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Sentence OK if for Robbery and Kidnapping for Robbery?
In Los Angeles County, Jose Marcos Barrios used a gun and hijacked I. Hsiung and his car for a robbery. Barrios took the cash from Hsiung’s wallet and then ordered Hsiung to drive them both to ATM machines for more cash. At the first ATM, Barrios told Hsiung to withdraw his cash limit, which Hsiung did. This was $500. Barrios then ordered Hsiung to drive to more ATM’s.
About This Article Briefly: A sentence for kidnapping for robbery and then robbery when the two crimes are incident to each other cannot involve two consecutive sentences. The sentences must be concurrent under Penal Code § 654, as the following summary explains.
Hsiung did so, driving Barrios around to various ATM’s for almost two hours at night. Barrios then got frustrated because the ATM machines seemed to have reached their limit for dispensing cash for Hsiung’s ATM card and decided that once midnight passed and a new day arrived, Hsiung’s ATM withdrawal limit would rise to a new daily limit and Barrios could then rob him of that limit again.
So Barrios instructed Hsiung to park the car and they would wait. To Hsiung’s surprise, Barrios fell asleep while they were parked waiting for midnight and Hsiung texted friends who then directed police to Hsiung’s location and upon waking up Barrios, arrested him.
Barrios was then charged and convicted in Pomona Superior Court with kidnapping for robbery and robbery. Each conviction, with its gun enhancement, meant a separate sentence of 25 years to life plus 10 years (Penal Code § 12022.53(b). Judge Mike Camacho did not stay either sentence, but ordered them to be consecutive, making the sentence 50 years to life plus 20 years. The whole sentence, plus a five-year prior serious felony enhancement (Penal Code § 667(a)(1)) was 75 years to life.
Barrios appealed his sentence to the Second Appellate District as a violation of Penal Code § 654. Indeed, if many offenses are incident to one objective, someone may be punished for any one of the offenses, but not more than one. People v. Goode (2015) 243 Cal.App.4th 484, 492. Here, Barrios argued, robbery was incident to his kidnapping for robbery. Because the kidnapping had no objective but robbery, the robbery sentence and its enhancement must be stayed.
2nd Appellate District Court of AppealsThe Second Appellate District agreed with Barrios that Judge Camacho had erred in his sentencing.
It explained that Penal Code § 654 says when an “act” punishable in different ways by different legal provisions shall be punished under the provision providing for the longest potential term of imprisonment, but in no case shall the “act” be punished under more than one provision.
So the gist of the appeal and the appellate court’s ruling distilled down to what was an “act.” Was Barrios’ venture one act or more than one “act?” Obviously, he performed many different physical actions over the two hours he was with Hsiung: He tapped Hsiung’s car window with his gun when he first came upon Hsiung, he commanded Hsiung to unlock his car door, he ordered Hsiung to drive to multiple ATM’s, he ordered Hsiung to park and wait for midnight and so on.
Was this course of conduct one act? The Second Appellate District pointed out here that when the facts are undisputed (as in this case), the application of Section 654 raises a question of law. It is purely a question of statutory interpretation. The Second Appellate District’s review is therefore independent. People v. Corpening (2016) 2 Cal.5th 307, 312.
The appellate court then discussed People v. Beamon (1973) 8 Cal.3d 625, 637. In Beamon, victim Ashcraft drove a liquor truck and got out for a delivery. When Ashcraft returned to the truck, Beamon entered the driver’s seat with a gun. He pointed it at Ashcraft and told him to drive onward. The two drove a distance and then Ashcraft fought. Ashcraft fled and called police, who later arrested Beamon. The episode lasted about 20 minutes and covered about 15 blocks.
The jury convicted Beamon of robbery and kidnapping for robbery. The California Supreme Court had “little difficulty” with this case. Beamon “was convicted of kidnapping for the purpose of robbery and for the commission of that very robbery. We are compelled to the conclusion as a matter of law that on the record here both crimes were committed pursuant to a single intent and objective, i.e., to rob Ashcraft of the truck or its contents.” Id., at p. 639. Beamon “may therefore be punished for only one of such crime. As punishment for a second-degree robbery, is the lesser punishment for the two crimes, its execution must be stayed.”
In the Barrios case, “Beamon governs” wrote the Second Appellate District and remanded the case back to Judge Camacho for sentencing in accordance with this opinion.
We present this summary because sentencing is tricky and often error-prone, especially when the facts are bad, as here.
The citation for the Second Appellate District Court ruling discussed above is People v. Jose Marcos Barrios (2nd App. Dist., 2021) 61 Cal. App. 5th 176, 275 Cal. Rptr. 3d 549.
For more information about duplicative or redundancy in sentencing issues, please click on the following articles:
