Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF4027, Thomas M. Goethals, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P.J., Rylaarsdam, J., and Ikola, J.
Defendant Kelly Renee Hryze appeals the sentence imposed upon her following her conviction by a jury on charges of robbery, burglary, assault with a deadly weapon, and taking a vehicle.
She makes numerous arguments. First, she contends that the counts for burglary and theft of a vehicle should have been stayed pursuant to Penal Code section 654, rather than imposed concurrently.
All statutory references are to the Penal Code unless otherwise stated.
Next she contends, and the Attorney General concedes, that the abstract of judgment must be amended to reflect the correct sentence orally imposed by the court as to the counts involving assault with a deadly weapon and vehicle theft. She further argues that she is entitled to one extra day of prison credit. Lastly, she contends that the security fees imposed for counts 2 and 4 are required to be stayed.
We agree with defendant that counts 2 and 4 (burglary, and vehicle theft) should have been stayed pursuant to Penal Code section 654; that the abstract of judgment should be corrected to reflect the correct sentence imposed by the court as to counts 3 and 4 (assault with a deadly weapon and vehicle theft); and further, that she is entitled to one extra day of prison credit. However, we conclude that the security fees, imposed for counts 2 and 4 require no stay. Accordingly, we affirm the judgment as modified.
I Facts and Proceedings
Defendant was convicted by a jury under an aiding and abetting theory of robbery (count 1); burglary (count 2); assault with a deadly weapon (count 3); and unlawful taking of a vehicle (count 4.) The court also found it to be true that defendant was on bail when she committed the offenses. Defendant was sentenced to a total term of six years in state prison including a midterm sentence of four years for robbery; a consecutive two year sentence for the bail enhancement allegation, and concurrent sentences for counts 2, 3, and, 4.
I Facts
Defendant met the victim Bradley Lutman (Lutman) in a bar in 2006, and began a sexual relationship with him. Lutman allowed her to stay at his house while she found another place. She reluctantly left Lutman’s residence at the end of December 2006 after Lutman asked her to move out.
They resumed their relationship on a platonic basis around April or May of 2007. Lutman said the only reason he resumed their relationship was because he wanted to recover some of the money defendant owed him. On occasion, Lutman would let her stay over at his house either by herself, or with her boyfriend Chris Mullins (Mullins.) Mullins was a white supremacist who had a shaved head with an iron cross tattooed on his skull, and swastika tattoos running up his arms.
Lutman admitted he was a methamphetamine addict. He often smoked the drug with defendant and Mullins. He dealt the drug and gave it to friends, but said he did not make much money from it. After he was arrested for receiving oral sex from a prostitute, the police searched his car and found almost an ounce of methamphetamine which was broken up into seven different bags, a scale, empty baggies, and $1500. Lutman pled guilty to possession of methamphetamine and solicitation of prostitution. In August of 2007, Lutman and Mullins had a dispute over drugs because Mullins was using a lot of Lutman’s drugs and was not paying for them.
The events of August 14, 2007
During the early morning of August 14, 2007, Lutman returned home from a neighborhood bar along with a group of his friends. As he pulled into his driveway, defendant and Mullins who were inside defendant’s black Infinity G35, pulled in behind him. Defendant got out of her car and asked Lutman if she and Mullins could stay at his house. Lutman told her no. Lutman had heard that Mullins pulled a knife on defendant the night before, and said he did not want them staying at his house. When defendant asked him for money he told her to “Get the fuck off my property.” Defendant responded back with the words: “Fine. I’ll be back with my comrades.” She and Mullins then drove away.
Lutman went back into his house and smoked methamphetamine with his friends. His friends left about 3:30 a.m. Lutman then took a shower and dozed off in his bed.
About 4 a.m. Lutman awoke to a loud banging on his bedroom door. The door was suddenly kicked open, and two men with shaved heads burst through. Lutman recognized one of the men as Mullins. The other man was later identified as Kevin La Bossierre. Mullins was holding a baseball bat, and La Bossierre was holding a claw hammer, both of which had come from Lutman’s garage.
They began beating Lutman all over his body. During one of the swings, Mullins said, “This one’s from Kelly.” As La Bossiere hit Lutman with the claw hammer he told Lutman: “This is what white power will get you. Too bad you won’t be around to see it.”
They demanded money and methamphetamine from him. Each of them took turns hitting him while the other rummaged through the room. They ended up taking around $3,000 in cash, pool sticks, cigarettes, cameras, and Lutman’s wallet, checkbook, and house keys.
Lutman managed to escape from his bedroom and ran out into the street. He saw defendant drive by in her car. He also saw Mullins and La Bossierre who had run out of the house, back out of his garage in his Honda. All of his power tools had been loaded inside of the car. He also saw more of his property sitting stacked in front of his garage. As his assailants left in his Honda, they screamed out “We’ll be back to get you.” Lutman estimated that his entire ordeal lasted about five minutes.
Lutman’s son called the police. Lutman was taken to the hospital, and treated for his injuries. The next day, defendant called him and said, “Brad, you got to tell the police I had nothing to do with that attack.”
Three days later, the police arrested defendant and Mullins while they were leaving a hotel room together. On the same day, La Bosierre was arrested while driving Lutman’s Honda.
II Discussion
Counts 2 and 4 should have been stayed pursuant to section 654
Defendant contends the counts imposed for burglary (count 2) and vehicle theft (count 4) should have been stayed rather than run concurrently because of section 654’s prohibition against multiple punishment for separate crimes arising out of an indivisible course of conduct sharing the same intent and objective.
Defendant argues the burglary count should have been stayed because theft and assault were the underlying felonies behind the robbery, and burglary was the means by which the robbery and assault were accomplished. As to the vehicle theft involving Lutman’s Honda, defendant argues this count too should have been stayed because all of the property stolen from Lutman including his vehicle was taken in a continuous and indivisible transaction that “lasted about five minutes.” We agree.
The trial court provided no indication why it might have found multiple sentences were warranted. Moreover, defendant did not object to the imposition of multiple sentences at trial. Nonetheless, we conclude relief is warranted under section 654.
Trial counsel did not object to the court’s sentencing scheme pursuant to section 654. However, a section 654 claim is not waived by failing to raise it in the trial court, unless sentence is imposed pursuant to a plea bargain. (People v. Hester, supra, 22 Cal.4th at p. 295; People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268, fn. 2.)
Section 654 precludes multiple punishments for a single act or indivisible course of conduct. (People v. Hester, (2000) 22 Cal.4th at 290, 294.) In reviewing a trial court’s sentencing decision, we give deference to the trial court’s factual findings. “‘The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.’ [Citation.]” (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
To determine whether a course of conduct is indivisible, courts consider the intent and objective of the defendant. If all of the criminal acts were incident to a single criminal objective, than the court may impose punishment only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-637.) On the other hand, if the evidence discloses a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. (People v. Perez (1979) 23 Cal.3d 545, 551-552; People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Applying these principles, we turn to defendant’s arguments.
A defendant may not be punished for both a robbery and a burglary where the sole purpose of the burglary was to effectuate the robbery. (People v. Smith (1985) 163 Cal.App.3d 908, 912. Here, the evidence established that the two perpetrators entered Lutman’s house to “rip him off.”
The jury was instructed pursuant to the Judicial Council of California Jury Instructions CALCRIM No. 1700 (the definition of burglary), that defendant entered a building with the intent to commit theft or aggravated assault. Moreover in closing, the prosecutor argued to the jury the evidence established that both assault and theft were the intended crimes of the burglary, and that the jury could find Mullins and La Bossiere intended to commit both crimes when they entered Lutman’s residence.
Thus, rather than imposing the burglary count concurrently, the court should have stayed the sentence pertaining to this count. (See People v. Hester, supra, 22 Cal.4th at p. 294; People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239 [if section 654, subdivision (a) requires that a sentence be stayed, then concurrent terms may not be imposed. Where multiple punishment has been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term]; (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.)
The court also should have also stayed count 4 involving the theft of Lutman’s Honda. A defendant’s conduct evidencing consecutive intents may constitute divisible acts for purposes of section 654, (People v. Latimer, supra, 5 Cal.4th at p. 1216.) Here however, we conclude there was scant evidence from which the court could find that Mullins and La Bossiere harbored the distinct intention to steal Lutman’s vehicle. Rather, the evidence supports a finding that the taking of the vehicle was part and parcel of a continuous and indivisible criminal transaction designed to be quickly executed.
Mullins and La Bossiere entered Lutman’s garage before they entered his bedroom. Once inside the garage they found the bat and the claw hammer used to assault him. It is also highly plausible that they preloaded the Honda with Lutman’s power tools at this time. Lutman’s description of the events as taking place within a span of “five minutes” further supports the finding the theft of the car was part of a continuous and indivisible plan, rather than an afterthought by the perpetrators. Accordingly, counts 2 and 4 should have been stayed pursuant to section 654.
Amendment of the Abstract of Judgment
Defendant argues and respondent concedes, the abstract of judgment and the minute order incorrectly set out the sentence imposed by the court for assault with a deadly weapon and vehicle theft.
The court’s oral pronouncement of judgment for assault with a deadly weapon was a concurrent three-year term, and a concurrent two-year term for the vehicle theft. However, the abstract of judgment as well as the minute order for this date, mistakenly list the sentence imposed as being four years for the assault with a deadly weapon, and four years for the vehicle theft. Where there is a discrepancy between the oral pronouncement rendering judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
The abstract of judgment should be amended to reflect a concurrent midterm sentence of three years as to count 3. As to count 4 however, the abstract of judgment should be amended to reflect, in accordance with this opinion, that count 4 is stayed pursuant to section 654.
Conduct Credits
Defendant argues the trial court erred in denying her one day of presented custody credits, or a total of 45 days instead of 44 days pursuant to section 2933.1. We agree. (People v. Thomas (1999) 21 Cal.4th 1122, 1127, 1129.) The abstract of judgment should therefore be amended to provide for 45 days of presented credit.
The Security Fees imposed as to Counts 2 and 4 should not be stayed
Defendant argues that if counts 2 and 4 are stayed pursuant to section 654, the $20 court security fees imposed for these counts should be stayed as well to avoid any resulting “disadvantage.” We disagree.
Section 1465.8, subdivision (a)(1), provides in relevant part: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense...” (Italics added.) The court security fee constitutes a civil disability rather than a punishment. (People v. Wallace (2004) 120 Cal.App.4th 867, 874-878; People v. Alford (2007) 42 Cal.4th 749, 756-759; People v. Crittle (2007) 154 Cal.App.4th 368, 370.)
Defendant’s claim has been previously rejected. In People v. Crittle, supra, 154 Cal.App.4th at p. 370, the court stayed punishment pursuant to section 654 for a robbery conviction, yet imposed a $20 court security fee for that conviction. In so doing, the court concluded that although section 654 in general bars the use of a conviction for any punitive purpose, if the sentence on that conviction is stayed, section 654 “does not apply to a court security fee because that fee is not punishment. [Citation.]” (Crittle at p. 371; accord People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328.) Moreover, the Supreme Court has held in People v. Alford, supra, 42 Cal.4th at p. 756-759, that the $20 court security fee, is a revenue generating measure, does not constitute punishment, and does not serve a punitive purpose.
Defendant’s argument fails.
III Disposition
The judgment is modified to reflect that the sentence imposed as to counts 2 and 4 are stayed pursuant to Penal Code section 654. The abstract of judgment should further be modified to reflect that the sentence imposed by the court as to count 3 is a three year concurrent midterm sentence. The judgment should further be modified to reflect that defendant is awarded 45 days, instead of 44 days presented credit pursuant to section 2933.1. As modified the judgment is affirmed. The trial court is directed to send a corrected abstract of judgment to the Department of Corrections.