Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge. (Retired Judge of the former Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super. Ct. No. RIF134298
Jean Ballantine, 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 Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
A jury convicted defendant and appellant Jose Valenzuela Luera of two counts of robbery (Pen. Code, § 211, counts 1 & 5), assault with a firearm (§ 245, subd. (a)(2), count 2), burglary (§ 459, count 4), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(1), count 6). The jury found that defendant personally used a firearm in count 1 but not in count 5 (§ 12022.53, subd. (b)), personally used a firearm in counts 2 and 4 (§ 12022.5, subd. (a)), committed the burglary while a person other than an accomplice was in the residence (§ 667.5, subd. (c)(21)), and personally inflicted great bodily injury on the victim of counts 5 and 6 (§ 12022.7, subd. (a)). It was alleged that defendant had been convicted on May 15, 1995, of attempted robbery (§§ 664, 211), and that this conviction was both a serious felony prior (§ 667, subd. (a)) and a strike prior (§ 667, subd. (e)). In a bifurcated proceeding, the trial court found the prior conviction allegation to be true based on defendant’s trial testimony.
Undesignated statutory references are to the Penal Code.
The jury also found that defendant had not been previously convicted of two felonies so as to be presumptively ineligible for probation (§ 1203, subd. (e)(4)), but the trial court struck this finding because the jury was not supposed to make it.
Defendant’s first contention is that there was insufficient evidence to establish that property was taken from the “person or immediate presence” of the victim in count 5. Defendant next contends, and the People agree, that the trial court erred by using defendant’s trial testimony to prove the substance of the prior conviction. Defendant also contends that count 4, and its enhancements, should have been stayed pursuant to section 654 and that sentences should have been imposed and stayed on counts 2 and 6 instead of suspended. Defendant’s final contention is that the abstract of judgment incorrectly describes the degree of both the count 1 and the count 5 robberies. We affirm the jury convictions, reverse the imposed sentence, and remand for retrial on the existence of the alleged prior conviction and resentencing.
I. BACKGROUND
The People alleged that, on January 15, 2007, defendant entered a residence and then assaulted and robbed a female victim (counts 1, 2, & 4). The People also alleged that defendant robbed and assaulted a male victim (counts 5 & 6).
A. Counts 1, 2, and 4
The female victim testified that on January 15, 2007, she observed the male victim talking with someone outside of the residence she shared with the male victim; she then went back inside the residence. Their residence consisted of a garage area with an area made into a bedroom. While the female victim was inside, someone kicked in the front door. The intruder had a silver gun in his hands. The intruder was wearing a T-shirt and was not wearing an Army jacket or a striped black jacket. The intruder pointed the gun at the female victim and told her to “[g]et on the fucking floor, bitch.” With the female victim on the floor, the intruder rummaged around and asked “where is the dope?” The female victim gave the intruder money out of her wallet. The intruder told the female victim not to move or he would shoot her; he rummaged around and then left. The female victim waited “[a] few minutes” and then locked the door to the room she was in. At some point, she heard sirens. She unlocked the door and found that the police had arrived. She testified that defendant was the intruder.
The person had the same first name as a male neighbor, but the female victim did not know if it was the neighbor because she was not acquainted with the person.
B. Counts 5 and 6
On January 15, 2007, around 2:00 p.m., the victims’ male neighbor heard what sounded like someone calling his name. The neighbor and his fiancé went to their back windows, looked outside, and saw the male victim being struck. The male victim was being held down and struck by a man wearing a black jacket with a white stripe, gray beanie, blue pants, and white shoes. The assailant also choked the male victim, using what appeared to be a pipe with a fluorescent pink handle, and dragged the victim in front of an adjacent truck. The neighbors could only see the male victim’s feet protruding from behind the truck, and clenched fists holding something fluorescent, coming over the top of the truck. After dragging the victim, the assailant stood up and put something into his pocket.
Another man was pacing back and forth and kept disappearing into the garage entrance to the victims’ residence. This man was wearing an Army jacket, a blue hoodie, and a black baseball cap. He did not remove the jacket while the neighbors were observing from their windows. The man in the Army jacket also beat the male victim.
The male victim “suffered a broken nose, fractured jaw, a concussion, and an injured eye.”
When the police arrived, both men fled. The police searched the neighborhood: in the recycling bin of the residence immediately behind the victims’ residence, they located a silver handgun; in a yard waste bin of a house several houses north of the one where the gun was located, they found a black jacket, gray beanie, and the male victim’s wallet. An officer heard “a neighbor lady yell[], ‘He jumped over the back fence.’ ” The officer drove around the block, exited his vehicle and stationed himself at the north end of the street upon which the clothing and wallet were discovered. The officer saw defendant walking toward him. Defendant was the only person the officer saw walking on the street between the officer’s position and the victims’ residence. Defendant had blood on his right hand and the right knee area of his pants. He also had eight $100 bills in a pant pocket.
The police later showed the neighbors a few individuals; they both identified the same person. The male neighbor identified the man who had been wearing the black jacket and beanie. His fiancé could only recall identifying someone who had been present. The police officer who conducted the in-field lineup testified that the male neighbor identified defendant as “the one” that was beating on the male victim and who had an object with a red handle. A knife with a red handle had been found at the scene.
C. The Prior
Defendant testified in his own defense. He confirmed that he was a “convicted felon, ” he had been “convicted of a felony in the year 1995 in Orange County, ” the conviction was for attempted robbery, and he had pled guilty because he was guilty.
Outside the presence of the jury, the trial court later noted it had bifurcated the issue of the prior conviction, but that “defendant has now admitted such convictions... in open court.” Defendant’s trial counsel responded, “He has indeed.” The trial court then said that it failed “to see the necessity for a bifurcated trial” and inquired if the statements “can be an admission of the defendant in open court of evidence of this conviction.” Defendant’s trial counsel responded, “It can, and at this time we’ll waive jury as to that issue.” After the court confirmed “the issue by priors” was being waived, the trial court granted the request of defendant’s trial counsel to make a record. Defendant’s trial counsel then addressed defendant, “I’ve explained to you. We talked about this five minutes ago. [Defendant], you have a right to have a jury trial whether or not the issue of priors occurred. [¶] Now, since we got on the stand and testified of your own knowledge that they occurred, and under oath, there’s no need for that; wouldn’t you agree?” Defendant responded, “Agree.” Counsel then asked, “Understanding that, do you give up your right to have a jury decide whether those occurred or not, and... simply submit to the Court at issue?” Defendant replied, “Yes.” The People then joined, and the waiver was accepted.
Prior to sentencing, the trial court noted that it still had the “issue remaining as to whether or not the defendant was convicted-was previously convicted of a violation of attempted robbery within the meaning of [section] 667, [subdivisions] (c) through (e). And the jury had been waived on that matter, and that remains to be litigated.” The People responded that their recollection “was that the defendant admitted that on the stand and Your Honor accepted that admission.” The trial court replied, “He did and I did.” Defendant’s trial counsel then said, “Well, I think that was an admission for those purposes. I don’t think there’s been any finding based on it.” The trial court subsequently stated, “The issue before the Court is a court trial on the issue of whether or not [defendant] stands convicted of that event. And it is clear that an admission under oath made... at the time of the trial is a sufficient factual basis under any circumstances for the Court in its court trial to conclude that he was so convicted.” Defendant’s trial counsel interjected, “I don’t dispute that. I’m just pointing out we hadn’t done that yet.” The court continued, “We are doing it now. And I’m finding that is the case. And I do not need anything further from him. [¶] It’s alleged. [¶]... and he admitted it under oath in open court. If that doesn’t support my finding that he’s been previously convicted, then God help us. The Court so finds.”
D. Robbery Verdict Confusion
Defendant was charged with first degree robbery in count 1, but second degree robbery in count 5. However, the verdict forms both stated first degree. After the verdict was announced, and the jury excused, the People told the trial court that count 5 was not alleged or claimed to be first degree. The trial court said it would “correct the verdict form today, correct the charge from first to strike first out of the form.” However, the trial court modified the verdict form for count 1, and not the verdict form for count 5. This error was carried over into the abstract of judgment, which identifies count 1 as being second degree and count 5 as being first degree.
E. Sentencing
Prior to imposing sentence, the trial court discussed sentencing options with counsel. Pursuant to section 654, the trial court stated it would “suspend” the sentences on counts 2 and 6. The parties also discussed the applicability of section 654 to the count 4 robbery; defendant contended that section 654 applied because the entry was with intent to take somebody’s property and property was taken. The trial court disagreed, characterized defendant’s entry as looking to steal something without knowing anyone was present, but “as a secondary thought” he took the opportunity to take the female victim’s money after he encountered her.
For count 1, the trial court imposed a doubled midterm, pursuant to the strike prior, of eight years, plus 10 years for the personal firearm use enhancement. (§ 12022.53, subd. (b).) For count 4, the trial court imposed a concurrent term of four years, plus three years for the firearm use enhancement. (§ 12022.5, subd. (a).) For count 5, the trial court imposed a doubled consecutive term of one-third the midterm, two years, plus one year for one-third the midterm of the great bodily injury enhancement. (§ 12022.7, subd. (a).) This resulted in a total sentence of 21 years in state prison. The People argued for an increased sentence noting the brutality and the failure of defendant to take responsibility. The trial court responded, “Are you surprised? Nothing about that surprises me. This is just an ordinary case. He went in. He burglarized a house. Robbed a lady with a gun. He went out and beat the crap out of a guy and took his property. Right? That’s what he did. 21 years is appropriate because he’s got a prior serious and violent felony. I’m not offended. You’re not offended. In light of the way the case ended, you’re not offended. This is what you get when you do this.” The trial court then noted the parole requirement and stated, “200 times 20, so 4, 000 each. [¶] [Section] 1202.45 to be gathered by the state. [¶]... [¶] No other economic assessments are imposed.”
II. TAKING FROM THE PERSON OR IMMEDIATE PRESENCE
Defendant contends that there was insufficient evidence to establish that the wallet was taken from the “person or immediate presence” of the male victim in the count 5 robbery. In particular, defendant contends the wallet was taken from the residence and, thus, the taking was outside of the immediate presence of the male victim. The People contend that defendant either took the wallet personally from the male victim, or that a taking from the victims’ residence would have satisfied the immediate presence prong. Because the record provides substantial evidence that the wallet was taken from the male victim’s person, we do not address whether a taking from inside the residence would satisfy the immediate presence prong.
“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] ‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.’ [Citation.] ‘In a case, such as the present one, based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. [Citation.]’ [Citation.]” (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.) The scope of the evidence includes both the evidence in the record as well as “reasonable inferences to be drawn therefrom.” (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 89.)
Defendant severely beat the male victim, dragged his body behind a vehicle, beat the victim some more, and then stood up and put something in his pocket. The police later found defendant’s hat and jacket with the male victim’s wallet in a yard waste bin. Because the wallet was found with defendant’s clothing, wallets are frequently kept on someone’s person, and wallets are frequently carried in pockets, the jury could reasonably infer that the item defendant put in his pocket was the male victim’s wallet that defendant had just removed from the victim’s person after beating the victim into submission. Accordingly, there was substantial evidence that the wallet was taken from the male victim’s person.
III. THE PRIOR
Defendant and the People agree that the trial court was not permitted to prove the substance of the prior conviction using only defendant’s trial testimony and that the prior conviction must be retried. Although the trial court and parties characterized defendant’s testimony as admitting the prior, defendant only waived his right to a jury trial on the prior and, thus, we agree that the trial court erred.
Before accepting an admission of a prior conviction, the trial court must advise the defendant and obtain certain waivers on the record that establish a voluntary and intelligent admission. (People v. Mosby (2004) 33 Cal.4th 353, 356.) This requirement is “applicable with equal force” when a defendant expressly or implicitly stipulates “to each and every evidentiary fact or element.” (People v. Little (2004) 115 Cal.App.4th 766, 778.) “[I]n determining the truth of a prior conviction allegation, the trier of fact may ‘look beyond the judgment to the entire record of the conviction’ [citation] ‘but no further’ [citation].” (People v. Trujillo (2006) 40 Cal.4th 165, 177.)
See Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122, disapproved on another point in Mills v. Municipal Court (1973) 10 Cal.3d 288, 307; In re Yurko (1974) 10 Cal.3d 857.
The trial court did not appropriately advise defendant, or obtain waivers from defendant, necessary to accept an admission of a prior conviction. Thus, the trial court could not treat defendant’s testimony as an admission of the prior conviction allegation. Therefore, the trial court could look no further than the record of defendant’s conviction. However, no records of defendant’s conviction were introduced; instead, the trial court impermissibly relied on defendant’s testimony as the basis for finding the allegation to be true. Accordingly, the finding must be set aside and the matter remanded for a new trial only on the prior conviction. (People v. Barragan (2004) 32 Cal.4th 236, 243.)
As the People note, the prior conviction was alleged to be both a serious felony prior (§ 667, subd. (a)) and a strike prior (§ 667, subd. (e)). While the trial court did sentence defendant pursuant to the strike prior, it did not impose a serious felony enhancement. However, “the trial court was required to impose the enhancement under section 667, subdivision (a)(1) in addition to the punishment imposed under section 667, subdivision (e) of the three strikes law.” (People v. Purata (1996) 42 Cal.App.4th 489, 498.) Accordingly, if the trial court finds the prior conviction true as to both the section 667, subdivision (a) allegation, and the section 667, subdivision (e) allegation, it must give effect to both sentencing enhancements.
IV. SECTION 654
Defendant contends that count 4 should have been stayed pursuant to section 654, and that sentences should have been imposed and stayed on counts 2 and 6, rather than the sentences being suspended. Because the retrial of the prior will result in resentencing, the People contend the section 654 issues are moot. Defendant requests we address the issues because section 654 remains applicable regardless of the need to retry the prior. In the interest of judicial economy, we will discuss the section 654 issues.
A. Count 1 Robbery and Count 4 Burglary
Defendant contends that count 4 should have been stayed pursuant to section 654. In particular, defendant contends there was only a single intent to take property.
“ ‘[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.... 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.’ [Citation.] Whether offenses are ‘indivisible’ for these purposes is determined by the ‘defendant’s intent and objective, not the temporal proximity of his offenses.’ [Citation.] ‘If [a] defendant harbored “multiple criminal objectives, ” which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, “even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” ’ [Citation.] The application of section 654, thus, ‘turns on the defendant’s objective in violating’ multiple statutory provisions. [Citation.] Where the commission of one offense is merely ‘ “a means toward the objective of the commission of the other, ” ’ section 654 prohibits separate punishments for the two offenses. [Citation.] [¶] We apply a substantial evidence standard of review. ‘The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial.’ [Citations.] ‘[T]he law gives the trial court broad latitude in making this determination.’ [Citation.]” (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.)
The trial court implicitly found that defendant harbored a separate intent and objective by concluding that defendant entered the victims’ residence “looking for something” without knowing “whether someone’s in there or not, ” and then “as a secondary thought, ” finding “someone who would give him money because they were scared to death because he had a gun and was waiving it around.” The testimony of the female victim provides substantial evidence supporting this determination. In particular, defendant asked, “where is the dope?” The female victim offered defendant the money out of her wallet without defendant demanding the money. Accordingly, the trial court reasonably concluded that the robbery and burglary were not incidental to one another because the robbery was not defendant’s objective in entering the residence.
B. Section 654 Requires Imposing and Then Staying the Sentences
Defendant contends that sentences should have been imposed and stayed on counts 2 and 6, rather than the sentences being suspended. Defendant is correct. This is because when “a defendant suffers two convictions, 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.]” (People v. Deloza (1998) 18 Cal.4th 585, 591–592.) Accordingly, upon resentencing the trial court must impose sentences for counts 2 and 6, and then stay those sentences.
V. ABSTRACT AND OTHER SENTENCING ERRORS
A. Abstract of Judgment
As noted above, the verdict form used for count 5 erroneously described the count 5 robbery as being in the first degree. However, the trial court mistakenly annotated the verdict form for count 1, and the abstract of judgment reflects this error. We have the inherent power to correct errors to make records reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct the trial court clerk to correctly describe counts 1 and 5 in the abstract of judgment prepared following resentencing.
B. Court Security Fees and Facilities Assessments
Although not orally imposed by the trial court, the sentencing minute order includes court security fees pursuant to Penal Code section 1465.8 and the facilities assessment pursuant to Government Code section 70373. These fees and assessments are mandatory, but should have been orally pronounced. (See Pen. Code, § 1202; People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 [“judgment is rendered when the trial court orally pronounces sentence”].)
C. Additional Omitted Fine and Related Fines, Penalties, and Surcharge
The trial court failed to consider whether defendant had the ability to pay the crime prevention fine. (Pen. Code, § 1202.5, subd. (a).) If the trial court imposes the crime prevention fine, defendant will also be subject to “additional assessments, a surcharge, and penalties.” (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528; see Pen. Code, §§ 1464, subd. (a)(1) [state penalty], 1465.7, subd. (a) [state penalty surcharge]; Govt. Code, §§ 70372, subd. (a) [court construction penalty], 76000, subd. (a)(1) [county penalty], 76000.5, subd. (a)(1) [EMS fund penalty]; 76104.6, subd. (a)(1) [county DNA penalty]; 76104.7, subd. (a)(1) [state DNA penalty].)
VI. DISPOSITION
The jury convictions are affirmed. The trial court’s prior conviction finding is vacated, and the sentence is reversed. The trial court is directed to retry the prior conviction issue, and then resentence defendant in accordance with this opinion. Following resentencing, the trial court clerk is directed to prepare a new abstract of judgment, reflecting the new sentence and identifying count 5 as being robbery in the second degree, and count 1 as being robbery in the first degree. The trial court clerk is then directed to forward the new abstract of judgment and sentencing minute order to the Department of Corrections and Rehabilitation.
We concur: HOLLENHORST J.MILLER J.