(Super. Ct. No. CR092112)
The opinion of the court was delivered by: Murray , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Paul Alexander Hinojosa carjacked and kidnapped a father and his three young sons in an attempt to obtain money from the father. The jury convicted defendant of kidnapping for the purpose of robbery (Pen. Code, § 209, subd. (b)(1)*fn1 (count 1 - victim G.S.)); kidnapping a child under age 14 for extortion (§§ 209, subd. (a), 667.9, subd. (c) (count 2 - victim M.P.)); kidnapping for extortion (§ 209, subd. (a) (counts 3 & 4 - victims R.J & C.J.)); carjacking where a victim was under age 14 (§§ 215, subd. (a), 667.9, subd. (c) (count 5 - victim M.P.)); assault (§ 240) as a lesser included offense of assault with a deadly weapon (§ 245, subd. (a)(1) (count 7 - victim G.S.)); felony child endangerment (§ 273a, subd. (a) (counts 9, 10, & 11 - victims M.P., R.J. and C.J.)).*fn2
The jury found that defendant personally used a deadly or dangerous weapon in the commission of all counts for which defendant was convicted except count 7.
The jury found defendant not guilty of witness dissuasion. (§ 136.1 (count 8).)
The trial court found that defendant had served two prior prison terms. (§ 667.5, subd. (b).)*fn3
The court sentenced defendant to an aggregate determinate term of 17 years four months plus four consecutive indeterminate terms of "seven years to Life."
On appeal, defendant contends (1) the child endangerment counts must be reversed because there was insufficient evidence of "circumstances likely to produce death or great bodily harm"; (2) the sentence imposed on the felony child endangerment counts should have been stayed pursuant to section 654; (3) the prosecutor's misstatement of reasonable doubt, coupled with the trial court's overruling of a defense objection to the argument, was reversible error; and (4) the abstract of judgment must be corrected to reflect four life terms with the possibility of parole instead of four terms of "seven years to Life" on counts 1 through 4.
We agree that the sentence imposed by the trial court on the felony child endangerment counts violates section 654. We also agree that a correction to the indeterminate-term abstract of judgment is required, but disagree as to the nature of the correction. Accordingly, we modify the judgment, order modification of the determinate-term abstract and correction of the indeterminate-term abstract and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case-in-Chief
On May 2, 2009, G.S. drove his three sons, 15-year-old C.J., 13-year-old R.J., and nine-year-old M.P., to a Woodland car wash to clean the family car. While G.S. and the children were washing the car, defendant approached G.S. and requested a cigarette and money. G.S. explained that he had neither cigarettes nor money. Defendant then asked for a ride to his home on the other side of the city. G.S. refused because his children were with him and defendant would not fit in the car. After persistent requests, G.S. relented and agreed to drive defendant home because rainfall appeared to be imminent. The children seated themselves in the rear seat, while defendant seated himself in the front passenger seat. Defendant began directing G.S.'s driving.
G.S. noticed that defendant seemed abnormally nervous and fidgety. Thereafter, defendant pulled what G.S. believed to be a pistol from beneath his sweatshirt and pointed the gun at G.S.'s rib cage.
Defendant said he would shoot G.S. if he did not do exactly as told. Shocked and scared, G.S. pulled the car to the side of the road. Defendant shouted at G.S. to continue driving, and G.S. complied. G.S. asked defendant to calm down and said he would do what defendant wanted. M.P. began to cry, saying in a scared voice, "Papi, what's happening, what's happening[?]"
Defendant demanded that G.S. drive to a bank and that he withdraw $600 from his bank account. G.S. did not have money in the bank but he agreed, hoping that driving to town would provide him an opportunity to buy time and decide what to do. Defendant demanded that G.S. give him the driver's license, money, and credit cards from his wallet. Defendant said he wanted the address on G.S.'s driver's license so that, if anything happened to defendant, he could go to G.S's house and kill G.S. and his family. When G.S. asked defendant not to do this in front of the children, defendant replied, "I don't give a shit" or "I don't want to hear that shit." Defendant said he was the one with the gun and could do anything he wanted.
While G.S. drove, defendant waved the gun around, pointing it in turn at G.S. and at the children. All of the children started to cry. Defendant told G.S. to tell the children to shut up "or I'm going to kill every single little fucker." He told the children that if they were not quiet he would take them to a field and shoot them.
C.J. recalled that defendant asked the boys to give him any electronics they had. M.P. tried to sneak his cellular telephone from his pocket so that he could call 911, but defendant noticed, asked M.P. if he had a cell phone and demanded that M.P. hand it over. Instead, M.P. put the phone back in his pocket and told defendant he did not have a cell phone.
Defendant's hand trembled and he behaved in a nervous and erratic manner. G.S. thought defendant did not know what he was doing and this scared G.S. He believed defendant's gun was real and capable of shooting him. When the car came to an intersection in town, G.S. asked if he could let the children out of the car. Defendant refused and explained that he was "in control of everything."
G.S.'s attention was divided between defendant and the traffic and signal lights on Main Street, and he felt his fear and nervousness interfered with his ability to safely operate the car. G.S. thought about driving to the police department, but he could not safely make a necessary turn and feared that defendant might figure out what he was trying to do. G.S. looked back and saw the children's faces and knew they were very frightened.
Ten to 12 minutes after the incident began, G.S. stopped the car at an intersection on Main Street for a red light. Defendant was looking all around. G.S. put the car in park, tried to grab defendant's gun with his left hand, and punched defendant's face with his right.
G.S. yelled to the children to run and get help. M.P. and R.J. fled from the car. C.J., who had been attempting to choke defendant's neck, fled when G.S. told him to go. The children exited the car using the passenger side door because there were cars to the left. There was also a line of cars behind them at the red light, and the boys ran in the street to the nearest motorists, asking them to call the police. The children then noticed a Ross department store and ran there.
Inside the car, G.S. and defendant continued to struggle over the gun. Using the butt of the gun, defendant repeatedly hit G.S. in the face, causing several swollen and red areas and giving G.S. a headache that persisted for several days. Suddenly, the gun broke into two pieces, cutting G.S.'s finger in the process. G.S. stopped fighting for the broken gun, and defendant fled from the car, still holding onto the gun. G.S. then ran in the direction he had last seen the children, leaving the car behind. There were 10 cars behind him honking, but he was focused on trying to get to his kids. A few minutes later, he was reunited with the children at the shopping center.
Defendant fled through the shopping center to a restaurant where he previously had been employed. After former co-workers refused his requests for a ride, defendant fled to a nearby residential area. He entered a family residence and requested assistance, saying he was running from the police because he had attempted to rob someone. Instead of helping defendant, the family called the police. When defendant tried to run, a family member tackled him and put him in a choke hold. The police arrived shortly thereafter and arrested defendant.
The arresting officers noted that defendant matched the broadcast description of the kidnapping and robbery suspect. An officer asked defendant what he had done with the gun. Initially, defendant denied having a gun; then he claimed to have had only a screwdriver. He eventually admitted having a gun. He then led the officers to the gun where he had hidden it at the restaurant. The weapon, a broken pellet gun, was not loaded with pellets or an air cartridge.
During the abduction, G.S. feared that defendant would shoot the children.
M.P. was really scared during the incident. He wanted to get out of the car, but thought he would be shot. M.P. had nightmares for several days after the incident, and for two months afterwards, M.P. could not sleep by himself. When the family drove past the area where the kidnapping had occurred, M.P. would look down or close his eyes and become visibly frightened.
During the incident, R.J. felt as if he were going into shock. His body was frozen and his vision went black and white. His heart was beating very fast and he was thinking he did not want this to be the last day of his life.
C.J. testified that he was terrified during the incident and did not know what to do. The entire time they were in the car, he was scared of being shot. C.J. thought about jumping out of ...