NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

THE COURT*

STATEMENT OF THE CASE

On September 22, 2009, appellant, Dexter Enrique Rabadan, was charged in an information with carjacking (Pen. Code, § 215, subd. (a), count one)1 and robbery (§ 211, count two). Both counts further alleged that Rabadan was accompanied by a principal who used a firearm (§ 12022.53, subds. (b) & (e)(1)) and that each offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C) & (4)). Count one alleged Rabadan personally used a knife in the commission of that offense (§ 12022, subd. (b)(1)).2 A jury found Rabadan guilty of counts one and two and found the remaining allegations true.

On June 11, 2010, the trial court sentenced Rabadan on count one to 15 years to life plus two years for the weapon enhancement for a total prison term of 17 years to life. The court sentenced Rabadan on count two to the midterm of four years plus ten years for being accompanied by a principal who used a firearm. The sentence on count two and the gun use allegation were ordered to be served concurrently to Rabadan's sentence on count one.

On appeal, Rabadan contends the trial court erred in failing to stay his sentence in count two because section 654 bars multiple punishments for a single course of criminal conduct. The parties concur that there are errors in the abstract of judgment.

FACTS

The evening of August 11, 2009, Douglas Miller drove to the West Palm Village Apartments in Tulare to visit his friend, Cody. Miller was driving a 1998 Dodge Neon with a $1,200 sound system that had been professionally installed. As Miller drove up to the apartments, he was playing the system loudly.

Miller exited his car and locked it. As soon as Miller got out of his car, he was approached by three people, including Rabadan who was holding out a knife. One person stayed on the other side of Miller's car. Another person was holding a gun. Miller had met Rabadan at the apartments a couple of weeks earlier and drove him to a party. The party consisted primarily of Northern gang members. Miller also met one of the other assailants at the party. As the assailants first approached Miller, he thought they were playing around.

As Rabadan held out his knife, he told Miller to empty his pockets and give Rabadan everything. Rabadan held the knife up to Miller's throat. Miller was standing with his back to the car door. Rabadan told Miller that this was not a game, stuck his hands into Miller's pockets, and grabbed everything in Miller's pockets. Rabadan emptied Miller's pockets of his cell phone, wallet, and car keys.

Rabadan handed the keys to one of the other assailants who proceeded to unlock and open all four car doors. As the car was being unlocked and the doors opened, Rabadan continued to hold Miller and the knife. When the car doors were opened, the assailants jumped into Miller's car and drove away. Miller's wallet and car were later recovered. The stereo system had been removed from the car. Miller's driver's license and about $120 were missing from the wallet. Miller had to purchase a new cell phone.3

SECTION 654

Section 654, subdivision (a), provides, in relevant part: "An 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 proscribes double punishment for multiple violations of the Penal Code based on the same act or omission. (People v. Siko (1988) 45 Cal.3d 820, 822 (Siko).) Whether the defendant committed a single act is not the only test of the applicability of section 654. (People v. Beamon (1973) 8 Cal.3d 625, 637.) Decisions of the California Supreme Court have engrafted a judicial gloss to section 654 interpreting "same act or omission" to include multiple violations committed in an "indivisible" or "single transaction." (Siko, supra, 45 Cal.3d at p. 822.)

In determining whether a course of conduct consisting of multiple acts is indivisible, we look to the "defendant's intent and objective." (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) If the offenses were merely incidental to, or were the means of accomplishing one objective, the defendant may be found to have harbored a single intent and is subject to punishment only once. (Ibid.) If, on the other hand, the defendant harbored multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in the pursuit of each objective even though the violations share common acts or were part of an otherwise indivisible course of conduct. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Although the applicability of section 654 to conceded facts is a question of law (Harrison, supra, 48 Cal.3d at p. 335), the question of whether a defendant entertained multiple criminal objectives is generally one of fact for the trial court, whose findings will be upheld on appeal if supported by any substantial evidence (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312). We review the trial court's findings in the light most favorable to the judgment and presume in support of the trial court's order the existence of every fact the trier could reasonably deduce from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)

Rabadan likens his case to People v. Dominguez (1995) 38 Cal.App.4th 410 (Dominguez). There, the victim had just parked his van near a restaurant when the defendant suddenly entered the van, pointed a gun at the victim, and demanded everything the victim had. (Id. at p. 414.) The victim struggled to hand over two rings and a chain. The victim turned around, recognized the defendant, and, fearing he would get shot, ran into restaurant where he called the police. The van was later found less than a mile away. (Id. at pp. 414-415.)

The Dominguez court held that section 654 precluded separate punishments for the defendant's convictions for robbery, based on the taking of the victim's jewelry, and carjacking. (Dominguez, supra, 38 Cal.App.4th at pp. 416-420.) Rabadan contends Dominguez stands for the proposition that where a defendant has been convicted of robbery and carjacking, the crimes constituted the same act and section 654 prohibits multiple punishment for both offenses and the robbery sentence must be stayed. !(AOB 12)! We find Dominguez inapposite in the instant action.

As indicated above, section 654 applies to multiple convictions based on (1) the "same act" (§ 654), and (2), in a judicial gloss on the "same act" language, multiple acts committed as part of an indivisible transaction. Dominguez is a "same act" case. (Dominguez, supra, 38 Cal.App.4th at p. 420 [holding the carjacking and robbery constituted the same act under section 654].) In a single act, the defendant in that case placed a gun to the back of the victim's neck and demanded everything belonging to the victim, and the victim simultaneously handed over his jewelry and his vehicle. (Id. at pp. 414-415.)

Rabadan took the victim's wallet, car keys, and cell phone. Rabadan did not use the keys himself to open or to take the victim's car. In contrast to Dominguez, the coperpetrator took the car keys, unlocked the car, and opened all four car doors. As the car doors were being unlocked and opened, Rabadan had time to reflect on the unfolding events. Rabadan had the opportunity to walk away from the victim with the wallet and the cell phone. Instead, Rabadan chose to join his compatriots in carjacking the victim's car. Although the robbery and carjacking were temporally close, they were separated by the coperpetrator's conduct. We do not view these crimes as a single act.

Furthermore, we disagree with Rabadan that the carjacking occurred when Rabadan obtained the victim's car keys. Citing People v. Hoard (2002) 103 Cal.App.4th 599, 609 (Hoard), Rabadan argues that a carjacking can occur when a defendant forcibly takes the victim's car keys, not just when a defendant takes a car in the victim's presence. The court in Hoard noted that the defendant there still committed a carjacking by forcibly taking the victim's keys even though the victim was not in the immediate presence of her vehicle. (Ibid.)

We believe Rabadan reads Hoard too broadly. Merely taking a victim's keys is not, by itself, a carjacking. The car must still be driven away by the defendant to constitute a carjacking. The issue in Hoard was whether the victim had to be in the immediate presence of her vehicle for a carjacking to occur. The Hoard case does not stand for the proposition that a carjacking is complete the moment an assailant forcibly obtains the car keys to a vehicle from a victim. To complete the elements of carjacking, the defendant still needs to take a motor vehicle in the possession of another. (§ 215, subd. (a).) Merely taking a victim's car keys did not complete the carjacking. Thus, unlike Dominguez, the robbery and the carjacking here did not constitute the same act. Rather, Rabadan's convictions of those two offenses were based on multiple acts.

Appellant also argues those acts constituted an indivisible transaction for purposes of section 654. In People v. Bauer (1969) 1 Cal.3d 368 (Bauer), the defendant and an accomplice entered a home, tied up its occupants, took numerous items of personal property and, after loading the property into one of the victim's cars, drove off in the car. The defendant challenged the trial court's decision to punish him for both the robbery and auto theft. Interpreting section 654, our Supreme Court explained that "the taking of several items during the course of a robbery may not be used to furnish the basis for separate sentences.... [W]here a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible." (Bauer, at pp. 376-377, italics added.)

In our view, however, appellant did not take the cell phone, the wallet, the car keys, and the car itself in the course of a continuous transaction. Rather, there was a break in the action between taking the victim's property from his pocket and the coperpetrator getting the car keys, unlocking the car, and proceeding to open all four car doors. This gave Rabadan an opportunity to cease his criminal activity. This factor distinguishes Bauer. On this point, we find two cases persuasive: People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter) and People v. Surdi (1995) 35 Cal.App.4th 685 (Surdi).

In Trotter, the defendant carjacked a taxi and during a police chase down a freeway fired three shots at the pursuing officer. The first and second shots were a minute apart and the third shot was a few seconds after the second. (Trotter, supra, 7 Cal.App.4th at pp. 365-366.) The defendant argued the three shots were subject to section 654 as part of a single course of conduct to avoid apprehension.

The Court of Appeal in Trotter noted that the purpose of section 654 is to insure that a defendant's punishment is commensurate with his or her culpability. (Trotter, supra, 7 Cal.App.4th at p. 367.) The court noted that the defendant's conduct became more egregious with each successive shot because each shot possessed a distinct risk to the officer and other freeway drivers. (Id. at p. 368.) The Trotter court further reasoned that its case was not one in which there was one volitional act giving rise to multiple offenses because each shot required a separate trigger pull. All three shots were volitional, calculated, and were separated by a span of time during which reflection was possible. No shot was spontaneous or uncontrollable. (Ibid.)

The Trotter court found that a defendant should not be rewarded where instead of taking an advantage to walk away from the victim, he or she voluntarily resumes assaultive behavior. The Trotter court further found that under the "intent and objective" test, each shot evinced a separate intent to do violence. (Trotter, supra, 7 Cal.App.4th at p. 368.)

In Surdi, the defendant, along with other persons associated with a group known as the Family Mob (Mob), attacked and beat the victim, Sanchez. The assailants returned to Mob member Lomeli's home. Lomeli wanted to continue the attack on Sanchez. The Mob found Sanchez, resumed assaulting him, and then hauled Sanchez inside a van. In the van, the defendant strapped a seat belt around Sanchez's neck to hold him down while Lomeli stabbed Sanchez with a screwdriver. The assailants eventually took the victim to a riverbed where the defendant helped drag him to a dirt area. (Surdi, supra, 35 Cal.App.4th at p. 687.) There, the defendant and other Mob members continued to beat Sanchez and stabbed him in the heart with a screwdriver before abandoning him. Sanchez somehow survived, though he was permanently disabled. The defendant was convicted, inter alia, of conspiracy to commit murder, aggravated mayhem, and kidnapping. Prison terms were imposed on each offense. (Id. at pp. 687-688.)

The Surdi court rejected the defendant's argument that execution of sentence on the kidnapping conviction should have been stayed pursuant to section 654. The court reasoned: "Like Trotter, the offenses presently under review did not arise from a single volitional act. Rather, they were separated by considerable periods of time during which reflection was possible. Lomeli's initial stabbing attack was interrupted in the van to permit Surdi to strap down Sanchez with a seat belt. There was also a break in the action when the group stopped at a school and discussed whether to abandon Sanchez there. After ample time to consider their actions, the group resumed the attack while taking Sanchez to the riverbed, where Mob members took turns stabbing Sanchez until they thought he was dead." (Surdi, supra, 35 Cal.App.4th at p. 689.) Following Trotter, the Surdi court concluded the offenses did not arise from a single volitional act. (Surdi, at p. 689.)

Here, as in both Trotter and Surdi, there was a pause in the action between one act of violence, the robbery in which appellant took the cell phone, car keys, and wallet, and the subsequent violent act in which Rabadan participated in the carjacking. Between these two acts, appellant had time to reflect. At that point, by simply doing nothing, Rabadan could have ended his course of criminal conduct. But instead, he committed another volitional act, embarking on a course of conduct that resulted in another act of violence, the completion of the carjacking. He "`should ... not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his ... assaultive behavior.'" (Trotter, supra, 7 Cal.App.4th at p. 368.) Rabadan was properly punished for both robbery and carjacking.

ABSTRACT OF JUDGMENT

The parties agree that the abstract of judgment for Rabadan's determinate sentence for robbery contains errors. The abstract of judgment inaccurately restates Rabadan's conviction information from the abstract of judgment for his indeterminate sentence for carjacking. It states that Rabadan was convicted of carjacking rather than stating that he was convicted of robbery (§ 211) and it states that the determinate conviction was for count one rather than for count two. Where such errors are found, we can order correction of the record on our own motion or that of the parties. (People v. Mitchell (2001) 26 Cal.4th 181, 187-188.) We reject, however, Rabadan's assertion that the trial court should stay his sentence on count two and the enhancement allegation related to that count.

In addition to the errors noted by the parties in the abstract of judgment for Rabadan's robbery conviction, the enhancement set forth in the abstract of judgment for Rabadan's indeterminate sentence for carjacking inaccurately indicates that he was sentenced to prison for two years for a violation of section 12022.53, subdivision (b)(2). In fact, Rabadan was sentenced to a consecutive sentence of two years for a violation of section 12022, subdivision (b)(1).

DISPOSITION

The case is remanded for the trial court to amend the abstract of judgment for Rabadan's determinate sentence to reflect that he was convicted in count two of robbery (§ 211). The court shall amend the abstract of judgment for Rabadan's indeterminate sentence for carjacking to reflect that the two-year enhancement was for a violation of section 12022, subdivision (b)(1). The court shall forward a certified copy of the amended abstracts of judgment to the California Department of Corrections and Rehabilitation.

In all other respect, the judgment is affirmed.