People v. Nolen CA3 ( 2014 )

Filed 4/29/14 P. v. Nolen CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C073379
Plaintiff and Respondent, (Super. Ct. No. NCR84039)
v.
RICKY GENE NOLEN, JR.,
Defendant and Appellant.
A jury found defendant Ricky Nolen, Jr., guilty of kidnapping, assault with a
deadly weapon, attempted robbery, and carjacking based on his armed and forcible
removal of William Quinn Adamson from Adamson’s mobile home and into Adamson’s
van. In the van, defendant unsuccessfully demanded Adamson’s money and forced him
to drive out of town. Defendant repeatedly stabbed Adamson while he attempted to
escape, and after he did escape, defendant took the van. Defendant now appeals,
contending the trial court erred: (1) in failing to stay or to impose concurrent sentencing
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on his convictions for kidnapping and assault with a deadly weapon; and (2) in failing to
exercise its discretion to dismiss defendant’s prior conviction. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 3:30 a.m. on May 4, 2012, defendant and Becky Bochantin, high
on methamphetamine, entered Adamson’s unlocked mobile home where he was asleep
and defendant asked that Adamson take them for a ride. When Adamson refused because
of his night blindness, defendant, who was armed with a knife, demanded that they go.
Feeling cornered and threatened, Adamson complied. Adamson, defendant, and
Bochantin got into Adamson’s van with Adamson driving. When Adamson asked where
they wanted to go, defendant responded: “Just drive.”
While Adamson was driving, defendant asked for his wallet. When Adamson
responded that he had just a “couple dollars,” defendant told him to drive to Adamson’s
bank. When Adamson revealed that he had almost no money in the bank, defendant
directed him onto the freeway. On the freeway, Adamson attempted to speed past a
semi-truck, and defendant threatened to cut Adamson’s throat. Then defendant directed
Adamson to drive into a rest area outside of Corning. Adamson attempted to hit the tail
end of a semi-truck in the rest area in an effort “to try to stop this whole problem.”
Bochantin grabbed Adamson from behind, and defendant grabbed the steering wheel and
turned the van to the left, avoiding the semi-truck. Fearing for his life, Adamson put the
van into park and opened the door to escape.
Defendant stabbed Adamson in the right hand, the shoulder, and in the back of his
right shoulder blade as Adamson tried to get out of the van. Adamson escaped and
defendant pursued him until Bochantin yelled at defendant to “get back in the van.”
Defendant drove away in the van, which he eventually abandoned in Chico. Adamson
was able to find a truck driver who called the police, and emergency responders took him
to the hospital, where he was treated and released.
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Defendant was charged with attempted murder (Pen. Code, §§ 187, subd. (a),
6641--count I), first degree burglary (§ 459--count II); kidnapping (§ 207, subd. (a)--
count III); assault with a deadly weapon (§ 245, subd. (a)(1)--count IV); kidnapping to
commit another crime (§ 209, subd. (b)(1)--count V); and carjacking (§ 215, subd. (a)--
count VI). As to all but count II, defendant was also charged with special allegations for
great bodily injury (§ 12022.7, subd.(a)). As to all counts, defendant was charged with
use of a deadly weapon (§ 12022, subd. (b)(1)), a prior strike (§ 1170.12, subds. (a)-(d)),
a prior felony (§ 667.5, subd. (b)) and a prior serious felony (§ 667, subd. (a)(1)).
Defendant and Bochantin were tried together.2 The jury found defendant guilty of
kidnapping, assault with a deadly weapon, attempted robbery (§§ 211, 664--as a lesser
included offense of kidnapping to commit robbery), and carjacking. The jury found true
for each of the counts of conviction that defendant personally used a deadly and
dangerous weapon. The jury found the defendant not guilty of attempted murder and first
degree burglary and reached no decision on the special allegation that defendant
personally inflicted great bodily injury on Adamson.
During trial, outside the presence of the jury, defendant admitted to a prior
conviction on August 5, 1998, for first degree residential burglary (§ 459), and that the
conviction constituted a strike and a prior serious or violent felony conviction pursuant to
section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through
(i). Defendant further admitted the special prior prison commitment enhancement under
section 667.5, subdivision (b) for the same prior conviction.
1 Further undesignated statutory references are to the Penal Code.
2 Bochantin’s case is not before us on appeal.
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The trial court sentenced defendant to a total of 23 years eight months in prison.
On the carjacking charge, the court sentenced defendant to 10 years (midterm of five
years, doubled), plus an additional three years for the personal use of a deadly and
dangerous weapon, an additional five years for a prior serious felony conviction, and
imposed but stayed an additional one year for a prior felony conviction. On the assault
charge, the court sentenced defendant to two years (one-third the midterm, doubled), to
be served consecutively, and struck the use enhancement for that charge. On the
kidnapping charge, the court sentenced defendant to 40 months (one-third the midterm,
doubled), plus four months (one-third of the use enhancement). On the attempted
robbery charge, the court imposed and stayed a two-year sentence and a one-year use
enhancement, pursuant to section 654. The court also ordered various fines and fees and
awarded defendant 350 days of credit.
DISCUSSION
I
Penal Code Section 654
Defendant first contends the trial court erred in failing to apply section 654 to stay
his sentences for kidnapping and assault. He argues that he “harbored but one objective”
in committing the carjacking, kidnapping, and robbery--“to obtain money and a ride out
of Corning from Adamson.” We disagree with his analysis.
A. The Law
Section 654 provides in pertinent part: “(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 is intended “to insure
that a defendant’s punishment will be commensurate with his culpability.” (People v.
Perez (1979) 23 Cal.3d 545, 552.) The statute bars multiple punishments for both a
single act that violates more than one criminal statute and for multiple acts, where those
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acts comprise an indivisible course of conduct incidental to a single criminal objective
and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; Neal v. State of California
(1960) 55 Cal.2d 11, 19.) Conversely, where a defendant commits multiple criminal
offenses during a single course of conduct, he or she may be separately punished for each
offense that he or she committed pursuant to a separate intent and objective. (People v.
Beamon (1973) 8 Cal.3d 625, 637-639.)
Multiple criminal objectives may “be a predicate for multiple punishment only in
circumstances that involve, or arguably involve, multiple acts. The rule does not apply
where . . . the multiple convictions at issue were indisputably based upon a single act.”
(People v. Mesa (2012) 54 Cal.4th 191, 199.) The trial court may find separate
objectives “when the objectives were either (1) consecutive even if similar or (2)
different even if simultaneous.” (People v. Britt (2004) 32 Cal.4th 944, 952.) A trial
court’s finding that “a defendant harbored a separate intent and objective for each offense
will be upheld on appeal if it is supported by substantial evidence. [Citation.]”
(People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Whether the acts constituted an indivisible course of conduct incident to a single
objective, or multiple criminal objectives is primarily a factual determination made by the
trial court. (People v. Butler (1986) 184 Cal.App.3d 469, 473.) “ ‘This determination
will not be reversed on appeal unless unsupported by the evidence presented at trial.’
[Citations.]” (Id. at p. 473.)
B. Analysis
In deciding whether section 654 applied to defendant’s sentence, the trial court
was required to determine whether the carjacking, kidnapping, and assault were part of an
indivisible course of conduct and, in making that determination, decide whether the three
different crimes were each committed pursuant to a separate intent and objective. The
evidence presented at trial shows the defendant: (1) entered Adamson’s trailer already
wielding a knife; (2) forced him to leave his trailer and drive defendant and Bochantin in
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his van in no particular direction; (3) demanded Adamson’s money; (4) assaulted
Adamson when he attempted to escape; and (5) chased him after he fled from the van,
and then fled the scene in his van, abandoning it in Chico.
At sentencing, the trial court found that defendant “entertained several criminal
objectives.” The court found the objective of the kidnap was not to assault Adamson, but
to move and rob him. Noting that “[t]he assault occurred after the victim tried to get
away,” the court found that the objective for the assault was to stop Adamson--from
escaping, reporting the crimes, and aiding the police. The objective for the carjacking
was “to simply get away from the scene after the victim ran away.” The court added that:
“the objective for the carjack was to take the vehicle as a getaway vehicle, and the
objective for the kidnap was to move or detain the victim from some other purpose . . . .”
We see no reason to disagree with the trial court’s findings as outlined above.
Substantial evidence supports the trial court’s finding that the carjacking, kidnapping, and
assault offenses were each committed pursuant to separate criminal objectives.
Accordingly, section 654 did not bar separate punishment for each offense.
II
Consecutive Sentencing
Defendant next contends that the trial court abused its discretion in imposing
consecutive terms, and should have “at most” imposed concurrent sentences. Relying on
the same arguments made in his section 654 claim, defendant argues the crimes
constituted “a single period of aberrant behavior” and were “part of the overall plan –
obtaining a ride – and did not encompass some separate, unrelated, objective,” but were
“a single course of conduct with a single objective – getting out of Corning.”
The People respond that the trial court was required to impose consecutive
sentences under section 1170.12, subdivision (a)(7), as amended in November 2012 (after
the crime was committed but prior to sentencing). The statute in effect at the time of the
crime’s commission, applied by the trial court, afforded it discretion in imposing
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concurrent or consecutive sentences. We disagree with the People’s argument that
application of the amended statute to defendant would not violate the constitutional
proscription of ex post facto laws. (See People v. Delgado (2006) 140 Cal.App.4th 1157,
1167 [“[T]he removal of a sentencing court’s discretion can, indeed, implicate the ex post
facto clause.”]; accord Williams v. Roe (2005) 421 F.3d 883, 887 [where amended statute
removed sentencing court’s discretion to impose a lighter sentence, its application to a
defendant who committed the charged crime prior to the amendment was a violation of
the ex post facto clause].) Accordingly, we will apply the scheme in effect at the time of
the crimes’ commission.
Under that scheme, a trial court had discretion to determine whether several
sentences are to run concurrently or consecutively. (§§ 667, subd. (c)(6), 1170.12, subd.
(a)(7); People v. Deloza (1998) 18 Cal.4th 585, 590-591.) We will not disturb that
determination absent a clear showing of abuse. (People v. Bradford (1976) 17 Cal.3d 8,
20.)
The criteria applicable to the trial court’s discretion are set forth in California
Rules of Court, rule 4.425,3 which states that in imposing consecutive sentences a trial
court may consider: (1) whether the “crimes and their objectives were predominantly
independent of each other”; (2) whether the “crimes involved separate acts of violence or
threats of violence”; and (3) whether the “crimes were committed at different times or
separate places, rather than being committed so closely in time and place as to indicate a
single period of aberrant behavior.” (Rule 4.425(a)(1)-(3).) However, these criteria are
not exclusive. Rule 4.408(a) states: “[T]he enumeration in these rules of some criteria
for the making of discretionary sentencing decisions does not prohibit the application of
3 Further rule references are to the California Rules of Court.
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additional criteria reasonably related to the decision being made. Any such additional
criteria must be stated on the record by the sentencing judge.”
As we have explained ante, in considering the application of section 654, the trial
court made a series of detailed factual findings that are supported by substantial evidence.
Further, the court considered the arguments of counsel, defendant’s probation report, and
the evidence presented at trial in coming to its decision to impose consecutive sentences
“because of the separate objectives . . . , the excessive violence, the multiple acts of
violence throughout the incident.” The court specifically stated that it considered
aggravating factors under rule 4.425 in deciding whether the sentences should be
imposed consecutively. We see no cause to disturb the trial court’s findings and its
subsequent exercise of discretion.
III
Romero Motion
Defendant contends on appeal the trial court abused its discretion in denying his
Romero4 motion to strike his sentencing enhancement for a prior conviction based on his
claim that his criminal actions were the result of his long-time substance abuse issues.
A trial court may strike a felony conviction for purposes of sentencing only when
the defendant falls outside the spirit of the three strikes law. (People v. Williams (1998)
17 Cal.4th 148, 161.) The trial court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (Id. at p. 161.) Reversal is justified if the trial court did not know of its
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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discretion or applied improper factors. (People v. Carmony (2004) 33 Cal.4th 367, 378.)
But where the trial court knew of its discretion, “ ‘balanced the relevant facts and reached
an impartial decision in conformity with the spirit of the law, we shall affirm the trial
court’s ruling.’ ” (Id. at p. 378.)
After the jury entered its verdict, the defendant asked the trial court to strike
defendant’s prior first degree burglary conviction. The People opposed the Romero
motion based on the facts of defendant’s repeated criminal violations, certain aggravating
factors present in the commission of the instant crimes, and the absence of mitigating
factors. In addition to his current convictions and 1998 strike, defendant had suffered a
1997 felony conviction for second degree burglary, a 2006 misdemeanor conviction for
domestic battery and cruelty to a child, a 2009 felony petty theft conviction, and
numerous intervening parole violations. The trial court considered this history and that
defendant’s present felonies were serious offenses, and found that he fell within the spirit
of the three strikes law. Therefore, the court denied defendant’s Romero motion,
declining to strike defendant’s prior strike for sentencing purposes.
The record fully supports the trial court’s conclusion, and defendant’s substance
abuse alone does not compel a different result. (See People v. Philpot (2004)
122 Cal.App.4th 893, 906-907 [general nonviolence and drug addiction do not compel
granting Romero motion].) Therefore, the trial court did not abuse its discretion in
denying defendant’s Romero motion.
IV
Additional Issues
Defendant also contends, though perfunctorily, that the trial court’s denial of his
Romero motion violated his constitutional right to due process and resulted in a grossly
disproportionate sentence in violation of his constitutional rights. These arguments were
not raised in the trial court, and have been forfeited. (People v. Norman (2003)
109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) The claim
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has also been forfeited by defendant’s failure to support it with reasoned analysis or
citation to legal authority in his briefing on appeal. (Rule 8.204 (a)(1)(B); People v.
Windham (2006) 145 Cal.App.4th 881, 892, fn. 8.)
In any event, the claim is meritless. Defendant’s sentence of 23 years eight
months is not grossly disproportionate considering his extensive criminal history and his
use of a deadly weapon, resulting in considerable injury to his victim, to commit the
current crimes. (See Ewing v. California (2003) 538 U.S. 11 [defendant’s sentence of 25
years to life for theft of three golf clubs did not violate constitutional norms given his
long criminal history].)
Finally, in our review of the record, we note that the abstract of judgment contains
clerical errors; therefore, we will order the abstract corrected. (People v. Mesa (1975)
14 Cal.3d 466, 471 [pronouncement of judgment is a judicial function, while entry into
the minutes and abstract of judgment is a clerical function; thus, any inconsistency is
presumed to be clerical error]; People v. Rowland (1988) 206 Cal.App.3d 119, 123
[appellate court has authority to correct such clerical errors].) In paragraph two of the
abstract, as to count VI, the statutory basis for the enhancement is section 12022,
subdivision (b)(2), rather than subdivision (b)(1), as indicated. Further, paragraph two
omits a stayed enhancement of one year pursuant to section 12022, subdivision (b)(1) as
to count V; the enhancement should be added.
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DISPOSITION
The judgment is affirmed. We direct the trial court to correct the abstract of
judgment as to counts V and VI as set forth in this opinion and send a certified copy of
the corrected abstract to the Department of Corrections and Rehabilitation.
DUARTE , J.
We concur:
NICHOLSON , Acting P. J.
ROBIE , J.
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