Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. GA074374 Laura F. Priver, Judge.
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted Carmen Cecilia Lord of solicitation of murder and attempted murder. She appeals, arguing that the trial court erred in imposing concurrent sentences. We agree, and remand for resentencing. The judgment is affirmed in all other respects.
BACKGROUND
An information charged Lord with soliciting Tammy Lynn Shifflet to commit murder (count 1), and with soliciting Michael Staley to commit murder (count 2), both in violation of Penal Code section 653f, subdivision (b). The information also charged Lord with attempted deliberate and premeditated murder, in violation of section 187/664 (count 3), and with conspiracy to commit murder, in violation of section 182, subdivision (a)(1) (count 4).
All other statutory references are to the Penal Code.
Lord pleaded not guilty to all four counts. The trial court denied Lord’s motion to suppress her confession. A jury found Lord guilty of counts 2 (solicitation of Michael Staley) and 3 (attempted murder), and acquitted her of counts 1 and 4.
The trial court sentenced Lord to life with the possibility of parole on the attempted murder conviction, and sentenced Lord to the midterm of six years on the solicitation conviction, to run concurrently. Lord filed a timely notice of appeal.
Section 664, subdivision (a), provides: “if the crime attempted is willful, deliberate, and premeditated murder, ... the person guilty of that attempt shall be punished by imprisonment in the state prison with the possibility of parole.” The jury found true an allegation that the attempted murder was committed willfully, deliberately and with premeditation within the meaning of section 664, subdivision (a).
FACTS
Lord was working as a stripper in Wales in 2001 when she met Stephen Taylor, a Welsh farmer who raised cattle on 80 acres. Lord married Taylor in 2006 and the couple moved to California in 2007. Taylor sold his farm and bought a house in Saugus for $1.4 million, but because he did not have a visa, he often traveled back and forth to Wales. The marriage was never consummated.
Taylor and Lord started a business, a clothing store that sold goth-style items. Lord met Tammy Shifflett (referred to hereinafter, as she was at trial, by her nickname Spike) at the store. Lord went to clubs with Spike and her roommate Melissa, and Spike started to work in the store. Spike and Melissa came to live in Lord and Taylor’s home in May 2008.
Lord complained to Spike about Taylor, and told Spike she wished Taylor would go away and leave her with the money and property. Lord asked Spike if she could kill Taylor or find someone to eliminate him, in return for ten percent of a life insurance policy on Taylor. Spike told Lord she could do it, and the two discussed ways to kill Taylor in ways that looked accidental. Lord also kept a journal that Taylor found in the garage, which expressed her wish that Taylor would die and leave her everything.
In July 2008, Spike told Taylor that Lord had asked her to kill him, but Taylor did not believe it and decided to wait a week before taking any action. Around the same time, Spike went to the sheriff’s station, and then returned to the station that afternoon with Taylor and Melissa. All three met with Detectives Michael Staley and Dana Duncan. The detectives told Spike to tell Lord that if she still wanted to have Taylor killed, Spike had found someone who might be capable of doing it. Spike was to introduce Lord to Detective Michael Staley, working undercover as “Chet, ” as someone who might kill Taylor for her.
August 21, 2008 meeting with Detective Staley
Spike and Lord drove to a park in Saugus on Thursday, August 21, 2008, and Spike took a walk while Lord and Detective Staley talked. Lord told Detective Staley about her problems with Taylor, and said that she wanted him “Just out of my life, gone. [¶]... [¶] I don’t necessarily want him dead, I just want him gone away from me.” Detective Staley told Lord that he killed people and that was the only way to make Taylor disappear, and she replied, “it’s not that I don’t want it to happen, I’m just afraid of what’s going to happen after, that’s all.” They discussed making Taylor’s death look like an accident, in which case Lord would inherit everything as Taylor’s wife, or a suicide. Detective Staley told Lord, “you just have to decide whether you want to go through with killing a guy to get him out of your life. [¶]... [¶] That’s not something you can fix, and undo.” Detective Staley said he would need $500 as a down payment, and would ask for full payment a year later, after the police had done their investigation. A faked suicide would be fairly easy and would cost $5,000, but an accident would cost twice that amount because it would be complicated. Lord said the money would not be a problem once she sold the house.
Detective Staley wore a wire to his meetings with Lord on August 21 and 23, 2008. The audio recordings were played at trial, and transcriptions of the recordings were introduced into evidence at trial. A recording of Lord’s postarrest interview with Detective Duncan was also played at trial, and a transcript was introduced into evidence.
Lord said, “Let me think about it for a couple of days. [¶]... [¶] You know because it is a big decision. [¶]... [¶] I know I can even go to jail just for talking about it.” Staley suggested a second meeting a few days later, the next Saturday at a Jack-in-the-Box in Pasadena. He told Lord, “if you decide this is what you want to do, and you want to carry through with all this, ” to bring a picture of Taylor, her house, and Taylor’s car. Detective Staley said, “if you change your mind that’s cool.... [¶]... [¶] That’s a big decision.” Lord discussed how she would act after Taylor was dead. She stated that she would probably never date or get married “[o]nce this thing’s over with [Taylor], no matter which way it goes....” Lord said, “if I do decide to do this, I just wanted to do it in a way where you know it’s the least trouble for everybody.”
Detective Staley said, “if this goes full term, then... we’ll sit down Saturday, give you a couple of days to think about it....” Lord repeated that she needed a couple of days to think about it. Although she thought it would probably be better for her if she did go ahead, she did not want to know any of the details and wanted to be far away.
August 23, 2008 meeting with Detective Staley
Detective Staley and Lord met as planned at the Pasadena Jack-in-the-Box. Lord told Detective Staley that she had discussed things with Spike and agreed that Taylor should not be killed in the house. Lord suggested a remote location and told Detective Staley that Taylor was looking at houses with land, suggesting that Detective Staley could follow him. She worried that if Taylor put up a fight, there would be bruises that might raise questions with the police. She had brought a photograph of Taylor and his truck. Lord continued to worry about getting caught. They discussed when Taylor usually left the house and the gated community. Lord explained that Taylor had to go back to Britain on September 18, and might be gone for a while. Detective Staley said, “Okay, so you want, you want him dead before the eighteenth....” Lord replied, “Right.” She suggested that she could find real estate for Taylor to look at, and could get him to go alone.
Lord could not get $500 from the bank, because Taylor kept the account empty. She had a medieval sword in the truck that she had paid more than $500 for and which Detective Staley could hold until Lord could get the money after Taylor was dead. Lord thought she could take money out in small amounts over a year, and have enough for the full payment.
Detective Staley explained that after they left the meeting he would not be in contact with Lord. Lord said it was fine for her to wait for the police to knock on her door, and discussed how she would react, and how long she should wait before filing a missing person report. Lord gave Detective Staley the sword.
Detective Staley said, “I just want to make sure that, that you’re OK, because he’s going to be dead.... [¶]... [¶] And there’s no fixing that. [¶]... [¶] And, and this ain’t something you can patch, or anything else.” Lord replied, “I know.” Staley continued, “And once I’m, once I’m gone from here, he’s a dead man, and because there’s not going to be any phone contact between us. [¶]... [¶] [T]here’s not going to be any taking it back or fixing it because, we cannot have any conversations.” Lord replied, “Mm hmm.” Lord said Spike “basically knows about the whole thing, ” although she’d wanted Taylor to “disappear” before Spike said she knew somebody who could do it.
Detective Staley said, “see you in a year, ” and Lord said, “Thank you very much.... [¶]... [¶] And in a year, we’ll go out to dinner or something.” Detective Staley responded, “Okay, it’s a deal.”
August 23, 2008 conversation with Detective Duncan.
Detective Dana Duncan interviewed Lord after her arrest on the afternoon of August 23. She explained that when she first spoke to Spike, “I didn’t have any real intentions o[f] doing anything to” Taylor. At the end of the first conversation with Detective Staley, Lord had told him, “I don’t know if I want to do this, ” and he had told her to think about it for a couple of days and meet him on Saturday. About a month previously, Lord had consulted a lawyer, who told her that if Taylor could prove he purchased everything with his money, she would end up with nothing if they divorced.
Lord said she had told Detective Staley, “I don’t want Steve killed. I just want him out of my life.” Duncan pointed out that Lord had showed up that day for the second meeting, and asked, “when it’s all said and done, would you say that you hired a hit-man?” Lord answered, “I guess.” She explained that she had given Detective Staley a sword in place of a $500 down payment, and that he was to contact her in a year for the rest of the $5,000 payment. Lord maintained that she had told Detective Staley during their meeting that morning that she didn’t really want to kill Taylor but did not see any other way out, and so she had hired him.
DISCUSSION
The sentence for solicitation should have been stayed under section 654.
Lord argues that the trial court violated section 654 when it imposed a six-year sentence for solicitation, to run concurrently for her sentence of life with possibility of parole for attempted murder. We agree.
At sentencing, the defense argued that the sentences should be concurrent but did not argue that a sentence should be stayed under section 654, and the court did not address section 654. “In the absence of any reference to Penal Code section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective.” (People v. Tarris (2009) 180 Cal.App.4th 612, 626.)
Section 654, subdivision (a), provides: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” “Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.... Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591–592.) “Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] 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.) “[M]ultiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm, ” and separate sentences may be imposed on offenses that are divisible in time. (People v. Felix (2001) 92 Cal.App.4th 905, 915.) “‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments, ] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’” (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Section 653f, subdivision (b) provides: “Every person who, with the intent that the crime be committed, solicits another to commit... murder shall be punished by imprisonment in the state prison for three, six, or nine years.” “‘Solicitation is defined as an offer or invitation to another to commit a crime, with the intent that the crime be committed. The crime of solicitation... is complete once the verbal request is made with the requisite criminal intent; the harm is in asking, and it is punishable irrespective of the reaction of the person solicited. Thus, solicitation does not require the defendant to undertake any direct, unequivocal act towards committing the target crime; it is completed by the solicitation itself, whether or not the object of the solicitation is ever achieved, any steps are even taken towards accomplishing it, or the person solicited immediately rejects it. [Citations.]’ [Citations.]” (People v. Wilson (2005) 36 Cal.4th 309, 328.) “It is immaterial that the solicitee may be an undercover agent whose only intent is to arrest the solicitor.” (People v. Bottger (1983) 142 Cal.App.3d 974, 981.) Solicitation for murder requires a request or proposal made with the specific intent to kill. (Ibid.; People v. Swain (1996) 12 Cal.4th 593, 605.) “The corpus delicti consists of the asking and the intent.” (People v. Shapiro (1959) 170 Cal.App.2d 468, 478.)
The crime of attempt, however, requires more. Section 664 provides for punishment of “[e]very person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration....” An attempt “occurs when the perpetrator, with the specific intent to commit the crime, performs a direct but ineffectual act toward its commission. [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 36.) A solicitation may develop into an attempt (People v. Bottger, supra, 142 Cal.App.3d at p. 981), but the defendant must take another step before mere solicitation ripens into an attempt. While solicitation does not require a direct, unequivocal act toward the commission of the crime (People v. Wilson, supra, 36 Cal.4th at p. 328), “[f]or an attempt, the overt act must go beyond mere preparation and show that the killer is putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes [citation], nor need it satisfy any element of the crime [citation.] However, as [the California Supreme Court has] explained, ‘[b]etween preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.’ [Citations.]” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.) “[A] solicitation to commit murder, combined with a completed agreement to hire a professional killer and the making of a downpayment under that agreement, can establish probable cause to believe [the defendant] attempted to murder the[] victim[].” (Id. at p. 11.) A downpayment “evidences the solicitor’s ‘seriousness of purpose’ and makes the object of the contract [to murder] ‘closer to fruition.’ [Citations.]” (Id. at p. 13.)
In this case, Lord’s solicitation of murder did not occur during the August 21 meeting with Detective Staley. Lord talked to Detective Staley about her problems with Taylor but said she did not necessarily want him dead. Detective Staley told Lord the only way to get rid of Taylor was to kill him. They discussed details, but Lord said that she wanted to think about it for a couple of days, and they parted company with plans to meet two days later. A solicitation requires a request to another to commit a crime, with the required intent that the crime be committed. (People v. Wilson, supra, 36 Cal.4th at p. 328.) The transcript of the conversation on August 21 shows that Lord did not request that Detective Staley kill Taylor, that she continued to vacillate, and that she left to think it over for a couple of days. “[T]he harm is in the asking” (ibid.), and the request with intent to kill had not been made.
On August 23, Lord returned for the second meeting, bringing with her photographs of Taylor and his truck, and stated that she wanted Taylor dead before September 18. Lord stated she knew that once Detective Staley left, she would not hear from him again for a year, and Taylor would be a dead man. On August 23, Lord committed the crime of solicitation when she asked Detective Staley to kill Taylor, fully intending that the murder be committed.
At that same meeting on August 23, Lord also committed attempted murder, by taking the additional step (beyond asking Detective Staley to kill Taylor) of paying for the crime by giving Detective Staley a sword as collateral for the down payment, and by providing him with photographs of Taylor and his truck to help Detective Staley find Taylor. This was a direct but ineffectual step toward killing Taylor, with the intent to have him killed. (People v. Lee (2003) 31 Cal.4th 613, 623.)
The evidence supports only the conclusion that Lord’s two offenses, solicitation and attempt, were part of an indivisible course of conduct on August 23 for which Lord harbored a single objective: bringing about Taylor’s murder. Lord’s solicitation of Detective Staley (her request that he kill Taylor) and her attempted murder (her acts of giving him payment and photographs of Taylor) were means to the ultimate goal, Taylor’s death. Section 654 does not allow multiple punishment for such an indivisible course of conduct.
The prosecution points out that “a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11.) Although multiple offenses had a single intent and objective, they may be punished separately “[i]f the offenses were committed on different occasions.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) In this case, however, Lord’s solicitation and her attempt were not divisible in time. The solicitation did not occur on August 21, as on that date Lord clearly indicated that she had not yet decided whether to solicit Taylor’s murder, and needed to think it over for a couple of days. Lord’s solicitation and her attempt both occurred during her second meeting with Detective Staley on August 23. (Compare People v. Williams (1988) 201 Cal.App.3d 439, 441–442 [burglary to obtain jewels to pay hit man and attempt to hire hit man were separated by over a year, allowing consecutive sentencing for burglary and solicitation].)
Under section 654, Lord’s sentence for solicitation must be stayed.
DISPOSITION
The trial court is ordered to stay, pursuant to section 654, the six-year sentence on count 2. The court shall amend the abstract of judgment accordingly, and forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.