People v. Green

Decision Date13 November 1996
Docket NumberNo. B092914,B092914
Citation58 Cal.Rptr.2d 259,50 Cal.App.4th 1076
CourtCalifornia Court of Appeals Court of Appeals
Parties, 96 Cal. Daily Op. Serv. 8239, 96 Daily Journal D.A.R. 13,677 The PEOPLE, Plaintiff and Respondent, v. Clarence GREEN, Defendant and Appellant.

Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, Oxnard, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, and Thomas W. Casparian, Deputy Attorney General, for Plaintiff and Respondent.

KLEIN, Presiding Justice.

Defendant and appellant Clarence Green appeals the judgment entered after conviction by jury of kidnapping for sexual purposes, robbery, genital penetration by foreign object, carjacking, and attempted rape. (Pen.Code, §§ 207, subd. (a)/208, subd. (d), 211, 289, subd. (a), 215, subd. (a), 664/261, subd. (a)(2).) 1 The jury found Green personally used a firearm in the commission of each offense within the meaning of section 12022.5, subdivision (a), and that he previously had been convicted of a serious or violent felony within the meaning of section 667, subdivisions (b) through (i). The trial court sentenced Green to a term of 62 years and 8 months in state prison.

FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecution evidence.

Viewed in accordance with the usual rule of appellate review (People v. Rayford (1994) 9 Cal.4th 1, 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369; People v. Johnson (1980) 26 Cal.3d 557, 575-577, 162 Cal.Rptr. 431, 606 P.2d 738), the evidence established that on July 20, 1994, at approximately 10:45 p.m., Linda O. left her office in Burbank and drove into the security garage of her apartment complex in Van Nuys. As Linda O. was about to get out of the car, two people rushed up to her and one of them put a gun to her head. Linda O. screamed and was told to "shut up and to look the other way." Linda O.'s purse was taken and one of the assailants tried to remove a ring from her finger. When the individual with the gun asked Linda O. the number of the apartment in which she lived, the companion appeared to panic and said "Let's just go." Linda O. had not yet looked at the assailants. The individual with the gun told Linda O. to move into the passenger seat. Linda O. told the man to take whatever he wanted but to leave her there. The individual said something to the effect he was not going to leave her, took the keys and started the car. As the gunman drove, Linda O. offered to get money at an ATM. Linda O. looked at the gunman during this conversation and identified him as Green. Green drove with the gun in his right hand and then parked in a residential area that was "somewhat secluded." Thereafter, Linda O. looked at Green several times in order to "get a read on him. I wasn't sure what he was going to do."

Green ordered Linda O. to remove her jacket. Linda O. tried to talk Green out of the assault but he removed her blouse and bra and touched her breasts. Green removed Linda O.'s skirt and stockings and told her to lay down. Green put his fingers inside Linda O.'s vagina numerous times, then removed his clothing and got on top of Linda O. Green attempted to insert his penis into Linda O. but only rubbed back and forth against her vagina until he ejaculated between her legs. Linda O. asked if she could dress and Green said she could. Linda O. used a towel she found inside the car to wipe the semen from herself.

When they both had dressed, Linda O. told Green her husband would call the police if Green allowed Linda O. to remove certain items from the car. In the process of doing that, Linda O. found the wedding ring she earlier had removed from her hand and placed on the floorboard of the car, and dropped it in the gutter. Although Green touched Linda O.'s diamond earrings and necklace, he did not take them. He took only her bra and stockings. Before Linda O. walked away, Green offered her a dollar. At this point, Green did not seem concerned that Linda O. had seen him. As soon as Green drove away, Linda O. recovered the ring, ran home and called the police. Linda O. identified Green in a photographic lineup, at a live lineup, and in court.

she failed to return home and they were probably looking for her. Linda O. said she had to go to the bathroom in an attempt to get Green to release her. Green came around to the passenger side of the car with the gun in his waistband and ordered Linda O. to urinate in the gutter. Green looked in the backseat and the trunk of the car until he found a small cellophane package he apparently had lost. He put the package on the dashboard in front of him.

Los Angeles police officers recovered Linda O.'s vehicle on July 26, 1994, in Pacoima. A forensic fingerprint expert found Green's left middle fingerprint on the trunk and his palm print on the hood of the vehicle.

2. Defense evidence.

Green testified in his own defense. He denied he had committed the charged offenses and claimed Linda O. had misidentified him because she had failed to notice a tattoo on his chest. Green claimed his finger prints may have gotten onto the vehicle in the course of his employment as an auto mechanic. Green admitted he previously had been convicted of aggravated battery with a shotgun in Louisiana in 1977, and armed robbery in California in 1980.

3. Sentencing.

The trial court selected the high term of 11 years for kidnapping for sexual purposes which it doubled on account of Green's prior serious or violent felony conviction of armed robbery. The trial court enhanced the 22 year base term with a middle term of four years for the personal use of a firearm. The trial court noted there were insufficient factors in aggravation to support the upper term of 10 years requested by the People. Regarding the penetration by foreign object, the trial court noted it had selected the "fully consecutive sentence option" and imposed the high base term of 8 years which it doubled to 16 years. The trial court also imposed a consecutive four year term for the personal use of a firearm.

For robbery of the purse in count 2, the trial court stated "this count is independent from the other counts and it stands alone." The trial court imposed one-third the middle term, or one year, which it doubled to two years, plus one-third of the middle term firearm enhancement for an additional one year and four months. As to the count of carjacking, the trial court noted "[t]his was a different event than the robbery contained in count II." The trial court imposed one-third the middle term or one year and eight months, which it doubled for a total of three years and four months. The trial court enhanced the term by one year and four months for the personal use of a firearm.

With respect to the attempted rape, the trial court noted this count was separate from the kidnapping for sexual purposes and the penetration by foreign object and sentenced Green to one-third the middle term or one year which it doubled to two years and enhanced by one year and four months for the personal use of a firearm.

To these terms the trial court added a five-year enhancement for the prior serious felony conviction pursuant to section 667, subdivision (a)(1). The trial court noted the total term imposed was 62 years and 8 months. "It is the court's sentencing choice that all the sentences be served consecutively to each other. This is pursuant to the court's sentencing discretion, the abject terror that you visited on the victim, and the Legislative intent of the [Three Strikes law]."

The trial court also directed the Department of Corrections to perform an AIDS test on Green and to notify the District Attorney

of the results so that the victim could be notified.

CONTENTIONS

Green contends he cannot be convicted of both carjacking and robbery based on the same incident, the trial court erroneously failed to stay the term imposed for robbery, the prior conviction of armed robbery was not determined to be a serious or violent felony on the date it was incurred, the trial court made improper dual use of the prior conviction to double the base term and to impose a five-year enhancement, the trial court improperly relied on the same prior serious or violent felony conviction to double each of the five felony counts of which Green was convicted, the Three Strikes law improperly was enacted as urgency legislation, and the trial court erroneously ordered Green to submit to AIDS testing.

DISCUSSION
1. Green properly may be convicted and punished for both carjacking and robbery.

Green contends he cannot be convicted of both carjacking and robbery based on the same incident. (People v. Gamble (1994) 22 Cal.App.4th 446, 450-452, 27 Cal.Rptr.2d 451; People v. Rush (1993) 16 Cal.App.4th 20, 27, 20 Cal.Rptr.2d 15.) In these cases, the defendant was convicted of robbery and grand theft auto. The grand theft auto conviction was reversed because "[a] defendant commits only one robbery no matter how many items he steals from a single victim pursuant to a single plan or intent. [Fn. omitted.]" (People v. Brito (1991) 232 Cal.App.3d 316, 326, 283 Cal.Rptr. 441.) Green reasons the same result should obtain here and notes the offense of carjacking had not yet been defined at the time the offenses in the cited cases were committed.

Alternatively, Green asserts the trial court erroneously failed to stay the term imposed for robbery pursuant to section 654. 2

These claims are meritless.

The test in this state of a necessarily included offense is simply that, where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.)

Robbery occurs when any type of personal property...

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