P. v. McMahon CA3

Filed 7/30/13 P. v. McMahon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer)

THE PEOPLE, C070324

Plaintiff and Respondent, (Super. Ct. No. 62105882A)

v.

DILLON JAMES MCMAHON,

Defendant and Appellant.

A jury convicted defendant Dillon James McMahon of kidnapping during a carjacking (Pen. Code, § 209.5, subd. (a))1, kidnapping for robbery (§ 209, subd. (b)), and carjacking (§ 215, subd. (a)). The first two convictions were based on the same victim and the same circumstances. The trial court sentenced defendant to life with the possibility of parole plus 23 years and 4 months.2

1 Subsequent section references are to the Penal Code. 2 The determinate sentence included an 11-year 4-month term for a separate conviction in Nevada County.

1

Defendant’s sole argument on appeal is that he was improperly convicted of both kidnapping during a carjacking and kidnapping for robbery, because kidnapping during a carjacking should be treated as a lesser necessarily included offense. We disagree and shall affirm. FACTUAL AND PROCEDURAL BACKGROUND Defendant approached his first victim, Suzanne Hood, around noon as she was in her car preparing to leave the parking lot of her bank. He reached inside her car, told her not to move because he had a gun, turned off her ignition, took her keys, and got in the car on the front passenger’s side. Hood drove where defendant directed her. When they stopped, defendant pointed a gun at Hood and ordered her out of the car. Hood got out. Defendant allowed her to keep her purse then drove off with the car. Around 5:30 p.m. that day, defendant attempted to pawn a camera that had been in Hood’s car. The next morning, Hood’s car was found submerged in a lake with the key in the ignition and the headlights on. Hood’s stereo had been ripped out and most of her property had been removed. Two days later the second victim, Judith Jones, was sitting in her car when defendant and another man approached her and asked for money to make a phone call. When Jones opened her door to get her purse, defendant held a broken bottle to her neck and said he wanted the car. The two men got in her car and defendant drove off. Defendant was eventually apprehended in Jones’s car with co-defendant John Adrian. DISCUSSION Count one, kidnapping during a carjacking, and count two, kidnapping for robbery, both stemmed from the first incident in which Hood was the victim. The trial court stayed the sentence on count two pursuant to section 654. Defendant argues he should not have been convicted of both counts because count one was a lesser included offense of count two since the object of both crimes was the car. He is wrong.