Roberry/Attempted Kidnapping Prozac & Pain Pill 2010-10-12 California Man Robs K-Mart: Attempts to Abduct Clerk

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This article states:  "Appellant also took Prozac, which had been prescribed to him through the Veteran's Administration (VA) hospital."


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PEOPLE v. CARDONA

THE PEOPLE, Plaintiff and Respondent,
v.
DANIEL CARDONA, Defendant and Appellant.


No. F057879.

Court of Appeals of California, Fifth District

Filed October 12, 2010.

Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
OPINION
HILL, J.
A jury found appellant Daniel Cardona guilty of kidnapping to commit robbery (aggravated kidnapping) (Pen. Code,1 § 209, subd. (b)(1); count 1), robbery (§ 211; count 2), and attempted robbery (§§ 664, 211; count 3). In a bifurcated proceeding, the trial court found appellant suffered three prior convictions, which qualified as prior strikes (§ 667, subds. (b)-(i)) and serious felony enhancements (§ 667, subd. (a)(1)). Appellant was sentenced as a third strike offender to prison for a total of 40 years to life: 25 years to life on each count, plus 15 years for the serious felony conviction enhancements; the court ordered the sentences on each count to run concurrently.
On appeal, appellant contends: (1) the trial court erred by denying his request for a trial continuance to admit proposed expert testimony on posttraumatic stress disorder; (2) the evidence was insufficient to support his conviction of aggravated kidnapping; (3) the trial court erred in imposing three five-year serious felony enhancements and should have imposed only two of the enhancements; and (4) the imposition of concurrent terms for the aggravated kidnapping and the robbery violated section 654. We agree with appellant's third contention, which respondent concedes, and will direct the trial court to amend the abstract of judgment accordingly. In all other respects, the judgment will be affirmed.
FACTS
On March 15, 2008, approximately 5:00 p.m., appellant walked into a Kmart store in the city of Ceres. It was a busy time of day and there were quite a few customers and employees inside the store. Appellant approached Jeannette Garcia, a cashier, who was at the end of her shift and in the process of closing out her cash register. Garcia's cash register contained approximately $300 at the time, and was the first register open to customers when they walked through the door.
Appellant told Garcia to give him her money or he was going to kill her. Appellant said he had a gun and Garcia felt him press an object against her back. Appellant kept repeating, "Do you want to try me?" and "Don't try me because I will kill you." Garcia took the cash from her cash register and placed it inside a deposit bag. Appellant then said, "I'm taking you with me. Come on." Garcia was scared.
With his left hand around her neck, appellant led Garcia to the next open cash register. Appellant told "Sonya," the cashier working that register, that if she did not give him her money, he was going to kill Garcia. Garcia testified that Sonya appeared nervous and was trying to figure out how to open her cash register.
Appellant told Sonya to hurry up or he would take Garcia with him. Sonya told appellant she was in the middle of a transaction and could not open the cash register. Appellant became agitated. When Sonya tried to call over a supervisor to open the cash register, appellant grabbed Garcia and told Sonya, "Never mind. I'm taking her with me."
Appellant grabbed the bag of money from Garcia's cash register, and with his arm around Garcia's neck and his fist against her throat, led Garcia out of the store into the parking lot. As they were walking, appellant kept asking Garcia why she had said anything and stating that she was going to regret, or pay for, opening her mouth, even though Garcia had not said anything.
When they were approximately 30 feet from the front of the store, Garcia stopped walking. In a demanding voice, appellant told her to keep going, but she refused, saying, "No, I'm not going any further with you." Garcia explained that she stopped walking because if appellant shot her there, at least she could get help but "who knows" what would happen if she kept going with appellant. When Garcia refused to go any farther, appellant flipped her around and pushed her away from him before walking away.
Appellant's actions were observed by Sergio Oliveros, a Kmart employee who was in the parking lot, grabbing loose shopping carts to bring them back inside the store. He saw appellant walk out of the store, holding Garcia by the neck. He saw appellant let Garcia go, flinging her to the side. Appellant then walked to the street, got into a car, and took off.
Garcia testified that when appellant took her outside the store, although there were some people outside the store, there were fewer than there had been inside the store and she felt more scared than she had felt inside the store. She also saw Oliveros and a customer stop and look when they saw appellant with his arm around her neck. Surveillance video shows that when appellant moved Garcia outside, there was another Kmart employee close behind them, who got on a cell phone.
Garcia testified that during the encounter, she smelled alcohol on appellant's breath. However, appellant did not stagger when he walked, slur his words, or say anything nonsensical. Garcia was able to understand appellant's words clearly and he appeared to know exactly what he was doing.
After leaving the Kmart store, appellant returned to the house of his brother, Eduardo Cardona, and his brother's wife, Blanca Cardona. Their house was located on a street directly behind the Kmart. Blanca testified that a little after 5:00 p.m., appellant rushed into the house. He went to the kitchen to get water. He then threw money down on the table, and told Eduardo, "I have this." It appeared to be a lot of money.
Appellant and Eduardo started "scuffling" and Blanca was afraid they were going to fight. Blanca called 911 at Eduardo's request. Appellant said, "You fucking bitch, don't call the cops, I'll kill you." The police arrived at the house within a few minutes. In the meantime, appellant and Eduardo went out into the garage.
Officer Tonya Smith, who responded first to the Kmart store, testified that when she arrived shortly thereafter at the Cardona residence, the garage door was up and appellant and Eduardo were inside a vehicle. Appellant was seated in the passenger's seat. Officer Smith pulled her weapon and notified dispatch that she had two at gunpoint. She then gave orders to Eduardo to shut the vehicle off and for both occupants to get out and show their hands.
Appellant did not immediately get out of the car. When he finally did and started walking towards Officer Smith, he was verbally combative and did not comply with her orders to get on the ground, saying "No, you fucking bitch." He continued to throw his arms around while he yelled at her. Eventually, appellant complied and Officer Smith placed him under arrest. Blanca recovered $300 from the vehicle's center console and gave it to Officer Smith. The officer searched appellant and found a small, black folding knife.
After Officer Smith arrested appellant, he blurted out that he did not feel comfortable being out of prison and that he had been in prison for so long, he wanted to go back.
Officer Smith smelled alcohol on appellant but did not recall his speech being slurred. Appellant appeared to know exactly what was going on. He responded to questions and his answers made sense. She did not see anything that would make her think he might be mentally unstable or needed to be taken to a mental health facility for evaluation pursuant to Health and Safety Code section 5150.
The defense
Appellant's brother, Eduardo Cardona, testified that appellant had recently come back from Texas, where he had been in prison for a long time. Eduardo offered to let appellant stay at his house, so he could try to help appellant find a job and readjust to life outside prison. Appellant had been staying at Eduardo's house for a few months prior to the Kmart incident.
According to Eduardo's testimony, as of March 15, 2008, appellant had a problem with drugs and alcohol. That morning, Eduardo saw appellant take four or five Vicodin pills, which was not unusual. Appellant had started taking Vicodin when he had a broken arm. Appellant also took Prozac, which had been prescribed to him through the Veteran's Administration (VA) hospital. Appellant had problems with depression, which worsened while he was living with Eduardo. When appellant got depressed, he had a tendency to get suicidal, and had attempted suicide several times in the past.
On the morning of March 15, 2008, after appellant got up and took his medications, he asked Eduardo if he could borrow his truck to run some errands and visit friends. Eduardo's stepson went with appellant to keep him company. They left the house between 9:00 a.m. and 10:00 a.m. After four or five hours, Eduardo started to get worried because they had not yet come home. When they finally returned, Eduardo's stepson was driving the truck and appellant appeared to be very intoxicated.
Appellant came into the house and sat down. Eduardo was afraid to bring anything up because when appellant was intoxicated, he had a tendency to argue and "act out" and Eduardo wanted to avoid a confrontation.
Eduardo sat down on a couch near appellant. In a normal speaking voice, Eduardo told appellant that if he was going to borrow his truck, he would appreciate it if appellant would not drink because his stepson was not supposed to be driving the truck, which was Eduardo's work truck. Appellant remained quiet and gave Eduardo "that look," which made Eduardo think that something was going to happen. Appellant threw his phone against the wall, got up, and walked out of the house. It was around 4:45 p.m., when appellant left the house.
The next time Eduardo saw appellant was when appellant came into the house and went to the kitchen to get some water. Appellant was breathing hard and sweating, and looked like he had been running. Eduardo asked, "What the hell did you do now?" Appellant replied, "Nothing." Eduardo then told appellant he wanted him out of the house. Appellant grabbed a lamp and was about to throw it, when Eduardo grabbed him, pushed him against the wall, and said, "Don't you dare do anything to this house."
Afraid appellant was going to start trashing the house, Eduardo told his wife to call the police. Eduardo had not yet seen the money at that point. Eduardo told appellant just to get in the car and that he would drop him off somewhere because he did not want appellant inside his house anymore. When they got into the car and opened the garage, the police were there.
When the police officer was telling appellant to get down, appellant was very intoxicated and not taking orders. He kept telling the officer, "Shoot me. Shoot me." The officer replied, "Well, if I have to, I will." Eduardo yelled at appellant to get on the ground. When appellant finally got on the ground, he was still yelling obscenities. Eduardo testified that when alcohol took a hold of appellant, appellant was unable to control himself.
DISCUSSION
I. Exclusion of Evidence of Posttraumatic Stress Disorder
Appellant contends the trial court abused its discretion and denied him his due process right to present a defense by refusing to grant a trial continuance to allow Dr. Jacqueline Keller, a psychologist who had diagnosed appellant with posttraumatic stress disorder (PTSD), to testify for the defense. Appellant argues Dr. Keller's proffered testimony concerning his PTSD and PTSD symptoms would have been relevant to the issue of whether he formed the required mental state for robbery. Appellant further argues the evidence would have been relevant to explain why he believed Garcia had said something inside the store when she had not spoken and to explain his conduct when Officer Smith was pointing a gun at him. We conclude the trial court did not abuse its discretion in determining, after conducting an Evidence Code section 402 hearing, that the proffered PTSD evidence would be excluded under Evidence Code section 352, because the defense failed to establish a sufficient link between appellant's PTSD and the issue of specific intent, and the evidence had a greater potential of confusing the jury than explaining appellant's mental state at the time of the crimes.
A. Applicable Legal Principles
"Few rights are more fundamental than that of an accused to present witnesses in his own defense." (Chambers v. Mississippi (1973) 410 U.S. 284, 302 (Chambers).) Both the federal and California Constitutions recognize a criminal defendant has such right in defending against a state's accusations. (Id. at pp. 294, 302; People v. Hansel (1992) 1 Cal.4th 1211, 1219.) Fundamental fairness under both requires a defendant be afforded a meaningful opportunity to present a complete defense. (Taylor v. Illinois (1988) 484 U.S. 400, 408 (Taylor).)
Nonetheless, application of the ordinary rules of evidence generally does not impermissibly infringe on a defendant's right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) "Although the high court in Chambers, determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question `the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.'" (People v. Cornwell (2005) 37 Cal.4th 50, 82; disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In this regard, courts retain discretion to exclude evidence that is repetitive or only marginally relevant or poses an undue risk of prejudice or confusion of the issues. (Evid. Code, § 352; Crane v. Kentucky (1986) 476 U.S. 683, 689-690.) In addition, "`[c]ourts retain ... a traditional and intrinsic power to exercise discretion to control the admission of evidence [including whether to admit expert testimony] in the interests of orderly procedure and the avoidance of prejudice.'" (People v. Cudjo (1993) 6 Cal.4th 585, 611; People v. Page (1991) 2 Cal.App.4th 161, 187.) A trial court's ruling exercising its discretion will generally not be disturbed "unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice" (People v. Guerra (2006) 37 Cal.4th 1067, 1113) or, stated another way, "exceed[ed] the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) The integrity of the adversary process, which includes an interest in the fair and efficient administration of justice, must therefore be weighed in conjunction with a defendant's right to present witnesses. (Taylor, supra, 484 U.S. at pp. 414-415; Chambers, supra, 410 U.S. at p. 302.)
B. Analysis
On the record before us, we cannot conclude the trial court's denial of appellant's request for a trial continuance to allow Dr. Keller to testify, thereby excluding evidence of appellant's PTSD, constituted an abuse of discretion. At the Evidence Code section 402 hearing, defense counsel made the following offer of proof: "What I anticipate [Dr. Keller's] testimony will be is [appellant] does suffer from post-traumatic stress disorder and that his mental illness played at least some part in his actions the day he was accused of robbing the [Kmart]." Defense counsel explained:
"[T]he issue is what happens to a person who's experiencing post traumatic disorder when that's activated. And there's a thing called [dissociation]2 which can occur. The problem in [appellant's] case is that he was also highly intoxicated at the time of this incident. So she ­ I mean, no expert can testify that, you know, [appellant] didn't have the mental state, [what] she can talk about is the disorder, and what it looks like and what that person looks like. But . . . because of the complications with intoxication, she can't say for certain that there was the [dissociation] or the intoxication. But her opinion is that likely both were present. [¶] So it's not as if I can have an expert come here and say [appellant] was experiencing [dissociation] at the time. She's going to come and say it's possible. I can't rule it out, but it's complicated by the fact of his intoxication. I think that both voluntary intoxication and PTSD go towards the mental state required in robbery, which I believe is a specific intent crime that you have intent to permanently deprive someone of their property. So that's why I intend to call her."
Defense counsel added that appellant had also been diagnosed through the VA hospital as suffering from PTSD but agreed with the prosecutor that its diagnosis was PTSD caused by prison confinement, whereas Dr. Keller had identified the abuse by appellant's father of his mother and siblings during his childhood as the cause of his PTSD.
The January 30, 2009, letter of Dr. Keller, on which defense counsel based his offer of proof, did not specifically link appellant's PTSD and PTSD symptoms to the issues and circumstances of this case. In relevant part, Dr. Keller's letter stated:
"[Appellant's PTSD] symptoms have declined in severity over the years, but they remain and his reactivity to trauma-related triggers has not remitted. He continues to respond with aggression, and a few very brief episodes of dissociation, when triggered by aggression or being humiliated. [¶] . . . [¶]
"[Appellant] reported blacked out memories of almost all of his violent episodes. Because the vast majority of them occurred while he was intoxicated, it is not possible to say whether there was dissociation accompanying that lack of memory or it was due solely to the drugs and alcohol. It would be my opinion, that likely both were present to some degree."
As can be seen, Dr. Keller did not state that it was likely or even possible appellant was experiencing dissociation at the time of the current offenses or render any opinion as to appellant's mental state at the time. Indeed, Dr. Keller's letter contained no specific mention of the circumstances of this case. Rather, Dr. Keller specifically discussed appellant's PTSD symptoms in connection with past episodes of violence appellant reported to her, and there is no indication appellant had been referring to anything that had happened in connection with this case.
Moreover, there was no support in Dr. Keller's letter for appellant's specific theory of relevancy, which was that the argument he had with his brother about driving his brother's truck prior to the robbery somehow triggered appellant's PTSD and caused him to dissociate while he was committing the crimes. Dr. Keller did not specifically define what types of situations would constitute "trauma-related triggers" and there is no basis for concluding that the encounter with his brother prior to the robbery constituted such a trigger. Eduardo testified that when he talked to appellant about not driving his truck if he was going to drink, he did not yell but used the same tone of voice he was using while testifying in court. The only aggression exhibited appears to have been on appellant's part, who responded to his brother's statement by throwing his phone against the wall and walking out of the house. Moreover, Dr. Keller stated that when appellant's PTSD was triggered, he experienced "very brief episodes of dissociation." (Italics added.) Thus, even assuming the encounter with his brother resulted in PTSD-induced dissociation, Dr. Keller's letter provides no basis for concluding appellant's symptoms would have persisted throughout the Kmart robbery and up to the time appellant encountered Officer Smith in the garage.
On this record, the trial court's exercise of discretion to deny the trial continuance and exclude the proffered PTSD evidence on Evidence Code section 352 grounds did not exceed the bounds of reason or result in a miscarriage of justice. Accordingly, we reject appellant's contention that the trial court abused its discretion. In any event, the exclusion of Dr. Keller's testimony did not deprive appellant of a fair trial or the right to present a defense. As mentioned above, enforcing the ordinary result of evidence does not violate a defendant's due process rights.
II. Sufficiency of the Evidence of Aggravated Kidnapping
Appellant contends there was insufficient evidence to support the conviction for aggravated kidnapping. He claims his "brief movement of Garcia from her cash register to just outside the store" was merely incidental to the commission of robbery and did not increase Garcia's risk of harm. We find appellant's arguments unpersuasive and conclude substantial evidence supports his conviction of aggravated kidnapping.
A. Applicable Legal Principles
In determining the sufficiency of the evidence to support a conviction, we determine whether, after viewing the evidence in the light most favorable the prosecution, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Rayford (1994) 9 Cal.4th 1, 23 (Rayford); People v. Leon (2008) 161 Cal.App.4th 149, 156.)
The crime of simple kidnapping consists of moving another person against his or her will by force or fear. (§ 207, subd. (a).)3 A kidnapping to commit robbery or rape is aggravated kidnapping, punishable by imprisonment in the state prison for life with the possibility of parole. (§ 209, subd. (b)(1); People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez).)
The aggravated kidnapping statute "requires movement of the victim that is not merely incidental to the commission of the underlying crime and that increases the risk of harm to the victim over and above that necessarily present in the underlying crime itself." (People v. Martinez (1999) 20 Cal.4th 225, 232 (Martinez); Rayford, supra, 9 Cal.4th at p. 12; § 209, subd. (b)(2).) This asportation standard was first articulated by our Supreme Court in People v. Daniels (1969) 71 Cal.2d 1119 (Daniels). There, two defendants committed a series of home invasions. They forced their female victims to move around inside their apartments in order to rob and rape them. The women were forced to walk a distance of 18 feet, 5 to 6 feet and 30 feet respectively. (Id. at p. 1126.)
The Daniels court reversed three convictions of kidnapping for the purpose of robbery. It concluded that the victims' movements made in furtherance of the robberies were merely incidental to the crimes. (Daniels, supra, 71 Cal.2d at p. 1140.) The court was concerned that the Legislature had not intended such incidental movements to constitute asportation sufficient to establish kidnapping. (Id. at pp. 1131, 1134.) It wished to preclude convictions based on movements of a robbery victim that "are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself."4 (Id. at p. 1139.)
The two-part Daniels test was refined in Rayford, which extended the asportation standard to the crime of kidnapping to commit rape. (Rayford, supra, 9 Cal.4th at p. 20.) The first prong of the Daniels test requires a determination of whether the movement is merely incidental to the underlying offense. In making this assessment, a jury must consider the "`scope and nature'" of the movement and the "context of the environment" in which the movement occurred. This includes consideration of the actual distance a victim is moved. However, there is no minimum number of feet a defendant must move a victim to satisfy the first prong. (Rayford, at p. 12.)
Under the second prong of the Daniels test, the jury must determine whether the movement subjected the victim to a substantial increase in the risk of harm above and beyond that inherent in the offense. Factors to be considered are the decreased likelihood of detection; the dangers inherent in the victim's foreseeable attempts to escape; and attacker's enhanced opportunity to commit additional crimes. (Rayford, supra, 9 Cal.4th at p. 13.)
Our Supreme Court elaborated upon the Rayford standard in Dominguez, supra, 39 Cal.4th at p. 1152, which concerned kidnapping to commit rape. Dominguez directed that we make a "multifaceted qualitative evaluation" rather than a "simple quantitative assessment" to determine whether the movement is incidental to the underlying offense and whether it increased the victim's risk of harm. (Ibid.)
B. Analysis
The issue before us is whether appellant's movement of Garcia was merely incidental to the Kmart robbery and whether the movement exposed her to an increased risk of harm.
Moving a robbery victim 15 feet from the teller area of a bank to a vault has been viewed as merely incidental to the commission of a robbery. "[T]here was no excess or gratuitous movement" beyond what was necessary to obtain money from the vault. (People v. Washington (2005) 127 Cal.App.4th 290, 299.) However, in other contexts, the element of asportation has been sufficient to constitute aggravated kidnapping. For example, moving a robbery victim 40 feet across a parking lot to her car was not incidental to the robbery. By forcing her into her car, the defendant substantially increased her risk of harm. (People v. Jones (1999) 75 Cal.App.4th 616, 629.) Moving victims after a robbery was aborted can constitute aggravated kidnapping. (People v. Corcoran (2006) 143 Cal.App.4th 272 (Corcoran) [after defendants aborted their robbery, they moved victims 10 feet at gunpoint within the building].) Even moving a defendant into a building can constitute asportation. (People v. James (2007) 148 Cal.App.4th 446, 449 [movement of victim, at gunpoint, from outside of bingo club to its interior].)
Here, the forced movement of Garcia was not merely incidental to the robbery or attempted robbery, and the movement increased the risk of harm to her. Therefore, the evidence was sufficient to satisfy the asportation requirement of aggravated kidnapping under section 209, subdivision (b)(2). Similar to the movement of the kidnapping victims in Corcoran, supra, 143 Cal.App.4th 272, the forced movement of Garcia from inside the Kmart store to the parking lot had nothing to do with facilitating the underlying crimes because it occurred after appellant had already achieved his aim of obtaining the money from her cash register and had aborted his aim of robbing the second cashier.
The movement also exposed Garcia to an increased risk of harm. Although, as appellant points out, it was a busy time of day and there were Kmart employees and customers in the parking lot as well as inside the store, Garcia testified that there were fewer people in the parking lot and that she felt more scared in the parking lot than she had inside the store. Appellant also made threatening statements based on his apparent belief that Garcia had spoken during the crimes inside the store and appellant's trajectory after Garcia refused to walk any farther suggests that he had been planning to isolate her from others by taking her to his car. The jury could infer from the totality of the circumstances, that by moving Garcia outside the store into the parking lot, appellant was exposing her to a risk of harm beyond that inherent in the robbery and attempted robbery.
On appeal, appellant spends a great deal of time disputing the prosecutor's theory that he increased the risk of harm to Garcia by essentially using her as a human shield. Among other things, appellant argues that the fact he released Garcia fairly promptly after she refused to walk any farther shows that he never intended to use her as a human shield. He also claims by moving her into the parking lot, he did not enhance his opportunity to commit additional crimes or decrease the likelihood of being detected. He asserts that he had already been detected by several people and had taken no precautions to prevent such detection, and that the danger inherent in Garcia's possible attempt to escape was the same inside as outside the store.
We find appellant's arguments unpersuasive. On this record, "hostage" might have been a more accurate term for Garcia than "human shield." However, regardless of the terminology employed by the prosecutor, there was clearly substantial evidence that appellant's forced movement of Garcia was not incidental to the underlying crimes and increased her risk of harm. By moving Garcia to a less crowded area, appellant enhanced his ability to commit additional crimes had he decided to do so, and his threatening comments to Garcia suggested this was a real possibility. Moreover by essentially taking Garcia hostage after he robbed her and threatening to kill her in front of witnesses inside the store, appellant did take steps to evade detection and apprehension for his crimes. People were more likely to comply with appellant's demands and not try to stop him if it appeared doing otherwise might result in Garcia being killed. Thus, moving Garcia into the parking lot in a threatening matter could have been viewed as enhancing not only appellant's ability to commit additional crimes but also his ability to escape. Finally, contrary to appellant's assertion, the fact he ultimately released Garcia before fleeing does not definitively show he never intended to harm her. Rather, it is just as plausible that appellant was simply surprised by and unprepared to meet Garcia's resistance. On this record, we conclude the evidence was sufficient to support appellant's conviction of aggravated robbery.
III. Serious Felony Conviction Enhancements
The trial court imposed three five-year serious felony enhancements based on appellant's prior convictions for robbery in 1988. Two of the convictions were rendered in Stanislaus Superior Court case No. 232933, and the third was rendered in Stanislaus Superior Court case No. 232940.
Appellant contends the trial court erred by imposing two serious felony enhancements for his convictions in case No. 232933, because those convictions were not the result of "charges brought and tried separately" within the meaning of section 667, subdivision (a)(1). Respondent concedes the error and we agree. To satisfy the "`brought and tried separately'" requirement, prior proceedings must be formally distinct from filing to adjudication of guilt. (In re Harris (1989) 49 Cal.3d 131, 136.) In accord with Harris, appellant's two convictions in case No. 232933 were not based on charges brought and tried separately. Consequently, the trial court erred in imposing three five-year enhancements and one must be stricken.
IV. Section 654
The trial court imposed concurrent sentences on the aggravated kidnapping and robbery counts. Appellant contends the imposition of concurrent sentences violated section 654 because both crimes were committed pursuant to a single intent and objective, namely, to rob the Kmart store. We disagree.
Under section 654, subdivision (a): "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 prohibits multiple punishments for a course of criminal conduct with a single objective. Thus, where there is a course of conduct that violates more than one statute, but comprises an indivisible transaction, it is punishable under only one statute.
Whether the transaction is indivisible depends upon the defendant's intent and objective: if all the offenses are incident to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Bauer (1969) 1 Cal.3d 368, 376.) A defendant's intent and objective is a question of fact, and we review the trial court's express or implicit finding in this regard for substantial evidence. (See People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
As discussed above, appellant had already robbed Garcia and abandoned the robbery of the next cashier before he forcibly moved Garcia outside the Kmart into the parking lot. The movement was not necessary to, nor did it facilitate, appellant's commission of the robbery. By kidnapping and holding Garcia hostage after completing the robbery, appellant facilitated his escape and enhanced his opportunity to commit additional crimes. Under these circumstances, we find substantial evidence supports the trial court's implicit finding that appellant had multiple objectives in his commission of the kidnapping and robbery, and therefore multiple punishment did not violate section 654.
DISPOSITION
One of the three section 667, subdivision (a)(1), five-year enhancements is ordered stricken from each count. The trial court shall prepare an amended abstract of judgment and forward it to the appropriate authorities. In all other respects, the judgment is affirmed.
WE CONCUR.
LEVY, Acting P.J.
POOCHIGIAN, J.