Don’t be taking naps during a robbery! Counting terms of imprisonment in 2 statutes but only 1 “act”

Jose Marcos Barrios hijacked I. Hsiung and his car for a robbery. Barrios took the cash from Hsiung’s wallet and ordered Hsiung to drive them both to ATMs for more cash. This nighttime affair lasted some two hours. It included freeway travel and a long interval of inaction while Barrios persisted in holding Hsiung. Barrios awaited the stroke of midnight in hopes it would bring Hsiung a new daily ATM withdrawal limit and so would allow Barrios to rob Hsiung of yet more cash. Police rescued Hsiung after he texted for help.

The jury convicted Barrios of several crimes. Pertinent now are two: kidnapping for robbery and robbery. Each conviction, with its gun enhancement, meant a separate sentence of 25 years to life plus 10 years. (Pen. Code, § 12022.53, subd. (b).) The court did not stay either sentence, but ordered them to be consecutive: 50 years to life plus 20 years. The whole sentence, including a five-year prior conviction enhancement
(Pen. Code, § 667, subd. (a)(1)), was 75 years to life.

If many offenses were incident to one objective, Barrios may be punished for any of the offenses but not for more than one. (People v. Goode (2015) 243 Cal.App.4th 484, 492; Pen. Code, § 654.) Here, robbery was an incident to Barrios’s kidnapping for robbery. Because the kidnapping had no objective but robbery, the robbery sentence and its enhancement must be

Full case here: People v. Barrios (Cal. Ct. App. – Feb. 23, 2021),

Anton Vialtsin, Esq.
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