NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Defendant Marcellous Bernard Drummer appeals from a judgment entered after a jury found him guilty of murder (Pen. Code, § 187
On appeal, defendant raises issues related to sentencing. The judgment is reversed. The trial court is directed to strike the 10-year gang enhancement on count one, to strike the battery conviction (count three), and to correct errors in the abstract of judgment.
I. Statement of Facts
Katrina Fritz worked as a prostitute. She first met Raveesh Kumra in 1999 and he was a regular customer from 2001 or 2002 until 2009.
Shortly after Thanksgiving in 2012, Austin told Fritz that he was going to go to the Kumras' house, which she understood to mean that he was going to rob them. In response to Austin's questions, Fritz told him that there would probably be money and jewelry in the house. Later, Austin called and asked her for a layout of the Kumras' house. She arranged to meet Austin in Oakland. When Austin arrived, both he and defendant exited the vehicle. Defendant had known Austin since childhood and Fritz for about 10 years. There was a third African-American man in Austin's car, but Fritz did not get a good look at him. Austin told her that this man was from Ghost Town and was his "partner." Fritz gave the sketch to Austin and pointed out Raveesh's and Harinder's bedrooms. Defendant said something like, "I bet you they have a lot of gold."
On the night of November 29, 2012, Harinder woke up when Austin entered her bedroom. After she began screaming, he hit her, which caused her lip to bleed. Austin told her, "I'll take you to Ravee. Keep walking, otherwise, you know, you'll get hurt again." He also told her, "Just go on; otherwise, we'll kill you." She got out of the bed and walked downstairs through the living room and the dining room to the kitchen. When she got to the kitchen, she saw Raveesh standing up with his hands tied behind his back. Raveesh was struggling and asking for help. The men pushed Raveesh to the floor.
Harinder twice said, "Don't push him. He's a heart patient. He'll die. And he has a breathing problem." The men blindfolded her and tied her hands with masking tape. They told her to lie down on the floor, where her legs were bound with a blanket. Someone yelled at her, "Don't move. You're moving," and then hit her on the legs.
One of the robbers asked her where the money and the safe were. Harinder responded that the money was in the bedroom and the safe was in the pantry. Harinder said to them many times, "He has not moved. Please check him out. Please check him." There was a person sitting near her, who told her that Raveesh was okay. He said, "Don't worry. We'll call 911 if anything goes wrong. Okay?" He later said, "I'm going to gather the other people now. We will be going very soon, but don't you get up. If you do, it won't be good." The man also told her, "Okay. I'm going to gather people. Don't get up until we come back and tell you when to get up." He left and she waited. She was eventually able to free her legs. She tried to cut the tape binding her hands, but was unable to do so. The robbers had broken all the phones except a cell phone that had been hidden. Harinder called 911.
When the police arrived, Raveesh was unresponsive. Paramedics soon arrived and pronounced him dead. The cause of death was probable asphyxia due to suffocation resulting from the duct tape over his mouth. The police took Harinder to the hospital where she received six or seven stitches to her lip.
The robbers had ransacked the house and taken cash, coins, and jewelry. Gifts for the Kumra's daughter's wedding had also been taken.
Fritz met defendant and Austin at a restaurant after the burglary. Defendant told her, "Shit. It went bad. . . . It went bad, like, he's dead." Austin gave her $2,000 in cash. As Austin later told her what had happened, defendant was agreeing with him. Fritz responded, "[T]his is going to be bad." Both defendant and Austin told her not to worry and that they would confess to the crimes. They also told her that they took the stolen items to an Asian pawn shop in San Francisco. The following week, Austin gave her $40,000.
A prosecution expert testified that defendant was a possible contributor to the DNA collected from a swab of Raveesh's right hand. In her opinion, it was 5,000 times more likely that defendant contributed to the DNA on the swab than an unknown individual in the African-American population. Austin and Javier Garcia were contributors to DNA found on other items in the Kumras' residence.
Cell phone records showed that a phone associated with defendant connected four times with towers in the Los Gatos/Monte Sereno area between 11:08 p.m. on November 29 and 1:15 a.m. on November 30, 2012. Phones connected with Austin and Garcia were also used in that area that night.
During a jail phone call, defendant referred to a purse that the police had seized from an acquaintance. In referring to a purse that had been stolen from Harinder, he stated, "That ain't the purse anyways so they gon' be up and give her that back."
A. Section 654
Defendant contends that the trial court erred when it imposed separate terms for the threat and false imprisonment of Harinder (counts four and six). The trial court imposed consecutive sentences consisting of three years for count four plus five years for the associated gang enhancement, and eight months for count six plus one year and four months for the associated gang enhancement. Defendant contends that the acts constituting the criminal threat and the false imprisonment were part of an indivisible course of conduct with a single objective, and thus the trial court should have stayed the sentences for false imprisonment and the associated gang allegation under section 654.
Section 654 provides, in relevant part, that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) The purpose of this statute is to ensure that the punishment is commensurate with the defendant's culpability. (People v. Correa (2012) 54 Cal.4th 331, 341.)
"`Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The trial court's determination that a defendant maintained multiple criminal objectives is a question of fact that must be upheld if supported by substantial evidence. (People v. Harrison (1989) 48 Cal.3d 321, 335.) "[W]here there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1339.) In the absence of a foundation for identifying the factual bases for the jury's verdicts, "a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts." (Id. at p. 1340.)
Here, though the prosecutor told the jurors in closing argument that the threat offense could be based either on Austin's statement to Harinder that he would kill her if she did not walk to the kitchen, or on defendant's order not to move as she lay on the kitchen floor, the verdicts do not disclose that the jurors made any such determination. The question then is whether the trial court's implied finding of multiple intents and objectives is supported by substantial evidence. "Circumstances on which a trial court relies in making a sentencing choice must be established by a preponderance of the evidence." (People v. Lewis (1991) 229 Cal.App.3d 259, 264.) Here, the trial court could have reasonably found that Austin's objective in threatening Harinder in the bedroom was to move her to the kitchen to ensure that she would not interfere with the robbers' actions in taking the Kumras' property, that is, to enable them to commit the robbery. The trial court could also have reasonably found that by blindfolding Harinder, tying her hands, and binding her feet in the kitchen, the objective was to allow them sufficient time to escape. Since, there was substantial evidence to support the trial court's determination that defendant maintained more than one intent and objective, there was no violation of section 654.
B. Gang Enhancement on Count One
Defendant contends, and the People concede, that the trial court erred when it stayed a 10-year sentence for the gang enhancement on count one.
The trial court imposed a sentence of life without possibility of parole for count one (first degree murder with a special circumstance). The trial court then imposed and stayed a 10-year sentence for the gang enhancement on count one.
Section 186.22, subdivision (b) "establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang." (People v. Lopez (2005) 34 Cal.4th 1002, 1004 (Lopez).) When a defendant is sentenced to life in prison for an offense, section 186.22, subdivision (b)(5) which imposes a 15-year minimum is controlling, and the provision for a 10-year enhancement should be stricken. (Lopez, at pp. 1007, 1010-1011.) Thus, here, the abstract of judgment must be amended to delete the sentence for the gang enhancement in count one.
Defendant also argues, and the People concede, that the trial court erred when it instructed the jury on battery as a lesser included offense of assault with a deadly weapon.
Defendant was charged in count three with assault with a deadly weapon. During the discussion on jury instructions, the trial court stated that battery was a lesser included offense of assault with a deadly weapon and asked the parties if either one was requesting, as to count three, an instruction on a lesser included offense other than assault. Though neither party requested an instruction, the trial court instructed the jury on battery and assault as lesser included offenses. The jury convicted defendant of battery.
The California Supreme Court has "applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the `elements' test and the `accusatory pleading' test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]" (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
Under the elements test, battery (§ 242) is not a lesser included offense of assault with a deadly weapon (§ 245). (In re Robert G. (1982) 31 Cal.3d 437, 439-440.) Battery includes an element, which is not included within assault with a deadly weapon, that is, the willful and unlawful use of force or violence upon the victim. (Ibid.) Further, there is no language in the first amended information which alleged that defendant committed a battery. Thus, battery is not a lesser included offense under either test.
Though the trial court could have properly instructed on battery if defendant had requested or impliedly consented to such an instruction, defendant did not request such an instruction. (See People v. Delahoussaye (1989) 213 Cal.App.3d 1, 11.) Nor did defendant impliedly consent to this instruction. Here, defendant did not concede that he was guilty of any offense and thus one could not infer from his silence that he wanted an instruction on battery. Moreover, since the trial court had already ruled that battery was a lesser included offense, defendant's failure to object cannot be considered an implied consent to conviction on a lesser related offense. (Id. at p. 13.)
As the People point out, the battery conviction should be reversed rather than reduced to a misdemeanor assault conviction. The charged offense occurred in November 2012 and the first accusatory pleading was filed in March 2014. Thus, the complaint was filed after the one-year statute of limitations applicable to misdemeanors had expired. (§§ 802, subd. (a); 804; 805, subd. (b).) Accordingly, the conviction on count three must be stricken.
D. Special Circumstance Finding
Defendant argues that the special circumstance finding must be vacated. He argues that since "the special circumstance statute does not meaningfully narrow the class of felony-murder defendants subject to a special circumstance finding," the statute violates the Eighth and Fourteenth Amendments. We disagree.
Defendant acknowledges that the California Supreme Court has repeatedly rejected this argument in death penalty cases. (See, e.g., People v. Enraca (2012) 53 Cal.4th 735, 769 ["the felony-murder special circumstance (§ 190.2, subd. (a)(17)) is not overbroad and adequately narrows the pool of those eligible for death"]; People v. Williams (2010) 49 Cal.4th 405, 469; People v. Gamache (2010) 48 Cal.4th 347, 406.) Defendant also acknowledges that this court is bound by those decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He states that he is raising the issue solely to preserve it for review in the California Supreme Court and federal courts.
E. Abstract of Judgment
Defendant contends, and the People concede, that errors in the abstract of judgment must be corrected.
Both the abstracts of judgment for the indeterminate and determinate terms contain entries for the restitution fine of $10,000, victim restitution of $7,014.47, the court security fee of $240, the criminal conviction assessment of $180, and the criminal justice administration fee of $129.75. However, the trial court imposed only one of each of these items.
In addition, since we have concluded that the battery conviction must be stricken, the court security fee and criminal conviction assessment must be reduced by the amount for one conviction. Thus, the court security fee is reduced by $40 (§ 1465.8, subd. (a)(1)) and the criminal conviction assessment is reduced by $30 (Gov. Code, § 70373, subd. (a)(1)).
The judgment is reversed. The trial court is directed to strike the 10-year gang enhancement on count one, to strike the conviction on count three (battery), and to correct the abstract of judgment by eliminating duplicate entries and reducing the court security fee by $40 and the criminal conviction assessment by $30.
Elia, Acting P. J. and Bamattre-Manoukian, J., concurs.