People v. Jackson

• Decision Date: 15 February 1995
• Docket Number: No. B080182,B080182
• Citation: 38 Cal.Rptr.2d 214,32 Cal.App.4th 411
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. David Anthony JACKSON and Deon Lagrant Swayzer, Defendants and Appellants.

Page 214

38 Cal.Rptr.2d 214

32 Cal.App.4th 411

The PEOPLE of the State of California, Plaintiff and Respondent, v. David Anthony JACKSON and Deon Lagrant Swayzer, Defendants and Appellants.

No. B080182.

Court of Appeal, Second District, Division 7, California.

Feb. 15, 1995.

Certified for Partial Publication ^*

Review Denied May 11, 1995.

[32 Cal.App.4th 413] David H. Goodwin, under appointment by the Court of Appeal, Los Angeles, for defendant and appellant David Anthony Jackson.

Bruce Daniel Rosen, under appointment by the Court of Appeal, Dana Point, for Deon Lagrant Swayzer.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Senior Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., and Carol A. Greenwald, Deputy Atty. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.

A jury convicted appellants, David Anthony Jackson and Deon Lagrant Swayzer, of numerous counts of forcible rape, forcible oral copulation, robbery and kidnapping and found true several related enhancements for firearm use, kidnapping for sexual purposes and infliction of great bodily injury. Appellants appeal their convictions, contending the trial court made numerous sentencing and other errors. In the unpublished portion of this opinion we conclude substantial evidence supports appellants' convictions for the substantive crimes and for four of the five enhancements appellant Jackson received for the infliction of great bodily injury. We also conclude the trial court articulated adequate reasons for imposing aggravated terms and consecutive sentences on the various convictions and enhancements. In the published portion of the opinion we conclude four of the sentence enhancements appellant Swayzer received for being armed with a firearm are not supported by the evidence and must be reversed. We also conclude the trial court erred in imposing sentence on Jackson's conviction for kidnapping for the purpose of committing the sexual assaults and in staying punishment on the enhancement for kidnapping for sexual purposes. As modified, we affirm the judgments of conviction.

FACTS AND PROCEEDINGS BELOW ^**

DISCUSSION

I. & II.**

III. THE SENTENCE IMPOSED FOR JACKSON'S CONVICTION FOR KIDNAPPING FOR SEXUAL PURPOSES IN COUNT I MUST BE STAYED.

Jackson contends the trial court erred in imposing sentence on count I for his conviction for kidnapping for sexual purposes (Pen.Code § 208) ¹ and in staying the enhancement (§ 667.8) for kidnapping for sexual purposes. We agree.

Prior to 1983, courts routinely stayed punishment on kidnapping convictions pursuant to section 654 ⁴ if the kidnapping was for the purpose of committing a sexual offense, provided the sexual offense was punished and the acts comprised an indivisible transaction arising out of a single course of conduct. (People v. Masten (1982) 137 Cal.App.3d 579, 187 Cal.Rptr. 515; People v. Panky (1978) 82 Cal.App.3d 772, 147 Cal.Rptr. 341; People v. Rocco (1971) 21 Cal.App.3d 96, 98 Cal.Rptr. 365.) In 1983 the Legislature enacted section 667.8 in response to the sentencing limitations imposed by section 654. (People v. Hernandez (1988) 46 Cal.3d 194, 205, 249 Cal.Rptr. 850, 757 P.2d 1013; In re Samuel B. (1986) 184 Cal.App.3d 1100, 1108, 229 Cal.Rptr. 378.) Section 667.8 provides for a mandatory additional term of three years when the purpose of a kidnapping is to commit specified sex offenses.

An early version of the bill expressly provided it was intended to be an exception to the multiple punishment prohibition of section 654. This version of the bill specified the enhancement was to be imposed in lieu of the sentencing provisions of section 1170.1. The final bill as amended and enacted deleted this language but retained the mandatory nature of the three-year enhancement. Legislative Counsel described the purpose and function of section 667.8 as follows: "Under existing law, persons convicted of a felony may have their prison sentences enhanced under certain circumstances. Chapter 950 mandates an additional three year prison term for persons convicted of a specified sex offense who kidnapped their victims to perpetrate the offense. This enhancement is to be distinct and in addition to the punishment prescribed for the sex offense." (15 Pac.Law J. (1984) Review of Selected 1983 Legislation, pp. 600-601.)

In In re Samuel B., supra, 184 Cal.App.3d 1100, 229 Cal.Rptr. 378, this court held once the trial court finds the defendant kidnapped the victim for the purpose of committing the sexual offense, the court "cannot punish both offenses because of the proscription of section 654, but is mandated by section 667.8 to impose on defendant an additional three-year term." (184 Cal.App.3d at p. 1108, 229 Cal.Rptr. 378.)

Similarly in People v. Flores (1987) 193 Cal.App.3d 915, 238 Cal.Rptr. 656, the decision on which Jackson relies, the defendant was convicted of forcible lewd conduct upon a child under the age of 14 with an enhancement for kidnapping for the purpose of committing the offense. He was also convicted of forcible sodomy, forcible oral copulation and kidnapping. The trial court selected the kidnapping conviction as the base term and imposed a mid-term sentence of five years. The court then sentenced the defendant to full, separate consecutive terms for the sex offenses pursuant to section 667.6, subdivision (c). However, the trial court stayed execution of the enhancement under section 667.8 for kidnapping for sexual purposes. The appellate court found the law required the trial court to do just the reverse. Due to the mandatory nature of the enhancement, the court reasoned "the court's only choice in this case was to stay the execution of sentence on the kidnapping count but impose execution of sentence on the section 667.8 enhancement." (193 Cal.App.3d at p. 922, 238 Cal.Rptr. 656.)

In People v. Latimer (1993) 5 Cal.4th 1203, 23 Cal.Rptr.2d 144, 858 P.2d 611, the defendant was convicted of kidnapping and several sexual offenses. A divided Court of Appeal held section 654 prohibited punishment for the kidnapping in addition to the rapes. The People filed a petition for review. In the Supreme Court the People urged the court to overrule the "intent and objective" test first articulated in Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, in order to make punishment available for each criminal act regardless if the defendant's objective in committing one crime was to facilitate the other. The court rejected the People's invitation to overrule its earlier decision. It held the principle of stare decisis and legislative reliance on its interpretation of section 654, prohibiting multiple punishment for multiple acts committed with a single intent and objective, precluded any change to the judicial interpretation of section 654.

The court cited section 667.8 as an example of legislative reliance on the "intent and objective" test for defining an act under section 654. "Since [adoption of the Determinate Sentencing Act], there have been numerous changes in sentencing laws, including increases in the length of terms for many crimes. At this time, it is impossible to determine whether, or how, statutory law might have developed differently had this court's interpretation of section 654 been different. For example, the limitation the Neal rule placed on consecutive sentencing may have affected legislative decisions regarding the length of sentences for individual crimes or the development of sentence enhancements.

"These abstract concerns become concrete upon examination of the specific crimes involved in this case. In 1983, the Legislature added Penal Code section 667.8 [to provide for a mandatory three-year enhancement if the victim was kidnapped for the purpose of committing sexual offenses.] This enhancement was neither pled nor proven here, and thus cannot be applied. (People v. Hernandez (1988) 46 Cal.3d 194 [249 Cal.Rptr. 850, 757 P.2d 1013.] ) Its existence, however, substantially affects our ability to effectively overrule the Neal rule in this specific application.

"In People v. Hernandez, supra, 46 Cal.3d at page 203 [249 Cal.Rptr. 850, 757 P.2d 1013], we examined the history of Penal Code section 667.8, and concluded that the additional term it provides for 'was originally designed to eliminate the partial sentence reduction that might be gained by application of ... the prohibition against multiple punishment contained in section 654 (if the kidnapping and sex offense were part of one indivisible course of conduct).' In other words, the Legislature was apparently aware that under the prevailing interpretation of section 654, consecutive sentences for a sexual offense and kidnapping would be impermissible if the sole purpose of the kidnapping was to facilitate the sexual offense. It accepted that interpretation (although never affirmatively endorsed it), and enacted the three-year enhancement of section 667.8 to remedy the problem.

"If we now overrule Neal, and adopt a new rule that would allow consecutive punishment in this case, we would be left with both the ability to consecutively punish the kidnapping and the three-year enhancement of Penal Code section 667.8. Difficult questions would arise. Would both consecutive punishment and the enhancement be allowed? If so, the total sentence might well be greater than the Legislature ever contemplated, since section 667.8 might not have been enacted if consecutive sentencing had always been allowed. If not, how do the enhancement and the consecutive sentence interact? What would the Legislature have intended if it had known of the new rule? On a more general front, what other statutes and legislative decisions may have been influenced by the Neal rule, and in what ways? These are questions the Legislature, not this court, is best equipped to answer." (5 Cal.4th at pp. 1215-1216, 23 Cal.Rptr.2d 144, 858 P.2d 611, ...