Opinion
B228112
12-16-2011
THE PEOPLE, Plaintiff and Respondent, v. CEDRIC ADAMS, Defendant and Appellant.
Law Offices of Allen G. Weinberg, Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA312910)
APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis J. Landin, Judge. Affirmed in part, reversed in part, and remanded for further proceedings.
Law Offices of Allen G. Weinberg, Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Cedric Adams of first degree murder (Pen. Code, § 187, subd. (a) ), willful, deliberate, and premeditated attempted murder (§§ 664/187, subd. (a)), first degree robbery (§ 211), first degree burglary (§ 459), evading an officer with willful disregard (Veil. Code, § 2800.2, subd. (a)), four counts of assault upon a peace officer (§ 245, subd. (c)), and assault with a firearm (§ 245, subd. (a)(2)). As to the murder, the jury found true the allegations that defendant personally used a handgun, personally and intentionally discharged a handgun, and personally and intentionally discharged a handgun causing great bodily injury and death. (§ 12022.53, subds. (b), (c), & (d).) As to the attempted murder, the jury found true the allegation that defendant personally used a firearm. (§ 12022.53, subd. (b).) As to the burglary and assault with a firearm, the jury found true the allegation that defendant personally used a firearm. (§ 12022.5, subd. (a).) Defendant admitted that he suffered two prior convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1). The trial court sentenced defendant to 300 years to life in state prison, and awarded defendant 1,196 days of presentence credit consisting of 1,040 days of actual custody credit and 156 days of conduct credit.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that there is insufficient evidence to support his first degree robbery conviction; he was denied his constitutional rights to due process and a fair trial when the trial court failed to instruct sua sponte on theft as a lesser included offense of robbery; the trial court failed to advise him properly of his constitutional rights before accepting his admission on the prior convictions allegations; he did not admit the prior conviction allegation that served as the basis for the section 667, subdivision (a)(1) sentence enhancement; the sentences for his evading an officer with willful disregard and assault with a firearm convictions must be stayed under section 654; the judgment must be modified to reflect 1,375 of presentence custody credit; and the abstract of judgment must be modified to reflect the sentence the trial court imposed. We reverse and remand as to a finding of a prior conviction. We order the abstract of judgment modified to reflect 1,375 days of actual custody credit, and stayed sentences for defendant's conviction for assault with a firearm and an accompanying personal use of a firearm enhancement. Otherwise we affirm.
BACKGROUND
On November 18, 2006, April Myles lived in the downstairs unit of a duplex at 4906 South Central Avenue in Los Angeles. Also living in that residence were April's boyfriend Kevin Jackson, her brother Parrish Myles, her roommate Laura Longoria, and Page Allen.
Because April and Parrish share the same last name, we refer to each by their first name.
About 8:00 p.m. on November 17, 2006, defendant's wife Daisy Perry went to April's duplex and exchanged words with April concerning an in-home support check for Allen. April allowed Allen to live with her and provided him with food. April and Allen had applied for April to receive compensation for allowing Allen to live with her and for feeding him. Perry was angry that she would no longer receive the in-home support checks for Allen, which she said she had been receiving for seven years. Jackson overheard the conversation and believed that it was a "form of disrespect" for Perry to come to his house and argue about money. Jackson screamed at Perry and said to her, "Bitch, get the fuck away from my house." Perry left.
Defendant and Perry lived a couple of blocks from April's duplex. April and Jackson went to defendant and Perry's home to confront defendant about Perry's behavior. At the front gate, Jackson called for defendant. Defendant and Perry came outside. Jackson said to defendant, "I would appreciate it if you would keep your wife away from the house." Perry was "quite angry" and said that Jackson could not tell her anything. Defendant was "quite calm" and said he would "take care of it." Jackson spoke with another person who was present, and then he and April left.
Just after noon the next day, April was home with Parrish, Jackson, Paul Arsen, Longoria, and a few others who were there to help April and Jackson move. April was seated on a couch by the front door when she heard a knock on the door. The duplex had two doors at its entrance—a wooden door and a "bar door." The wooden door was open, and April could see defendant, a skinny taller male, a short Hispanic male, and a tall African-American female at the door. Jackson got up from his seat at the dining room table and answered the knock at the door. Jackson permitted defendant and his companions to enter.
Defendant said that he needed to "holler" at Jackson. Jackson asked defendant why defendant had brought so many people to "holler" at him. Defendant and Jackson repeated themselves, and then defendant said to Jackson a third time that he needed to "holler" at him. Defendant, who was standing in front of April, pulled out a handgun and fired a shot. Jackson fell. Jackson was killed by a single gunshot wound to the neck.
After defendant shot Jackson, April saw one of defendant's male companions take a gun from his pocket. April ran to her bedroom in the back of the house. April heard four or five more gunshots. April locked the bedroom door and jumped out of the window. April crawled to the back of the house and hid between some cars and a van. While April was hiding, she heard defendant, who was still inside the house, say, "Oh, shit," and "Squeak, clear the table." April remained at the back of the house until she heard sirens and a helicopter. April then walked along the side of the house and saw people jumping out of the window.
April ran to the front door and banged on the door. Parrish opened the door and April went inside. April saw Jackson lying on the floor. April attempted to determine if Jackson had a pulse or was breathing. At that time, "Paul" came from the back of the house holding his stomach and asked April to help him. April ran outside to determine if the police or an ambulance had been summoned.
Arsen testified that he was sitting at a table in the living room "rolling a blunt" when Jackson answered a knock at the door. Arsen heard Jackson greet the people at the door and invite them to enter. Seconds later, Arsen heard gunshots. After he heard the first gunshot, Arsen got up from the table and attempted to duck behind a kitchen wall. As he got up, Arsen heard a second shot. That shot hit Arsen in the lower abdomen. Arsen lay down in the kitchen and played dead.
As he lay in the kitchen, Arsen heard someone enter the kitchen and say something like, "That will teach him to mess with my bitch." Arsen heard someone say, "Get that shit. We got to get out of here." Arsen then heard "rustling" as if someone was taking items off the table followed by footsteps heading out of the door. Arsen testified that the table held his and Jackson's cellular telephones, marijuana, and other items. Arsen asked for help getting up. Receiving no help, Arsen got up and went to the bathroom where he found a cellular telephone and called an ambulance.
About 12:40 p.m. on November 18, 2006, Los Angeles Police Department Officer Marco Bolanos, who was assigned as a helicopter pilot, received a radio call about a shooting in progress or shots fired at 4904 South Central Avenue. Officer Bolanos responded to the intersection of 49th and Central where he saw a man running out of a building. The man proceeded to the corner of 49th and Central where he entered the right front passenger door of a green van. The van drove away at a high rate of speed. Officer Bolanos followed the van and believed he saw an object thrown from the right passenger window.
The police were unable to find the object.
On November 18, 2006, Los Angeles Police Department Officer Mark Reed and his partner Officer Royse responded in their marked police car to a shooting in progress near 49th and Central. Officer Reed received a radio broadcast concerning a person getting into a van that was parked in front and the van pulling away. Officer Reed pursued the van. Officer Reed's light bar and siren were activated. At some point, Los Angeles Police Department Officers Mattison and Jordan Bodell joined the pursuit in their police car. When the van attempted to make a right turn at the intersection of 42nd and Central, it collided with a vehicle that was stopped for a red light.
Officers Reed and Mattison stopped their police cars behind the van. As the officers were getting out of their cars to perform a felony stop, the van's driver put the van in reverse and accelerated, causing smoke to be emitted from the van's tires. The van collided with Officer Reed's and Officer Mattison's police cars. Officer Royse was knocked into Officer Reed's car, injuring her, and Officer Bodell was knocked into Officer Mattison's car, injuring him. Officer Reed got into his car and tried to push the van. Officer Mattison, in his car, joined Officer Reed in pushing the van across the intersection and over a curb. The van hit a pole, knocking the rear axle from the van. When the officers pushed the van, it spun around so that Officer Reed could see defendant was driving the van. After the van was disabled, the passenger got out, took a handgun from his waistband, and threw the handgun to the ground.
Los Angeles Police Department Detective Kelle Baitx responded to the crime scene at 42nd Street and Central Avenue. There, Detective Baitx recovered a loaded two-inch, five-shot, .38 revolver. In the revolver's cylinder were three spent casings and two live rounds. Detective Baitx recovered from the van two cellular telephones, a lighter in the shape of a small automatic handgun, and a letter addressed to April Myles at 4906 South Central Avenue. A set of keys also was booked into evidence.
A police officer took April to 42nd or 43rd and Central. There, April saw a wrecked van and numerous police cars. Defendant was present and April identified him as the person who shot Jackson. A detective showed April some pieces of property. April recognized her house keys, her house telephone, a piece of mail concerning her son, and Jackson's cellular telephone. April had not given anyone, including defendant, permission to remove the property from her home.
A couple of days after the shooting, Los Angeles Police Department Detective Daniel Gersna examined the van after it had been impounded and recovered a cordless house telephone that belonged to April and Arsen's car keys. While Arsen was in the hospital, the police showed him property that belonged to him. The items consisted of his car keys, a lighter in the shape of a pistol, and two cellular telephones. Arsen did not give anyone permission to remove his cellular telephone or cigarette lighter from the residence.
Los Angeles Police Department firearms examiner Starr Sachs examined the expended bullet that was recovered from Jackson and the firearm recovered in this case. Sachs opined that the bullet had been fired from the recovered firearm.
DISCUSSION
I. Sufficiency Of Evidence Supporting Defendant's Robbery Conviction
Defendant contends that insufficient evidence supports his robbery conviction because the evidence does not show that he formed the intent to take Arsen's property "before or during the time he used force or fear." Sufficient evidence supports the conviction.
A. Standard of Review
"'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.]" (People v. Avila (2009) 46 Cal.4th 680, 701.) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 919.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom." (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.) "We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]' [Citation]." (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.) "The standard of review is the same when the prosecution relies mainly on circumstantial evidence." (People v. Valdez (2004) 32 Cal.4th 73, 104.)
B. Application of Relevant Principles
"Robbery is defined as the taking of personal property of some value, however slight, from a person or the person's immediate presence by means of force or fear, with the intent to permanently deprive the person of the property. (§ 211; People v. Harris (1994) 9 Cal.4th 407, 415 [37 Cal.Rptr.2d 200, 886 P.2d 1193].) To support a robbery conviction, the evidence must show that the requisite intent to steal arose either before or during the commission of the act of force. (People v. Morris [(1988)] 46 Cal.3d [1,] 19.) '[I]f the intent arose only after the use of force against the victim, the taking will at most constitute a theft.' (Ibid.) The wrongful intent and the act of force or fear 'must concur in the sense that the act must be motivated by the intent.' (People v. Green (1980) 27 Cal.3d 1, 53 [164 Cal.Rptr. 1, 609 P.2d 468]; see § 20; Hall, General Principles of Criminal Law (2d ed. 1960) pp. 185-190.)" (People v. Marshall (1997) 15 Cal.4th 1, 34.)
Defendant contends that the evidence demonstrates that Arsen was not shot in order to effectuate the taking of his property. Rather, defendant contends, the evidence demonstrates that Arsen was "merely a collateral casualty" to the incident between defendant and Jackson and that Arsen's property was "clearly taken as an afterthought to the shooting." Viewed in the light most favorable to the verdict, the evidence supports the jury's conclusion that defendant formed the intent to take Arsen's property before or during the use of force of fear.
The jury was instructed on robbery with CALCRIM No. 1600, which provides, in part, "The defendant's intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery."
The prosecution's theory was that defendant and his companions went to April's home to shoot Jackson based on Jackson's dispute with defendant's wife. In support of that theory, the prosecution presented evidence that Jackson had a dispute with defendant's wife, the next day defendant went to April's home where he told Jackson three times that he needed to "holler" at him, and defendant then shot Jackson in the neck. Jackson fell, having suffered a fatal gunshot wound. At the time that defendant shot Jackson, Arsen was sitting at a table in the living room. On the table were Arsen's cellular telephone and lighter, Jackson's cellular telephone, and marijuana. When Arsen heard the shot defendant fired at Jackson, Arsen got up from the table and attempted to duck behind a kitchen wall. As he got up, Arsen was struck in the abdomen by a bullet. Arsen lay on the kitchen floor, playing dead. As he lay in the kitchen, Arsen heard a noise that sounded as if someone was taking items off the table.
Once defendant shot Jackson, he had accomplished the purpose for which he went to April's home. No evidence was presented that Arsen attempted to intercede on Jackson's behalf. At the time that Arsen was shot, he was getting up from a table that held cellular telephones, a lighter, and marijuana. Based on the evidence, a reasonable juror could conclude that the Arsen shooting was not a part of the Jackson shooting. Instead, such a juror could conclude that after defendant shot Jackson, defendant and his armed companion turned their attention to the property on the table and defendant or defendant's companion shot Arsen to effectuate the theft of that property. Accordingly, there was sufficient evidence from which a juror could have concluded that defendant formed the intent to rob Arsen before Arsen was shot.
II. The Trial Court's Sua Sponte Duty To Instruct On Theft As A Lesser Included Offense Of Robbery
Defendant contends that the trial court had a sua sponte duty to instruct on theft as a lesser included offense of robbery because there was no evidence that defendant formed the intent to take Arsen's property before Arsen was shot and no evidence of the concurrent use of force or fear to take Arsen's property. We disagree.
Respondent contends that defendant forfeited his claim of instructional error by failing to object in the trial court. Defendant's claim on appeal is that the trial court had a sua sponte duty to instruct on theft. A trial court must instruct on a lesser included offense not only in the absence of a request by the defendant, but even when the defendant expressly objects to such an instruction. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Thus, defendant's failure to request an instruction on theft did not forfeit the claim on appeal that the trial court had a sua sponte duty to instruct on theft. (People v. Ervine (2009) 47 Cal.4th 745, 771-772, fn. 12.)
A. Standard of Review
"On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 181.)
B. Application of Relevant Principles
"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citations.] That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. [Citations.] To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 744-745.) The existence of any evidence, no matter how weak, will not give rise to a sua sponte duty to instruct on a lesser included offense. (People v. Taylor (2010) 48 Cal.4th 574, 623.) "'Theft is a lesser included offense of robbery, which includes the additional element of force or fear.' [Citation.]" (People v. Bradford(1997) 14 Cal.4th 1005, 1055.)
As discussed above, there was substantial evidence that defendant was shot to effectuate the taking of Arsen's property and, therefore, that defendant formed the intent to take Arsen's property before Arsen was shot. There is no evidence from which a reasonable juror could conclude that defendant committed theft and not robbery—that is that force or fear was not used to take Arsen's property. Contrary to defendant's view, April's testimony that after the shooting she heard defendant say, "Oh, shit," and "Squeak, clear the table," is not "substantial evidence" that Arsen's property was taken without force or fear. Such testimony casts no light on when defendant formed the intent to take Arsen's property and whether force or fear was used in the taking. Accordingly, based on the evidence adduced at trial, the trial court did not err in failing to instruct, sua sponte, on theft as a lesser included offense of robbery.
III. Defendant's Prior Conviction Admissions
Pursuant to the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), the prosecution alleged that defendant suffered prior convictions for robbery in case numbers BA117531 and VA014670 and attempted robbery in case number A780512. Following a jury trial on the substantive offenses, defendant admitted that he suffered the robbery convictions in case numbers BA117531 and VA014670. On appeal, defendant contends that these admissions were not voluntary and intelligent because, although the trial court advised him of and obtained his waiver of his constitutional right to a jury trial, the trial court failed to advise him of and obtain his waiver of his constitutional rights to remain silent and to confront his accusers as required by In re Yurko (1974) 10 Cal.3d 857. We disagree.
The trial court also found, erroneously, that defendant admitted the prior conviction for attempted robbery in case number A780512. We address and reverse that finding below.
A. Background
On June 22, 2010, after the close of the evidence, but before the case was given to the jury, the trial court stated that it understood that defendant was willing to waive a jury trial on the prior conviction allegations. Defense counsel responded that defendant was willing to waive. Pursuant to that representation, the prosecutor took defendant's waiver as follows:
"Ms. Nistorescu [the prosecutor]: Mr. Cedric Adams, sir, first of all, is that your true name?
"The Defendant: Yes.
"Ms. Nistorescu: Okay. And sir, you are charged in the amended information in case BA312910 with having suffered prior convictions, specifically three prior convictions for serious and violent felonies as follows: in case BA117531 for a conviction of Penal Code section 211, robbery, in [sic] October 17th, 1995. In addition, in case VA014670, again, for a violation of Penal Code section 211, robbery, with a conviction date of May 15th, 1992, and finally, case number A780512 for a violation of Penal Code section 664/211, attempted robbery, with a conviction date of August 15th of 1986.
"As to each of these convictions, which are strikes, you are entitled to have a jury trial to determine whether or not you actually suffered these convictions. A jury of 12 people would hear evidence from the People and would have to find that you in fact did suffer these convictions. Do you waive your right to have that jury trial so that this court can determine whether or not you suffered these convictions?
"The Defendant: Yeah.
"Ms. Nistorescu: Does counsel join?
"Mr. Escobedo [defense counsel]: Yes.
"Ms. Nistorescu: People join.
"The Court: I want to make clear to Mr. Adams that the jury that would hear that, if you wanted a jury trial, would be the same jury of 12 people. Do you understand that?
"The Defendant: (Inaudible response.)
"The Court: I didn't hear you.
"The Defendant: Yes, sir.
"The Court: Do you understand?
"The Defendant: Yes, sir?
"The Court: Do you still wish to waive your right to the jury trial?
"The Defendant: Yes, sir."
Following the jury's verdicts, the matter was continued to August 17, 2010, for sentencing and a trial on the prior conviction allegations. On that date, defendant admitted his prior robbery convictions in case numbers BA117531 and VA14670 as follows:
When the trial court set the matter for trial on the priors, the prosecutor asked if it would be a jury trial. When the trial court responded, "Yes," defense counsel stated, "You mean court trial."
"The Court: Good morning. The matter is set for two matters, sentencing hearing, but also a trial on the priors.
"How did you wish to proceed, counsel?
"Ms. Nistorescu: Your Honor, I've spoken to counsel. My understanding is there's going to be a stipulation as to the priors by Mr. Adams.
"Mr. Escobedo: That's correct.
"The Court: Please state the stipulation.
"Ms. Nistorescu: Yes. Actually, your Honor, I'll just take the admission directly from Mr. Adams.
"The Court: Sure.
"Ms. Nistorescu: Cedric Adams, first of all, is that your true name?
"The Defendant: True name.
"Ms. Nistorescu: Sir, were you born on March 15th, 1958?
The Defendant: Yes.
"Ms. Nistorescu: Now, Mr. Adams, as to the allegation that you sustained a conviction for a violation of Penal Code section 211, second degree robbery, on April 27th of 1992, in case number VA014670 in the Superior Court of the County of Los Angeles, do you admit that?
"The Defendant: Yes.
"Ms. Nistorescu: As to the allegation that you sustained an additional conviction for a violation of Penal Code section 211 on October 17th of 1995 in case number BA117531, also in the Superior Court of the County of Los Angeles, do you also admit that allegation?
"The Defendant: Yes.
"Ms. Nistorescu: Does counsel join in the admission?
"Mr. Escobedo: Yes.
"Ms. Nistorescu: People join.
"The Court: Very well. The court finds the defendant has expressly, knowingly, understandingly and intelligently waived his constitutional rights. The court finds that his admissions are freely and voluntarily made with an understanding of the nature and consequences thereof.
"Ms. Nistorescu: Your Honor, I know we took a waiver of the jury trial previously. I just want to put that on the record because I believe we took that from the defendant when we were last here with regard to these priors. So that's why I did not repeat that waiver today.
"The Court: Very well. Well, based on the stipulation, the court finds that the allegation of the three prior convictions is true."
B. Application of Relevant Principles
"[B]efore accepting a criminal defendant's admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. (In re Yurko[, supra,] 10 Cal.3d [at p.] 863 [112 Cal.Rptr. 513, 519 P.2d 561].) Proper advisement and waivers of these rights in the record establish a defendant's voluntary and intelligent admission of the prior conviction. (People v. Howard (1992) 1 Cal.4th 1132, 1178-1179 [5 Cal.Rptr.2d 268, 824 P.2d 1315] (Howard); North Carolina v. Alford (1970) 400 U.S. 25, 31 [27 L.Ed.2d 162, 91 S.Ct. 160].)" (People v. Mosby (2004) 33 Cal.4th 353, 356.)
Not all defective advisements require reversal. In People v. Mosby, supra, 33 Cal.4th 353, the California Supreme Court drew a distinction between silent record cases—those cases that show no express advisement and waiver of constitutional rights, and incomplete advisement cases—those cases in which a defendant waives his constitutional rights after being advised of his right to trial on the prior conviction allegation, but not of the associated rights to remain silent and to confront witnesses. (Id. at pp. 361-364.) In silent record cases, a reviewing court cannot infer that the defendant knowingly and intelligently waived his rights to trial, to remain silent, and to confront witnesses. (Id. at p. 362.) In incomplete advisement cases reversal is not required "[w]hen, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial" but "the totality of circumstances surrounding the admission" supports the conclusion that the admission was voluntary and intelligent. (Id. at p. 356.)
Defendant contends that his admissions of the prior convictions were not voluntary and intelligent because his admissions were made nearly two months after the jury verdicts, the trial court failed to re-advise him of his right to a court trial, and the trial court failed to obtain his express waivers of the constitutional rights to remain silent and to confront witnesses. The totality of circumstances surrounding the admission supports the conclusion that defendant's admissions were voluntary and intelligent. (People v. Mosby, supra, 33 Cal.4th at p. 365.) On June 22, 2010, defendant was advised of and waived his right to a jury trial on the prior conviction allegations. On August 17, 2010, the trial court stated that the matter was set for sentencing and a "trial on the priors." In his jury trial on the substantive offenses, defendant exercised his right not to testify thereby forcing the prosecution to prove the charges against him. Thus, defendant would have understood that he had the right to remain silent and force the prosecution to prove the prior conviction allegations against him. (Id. at p. 364.) Also, because defendant, through counsel, confronted witnesses at his jury trial, he also would have understood that at a trial of the prior conviction allegations he would have had the right of confrontation. (Ibid.)
Defendant's contention that his admissions are invalid because they were made nearly two months after he was advised of his right to a jury trial on the prior conviction allegations is unavailing. At the hearing at which defendant admitted his prior robbery convictions in case numbers BA117531 and VA014670, the prosecutor specifically raised the issue of defendant's right to a jury trial on the prior conviction allegations when she stated to the trial court, "I know we took a waiver of the jury trial previously. I just want to put that on the record because I believe we took that from the defendant when we were last here with regard to these priors. So that's why I did not repeat that waiver today." Moreover, even if the prosecutor had not again raised the issue of defendant's right to a jury trial, a defendant can be expected to retain for two months the knowledge that he participated in a jury trial during which he possessed and exercised the rights to remain silent and to confront witnesses.
IV. The Trial Court's Finding That Defendant Admitted A Prior Conviction In Case Number A780512
Defendant contends that he was not properly advised of his constitutional rights with respect to the alleged prior conviction in case number A780512 and the trial court
erred in finding that he admitted that alleged prior conviction. Sentencing enhancements are based on the prior conviction. Defendant concedes that he admitted that he suffered two of the three alleged prior convictions—the convictions in case numbers BA117531 and VA014670, but argues that he did not admit the alleged prior conviction in case number A780512. Accordingly, defendant argues, the trial court's finding that he admitted the prior conviction in case number A780512 and the imposed and stayed five-year sentence enhancements (§ 667, subd. (a)(1)) based on that conviction must be reversed. Respondent concedes the error, but argues that the matter should be remanded for a retrial. We accept respondent's concession.
Because, as set forth above, defendant properly was advised of his Yurko rights, his claim on appeal properly is viewed solely as a claim of insufficient evidence. That is, because defendant did not admit his prior conviction in case number A780512, there was insufficient evidence to support the trial court's finding that he suffered that conviction.
As set forth above, defendant admitted that he suffered prior robbery convictions in case numbers BA117531 and VA014670. In taking defendant's admissions of his prior convictions, the prosecutor failed to address defendant's alleged conviction in case number A780512 and, consequently, defendant made no admission with respect to that case. Because defendant did not admit that he suffered a prior conviction in case number A780512, the trial court's finding that defendant admitted a conviction in that case and the imposed and stayed five-year sentence enhancements based on that conviction must be reversed and the matter remanded to the trial court for retrial of the prior conviction allegations based on case number A780512. (People v. Barragan (2004) 32 Cal.4th 236, 239 [retrial of prior conviction allegations is permissible when the prior conviction finding is reversed for insufficient evidence].)
V. Section 654
Defendant contends that his sentences for evading an officer with willful disregard and assault with a firearm convictions must be stayed under section 654. Respondent concedes that defendant's assault with a firearm conviction should have been stayed.
In his opening brief, defendant contended that his sentence for first degree burglary also should be stayed under section 654. In his reply brief, defendant conceded that that sentence was not subject to section 654's bar on multiple punishments.
A. Standard of Review
"'The question whether [Penal Code] section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.' ([People v.] Hutchins [(2001)] 90 Cal.App.4th [1308,] 1312.) The court's findings may be either express or implied from the court's ruling. (See People v. Blake (1998) 68 Cal.App.4th 509, 512 .) 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. (See, e.g., People v. Blake, supra, at p. 512; People v. Osband (1996) 13 Cal.4th 622, 730-731 [55 Cal.Rptr.2d 26, 919 P.2d 640].) '"We must 'view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.]" [Citation.]' (Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)" (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)
B. Application of Relevant Principles
Section 654, subdivision (a) provides, in pertinent part, "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." "In Neal v. State of California (1960) 55 Cal.2d 11 [9 Cal.Rptr. 607, 357 P.2d 839], [the Supreme C]ourt construed the statute broadly: '"Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [^] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Id. at p. 19, italics added.)" (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
1. Evading an officer with willful disregard
Defendant contends that his conviction for evading an officer with willful disregard shared the same intent and objective as his four convictions for assaulting a peace officer—that is, to escape after the crimes committed at April's residence. In support of this contention, defendant asserts that the evidence showed that when he fled from April's residence, he was pursued by two police cars. During the pursuit, defendant "crashed into a civilian vehicle, the two patrol cars blocked him from behind, and [he] rammed both patrol cars in an effort to continue his escape." The evidence, however, supports the conclusion that defendant crashed into the police cars in order to assault the police officers and not to continue his escape.
Officer Reed testified that as he pursued the van, the van collided with a vehicle at the intersection of 42nd and Central. Officers Reed and Mattison stopped their police cars behind the van. As the officers began to perform a felony stop, the van accelerated in reverse and collided with the two police cars. Officers Reed and Mattison then used their police cars to push the van across the intersection and over a curb. During his testimony, Officer Reed was asked, "This vehicle the van crashed into, after the van crashed into the vehicle, what did the vehicle do?" Officer Reed responded, "The vehicle left." Officer Reed was asked, "So by the point when your two police vehicles start pushing this van across the street, there's no vehicle in this intersection other than the van; correct?" Officer Reed responded, "Correct." Based on such evidence, the trial court reasonably could have concluded that although the police cars blocked the van's rear escape route, the "civilian vehicle" into which the van crashed did not block the van's frontal escape route, and, accordingly, defendant drove the van into the police cars in order to assault the police officers and not to further his escape. Thus, the trial court reasonably could have concluded that because defendant's evasion of an officer with willful disregard did not share the same intent and objective as defendant's assaults on the peace officers, section 654 did not bar separate punishments.
2. Assault with a firearm
Defendant contends that his convictions for attempting to murder Arsen and assaulting Arsen with a firearm shared the same intent and objective and separate punishments were thus barred by section 654. Respondent agrees. We accept respondent's concession.
Defendant's attempted murder and assault with a firearm offenses are based on the single act of shooting of Arsen. (People v. Diaz (2002) 95 Cal.App.4th 695, 697-698, 708 [staying, under section 654, sentences for aggravated mayhem, assault by means likely to produce great bodily injury, and assault with a semiautomatic weapon that were ordered served concurrent to a sentence for attempted murder].) Because defendant's sentence for his assault with a firearm conviction must be stayed pursuant to section 654, so also must defendant's accompanying sentence enhancement for personal use of a firearm be stayed pursuant to section 654. (People v. Guilford (1984) 151 Cal.App.3d 406, 411 ["an enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed [under section 654]"].) We order the abstract of judgment modified to reflect that defendant's sentences for assault with a firearm and accompanying personal use of a firearm have been stayed pursuant to section 654.
The trial court ordered the section 12022.5, subdivision (a) enhancement stayed. Whether that stay was pursuant to section 654 is not clear from the record.
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VI. Defendant's Presentence Custody Credit
The trial court awarded defendant 1,196 days of presentence credit consisting of 1,040 days of actual custody credit and 156 days of conduct credit. Defendant contends that he was entitled to 1,375 days of actual custody credit and concedes that he was not entitled to any days of conduct credit. Respondent agrees.
A defendant is entitled to credit for all days in custody commencing with the day of arrest (People v. Taylor (2004) 119 Cal.App.4th 628, 645) and including partial days and the day of sentencing (People v. Browning (1991) 233 Cal.App.3d 1410, 1412; People v. Fugate (1990) 219 Cal.App.3d 1408, 1414). A defendant convicted of murder is not entitled to conduct credit. (§ 2933.2.) "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. [Citation.]" (People v. Taylor, supra, 119 Cal.App.4th at p. 647.)
Defendant was arrested on November 18, 2006. Defendant was sentenced on August 23, 2010. The period from and including November 18, 2006, to and including August 23, 2010, is 1,375 days. Defendant is not entitled to any days of conduct credit because he was convicted of murder. (§ 2933.2.) Accordingly, the abstract of judgment is ordered modified to reflect that defendant has 1,375 days of actual custody credit and no days of conduct credit.
VII. Clerical Errors In The Abstract Of Judgment
Defendant contends that the abstract of judgment must be modified to reflect accurately the trial court's sentences with respect to his conviction for assault with a firearm (§ 245, subd. (a)(2)) and the accompanying personal use of a firearm enhancement (§ 12022.5, subd. (a)). This contention has been rendered moot by our determination above that defendant's sentence for the assault conviction and accompanying firearm enhancement should have been stayed pursuant to section 654. Consistent with that determination, we ordered the abstract of judgment modified to reflect a stayed sentence of 25 years to life for defendant's conviction for assault with a firearm and a stayed 10-year sentence enhancement for defendant's personal use of a firearm.
DISPOSITION
We reverse and remand for retrial the trial court's finding that defendant suffered a prior conviction in case number A780512, and the imposed and stayed five-year sentence enhancements based on that finding. The abstract of judgment is ordered modified to reflect 1,375 days of actual custody credit, zero days of conduct credit, a sentence of 25 years to life for defendant's conviction for assault with a firearm stayed pursuant to section 654, and a stayed 10-year sentence enhancement for defendant's personal use of a firearm. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J. We concur:
TURNER, P. J.
ARMSTRONG, J.