People v. Palacios, D042461.

• Citation: 23 Cal.Rptr.3d 831,126 Cal.App.4th 428
• Decision Date: 02 February 2005
• Docket Number: No. D042461.,D042461.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Aaron Marcel PALACIOS, Defendant and Appellant.

23 Cal.Rptr.3d 831

126 Cal.App.4th 428

The PEOPLE, Plaintiff and Respondent, v. Aaron Marcel PALACIOS, Defendant and Appellant.

No. D042461.

Court of Appeal, Fourth District, Division 1.

February 2, 2005.

Rehearing Denied March 3, 2005.

Review Granted May 11, 2005.

Ward Stafford Clay, San Diego, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil P. Gonzalez and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

McCONNELL, P.J.

Aaron Marcel Palacios appeals his convictions of attempted murder (Pen.Code,¹ §§ 187, subd. (a), 664, 12022.7, subd. (a)), two counts of kidnapping for robbery (§ 209, subd. (b)(1)), two counts of kidnapping for carjacking (§ 209.5, subd. (a)), two counts of carjacking (§ 215, subd. (a)) and true findings that he discharged a firearm and personally inflicted great bodily injury in the commission of the attempted murder, the kidnapping for robbery and the kidnapping for carjacking of one victim (§§ 12022.53, subd. (d), 12022.7, subd. (a)). True findings were made that he was armed and personally used a firearm in the kidnapping for robbery (§§ 12022.53, subd. (b), 12022, subd. (a)(1)) and was armed with a firearm in the kidnapping for carjacking of the second victim (§ 12022, subd. (a)(1)).

On appeal, Palacios challenges: the sufficiency of the evidence to support his convictions and the firearm discharge enhancements, restrictions on closing argument, imposition of multiple punishments for the kidnappings for carjacking and robbery, imposition of multiple gun discharge enhancements, and the imposition of consecutive sentences. He also contends imposition of multiple gun discharge enhancements constituted cruel and unusual punishment. The People point out the court failed to independently determine the determinate sentence and thus failed to select a full-strength principal term.

We conclude the court erred by failing to: stay either the kidnapping for robbery or kidnapping for carjacking as to one of the victims; strike the carjacking convictions; stay two of the gun discharge enhancements; and independently determine the determinate portion of Palacios's sentence. We remand for correction of the sentencing errors. In all other respects, we affirm.

FACTS

Victim Brian Jones

About 2:00 a.m. on May 3, 2002, Palacios and Shana Dreiling were loitering in a gas station in Chula Vista when Brian Jones arrived to buy gasoline and cigarettes. Jones had just finished working as the shift manager at a nearby Taco Bell restaurant and was wearing his Taco Bell uniform. Dreiling approached Jones. She asked Jones for a ride, which he refused to give her. She then asked for change to make a phone call. He agreed and went to his car. As he was reaching into the car to get change, Palacios came up behind him, told him he had a gun and "to get in the fucking" car. Jones complied.

Dreiling sat in the front passenger seat and Palacios sat in the rear seat. Palacios directed Jones to drive into the Eastlake area of Chula Vista and when they reached the parking lot of the golf course, he placed a gun at the back of Jones's head and directed him to stop the car and trade places with Dreiling. When Jones undid his seat belt and started to open the door, Palacios became angry and ordered Jones to climb over the center console into the passenger seat while Dreiling ran around the car to the driver's seat. Palacios asked Jones what kind of vehicle Jones's father drove and then told him to take them to his home where they would drop him off. Jones, afraid that Palacios and Dreiling would break into his family's home, instead directed them to a condominium complex where a friend used to live.

When they reached the condominium complex, Palacios told Dreiling to keep driving and to drive south on Interstate 805. He told Jones he would drop him off in a place where he would not immediately be able to call the police. Palacios gave money to Jones, telling him it was "taxi fare." They exited the freeway near the Mexican border but Palacios then directed Dreiling to drive north.

Palacios kept telling Jones he was not going to hurt him or damage his car, that he just needed the car to go to Los Angeles to "get away from something." Palacios said he was in trouble for something to do with computers. Palacios seemed a little "proud" of that; noting that he had made the "B section" of the newspaper. Palacios, however, was not satisfied with making only the "B section" and told Jones to read the newspaper the next day where he would see Palacios's name on the front page. As they were driving, Palacios also bragged about the bullets in the gun, calling them "black rhinos, like armor-piercing bullets."

Dreiling exited the freeway in the Miramar area and drove to a wooded area. Palacios, apparently familiar with the area, directed Dreiling through several turns until they entered a residential neighborhood in Scripps Ranch and arrived at a park. Palacios ordered Jones to get out of the car and follow Dreiling into the park. Palacios, holding a gun, followed Jones. As they walked down a trail, Palacios kept telling Jones he was not going to shoot or kill him. Palacios asked Jones if he thought he was going to be shot. Jones answered, "Yes." Palacios laughed in response.

Eventually, they reached an area where they were hidden from the view of any homes. Palacios told Jones to take off his clothing, including his Taco Bell uniform. Jones complied but kept on his boxer shorts. When a lighter dropped out of Jones's pants pocket, Palacios demanded Jones pick it up but Jones refused, fearful that Palacios would shoot him in the head. Because Jones was shivering, Dreiling returned to him his undershirt and shoes. Palacios ordered Jones to lie down on the ground and count to 100. He told Jones when he was done counting, they would be gone.

When Jones had counted to five or six, Palacios fired the gun, hitting Jones in the triceps area of his right arm. Jones lay motionless, pretending to be dead. After awhile, Jones discovered he was alone, walked to a nearby residence, rang the doorbell, and told the resident he had been shot and his car stolen. The resident called the police.

The police initially disbelieved Jones's story, accusing him of being a liar and of being involved in a drug deal that had gone bad.

Jones later received a bank statement indicating his ATM card had been used at a store in Chula Vista for merchandise valued at $4.63.

Victim Grant Carr

At about 9:00 a.m. on the same day as the Jones's incident, Dreiling knocked on the door of Grant and Penelope Carr's residence in Escondido, claiming she was lost and trying to find a street named "Carnitas." Grant² walked with Dreiling to a car (Jones's car), which was parked across a portion of the Carr driveway. Palacios was sitting in the car rifling through some papers as if looking for something and suggested to Dreiling, "Why don't we call your grandmother?" Dreiling asked what city they were in. Grant indicated he had a Thomas Brothers Guide and started walking back to his house. As he walked back toward the house, Dreiling asked if she could use the bathroom. Grant agreed but told her to wait a minute while he put his dogs behind a barrier. He locked the door behind him because Dreiling "not knowing which city she was in didn't sound right." He put the dogs behind a barrier and let Dreiling in to use the bathroom.

While Dreiling was in the bathroom, Penelope, who had been in the shower, asked, "What's up, honey?" Grant, concerned about the situation, told her "Shush. There's a girl in the bathroom. I think it's okay, but take this phone and go into the back bedroom, just in case."

When Dreiling emerged from the bathroom, she pulled a gun out of her purse, pointed it at Grant's head, and said "she would blow [his] fucking brains out all over the carpet." He said loudly, "Oh, no," so Penelope would hear him. Dreiling then started screaming at him to "Get down," "Get down on the floor." Dreiling asked if there was anyone else in the house. Grant answered no. Once Grant was on the floor, Dreiling opened the front door and Palacios entered. Palacios held the gun two or three inches from Grant's head and told him if he moved or caused any trouble Palacios would shoot him. He told Grant the gun had "dumb-dumb bullets," which he called rhino jackets. Palacios asked if there was anybody else in the house. Grant told him his wife lived there but she had left for work. Palacios wanted to know when she would return home. Palacios told Grant that he and Dreiling would hold Grant or Penelope as a hostage while the other was taken to an ATM machine to remove money from the Carrs' bank account.

Penelope slipped out the back of the house and dialed 911.

Palacios and Dreiling, while holding Grant at gunpoint, ransacked the house. They forced Grant to assist, including by moving items into his and Penelope's cars in the garage. The floor of the residence was strewn with items from boxes and drawers. Grant made at least 11 trips to the car. He was worried they were going to shoot him since Palacios was concerned about leaving fingerprints and stated he was facing 25 years and had nothing to lose.

After Grant had been emptying boxes for about 20 to 30 minutes there was a "fairly loud but muffled" noise, the sound of the police shooting out the tires of Jones's car. Dreiling "freaked out" and Palacios came running. Palacios told Grant, "You're going to get shot," and then marched Grant to the patio door off the master bedroom. Palacios explained, if there were police outside who were going to shoot someone, that someone would be Grant. Just before Grant reached the patio door, Palacios yelled at him to stop, turn around, and the three of them went to the garage. Palacios looked out the windows located at the top of the garage and said, ...