Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F06902
HULL, J.Defendant Adrian Frank Andrade was convicted by a jury of first degree murder (Pen. Code, § 189) and robbery (id. § 211) and was sentenced to concurrent terms of 25-years-to-life and three years. He appeals, contending: (1) the trial court erroneously admitted hearsay evidence; (2) the trial court improperly excluded testimony from his expert witness; (3) he was denied due process when the trial court denied him an adequate opportunity to investigate jury misconduct; (4) the prosecutor committed misconduct in argument; and (5) there is insufficient evidence to support the convictions. We do not find any of these contentions to be meritorious. However, we do find the court erred in failing to stay the three-year term on the robbery count. We amend the judgment accordingly, and affirm the judgment as amended.
FACTS AND PROCEEDINGS
On the evening of July 26, 2005, defendant and three others--Michael Montano, Christopher Moyo and Daniel Perez--met at a park, smoked marijuana, and discussed robbing a drug dealer of his merchandise. The four eventually got into Moyo’s car and drove to a Valero gas station and convenience store at the corner of Florin Road and French Road in Sacramento.
Montano provided the group with the name and phone number of Clifford Owens, a drug dealer Montano had done business with in the past. They agreed to call Owens and lure him to the Valero station with an offer to purchase marijuana. They further agreed that, after Owens arrived, defendant and Perez would approach Owens and take his marijuana without paying for it.
After the four arrived at the Valero station, they parked in three different locations in an effort to find the best spot to pull off their scheme. In the last spot, they backed into the parking space in order to facilitate their flight after the robbery. Defendant and Perez got out of the car and defendant placed a call to Owens. Using the fake name of Brandon, defendant arranged to meet with Owens at the Valero station to buy a quarter pound of marijuana for $900.
At the time, Owens was living with Harley White. White had been a drug dealer and had introduced Owens to the illicit trade. On the evening of July 26, White was at home with Jodi W., a neighbor, when Owens arrived to collect his supply of marijuana for the purported sale to defendant. Owens told them he was meeting someone named Brandon to sell him a quarter pound of marijuana. White and Jodi W. watched Owens measure out the marijuana and put it into a plastic baggie. He then put the plastic baggie into a paper grocery bag with paper handles. Owens told White the purchaser had mentioned that he knew White. Owens asked White if he knew the person or recognized the telephone number of the caller. White did not recognize either.
White tried to talk Owens out of making the sale, because White did not recognize the name or number of the purchaser and thought it might be a setup. However, Owens was behind on his bills and needed the money. White asked Owens what he would do if the purchaser pulled a gun on him. Owens said the person would have to shoot him, because he would not give up the marijuana without being paid.
After Owens arrived at the Valero station, defendant and Perez approached his car. Perez was wearing a red backpack. Moyo and Montano remained behind in Moyo’s car.
Gloria S. was walking to the Valero station at the time and noticed Owens standing by the open door of his car and reaching into a brown paper bag. She saw two other men standing nearby. One of the two men with Owens began walking toward the Valero station behind Gloria S. However, she heard someone yell for him to come back and he turned around and returned to the others. As Gloria S. reached the door of the convenience store, she heard several shots.
Wayne M. was also in the area at the time. He heard the shots and, 10 or 15 seconds later, heard car doors shut and saw a white car leave the Valero parking lot in a hurry. He wrote down a license number and later gave it to authorities. This number was a close match to that registered to Moyo.
Moyo heard the gunshots three or four minutes after defendant and Perez walked over to Owens’s car. He started the car and waited. Defendant and Perez ran back to the car and the four drove away. Moyo heard defendant say to Perez, “I think you killed him.” Defendant was holding the bag of marijuana and, as they drove away, he split it among them.
Owens was found lying face-down on the ground with gunshot wounds to his head. He was dead. He was still holding the handles to the brown paper bag in his hand. Nearby was a red backpack, containing 12 unspent rounds of .22 caliber ammunition and a prescription bottle containing .4 grams of marijuana. Also at the scene were four .22 caliber shell casings.
Defendant was interviewed by police the next day. He claimed to have been with his girlfriend the day of the shooting and specifically denied being at the Valero station. However, later he admitted he might have been at the station that day but claimed he was on his bike. He denied having anything to do with the murder.
The next day, defendant was again interviewed by police. This time, he admitted being at the Valero station with the others, but claimed he was only there to buy marijuana. According to defendant, he called Owens to setup the deal, but the marijuana turned out to be of poor quality and he walked away from the deal. He said Owens got aggressive with them. He further said that, as he was walking away, he heard gunshots. He then ran to the car and departed with the others.
Defendant and the other three were charged with robbery and murder. After a mistrial, Moyo entered into a plea deal. Defendant and Montano were tried together with separate juries. As noted above, defendant was convicted as charged. However, while finding defendant guilty of murder during the commission of a robbery, the jury found not true allegations that defendant was armed with a firearm at the time of the offenses and that defendant was a major participant in the robbery who had acted with reckless disregard for human life. Similarly, as to the robbery, the jury found not true that defendant was armed with a firearm.
DISCUSSION
I
Hearsay Evidence
Defendant contends the trial court erred in admitting the hearsay testimony of Harley White and Jodi W. about what the victim told them before he left home to meet defendant at the Valero station. In particular, defendant challenges the victim’s statements that he was meeting someone named Brandon to sell a quarter pound of marijuana for $900 and that if the buyers pulled a gun on him they would have to shoot him because he was too much in debt to allow the marijuana to be taken without payment.
In People v. Alcalde (1944) 24 Cal.2d 177 (Alcalde), the State Supreme Court found admissible a decedent’s statement that she intended to go out with a man named Frank, the defendant’s nickname, the night she was killed. The court explained: “Elements essential to admissibility are that the declaration must tend to prove the declarant’s intention at the time it was made; it must have been made under circumstances which naturally give verity to the utterance; it must be relevant to an issue in the case.” (Id. at p. 187.)
Alcalde was subsequently codified in Evidence Code section 1250. (See People v. Majors (1998) 18 Cal.4th 385, 404.) It reads: “Subject to Section 1252 [concerning statements made under circumstances indicating a lack of trustworthiness], evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250, subd. (a).)
Defendant argues the prosecution ostensibly introduced the evidence to prove the victim’s state of mind but in fact did so to prove the truth of the matters stated, to wit, “that Mr. Owens was broke, needed to pay his bills, was to sell a quarter pound and not a quarter ounce of marijuana for $900.00, and the dealer would have to be shot to force him to give up his marijuana.” Defendant further argues the prosecution introduced this evidence for the improper purpose of proving defendant’s conduct at the time of the shooting. The People counter that the evidence was properly admitted to prove the victim’s intent to resist any attempt to take his marijuana by force, which in turn helped to prove this is what came to pass. The People have the better argument.
Defendant is correct that the evidence in question was not admissible to prove the victim was broke and needed to pay his bills. Whether the victim was in fact broke and needed to pay his bills was not relevant to any issue in the case. On the other hand, the victim’s perception, i.e., his state of mind, that he was broke and needed to pay his bills was relevant. Thus, it would not matter that, unknown to the victim, his great aunt had left him $1 million or his creditors had decided to forgive his debts. The relevant issue was whether the victim thought he could not afford to have the marijuana stolen from him.
Likewise, whether the victim had been asked for a quarter pound of marijuana and was not willing to have that marijuana stolen from him without a fight were relevant to issues presented in the case. In his second interview with police, defendant asserted he had called the victim to arrange the purchase of a quarter ounce of marijuana. Defendant further asserted he met with the victim at the Valero station but was dissatisfied with the quality of the marijuana and walked away from the deal. Finally, defendant asserted the victim got aggressive and intimated that this aggressiveness led to the shots being fired.
The statements made by the victim to Harley White and Jodi W. tended to prove otherwise. They suggested defendant used a false name and asked for a quarter pound of marijuana, both of which supported a conclusion that defendant intended a robbery rather than a purchase. They further suggested the victim thought his finances were such that he could not afford to have the marijuana stolen from him and would resist any such effort, thus further supporting the charge of robbery. Finally, this evidence helped to prove that the shooting resulted not from the victim’s aggressiveness but from the victim’s resistance to efforts to rob him.
Defendant contends it is improper to use evidence of the victim’s state of mind to prove conduct of the defendant. However, the State Supreme Court concluded otherwise in People v. Majors, supra, 18 Cal.4th at page 404, where it expressly rejected an argument that Alcalde was wrongly decided because it allowed a declarant’s statements to be used to prove conduct of someone other than the declarant. Evidence may be introduced to prove a declarant’s state of mind, which in turn may tend to prove conduct of the declarant consistent with that state of mind. Finally, conduct of the declarant consistent with his state of mind may be relevant as circumstantial evidence of another’s conduct. Here, evidence that the victim intended to resist a robbery and was killed is circumstantial evidence that he in fact attempted to resist a robbery and was killed for his efforts.
II
Exclusion of Expert Testimony
As explained in the preceding section, one of defendant’s theories at trial was that he had gone to the Valero station to purchase a quarter ounce of marijuana, found the marijuana to be of inferior quality, and walked away from the deal. According to defendant, the shooting occurred after he walked away.
In the midst of trial, defendant attempted to present the testimony of an expert witness that the marijuana taken from the victim was of inferior quality. Defendant explained that his expert had recently examined the marijuana and concluded it was “crap.” The prosecution responded that the marijuana had deteriorated with the passage of time and handling so that any examination now would not be probative. The court too expressed a concern about the effect the passage of time would have on the quality of the marijuana. Ultimately, the court excluded the testimony on the basis of Evidence Code section 352, explaining:
“I am gonna rule adverse to the defense on this under 352. I do feel based on the timing of this issue, based on the unanswered questions that we have, based on the fact that the people really have not made a case or stated their case on this being good grade marijuana, it’s just marijuana.
“It’s quite unclear the extent it has, if at all, changed in its nature. I do think it’s reasonable to assume that through the handle [sic] of it as an item of evidence and to the extent it needed to be analyzed by the crime lab, carried back and forth to court and to the lab and to the police, that it is plant material.
“I observed it here in court. How can you compare it, perhaps, to the herbs I get at the grocery store?
“After a period of time, they don’t look anything like they did initially and therefore the expert, however well means [sic], ability to offer an opinion of great assistance as to how this looked over a year ago is of such limited probative value and the risk of prejudice and--not really prejudice but just total confusion of the issues and inability to reach anything of assistance leads me to conclude under 352 it’s appropriate to exclude it.”
Evidence Code section 352 permits the exclusion of relevant evidence where “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We review a trial court order denying a motion to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 213.)
Although a criminal defendant has a fundamental constitutional right to present a defense through the testimony of witnesses and the presentation of evidence (Washington v. Texas (1967) 388 U.S. 14, 19 [18 L.Ed.2d 1019, 1023]), “a state court’s application of ordinary rules of evidence--including the rule stated in Evidence Code section 352--generally does not infringe upon this right.” (People v. Cornwell (2005) 37 Cal.4th 50, 82.)
Defendant contends the trial court erred in excluding the evidence under Evidence Code section 352, because the evidence would have been probative on two points: (1) as support for his contention that, because the quality was bad, he walked away from the deal; and (2) as general support for his credibility. Defendant further argues the evidence would not have been confusing to the jury, because “[t]he marijuana was either good stuff or ‘crap,’ as related by the expert.”
We agree with the trial court the proffered evidence had little probative value. Besides the fact the expert would have rendered an opinion about the quality of the marijuana a year after the incident, the issue of the quality of the marijuana was peripheral at best. Defendant claimed he was buying a quarter ounce, yet the quantity brought to the scene was a quarter pound. Defendant claimed he walked away from the deal, but Gloria S. testified one of the two men with the victim walked away from the victim but was called back by the other and returned before shots were fired.
But even assuming some probative value, defendant misstates the confusing nature of the evidence. He argues there is nothing confusing about whether the marijuana was good stuff or “crap.” However, what is confusing is the effect of the passage of time and handling on the quality of the marijuana. Defendant made no offer of proof on this point. This evidence also had the potential to create a mini-trial on the quality of the marijuana, with competing experts. Under these circumstances, we cannot say the trial court abused its discretion in excluding the evidence.
III
Investigation of Juror Misconduct
Defendant contends the trial court abused its discretion in refusing to grant a continuance and provide juror identifying information to permit him to investigate potential juror misconduct. He argues that, at the time of his request, he had learned one of the jurors had concealed the fact she had been married to a drug dealer and stated to the others that it could have been her killed at the Valero station.
The jury returned guilty verdicts on June 13, 2006. The matter was set for sentencing on July 14. However, on July 14, defense counsel informed the court he had not received the probation report in a timely fashion. He also requested a continuance to investigate juror misconduct. Counsel indicated his investigator had telephone numbers and addresses for eight of the jurors and had been able to contact two of them. He explained his reason for contacting the jurors was to explore potential inconsistencies in the verdicts, in particular the contrast between the guilty verdicts and the not true findings on the special circumstances. The court granted a continuance of one week, to July 21, to allow defendant to review the probation report. The court further indicated that, if grounds exist for a new trial, such a motion should be filed by the next hearing.
Prior to the July 21 sentencing hearing, defendant filed a request for disclosure of juror addresses and telephone numbers. In support of the request, defendant submitted summaries of interviews with three jurors. One juror indicated she had been the lone “holdout” juror at a time during deliberations when the jury informed the court it was deadlocked. She indicated that while she agreed there had been a murder, she was not sure it had occurred in the course of a robbery. However, “[a]fter the judge explained that they could only deliberate based on the evidence presented not the lack of evidence[,] [s]he made her decision that the robbery occurred before the murder based on the evidence provided . . . .” The juror explained she found the special circumstance had not been proven because defendant “did not know that a gun was going to be used.”
Another juror indicated the one holdout juror was not sure there had been a robbery because she did not know whether the marijuana was taken from the victim before or after the murder. This juror further indicated they did not find the special circumstance proven because defendant did not know a gun would be used.
The third juror concurred that there was one holdout juror who later changed her mind. However, this juror further indicated: “After deliberating another day the ‘not guilty’ juror said she had been married to a drug dealer and had gone out on runs with him. She stated that ‘It could have been her.’” The juror took this to mean the holdout juror was suggesting the holdout juror could have been killed in a similar situation.
The trial court ultimately concluded the defense showing was insufficient to warrant disclosure of juror identifying information and denied the motion.
Code of Civil Procedure section 206, subdivision (g), reads: “Pursuant to Section 237, a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors’ names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237.”
Code of Civil Procedure section 237, in turn, reads in relevant part: “(a) . . . [¶] (2) Upon the recording of a jury’s verdict in a criminal jury proceeding, the court’s record of personal juror identifying information of trial jurors . . . consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section. [¶] . . . [¶] (b) Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. . . . [¶] (c) If a hearing is set pursuant to subdivision (b), the petitioner shall provide notice of the petition and the time and place of the hearing at least 20 days prior to the date of the hearing to the parties in the criminal action. The court shall provide notice to each affected former juror . . . . Any affected former juror may appear in person, in writing, by telephone, or by counsel to protest the granting of the petition. . . . [¶] (d) After the hearing, the records shall be made available as requested in the petition, unless a former juror’s protest to the granting of the petition is sustained. . . .”
The trial court concluded defendant failed to establish good cause for disclosure of the juror identifying information. We agree. Defendant’s showing established, as most, that one holdout juror was eventually convinced to change her mind after being directed to concentrate on the evidence presented, rather than what was not presented. Defendant’s showing suggested that the not true finding on the special circumstance was not based on a compromise but on a conclusion that defendant was not aware Perez had brought a gun to the Valero station. Finally, as to the holdout juror’s revelation that she had been married to a drug dealer, defendant fails to establish that she failed to reveal this fact during voir dire. The record does not include a transcript of the jury voir dire, and it was defendant’s duty to provide this court with an adequate record to resolve the issues raised on appeal. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; People v. Parker (1967) 255 Cal.App.2d 664, 673.) At any rate, defendant ignores the fact that this was the only juror who, at least initially, voted in his favor. Finally, that juror, like the others, showed leniency by giving defendant the benefit of the doubt that he did not know Perez was armed.
Review of a decision to deny a defendant’s request for disclosure of juror identifying information is under the abuse of discretion standard. (People v. Jones (1998) 17 Cal.4th 279, 317.) Here, because defendant failed to establish good cause for disclosure of juror identifying information, and because his request for a continuance was premised on his having additional time to contact jurors, the trial court did not err in denying the request.
IV
Prosecutorial Misconduct
Defendant contends the prosecution, in its argument to the jury, misrepresented the import of the testimony about what the victim said to Harley White and Jodi W. before driving to the Valero station. Defendant argues the evidence was admitted over his hearsay objection for the limited purpose of establishing the victim’s state of mind, yet the prosecutor argued the evidence for the truth of the matters asserted. We reject defendant’s contention for a number of reasons.
First, defendant does not even point out what statements by the prosecution he contends were improper. He instead cites to eight pages from the reporter’s transcript that contain portions of the prosecutor’s opening and closing arguments. It is not the job of this court to comb through those pages to find statements made by the prosecutor that may have misrepresented the import of the testimony of White and Jodi W.
Second, it does not appear defendant objected to any statements by the prosecutor that may have misrepresented the relevance of the White and Jodi W. testimony. As a general rule, in order to preserve a claim of prosecutorial misconduct based on improper argument, the defense must make a timely objection and request an admonition. (People v. Frye (1998) 18 Cal.4th 894, 969.)
Finally, even assuming defendant properly raised and preserved this argument for appeal, it is without merit. The prosecution has a solemn obligation to protect a criminal defendant’s constitutional right to a fair trial. (Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314, 1321].) “Improper remarks by a prosecutor can ‘“so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.”’” (People v. Frye, supra, 18 Cal.4th at p. 969.) Nevertheless, a prosecutor has wide latitude in closing argument and may argue vigorously that the evidence shows the defendant is guilty of the crimes charged. (People v. Mincey (1992) 2 Cal.4th 408, 447-448; People v. Wharton (1991) 53 Cal.3d 522, 567.)
The trial court admitted the testimony of Harley White and Jodi W. under the state of mind exception to the hearsay rule. However, as explained above, that evidence was relevant to more than just the victim’s state of mind. It was also admissible as circumstantial evidence of conduct by the victim consistent with that state of mind and conduct by others, including defendant.
In his initial argument, the prosecutor told the jury: “Remember what he said to Jodi W[.] and Harley as he left his apartment carrying that bag of weed with the paper handles? They’re telling him don’t do it, man, it sounds bad, don’t do it, and he says I’m gonna do it, I need the money, I’m behind on my bills, I need the cash, and if they have a gun, well, they’re just gonna have to shoot me.” Later, the prosecutor said: “And it’s almost like a prophecy. They tell him don’t do it, you’re gonna get killed in essence, and he does it anyway and he gets killed.” Finally, the prosecutor argued: “And the way Cliff Owens expressed himself to Jodi and Harley, he’s not gonna give it up unless they shoot me, so he’s not gonna give it up without force. That’s the only way they’re gonna get it is with force, all right?”
There is nothing in the foregoing argument that misrepresented the proper use of the hearsay testimony. The victim said he needed the money, he was behind on his bills, and if anyone pulled a gun on him they would have to use it. This evidence helped prove, as the prosecutor argued, that the victim intended to resist any attempted robbery and did so when defendant and Perez tried to rob him. The prosecutor did no more than argue that the evidence proved the victim did what he said he would do and was killed for it. There was no prosecutorial misconduct.
V
Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support his convictions, because the primary evidence against him came from an accomplice, Christopher Moyo, and that evidence was not sufficiently corroborated. We disagree.
Moyo was certainly a key witness for the prosecution. He testified about meeting defendant and the others at a park, planning to rob a drug dealer, and driving to the Valero station. He testified that defendant borrowed his cell phone to call the victim and that defendant and Perez went to meet with the victim. Finally, he testified that, after hearing shots, defendant and Perez ran back to the car, he heard defendant say to Perez, “I think you killed him,” and defendant divided the stolen marijuana among them.
Penal Code section 1111 requires corroboration of accomplice testimony. It reads in relevant part: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . .” The purpose of this corroboration requirement is “to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives.” (People v. Davis (2005) 36 Cal.4th 510, 547.)
“To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘“[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’” (People v. Avila (2006) 38 Cal.4th 491, 562-563.) However, while corroborating evidence need only be slight, “it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators.” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.)
In the present matter, there is ample corroborating evidence connecting defendant with the crime through defendant’s own statements. Defendant was interviewed by police on two occasions immediately after the murder. In the first interview, defendant initially denied being at the scene at the time of the shooting and denied any involvement whatsoever. Later, he admitted he might have been at the Valero station that evening, but denied being in the car with the others. In a second interview, the next day, defendant admitted he was with the others in the car, had called the victim to arrange a meeting, and met with the victim at the Valero station. The only thing defendant did not admit was that they intended a robbery. He claimed instead that he was there only to buy marijuana and walked away when he found the marijuana was of low quality.
Thus, defendant connected himself with the crime by putting him with the victim at the time of the murder. Although defendant claimed he walked away just before shots were fired, there is no requirement that the corroborating evidence support each element of the crime. (People v. Lyons (1958) 50 Cal.2d 245, 257; see also People v. Szeto (1981) 29 Cal.3d 20, 27.) In addition, defendant’s initial denials of involvement implied a consciousness of guilt and constituted further corroborating evidence. (See People v. Avila, supra, 38 Cal.4th at p. 563.) Thus, as they say, defendant cooked his own goose when he tried to talk his way out of the mess he helped to create. Moyo’s testimony, as corroborated by defendant himself, was sufficient to support the convictions.
VI
Penal Code Section 654Although not raised by defendant, we note a defect in his sentence. Defendant was sentenced on the murder count to an indeterminate term of 25 years to life. On the robbery count, he received a concurrent middle term of three years. Regarding the latter, the court stated: “Count 2, under 654, his concurrent sentence is the term of three years.”
The trial court was apparently referring to Penal Code section 654. It reads: “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.” Although section 654 speaks in terms of “an act or omission,” it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. (People v. Beamon (1973) 8 Cal.3d 625, 639.)
Where a defendant is convicted of both robbery and felony murder, where the underlying felony of the murder is the robbery, he cannot be sentenced on both. Rather, he can be sentenced only on the offense providing the longest potential term of imprisonment, i.e., murder. (See People v. Meredith (1981) 29 Cal.3d 682, 695-696; People v. Bracamonte (2003) 106 Cal.App.4th 704, 708-709; People v. Boyd (1990) 222 Cal.App.3d 541, 575-576.) Although the trial court properly referred to Penal Code section 654, it did not properly apply it. Rather than impose a concurrent term, the term on the robbery should have been stayed.
In the interest of judicial economy, we shall order the sentence corrected without first requesting supplemental briefing. Any party wishing to address the issue may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgment is modified to stay the sentence imposed on count two, the robbery count. The trial court is directed to prepare an amended abstract of judgment reflecting this change and to forward a copy to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: NICHOLSON Acting P.J., ROBIE J.