Opinion
G043681 Super. Ct. No. 07NF2542
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. GEOFFREY MICHAEL CURTIS, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Sharon L. Rhodes, Christine Levingston Bergman, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Sharon L. Rhodes, Christine Levingston Bergman, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Geoffrey Michael Curtis appeals from a judgment after a jury convicted him of five counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), two counts of aggravated assault (§ 245, subd. (a)(1)), kidnapping to commit robbery (§ 209, subd. (b)(1)), sexual battery by restraint (§ 243.4, subd. (a)), and misdemeanor simple assault (§§ 240, 241, subd. (a)), and found true he personally used a deadly weapon (§ 12022, subd. (b)(1)), as to all counts except the aggravated assault counts. The trial court sentenced Curtis to an indeterminate term and a determinate term.
All further statutory references are to the Penal Code.
Curtis argues (1) insufficient evidence supports his convictions for kidnapping to commit robbery and one of the second degree robbery counts, (2) the trial court should have stayed the sentences on four of the offenses, and (3) he is entitled to additional presentence custody credits. We agree with his later two contentions but not his first claim. We affirm the convictions and the indeterminate portion of the sentence. We vacate the determinate portion of the sentence and remand for resentencing.
FACTS
The prosecutor charged Curtis with and offered evidence concerning four offenses occurring on July 7, 2007. Because the jury acquitted Curtis of the offenses, we do not discuss those facts.
May 5, 2007-Counts 1-4
Carrie Pinnel (counts 1 & 4), the manager, and Amanda Tostado (count 2) were working at a Styles for Less in Placentia. Rebekah Walsten (count 3), another store manager who had worked earlier that day, went to the store to wait for Pinnel. Just before closing, Curtis entered the store. Walsten sat on the counter behind the cash registers talking on her cellular telephone.
Curtis, who seemed flustered, looked around the store. Pinnel asked Curtis if he needed help, and he responded he was shopping for his daughter. Pinnel helped Curtis choose clothes for his daughter, and they took the clothes to a cash register. After Pinnel rang up the clothes, Curtis said he needed to go to the bank. Curtis left the store and walked to a bank across the parking lot.
Curtis returned to the store about five minutes later. Pinnel told Curtis that because he had spent a certain amount he was eligible for a store discount card. Walsten gave Curtis the paperwork and a pen. Curtis filled out the form. Suddenly, Curtis moved behind the counter with an approximately 10-inch black handled knife in his hand. He said, "'You mother fuckers, get to the back of the store.'"
When they reached the back of the store, Curtis told the women to go into the bathroom. Curtis pushed them onto the floor, and asked for their cellular telephones. Tostado produced her telephone, Walsten said her telephone was in the front of the store, and Pinnel said she did not think she had her telephone. Curtis left Tostado and Walsten in the bathroom and led Pinnel with a knife at her back to the front of the store, where he ordered her to open the safe. Pinnel gave Curtis the money from the safe and then the money from the cash register. Curtis took Pinnel's keys and at knifepoint led her back to the bathroom. Curtis told the women to count to 100 and that if they left the bathroom before that, he would kill them. They locked the bathroom door and scanned the bathroom for anything they could use to defend themselves.
Walsten left the bathroom, opened the back emergency door to set off the alarm, and hurried back to the bathroom. Pinnel realized she had her telephone in her pocket, and she called 911. Curtis took approximately $1,078. He also took Pinnel's keys and Walsten's telephone.
Pinnel and Walsten identified Curtis in a six-pack photographic lineup, but Tostado was unable to do so.
June 26, 2007-Counts 5-10
The next month, Jane Doe, the manager, and Amber Duran, a sales associate, were working at Styles for Less in La Habra. Just before closing, Curtis entered the store. Duran asked Curtis what he was shopping for, and Curtis replied he was shopping for someone about Duran's size. After choosing some items, Curtis said he needed to go to his car to get his wallet. Duran looked at Doe curiously, and Doe opened the front door. Curtis repeated he was going to his car to get his wallet. Doe, who was scared, grabbed a metal bar, and as she did, Curtis walked up from behind her and with one arm grabbed her around the chest and put something sharp against her back. Curtis said to her, "I have a knife." Curtis told her to drop the metal bar and ordered her and Duran to the back of the store. The back of the store consisted of a break room, a store room, and a bathroom. Curtis forced them into the bathroom and to lay face down on the floor. He took their cellular telephones. When Curtis asked who the manager on duty was, Doe claimed responsibility.
Curtis put on white latex gloves and picked up Duran from the floor. He secured Duran's arm to the bathroom railing with zip ties. Curtis ordered Doe to get up and led her to the front of the store with one arm across her chest and the knife against her back. He asked Doe where the security tapes and store lights were located. Doe responded the lights were in the front of the store but she did not have access to the security cameras. Curtis made Doe lock the front door. He said, "'Don't try to run. I will cut you in pieces.'"
Curtis led Doe to the register area and told her to open the safe. Doe told him there was no money in the safe, but he forced her to open the safe anyway. As Doe squatted down and tried to open the safe, Curtis told her that she was taking too long. He first cut the telephone cord and then the back of Doe's belt. As Doe tried to open the safe, Curtis grabbed Doe's buttocks and vaginal area over her clothing. When Curtis saw the safe was empty, he forced Doe to the cash registers. Doe emptied two cash registers into shopping bags. As she did, Curtis leaned against her back and told her "[she] was one of the hottest, finest girls he had seen in quite awhile." Curtis led her to the back of the store around a corner in the same manner he led her to the front.
In the store room, Curtis pushed Doe onto a table. When Curtis told Doe she was attractive, Doe said she was pregnant. Curtis asked her if anyone was coming to pick her up, and Doe responded her husband was picking her up. Curtis told her to take off all her clothes. As Doe removed her name tag, Curtis cut the back of her upper body clothes and they fell off her. Curtis pulled down Doe's pants. He took two rings off her right hand.
Curtis said, "'So you're pregnant, huh?'" Doe said she was pregnant and her husband was picking her up. Curtis told Doe to spread her legs and he pushed her over the table. He grabbed her buttocks and spread apart her lower buttocks. Curtis did not penetrate her vagina or anus in any manner. Doe repeated she was pregnant and her husband was coming to get her. Curtis took Doe into the bathroom and forced her next to Duran. Curtis told Doe to spread her legs and he spread her buttocks. Curtis tied Doe to the railing with zip ties. Curtis asked Doe and Duran whether they were 18 and they both said they were. Curtis asked them if they knew how to "suck a dick." They said no, and Curtis said they were bad girlfriends.
Curtis asked where their purses were and they said in the front cabinet. He turned off the light and closed the bathroom door. Doe broke her zip tie and then Duran's. They grabbed a broom and plunger, and Doe grabbed some clothes. They ran out the back emergency door. Doe got dressed in the alley, and Duran ran and found a man who called 911.
Doe could not identify anyone in a six-pack photographic lineup. Duran identified Curtis in a six-pack photographic lineup.
Investigation
On July 8, 2007, Diana Haupe opened Susie's Deals clothing store in Corona. Curtis walked in, looked around, and told Haupe that he worked in the corporate office and needed to inspect the fitting rooms. He also asked her whether she had taken the daily deposit. Curtis said he needed to get his notebook and left. When he returned with a briefcase, Curtis led Haupe to the backroom and questioned her about the store. Curtis checked the registers and inspected the cabinets. When Curtis left the store, Haupe called loss prevention and then the police. Curtis did not return to the store but Haupe saw his car in the parking lot.
Two days later, Officer Jeffrey Hedtke was on patrol when he saw Curtis sitting in his car with the engine running in the Susie's Deals parking lot. As Hedtke approached the car, Curtis rolled up the windows and placed his hands on the steering wheel. Curtis said he did nothing wrong and did not want to go to jail. After another officer arrived, Curtis eventually rolled down the window. They arrested Curtis and found a knife and zip ties in his pockets.
Haupe went to the police department and identified a shirt and black briefcase as belonging to Curtis. She also identified him from a six-pack photographic lineup.
Trial Court Proceedings
At trial, in addition to the above evidence concerning the circumstances of the offenses, Doe testified Curtis was the man who robbed her.
The prosecutor offered evidence Curtis's DNA matched DNA recovered from a zip tie found at the La Habra Styles for Less and a zip tie that was on Doe's wrist.
The prosecutor also offered evidence that from the La Habra Styles for Less the distance from the front door to the back room where the table was located was approximately 64 feet and from the cash registers to the back room where the table was located was about 32 feet.
Curtis testified on his own behalf. Curtis testified he had never been to Styles for Less in Placentia or La Habra. He admitted going to Susie's Deals but claimed he was responding to a job advertisement for a loss prevention position. Curtis offered the testimony of several people who testified generally to his honesty and peacefulness. He also offered expert testimony on eyewitness identification.
In rebuttal, the prosecutor offered evidence that between the Placentia and La Habra incidents, Curtis walked into a Styles for Less in Rancho Cucamonga and told the store manager, A., to hang up the telephone and demanded the bank deposits. As A. squatted to get into the safe, she felt a sharp object at her side. Curtis continued to hold the knife at her side while she collected the money from the safes and the cash register. He also groped her breasts while she gathered the money. Curtis led A. to the bathroom and asked for the store keys. He rubbed her vaginal area and buttocks over her clothes and told her to stay in the bathroom for one hour. After A. heard the front doorbell ring, she left the bathroom and called the police. A few days later, A. identified Curtis from a six-pack photographic lineup.
The jury convicted Curtis of counts 1, 2, 3, 4, 5, 7, 8, 9, and 10, and found true the enhancements. The jury convicted him of the necessarily included offense of misdemeanor simple assault in count 6. The jury acquitted him of counts 11, 12, 13, and 14.
After denying his new trial motion, the trial court sentenced Curtis to prison for an indeterminate term of eight years to life on count 5 and its related enhancement. The court also sentenced him to a concurrent determinate term of 14 years and eight months as follows: count 7-five years plus a consecutive one-year term for the enhancement; counts 1, 2, 3, 9, and 10-consecutive one-year terms plus four months for the enhancements; counts 4 and 8-consecutive one-year terms; and count 6-a concurrent term of six months in county jail. The court stated that if any part of the sentence is held to be unauthorized, the court stated it intended Curtis to serve a minimum of 14 years and eight months in prison. The court awarded Curtis 945 days of actual credit and 142 days of local conduct credit for a total of 1,087 days.
DISCUSSION
I. Sufficiency of the Evidence
Curtis argues insufficient evidence supports his convictions for count 5 and 3. We will address each in turn.
"'On appeal, an appellate court deciding whether sufficient evidence supports a verdict must determine whether the record contains substantial evidence—which we repeatedly have described as evidence that is reasonable, credible, and of solid value—from which a reasonable jury could find the accused guilty beyond a reasonable doubt.' [Citations.] We presume in support of the judgment 'the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 869 (Vines).)
A. Count 5- Kidnapping Jane Doe to Commit Robbery
Curtis argues there was insufficient evidence to establish asportation. Not so.
"Robbery is defined as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' [Citations.] 'The crime is essentially a theft with two aggravating factors, that is, a taking (1) from [the] victim's person or immediate presence, and (2) accomplished by the use of force or fear.' [Citations.] Robbery is 'a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.'" [Citations.]" (People v. Williams (2011) 197 Cal.App.4th 339, 347-348, italics added; People v. Salas (1972) 7 Cal.3d 812, 822.)
"Any person who kidnaps or carries away any individual to commit robbery . . . shall be punished by imprisonment in the state prison for life with the possibility of parole." (§ 209, subd. (b)(1).) Each of the following elements must be established to prove the crime of kidnapping for robbery: (1) the defendant intended to commit robbery; (2) acting with that intent, the defendant detained another person by using force or instilling a reasonable fear; (3) using that force or fear, the defendant made the other person move a substantial distance; (4) the other person was made to move a distance beyond that incidental to the commission of the robbery; (5) the defendant intended to commit robbery when the movement began; and (6) the other person did not consent to the movement. (See People v. Rayford (1994) 9 Cal.4th 1, 11-14.)
The asportation element of kidnapping for robbery is further defined in section 209, subdivision (b)(2). That subdivision provides, "This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense."
"With regard to the first prong, the jury considers the 'scope and nature' of the movement, which includes the actual distance a victim is moved. [Citations.] There is, however, no minimum distance a defendant must move a victim to satisfy the first prong. [Citations.] [¶] '"The second prong of the [People v. Daniels (1969) 71 Cal.2d 1119, 1139 (Daniels)] test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime]. [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased."' [Citations.]" (Vines, supra, 51 Cal.4th at p. 870.)
Here, sufficient evidence supported Curtis's conviction for kidnapping to commit robbery. Curtis forced Doe and Duran at knifepoint from the front of the store to the back of the store, approximately 64 feet. After Curtis secured Duran to the bathroom railing with a zip tie, he led Doe to the front of the store, another 64 feet, with one arm across her chest and the knife against her back. After Curtis made Doe lock the front door, he told her not to run or he would "cut [her] in pieces." Curtis's movement of Doe at knifepoint around the store to first secure Duran and then lock the front door was not incidental to the commission of the robbery because Curtis did not move Doe directly to the valuables.
Curtis then led Doe to the cash registers, and after he took the money, led her another 32 feet at knifepoint to the back of the store around a corner, out of view from anyone looking through the front store window. In the storeroom, Curtis sexually assaulted Doe and then led her into the bathroom. After Curtis again sexually assaulted Doe in the bathroom, he secured her to the bathroom railing with a zip tie. Curtis turned off the bathroom lights, closed the bathroom door, and fled. Evidence Curtis led Doe throughout the store at knifepoint about 160 feet ultimately to a secluded spot where he twice sexually assaulted her was sufficient evidence for the jury to convict Curtis of kidnapping to commit robbery.
Curtis contends his movement of Doe was incidental to the commission of the robbery because it was entirely within one business and the degree of movement was insubstantial. He also claims his movement of Doe did not increase the risk of harm to her. Vines is instructive.
In Vines, supra, 51 Cal.4th at page 869, the California Supreme Court addressed the issue of whether there was sufficient evidence of asportation to sustain defendant's convictions for kidnapping to commit robbery. The court explained the evidence established that defendant took the fast food restaurant manager at gunpoint around the front counter, through the kitchen to the safe where defendant forced the manager to open the safe and ordered defendant to give him his keys. The manager placed his business keys and his personal keys on top of the safe. Without emptying the safe or taking the keys, defendant immediately led the store manager from the safe to the back of the restaurant where there were three additional employees. Defendant led the four employees downstairs into the basement and then into the 20-degree freezer. Defendant locked the freezer door. The store manager waited 10 minutes before escaping upstairs where he saw defendant had taken $2,000 from the safe and the manager's personal property. (Id. at p. 842.) The court stated the evidence established defendant moved the employees from 80 to 200 feet, and the interior stairwell was completely out of customer view. (Id. at p. 870.)
The court reasoned: "As in Daniels, defendant's forcible movement of the victims was limited to movement inside [the restaurant] [citation], but unlike in Daniels, the movement here took [the manager]—and ultimately the other victims—from the front of the store, down a hidden stairway, and into a locked freezer. Under these circumstances, we cannot say the 'scope and nature' of this movement was 'merely incidental' to the commission of the robbery. Additionally, the movement subjected the victims to a substantially increased risk of harm because of the low temperature in the freezer, the decreased likelihood of detection, and the danger inherent in the victims' foreseeable attempts to escape such an environment." The California Supreme Court concluded this was sufficient evidence of asportation. (Vines, supra, 51 Cal.4th at pp. 869-870.)
As to Curtis's claim his movement of Doe was incidental to the commission of the robbery, Vines makes it clear that forcible movement inside one premises does not render invalid a conviction for kidnapping to commit robbery. Further, Vines reminds there is no minimum distance a defendant must move a victim to satisfy the asportation element. In that case, the movement of any one of the victims was no more than 200 feet. (Vines, supra, 51 Cal.4th at p. 870.) Here, it was approximately 160 feet. (Williams, supra, 197 Cal.App.4th at pp. 347-348 [robbery concludes when robber reaches a place of relative safety].)
With respect to Curtis's assertion his movement of Doe did not increase the risk of harm to her, nonsense. After Curtis secured Duran in the back of the store, he led Doe to the front of the store to lock the front door where any passerby was more likely to see them, which could have escalated the encounter. Additionally, Curtis twice moved Doe to the back of the store and thereby decreased the likelihood he would be detected. On the second occasion, Curtis cut off Doe's clothes and sexually assaulted her. He then secured her to the bathroom railing, as he had done with Duran, and turned off the bathroom lights and closed the door. This was certainly sufficient evidence for the jury to reasonably conclude Curtis's movement of Doe substantially increased the risk of harm to her by moving her into the back of the store where they could not be seen through the store windows. (Williams, supra, 197 Cal.App.4th at pp. 347-348 [robbery concludes when robber reaches a place of relative safety].) Thus, based on the entire record, there is sufficient evidence supporting Curtis's kidnapping for robbery conviction under both the federal and state constitutional due process clauses. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-577.)
B. Count 3-Second Degree Robbery of Rebekah Walsten
Relying on People v. Scott (2009) 45 Cal.4th 743 (Scott), Curtis claims insufficient evidence supports his conviction for count 3 because Walsten was not on duty at the time of the robbery. We disagree.
To establish the offense of second degree robbery, the prosecution must prove "(1) the victim had possession of property of some value, (2) the property was taken from the victim or his or her personal presence, (3) the property was taken against the will of the victim, (4) the taking was by either force or fear, and (5) the property was taken with the specific intent to permanently deprive the victim of the property." (People v. Magee (2003) 107 Cal.App.4th 188, 195, fn. 4.)
In Scott, supra, 45 Cal.4th at page 746, the California Supreme Court resolved the conflict in the Courts of Appeal regarding whether all employees of a business may be separate victims of a robbery. In that case, two of the three employees who were named victims of the robbery hid during the crime. (Id. at p. 747.) The robbers confronted the third employee, the manager, who was the only employee who had access to the safe. (Ibid.) The Scott court affirmed the decision of the Court of Appeal, which determined the trial court had correctly instructed the jurors that "all employees on duty during a robbery have constructive possession of their employer's property . . . ." (Id. at p. 746.) The court stated, "Although not every employee has the authority to exercise control over the employer's funds or other property during everyday operations of the business, any employee has, by virtue of his or her employment relationship with the employer, some implied authority, when on duty, to act on the employer's behalf to protect the employer's property when it is threatened during a robbery." (Scott, supra, 45 Cal.4th at p. 754, italics added.) In addition, "it is reasonable to infer that the Legislature intended that all on-duty employees have constructive possession of the employer's property during a robbery, because such a rule is consistent with the culpability level of the offender and the harm done by his or her criminal conduct." (Id. at p. 755, italics added.)
Here, the evidence at trial established Walsten was a store manager who had worked earlier that day and returned to wait for Pinnel to get off work. Although she was off duty, she was a manager who was sitting behind the counter and gave Curtis a pen and the paperwork to apply for a store discount card. Curtis secured Walsten and Tostado in the bathroom before forcing Pinnel to open the safe. Viewing the evidence in the light most favorable to the judgment, a reasonable jury could find Walsten was still "on duty" and had a "'special relationship'" with her employer at the time of the robbery. (Scott, supra, 45 Cal.4th at pp. 752-755.)
However, even if Walsten was off duty, it does not mean she was no longer on duty within the meaning of Scott. In our view, such a conclusion would be contrary to Scott's focus on the defendant's culpability, instead of the particulars of the victim's employment relationship. (Scott, supra, 45 Cal.4th at p. 755.) Scott explained that its construction of the robbery statute "is consistent with the culpability level of the offender and the harm done by his or her criminal conduct. As a matter of common knowledge and experience, those who commit robberies are likely to regard all employees as potential sources of resistance, and their use of threats and force against those employees is not likely to turn on fine distinctions regarding a particular employee's actual or implied authority." (Ibid.) Thus, sufficient evidence supports Curtis's conviction for count 3.
II. Section 654
Relying on section 654, Curtis asserts the trial court should have stayed the sentences on counts 4, 6, 7, and 8. As we explain below, we agree the trial court should have stayed the sentence on counts 4 and 7. Because the trial court selected count 7 as the principal term for the determinate sentence, we must remand the matter to the trial court for resentencing.
Section 654, subdivision (a), provides: "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." "The purpose of this legislative protection against punishment for more than one violation arising out of an 'act or omission' is to insure that a defendant's punishment will be commensurate with his culpability." (People v. Perez (1979) 23 Cal.3d 545, 550-551 (Perez).)
"[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. . . . If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Perez, supra, 23 Cal.3d at p. 551; People v. Lewis (2008) 43 Cal.4th 415, 519 (Lewis).) Whether a course of conduct is divisible and thus gives rise to more than one act under section 654 depends on the defendant's intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all a defendant's offenses were incident to one objective, he or she may be punished for any one of the offenses, but not more than one. (Ibid.) However, if a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he or she may be punished for the independent violations committed in pursuit of each objective even though the violations were part of an otherwise indivisible course of conduct. (Perez, supra, 23 Cal.3d at p. 551 .)
Whether section 654 applies is generally a question of fact. (Perez, supra, 23 Cal.3d at p. 552, fn. 5.) A trial court's finding a defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) Where section 654 applies to a given count, sentence is imposed and stayed. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
A. Count 4
Curtis contends the trial court should have stayed the sentence on count 4, aggravated assault, because the assault was incidental to the robbery. The Attorney General concedes the error.
In the specific context of robbery and assault, "[t]he rule is that when a defendant is responsible for both an assault and [a] robbery, he can be punished for both crimes if the assault was not incident to the robbery and was motivated by a separate criminal objective [citation], but if the assault was committed in order to accomplish the robbery, then the defendant can be punished for only one of the crimes. [Citations.]" (People v. Martinez (1984) 150 Cal.App.3d 579, 606, disapproved on another point in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)
Here, after Curtis secured Tostado and Walsten in the bathroom in the back of the store, he led Pinnel at knifepoint to the front of the store, where he took money from the safe and the cash register. Curtis's use of the knife was simply the means of perpetrating the robbery. Thus, the trial court should have stayed the sentence on count 4.
B. Counts 6, 7, & 8
Curtis contends the trial court should have stayed the sentences on counts 6, 7, and 8. We agree with his claim as to count 7 but not counts 6 and 8.
1. Count 7
In Lewis, supra, 43 Cal.4th at page 519, the California Supreme Court concluded section 654 prohibited punishment for both kidnapping to commit robbery and robbery because they "were committed 'pursuant to a single intent or objective,' that is, to rob the victims of their cars and/or cash from their bank accounts. [Citation.]"
Here, the kidnapping to commit robbery and the robbery of Doe were committed pursuant to a single intent, that is, to rob the Styles for Less. The trial court was required to sentence Curtis to life with the possibility of parole on count 5, kidnapping to commit robbery, pursuant to section 209, subdivision (b)(1). Thus, the court should have stayed the sentence on count 7, second degree robbery. Because the trial court selected count 7 as the principal term, we must remand the matter for resentencing consistent with this opinion.
2. Counts 6 & 8
Evidence of a separate intent and objective following a completed robbery supports imposition of separate punishment. (People v. Coleman (1989) 48 Cal.3d 112, 162; see also People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300 [after attempted robbery was complete, defendant shot victim]; People v. Nguyen (1988) 204 Cal.App.3d 181, 189-193 [after robbery was complete, defendant's crime partner shot victim]; People v. Johnson (1969) 270 Cal.App.2d 204, 208-209 [following completed robbery, perpetrators fired shot from departing automobile].)
Sufficient evidence supports the trial court's conclusion Curtis possessed separate intents and objectives in committing these offenses. During the robbery, Curtis cut off Doe's belt and grabbed her buttocks and vaginal area. This conduct was incidental to the robbery and was sufficient to support Curtis's conviction for count 8, aggravated assault. In the storeroom, Curtis pushed Doe into a table and forced her to disrobe. Impatient, Curtis cut off the clothes Doe wore on her upper body. He forced her to spread her legs and pushed her over the table. Curtis grabbed her buttocks. Curtis engaged in similar conduct after he forced Curtis into the bathroom. These two separate, independent incidents were sufficient to support Curtis's convictions for count 6, simple assault, and count 9, sexual battery by restraint. Thus, these gratuitous acts were not incidental to the commission of the robbery and fall outside the scope of section 654.
We recognize Curtis does not argue the trial court should have stayed his sentence on count 9 but we include it to prevent any confusion regarding the sentences. Additionally, we note Curtis does not argue the trial court should have stayed the sentence on count 10 as that count concerned a different victim, Duran.
III. Presentence Custody Credits
Curtis contends he is entitled to additional presentence custody credits. The Attorney General agrees.
Actual credits includes the day of arrest and the day of sentencing. (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124.) Section 2933.1, subdivision (c), limits work time credits to a maximum of 15 percent for persons convicted of felonies, including lewd and lascivious acts. (§ 2933.1, subd. (a).)
In his opening brief, Curtis asserts he was arrested on "May 30, 2008," and the trial court sentenced him on "August 11, 2009." Curtis asserts he is entitled to 1,042 actual days because "the period between and including July 8, 2007, and May 14, 2010[,] is 1,042 days." The Attorney General responds Curtis was arrested on July 10, 2007, although the probation report indicates he was arrested on October 12, 2007. In his reply brief, Curtis states he agrees with the Attorney General that officers arrested him on "July 20, 2007." We are confused.
There was evidence Hedtke arrested Curtis on July 10, 2007. The trial court sentenced Curtis on May 14, 2010. Based on this less than clear record, it appears Curtis was entitled to 1,040 days of actual credit and 156 days of local conduct credit for a total of 1,196 days of presentence custody credit. "[E]rrors involving only arithmetic computation may be properly taken up on appeal with other claimed errors." (People v. Wrice (1995) 38 Cal.App.4th 767, 773.) In the alternative, however, because we remand for resentencing, the court may choose to revisit the issue of the arrest date and recalculate the presentence custody credits.
The trial court based its calculations on the bailiff's representation the arrest date was October 12, 2007, which we assume the bailiff took from the probation report.
DISPOSITION
The convictions and indeterminate sentence is affirmed. The determinate sentence is vacated and the matter is remanded to the trial court for resentencing.
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O'LEARY, J.
WE CONCUR:
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RYLAARSDAM, ACTING P. J.
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MOORE, J.