California, United States of America
The following excerpt is from People v. Kimia, A147709 (Cal. App. 2019):
8. We find unpersuasive appellant's reliance on People v. Nunez (2012) 210 Cal.App.4th 625. In that case, like the present one, the defendant was convicted of assault with a deadly weapon and carjacking. (Id. at p. 629.) The appellate court found that because the evidence showed that the "hammer use and taking of the car were contemporaneous if not simultaneous," the assault was incidental to the carjacking and defendant could not be separately punished for both offenses. (Id. at p. 630.) In Nunez, however, the evidence showed that the defendant, who was found legally insane at trial, heard voices telling him to " 'take the car' " and " 'get in the car.' " (Id. at p. 628.) The court found it apparent from the evidence that the defendant wielded the hammer to take the car and the victim was not going to peacefully surrender the car. (Id. at p. 630.) The court further concluded that use of the hammer was not a gratuitous act of violence, nor was it motivated by animus unrelated to the taking of the car. (Ibid.) The underlying facts in this case are quite distinct from those in Nunez, and, as discussed, support the trial court's separate punishments.
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