PEOPLE v. NORRELL (1995)

Defendants Franklin Edward Norrell and Kenneth Kiakin Lau were charged by amended information with kidnapping for robbery (Pen.Code, § 209, subd. (b)—count 1),¹ robbery (§ 211, former § 212.5, subd. (b)—count 2), and reckless driving while attempting to elude a peace officer (Veh.Code, § 2800.2—count 3).   The information further alleged that Lau personally used a firearm in the commission of counts 1 and 2 (§ 12022.5, subd. (a)), and that Norrell was armed with a firearm in the commission of the same offenses.  (§ 12022, subd. (a)(1).)   A jury found defendants guilty as charged and found each enhancement true.   The trial court sentenced both defendants to state prison, Norrell for six years, eight months, and Lau for ten years, eight months.   The trial court arrived at each sentence by imposing the upper term on count 2, and then adding a consecutive term of one-third the middle term on count 3.   In each case, the court stayed the sentence on count 1 pursuant to section 654.   The People appeal pursuant to section 1238, subdivision (a)(10), contending that the trial court imposed an unauthorized sentence by staying the greater offense of kidnapping for purposes of robbery rather than the lesser offense of robbery.   For the reasons stated below, we conclude, contrary to this court's earlier holding in People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 230 Cal.Rptr. 890, that the court did not impose an unauthorized sentence.   We therefore dismiss the appeal.

FACTS 2

On November 20, 1992, Lau and Norrell encountered Terry Jeong in a parking lot in Milpitas while Jeong was leaving his car.   They forced Jeong into the back seat of the car.   Norrell then drove off with Lau and Jeong in the back seat.   En route Lau produced a 9 mm. pistol, threatened Jeong by putting the pistol next to Jeong's head, and demanded money.   Lau removed a wedding ring from Jeong.   Lau also checked Jeong's wallet for money but found none.   However, Lau found $9,300 in a bundle on the floor of the back of the car.

In the vicinity of Interstate 880 and Dixon Landing Road, Jeong was forced out of the car and onto the shoulder of the road.   Lau and Norrell continued northbound on Interstate 880.   Jeong telephoned police from a 7–Eleven store.   After a description of the car was broadcast, Hayward police spotted the car on Interstate 880 at Highway 92.   A pursuit ensued, which ended when the car was involved in a traffic collision with two other vehicles in San Leandro.   Lau and Norrell then fled on foot but were apprehended nearby.   They were subsequently identified by Jeong.

The $9,300 in cash and a 9 mm. pistol were recovered from a dumpster near the scene of the arrest.   Jeong's car and wedding ring were also recovered.

DISCUSSION

 The People contend the trial court imposed an unauthorized sentence by staying the sentence on the greater offense of kidnapping for robbery.   They argue that the trial court's sentencing order is contrary to this court's holding in People v. Superior Court (Himmelsbach), supra, 186 Cal.App.3d 524, 230 Cal.Rptr. 890, and various earlier California Supreme Court decisions.  (Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839;  People v. Milan (1973) 9 Cal.3d 185, 107 Cal.Rptr. 68, 507 P.2d 956;  People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905;  People v. Pearson (1986) 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595.)

In Himmelsbach, this court dealt with a defendant who pleaded guilty to burglary with explosives, possession of explosives (§ 12303), and two counts of possession of explosives with intent to injure (§ 12303.3).   One section 12303.3 offense arose from the commission of the burglary;  the other arose, along with the § 12303 count, from possession of explosives at the time of the defendant's arrest.  (People v. Superior Court (Himmelsbach), supra, 186 Cal.App.3d at p. 528, 230 Cal.Rptr. 890.)   The trial court sentenced the defendant to county jail for possession of explosives, suspended imposition of sentence for burglary with explosives while granting probation with condition of a consecutive one-year term in county jail, and stayed execution of sentence pursuant to section 654 on the two counts of possession of explosives with intent to injure.  (Id. at p. 529, 230 Cal.Rptr. 890.)   We held that the trial court had no authority under section 654 to stay execution of the sentence imposed upon the most seriously punishable offense arising from an indivisible course of conduct.  (Id. at p. 540, 230 Cal.Rptr. 890.)

Other appellate courts have reached the contrary conclusion that a trial court has discretion to stay the greater offense and impose sentence on the lesser.   (See e.g. People v. Wesley (1970) 10 Cal.App.3d 902, 89 Cal.Rptr. 377 [1st Dist., Div. 2];  People v. DeVaney (1973) 33 Cal.App.3d 630, 109 Cal.Rptr. 276 [1st Dist., Div. 1];  People v. Mendevil (1978) 81 Cal.App.3d 84, 146 Cal.Rptr. 65 [2d Dist., Div. 2];  People v. Bradley (1981) 115 Cal.App.3d 744, 171 Cal.Rptr. 487 [4th Dist., Div. 1];  People v. Avila (1982) 138 Cal.App.3d 873, 188 Cal.Rptr. 754 [3d Dist.];  People v. Barela (1983) 145 Cal.App.3d 152, 193 Cal.Rptr. 257 [2d Dist., Div. 4];  People v. Cole (1985) 165 Cal.App.3d 41, 211 Cal.Rptr. 242 [1st Dist., Div. 3];  People v. Salazar (1987) 194 Cal.App.3d 634, 239 Cal.Rptr. 746 [4th Dist., Div. 3];  People v. Thompson (1989) 209 Cal.App.3d 1075, 257 Cal.Rptr. 658 [5th Dist.];  People v. Thompson (1992) 7 Cal.App.4th 1966, 10 Cal.Rptr.2d 15 [2d Dist., Div. 7].)

Section 654 states that an act punishable under different provisions of the Penal Code may be punished under either of such provisions but not both.³  “Courts have avoided prohibited multiple punishment by imposing a sentence on each of the convictions arising from the same act or indivisible course of conduct, but staying execution of all but one of the sentences conditioned upon completed service of the executed term.   [Citations.]”  (Himmelsbach, supra, 186 Cal.App.3d at p. 536, 230 Cal.Rptr. 890.)  “Where section 654 precludes multiple punishment and the trial court erroneously sentences on all counts, the appellate court must stay the effect of the lesser offense(s) in order to comply with section 654 while permitting execution of the greater offense consistent with the intent of the sentencing court.   Under such circumstances, the appellate court can logically presume that where the trial court sentences on all counts, the court meant to impose sentence at least on the most serious.  [Citations.]  The procedure used by the appellate court, however, does not answer the question of whether, in the first instance, the sentencing court must always impose the sentence for the most onerous offense.”  (People v. Bradley, supra, 115 Cal.App.3d at p. 753, 171 Cal.Rptr. 487.)

In People v. Thompson, supra, 209 Cal.App.3d at pp. 1080–1085, 257 Cal.Rptr. 658, the appellate court discussed the opposing holdings in People v. Salazar, supra, 194 Cal.App.3d 634, 239 Cal.Rptr. 746, and Himmelsbach.   The court made a “rather exhaustive trip through 30 years of citations ․ to illustrate two things.   First, the unequivocal statement in Himmelsbach, that the Supreme Court requires the trial court to sentence the defendant on the more serious offense, is not necessarily supported by [its cited Supreme Court authority]․”  (Thompson, supra, 209 Cal.App.3d at p. 1085, 257 Cal.Rptr. 658.)  “Second, Salazar's holding in favor of the trial court's discretionary authority under section 654 is also not firmly supported by the Supreme Court.”  (Ibid.)  The Thompson court then concluded, however, that Salazar's reliance was more reasonable than Himmelsbach's.   (Ibid.)

The Salazar court relied on our Supreme Court's decision in People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370.   In Hood, the defendant was convicted of assault with a deadly weapon on and attempted murder of the same peace officer.   The trial court stayed execution of sentence on the latter offense although it carried a more severe penalty than the assault conviction.   The Supreme Court reversed for other reasons but specifically noted that the defendant could not be required to serve a sentence for attempted murder should he be convicted of both offenses on retrial.  (Id. at p. 459, 82 Cal.Rptr. 618, 462 P.2d 370.)

The Salazar court also noted the case of People v. Wesley, supra, 10 Cal.App.3d 902, 89 Cal.Rptr. 377.   The Wesley court had relied on Hood to uphold a trial court's stay of the more serious offense in that case.  “[I]n order to preclude penalizing defendant for appealing, [Hood ] ruled that upon retrial the trial court could not impose upon the defendant a maximum sentence greater than the 14 years which had previously been imposed upon him.  [Citation.]  The Supreme Court thus appears to have sanctioned a trial court's imposition of the less severe among possible double punishments.”  (Id. at p. 911–912, 89 Cal.Rptr. 377.)   The Wesley court “carried [Hood's ] logic the next step:  If the trial court had abused its discretion in Hood, the Supreme Court would not have placed such a limitation on the maximum sentence on retrial.”  (People v. Thompson, supra, 209 Cal.App.3d at p. 1085, 257 Cal.Rptr. 658.)

 We agree with the Thompson court's analysis and conclusion that the Salazar decision is more reasonable than our previous decision in Himmelsbach.  “[D]iscretion to sentence on the greater or lesser crime is vital to a trial court's proper exercise of its sentencing mandates:  ‘[A] sentencing judge is required to base his [or her] decision on the statutory and rule criteria ․ and not on his [or her] subjective feeling about whether the sentence thus arrived at seems too long, too short, or just right.’   [Citation.]  The analysis should be the same when the court is faced with a sentencing choice under Penal Code section 654.   The court should impose sentence on the offense which is most appropriate for the defendant's conduct and not simply the one carrying the greatest penalty.   Only in this way will a defendant's punishment ‘be commensurate with his culpability’ and the purpose of Penal Code section 654 be fulfilled.  [Citation.]”  (People v. Salazar, supra, 194 Cal.App.3d at p. 639, 239 Cal.Rptr. 746.)

We therefore conclude that the trial court had the discretion to stay the sentence on either the robbery or the kidnapping for robbery count.   The court did not impose an unauthorized sentence by choosing to stay the sentence on the kidnapping for robbery count.

DISPOSITION

The People's appeal is dismissed.  (§ 1238.)

FOOTNOTES

1.   All further code references are to the Penal Code.

2.   This summary, which is taken from the probation reports, is based on a police department crime report and the transcript of the preliminary hearing.

3.   Section 654 states in relevant part:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one․”

COTTLE, Presiding Justice.

PREMO and ELIA, JJ., concur.