Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF128581. Ronn M. Couillard, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
OPINION
Defendant Juan Jose Dorado (Dorado) appeals from a judgment after a plea of no contest to voluntary manslaughter (Pen. Code, § 192, subd. (a)), and first degree robbery (§§ 211, 213, subd. (a)(1)(A)). Dorado’s sole contention on appeal is that the trial court violated section 654 by imposing concurrent terms of imprisonment for these two counts. For the reasons expressed below, we will modify the judgment and affirm.
All further statutory references are to the Penal Code.
FACTS
According to the probation officer’s report, on April 30, 2004, at about 1:30 a.m., Farmersville police officers observed a vehicle being driven without headlights. After officers saw a man run toward the vehicle and jump into the back seat, they effected a traffic stop. Dorado was driving the vehicle, Michael Segura (Segura) was in the front seat, and Michael Smith (Smith) was in the back seat. A citation was issued and the vehicle and its occupants released.
At about 7 a.m., 74-year-old William Smith, who was Smith’s grandfather and with whom Smith lived, was found badly beaten in his home. William Smith had been beaten about the head and had numerous defensive wounds to his hands. A steel pipe was found near him. Smith’s grandfather was transported to the hospital, where he later died.
Police investigation revealed that Smith had moved in with his grandfather a few months before. When Smith was notified about his grandfather, he claimed he was with Segura and Dorado the night his grandfather was killed. Eventually, Smith told officers that Segura killed the victim. Smith said he did not want to rob his grandfather, but Segura “kept forcing him.” On the night in question, Segura came over to the house about 1 a.m. and Smith let him in. Smith said he waited outside, then ran away and jumped into Dorado’s car. The three of them then went to a hotel, where Segura distributed cash from a backpack he had taken from Smith’s grandfather.
Dorado was questioned and stated they all planned to rob Smith’s grandfather and the plan was Smith’s idea. Dorado was invited because he had a vehicle. Dorado said he was with Segura when Smith called and told them his grandfather was asleep. Dorado drove to the home, where he claimed Segura and Smith got out. According to Dorado, after Segura and Smith returned to the vehicle, the three of them went to a hotel and sorted the cash. Dorado received some cash, and Smith also gave him cash to purchase a new vehicle the next morning. Eventually, the new vehicle was searched and dark colored pants with blood stains were recovered from it.
Segura was also questioned. He denied knowing anything about the murder or robbery until Dorado told him about it. Segura claimed they had driven to Farmersville in Dorado’s car, which began to overheat. They pulled into a gas station to fill up the radiator with water. Once they got back into the car, they saw Smith running down the road by himself and he jumped into the back seat. After the police stopped them, they went to a hotel, where Smith admitted he and Dorado had “‘jacked’” Smith’s grandfather and stolen money and pills. Smith gave Segura money and told him not to tell anyone. Later that weekend, Segura bought a new electronic game and cell phone.
Segura, Smith and Dorado all worked together at the same place. Another co-worker testified that Smith had come to him several times at work and asked him if he knew anyone who would “jack” his grandfather. Smith told the co-worker his grandfather carried a lot of money on him.
DISCUSSION
Dorado was sentenced to the mid-term of six years for the voluntary manslaughter and the mid-term of six years for the first degree robbery, to be served concurrently. On appeal, he asserts this is an unauthorized sentence because it violates the prohibition against double punishment in section 654, which provides: “An act or omission that is punishable in different ways by different provisions of law shall be punishable 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 People contend Dorado’s plea bargain precludes him from challenging his sentence under section 654 because he agreed to a specified prison term and the record does not reveal “any indication that [Dorado] or his counsel reserved a section 654 claim” when the plea was entered. In so arguing, the People rely on California Rules of Court, rule 4.412 (derived from former rule 412, which derived from former rule 440) (rule 4.412), which provides: “(b) By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.”
The waiver rule in rule 4.412 has been applied to preclude the challenge of the imposition of a concurrent term when the defendant agrees to a specified term of sentencing as part of the plea bargain. In People v. Hester (2000) 22 Cal.4th 290 (Hester), our Supreme Court applied this rule where a defendant agreed to a four-year sentence, and then, on appeal, sought to challenge imposition of additional terms concurrent to his four-year sentence. (Id. at pp. 293-295.) Noting that the defendant did not raise a section 654 objection to any possible concurrent terms at the change of plea hearing, the Supreme Court deemed the defendant’s objection to concurrent terms waived under rule 4.412 as a result of the plea agreement. (Hester, supra, at pp. 295-296.) “The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (Id. at p. 295.)
A similar decision was reached in People v. Cole (2001) 88 Cal.App.4th 850 (Cole), in which the court applied the 4.412 waiver rule to bar the defendant from challenging imposition of two concurrent terms of 25 years to life. (Cole, supra, 88 Cal.App.4th at p. 872 .) The Cole court reasoned that because the defendant had agreed to a “‘specified prison term,’” namely “the maximum possible sentence of 25 years to life,” as part of his plea bargain, he could not then challenge the imposition of concurrent terms on appeal. (Id. at p. 872.) The court’s rationale behind this conclusion was that through the agreement to the plea bargain, the defendant, who raised no argument in the trial court that section 654 barred concurrent sentences, avoided a possible sentence of 75 years to life. “He should not be heard to complain that concurrent sentences – a potential consequence which he understood and to which he did not object – were imposed.” (Cole, supra, at p. 873; see also People v. Couch (1996) 48 Cal.App.4th 1053, 1057-1058 [defendant estopped from challenging sentence because he agreed to accept it as part of a plea bargain for a specific term, and thereby waived sentencing errors]; People v. Valenzuela (1993) 14 Cal.App.4th 837, 841 [defendant precluded from raising on appeal any issue concerning section 654 because the issue was not raised when the trial court set forth the plea agreement].)
These cases are all clearly distinguishable from the present one because, as we read the record, Dorado raised the issue of the applicability of section 654 when he entered his plea. Dorado was charged with three counts: (1) felony murder, with the special circumstance that the murder was committed during the commission of a robbery or burglary, (2) home invasion robbery in concert, and (3) first degree burglary. The prosecutor presented a package offer to Dorado, Smith and Segura. With respect to Smith, the prosecutor offered voluntary manslaughter and robbery in consort, with the section 213, subdivision (a)(1)(A) special allegation, for a stipulated sentence of 11 years. With respect to Segura, the prosecutor offered the same two counts, and asked for a stipulated indicated sentence of eight years, comprised of the six year mid-term for voluntary manslaughter plus two years for the robbery. The prosecutor specifically stated that “[a]ny 654 issues in that case would be waived, and [Segura] would be waiving any appellate issues regarding the issue of the revocation of a plea, which was already litigated.”
Smith and Segura were named as defendants in two cases separate from Dorado’s, each with their own case number.
With respect to Dorado, the prosecutor offered the same two counts, for an indicated sentence of “six years in total,” which the prosecutor explained is the mid-term for voluntary manslaughter. After the prosecutor summarized that the stipulated sentences would be 11 for Smith, eight for Segura, and six for Dorado, Dorado’s attorney stated “[t]he 211 would be stayed, I assume.” The trial court responded, “[w]hatever happened it would work out to no more than six years.” After the attorneys for each defendant stated the defendants were in agreement with the proposed disposition, the trial court took each defendant’s no contest plea. At Dorado’s sentencing hearing, the trial court found there were factors both in mitigation and aggravation, which balanced one another out, so as to justify the agreed-upon sentence of the six year mid-term. Accordingly, the trial court sentenced Dorado to the six year mid-term for the voluntary manslaughter, and a concurrent six year mid-term for the robbery. Although Dorado’s attorney was given an opportunity to comment on the probation report, which recommended the sentences run concurrently, he did not raise a section 654 issue at the sentencing hearing.
In our view, Dorado’s attorney’s statement made before Dorado entered his plea that “the 211 would be stayed” was sufficient to raise a section 654 objection to any possible concurrent terms. Rule 4.421 requires that any claim that a sentence violates section 654 must be asserted at the time the agreement is recited on the record. (Cal. Rules of Court, rule 4.421(b).) That is precisely when the claim was asserted here. As Dorado points out, the prosecutor did not elicit a waiver of the section 654 issue, as he did with Segura. Because Dorado raised section 654 at the time he entered his plea, he is not precluded from raising the issue on appeal under rule 4.412. We therefore reach the merits of the section 654 claim.
Section 654 prohibits multiple punishment for an indivisible course of conduct even though it violates more than one statute. (People v. Hicks (1993) 6 Cal.4th 784, 789.) Whether a course of conduct is indivisible depends on the intent and objective of the actor. (People v. Palmore (2000) 79 Cal.App.4th 1290, 1297; People v. Evers (1992) 10 Cal.App.4th 588, 602.) “If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545, 551.) The determination the defendant had multiple criminal objectives is a factual question and will be upheld on appeal if supported by substantial evidence. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
Courts have held in many cases that section 654 prohibits separate punishments where a defendant harmed or threatened a victim during a robbery and was convicted of both robbery and another crime against the victim’s person, such as an assault, kidnapping, homicide, or attempted homicide. (See People v. Milan (1973) 9 Cal.3d 185, 196-197 [robbing cab driver was sole objective of crimes of robbery, kidnapping for the purpose of robbery with bodily harm, and murder, so only one punishment was permissible]; In re Henry (1966) 65 Cal.2d 330, 331 [robbing liquor store owner was sole objective of attempted armed robbery and assault with a deadly weapon]; People v. Ridley (1965) 63 Cal.2d 671, 677-678 [robbery and assault with a deadly weapon with intent to commit murder had only one objective]; People v. Green (1979) 95 Cal.App.3d 991, 1008 [robbery, kidnapping, and attempted murder all had robbery as their objective]; People v. Lowe (1975) 45 Cal.App.3d 792, 795 [robbery and murder of one victim and robbery and attempted murder of another had only one objective each]; People v. Chapman (1968) 261 Cal.App.2d 149, 180 [robbery and murder had one objective]; People v. Logan (1966) 244 Cal.App.2d 795, 798, disapproved on other grounds by People v. Collie (1981) 30 Cal.3d 43, 62, fn. 16 [attempted robbery and assault with intent to kill had one objective].) Our Supreme Court has stated in dictum, for example, that “one who uses a deadly weapon in the commission of first degree robbery simultaneously assaults the victim with such weapon but clearly may not be punished for both the robbery and assault with a deadly weapon.” (People v. Beamon (1973) 8 Cal.3d 625, 637.)
In this case, Dorado argues that separate sentences for robbery and voluntary manslaughter violated section 654 because the acts supporting the two convictions were part of an indivisible transaction engaged in to achieve a single criminal objective, namely carrying out the robbery. The People do not contend otherwise and, in fact, make no argument on this issue. We agree with Dorado. As Dorado points out, the only evidence of his involvement in the crimes is that he helped plan the robbery, he drove Segura and Smith to and from the crime scene, and he drove them to a hotel, where they divided the loot. Based on these facts, Dorado was liable for the robbery as an aider and abettor, and for the manslaughter only under the natural and probable consequences doctrine based on his intent to aid and abet the robbery. (CALCRIM No. 402.) Although each defendant recounted the events of the robbery and homicide differently, there was no evidence before the trial court from which to conclude that any of the defendants had an objective for the crimes other than the robbery. From Smith’s and Dorado’s statements it is apparent that they wanted to rob Smith’s grandfather. There is no evidence regarding what transpired during the robbery, except that money was stolen and Smith’s grandfather was beaten on the head and had defensive wounds on his hands. On this record, there is nothing to support the conclusion that the manslaughter was anything but incidental to the robbery. Accordingly, there is insufficient evidence to uphold the concurrent term for robbery.
Because the voluntary manslaughter and robbery were part of one indivisible course of conduct, and the manslaughter was incidental to the robbery, we conclude the trial court erred in failing to stay the robbery sentence.
DISPOSITION
The judgment is modified to stay the term imposed for count 2. The clerk of the Tulare Superior Court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.