THE PEOPLE, Plaintiff and Respondent, v. MANUEL MARTINEZ et al., Defendants and Appellants.
Crim. No. 43263
Second Dist., Div. Four
Jan. 9, 1984
150 Cal. App. 3d 579
Mary J. Madsen and Robert S. Gerstein, under appointments by the Court of Appeal, for Defendants and Appellants.
John K. Van de Kamp, Attorney General, William R. Weisman and Frederick Grab, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KINGSLEY, Acting P. J.—Upon trial by jury, defendants were each convicted of 16 criminal offenses and sentenced to state prison. Defendant Martinez received a sentence of 47 years plus 2 consecutive life terms; defendant Chavez, 54 years plus 2 consecutive life terms. Both defendants have appealed, essentially contending that the enormity of these sentences is due to improper conviction under a statute that was not meant to apply to their conduct, and to numerous instances of double conviction and punishment in violation of
Meanwhile, Martinez had tied Donald up with strips from Donald‘s bathrobe. He came into the bedroom briefly and rubbed Martha‘s arm, but left when Chavez told him to go back and watch Donald as there was “plenty of time.” During the third act of intercourse, Martinez again entered the bedroom to tell Chavez that Donald had escaped. Chavez left the bedroom and Martinez performed a fourth act of intercourse with Martha.
Chavez returned to attempt to disable the telephone and to ask Martha how to open the garage door. He ran back out of the bedroom, however, when Martha heard her husband call her name. At that point, Martha told Martinez to get out. Martinez went to the door of the adjoining bathroom and was there pulling his pants on when police officers, who were then in the living room, ordered Chavez to freeze. Chavez, from the hallway, yelled, “We have a hostage” and said something to indicate that the hostage would be hurt if he was not allowed to leave. Martha ran down the hallway into the arms of her husband; as she ran past Chavez, he tried to stop her by grabbing her hair, but was unable to do so. The police then arrested both defendants.
Defendants were charged and convicted of: conspiracy to rape and rob (
In addition to the foregoing, both defendants were charged and convicted of kidnaping Donald for ransom and extortion under
I
There are three types of kidnaping in California. Simple kidnaping is proscribed by
In the present case, defendants were convicted of kidnaping Donald Goodfellow for ransom or extortion, the most serious form of kidnaping recognized in this state. The People‘s theory was, and is, that, by restraining Donald and threatening Martha that he would be harmed if she screamed or interfered in the robbery, the defendants confined Donald to exact Martha‘s cooperation in the robbery (a “valuable thing“) within the meaning of
Defendants now challenge the conviction, arguing that
Prior to 1933, aggravated kidnaping as defined in
In accordance with the 1951 bifurcation of aggravated kidnapings into those requiring asportation and those not, two lines of authority arose, one dealing with cases of kidnap for ransom or extortion and the other with kidnap for robbery. The first line is still somewhat rudimentary, and as we shall see, includes no case similar to the one at bar. The line of authority treating the parameters of kidnap for robbery is extensive, and does include several cases with facts similar to the one at bar. Since our resolution of the instant case should be in harmony with both lines to the extent that it should not offend the principles expressed in either, we briefly summarize both lines of authority.
The kidnap for ransom and extortion cases have recognized four-fact situations which show this form of aggravated kidnaping. People v. Dacy (1970) 5 Cal.App.3d 216 dealt with the classic kidnap for
The leading kidnap for robbery cases have taken a different route. They have been concerned not so much with describing the types of situations that can be characterized as aggravated kidnaping, but with describing those situations that cannot be so characterized, consistent with the intent of the 1951 Legislature. Three cases are representative of this series. In People v. Jackson (1955) 44 Cal.2d 511, the Supreme Court held that the bodily harm that could elevate aggravated kidnaping to a capital offense did not include normal types of bodily harm that are incident to most kidnapings. The court reasoned: “If the more serious penalty may be imposed when the only injury is of a nature similar to that shown by the present record, which concededly is almost necessarily an incident to every forcible kidnaping, neither the purpose of enhancement of the penalty for the more heinous crime nor the intention of deterring the kidnaper from killing or injuring his victim is subserved.” (Id., at p. 517.) In People v. Daniels (1969) 71 Cal.2d 1119, the court held, 18 years after the 1951 amendment, that the asportation element that elevates robbery to the more serious crime of kidnaping for robbery does not include slight or trivial movements that are incident to most robberies. In 1971, fully 20 years after the 1951 amendment, the court held in People v. Tribble (1971) 4 Cal.3d 826, that in order to elevate the crime of simple (
Of these cases, Daniels is the most far-ranging in its implications, and we therefore examine it in some depth. Until Daniels, the courts had recognized that the 1951 amendment added an element of asportation to the crime of kidnaping for robbery, but they had maintained that any degree of movement, however slight or trivial, would suffice: “It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.” (People v. Chessman (1951) 38 Cal.2d 166, 192; People v. Wein (1958) 50 Cal.2d 383.) Thus, for almost two decades after 1951, the courts continued to uphold convictions of kidnaping for robbery in cases where the victims had been moved only a few paces in virtually “standstill” robberies.
Daniels reexamined this practice. Referring back to its reasoning in Jackson, supra, the court noted that just as some types of bodily injury are almost necessarily an incident to the crime of kidnaping, so too some degree of movement is nearly inevitable in the crime of robbery. “‘It is difficult to conceive a situation in which the victim of a robbery does not make some movement under the duress occasioned by force or fear.‘” (71 Cal.2d at p. 1134, quoting Enright, California‘s Aggravated Kidnapping Statute—A Need for Revision (1967) 4 San Diego L.Rev. 285.) Daniels questioned whether the Legislature could have intended for the standard robbery situation to lead to a prosecution for aggravated kidnaping, or for prosecutors to have an unlimited option to charge either robbery or kidnaping for robbery. (Id., at p. 1134, fn. 8.) The court concluded that it was not the Legislature‘s intent to allow the aggravated kidnaping statute to be used to prosecute normal robberies. It therefore adopted the following rule: [W]e hold that the intent of the Legislature in amending Penal Code section 209 in 1951 was to exclude from its reach not only ‘standstill’ robberies [citation] but also those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” (Id., at p. 1139.)
Finally, Daniels noted that its holding was in keeping with a “current of common sense in the construction and application of [kidnap] statutes” that had arisen throughout the nation during the 1960‘s. (Id., at p. 1127.) Each of the sources which Daniels so characterized had one aspect in common: they had all argued that the scope of kidnaping statutes should not be so broad as to include conduct which is integral to other lesser crimes and which does not constitute “kidnaping” in any reasonable sense of the word. We shall return to some of this authority below.
Two principles emerge from these two lines of post-amendment authority. First, according to Daniels and its progeny, the aggravated kidnaping stat-
The Attorney General argues that we must ignore Daniels and its progeny, since they apply only to the crime of kidnaping for robbery. It is argued that the present case, although obviously a robbery, falls technically within the definition of a kidnaping for ransom and more importantly, was charged as a kidnaping for ransom. Hence the Daniels rationale can have no application here.
We think that the Daniels rationale does apply, however, for the following reasons.
First, Daniels has been uniformly held to control those cases where, as here, multiple victims have been detained in the course of a robbery and each put in fear for the safety of the other as well as himself. In 1971, the Supreme Court reversed kidnaping for robbery convictions in three such cases, under the authority of Daniels. (People v. Ungrad (1971) 4 Cal.3d 420; People v. Killean (1971) 4 Cal.3d 423; People v. Hunter (1971) 4 Cal.3d 432.) Each of these cases was a residential robbery in which the robbers found multiple persons at home, and moved them from room to room in search of valuables. In such a situation, we think it apparent that there exists an implied—if not always express—threat to harm any or all of the victims if one of them resists. That threat may not have been express in Ungrad, Killean, or Hunter, but it was in another case, People v. Cheffen (1969) 2 Cal.App.3d 638. In Cheffen, another residential robbery, the defendant and a companion entered a couple‘s house by a ruse and then threatened them with firearms. The threat was that if they did not show the defendant the location of their wall safe, “they would both be dead.” (Id., at p. 641, italics added.) During the course of the robbery, the husband was forced to lie still on the floor, he and his wife were made to move from room to room, and both of them were at some point tied up. The two convictions of kidnaping for robbery were reversed because, per Daniels, these movements were incidental to
To say that these cases are not aggravated kidnapings and not even simple kidnapings, but that the instant case is the most severe type of aggravated kidnaping, is to make an untenable distinction. Here, there was no different or greater confinement or risk of harm than in these cases, and the nature of the threat here was certainly no different than in Cheffen. The only real difference is that Ungrad et al. were charged as kidnaping for robbery, while the instant case was charged as a kidnaping for ransom on the theory that one of the victim‘s cooperation in the robbery was a “thing of value.” That distinction is untenable because every case in the Ungrad series, and particularly Cheffen, could be construed to fall within the meaning of kidnaping for ransom on this theory, yet all were held under Daniels to be nothing more than multivictim robberies. To hold that the present case is not only more than a robbery, but is the severest form of kidnaping recognized in this state, would seem to circumvent these cases by allowing the difference between multivictim robbery and aggravated kidnaping to depend simply on which subdivision of
Secondly, we note that the robbery statutes themselves contemplate the kidnaping for ransom theory of the present case as nothing more than a standard robbery situation.
To summarize thus far, it has been held per Daniels that the purpose of the 1951 amendment to
There are, moreover, additional reasons why the Daniels rationale cannot rationally be restricted to those robberies charged as kidnap for robbery.
First, the Daniels holding makes sense in part because of the great difference between the penalties for robbery and kidnaping for robbery.5 If the penalties for the two crimes were equivalent, there would be far less reason to think that the Legislature did not mean to allow the same conduct to be prosecuted as either crime. In part, it is because the penalties for the two crimes are so disparate that it makes sense to say that the greater crime cannot be shown by conduct merely incident to the lesser crime. This reasoning applies with greater force when the penalties for robbery and kidnaping for ransom are compared. At the present time, armed robbery perpetrated on two victims is punishable by a maximum term of eight years (
Secondly, contrary to the Attorney General‘s argument, the Daniels rationale cannot reasonably be restricted to kidnaps for robbery on the asserted ground that Daniels relied on an asportation element that is not required in kidnapings for ransom. Although the Daniels holding was specifically designed to define the asportation element of kidnapings for robbery in such a way that would distinguish aggravated kidnaping from robbery, the rationale of Daniels was in no way dependent on the concept of asportation. The rationale, as opposed to the precise holding, was that this state‘s aggravated kidnaping statute should not be construed to apply to conduct which is no different or more culpable than that incident to lesser crimes. For that rationale, Daniels relied on a nationwide “current of common sense” that was exemplified in two New York kidnaping cases. (People v. Levy (1965) 15 N.Y.2d 159 and People v. Lombardi (1967) 20 N.Y.2d 266, discussed at 71 Cal.2d 1119, 1134-1137.) These cases, which held that kidnaping is not shown by movement or confinement that is merely incident to lesser crimes, interpreted a kidnaping statute that does not require asportation; the New York kidnaping statute addressed in Levy proscribed nothing more than “confin[ing] another” with intent to “cause him to be confined” against his will. (See 204 N.E.2d at p. 844.) We think it apparent that the rationale of Daniels relies not on the element of asportation per se, but on that element—be it asportation or stationary restraint—that makes aggravated kidnaping more culpable, different, or more dangerous than lesser, underlying crimes.
To be sure, Daniels was specifically addressing the situation before it, which was a standard robbery case that had been charged as the type of aggravated kidnaping that requires asportation. Hence its precise holding addressed only the quality of asportation that distinguishes robbery from aggravated kidnaping, and the court had no need to address the quality of confinement that distinguishes robbery from aggravated kidnaping. All that means, however, is that the latter task was reserved for another occasion. That occasion has arisen here.6
The Daniels court stated: “[W]e hold that the intent of the Legislature in amending Penal Code Section 209 in 1951 was to exclude from its reach . . . those [robberies] in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.” (71 Cal.2d at p. 1139.) We now hold that that holding would be circumvented if either subdivision of
The Supreme Court‘s holding in People v. Stanworth (1974) 11 Cal.3d 588 is no obstacle to our holding. Contrary to the Attorney General‘s suggestion, Stanworth did not proscribe application of the Daniels’ rationale to kidnaping for ransom. Rather, Stanworth held only that the Daniels rule is inapplicable to the charge of simple (
is nonincidental to an underlying crime and which increases risk of harm. The Macinnes court did not decide or even consider, however, whether and in what manner the rationale of Daniels might apply to kidnaping for ransom. This latter question, which is the one before us here, is an issue of first impression in this state.
Our holding leaves intact the multivictim robbery cases such as Ungrad, Killean, Hunter and Cheffen, which were held to be outside the scope of the aggravated kidnaping statute. In each of these cases, despite implied or express threats that a person under restraint would be harmed if one of the robbery victims failed to cooperate, all restraints and movements were merely incidental to the robbery itself and did not increase the risk of harm. Equally important, our holding leaves intact every theory upon which the crime of kidnaping for ransom or extortion has heretofore been founded. In People v. Dacy, supra, 5 Cal.App.3d 216, since the kidnap victim was abducted, his confinement and movement were not incidental to a robbery, and the risk of harm to him was greater than it would have been had he and the recipient of the ransom merely been robbed. In People v. Macinnes, supra, 30 Cal.App.3d 838, since the victim of the robbery was taken away from the kidnap victim, the restraint of the kidnap victim was not incidental to the robbery, and it created a greater risk of harm than would have existed had the two victims merely been robbed in place. In People v. Anderson, supra, 97 Cal.App.3d 419, since the would-be recipient of the ransom demand was at all times remote from the kidnap victim, the detention of the latter was not incident to any robbery, and again, the risk of harm to her was greater than it would have been had only a robbery occurred. In the hostage situation described by Magee v. Superior Court, supra, 34 Cal.App.3d 201, since the kidnap victim is held to facilitate an escape rather than a commission of robbery, the holding is beyond that incident to the commission of robbery, and accordingly increases the risk of harm. In all
In the instant case, the jury was instructed that the “act of seizing or holding someone against his will and then exacting cooperation from a friend or relative by threatening that the person so seized or held will be injured or killed constitutes a violation of Penal Code Section 209.”7 The jury was not told to decide, and therefore, did not decide, whether the holding of Donald Goodfellow was incidental to the robbery of himself and his wife or whether it increased his risk of harm beyond that inherent in the robbery. We think it plain that the restraint here was no less incidental and no more dangerous than that which occurred in Ungrad, Killean, Hunter and Cheffen. As stated by our Supreme Court in People v. Ramos (1982) 30 Cal.3d 553, 589, “To constitute robbery the property must be removed from the possession and immediate presence of the victim against his will, and such removal must be by force or fear. When two or more persons are in joint possession of a single item of personal property, the person attempting to unlawfully take such property must deal with all such individuals. All must be placed in fear or forced to unwillingly give up possession.” (Italics added.) In order to take the Goodfellow‘s property from their dresser, the defendants had to deal with both Donald and Martha in some way. The movements of both of them had to be controlled and the resistance of both of them quelled, and whether this was accomplished by restraining them in one room or by marching them through the house makes no legally cognizable difference. Accordingly, the count II convictions of kidnaping Donald Goodfellow are reversed.
II
The conviction of kidnaping Martha Goodfellow for ransom or extortion presents another novel issue. The People‘s theory is that this charge was proven by the defendants’ holding of Martha as a hostage in order to “extort” the police, i.e., in order to induce the police not to do
On the appeal before us, the defendants do not claim that kidnaping of a hostage is outside the purview of
The facts showed the following: Martinez was holding Martha on the bed incident to a rape when her husband came through the front door, followed by police. Chavez was also in the bedroom at the time making preparations to leave. When Martha‘s husband called her name, Chavez ran out of the bedroom and Martha told Martinez to “get off and get out.” Martinez went to the doorway of the adjacent bathroom to dress himself. At that point, the police manifested their presence by ordering Chavez to “freeze.” Chavez, from the hallway, responded by shouting that he had a hostage. Hearing his words, Martha immediately ran out of the bedroom, through the hallway, and up to her husband. As she passed Chavez, he tried to obtain control of her by grabbing her hair. She kicked herself loose before he could do so,10 possibly being assisted by a shove from one of the officers.
We start by examining what acts, as opposed to intent, satisfy the requirements of a kidnaping for ransom or extortion. The statute covers “[a]ny person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps, or carries away any individual by any means whatsoever . . . or
Our inquiry is addressed to two questions: First, is force necessary to establish seizure or confinement, and second, is force necessarily sufficient to establish seizure or confinement. We shall conclude that both questions must be answered in the negative, and then apply these conclusions to the facts of this case.
First, it is clear that a person can be seized and confined without any use of force, if he submits to confinement under the compulsion of fear and if that fear is not unreasonable under the circumstances. As stated in People v. Gomez (1967) 252 Cal.App.2d 844, 858 [60 Cal.Rptr. 881], a kidnaping for robbery case, “the gravamen of the offense of kidnaping is some form of compulsion, and . . . the requisite force or compulsion need not consist of the use of actual physical force or express threats. The essence of the crime is that the victim feels compelled to obey because he fears harm or injury from the accused, and his apprehension is not unreasonable
Second, the application of physical force upon a person is insufficient to establish his seizure or confinement for purposes of kidnaping and false imprisonment if the person successfully resists the force used. In People v. Knowles (1950) 35 Cal.2d 175 [217 P.2d 1], the court defined “seizure” for the purpose of the aggravated kidnaping statute, as “to take possession of by force.” (Id., at p. 180, italics added.) Knowles deferred to the 1943 edition of Webster‘s New International Dictionary, unabridged. The 1981 edition similarly stresses the obtaining of possession, listing “to take possession of” as the primary relevant meaning of “seize.”16 Our examination of the pre-1951 (i.e., “standstill“) kidnaping for robbery cases discloses no case where the requisite seizure was established by an unsuccessful attempt to take physical control of the victim. Also, it is doubtful whether such an unsuccessful attempt would give rise even to the lesser crime of false imprisonment. We can find no case of false imprisonment, whether criminal or tortious,17 where the victim‘s resistance to force was not sufficiently quelled to enable his assailant to possess him. Absent such possession, the application of force reasonably establishes not false imprisonment or kidnaping, but assault.
Of course, if the would-be kidnaper who seeks to confine his victim by force attains his end without having to resort to force, then a confinement under the compulsion of fear may be established under the first principle discussed above. (People v. Gomez, supra, 252 Cal.App.2d 844.) Thus, a victim who submits to confinement under the threat of assault is confined
We now apply these principles to the question whether Martha Goodfellow was seized or confined during or after the time Chavez formed the intent to hold her hostage.
There can be no question that Martha was confined during the entire course of the robbery and rapes, including those intervals in which no force was applied to her person. A defendant, having compelled his victim to remain in one place by means of force and threat, need not continuously repeat the force and threats in order to retain control. As long as the victim feels compelled to remain confined out of reasonable fear, the confinement continues to exist. (People v. Gomez, supra.)
By the same token, however, a confinement maintained only through fear of force ceases when the fear is no longer sufficient to hold the victim. Here, as soon as her husband called out her name, Martha ordered Martinez off and out, and he obeyed. Chavez, without prompting, fled from the room. Martha said to herself that “it was all over.” At that point, she broke the bonds of fear, the defendants abandoned all attempts to hold her, and no force otherwise confined her. At that point, in other words, she was no longer confined. We also think it apparent that up to that point, the confinement that had occurred was for the purpose solely of rape and robbery, and not of holding Martha to extort the police.
The situation changed again when the police ordered Chavez to freeze, stopping him in his flight. It was then that he declared the intent to hold Martha as a hostage, an intent that was not reasonably manifest before the order to freeze. At that point, in order for Martha to be held as a hostage, it was necessary for the defendants to seize or confine her anew. On the facts before us, this was attempted but not consummated. Had Chavez succeeded in securing Martha in the hallway, she would have been seized anew.18 Had the threat of his presence in the hallway caused her to remain where she was for any appreciable length of time, she would have been confined anew. Neither event occurred. Martha‘s immediate response to
In short, kidnaping for extortion is not established by the mere intention to hold a victim for extortion, if the victim is never held for that purpose. To establish this crime, the would-be kidnaper must have control over his victim when the intent to extort is formed, or gain control subsequently. Due to Martha‘s courage, and specifically to her immediate and successful resistance to Chavez‘s attempt to gain control of her as a hostage,19 she prevented the crime of kidnaping for extortion from taking place.
Even if we were to conclude, however, that Chavez might have confined Martha by virtue of grabbing her hair or simply being in the hallway between Martha and the police, we would still have to reverse this conviction. The reason is that the government presented its case on alternate theories of guilt, at least one of which is legally incorrect.
The alternate theory is that Martha was confined as a hostage not by Chavez, but by Martinez. The prosecutor argued to the jury that, while only Chavez may have formed the intent to take a hostage, both defendants confined Martha after that intent arose. In a special instruction prepared by the People, the jury was then told that “if one co-conspirator forms the required intent [for a § 209 kidnaping] while the other co-conspirator is holding or detaining a person, both conspirators are in violation of
That theory is inapplicable to the facts of this case. It is a basic premise of our criminal law that “with crimes which require both some act or omission and mental fault, no crime is committed unless the mental fault concurs with the act or omission, in the sense that the mental state actuates the act or omission.” (LaFave & Scott, Criminal Law (1972) § 34, p. 237; italics added.) Professor Perkins, in a section of his treatise entitled “Concurrence of Mens Rea and Actus Reus,” agrees: “One error to be avoided is the false notion that ‘concurrence,’ as here used, means no more than
Here, the necessary causal relationship is lacking. If in fact Martinez can be said to have been confining Martha in the bedroom when Chavez expressed the intent to hold her hostage, that confinement was in no way attributable to Chavez’ newfound intent. On the record before us, the only act which Chavez precipitated was Martha‘s, in running out of the bedroom.
The fact that the defendants were coconspirators does not obviate the requirement of a causal concurrence of fact and intent. Although coconspirators are liable for each other‘s acts committed in furtherance of their conspiracy (as the jury was instructed), they are not criminally liable for acts that do not constitute a crime. In order for the combination of Martinez’ act and Chavez’ intent to constitute a crime for which either or both could be held liable, the intent would have to bear some causal relationship to the act. In this case, it did not.
“[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (People v. Green (1980) 27 Cal.3d 1, 69 [164 Cal.Rptr. 1, 609 P.2d 468]; accord, People v. Houts (1978) 86 Cal.App.3d 1012 [150 Cal.Rptr. 589].) The record here raises the distinct possibility that the verdict was based on the erroneous theory of a mere coincidence in time of Martinez’ presence in the bedroom with Martha and Chavez’ intent to hold her hostage. Because of this possibility alone, the conviction cannot stand.
III
The property removed from the Goodfellows’ dresser formed the basis of two counts of robbery, with Martha and Donald named as the respective victims. Martinez challenges his conviction of the latter robbery on two grounds: (1) the property was not taken from Donald‘s “person or immediate presence” as required by the robbery statute; and (2) since there was but a single taking of property, there can have been but one robbery. We disagree with both contentions.
To establish the element of “presence,” a victim need not perceive the actual taking as long as he perceives any overt act in the commission of the robbery and is subjected to the requisite force or fear. (People v. Wiley (1976) 57 Cal.App.3d 149 [129 Cal.Rptr. 13]; People v. Lavender (1934) 137 Cal.App. 582 [31 P.2d 439].) Otherwise, the thief who ties up the store owner in the anteroom so that he can freely proceed to the inneroffice safe would escape liability for robbery, while the thief who orders the store-owner into the inneroffice with him would not. Such a distinction, aside from being arbitrary, would in time render the robbery statute an anachronism used only to reach the most ignorant and unsophisticated thieves.
Here, the defendants could not have taken the property without contending with Donald. That they did so by subduing him in the living room rather than ordering him into the bedroom did not make him any less a victim of the forcible taking. (People v. Lavender, supra.) The robbery occurred in his “presence” within the meaning of the statute.
Martinez’ second contention is answered in People v. Ramos (1982) 30 Cal.3d 553 [180 Cal.Rptr. 266, 639 P.2d 908]. There the court stated: “We view the central element of the crime of robbery as the force or fear applied to the individual victim in order to deprive him of his property. Accordingly, if force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper.” (Id., at p. 589.) Ramos held that a single taking of property can support multiple convictions of robbery. Here, since the taking of the Goodfellows’ property was accomplished by means of force upon Donald and fear upon Martha, two convictions were proper.
IV
Martinez contends there is insufficient evidence to support the finding that he was armed with a deadly weapon in the fourth rape. We disagree.
“A person is ‘armed’ with a deadly weapon when he simply carries a weapon or has it available for use in either offense or defense.” (People v. Stiltner (1982) 132 Cal.App.3d 216, 230 [182 Cal.Rptr. 790]; see also People v. Reaves (1974) 42 Cal.App.3d 852 [117 Cal.Rptr. 163].)
The evidence showed that Martinez neither used nor carried a screwdriver while committing the rape. Afterwards, while he was dressing, Martha noticed a screwdriver in the bedclothes toward the foot of the bed. This was the one Chavez had used earlier. Martinez had left his own screwdriver in the living room. Martinez was therefore “armed” in the commission of the fourth rape only if he then had one or the other of these weapons “available for [his] use.”
The screwdriver had been taken into the bedroom by Chavez, who left it on the bed when he left the room and Martinez replaced him in raping Mrs. Goodfellow. During Martinez’ rapes the screwdriver lay on the bed, somewhere between her knees and feet. After Martinez’ rapes were over and he had left the bed, Mrs. Goodfellow covered the screwdriver, which until then had been uncovered, by pulling some bedding over it. If the screwdriver had been visible to Mrs. Goodfellow during the rapes, it was not unreasonable for the jury to conclude that it had also been visible to Martinez and that he had recognized it as being within his reach—i.e., “available” to him in case Mrs. Goodfellow needed further “persuasion” to submit to his assaults.
V
In the course of the crimes, both defendants held screwdrivers to Donald‘s body. These acts were the basis of the two counts of assaulting Donald with a deadly weapon.20 On these counts, the defendants received prison terms in addition and consecutive to that received for robbing Donald. Defendants now contend that under
This is not to say that the separate punishments were necessarily permitted. As noted above, each act for which a defendant is criminally responsible can be punished only once. Further, where multiple criminal acts are committed, a defendant can be separately punished only for those that are independent violations committed in pursuit of different criminal objectives. (People v. Perez (1979) 23 Cal.3d 545, 551 [153 Cal.Rptr. 40, 591 P.2d 63].) Both principles come into play here.
The first principle was violated when the trial court punished each defendant twice for a single act of weapon-use. As to each defendant, the two convictions of assaulting Donald were based on (1) the defendant‘s own pushing of a screwdriver against Donald‘s body,21 and (2) vicarious liability for his codefendant‘s similar act.22 As to each defendant, his act in personally assaulting Donald was the same act that formed the basis of the personal weapon-use enhancement in the robbery of Donald. Therefore, to punish each defendant for using a deadly weapon in this robbery, for personally assaulting Donald with a deadly weapon, and for aiding and abetting his codefendant‘s assault, was to punish for at least one weapon-use too many. Under the literal terms of
The question remains whether each defendant was subject to separate punishment for the robbery itself and the assault perpetrated by his codefendant. Since these crimes involved more than one act (i.e., an assault plus a taking of property), the second principle discussed above comes into play. The rule is that when a defendant is responsible for both an assault and robbery, he can be punished for both crimes if the assault was not incident to the robbery and was motivated by a separate criminal objective (People v. Sutton (1973) 35 Cal.App.3d 264 [110 Cal.Rptr. 635]), but if the assault was committed in order to accomplish the robbery, then the defendant can be punished for only one of the crimes. (In re Henry (1966) 65 Cal.2d 330 [54 Cal.Rptr. 633, 420 P.2d 97]; People v. Donohoe (1962) 200 Cal.App.2d 17 [19 Cal.Rptr. 454].)
Ordinarily, we would defer to the trial court‘s implied findings in this respect. However this is not an ordinary case. We have already seen that separate punishment was wrongly imposed upon Chavez in count 9 and Martinez in count 10. In the next section of this opinion we note that the trial court wrongly imposed separate punishments for a kidnaping and robbery. Later we hold that the court failed to make an adequate showing to support its imposition of full-term consecutive sentences on still other counts. Under these circumstances, we cannot assume from a silent record that the court made findings of fact that would support separate punishment for the robbery of Donald and the vicarious assaults upon him. We therefore think it most appropriate to remand to the trial court so that it may determine whether separate punishment in this instance is warranted after due consideration of the applicable principles of law.
VI
Defendants argue that, on the facts of this case, they should not have been punished separately for kidnaping Donald to extort Martha‘s cooperation in the robberies, for robbing Martha, and for robbing Donald. Although we agree that the imposition of sentences for the first two of these crimes precluded a separate sentence for the third, the error is rendered moot by our reversal of the kidnap conviction.
Similarly mooted is Martinez’ contention that he could not be convicted both of kidnaping Donald and of falsely imprisoning him. For guidance of the trial court on remand, however, we note that the false imprisonments of Donald were incident to, at most, two criminal objectives—rape and robbery24—and were not independent of these objectives. Therefore, should the court choose to impose sentence for any of the assaults upon Donald on
VII
In People v. Belmontes (1983) 34 Cal.3d 335, 347 [193 Cal.Rptr. 882, 667 P.2d 686], the Supreme Court stated that a decision to impose full-term consecutive sentences for sex offenses under
The sentencing hearing in this case took place after Ottombrino and before Belmontes. As is pointed out to us in a letter brief, the trial court sentenced the defendants in the rape counts under
DISPOSITION
The judgments of conviction on counts II and III are reversed. In all other respects the judgments of conviction are affirmed. The matter is remanded to the trial court for resentencing in accordance with the views expressed herein.
Amerian, J., concurred.
SAETA, J.*—I concur and dissent.
I agree with the majority in all parts of the opinion except for part II, which relates to the kidnaping of Mrs. Goodfellow. I would affirm the convictions for her kidnaping based on my view of the totality of the circumstances facing her. She had been confined, assaulted and raped for a considerable period of time. Until the perpetrators had left the house, or she
Respondent‘s petition for a hearing by the Supreme Court was denied February 29, 1984.
*Assigned by the Chairperson of the Judicial Council.