Opinion
G043611 Super. Ct. No. 07CF1858
09-13-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES ACOSTA, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed in part, reversed in part, and remanded.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
James Acosta was charged by information with a total of 14 offenses. Seven crimes were alleged to have been committed on December 6, 2006, against Amy K. and her property, namely first degree burglary (count 1), kidnapping to commit robbery (count 2), first degree robbery (count 3), sexual battery by restraint (count 4), false imprisonment by violence (count 5), making criminal threats (count 6), and car theft (count 7). Counts 8 and 9 alleged first degree robbery and first degree burglary, both of which took place on January 17, 2007 and were committed against Trang Nguyen and his property. Acosta was also charged with two counts of receiving stolen property (counts 10 & 14), the April 27, 2007 first degree burglary of a residence inhabited by Kim Le and Allison Moriya (count 11), the May 3, 2007 first degree burglary of a residence inhabited by Alijan Hasmik (count 12), and the May 3, 2007 first degree burglary of a residence inhabited by Jeanne Shobe (count 13).
A jury convicted him of count 1 and counts 3 through 14. The trial court dismissed count 2 due to the jury's inability to reach a verdict on that count. The court found true allegations Acosta had served three prior prison terms (Pen. Code, § 667.5, subd. (b)) and been convicted of two prior serious felonies (§ 667, subd. (a)), prior convictions that also qualified as "strikes" within the meaning of the "Three Strikes" law (§§ 667, subds. (d)-(e)(2)(A), 1170.12, subds. (b)-(c)(2)(A)).
All further undesignated statutory references are to the Penal Code.
The court sentenced Acosta to seven consecutive indeterminate terms of 25 years to life, plus a determinate term of 66 years. To arrive at this sentence, the court selected count 3 as the principal term and imposed an indeterminate term of 25 years to life for that count. The court then imposed consecutive terms of 25 years to life on counts 4, 6, 8, 11, 12 and 13, concurrent terms of 25 years to life on counts 1, 5, 7, and 9, which were ordered stayed pursuant to section 654, and a consecutive life term on count 14 that was also stayed pursuant section 654. The court granted Acosta's motion to strike priors with respect to count 10 and imposed a consecutive six-year term for that count, and added consecutive five-year terms to counts 3, 6, 8, 11, 12 and 13 for each prior serious felony conviction.
On appeal, Acosta contends the court made the following sentencing errors: (1) the court erroneously applied the test utilized in sentencing under section 654 instead of the test applied under the Three Strikes law (§§ 667, subd. (c)(6), 1170.12, subd. (a)(6)), "misapprehended the facts," and reached the wrong conclusion about its sentencing discretion when imposing consecutive sentences on counts 4 and 6; (2) failed to apply section 654 to the sentence imposed on count 6; (3) erred by applying section 654 to impose concurrent sentences on counts 1, 5, 7, 9, and 14; and (4) the abstract of judgment must be corrected to properly reflect the court's imposition of 25 years to life on count 13.
The Attorney General concedes the final issue, and we agree the abstract of judgment must be corrected. However, we need not order the abstract corrected at this point because we conclude the trial court misapprehended its sentencing discretion with respect to counts 4 and 6. Consequently, the clerk of the court will have the opportunity to correct the abstract of judgment at the time of resentencing. In all other respects, the judgment is affirmed.
I
FACTS
We limit the statement of facts to those counts pertinent to the appeal.
Counts 1-7, and 14
On December 6, 2006, Amy K. awoke to find Acosta in her bedroom. He had a nylon stocking over his head, wore gloves and warned Amy to keep quiet. He held a screwdriver to the back of her neck, ordered her to get out of bed, and forced her to walk into her living room. Once in the living room, Acosta demanded she get to her knees, cross her feet, and put her hands on her head. He asked where she kept her valuables and started to rummage through her purse. He removed Amy's credit and debit cards from her purse and asked if she owned a car. She said she did not. After searching through her living room, Acosta led Amy back to the bedroom, forced her to lie face down on the bed, bound her hands behind her back, stuffed a glove into her mouth, and placed a pillow case over her head. She could hear him opening and closing cabinets and drawers in the bedroom. When he returned to her, Acosta told Amy to focus on things that were important to her. He pulled down her pants, spread and groped her buttocks, and rubbed her bare legs. He then pulled up her pants, but twice pulled them down to again fondle her. During the course of his fondling, Acosta told Amy to stay quiet or he would snap her neck, and said he was not a pervert but "just trying to make a living."
After Acosta pulled up Amy's pants for the final time, he left the bedroom but returned after finding her car keys and garage door opener. Acosta accused Amy of lying about the car, but quickly walked out of the bedroom. When she heard him walking downstairs, she decided to try and escape. She loosened her restraints, locked the bedroom door, and jumped from her second story window. She injured her ankle, but she managed to walk to a neighbor's home and summon the police. While the police were enroute, Amy saw Acosta drive her car away from the area. She later discovered he had broken her front window, taken numerous personal possessions, and knocked the bedroom door out of its frame. Months later, Acosta was arrested while driving Amy's car.
Counts 8 & 9
One early afternoon in January 2007, firefighters and police officers responded to a 911 emergency call directing them to a home shared by 84-year-old Thuy Nguyen and his daughter, Trang. The emergency team found Thuy standing in the middle of the home's living room with his hands bound behind his back by nylon restraints. He appeared dazed and disoriented. A firefighter took Thuy outside and cut the nylon restraints. When police officers entered the home to search for suspects, they discovered someone had broken the kitchen window with a "screwdriver or similar type of pry tool." Trang later testified everything was fine when she left for work that morning, but when she came home she discovered someone had taken a bag of coins and cash from her father's wallet. Forensic tests linked Acosta's DNA to the nylon restraints.
II
DISCUSSION
Interplay of the Three Strikes law and section 654
We begin our analysis with the California Supreme Court's decision in People v. Hendrix (1997) 16 Cal.4th 508, 510 (Hendrix).)There, the defendant approached four people, two married couples, who were seated together during a fundraiser and said, "'This is a holdup. Don't no one move and no one will get hurt.'" He extracted money from two men in the group. The two women said they had no money. The defendant left the room, then returned briefly to warn his victims to stay put before leaving the room for a final time. (Id. at pp. 510-511.) The trial court sentenced him to four consecutive terms of 25 years to life, pursuant to section 667, subdivision (e)(2)(A)(ii), a consecutive 20-year term for firearm use enhancements and 15 years for prior serious felony convictions. (Ibid.)The Court of Appeal remanded the case in light of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, but also "held that imposition of consecutive sentences is not mandatory but merely discretionary, when a defendant has suffered two or more prior felony convictions within the meaning of [section 667] subdivision (d) and is convicted of multiple felony convictions based on a single act of violence against multiple victims." (Hendrix, supra, 16 Cal.4th at p. 511.)
The Supreme Court granted the Attorney General's petition for review to decide "whether consecutive sentences are mandatory under section 667, subdivision (c)(6), (c)(7), or subdivision (e)(2)(B), when the defendant has two or more prior felony convictions within the meaning of subdivision (d), and commits serious or violent felonies against multiple victims at the same time." (Hendrix, supra, 16 Cal.4th at p. 511.) After reviewing the pertinent statutory language, the court held, "when a defendant is convicted of two or more current serious or violent felonies 'not committed on the same occasion, and not arising from the same set of operative facts,' not only must the court impose the sentences for these serious or violent offenses consecutive to each other, it must also impose these sentences 'consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.' By implication, consecutive sentences are not mandated under [section 667] subdivision (c)(7) if all the serious or violent current felony convictions are 'committed on the same occasion' or 'aris[e] from the same set of operative facts.'" (Hendrix, supra, 16 Cal.4th at p. 513.) Because the parties conceded all of the defendant's current convictions "were 'committed on the same occasion,'" the trial court "retained discretion to sentence defendant either concurrently or consecutively." (Id. at p. 514.)
Next, the California Supreme Court considered the meaning of the phrase "'committed on the same occasion.'" (People v. Deloza (1998) 18 Cal.4th 585, 591, (Deloza).)In Deloza, the defendant entered a furniture store with an armed companion. The companion pointed a gun at a salesperson while the defendant took $1,200 from the cash register, $200 from the wallet of another salesperson, and a female customer's purse, before both men fled the scene. (Id. at p. 589.) The Deloza court explained, "The phrase 'committed on the same occasion' is commonly understood to refer to at least a close temporal and spatial proximity between two events, although it may involve other factors as well." (Id. at p. 594.) Because the defendant's crimes were "committed in one location, were apparently brief in duration, [and] were committed essentially simultaneously against the same group of victims," the court had no trouble finding the crimes "were clearly committed on the 'same occasion'" within the meaning of section 1170.12, subdivision (a)(6) and (7) (see also § 667, subd. (c)(6) and (7)), and consecutive sentencing was not mandated. (Deloza, supra, 18 Cal.4th at pp. 595-596.)
As yet, the Supreme Court had not considered the other operative phrase, i.e., felonies "not arising from the same set of operative facts." (§ 667, subd. (c)(6).) Instead, the appellate court in People v. Durant (1999) 68 Cal.App.4th 1393 (Durant) first considered the issue in a case in which the defendant, while under police surveillance, attempted to burglarize two condominiums in a single complex and burglarized a nearby house, all within minutes of each other. (Id. at pp. 1397-1399.) The trial court concluded it had discretion under the Three Strikes law to sentence the defendant to concurrent terms for the burglary and two attempted burglary convictions. (Id. at p. 1400.) The appellate court reversed and remanded for resentencing.
The Durant court applied the rules of statutory construction and conducted a review of case authorities before addressing the issue of what constitutes crimes "arising from the same set of operative facts." (§ 667, subd. (c)(6).) Ultimately, the court held, "the elements and nature of a charged crime as being continuous or complete as defined for purposes of prosecution are additional factors the court must consider in determining whether multiple current crimes were committed on the 'same occasion' and arose from the 'same set of operative facts' when the offenses are committed more than seconds apart." (Durant, supra, 68 Cal.App.4th at pp. 1405-1406.) Acknowledging the fact that the trial court had not had the benefit of the Hendrix and Deloza decisions and apparently relying on cases interpreting section 654, the appellate court nevertheless concluded Durant had committed three separate offenses because the two attempted burglaries were completed before the commission of the burglary. (Id. at p. 1407.) In essence, each offense was distinct even though they were committed in sequence and close together in time. (Id. at pp. 1405-1407.)
In Lawrence, the California Supreme Court turned its attention to the definition of the phrase the "same set of operative facts." (People v. Lawrence (2000) 24 Cal.4th 219, 230-234, (Lawrence).) Citing with approval the Court of Appeal's decision in People v. Durant, supra, 68 Cal.App.4th 1393, the California Supreme Court held, "We read the mandatory consecutive-sentencing provision of the three strikes law as follows: If there are two or more current felony convictions 'not committed on the same occasion,' i.e., not committed within close temporal and spacial proximity of one another, and 'not arising from the same set of operative facts,' i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted, then 'the court shall sentence the defendant consecutively on each count' pursuant to subdivision (c)(6). Conversely, where a sentencing court determines that two or more current felony convictions were either 'committed on the same occasion' or 'aris[e] from the same set of operative facts' as we have construed those terms in Deloza and the instant case, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court's sound discretion." (Lawrence, supra, 24 Cal.4th at p. 233.)
Section 654 and the Three Strikes Law
Initially, the Courts of Appeal divided over the issue of "whether the analysis for determining if [section 667] subdivision (a)(6) and (7) requires consecutive sentencing is coextensive with the analysis for determining if section 654 permits multiple punishment." (Deloza, supra, 18 Cal.4th at p. 592, fn. omitted.) Deloza put the matter to rest: "[S]ection 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively. Rather, if a defendant commits two crimes, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, whether concurrent or consecutive. [Citation.] Thus, the question of whether sentences should be concurrent or consecutive is separate from the question of whether section 654 prohibits multiple punishment. [Citations.]" (Deloza, supra, 18 Cal.4th at p. 594.) The analysis required under each sentencing provision is not coextensive to the other, but courts are required to apply section 654 in cases where concurrent terms are permissible under the Three Strikes law.
Section 654, provides, in pertinent 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." (§ 654, subd. (a).) The statute seems clear enough. However, as the California Supreme Court pointed out, "Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an 'act or omission,' there can be no universal construction which directs the proper application of section 654 in every instance." (People v. Beamon (1973) 8 Cal.3d 625, 636-637.)
In Neal v. State of California (1960) 55 Cal.2d 11 (Neal), the court held, "[f]ew if any crimes . . . are the result of a single physical act. 'Section 654 has been applied not only where there was but one "act" in the ordinary sense . . . but also where a course of conduct violated more than one statute . . . .'" (Id. at p. 19.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Ibid.)
The "intent and objective" test has had its critics. (See Neal, supra, 55 Cal.2d at p. 24 (dis. opn. of Schauer, J.); People v. Beamon, supra, 8 Cal.3d at p. 637.) In fact, the California Supreme Court went so far as to observe that but for the effect of stare decisis, it might have adopted a different test, one "truer to the language of section 654 and its purpose. . . ." (People v. Latimer (1993) 5 Cal.4th 1203, 1212.) Nevertheless, the Latimer court upheld previous case law, stating, "[o]ur refusal to overrule Neal, however, must not be construed as an endorsement of its wisdom. (Id. at p. 1216.) Thus, the determination of whether separate crimes may be separately punished is essentially a factual one, which is left undisturbed on appeal if supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162-163; People v. Cleveland (2001) 87 Cal.App.4th 263, 268.)
With these principles in mind, we turn to the record of the trial court's imposition of sentence, which we set out in detail in an effort to simplify the issues.
Sentencing Hearing
Following the court trial on the truth of the multiple prior felony conviction allegations, the court proceeded directly to sentencing. The prosecutor argued Acosta faced a maximum term of 300 years to life, and that the nature and extent of Acosta's criminal record merited the maximum punishment. The court inquired of the prosecutor, "What is your position in regard to counts 1 and 3 under the Hendrix test," referring to the California Supreme court's decision in Hendrix, supra, 16 Cal.4th 508, the prosecutor responded, "Under count 1, I believe it's [section] 654." The court stated, "We don't technically call it [section] 654 under the Third Strike law. We use — but it's under the test which Hendrix gives us, because the court is very clear that [section] 654 does not apply to Third Strike sentencings. [¶] So I want the record to be clear, but I think what you're saying is that mandatory consecutive sentencing is not required for that." The prosecutor replied, "That's correct, you honor. So I do not think count 1 is required by the court to be a consecutive sentence." The prosecutor believed counts 4, 5, and 6 arose from "the same occasion, the same operative facts," but argued the court retained jurisdiction to impose consecutive sentences for those counts.
Acosta's criminal history begins in 1982 with an auto theft. Over the years, he has accumulated several convictions for drug and/or theft related offenses, including convictions in 1992 and 1994 for first degree burglary.
--------
The court and counsel discussed when the crimes of false imprisonment by violence (count 5) and criminal threats (count 6) were completed for sentencing purposes and counsel's understanding of how to apply both section 654 and Three Strikes sentencing law under the factual circumstances presented. Then defense counsel requested the court strike priors for sentencing purposes, pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497, and there was a brief discussion about restitution before the court continued with the imposition of sentence.
The court acknowledged Three Strikes sentencing case law, including Hendrix, supra, 16 Cal.4th 508, Deloza, supra, 18 Cal.4th 585, and Lawrence, supra, 24 Cal.4th 219 and indicated it had consulted a popular Three Strikes sentencing manual. The court analogized Acosta's case to People v. Jenkins (2001) 86 Cal.App.4th 699 (Jenkins), stating, "The Jenkins case is the case which I think most resembles the situation that are the underlying facts of counts 1 through 6. [¶] In [Jenkins]. . . the defendant breaks into a house. [He] wants to attack a woman. She locks her door. He then goes downstairs to get a knife, comes back upstairs to attack her. Then there are other people who then enter the house. He attacks them and eventually is dealing with both the attempted attacks in the upstairs bedroom and the attacks downstairs. [¶] [The Jenkins court] found that they did — that these facts did not occur on the same occasion and that they discuss that test is in the disjunctive, so it — so for the court not to be required to impose, the court could find it in either of the tests not committed on the same occasion or not arising from the same set of operative facts."
Analogizing the facts in Jenkins with the crimes committed against Amy K., the court explained, "when the defendant has gone back down — or when he has left, for lack of a better term — he takes her downstairs, does things, and then brings her back upstairs, ties her up. At that point very clearly he is working with a different intent, a different set of operative facts. He's doing different things than just committing thefts at that point. [¶] In light of that, the court will sentence the defendant on count 3 separately than he will on — than the court will on counts 4, 5, and 6."
The court returned to the subject of Acosta's motion to strike priors for sentencing purposes and granted it with respect to count 10, denying the motion with respect to all other counts due to "case law" and Acosta's lengthy criminal record. Returning again, to the imposition of sentence, the court continued, "So for count 3, then, the court imposes the sentence of 25 years to life. The court will follow the [section] 654 language, but if the court is inaccurate on that, then the court would intend to impose a concurrent sentence as to count 1, but the court will impose 25 years to life and then stay that pursuant to [section] 654 as the — those facts do — were committed on the same occasion and arose from the same set of operative facts.
"For counts 4, 5, and 6, the court believes that count 4 and count 6 arise from different sets of operative facts, that the threat to snap her neck was a different situation, that the sexual battery had completely ended at that point. So the court will impose 25 years to life as to count 4, 25 years to life as to count 6.
"Count 5, the court will sentence and then stay, pursuant to [section] 654 a sentence of 25 years to life. The court's previous comment of — that if the court is inaccurate in regard to [section] 654, the court would intend to impose a concurrent sentence as to count 5.
"As to count 7. . . [¶] . . . [¶] . . . The court would impose and stay, pursuant to [section] 654, a 25-year-to-life sentence as to that.
"As to count 8, that is a separate victim on a separate date . . . . The court will impose 25 years to life as to count 8, then would stay sentencing on count 9 of 25 years to life — impose and then stay that.
"As to count — the court will come back to count 10.
"As to count 11, that arises from a separate set of operative facts, having occurred on April 27th. The court imposes 25 years to life.
"As to count 12, that is a separate set of operative facts. The court will impose 25 years to life.
"Count 13 again is a separate victim, separate set of operative facts, separate occurrence. The court will impose 25 years to life.
"The court will sentence and then stay a 25-year-to-life sentence as to count 14, as that arose from the same set of operative facts that were the subject of other burglaries and robberies that the court imposed sentence on.
"On the license plate, the court is mindful that the court has the ability to strike strikes as to counts. The court is examining the totality of this sentence, examining the value of the property that was taken in that situation, and I believe that the case of People v. Garcia which is 20 Cal.4th at 490 — that the court has the ability to strike strikes as to an individual count.
"The court believes that the interests of justice are best served based on the fact that that offense was committed to facilitate the theft that had occurred in counts 1 and 7, and so the court believes that it is appropriate to sentence the defendant to a determinant sentence. The court will strike one of the strikes, sentence the defendant to the upper term, finding that the ongoing criminal activity of the defendant, the increasing seriousness of this, that an upper term sentence is appropriate. The court will sentence three years and then order that doubled to six years."
"What is the People's position in regard to the application of the [section] 667(a) as to each count?
"[The prosecutor]: Your honor, the People believe that the [section] 667(a)'s should be applied to each count that is a serious felony and that's under People v. Williams, 34 Cal.4th 397.
"[The court]: What is the defense position?
"[Defense counsel]: The defense position is that they can only be applied once for a maximum of ten years."
The court took a brief recess to research this issue and then concluded, "The court would then impose ten years as to each of the counts in which a sentence would be imposed, so that would be as to counts 3 . . . [¶] . . . [¶] 6, 8 , 11, 12 and 13. [¶] The court will impose and then strike each of the [section] 667.5, [subdivision] (b) priors." The court went on to calculate the appropriate amount of custody credits, imposed various fines and fees, and ordered Ruiz to pay $9,788 in direct victim restitution.
1. Imposition of Consecutive Sentences on Counts 4 & 6
Although the trial court said it was "very clear that [section] 654 does not apply to third strike sentencing[]," the court made repeated references to section 654 during the sentencing hearing. From these facts Acosta concludes the court misapprehended its sentencing discretion under the Three Strikes law with respect to counts 4 and 6. We think it may have.
The court's reliance on Jenkins, supra, 86 Cal.App.4th 699 is instructive. In Jenkins, the defendant committed attempted murder against one victim and aggravated assault upon another, in addition to other crimes involving different individuals. With respect to the meaning of the term "'committed on the same occasion,'" the Jenkins court noted, not only is "close temporal and spatial proximity between two or more events" important to our analysis, other factors such as "whether the criminal activity was interrupted, whether there was any event that could be considered to separate one event from another event, and whether the elements of one offense have been satisfied in a manner to render that offense completed before the commission of further criminal acts constituting additional and separately chargeable crimes." (Id. at p. 706.) Furthermore, "the term 'same set of operative facts' means that the two or more separate offenses at issue must share common acts or criminal conduct that serves to establish the elements of each offense," although "different operative facts could well be involved in a situation where the elements of one offense were completed before the commission of other criminal acts that constituted the elements of the other separately chargeable offense or offenses, even where the different offenses occurred close to proximity and in time. (Ibid., citing Lawrence, supra, 24 Cal.4th 226-229, 233.)
Under the facts presented, the Jenkins court concluded the defendant's crimes were not committed on the same occasion and did not arise under the same set of operative facts. True, the crimes were committed in the same home and within minutes of each other, but the assault had been completed before the attempted murder and the defendant's criminal conduct had been interrupted for a significant time between them. (Jenkins, supra, 86 Cal.App.4th at p. 707.)
The facts presented here are distinguishable. As noted, Acosta used a screwdriver pressed to Amy's neck to force her out of bed and into her living room. Once there, he demanded her valuables and rummaged through her things. He then forced her back into the bedroom and down on her bed. Once he had her down on the bed, Acosta bound her hands behind her back, stuffed a glove into her mouth, and placed a pillow case over her head. With Amy bound and gagged, Acosta committed a sexual assault. During the assault, Acosta told her to focus on the things in life that were important to her, and he threatened to snap her neck if she made noise. He rubbed her legs, laid on top of her, put his mouth on her neck, and told her he was just trying to make a living. After this series of events, he left the bedroom, found her car keys and garage door opener, returned to the bedroom to accuse her of lying, left her home and stole her car.
As the Durant court noted, "when a robbery is charged, its continuous nature, its elements and the facts used to support those elements are the 'operative facts' underlying the commission of that crime. If another offense is committed while the facts underlying that robbery are unfolding, it will necessarily arise from the same set of operative facts as the original robbery." (Durant, supra, 68 Cal.App.4th at pp. 1405-1406.) Here, the robbery continued to unfold while Acosta committed sexual battery and made criminal threats. The crimes overlap to such an extent we are compelled to conclude they arose from same set of operative facts. Furthermore, all three serious or violent felonies were committed against the same victim, within her home, and relatively close in time. They shared common acts or criminal conduct. In fact, the criminal threat facilitated the sexual battery. Therefore, under Deloza, Lawrence, and Jenkins we conclude the court retained discretion to impose concurrent terms. The prosecutor conceded as much and we agree with this concession. Of course, our determination does not mean the trial court must impose concurrent terms. As noted above, the court retains the discretion to impose consecutive sentences even when concurrent terms are permissible under the Three Strikes law.
2. Imposition and Stay of Concurrent Terms for Count 6
Acosta also contends the court should have stayed sentence for the criminal threat (count 6) under section 654. He concedes section 654 does not apply when consecutive sentences are mandated under the Three Strikes law. (People v. Danowski (1999) 74 Cal.App.4th 815, 823), but argues that when the court retains discretion to impose concurrent terms, section 654 is applicable. We disagree. We find it inoperative here.
The trial court concluded Acosta was "working with a different intent" when he moved Amy from her bedroom, took possession of her things, then moved her back into the bedroom to commit a sexual assault and threaten her life. With Amy bound and overpowered, the threats Acosta made constitute evidence a different state of mind, i.e., the intent to do more than commit theft and sexual assault. Under the "intent and objective" test, section 654 is inapplicable to the sentence imposed on count 6.
3. Abuse of Discretion in Imposition of Concurrent Sentences for Counts 5, 7, and 9
Acosta argues the court's confusion over the tests employed under the Three Strikes law and section 654 carried over to its decision to impose and stay sentence on counts 1, 5, 7, and 9. In essence, Acosta contends the court lacked authority to impose concurrent terms under section 654. He is correct about the extent of the court's authority under section 654, but he has misread the record.
Although "'the imposition of concurrent sentences is precluded by section 654,'" when section 654 comes into play the trial court must nevertheless impose sentence, then "stay the execution of the duplicative sentence." (People v. Duff (2010) 50 Cal.4th 787, 796.) Thus, "[t]he sentencing court should stay execution of sentence pending completion of service of sentence upon the greater offense, with the stay to become permanent upon completion of that sentence. [Citations.]" (Ibid.)That is what happened here. According to the reporter's and clerk's transcripts, the court imposed concurrent terms on counts, 1, 5, 7, and 9, but also stayed execution of those terms pursuant to section 654. This was correct.
4. Abstract of Judgment
The parties agree the abstract of judgment incorrectly reflects the sentence imposed on count 13. One page of the abstract of judgment correctly notes the imposition of an indeterminate term of 25-years-to-life on counts 3, 4, 6, 8, 11, 12, and 13. However, on the attachment page to the abstract of judgment, the clerk of the court mistakenly checked the box denoting imposition of one-third the midterm for count 13, which is stated to be a 25-year sentence. Thus, the parties are correct and the abstract of judgment must be corrected. However, because this matter is being remanded for resentencing, the clerk of the court will have the opportunity to address the error at that time.
III
DISPOSITION
The judgment is reversed with respect to the sentence imposed and the matter remanded for resentencing in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: O'LEARY, J. MOORE, J.