People v. Perez

Opinion

KLINE, P. J.

David Allen Perez appeals following his conviction for one count of kidnapping during the commission of a carjacking (Pen. Code, § 209.5) and one count of kidnapping during the commission of a robbery (Pen. Code, § 209). Appellant claims that there is insufficient evidence to support his conviction of kidnapping during the commission of a carjacking. Appellant also claims that even if his conviction under Penal Code section 209.5 was proper, one of his sentences should have been stayed pursuant to Penal Code section 654. We shall affirm in part and reverse in part.

Statement of the Case

On February 19, 1998, the district attorney filed an amended information alleging that appellant committed one count of kidnapping during the commission of a carjacking (Pen. Code, § 209.5, count 1), one count of kidnapping during the commission of a robbery (Pen. Code, § 209, subd. (b), count 2), one count of carjacking (Pen. Code, § 215, subd. (a), count 3), one count of robbery (Pen. Code, § 211, count 4), and one count of kidnapping (Pen. Code, § 207, subd. (a), count 5). The district attorney also alleged a firearm enhancement to each count. (Pen. Code, § 12022, subd. (a)(1).)

Appellant pleaded not guilty and a jury trial began on April 5, 1999. On April 7, 1999, the jury returned guilty verdicts on counts 1 and 2 and also found true the firearm enhancements as to both of those counts. No finding was made as to the remaining counts because they were lesser included offenses of the first two counts.

On August 5, 1999, the court sentenced appellant to life with the possibility of parole for the kidnapping during the commission of a carjacking, and a concurrent term of life with the possibility of parole for the kidnapping during the commission of a robbery. The court sentenced appellant to an additional term of one year to run consecutive for one of the firearm enhancements, and stayed the second one-year term for the other firearm enhancement pursuant to Penal Code section 654.

[859]

Statement of the Facts

On the evening of August 12, 1997, Roque Arcenas and his wife Florette went shopping at a grocery store in Cordelia. When Roque went to place the groceries in his car, Florette remained in the store to purchase a soda. As Roque was loading the groceries in the trunk of his car, he noticed a white car parked nearby with three men in it. As Roque finished loading his car, two of the men from the white car started to approach him. One man (the gunman) pointed a shotgun at Roque and also flashed another gun under his shirt. The other man, appellant, stood behind Roque so he could not run away.