. The group went to a fast
food restaurant for food. Defendant continued to scream at her. He directed McCullough
to park Reese’s car at a gas station near the restaurant. The men then ordered food at the
restaurant’s drive-through. Defendant told Reese “not to say a fucking word,” and she
did not. Defendant also offered to get her food, but she declined the offer, too scared to
eat.
After the men ate their food in the SUV, they drove off again, getting on Highway
29 towards Kelseyville. At one point, they pulled over and McCullough and defendant
got out and made a phone call. They called over Austin and spoke to him, then offered to
allow Reese out of the car to smoke. She refused, feeling safer in the SUV.
After about fifteen minutes, the men got back in the SUV and the group drove
away. Reese did not know where they were going. Defendant never stopped yelling at
her. He told her by the time they got to their destination, she had better have the
information he needed or “things were going to get a lot worse.” He referred to rape and
questioned whether anyone would miss her when she was gone. McCullough agreed
with defendant and said “a little word or two here and there.” Austin told her to calm
down, said he was sorry this was happening to her and told her to tell them what
defendant wanted to know.
The group stopped at the Hilltop Residential Center. Defendant told Reese to stay
in the SUV and say nothing. McCullough retrieved something from the back, and he and
defendant left for five minutes, with Austin staying in the car with Reese. When
defendant returned, he said, “ ‘Have you decided whether you’re going to tell me what I
need to know?’ ”
Next, defendant drove back the way they had come. Defendant drove as if he was
tired, accepted Austin’s offer to drive, and fell asleep in the front passenger’s seat.
5
Austin again told Reese he would not harm her. They returned to the gas station where
Reese’s car was parked and defendant, now awake, told Austin to get in it. He ordered
Reese to get in the front seat of the SUV, which she did reluctantly.
The group drove to Reese’s house. Defendant told Reese she was going to give
him the marijuana that Whitmire had dropped off for her to trim, and that she “better not
be pulling no shit because he’ll take that old woman out and beat the crap out of her.”
Reese went to the safe, opened it this time, and gave the marijuana to Austin. She could
not recall how she had the combination at that time. She was unhappy because she had
told Whitmire she would give him the marijuana when he paid her $850 that he owed her.
Austin wrote down his phone number and told Reese he was sorry he had met her
under these circumstances. Defendant gave her back a key and her purse, but refused to
give her back her key fob or her phones. She also discovered later that six hundred
dollars was missing from a pocket of her jacket, which had been in her car all day. The
men left at about a quarter to eleven or so; they had taken her for about eight hours.
Reese did not have contact with defendant again, although she thought he might
have subsequently driven by her house. She went to the police soon after the men left her
house and was told to contact the sheriff’s department. A few days later she reported the
incident to the sheriff’s department, doing so anonymously and over the Internet because
she was concerned about her safety.
II.
Closing Argument, the Verdict and Sentencing
In closing argument, defense counsel contended there were meaningful
discrepancies between Reese’s testimony and other evidence presented at trial, which
included testimony by Austin, a statement by Austin to police, and testimony about a
statement by defendant to police. Based on these discrepancies, defense counsel
contended that Reese was not credible and that the evidence indicated she had
consensually spent an enjoyable December 4, 2011, with the three men drinking and
doing drugs. He argued there was reasonable doubt that defendant committed any crime.
6
The jury obviously rejected defendant’s counsel’s argument. It acquitted
defendant of robbery (count 4), but convicted him of kidnapping, carjacking, unlawful
taking and driving of a vehicle, and making criminal threats (counts 1, 2, 6 and 7).2 The
court found the accompanying sentencing enhancement allegations to be true.
Defendant argued that his sentence for the conviction of unlawful taking and
driving of a vehicle should not be imposed pursuant to section 654 and that all the
convictions were for crimes committed for the single purpose of trying to get Reese to
admit she stole Whitmire’s marijuana.
The trial court sentenced defendant to a total state prison term of 27 years and
eight months. The court sentenced defendant to separate, consecutive terms for
kidnapping, carjacking and making criminal threats, setting the carjacking sentence as the
principal term. In doing so, the court stated that it would impose a concurrent sentence
for the unlawful taking and driving a vehicle conviction, and stayed its imposition
pursuant to section 654. It continued, “The others, however, their crimes and objectives,
there is some independent objectives here. And the 422 [making criminal threats], I think
should also run consecutively. They were multiple threats, death threats, threats of gang
rape, all of which were far in excess of what was necessary to initiate a kidnapping or
carjacking. And the crimes were committed at different times and/or separate places.
They were over a period of several hours, all over different places in the county. I intend
to run the three of them—the kidnap, the carjacking, and the criminal threats—
consecutively.” The court also ordered defendant to pay various fines and fees and
awarded him time served and conduct credits.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues the trial court should have stayed the punishments for the
kidnapping and making criminal threat convictions pursuant to section 654 because he
2
The court instructed the jury that false imprisonment (count three) was a lesser
included offense of kidnapping and grand theft (count 5) was a lesser included offense of
robbery. The jury returned acquittal verdicts on these counts.
7
engaged in “a single uninterrupted course of conduct against a sole victim for a single
and very specific purpose—to get Reese to confess to stealing marijuana from
[defendant’s] nephew, or to reveal the name of a person who did.”3 We disagree.
Section 654 provides in relevant 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.” (§ 654, subd. (a); see People v.
Correa (2012) 54 Cal.4th 331, 337 [“ ‘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’ ”].) Thus, by its plain terms, section 654 bars multiple punishments of a single,
physical act or omission.
Our Supreme Court expanded the scope of section 654 in Neal v. State of
California (1960) 55 Cal.2d 11 when it stated: “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.” (Id. at p. 19.) The court explained in a later case, “It is defendant’s
intent and objective, not the temporal proximity of his offenses, which determine
whether the transaction is indivisible. [Citations.] We have traditionally observed that
if all of the offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single intent and
therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant
harbored ‘multiple criminal objectives,’ which were independent of and not merely
incidental to each other, he may be punished for each statutory violation committed in
3
In his opening brief, defendant argued that, along with the punishment for the
making criminal threats conviction, the punishment for the carjacking conviction should
have been stayed. The People pointed out in their respondent’s brief that because the
court designated the sentence for carjacking conviction as the principal term, defendant
would have to argue the punishment for the kidnapping conviction should have been
stayed instead. Defendant acknowledged this was the case in his reply brief.
8
pursuit of each objective, ‘even though the violations shared common acts or were parts
of an otherwise indivisible course of conduct.’ ” (People v. Harrison (1989) 48 Cal.3d
321, 335 (Harrison).)
Subsequently, in People v. Latimer (1993) 5 Cal.4th 1203, our Supreme Court
characterized this single intent and objective test as a “ ‘judicial gloss’ that could defeat
section 654’s purpose of matching punishment with culpability. (Id. at p. 1211.)
Nonetheless, the court did not overrule the test, but instead wrote that nothing in Latimer
was “intended to cast doubt on any of the later judicial limitations of the Neal rule.” (Id.
at p. 1216.) The court explained, “Decisions since Neal have limited the rule’s
application in various ways. Some have narrowly interpreted the length of time the
defendant had a specific objective, and thereby found similar but consecutive objectives
permitting multiple punishment. (E.g., [Harrison,] supra, 48 Cal.3d at pp. 334–338
[multiple sex crimes each have the separate objective of achieving additional sexual
gratification]; People v. Perez (1979) 23 Cal.3d [545,] 551–554 [similar]; People v.
Trotter (1992) 7 Cal.App.4th 363, 368 [‘each shot [fired at the same victim] evinced a
separate intent to do violence’].) [¶] Other cases have found separate, although
sometimes simultaneous, objectives under the facts. (E.g., People v. Coleman (1989)
48 Cal.3d 112 [assault of robbery victim had separate intent and objective than the
robbery]; People v. Nguyen (1988) 204 Cal.App.3d 181, 189–193, 196 [harming of
unresisting robbery victim a separate objective from the robbery itself]; People v. Booth
(1988) 201 Cal.App.3d 1499, 1502 [‘dual objectives of rape and theft when entering the
victims’ residences’ supported separate punishment for burglaries and rapes]; People v.
Porter (1987) 194 Cal.App.3d 34, 37–39 [robbery and kidnapping the same victim for a
later, additional, robbery had separate objectives].) . . . . [¶] These examples, which are
not exhaustive, have helped mitigate the concerns regarding the Neal test in specific
situations . . . .” (Latimer, supra, 5 Cal.4th at pp. 1211–1212.)
Thus, “there is no legal or logical bar to separate punishment” where a defendant
engages in separate, volitional, criminal acts, for a “defendant should . . . not be
rewarded where, instead of taking advantage of an opportunity to walk away from the
9
victim, he voluntarily resumed his [criminal] behavior.” (Harrison, supra, 48 Cal.3d at
p. 338.) Further, where offenses are “volitional and calculated,” and “separated by
periods of time during which reflection was possible,” separate punishment is
permissible under section 654. (People v. Trotter (1992) 7 Cal.App.4th 363, 368
(Trotter).) Indeed, the Supreme Court has recently determined that “section 654 does
not bar multiple punishment for multiple violations of the same criminal statute,”
disapproving what it characterized as “dictum” in Neal. (People v. Correa, supra,
54 Cal.4th at p. 334.) Further, [i]f . . . a defendant had several independent criminal
objectives, he may be punished for each crime committed in pursuit of each objective,
even though the crimes shared common acts or were parts of an otherwise indivisible
course of conduct.” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
As for our review of a trial court’s ruling on a section 654 issue, “[t]he defendant’s
intent and objective are factual questions for the trial court, and we will uphold its ruling
on these matters if it is supported by substantial evidence.” (People v. Perry, supra,
154 Cal.App.4th at p. 1525.) We “ ‘ “view the evidence in a light most favorable to the
respondent and presume in support of the [sentencing] order the existence of every fact
the trier could reasonably deduce from the evidence.” ’ ” (People v. Hutchins (2001)
90 Cal.App.4th 1308, 1312–1313.) Where the trial court does not make an express
finding, an implied finding that the crimes were divisible must be upheld if supported by
the evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) However, “the
applicability of [section 654] to conceded facts is a question of law.” (Harrison, supra,
48 Cal.3d at p. 335.)
Defendant argues that section 654 applies to his kidnapping and making criminal
threats convictions because “the evidence shows without contradiction that the
carjacking, kidnapping, and criminal threats were crimes committed during a single
indivisible period of time for a very specific reason—to get Reese to reveal the stolen
marijuana, or to give up the name of a person who stole it . . . .” But this argument
ignores that Reese’s testimony contains substantial evidence that defendant had multiple
objectives and time to reflect in committing his crimes. He, Austin and McCullough
10
initially carjacked and kidnapped Reese on the afternoon of December 4, 2012, on a
street near Reese’s home. However, according to Reese, upon doing so, defendant,
threatening to kill her and forcing her into his SUV, first took her to her home and
demanded she give him the approximately two pounds of marijuana that Whitmire had
previously dropped off there, and threatened to harm her elderly housemate. When she
did not do so, he forced her back into his SUV and drove her, and had her car driven,
away to the property where they had worked together. From this point, he demanded
from Reese, via numerous threats to rape, sodomize, mutilate and kill her, information
about another matter—the purported theft of approximately $150,000 of marijuana—as
he took her to the property, a fast food restaurant/gas station, Highway 29, the Hilltop
Residential Center, and back to the gas station—with defendant engaged in phone calls
and napping at different points along the way. When defendant did not obtain any
information from Reese, he forcibly brought her and her car back to her home late that
night and demanded anew the approximately two pounds of marijuana she kept in a safe
there, threatening to harm the elderly woman who lived with her.
These facts are similar to those in other cases in which courts rejected arguments
that punishment should be stayed pursuant to section 654 because it found multiple
objectives and divisible conduct in the defendant’s acts. For example, in Harrison,
which the Latimer court favorably cited, the defendant attacked the victim and inserted
his finger into her vagina. The victim struggled, causing the defendant’s finger to
become dislodged; he reinserted it, it became dislodged again, and he reinserted it a third
time. These events occurred over a period of no more than 10 minutes. (Harrison,
supra, 48 Cal.3d at pp. 325–326.) The defendant was convicted of, and sentenced for,
three counts of forcible penetration. On appeal, he contended he could not be separately
punished for these convictions pursuant to section 654. Our Supreme Court disagreed,
holding that each penetration amounted to a new and separate crime. (Harrison, supra,
48 Cal.3d at pp. 328–330.)
In Trotter, which the Latimer court also favorably cited, the defendant was
convicted of three counts of assault for firing three gunshots at a police officer within a
11
couple of minutes. (Trotter, supra, 7 Cal.App.4th at p. 366.) In rejecting the
defendant’s argument that all three shots “manifested the same intent and criminal
objective,” the appellate court stated, “[T]his was not a case where only one volitional
act gave rise to multiple offenses. Each shot required a separate trigger pull. All three
assaults were volitional and calculated, and were separated by periods of time during
which reflection was possible. None was spontaneous or uncontrollable.” (Id. at pp.
367–368.) The separate punishment imposed for two assaults was affirmed. (Id. at p.
368.)
In People v. Surdi (1995) 35 Cal.App.4th 685, the defendant, along with others
associated with the “Family Mob,” including a man named Lomeli, attacked and beat a
man named Sanchez, left, then returned to attack him more, moved Sanchez to a van,
where Lomeli stabbed him, and took him to a school and eventually to a riverbed where
he was beaten, stabbed, and then abandoned. Sanchez survived, but was permanently
disabled. (Id. at pp. 687–688.) The defendant was convicted, among other things, of
conspiracy to commit murder, aggravated mayhem, and kidnapping and the court
imposed separate prison terms for each offense. The Surdi court rejected the defendant's
argument that execution of sentence on the kidnapping conviction should have been
stayed pursuant to section 654. The court reasoned: “Like Trotter, the offenses
presently under review did not arise from a single volitional act. Rather, they were
separated by considerable periods of time during which reflection was possible.
Lomeli’s initial stabbing attack was interrupted in the van to permit Surdi to strap down
Sanchez with a seat belt. There was also a break in the action when the group stopped at
a school and discussed whether to abandon Sanchez there. After ample time to consider
their actions, the group resumed the attack while taking Sanchez to the riverbed, where
Mob members took turns stabbing Sanchez until they thought he was dead.” (Surdi, at
p. 689.) Following Trotter, the Surdi court concluded the offenses did not arise from a
single volitional act. (Ibid.)
Similarly, here, there is substantial evidence that defendant had multiple, separate
objectives over the eight hours he held Reese, threatened her and controlled her car,
12
separated in time and by the numerous opportunities for defendant to reflect and choose
whether or not to commit further criminal acts. After forcing Reese to her home to get
the marijuana she kept in a safe there, defendant abandoned this objective. Instead, he
took Reese to several different locations, had her car driven to two of them, and
repeatedly threatened to harm or kill her in order to force information from her about the
purportedly stolen marijuana. During this period, he had numerous opportunities to
reflect, including when Reese returned to his car and reported that she was unable to
retrieve the marijuana in the safe at her home; when Reese provided no information
despite Austin’s use of the tool on her fingers and defendant spoke on the phone; when
defendant paused from his activities to eat in the SUV at the fast food restaurant; when
defendant stopped the SUV on Highway 29 and got out for about 15 minutes and talked
with someone on the phone; when defendant left Reese in the car at the Hilltop
Residential Center for about five minutes; and after defendant napped in the SUV on the
way back to the gas station. Hours later, having failed to obtain any information from
her other than that she did not know what he was talking about, defendant turned to yet
another objective, which was his effort anew to get the two pounds of marijuana Reese
kept in a safe at her home. He drove her, and had her car driven to, her home as he
threatened to harm her and her elderly housemate, and this time succeeded in getting the
marijuana.
Defendant relies heavily on People v. Britt (2004) 32 Cal.4th 944 for his
contention that the court erred. Britt, a sex offender registrant, was convicted of
failing to notify officers of his change of address and failing to register after moving
to a new county, and was sentenced to consecutive prison terms for each offense.
(Id. at p. 949.) He appealed, claiming the imposition of separate punishments
violated section 654. (Id. at pp. 949–950.) Our Supreme Court agreed with him
because Britt had acted with the single objective of avoiding police detection in
committing these two offenses. (Id. at p. 952.) Here, however, as we have
discussed, defendant had multiple objectives. Therefore, the case is inapposite.
Defendant cites other cases to support his proposition that each of his crimes
13
was committed in an indivisible course of conduct and for a single purpose.
However, only two address the application of section 654 and they both involve
plainly indivisible conduct. (See People v. Wynn (2010) 184 Cal.App.4th 1210,
1213, 1218–1221 [staying a sentencing enhancement for use of a deadly or
dangerous weapon during the commission of the burglary because this use was part
of the same indivisible conduct that resulted in assault convictions]; People v.
Guzman (1996) 45 Cal.App.4th 1023, 1025–1028 [concluding trial court erred in
imposing sentences for burglary, grand theft and robbery when the trial court found
that section 654 applied because all three were based on one indivisible course of
conduct]4.) Therefore, they too are inapposite.
Defendant also attempts to explain away this evidence of separate intents and
objectives by pointing out that the prosecutor in his closing argument emphasized that
defendant’s motive and objective was to obtain information from Reese about the
purportedly stolen marijuana. First, defendant notes that the prosecutor argued, “What
was the motive? We heard it from Sheri Reese and Danny Austin over and over and over
again. It went on for over five hours. ‘Where’s the marijuana you stole from us?’ ‘Tell
us where the marijuana is.’ ‘Where’s the marijuana you stole from us?’ . . . [T]hat’s the
motive in the case.” Defendant cites the prosecutor’s summary of defendant’s statement
to police, which also emphasized defendant’s focus on the stolen marijuana. Finally,
defendant emphasizes that the prosecutor argued to the jury, “One of the big red herrings
in this case is the attempt to confuse [defendant’s] efforts to get the 140 pounds of
marijuana with the two pounds. . . . [¶] But that’s not what [defendant] was after. . . .
[¶] . . . [Defendant]’s claiming that she and her boyfriend stole 140 pounds of marijuana.
That’s why he pulled her over. That’s what he was threatening her about. It had nothing
to do with this two pounds marijuana.
Defendant’s citations are accurate, but his argument misses the point.
4
The Guzman court actually stayed the robbery punishment, but reversed the
grand theft conviction because it was a lesser included offense to robbery. (People v.
Guzman, supra, 45 Cal.App.4th at p. 1028.)
14
Whatever the prosecutor argued to the jury, the court’s sentencing determination
was supported by substantial evidence. Defendant does not establish the
prosecutor’s arguments should be a basis for reversal in light of this substantial
evidence.
In short, defendant’s actions were divisible, separated by time and the
numerous opportunities he had to reflect, and based on multiple and separate intents
and objectives. Therefore, the court did not err in sentencing him to separate
punishments for his kidnapping, carjacking and making criminal threats convictions.
In light of our conclusion, we also reject defendant’s additional argument that the
trial court’s sentencing him to separate punishments was arbitrary and unsupported by
any evidence and, therefore, violated his federal constitutional due process rights.
DISPOSITION
The judgment is affirmed.
15
STEWART, J.
We concur.
KLINE, P.J.
MILLER, J.
People v. Statler (A142141)
16