People v. Ortega

• Citation: 19 Cal.4th 686,80 Cal.Rptr.2d 489,968 P.2d 48
• Decision Date: 17 December 1998
• Docket Number: No. S055216,S055216
• Court: United States State Supreme Court (California)
• Parties: , 968 P.2d 48, 98 Cal. Daily Op. Serv. 9178, 98 Daily Journal D.A.R. 12,793 The PEOPLE, Plaintiff and Respondent, v. Ernesto ORTEGA et al., Defendants and Appellants.

Page 489

80 Cal.Rptr.2d 489

19 Cal.4th 686, 968 P.2d 48, 98 Cal. Daily Op. Serv. 9178,

98 Daily Journal D.A.R. 12,793

The PEOPLE, Plaintiff and Respondent, v. Ernesto ORTEGA et al., Defendants and Appellants.

No. S055216.

Supreme Court of California.

Dec. 17, 1998.

Leslie C. Greenbaum, Woodland Hills, Maureen J. Shanahan, Richard D. Miggins, Los Angeles, and Daniel G. Koryn, San Diego, under appointments by the Supreme Court, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Kenneth C. Byrne, Robert F. Katz, Susan C. Diamond, Lance E. Winters and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

In this case, we consider whether a defendant charged with carjacking, robbery, and theft, based upon the commission of a single act or course of conduct, may be convicted of multiple offenses. As we shall explain, we conclude that a defendant may be convicted of both carjacking and robbery, or of both carjacking and theft, but may not be convicted of both robbery and theft, based upon the commission of a single act or course of conduct.

I

Defendants Ernesto Ortega, Alexander Rayon, David Higuera, and Luis Avila were charged in an amended information filed September 21, 1994, with two counts of carjacking (Pen.Code, § 215), ¹ two counts of second degree robbery (§ 211), and one count of grand theft of a vehicle (former § 487, subd. (3)). ² Additionally, enhancements were alleged against some of the defendants.

Defendants were found guilty as charged following a jury trial, at which the evidence (considered in the light most favorable to the judgment) showed that on June 16, 1994, shortly before 8:30 a.m., 17-year-old Jose Rubio, accompanied by his 12-year-old friend Bernardo Leyva, was on his way to attend his girlfriend's junior high school graduation. Looking for a place to park, Rubio was driving his van down a street near the school when a vehicle turned in front of him, blocking his way. The occupants of the other vehicle, who later were identified as the four defendants, quickly left their vehicle and ran to Rubio's van. One of them was carrying a large piece of wood.

Avila asked Rubio whether he was from the "Tonerville" gang, and Rubio said he was not. Avila asked Rubio what he was doing in Avila's neighborhood, and Rubio explained he was attending his girlfriend's graduation. Avila then said, "Fuck Tonerville," and demanded that Rubio empty his pockets and give him the van. Rubio refused and said he was not a member of a gang. Avila again said, "Fuck Tonerville," punched Rubio in the face twice, and then opened the door of the van and clubbed Rubio with the piece of wood. Rubio left the van and was punched repeatedly by each of the defendants. When Rayon demanded Rubio's wallet, Rubio complied. As Rubio removed his wallet from his pocket and gave it to Rayon, Rayon saw Rubio's pager and took it as well. Rayon looked in the wallet, saw that it contained no money, and threw it back to Rubio.

Ortega went around to the passenger side of the van and punched Leyva through the open window. Ortega opened the door and tried to pull Leyva out of the vehicle, but Leyva's seatbelt was fastened, leaving him hanging by the belt halfway out of the van. Ortega began to kick Leyva. Leyva got free of the seatbelt and fell to the pavement. Ortega continued to kick Leyva and then pulled off Leyva's sweater. Leyva got up and ran, and Ortega and Avila entered the van and drove away, with the other vehicle following. Rubio and Leyva summoned the police. Ortega, Rayon, and Higuera were located near the scene of the crime and were arrested. Avila was arrested later when he went to the police station to recover his automobile.

During closing argument, the prosecutor told the jury that the two counts of carjacking were based upon the taking of the vehicle from the possession of Rubio and Leyva, respectively. The two counts of robbery were based upon, respectively, the forcible theft of Rubio's wallet and pager, and the forcible theft of Leyva's sweater. The single count of grand theft was based upon the theft of the vehicle. As mentioned above, the jury found each defendant guilty as charged on all five counts.

Ortega having waived his right to a jury determination of the truth of the allegation that he had served a prior prison term, the court, following a brief hearing, found the allegation true. The prior prison term allegation as to Higuera was dismissed on motion of the prosecution.

On count 1 (carjacking), the court sentenced each defendant to the upper term of nine years in prison. Avila was sentenced to an additional year for personally using a deadly weapon in the commission of this offense. As to counts 2 (carjacking), 3 (the robbery of Rubio), and 5 (grand theft), sentences were imposed and stayed pursuant to the proscription against multiple punishment contained in section 654. On count 4 (the robbery of Leyva), Ortega and Higuera each were sentenced to a consecutive term of one year, Avila was sentenced to a concurrent term of three years, and Rayon was sentenced to a concurrent term of five years. Ortega was sentenced to an additional term of one year on the prior prison term finding. Thus, the total prison terms imposed were 11 years for Ortega, 10 years for Higuera and Avila, and 9 years for Rayon.

The Court of Appeal affirmed defendants' convictions for both carjacking and robbery, but reversed their convictions for grand theft, holding that that offense is a lesser included offense of carjacking. We granted the People's petition for review and subsequently requested supplemental briefing on the issues whether defendants properly could be convicted of both carjacking and robbery and whether defendants' robbery convictions were based, in whole or part, upon the taking of the van.

II

The issue before us concerns when a defendant may receive multiple convictions for offenses arising out of a single act or course of conduct. This issue must be distinguished from the closely related question of when a defendant may receive multiple sentences based upon a single act or course of conduct. This important distinction is reflected in the difference between sections 954 and 654.

Section 954 states that "[a]n accusatory pleading may charge ... different statements of the same offense" and "the defendant may be convicted of any number of the offenses charged." Section 654 states: "An act or omission that is punishable in different ways by different provisions of this law shall be punished under the provision that provides for the longest potential term of punishment, but in no case shall the act or omission be punished under more than one...." In People v. Pearson (1986) 42 Cal.3d 351, 359, 228 Cal.Rptr. 509, 721 P.2d 595, we recognized the tension between these statutes, observing: "This court has long struggled with the problem of permitting multiple convictions while protecting the defendant from multiple punishment." The solution we have adopted is, in general, to permit multiple convictions on counts that arise from a single act or course of conduct -- but to avoid multiple punishment, by staying execution of sentence on all but one of those convictions. (Id. at p. 360, 228 Cal.Rptr. 509, 721 P.2d 595.)

But despite the seemingly absolute language of section 954 ("the defendant may be convicted of any number of the offenses charged"), there is an exception to the general rule permitting multiple convictions. "Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]" (People v. Pearson, supra, 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595, italics in original.) " '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.' [Citations.]" (Ibid.)

A defendant who commits a battery may not be convicted of both battery and assault, because "[a]n assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim." (People v. Greer (1947) 30 Cal.2d 589, 597, 184 P.2d 512; not followed on other grounds in People v. Pearson, supra, 42 Cal.3d 351, 358, 228 Cal.Rptr. 509, 721 P.2d 595, and overruled on other grounds People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6, 52 Cal.Rptr.2d 282, 914 P.2d 832.) In contrast, a defendant properly may be convicted of two offenses if neither offense is necessarily included in the other, even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct. The necessarily included offense rule is used to determine whether a defendant improperly has been convicted of both a greater offense and an included offense, or properly has been convicted of separate offenses.

III

The Court of Appeal held that defendants could not properly be convicted of both carjacking and grand theft, based upon the taking of the van, because theft is a necessarily included offense of carjacking. We disagree.

" 'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (§ 215, subd. (a).)

Section 484, subdivision (a), defines the crime of theft: "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another ... is guilty of theft." Section 486 declares: "Theft is divided into...