California Court of Appeal Jun 24, 2015 No. D064986AUnpublished
Filed 6/24/15 P. v. Corpening CA4/1 Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064986
Plaintiff and Respondent,
v. (Super. Ct. No. SCS258343)
TORY J. CORPENING,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Frances M.
Devaney, Judge. Affirmed in part and reversed in part.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.
Taylor, Robin Urbanski, Barry Carlton and Christopher P. Beesley, Deputy Attorneys
General, for Plaintiff and Respondent.
Tory J. Corpening entered guilty pleas to carjacking (count 1; Pen. Code,1 § 215,
subd. (a)); robbery (count 2; § 211); assault with a deadly weapon (count 3; § 245,
Corpening filed a motion to withdraw his guilty plea, which was denied after an
evidentiary hearing. He was thereafter sentenced to a determinate term of six years eight
months in prison.
Corpening filed a timely notice of appeal.
In his appeal, Corpening contended the trial court erred in imposing a one-year
consecutive term for the robbery in count 2. He contended section 654 bars such
sentence because the carjacking and the robbery were committed by a single act with a
single purpose. He also contended the court erred in imposing a stayed sentence for
receiving stolen property in count 4 because a person cannot be convicted of robbery and
receiving the stolen property taken from the robbery. The People correctly agreed with
the latter contention. In an unpublished opinion filed October 21, 2014, we dismissed the
receiving stolen property conviction and otherwise affirmed the judgment as modified.
On February 11, 2015, the Supreme Court granted review and transferred the case
to us with directions to reconsider our opinion in light of People v. Jones (2012) 54
Cal.4th 350 (Jones).
We have received additional briefing and have reconsidered our opinion in light of
Jones, supra, 54 Cal.4th 350. After again reviewing the record, we are satisfied the
1 All further statutory references are to the Penal Code unless otherwise specified. 2
crimes in this case occurred during a course of conduct with separate purposes and did
not involve a single physical act. Therefore, we will again affirm the judgment as
modified with directions to dismiss the receiving stolen property conviction.
STATEMENT OF FACTS
This appeal arises from guilty pleas. As such, the only statement of the facts
before the trial court is contained in the report of the probation officer. Since the parties
have emphasized differing parts of the facts in their briefs, we think the most accurate
basis for our review is the probation officer's summary. We therefore set forth that
summary verbatim:
"As to Counts 1-4
"On July 22, 2012 at approximately 5:50 a.m., Walter Schmidt Sr., the victim, and
his son Walter Schmidt Jr. were at their residence loading their van, which was parked in
the front driveway, with coins and other items they were going to sell at a local swap
meet. Schmidt Sr. is a currency dealer who specializes in the buying and selling of rare
coins. After loading the van, Schmidt Sr. got into the driver's seat, turned on the ignition
and waited for Schmidt Jr., who went to lock up their residence.
"As Schmidt Sr. was waiting in the driver's seat, he was suddenly approached by
an adult Hispanic male who was pointing a gun in his face and yelling words similar to
'Get out of the car or I'll shoot you.' Mr. Schmidt Sr. heard this phrase shouted three
times. The suspect was later positively identified as Danny Jorge Molestina. Fearing for
his life, Mr. Schmidt Sr. got out of the driver's seat and relinquished his vehicle to
Molestina. As Molestina attempted to enter the van, Mr. Schmidt Sr. attempted to
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wrestle the gun out of his hand. He failed to disarm Molestina and found the gun once
again pointed directly in his face, at which point he backed off. Mr. Schmidt Sr. later
described the gun as a small dark colored handgun, possibly a .22 caliber or a 'Saturday
Night Special,' to officers.
"When Molestina attempted to get into the driver's seat of the van a second time,
Mr. Schmidt Sr. felt that he had another opportunity to try and stop the robbery. He again
lunged for the gun, but Molestina placed the van into gear and quickly reversed out of the
driveway. Mr. Schmidt Sr. grabbed onto the steering wheel to avoid being run over. He
was dragged approximately 18 feet down the driveway and onto the street, until he lost
his grip and fell to the pavement. Mr. Schmidt Sr. struck his head and body on the
asphalt, while narrowly avoiding being run over by the speeding vehicle.
"Molestina stopped the van momentarily, approximately 50 yards from the
residence, to pick up a second suspect. That suspect was later identified as Eduardo
Arturo Guerra. Molestina and Guerra drove away in Mr. Schmidt's van, which contained
approximately $70,000 worth of property in coins. They were followed by a second
vehicle, driven by a suspect later identified as Jorge Antonio Aguila. Mr. Schmidt Sr.
called 911 and waited for [Chula Vista Police Department (CVPD)] officers to arrive.
"Mr. Schmidt Jr. informed officers that his cell phone, which was equipped with
GPS, was inside of the stolen van. The vehicle was tracked to the 6800 block of Quebec
Court in the City of San Diego. Unbeknownst to CVPD, San Diego Police Department
[(SDPD]) received a report of a vehicle burglary in progress at that location, after
residents observed the suspects unloading items from a white van into a gold Pontiac,
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which was registered to Aguila. SDPD officers initiated a felony stop of the Pontiac, and
Aguila, the driver, was taken into custody at gunpoint. Molestina, the vehicle passenger,
jumped out of the vehicle and fled on foot through a condominium complex. Officers
gave chase and captured him a short time later. A third suspect was also seen running
from the area at the same time, but he was not captured. That suspect may have
discarded items of evidence to include a stun gun baton, multiple gloves and a facemask,
which were discovered near 6828 Panamint Row. Some of the coins that were stolen
during the carjacking were recovered from inside of the Pontiac.
"Mr. Schmidt Sr. and Mr. Schmidt Jr. were both transported to the 6800 block of
Panamint Row for a curbside line-up. They both positively identified Molestina as the
person who committed the carjacking. Neither man recognized Aguila. They also
assisted officers in identifying stolen property, including their van and items seized from
the interior of Aguila's Pontiac. Mr. Schmidt Sr. went to the hospital for injuries to his
head, back, shoulder, hand and arm.
"Two independent witnesses, who reported the suspected vehicle burglary on
Quebec Court to SDPD, positively identified Molestina and Aguila as two of the three
individuals that were loading boxes from Mr. Schmidt Sr.'s van into Aguila's Pontiac.
"Molestina and Aguila were arrested for their roles in the carjacking and they were
transported to CVPD headquarters for processing. Aguila refused to make a statement.
Molestina made a spontaneous statement and declared that he had just been walking
around the area and "those guys" offered to pay him $1,000.00 if he helped unload boxes
from the van into the Pontiac. Molestina denied being involved in the carjacking.
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"Search warrants were secured for both of the cellular phones that were
confiscated from Molestina and Aguila incident to their arrest. Molestina's phone was
found to have made and received several calls to Guerra's cellular phone before, during
and after the carjacking. The cellular phone that was located on Aguila's person during
his arrest was determined to be owned by Guerra. That phone was discovered to have
placed multiple calls to Molestina and Tory Joel Corpening, the defendant, before,
during, and after the carjacking. Just prior to the carjacking, Guerra's cell phone received
an incoming text message asking, 'Where are you?' Approximately five minutes after the
carjacking, a reply was sent from Guerra's phone that read, 'Just working with my crew.'
"On August 12, 2012, Guerra was arrested at the South Bay Courthouse. He was
admonished of his rights and admitted participating in the planning and execution of the
carjacking. Guerra was the registered owner of a 2001 Ford F150 pickup, the same type
of vehicle that witnesses reported was in the area during the carjacking. He identified
Corpening as the 'leader' of the group of individuals that committed the crime. Guerra
stated that he and Corpening would sell items regularly at the Kobey Swap Meet in San
Diego, where Mr. Schmidt Sr. had a booth to buy and sell coins. Guerra and Corpening
visited Mr. Schmidt Sr.'s booth on occasion, where they viewed his collection of coins
and other currency.
"Guerra reported that Corpening came up with the idea to rob Mr. Schmidt Sr.
Corpening assembled a group of individuals together to execute the 'big job.' The group
included Molestina, Aguila, and Celestina Maria Rodriguez. Guerra stated that he and
Corpening followed Mr. Schmidt Sr. home from the swap meet one day and conducted
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surveillance on his home prior to committing the instant offense. The group of suspects
met in the garage of Corpening's residence the night before the crime occurred and
reviewed their plan, which called for Guerra and Aguila to park in front of Mr. Schmidt
Sr.'s home in Aguila's Pontiac, while Corpening, Molestina and Rodriguez were to park
around the corner in Guerra's F150 truck. Guerra and Aguila were to report to
Corpening, via cellular phone, and provide information regarding Mr. Schmidt Sr.'s
movements. Corpening was to call Molestina, with the order to commit the actual
carjacking, once Mr. Schmidt Sr. was getting ready to leave his residence. The group of
suspects drove to the victim's residence, en masse, following their planning meeting to
commit the carjacking.
"Guerra admitted he was inside of Aguila's vehicle before, during and after the
carjacking. He identified Aguila as the individual who reported Mr. Schmidt Sr.'s
movements to Corpening. Upon Corpening's command, Molestina executed the
carjacking. After Molestina carjacked Mr. Schmidt Sr.'s vehicle, Corpening jumped in
the passenger seat of the stolen van and they drove off. Rodriguez fled the area in
Guerra's F150 truck. Guerra and Aguila followed Molestina and Corpening to Quebec
Court, where Molestina, Corpening and Aguilar unloaded the stolen items from the van
and placed them in Aguila's Pontiac.
"Guerra identified Corpening as the individual who wore a facemask and gloves
during the offense. It was likely Corpening whom discarded the facemask, gloves, and
stun gun baton that were recovered on Panamint Row. Guerra was able to flee
successfully from the scene and made his way back to Corpening's residence. He stated
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that Corpening appeared there with a box full of rare coins and precious metals. A few
days after the carjacking, Guerra, Corpening, and Giana Steina Lupo, Corpening's
girlfriend, travelled to Lake Tahoe, where they sold the stolen merchandise to an
unknown coin dealer. Lupo was later discovered to have pawned some of Mr. Schmidt
Sr.'s coins at a local pawn shop."
DISCUSSION
The remaining issue to be addressed in this case is whether the trial court erred in
imposing a consecutive, one-year sentence for robbery, based upon the contention that
the sentence should have been stayed pursuant to section 654. Based upon our review of
the record we believe the trial court made an implied finding that the robbery and
carjacking were separate acts with different objectives, even though they arose out of the
same transaction.
A. Background
The court imposed a five-year term for the carjacking. It then imposed a
consecutive one-year term for robbery (one-third the midterm) and a consecutive eight
months for witness intimidation (one-third the midterm). In the People's sentencing
memorandum submitted to the trial court the prosecutor recommended the court stay the
robbery sentence under section 654. At the time of sentencing the trial court said the
following about the robbery sentence:
"On count two, the robbery, I think [the prosecutor] you wrote in your papers that you think that should be 654. I think that it is a separate offense with the carjacking. I disagree. I'm going to impose one-third the midterm of count two. Midterm is three years. One-third is one year. That will be served consecutively."
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B. Legal Principles
Section 215, subdivision (c) permits a defendant to be charged with both robbery
and carjacking. (People v. Ortega (1998) 19 Cal.4th 686, 700.) However, a defendant
may not be punished under both statutes for the same act which constitutes a violation of
two sections.
Similarly, 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." In order to
determine whether there is a single act, or a course of conduct involving multiple
violations of statutes requires an examination of the intent or objective of the actor. (Neal
v. State of California (1960) 55 Cal.2d 11, 19.) The real question is whether during a
single transaction there is really only one act or one objective. (People v. Beamon (1973)
8 Cal.3d 625, 639.)
In Jones, supra, 54 Cal.4th 350, the court further refined its analysis of section
654. In cases where there is but one physical act, which gives rise to more than one
criminal offense, the court held that such act can only be punished once. (Jones, supra, at
p. 358.) The offenses in Jones were firearms violations arising out of one act of
possession which could only be punished once. However, where there is a course of
conduct, as opposed to a single physical act, the multiple objectives test is still applicable.
(Id. at pp. 359-360.) The court also observed that in a given case it may be difficult to
determine whether the conduct is a single physical act, or a series of physical acts in
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pursuit of an objective. The court said: "In some situations, physical acts might be
simultaneous yet separate for purposes of section 654." (Jones, supra, at p. 358.)
The question of whether there were multiple acts or multiple objectives is one of
fact. (People v. Martin (2005) 133 Cal.App.4th 776, 781.) A trial court's decision as to
the existence of multiple objectives is reviewed under the substantial evidence standard
of review, whether the finding is express or implied. (People v. Osband (1996) 13
Cal.4th 622, 730-731; People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
C. Analysis
These crimes arose from a plot to steal valuable coins from the victim when he left
in the early morning for the swap meet. Clearly the objective was to steal the coins and
escape. The robbers had two vehicles available to them in order to carry out their
scheme. However, their scheme was complicated by the victim's resistance. Ultimately
they pushed the victim out of the way and fled in his van. The robbers then abandoned
the van a short distance away after taking the coins from the van.
The trial judge specifically rejected the prosecutor's suggestion that section 654
barred multiple punishments for the robbery and the carjacking. The court viewed them
as separate offenses, although he applied section 654 to other offenses at sentencing.
There is sufficient evidence in this record from which the court could have
concluded there were two intents, close in time. The intent to steal the coins is clear.
The court could easily infer the intent to take the van arose as a separate goal of escaping
from the crime scene. (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
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Accordingly, we find the trial court's implied finding of separate intents or purposes to be
supported by substantial evidence.
Corpening relies on People v. Dominguez (1995) 38 Cal.App.4th 410, 416-420
(Dominguez), to support his argument that section 654 should apply to this case. His
reliance on Dominguez is misplaced. Although that case involved a carjacking and
robbery, the discussion of section 654 in that case has little relevance to the issues in this
case.
In Dominguez the principal argument for application of section 654 was that there
could not be a conviction for both robbery and carjacking. The court rejected that
argument and held such dual convictions were permitted. (Dominguez, supra, 38
Cal.App.4th at pp. 418-419.) The argument regarding sentences was much different than
here. First, the prosecutor there conceded section 654 barred dual punishment. The trial
court agreed with that position, however, instead of staying the sentence for robbery, the
court imposed it concurrently. Not surprisingly, the court in Dominguez ordered the
sentence to be stayed.
As we have discussed above, the court in Jones, supra, 54 Cal.4th 350, held that
only one punishment can be imposed for crimes arising out of one physical act. Jones, of
course, dealt with the single act of possessing a firearm, which violated several penal
code sections. Thus, in that case the defendant could only be punished for one offense,
and punishment for the remaining counts had to be stayed pursuant to section 654. Here,
the question is whether the actions of the defendant in forcing the victim out of the car,
struggling with him as he attempted to resist, then again struggling with the victim, then
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driving off with the van is but one physical act. Certainly the actions here are far more
complex than one act of possessing one firearm and are far more analogous with a
finding of a course of conduct, rather than one "physical act."
As we have discussed, the trial court found multiple objectives and multiple acts
occurring in the same course of conduct. Corpening and his cohorts were there to steal
the coins, not the van. Twice the victim tried to disarm the robber, was forced away and
ultimately dragged some distance when he tried to hold onto the steering wheel. It took
several discrete physical acts to complete these crimes. The experienced trial court
impliedly found different objectives and different physical acts when it expressly rejected
the application of section 654 to the robbery count. Dominguez, supra, 38
Cal.App.4th 410 and Jones, supra, 54 Cal.4th 350, are distinguishable from the facts and
procedure presented here. They are of no assistance to the appellant in this case.
DISPOSITION
The conviction for receiving stolen property (count 4) is reversed. In all other
respects the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's carjacking and robbery convictions involved a course of conduct with separate purposes and multiple physical acts, thus permitting consecutive sentencing under Penal Code section 654. The court also reversed the defendant's conviction for receiving stolen property as it arose from the same robbery.
Issues
Whether Penal Code section 654 bars consecutive sentences for carjacking and robbery committed during the same transaction.
Whether the defendant could be convicted of both robbery and receiving the stolen property taken during that robbery.
Disposition. Affirmed in part and reversed in part.
Quotations verified verbatim against the opinion
“The court could easily infer the intent to take the van arose as a separate goal of escaping from the crime scene.”
“The conviction for receiving stolen property (count 4) is reversed.”