Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. EE906913, CC933831.
Premo, J.
Defendant Joshua John Chavez pleaded no contest to four counts of first degree burglary (Pen. Code, § 459) and two counts of receiving stolen property (§ 496). He admitted one prior strike (§ 667, subds. (b)-(i)), one prior serious felony (§ 667, subd. (a)), and two prison priors (§ 667.5, subd. (b)). The trial court sentenced defendant to nine years in prison, which included concurrent terms for three of the burglaries. The People appeal. (§ 1238, subd. (a)(10).) The People argue that under section 667, subdivision (c)(6), the court was required to impose consecutive sentences.
Hereafter all unspecified statutory references are to the Penal Code.
The two versions of the Three Strikes law, sections 667 and 1170.12, are identical for purposes of our analysis. For the sake of simplicity, we refer to only section 667.
I. Factual and Procedural Background
A consolidated information filed June 5, 2009, charged defendant with four residential burglaries. The information alleged that, on January 27, 2009, defendant entered a home on Indian Valley Court with the intent to commit theft; on February 2, 2009, he entered a home on Blue Jay Drive in Sunnyvale with the intent to commit theft; also on February 2, 2009, defendant entered a home on Albatros with the intent to commit theft; and on February 3, 2009, he entered a home on Lancaster Drive, with the intent to commit theft. The information also charged two counts of receiving stolen property and the enhancement allegations recited above. The prior serious felony, one of the prison priors, and the strike all related to one prior conviction for residential burglary. The second prison prior was the result of a felony hit and run. (Veh. Code, § 20001.)
After initially pleading not guilty, defendant changed his plea. The prosecutor had made an offer to settle the case for 17 years, no more and no less. Over the prosecutor’s objection, the trial court offered 17 years maximum, pursuant to which defendant pleaded no contest to the crimes charged and admitted the enhancement allegations. During the change of plea hearing there was some discussion about the possibility that the trial court would strike the prior conviction allegation that brought the case within the three strikes law. The prosecutor stated that, if the court did not strike the strike, “then the Court has to impose other than based upon the conduct, the charges being same otherwise, the counts and conduct would have to be mandatory consecutive.” Defense counsel followed up, “Which makes it 17.”
At the sentencing hearing, the trial court first ruled upon defendant’s Romero motion, finding that defendant had been “doing an outstanding job programming” and that he had employment prospects and plans to “take care of business” once he was out of custody. Ultimately, however, the trial court denied defendant’s Romero motion, stating, “This is the kind of case, as far as the Court is concerned, that falls squarely within why the [L]egislature and the People of the State of California enacted the strike law.”
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
As to sentencing, the trial court stated, “I had a real problem with this case.... I’m going to be doubling his sentence under the strike law. I--I really resent the [L]egislature tying our hands on [section] 667 [subdivision] (a). I’m going to have to impose--I have no discretion whatsoever about the five-year prior under [section] 667 [subdivision] (a). I believe he’s getting tagged twice. I am doubling his sentence because of that, and I do not believe that it’s proper, but I am taking an oath to follow the law in this particular matter, and I’m going to impose it.
“However, I am going to do the following: I’m also recognizing the fact that I have laid out this case, and I do believe it to be a crime spree, and I do not believe these offenses were committed at separate times and on separate occasions. And I am, therefore, going to make the following order....” The court went on to sentence defendant to four years for each of the burglaries (double the mitigated term) and ordered that the terms run concurrently, stayed the terms for the stolen property counts pursuant to section 654, added five years for the section 667, subdivision (a) prior serious felony, and imposed fees and fines.
The prosecutor raised no objection while the court was reciting the sentence. At the very conclusion of the hearing, the prosecutor stated, “The [P]eople would object to the sentence. It does not comply with the scheme, ” to which the trial court replied, “I understand. Thank you.”
II. Discussion
A. Issues and Standard of Review
When a defendant is found to have a prior conviction of one or more serious or violent felony offenses (§ 667, subds. (b), (c)), he or she is sentenced under the three strikes law (§ 667, subds. (b)-(i)). The three strikes provisions require, among other things, that “[i]f there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to [this section].” (§ 667, subd. (c)(6).) The sentencing court may impose a concurrent term under the three strikes statutes only if the court finds the current crimes were committed on the same occasion or arose from the same set of operative facts. (People v. Lawrence (2000) 24 Cal.4th 219, 233 (Lawrence); People v. Deloza (1998) 18 Cal.4th 585, 599 (DeLoza).)
In the present case, the trial court found that defendant’s four burglary convictions were part of a “crime spree” and were committed on the same occasion. The People argue that the trial court’s finding is unsupported by the record and that the selection of concurrent sentences was unlawful because section 667, subdivision (c)(6) makes consecutive sentences mandatory. Defendant does not challenge the substance of the appeal but maintains that the appeal is unauthorized or that the People forfeited the error by failing to object. As to each of the arguments, the pertinent facts are undisputed. Accordingly, we apply the independent standard of review. (People v. Salcido (2008) 166 Cal.App.4th 1303, 1311.)
B. Appealability
“The prosecution in a criminal case has no right to appeal except as provided by statute. [Citation.] ‘The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases. [Citations.]... [¶] The restriction on the People’s right to appeal... is a substantive limitation on review of trial court determinations in criminal trials.’ [Citation.] ‘Appellate review at the request of the People necessarily imposes substantial burdens on an accused, and the extent to which such burdens should be imposed to review claimed errors involves a delicate balancing of the competing considerations of preventing harassment of the accused as against correcting possible errors.’ [Citation.] Courts must respect the limits on review imposed by the Legislature ‘although the People may thereby suffer a wrong without a remedy.’ ” (People v. Williams (2005) 35 Cal.4th 817, 822-823.)
Section 1238, subdivision (a)(10) provides that the People may appeal from: “The imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence, except that portion of a sentence imposing a prison term which is based upon a court’s choice that a term of imprisonment (A) be the upper, middle, or lower term, unless the term selected is not set forth in an applicable statute, or (B) be consecutive or concurrent to another term of imprisonment, unless an applicable statute requires that the term be consecutive. As used in this paragraph, ‘unlawful sentence’ means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.” Defendant maintains that this subdivision does not apply unless the trial court made a pure error of law. According to defendant, application of the three strikes consecutive sentencing requirement turned upon the trial court’s resolution of a factual issue and, therefore, the resulting sentence cannot be deemed “unauthorized” within the meaning of section 1238, subdivision (a)(10). But the People’s appeal alleges an error of law, namely that the trial court chose concurrent terms of imprisonment when, on the undisputed historical facts, “an applicable statute requires that the term be consecutive.” The appeal falls precisely within the terms of section 1238, subdivision (a)(10). Accordingly, we reject defendant’s contention that the appeal is unauthorized.
C. Waiver
We also reject defendant’s waiver argument. The policy rationale underlying the waiver doctrine is that “[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.” (People v. Vera (1997) 15 Cal.4th 269, 276.) “[C]ounsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.” (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).)
In this case, the prosecutor made a point of objecting to the trial court’s offer of 17 years as a maximum. Although the transcript is a bit garbled, it seems clear that the prosecutor’s warning to defendant was that if the court did not grant his Romero motion his conviction would require consecutive sentencing. As defendant’s own attorney pointed out, that would result in a 17-year sentence. Thus, at the change of plea hearing, both parties understood that, absent a successful Romero motion, defendant would be subject to consecutive sentences. Then, at the close of the sentencing hearing, the prosecutor stated his objection to the nine-year sentence as inconsistent with the “scheme” and the court responded, “I understand.” In short, the record shows that the prosecutor objected to the sentence all along and that there was no error that could easily have been corrected or avoided.
Furthermore, if the sentence that the trial court imposed is indeed “unauthorized, ” then the failure to object does not waive the error. (Scott, supra, 9 Cal.4th at p. 354.) Our Supreme Court has explained that an “ ‘unauthorized sentence’ ” is one that “could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” (Ibid.) It is also the rule: “ ‘[A] law established for a public reason cannot be waived or circumvented by a private act or agreement.’ ” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1048.) “Even less should a party’s inaction waive a statutory requirement established for the public benefit.” (People v. Bonnetta (2009) 46 Cal.4th 143, 153.) The three strikes law was established for the public benefit. The People’s argument on appeal is that the sentence the court selected is inconsistent with the requirements of the three strikes law. Accordingly, the prosecutor’s supposed inaction did not waive objection to the trial court’s alleged failure to conform to the statutory requirement.
D. Consecutive Sentences under the Three Strikes Law
As we explained above, the trial court had discretion to impose concurrent sentences for the burglaries only if the crimes were committed “on the same occasion” or arose from “the same set of operative facts.” (§ 667, subd. (c)(6).) Crimes are committed “ ‘on the same occasion’ ” when there is close “temporal and spatial proximity between the acts underlying the current convictions.” (Deloza, supra, 18 Cal.4th at p. 595.) Crimes arise from the same set of operative facts depending upon “the extent to which common acts and elements of such offenses unfold together or overlap, and the extent to which the elements of one offense have been satisfied, rendering that offense completed in the eyes of the law before the commission of further criminal acts constituting additional and separately chargeable crimes.” (Lawrence, supra, 24 Cal.4th at p. 233.)
Here, there were four separate burglaries of separate residences. Each crime was complete without overlapping the other. They were separated spatially in that each involved a different residence. The crimes took place on three different days. Even the two that took place on the same day had to have been temporally distinct--one cannot be in two places at once. There were no overlapping elements or victims; the crimes shared no “common acts or criminal conduct.” (Lawrence, supra, 24 Cal.4th at p. 233.) It follows as a matter of law that the crimes were not committed on the same occasion and did not arise from the same set of operative facts and, therefore, consecutive sentences were mandatory.
Defendant effectively concedes that the facts warrant consecutive sentences in that, on the merits, he argues only that we should allow the trial court on resentencing to reconsider its ruling on the Romero motion. The People argue that would condone “judicial mischief.”
We express no opinion on how the court should exercise the discretion it does have. We hold only that, in sentencing under the three strikes law, the terms for defendant’s four burglary convictions must run consecutively.
III. Disposition
The judgment is reversed. The matter is remanded for sentencing consistent with the opinion expressed herein.
WE CONCUR: Rushing, P.J., Elia, J.