People v. Rosas CA4/1

• Court: California Court of Appeal
• Decided: February 5, 2016
• Docket: D068483
• Status: Unpublished

Opinion

Filed 2/5/16 P. v. Rosas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D068483

Plaintiff and Respondent,

v. (Super. Ct. No. FWV1102700)

ISABEL ROSAS et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Bernardino County,

Shahla S. Sabet, Judge. Both judgments affirmed in part and reversed in part.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant

and Appellant Isabel Rosas.

David McNeil Morse, under appointment by the Court of Appeal, for Defendant

and Appellant Rogelio Varela.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent. Following a joint trial before separate juries in San Bernardino County, Isabel

Rosas and Rogelio Varela (together the defendants) were both found guilty of three

felonies: (1) first degree felony murder in connection with the kidnapping and killing of

Rosas's lover, Erick Estuardo Cate Otzoy (Cate) (count 1: Pen. Code,1 187, subd. (a));

(2) kidnapping of Cate (count 2: § 207, subd. (a)); and (3) assault upon Cate by means of

force likely to produce great bodily injury (count 3: § 245, subd. (a)(4)). Varela's jury

found to be true allegations that he personally inflicted great bodily injury upon Cate

during the commission of the kidnapping and assault within the meaning of section

12022.7, subdivision (a) (hereafter section 12022.7(a)).

The court sentenced each of the defendants to an indeterminate state prison term

of 25 years to life for their count 1 felony murder convictions, plus determinate terms of

eight years for their count 2 kidnapping convictions and one year for their count 3 assault

convictions. The court also sentenced Varela to a consecutive three-year term for each of

his count 2 and count 3 great bodily injury enhancements (§ 12022.7(a)). Thus, the court

sentenced Rosas to a total determinate prison term of nine years followed by an

indeterminate term of 25 years to life, and it sentenced Varela to a total determinate term

of 15 years followed by an indeterminate term of 25 years to life.

Both defendants appeal. Rosas contends her convictions of all three counts must

be reversed because her fourth statement to law enforcement (discussed, post), in which

she first admitted her involvement in Cate's kidnapping, should have been excluded

1 All further statutory references are to the Penal Code. 2 because the police failed to advise her of her Miranda2 rights before she made her self-

incriminating statements. Relying on her own statements to the police that she told

Varela and others not to hurt Cate, Rosas also contends her conviction of assault by

means of force likely to produce great bodily injury must be reversed because there is no

evidence she intended to aid and abet the assault upon Cate.

In addition, defendants contend (1) the sentence imposed for their kidnapping

convictions should be stayed under section 654 because the prosecution's theory of first

degree murder was felony murder based on the predicate felony of kidnapping, and (2)

the sentences imposed for their convictions of assault by means of force likely to produce

great bodily injury should be stayed under section 654 because the assault was an element

of the kidnapping, and, thus, the assault and kidnapping were part of an indivisible course

of conduct. The Attorney General agrees the sentences imposed for defendants'

kidnapping convictions should be stayed under section 654.

We modify the judgments to stay under section 654 the execution of the sentences

imposed for Rosas's and Varela's count 2 kidnapping convictions. We affirm the

judgments as modified and remand the matter to the superior court with directions to

correct the abstracts of judgment.

2 Miranda v. Arizona (1966) 384 U.S. 436. 3 FACTUAL BACKGROUND

A. The People's Case

In mid-September 2011, Varela offered to pay his friend, Oscar Zuniga,3 to drive

a car that belonged to one of Varela's female friends. Oscar believed Varela planned to

steal the car.

On October 4, 2011, Varela called Oscar and asked him whether he and his

brothers, David4 and Pizana, could pick him up. Tafich and Garcia were with Oscar at

this time. Oscar, his brothers, Tafich, and Garcia picked Varela up in San Bernardino in

Pizana's black Ford Expedition. Varela indicated that the woman they were going to pick

up in Pomona would buy gas for them. Varela told the other men not to talk to the

woman and to make sure she did not know who they were.

The men traveled to Rosas's house in Pomona and she got into the Expedition.

Around 8:39 p.m., Rosas used her credit card to purchase $50 worth of gas at a gas

station in Pomona.

3 The prosecution jointly charged Rosas, Varela, Oscar Zuniga, David Zuniga, Jose Pizana, Daniel Garcia, and Yussef Tafich with murder, kidnapping and assault with a deadly weapon. ·Because they share the same last name, we refer to Oscar Zuniga and David Zuniga by their first names. Before Rosas and Varela's trial, Oscar pleaded guilty to voluntary manslaughter, kidnapping, and assault causing great bodily injury. In exchange for his truthful testimony against his codefendants, Oscar received a 22-year prison sentence for these offenses. David and Garcia, who were both 17 years old at the time of the crimes, pleaded guilty to assault by means of force likely to produce great bodily injury and false imprisonment. In exchange for their truthful testimony against their codefendants, the prosecutor agreed David and Garcia would receive a maximum of three years in prison. Tafich and Pizana did not testify at Rosas and Varela's trial.

4 See footnote 3, ante. 4 Varela, who had been whispering to Rosas, directed Pizana, who was driving, to

drive them to the parking lot of the Legends Burgers (Legends) where Cate worked.

Varela and Rosas got out of the Expedition, sat down on benches, and spoke to each other

for about 20 to 30 minutes.

Varela returned to the Expedition, he and the other men drove to a liquor store

where Varela purchased some things, and then they drove to Montclair Plaza. Varela told

the men they would have to wait there until Rosas called or texted them to return to

Legends. Varela told them Rosas was going to tell Cate to give her the Buick and that if

he did not do so, Varela and and the other men would take the car by force. Varela also

said Rosas wanted them to beat up Cate, take him to Tijuana, and leave him there so he

could not come back because he did not have any "papers."

At around 12:31 a.m. on October 5, 2011, Rosas contacted Varela by phone.5

Varela then told the men, "It's time. Let's go," and the group returned to Legends in the

Expedition. Cate's Buick had been moved to another space in the parking lot. All of the

men got out of the Expedition and approached Cate's Buick except for Oscar, who stayed

in the Expedition. Pizana opened a back passenger seat door of the Buick and Rosas got

out. Pizana entered the backseat and repeatedly punched Cate in the back. Varela,

Tafich, Garcia and David then joined Pizana in punching Cate. Cate was wearing

underwear but no pants. When someone broke one of the windows of the Buick, Garcia

5 Both juries heard testimony from a Sprint custodian of records regarding defendants' cell phone calls between October 1 and 5, some of which corroborated the specific testimony of their codefendants. 5 and David became scared and ran back to the Expedition. Rosas remained outside the

Buick during the assault, standing by the open passenger door and watching what was

going on inside the car as it rocked back and forth. She said nothing and did not try to

run away.

Eventually, Rosas got into the front passenger seat of the Buick and drove with

Varela, Pizana, Tafich and Cate to a warehouse 10 to 15 minutes away. Oscar followed

them in the Expedition and then got into the driver's seat of the Buick after it was parked.

Pizana and Tafich got back into the Expedition with David and Garcia. Varela, who was

seated in the back seat of the Buick behind Oscar Varela leaned forward and whispered to

Rosas, who was seated in the front passenger seat, before he gave Oscar directions.

At around 1:47 a.m. on October 5, Rosas used her credit card to buy gas for the

Buick at a gas station in Murrieta. While Oscar was putting gas in the Buick, he saw

Varela sitting on the back seat and Cate lying on the floorboard with what appeared to be

a bloodstained towel over his head. When Oscar moved toward the gas pump, he noticed

the Buick was moving again, as if a struggle was going on inside. Oscar looked inside

the rear window of the Buick and saw Varela "on all fours" like he was struggling to hold

something down while the Buick was moving back and forth. Oscar testified he could

hear someone "trying to scream with something over his face." The screaming was not

coming from Varela's mouth.

Varela told Oscar to drive him and Cate to a dark spot because the lights in the gas

station were shining inside the car. Oscar did so and then exited the Buick while Varela

remained inside the car with Cate. Oscar heard someone trying to scream for a few

6 minutes. After the screaming stopped, Varela told Oscar to get back in the car and drive

to the gas station, and Oscar reluctantly did so.

The men picked Rosas up at the gas station and drove south on Interstate 15 to a

location in San Diego where Varela took over as the driver and Oscar got in the backseat

with Cate on the floorboard next to him. Varela asked Rosas, "Where do we go?'' Rosas

replied, "I don't know." Varela eventually pulled over by a brushy area and told Oscar to

help him drag Cate out of the car. Varela gave Oscar some magazine pages to put on his

hands to help drag Cate. Rosas remained in the Buick.

Varela and Oscar dragged Cate behind a bush. Cate was not moving and did not

appear to be breathing. Oscar and Varela returned to the car. Oscar testified that Rosas,

who was still in the car, was wearing light-colored latex gloves and looking through the

glove compartment. Oscar drove Rosas and Varela back to San Bernardino. During the

drive, Rosas gave Varela a cell phone and told him to call their pastor and tell him that

Cate was leaving for Florida with his ex-girlfriend. Varela used a blocking feature on his

phone and left a voice mail message with the pastor around 2:13 a.m. that same morning

(October 5).

During the drive, Valera and Rosas bickered about what to do with Cate's Buick.

Valera told Rosas he had already done too much and she had to get rid of the car. Rosas

said Valera had not finished everything that she had paid him for. They discussed

burning or crushing the Buick because of the bloodstains inside the car. When Oscar

reached a point near his home, he parked and told Varela he was getting out. Two or

three days later, Tafich paid Oscar $100.

7 In the evening on October 5, Cate's girlfriend, Monica Sanchez, went to the church

that she, Cate and Rosas regularly attended. Sanchez saw Rosas there that night and told

her Cate had not come home the previous night. Sanchez was unaware of Cate's

relationship with Rosas. Rosas told Sanchez she had not seen or heard from Cate.6

Sanchez spoke to the pastor about Cate's disappearance, and the pastor played Varela's

phone message for her.

The next day, October 6, Sanchez reported Cate's disappearance to the police. At

around 7:00 p.m. that night, authorities found Cate's Buick on fire on a dead-end street in

an unincorporated area of Muscoy. All of the fabric on the back seat of the car was

destroyed except for a bloodstained area underneath a piece of wood and newspaper.

Rosas's jury heard testimony that, after a church service on October 8, the pastor

told Rosas that they could not find Cate. Rosas appeared to be a little surprised by the

news.

Both juries heard that several days later, on October 12, 2011, Rosas reported to

the police that she had been kidnapped while she was with Cate in a white car. Rosas's

jury heard translations of the statements she made to the police during her interviews on

October 12, 13, 17 and 18. The jury also viewed portions of the video recordings of the

interviews.

During her third interview on October 17, in response to questioning by Detective

Maurice Duran of the Upland Police Department, Rosas repeatedly maintained she was

6 Only Rosas's jury heard Rosas's statement. 8 kidnapped, but she admitted she put gas in the Expedition and the Buick the night she

was allegedly kidnapped (October 5). She stated that Varela told her to do it. Rosas

identified Varela, a former coworker, as one of the kidnappers and the person who likely

called the pastor. She said Varela and the other men demanded money and then beat

Cate. Rosas told Detective Duran that she heard Cate screaming when they stopped to

put gas in the Buick. She also stated that the men drove Cate to another street and, when

they returned, Cate was no longer screaming. They then drove to a field in San Diego or

Escondido and left Cate there. Rosas also stated the men dropped her off after they drove

back. When the third interview ended, Rosas accompanied the police to San Diego to

search for Cate. They did not find him.

The fourth interview began late that same night (October 17) when Rosas and the

detectives returned from San Diego, and it continued into the early morning hours of

October 18. At around midnight, early in the interview, Rosas admitted to Detective

Duran that she was not a kidnapping victim. She said the plan was for her and Varela to

take Cate to Tijuana and leave him there so that Cate would have to pay someone to

return to the United States. Rosas agreed to pay Varela $500 or $600 to help her. Rosas

told Detective Duran she was mad at Cate and was going to take him to Tijuana because

he was always asking her for money, he already owed her a lot of money, and he had lied

to her about his relationship with Sanchez. Throughout the interview Rosas maintained

that she did not intend for Varela and his cohorts to hurt Cate and that she told Varela not

to hurt Cate.

9 Rosas also told Detective Duran during the interview that both Oscar and Varela

beat Cate in Murrieta and that Cate's face did not appear to be hurt at that time or when

they left him in San Diego. Rosas admitted it was her idea to call the pastor on the way

back to San Bernardino. She also admitted that she paid Varela $500 after the

kidnapping. Rosas stated she asked Varela the next day whether Cate was alive when

they pulled him out of the car in San Diego, and Varela replied he did not know because

he did not check Cate's pulse.

Detective James Potts interviewed Varela later that day (October 18). A video

recording of the interview was admitted into evidence and played only for Varela's jury.

After Varela waived his Miranda rights, he told Detective Potts that Rosas was a former

coworker and that he met Cate through Rosas. Varela stated he had not heard that Cate

and Rosas had been kidnapped. When Detective Potts told Varela they had interviewed

Rosas several times and she was blaming him "for some things," Varela claimed he "was

just a tool," Rosas said Cate owed her money, and Rosas "was the one that set the whole

thing up." Varela indicated that Rosas had paid for Cate's dental work and that Rosas

wanted Cate to bring back a white Buick she had helped pay for. Varela told Detective

Potts that Rosas asked him for help and offered to pay him. Rosas wanted him to tie Cate

up, break his legs and take him to Tijuana so that Cate, who was not a citizen, could see

how expensive it would be to return to the United States. Varela stated he agreed to help

and recruited his friends, Pizana, Oscar, Tafich, and two of their friends, Garcia and

Zuniga, to help. Varela stated he told them they needed to "kick [Cate's] ass" and drive

him to Tijuana and leave him there.

10 Varela also told Detective Potts that Rosas provided the men with pieces of green

rope to tie up Cate and that he and Rosas went over the plan in the Legends parking lot.

Rosas told him she would park the Buick in the darkest place in the parking lot, and

Varela and the other men were to approach Cate, "take him down," and tie him up.

Varela also said Rosas had "staged" the crimes so she would look like a kidnapping

victim. When Varela got in the back seat with Pizana and Cate, he told Cate in

accordance with Rosas's instructions that Sanchez's father had sent him and that he (Cate)

was to stay away from Sanchez. Varela told Detective Potts that Cate was screaming

loudly during the ride to Monte Vista and that Pizana and the others hit Cate. When they

stopped for gas on the way to San Diego, Cate was screaming and bleeding from his nose

and mouth. Varela said he stuffed a blanket in Cate's mouth, drove across the street, told

Cate to be quiet, and Cate complied.

Varela told Detective Potts that when they stopped in San Diego, Rosas put on

some blue latex gloves and shoved vodka from two pint-sized bottles into Cate's mouth.

Varela indicated that Rosas had instructed him to buy the vodka. Varela thought Cate

was unconscious at this time. Rosas then instructed him to untie Cate's arms and legs,

remove his shirt, and take his belt. Varela stated he ripped off Cate's shirt, untied his

arms but not his legs, and left the belt by Cate's body. Varela indicated that Rosas

directed him to pour vodka on Cate to remove any evidence and that he complied.

Varela, Rosas, and Oscar then returned to San Bernardino and went their own ways.

During the drive, Rosas persuaded him to call Cate's pastor.

11 Varela also told Detective Potts that Tafich called him the next day and said he

was putting them at risk because their fingerprints were on the Buick. Varela said he told

Tafich they left the Buick with the keys in it by an abandoned storage business. Tafich

told him not to worry about the car. Varela said Rosas paid him $300, and he had to split

the money with the other men.

Varela told the police that Rosas told him to beat up Cate another time and that he

had tried to do so. They realized then that they would need more people. Varela agreed

to accompany the police to the location where they left Cate's body.

Both juries heard testimony that on October 18 Varela led the police to a canyon

by Fairmount Avenue near Interstate 8 in San Diego, where they found Cate's

decomposing body. Cate was wearing a white tank top undershirt, blue boxer underwear,

a white sock, and black pants that were around his ankles. His ankles were bound with a

green nylon rope. The police found a red plastic bottle cap by Cate's hip area, a second

red bottle cap under his head, and two pieces of paper from a Spanish-language religious

pamphlet, one under his left shoulder area and the other around his right lower leg.

An autopsy established that Cate died of "homicidal violence with head and neck

trauma." Cate's injuries included six lacerations on his scalp and a fractured thyroid

cartilage. The injuries were consistent with blunt trauma. Cate also had a large hole in

the back of his head and neck and additional smaller holes near his ankles. The holes

could have been caused by animals or foul play.

12 On October 26 the police searched Varela's car and found multiple pairs of blue

gloves and a green rope underneath the front seat. The green rope had the same texture

and color and texture as the rope found on Cate's feet.

B. The Defense Cases

Neither Rosas nor Varela presented any evidence. During closing arguments,

Varela's counsel argued that the testimony of the coparticipants was not credible because

of their agreements with the prosecution. Rosas's counsel argued she was not guilty of

the charges and that it was Varela's plan to enlist the other males, to assault Cate, and to

take him to Mexico by force.

DISCUSSION

I. ROSAS'S MIRANDA CLAIM

Rosas contends her convictions of all three counts must be reversed because the

evidence of her statements during her fourth interview by law enforcement late at night

on October 17-18, 2011, admitting her involvement in Cate's kidnapping, should have

been excluded because the police failed to advise her of her Miranda rights before she

made her self-incriminating statements. We reject this contention.

A. Background

1. Rosas's motion to suppress

Prior to trial, Rosas's counsel moved to suppress Rosas's statements to the police

on the ground they were obtained in violation of Miranda and were involuntary.

Detectives Duran and Potts testified at the hearing on Rosas's motion.

13 Detective Duran, whose first language is Spanish, testified he first met with Rosas

on October 12, 2011, at the Montclair Police Department. Rosas reported to the police

that she and her friend Cate had been kidnapped and she had no idea what had happened

to him. After he determined that Cate had not shown up for work, Detective Duran asked

Rosas whether she would be willing to accompany him to the Upland Police Department,

and Rosas agreed to do so. Detective Duran then drove her there. Rosas was not

handcuffed or advised of her Miranda rights at any time during the interview, and she

was free to leave at any time. Detective Duran spoke to her in Spanish during the entirety

of this first of four recorded interviews.

On October 13, 2011, the date of the second interview, Detective Duran picked

Rosas up at her home and drove her to the Upland Police Department where Detective

Potts interviewed her in an interview room with Detective Duran acting as the translator.

The detectives went over the statements Rosas gave the previous day. Detective Duran

testified he still believed during this entire interview that Rosas was a kidnapping victim,

and he took pictures of her because of this. Rosas was not advised of her Miranda rights

during the 59-minute interview. She was not handcuffed, the door was not locked, and

she was free to leave at any time.

Detective Duran testified that after the second interview, he went to Cate's church

and spoke with the pastor. The pastor played Varela's phone message for him. The

police also spoke to Sanchez and one of Cate's coworkers, and they obtained glass from

the Legends parking lot and video recordings of the lot.

14 The third interview started at 10:40 a.m. the following Monday, October 17, and

lasted three hours 46 minutes. Detective Potts conducted the interview in the interview

room at the Upland Police Department, and Detective Duran translated. Detective Duran

testified that during the interview they tried to clarify some inconsistencies in Rosas's

story. Detective Duran knew Rosas was involved, but he did not know whether she was a

suspect or a victim because he did not know how she was involved. Detective Duran

testified that his main concern at that point was finding Cate, and he did not Mirandize

Rosas because he was "[s]till trying to figure out what her relationship [was] to this case."

The interview room door was unlocked during the third interview and Rosas was not

handcuffed. Rosas was free to leave during the interview, although she was not told this.

The police gave her breaks and offered her water. Rosas agreed during the interview to

accompany the detectives to San Diego to help them find Cate.

Detective Duran further testified that he and Detective Potts drove with Rosas in

one car, and two officers followed in a second car. Rosas told the officers she was not

sure which way they drove on the night of the kidnapping because she did not know the

area. She voluntarily gave the detective her credit card and said, "You can check the card

because that will tell you which way we went." The police determined the card had been

used in Murrieta. The officers stopped at that gas station with Rosas on the way to San

Diego and purchased food and a drink for Rosas there. They also stopped so that Rosas

could go to the bathroom. Detective Duran testified that Rosas used her cell phone

during the drive to San Diego, and the police did not confiscate her cell phone at any

point. They drove around San Diego for a couple of hours with Rosas and then drove

15 back to Upland. Rosas never said she wanted to get out of the car in San Diego, and she

was free to leave. They did not talk much during the early part of the drive, but when

they reached the Escondido area, Rosas spontaneously started talking about her

relationship with Cate. She said she felt Cate had taken advantage of her, she had bought

him a car and she had given him money for a computer.

At around 11:30 p.m. that same day (October 17, 2011), after Rosas and the

detectives arrived back at the Upland police station, Detective Duran conducted the

fourth and final interview and talked to Rosas by himself for about an hour in the

interview room. The interview continued into the early morning on October 18.

Detective Duran testified he was trying to eliminate the inconsistencies in Rosas's story

and get to the truth. Rosas discussed her relationship with Cate and told Detective Duran

she felt Cate was abusing her financially, sexually and emotionally. She said she had

complained to Varela about this and told Varela she planned to take Cate to Tijuana and

leave him there so that Cate would have to pay to get across the border. Detective Duran

testified this was the first time Rosas had indicated she was involved in Cate's

kidnapping. Soon thereafter at around 12:35 a.m. on October 18, Detective Potts

instructed Detective Duran to Mirandize Rosas, and Detective Duran did so.

Detective Potts, the lead investigator, testified he was brought into the case on

October 13, 2011. After he learned Cate's car had been stripped, burned and recovered in

San Bernardino, he asked Detective Duran to pick Rosas up and bring her to the Upland

Police Department that day. Detective Potts then interviewed Rosas in an interview room

at the police department. Detective Duran, who was with Detective Potts during this

16 second interview, translated Detective Potts's questions and asked questions on his own.

Detective Potts testified they were trying to locate Cate and wanted to clarify Rosas's

earlier statements and see if she could remember any additional details. Detective Potts

did not tell Rosas she was free to leave during the interview because he believed she was

a victim and he does not tell victims they are free to leave. Detective Potts testified

Rosas appeared to be sincere and she was "[v]ery cooperative." Following the standard

practice with victims, Detective Potts directed that pictures be taken of Rosas.

Detective Potts testified that on the date of the third interview (October 17), he and

another detective drove to Rosas's house in Pomona and asked her whether she would be

willing to return to the Upland police station and talk to them. Rosas gathered her things

"within a minute" and willingly accompanied them to the police station. Detective Potts

wanted to talk to Rosas because the phone log for Varela's phone, which contained the

pastor's number, also contained Rosas's phone number. Detective Potts still believed

Rosas was a victim, but he thought there was a possibility that Rosas knew who the

suspects were and was afraid to tell the officers who they were.

The third interview took place in the interview room at the Upland Police

Department. Once again, the interview room door was not locked and Detective Duran

assisted with translation. Detective Potts testified he asked most of the questions at the

beginning of the interview. He wanted to find out why Rosas had called Varela. During

the interview, Rosas said she used to work with Varela. She told Detective Potts she

bought gas for the kidnappers' car with her credit card on the night of her kidnapping.

Detective Potts testified that although these circumstances were unusual, he still did not

17 consider Rosas a suspect because victims in past investigations had given suspects money

or put gas in their cars. Detective Potts believed the inconsistencies in Rosas's stories

were the result of her fear and that she was afraid to say what happened because she

knew at least one of the people involved. Detective Potts testified that Rosas was given

breaks before they went to San Diego, she was offered something to drink and eat, and

she used the bathroom at the station.

Detective Potts testified that when he, Rosas, and Detective Duran drove to San

Diego, he had the other officers follow them because, if they located Cate or his body,

they would need someone to drive Rosas back to the station. He also testified that Rosas

did not go home when they returned to the station that night because they had asked her if

they could ask her some more questions, and "[s]he said she [was] willing to stay and talk

to [them]. She had made a phone call to her daughter letting her know she was going to

be late." Detective Potts stated they "allowed [Rosas] to keep her phone with her as we

do with all victims," and he had asked Rosas several times before this if she needed to

call her family and let them know where she was. Detective Potts testified he still

believed Rosas was a victim, and his goal at that point was still to find Cate.

Detective Potts further testified he left Detective Duran alone in the interview

room with Rosas during the beginning of the fourth interview because he felt that she

might feel more "comfortable with somebody Spanish-speaking, of the same heritage, per

se." Detective Potts was not present when Rosas made the statement about being

involved in the kidnapping. When Detective Duran told him about it, Detective Potts

18 instructed him to Mirandize Rosas in Spanish because Detective Potts knew she was

involved and not a victim.

In addition to the testimony of Detectives Duran and Potts, the court

considered─at the request of Rosas's counsel─the video recordings and the transcripts of

the translations of Rosas's interviews. The court questioned Detective Duran's

characterization of his role as a mere translator and commented that this affected the

credibility of his testimony. The court noted that the questioning on inconsistencies in

Rosas's statements started during the second interview and stated that the tone of

questioning during the third interview became "progressively more aggressive,

confrontational." The court also noted there were threats to arrest Rosas if she was lying

and accusations that she was involved in the case, lying or changing her story.

The court then focused on Rosas and stated that "the circumstances [were] that this

[was] not a witness off the street that they brought in to question," and Rosas was "not

even . . . a person of interest"; she was "a victim that ha[d] voluntarily come to them and

[kept] coming back." The court found that Rosas appeared to be a victim "in the eyes of

the officers," and she would so appear to "any reasonable person."

The court also found that "[a]ny reasonable person under the circumstances"

would see Rosas as an "innocent looking, middle aged, recently widowed woman with

five children who claims she's been kidnapped." The court described Rosas as "the

master of cunning and calculation. . . . Every time they tried to catch her in her

inconsistencies and lies, she turn[ed] it around and use[d] it in supporting her theory or

her story of being a victim. And I can give you numerous examples. See how many

19 pages I have tagged. She basically runs with any suggestion with the officers." As an

example, the court stated that Rosas "said she hasn't been threatened. She has come [to

the police station] voluntarily. The minute they ask her . . . very early on, 'Did somebody

threaten you?[,'] she runs with that and at the third interview she says, 'They told me to

keep my mouth shut.' That's why she doesn't divulge. She doesn't tell the truth. She

doesn't tell the whole truth."

The court observed that every time it believed the officers had "hit the line" where

Miranda advisals were necessary, Rosas "[gave] them more ammunition to treat her as a

victim, as [someone who] still deserve[d] to be given another chance to explain herself."

The court found that, "[w]hen you look at the totality of circumstances, the

officers did not cross the line of not advising her of her rights, because at all times she

was still maintaining and she fed into the story that she was a victim of a crime." The

court noted that when Rosas finally made an inculpatory statement by saying she did not

intend to harm Cate, the officers advised her of her Miranda rights. The court

acknowledged that before Rosas's inculpatory statement, the officers told her once in an

angry tone and once in a gentle tone that it was her time and her choice whether she

would be treated as a suspect or a witness. However, the court observed that even with

those questions, the officers never said or believed that Rosas was a suspect.

The court then ruled that "the special circumstances that [Rosas] brought with her,

her ability to manipulate and change and still take the position of a victim, her personal

characteristics, which reaffirmed what she was saying, [are] sufficient for me to find that

there was no violation of Miranda advisement."

20 The court also ruled that Rosas's statements were voluntary. The court specifically

found that Rosas "was under no duress except constant barrage of facing her with her

inconsistencies and asking [her] to tell the truth."

Rosas's counsel argued that when Detective Potts sent Detective Duran to pick her

up, "a reasonable person could look at that as a demarcation point between voluntariness

and involuntariness." Counsel asserted Rosas was not treated like a victim. Counsel also

asserted that while the police provided basic "accoutrements of voluntariness," they never

told her she was free to leave, the officers knew she was lying and was involved, and

Rosas was in fact a suspect.

The court responded that in between the second and third interviews the officers

invited Rosas to call or contact them if she had any questions. The court found that

although the police did not call Rosas before they picked her up, this was not a

demarcation point where Rosas became a suspect.

Following further discussion, the court stated, "[M]y ruling will stand that I do not

find under the circumstances of this case . . . any violation of Miranda advisement.

[Rosas] was treated as a potential witness that may have had some involvement, unknown

involvement, but still a victim of a kidnapping." The court added, "I also don't see any

issues regarding voluntariness of her participation." The court denied Rosas's motion to

suppress, stating her statements would "come in over [her] objection."

21 B. Applicable Legal Principles

1. Miranda rule and the objective custody test

"To protect the Fifth Amendment privilege against self-incrimination, a person

undergoing a custodial interrogation must first be advised of his right to remain silent, to

the presence of counsel, and to appointed counsel, if indigent." (People v. Stitely (2005)

35 Cal.4th 514, 535, italics added, citing Miranda, supra, 384 U.S. at pp. 444, 467-473,

478-479.) "As long as the suspect knowingly and intelligently waives these rights, the

police are free to interrogate him." (Stitely, at p. 535.) Statements obtained in violation

of the Miranda rule are inadmissible to prove guilt in a criminal case. (People v.

Aguilera (1996) 51 Cal.App.4th 1151, 1161 (Aguilera).)

"An interrogation is custodial when 'a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.'" (People v. Leonard

(2007) 40 Cal.4th 1370, 1400 (Leonard), quoting Miranda, supra, 384 U.S. at p. 444.) In

determining whether a person is in custody for purposes of the Miranda rule, the

pertinent inquiry is "whether there is a 'formal arrest or restraint on freedom of

movement' of the degree associated with a formal arrest." (California v. Beheler (1983)

463 U.S. 1121, 1125 (Beheler); accord, Leonard, at p. 1400.)

The test for determining whether a person being questioned by the police is in

custody for purposes of the Miranda rule is an objective test. (Leonard, supra, 40

Cal.4th at p. 1400.) "[T]he initial determination of custody depends on the objective

circumstances of the interrogation, not on the subjective views harbored by either the

interrogating officers or the person being questioned." (Stansbury v. California (1994)

22 511 U.S. 318, 323 (Stansbury).) Thus, "a police officer's subjective view that the

individual under questioning is a suspect, if undisclosed, does not bear upon the question

whether the individual is in custody for purposes of Miranda." (Stansbury, at p. 324.)

However, "an officer's views concerning the nature of an interrogation, or beliefs

concerning the potential culpability of the individual being questioned, may be one

among many factors that bear upon the assessment whether that individual was in

custody, but only if the officer's views or beliefs were somehow manifested to the

individual under interrogation and would have affected how a reasonable person in that

position would perceive his or her freedom to leave." (Id. at p. 325.) "[I]t is the objective

surroundings, and not any undisclosed views, that control the Miranda custody inquiry."

(Stansbury, at p. 325.)

Thus, in determining for purposes of the Miranda rule whether a defendant was in

custody at the time of his or her questioning by the police, the trial court "must first

establish the circumstances surrounding the interrogation" (Aguilera, supra, 51

Cal.App.4th at p. 1161), and then it must "measure these circumstances against an

objective, legal standard: would a reasonable person in the [defendant's] position during

the interrogation experience a restraint on his or her freedom of movement to the degree

normally associated with a formal arrest." (Ibid.)

Courts have identified a number of circumstances that are relevant to the

determination of whether the defendant was in custody at the time of his or her

questioning by the police. (Aguilera, supra, 51 Cal.App.4th at p. 1162.) "Among them

are whether contact with law enforcement was initiated by the police or the person

23 interrogated, and if by the police, whether the person voluntarily agreed to an interview;

whether the express purpose of the interview was to question the person as a witness or a

suspect; where the interview took place; whether police informed the person that he or

she was under arrest or in custody; whether they informed the person that he or she was

free to terminate the interview and leave at any time and/or whether the person's conduct

indicated an awareness of such freedom; whether there were restrictions on the person's

freedom of movement during the interview; how long the interrogation lasted; how many

police officers participated; whether they dominated and controlled the course of the

interrogation; whether they manifested a belief that the person was culpable and they had

evidence to prove it; whether the police were aggressive, confrontational, and/or

accusatory; whether the police used interrogation techniques to pressure the suspect; and

whether the person was arrested at the end of the interrogation." (Ibid.)

"No one factor is dispositive. Rather, we look at the interplay and combined effect

of all the circumstances to determine whether on balance they created a coercive

atmosphere such that a reasonable person would have experienced a restraint tantamount

to an arrest." (Aguilera, supra, 51 Cal.App.4th at p. 1162.) "Even a clear statement from

an officer that the person under interrogation is a prime suspect is not, in itself,

dispositive of the custody issue, for some suspects are free to come and go until the

police decide to make an arrest. The weight and pertinence of any communications

regarding the officer's degree of suspicion will depend upon the facts and circumstances

of the particular case." (Stansbury, supra, 511 U.S. at p. 325.)

24 2. Standard of review

"Whether a defendant was in custody for Miranda purposes is a mixed question of

law and fact." (Leonard, supra, 40 Cal.4th at p. 1400.) In considering a defendant's

claim that his or her statement to the police was inadmissible because it was obtained in

violation of the Miranda rule, "we accept the trial court's resolution of disputed facts and

inferences, and its evaluation of credibility, if supported by substantial evidence."

(People v. Wash (1993) 6 Cal.4th 215, 235.) "Although we independently determine

whether, from the undisputed facts and those properly found by the trial court, the

challenged statements were illegally obtained [citation], we '"give great weight to the

considered conclusions" of a lower court that has previously reviewed the same

evidence.'" (Id. at p. 236.)

On appeal we review the legal correctness of the court's ruling, not the court's

reasoning. (People v. Zapien (1993) 4 Cal.4th 929, 976 (Zapien)).

C. Analysis

Our task is to determine whether, as Rosas contends, she should have been advised

of her Miranda rights before she made her self-incriminating statements during her fourth

interview, which was conducted on the night of October 17-18, 2011. Of critical

importance to our analysis is the undisputed fact that Rosas initiated her contact with law

enforcement on October 11, 2011, when she went to the Montclair Police Department

and reported that she and her friend Cate had been kidnapped, and that she had no idea

what had happened to him. It also undisputed that throughout the first three interviews

(on October 12, 13, and 17) she maintained her story that she was a kidnapping victim.

25 The record supports the court's observation that the tone of questioning during the

third interview, which was conducted by Detectives Potts and Duran at the Upland Police

Station on October 17, became "progressively more aggressive [and] confrontational."

However, this circumstance is not dispositive. (See Stansbury, supra, 511 U.S. at p. 325

["Even a clear statement from an officer that the person under interrogation is a prime

suspect is not, in itself, dispositive of the custody issue, for some suspects are free to

come and go until the police decide to make an arrest."].) Here, the record shows that

Rosas willingly accompanied Detective Potts and another officer to the police station for

that interview, agreed to talk to the detectives there, and Detective Potts offered her a ride

back home when the interview ended. During the third interview, the interview room

door was unlocked, and she was not handcuffed.7

During that third interview, which lasted more than three hours, Rosas told the

detectives the kidnappers made her buy gas for the car with her credit card on the night of

her kidnapping.8 She also told them one of the kidnappers sitting behind her in the car

hit her in the neck and told her she was "not going anywhere," one of the kidnappers

yelled, "[D]on't let her go," and she was afraid because they told her not to "open her

mouth." She told the detectives she knew they were trying to help her.

7 Detective Duran testified that Rosas was free to leave during the third interview, although she was not told this.

8 As previously noted, Detective Potts testified that although these circumstances were unusual, he still did not consider Rosas a suspect because victims in past investigations had given suspects money or put gas in their cars. 26 Rosas agreed during the interview to accompany the detectives to San Diego to

help them find Cate. She never indicated she wanted to return home. On the way back

from San Diego, she made a phone call to her daughter and let her know she was going to

be home late. Rosas did not go home when they returned to the station that night because

the detectives had asked her whether they could ask her some more questions, and she

told them she was willing to stay and talk to them.

As previously discussed, the fourth interview at issue here, which was conducted

by Detective Duran, began at around 11:30 p.m. that same day (October 17, 2011) after

Rosas and the detectives arrived back at the Upland police station and continued into the

early morning on October 18. Nothing in the record suggests Rosas was subjected to any

form of coercion or "'restraint on freedom of movement' of the degree associated with a

formal arrest" (Beheler, supra, 463 U.S. at p. 1125) when the interview began.

At around midnight, Rosas made her first self-incriminating statement when she

told Detective Duran, "The only thing I want to say is that, like I said my intentions were

never to hurt him." After Rosas made additional self-incriminating statements, Detective

Duran again asked her whether she had been kidnapped, stating: "And the other thing I'd

like to know is, you were never kidnapped in the car, you went at your own will." Rosas

responded by again indicating she had been kidnapped. Specifically, she told Detective

Duran, "No just the guy that got the car was the one that told me, don't let that lady go,

don't let her go." She also told the detective that the man told her to give him her purse

and then he grabbed it from her and put it on the steering wheel. Faced with Rosas's

inconsistent statements, Detective Duran continued questioning her and said, "Okay you

27 change the story a little bit each time." Shortly thereafter, Rosas told Detective Duran

that when the kidnappers started beating Cate, she told them not to hurt him, and one of

the men told her to be quiet.

Not long thereafter, at around 12:35 a.m., Detective Potts instructed Detective

Duran to advise Rosas of her Miranda rights, and Detective Duran did so. Rosas waived

her Miranda rights and agreed to continue talking with Detective Duran. Rosas admitted

that she had talked to Varela about her plan to take Cate to Tijuana, that on the night of

the kidnapping Cate did not want to go there, and that she paid Varela $500.

We have already concluded that nothing in the record suggests Rosas was

subjected to any form of coercion or "'restraint on freedom of movement' of the degree

associated with a formal arrest" (Beheler, supra, 463 U.S. at p. 1125) when the fourth

interview began at around 11:35 p.m. on October 17. Rosas had voluntarily agreed to the

interview. Detective Duran was the only officer present during the interview.9 Nothing

in the record suggests Detective Duran placed any restrictions on her freedom of

movement after she made her first self-incriminating statement. Although Detective

Duran pressed Rosas to tell the truth and confronted her with inconsistencies in her story,

he did not use interrogation techniques designed to unduly pressure her.

9 Detective Potts testified he left Detective Duran alone in the interview room with Rosas during the beginning of the fourth interview because he felt she might feel more "comfortable with somebody Spanish-speaking, of the same heritage, per se." Detective Potts also indicated he was not present when Rosas made the statement about being involved in the kidnapping, and he did not hear her statement. 28 Giving great weight to the considered findings and conclusions of the court to the

extent they are supported by substantial evidence, as we must (Wash, supra, 6 Cal.4th at

p. 236), and after reviewing the evidence of the objective circumstances preceding and

surrounding Rosas's fourth interview, we conclude the court properly denied her motion

to suppress because a reasonable person in her same position during the questioning

would not have experienced a restraint on his or her freedom of movement to the degree

normally associated with a formal arrest, and, thus, her statements were not obtained in

violation of her Miranda rights.10 (See Aguilera, supra, 51 Cal.App.4th at p. 1161.)

II. ROSAS'S INSUFFICIENCY-OF-THE-EVIDENCE CLAIM (COUNT 3)

Relying on her own statements to the police that she told Varela and others not to

hurt Cate, Rosas also separately contends her count 3 conviction of assault by means of

force likely to produce great bodily injury (§ 245, subd. (a)(4)) must be reversed because

there is no evidence she intended to aid and abet the assault upon Cate. We reject this

contention.

10 In light of our conclusion, we need not address Rosas's claim she suffered prejudice as a result of the court's denial of her motion to suppress the evidence. Even if we were to assume the court erred in admitting the evidence of Rosas's statements during her fourth interview, we would conclude any such error was harmless under the harmless- beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, because her convictions are supported by the corroborated accomplice testimony−before both juries−of Oscar, David and Garcia. We also need not address Rosas's contention that the court erred in applying the "totality of circumstances" test because we review the legal correctness of the court's ruling, not the court's reasoning. (Zapien, supra, 4 Cal.4th at p. 976.) 29 A. Standard of Review

When assessing a challenge to the sufficiency of the evidence supporting a

conviction, we apply the substantial evidence standard of review, under which we view

the evidence "in the light most favorable to the judgment below to determine whether it

discloses substantial evidence─that is, evidence which is reasonable, credible, and of

solid value─such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v.

Virginia (1979) 443 U.S. 307, 319.) "The same standard of review applies to cases in

which the prosecution relies mainly on circumstantial evidence." (People v. Maury

(2003) 30 Cal.4th 342, 396.)

We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate

the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v.

Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in the

testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34

Cal.4th 1149, 1181.) Thus, "[c]onflicts and even testimony which is subject to justifiable

suspicion do not justify the reversal of a judgment." (People v. Maury, supra, 30 Cal.4th

at p. 403.)

B. Analysis

During her closing argument, the prosecutor acknowledged there was no evidence

to show Rosas "in any way touched [Cate]" during the assault that resulted in his death.

Rosas was prosecuted on a theory of aiding and abetting the assault upon Cate inside his

Buick.

30 "[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the

direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider

and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an

intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus

reus—conduct by the aider and abettor that in fact assists the achievement of the crime."

(People v. Perez (2005) 35 Cal.4th 1219, 1225 (Perez).)

Here, Rosas does not challenge the sufficiency of the evidence supporting the

direct-perpetrator's-actus-reus requirement. She concedes that "[s]omeone applied force

with sufficient strength to produce great bodily injury."

Rather, in seeking reversal of her count 3 assault conviction, Rosas challenges the

sufficiency of the evidence supporting the second requirement: the aider-and-abettor's-

mens-rea requirement. Specifically, she contends "[t]here was no evidence that she

personally intended that force likely to produce great bodily injury be applied [to Cate]."

We reject this contention because the prosecution presented substantial evidence

from which any reasonable trier of fact could find beyond a reasonable doubt that Rosas

"inten[ded] to assist in achieving [the perpetrators'] unlawful ends" (Perez, supra, 35

Cal.4th at p. 1225). By Rosas's own admission after she waived her Miranda rights

during her fourth interview, the transcript of which was read to her jury, she hired Varela

to help her transport Cate to Tijuana against his will and leave him there because she was

mad at Cate for taking advantage of her sexually and financially. Although Rosas

repeatedly claimed during the interview that she did not intend for Varela and the others

to hurt Cate and that she specifically told Varela and the others not to do so, she admitted

31 she told Varela they would tie Cates's legs if he tried to run. Garcia testified he heard

Varela tell Oscar and Pizana inside Cate's Buick before the assault that "Rosas wants this

guy [(Cate)] to get beat up" and she wanted Varela to take him to Tijuana and drop him

off because he did not "have papers to come back."

The prosecution's evidence regarding Rosas's conduct during the assault also

supports the jury's finding that she intended that Varela and his cohorts assault Cate.

Garcia testified that Pizana opened a back passenger seat door of the Buick and Rosas got

out. Pizana then entered the back seat and repeatedly punched Cate in the back. Varela,

Tafich, Garcia and David then joined Pizana in punching Cate. Oscar testified that the

doors of the Buick were open during the assault and Rosas was "[j]ust standing there"

watching what was happening inside the car as it rocked back and forth. Rosas said

nothing during the assault and did not try to run away. Her insufficiency-of the-evidence

claim is without merit.

III. DEFENDANTS' SECTION 654 CLAIMS (COUNTS 2 & 3)

Last, both defendants contend the sentences imposed for their convictions of

kidnapping (count 2) and assault by means of force likely to produce great bodily injury

(count 3) should be stayed under section 654. For reasons we shall explain, we modify

the judgments to stay under section 654 the execution of the sentences imposed for

Rosas's and Varela's count 2 kidnapping convictions, but we affirm the sentences

imposed for their count 3 convictions of assault by means of force likely to produce great

bodily injury.

32 A. Background

As pertinent here, over defendants' section 654 objections, the court (1) sentenced

Rosas to a determinate nine-year prison term consisting of an eight-year term for her

count 2 kidnapping conviction, plus a consecutive one-year term for her count 3 felony

assault conviction; and (2) sentenced Varela to a determinate 15-year term consisting of

an eight-year term for his count 2 kidnapping conviction, plus a consecutive one-year

term for his count 3 felony assault conviction, plus consecutive three-year terms for his

count 2 and count 3 great bodily injury enhancements.

B. Section 654

Section 654, subdivision (a) provides in part: "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."

Section 654 "precludes multiple punishment for a single act or omission, or an

indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591) and ensures

the defendant's punishment will be commensurate with his or her criminal culpability

(People v. Kramer (2002) 29 Cal.4th 720, 723). If a defendant suffers two convictions

and punishment for one is barred by section 654, "that section requires the sentence for

one conviction to be imposed, and the other imposed and then stayed." (Deloza, at p. 592,

italics added.)

Whether a course of conduct is indivisible for purposes of section 654 depends on

the intent and objective of the defendant, not the temporal proximity of the offenses.

33 (People v. Hicks (1993) 6 Cal.4th 784, 789.) Generally, if all the criminal acts were

incident to one objective, then punishment may be imposed only as to one of the offenses

committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Garcia (1995)

32 Cal.App.4th 1756, 1781.)

1. Count 2

Defendants contend the sentences imposed for their count 2 kidnapping

convictions should be stayed under section 654 because the prosecution's theory of first

degree murder was felony murder based on the predicate felony of kidnapping.

As the People properly concede, felony murder was the sole theory of murder

under which this case was prosecuted, and section 654 precludes imposition of separate

prison terms for the felony murder and the kidnapping because the kidnapping is the

predicate offense for the felony murder. (See People v. Montes (2014) 58 Cal.4th 809,

898.) Accordingly, the eight-year sentences imposed for defendants' kidnapping

convictions must be stayed under section 654.

Varela's three-year count 2 great bodily injury enhancement also must be stayed

under section 654. "Where the base term of a sentence is stayed under section 654, the

attendant enhancements must also be stayed." (People v. Bracamonte (2003) 106

Cal.App.4th 704, 709, disapproved on other grounds by People v. Gonzalez (2008) 43

Cal.4th 1118, 1130, fn. 8.) Witkin explains that "[t]he stay of a sentence automatically

stays a sentence enhancement imposed with it, because the enhancement cannot be

34 imposed independent of the underlying sentence." (3 Witkin & Epstein, Cal. Criminal

Law (4th ed. 2012) Punishment, § 271, p. 429].)

Accordingly, the judgment must be modified to stay under section 654 both the

eight-year sentence the court imposed for Rosas's count 2 kidnapping conviction and the

15-year sentence the court imposed for Varela's count 2 kidnapping conviction and his

count 2 great bodily injury enhancement.

2. Count 3

Defendants also contend the consecutive one-year sentences imposed for their

count 3 convictions of assault by means of force likely to produce great bodily injury

should be stayed under section 654 because the violent assault on Cate was an element of

his kidnapping (count 2), and, thus, the assault and kidnapping were part of an indivisible

course of conduct.

We reject this contention because substantial evidence supports the court's implied

findings that in committing the kidnapping and felony assault, defendants acted with

separate intents and objectives. Section 654 "cannot, and should not, be stretched to

cover gratuitous violence or other criminal acts far beyond those reasonably necessary to

accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)

Here, the brutal, bludgeoning assaults on Cate inside his Buick that resulted in his death

(as discussed, ante, in the factual background) were acts of gratuitous violence that were

"far beyond those reasonably necessary to accomplish the original offense" (ibid.) of

kidnapping Cate with the objective of taking him to Tijuana and leaving him there. The

evidence of this gratuitous violence supports the court's implied finding that defendants

35 harbored separate intents and objectives in kidnapping and assaulting Cate. Accordingly,

we conclude the kidnapping and felony assault were not an indivisible course of conduct

for purposes of section 654, and the court did not err in denying defendants' requests to

stay under that section the sentences it imposed for their convictions of assault by means

of force likely to produce great bodily injury.

DISPOSITION

The judgments entered against Rosas and Varela are modified to stay under

section 654 the execution of the sentences the court imposed for their count 2 kidnapping

convictions, including the count 2 great bodily injury enhancement the court imposed on

Varela. In all other respects the judgments are affirmed. The matter is remanded to the

superior court with directions that the clerk prepare amended abstracts of judgment to

reflect the modifications to the judgments and to forward certified copies of the amended

abstracts to the Department of Corrections and Rehabilitation.

NARES, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.