People v. Fewell CA3

Filed 6/23/22 P. v. Fewell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C093957
Plaintiff and Respondent, (Super. Ct. No. 20FE018794)
v.
CAMERON FEWELL,
Defendant and Appellant.
A jury found defendant Cameron Fewell guilty of attempted carjacking (Pen.
Code, §§ 664, 215, subd. (a)—count one)1 and attempted kidnapping (§§ 664, 207, subd.
(a)—count two). The trial court sentenced defendant to 10 months in prison on count one
(consecutive to a five-year term in another case), and a concurrent term of two years six
months on count two.
1 Undesignated statutory references are to the Penal Code.
1
Defendant contends on appeal that, under section 654, the trial court erred in
imposing a concurrent sentence for attempted kidnapping because both crimes arose out
of a single course of action. We agree and will direct the trial court to modify
defendant’s sentence by staying execution of the sentence imposed on count two.
FACTUAL BACKGROUND
On the morning of November 23, 2020, Sylvia S. parked her car near her mother’s
house before going to work at the Sheraton Grand Hotel approximately five blocks away.
When Sylvia turned off the engine, the doors automatically unlocked. Defendant opened
the passenger side door and got in the car. He took out a pistol and pointed it at Sylvia.
Defendant said, “You need to drive right now.” Sylvia told defendant she would not
drive him anywhere. She got out of the car and ran to her mother’s house. When her
mother let her in, Sylvia’s brother-in-law called 911. Defendant followed her to the door
but left after two or three minutes. Police officers responding to the call arrested
defendant.
Defendant testified that on November 23, 2020, he was walking to the Sacramento
Natural Foods Co-op where he worked as a security guard. He had locked himself out of
his apartment and could not drive to work, charge his phone to request a Lyft or Uber, or
contact his boss to say he would be late to work. Sylvia pulled up and defendant talked
to her about needing to charge his phone. She nodded and defendant took this as a cue
that it was all right for him to get in her car so he could charge his phone. Defendant had
an air pistol in a holster that was poking him in the hip bone. He pulled the pistol out to
place it on the floor. As he did so, Sylvia left the vehicle.
DISCUSSION
Defendant correctly contends that the concurrent sentence on count two violates
section 654 and should be stayed.
“Section 654 prohibits multiple punishment for multiple crimes which arise out of
a single act or an indivisible course of conduct. [Citation.]” (People v. Cole (1985) 165
2
Cal.App.3d 41, 53 (Cole).) “When confronted with offenses within the ambit of section
654, the procedure is to stay the execution of sentence on all but one of the offenses
subject to section 654. [Citation.]” (Cole, supra, at p. 53.)
As defendant points out, and the Attorney General acknowledges, the prosecutor
in closing argument described the facts of attempted carjacking and attempted kidnapping
in nearly identical terms. For the steps that constituted attempted carjacking, the
prosecutor said: “We have [defendant] getting into her car unannounced, without
permission. We have him pulling out a weapon and pointing it down at her. We have
him telling her, ‘You need to drive right now.’ ” For attempted kidnapping, the
prosecutor explained: “Again, [defendant] gets into [Sylvia’s] car unannounced, and he
pulls out a weapon. He tells her that she needs to drive.” The word “[a]gain” that
prefaced this latter statement is telling. The prosecutor effectively told jurors that the
same facts were involved in both charges.
The trial court was aware of the section 654 issue. At the sentencing hearing,
defense counsel noted that the probation report recommended a consecutive term on the
attempting kidnapping charge. Counsel told the court that he had provided cases on
section 654 to the prosecutor and offered to provide them to the court. The court
responded, “I don’t need it because I don’t intend to give him a consecutive term on
Count 2.” The court observed, “It’s all one⸺the facts and circumstances are pretty
closely matched between Count 1 and Count 2. I’m not going to say it’s [section] 654.
I’m just not inclined to give him a consecutive term on that count.”
To the extent the court sought to address the section 654 issue by ordering that the
sentence on count two be served concurrently “under section 654, concurrent sentences
for such offenses are prohibited, since they may have collateral consequences amounting
to increased punishment.” (Cole, supra, 165 Cal.App.3d at p. 53.)
The Attorney General urges us to remand for resentencing because “it is also
possible that the court could have believed there were separate intents behind the crimes.”
3
The Attorney General, however, has skipped a step in determining the applicability of
section 654, which is a two-step process. First, we “consider if the different crimes were
completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be
punished more than once for that act. Only if we conclude that the case involves more
than a single act—i.e., a course of conduct—do we then consider whether that course of
conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.”
(People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) “Whether a defendant
will be found to have committed a single physical act for purposes of section 654
depends on whether some action the defendant is charged with having taken separately
completes the actus reus of each of the relevant criminal offenses. [Citations.]”
(Corpening, supra, at p. 313; People v. Beamon (1973) 8 Cal.3d 625, 637 [“ ‘the
applicability of section 654 will depend upon whether a separate and distinct act can be
established as the basis of each conviction . . . .’ ”].)
The Attorney General does not explain how defendant committed more than a
single act, i.e., separate acts that form the actus reus for attempted carjacking versus
attempted kidnapping. Indeed, in Corpening, the California Supreme Court held that “the
forceful taking of a vehicle on a particular occasion is a single act under section 654”
(Corpening, supra, 2 Cal.5th at p. 313), in that the same action committed by the same
person at the same time completed the actus reus for robbery and carjacking. (Id. at pp.
313-314.) Here, the same act⸺entering the car and ordering Sylvia to drive at
gunpoint⸺accomplished both of the offenses of attempted carjacking and attempted
kidnapping, as the prosecutor told the jury in closing. Since “a single physical act served
as the basis for convicting defendant of two separate crimes,” we need not reach step two
4
of the section 654 question, i.e., whether multiple intents and objectives were involved.2
(Corpening, at p. 316.)
DISPOSITION
The trial court is directed to modify defendant’s sentence by staying execution of
the sentence of two years six months on count two under section 654. The trial court is
further directed to prepare and forward to the Department of Corrections and
Rehabilitation an amended abstract of judgment that reflects the modified sentence. As
modified, the judgment is affirmed.
KRAUSE , J.
We concur:
HULL , Acting P. J.
MAURO , J.
2 The Attorney General acknowledges that in refusing to apply section 654, the trial
court’s “reasoning is unclear and unexplained.” In Corpening, the court observed that
“[t]o facilitate meaningful appellate review, the better practice is for trial courts to state
on the record their reasons for concluding that multiple offenses are or are not separately
punishable under section 654.” (Corpening, supra, 2 Cal.5th at p. 316, fn. 6.)
5