People v. Smith

Defendant Richard Allen Smith appeals a judgment of conviction after a jury found him guilty of first degree (residential) robbery (Pen. Code, §§ 211 and 212.5, subd. (a)), kidnapping for robbery (§ 209, subd. (b)), assault with a deadly weapon (§ 245, subd. (a)(1)) and auto theft (Veh. Code, § 10851, subd. (a)). Various allegations relating to weapons use (§§ 1192.7, subd. (c)(23) and 12022, subd. (d)) and prior convictions/prison terms (§§ 667.5, subd. (b) and 1203, subd. (e)(4)) were also found to be true. Smith was sentenced to life imprisonment on the kidnapping count plus consecutive determinate terms on the robbery and auto theft counts and the section 667.5 enhancement. Sentence on the assault with a deadly weapon count was stayed pursuant to section 654.

Smith’s primary argument is that he was improperly convicted of kidnapping for the purpose of robbery. Following California Supreme Court precedent on the issue, we disagree. As to his second argument, however, we conclude section 654 prohibits separate punishment on the auto theft count in addition to the robbery and kidnapping-for-robbery charges. Accordingly, we modify the judgment to stay execution of…