Martinez

Upon trial by jury, defendants were each convicted of 16 criminal offenses and sentenced to state prison. Defendant Martinez received a sentence of 47 years plus 2 consecutive life terms; defendant Chavez, 54 years plus 2 consecutive life terms. Both defendants have appealed, essentially contending that the enormity of these sentences is due to improper conviction under a statute that was not meant to apply to their conduct, and to numerous instances of double conviction and punishment in violation of Penal Code section 654. 1 Because we agree in part with these contentions, we reverse the judgment in part, as set forth below.

*586 This case arises from crimes committed in the home of Donald and Martha Goodfellow during the hours of 3 to 4 on the morning of February 28, 1982. At about 3, defendant Chavez rang the Goodfellows’ doorbell, and when Donald answered, forced his way into the living room by holding a screwdriver to Donald’s back. Defendant Martinez then entered and took control of Donald by holding his own screwdriver to Donald’s neck. Chavez went into the bedroom and told Martha that if she screamed her husband would be hit or shot by Martinez. Chavez took an…

I concur and dissent.

I agree with the majority in all parts of the opinion except for part II, which relates to the kidnaping of Mrs. Goodfellow. I would affirm the convictions for her kidnaping based on my view of the totality of the circumstances facing her. She had been confined, assaulted and raped for a considerable period of time. Until the perpetrators had left the house, or she *609 had escaped from the house or to the safety of the policemen or her husband, her confinement had not ended. It does not seem realistic to me to divide her confinement as a victim of rape and robbery from her confinement as a hostage under the sequence of events present in this case. While the motives of the defendants may have changed after the rapes, Mrs. Goodfellow’s confinement did not, and thus, under either theory advanced by the majority, she was held as a hostage.

Respondent’s petition for a hearing by the Supreme Court was denied February 29, 1984.

Assigned by the Chairperson of the Judicial Council.

KINGSLEY, Acting P.J.

Upon trial by jury, defendants were each convicted of 16 criminal offenses and sentenced to state prison. Defendant Martinez received a sentence of 47 years plus 2 consecutive life terms; defendant Chavez, 54 years plus 2 consecutive life terms. Both defendants have appealed, essentially contending that the enormity of these sentences is due to improper conviction under a statute that was not meant to apply to their conduct, and to numerous instances of double conviction and punishment in violation of Penal Code section 654. [1] Because we agree in part with these contentions, we reverse the judgment in part, as set forth below.

This case arises from crimes committed in the home of Donald and Martha Goodfellow during the hours of 3 to 4 on the morning of February 28, 1982. At about 3, defendant Chavez rang the Goodfellows' doorbell, and when Donald answered, forced his way into the living room by holding a screwdriver to Donald's back. Defendant Martinez then entered and took control of Donald by holding his own screwdriver to Donald's neck. Chavez went into the bedroom and told Martha that if she screamed her husband would be hit or shot by…