Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF055972. Richard A. Erwood, Judge.
Marcia Clark, 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, Lilia E. Garcia, and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
McKinster, J.
In this appeal, defendant and appellant, Louis P. Beltran (hereafter defendant), challenges the 54-year sentence the trial court imposed after a jury found him guilty as charged of two counts of kidnapping in violation of Penal Code section 207, subdivision (a) (counts 1 & 2); one count of assault with a firearm in violation of section 245, subdivision (a)(2) (count 3); one count of attempted robbery in violation of sections 664 and 211 (count 4); one count of burglary in violation of section 459 (count 5); and one count of possession of a firearm by a convicted felon in violation of section 12021, subdivision (a)(1) (count 6). The jury also found true firearm use, a prior serious felony conviction, and prior prison term enhancements. We recount the details of the sentence in our discussion of defendant’s claims on appeal.
All further statutory references are to the Penal Code unless indicated otherwise.
Defendant claims, first, that he committed the crimes of robbery and assault with a firearm as part of an indivisible course of conduct that included the burglary, and therefore the trial court violated section 654 when it did not stay execution of the sentences imposed on two of those three crimes. Next, defendant claims the trial court’s decision to impose consecutive sentences depended on facts that were not found by the jury and therefore the consecutive sentences violate defendant’s right to a jury trial under the Sixth Amendment to the federal Constitution. In his reply brief, defendant acknowledges that the United States Supreme Court rejected this precise assertion in Oregon v. Ice (2009) ___ U.S. ___ [129 S.Ct. 711, 172 L.Ed.2d 517]. Defendant also claims that the trial court should have dismissed rather than stayed execution of an enhancement imposed under section 667.5 because such enhancements are mandatory and therefore must either be imposed or stricken, but not stayed. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 [“Once the prior prison term is found true... the trial court may not stay the one-year enhancement, which is mandatory unless stricken.”].) The Attorney General appropriately concedes the error and, therefore we will strike that enhancement. Consequently, the only issue we must resolve is defendant’s claim under section 654.
We conclude under the authority of our decision in People v. Centers (1999) 73 Cal.App.4th 84 (Fourth Dist., Div. Two) (Centers) that the trial court did not violate section 654 when it did not stay execution of the sentences imposed on defendant’s burglary and assault with a firearm convictions because both offenses as committed were crimes of violence against different victims. Therefore, we will affirm the judgment but modify it by striking the previously noted enhancement.
DISCUSSION
As previously noted, defendant contends the trial court should have stayed the sentence imposed on his conviction for assault with a firearm under section 654, which provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) The prohibition against multiple punishment applies not only to single acts that violate more than one statute but also to multiple acts committed during an indivisible course of criminal conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 18.) When the defendant commits more than one physical act during a criminal enterprise the question is whether the course of criminal conduct is divisible and “therefore gives rise to more than one act within the meaning of section 654.” (Neal v. State of California, supra, at p. 19.) Resolution of that question, in turn, “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.” (Ibid.) In other words, “If [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, [the defendant] may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Guevara (1979) 88 Cal.App.3d 86, 91, citing People v. Beamon (1973) 8 Cal.3d 625, 639.)
The facts pertinent to this issue are undisputed. On a night in September of 2006, defendant went to the home of Roberta Rivas and Patrina Olvera to collect money Rivas owed to a person referred to as Weasel. Rivas’s daughter and the daughter’s boyfriend were outside the house when defendant walked up, held a gun to the daughter’s face, and directed her and her boyfriend to go in the house with defendant. Once inside, defendant encountered Rivas in a hallway, pointed the gun at her, and demanded the money. When Rivas backed away into the master bedroom, defendant followed. In the master bedroom, defendant encountered Olvera who had called the police during defendant’s confrontation with Rivas. While continuing to point the gun at Rivas, defendant demanded Olvera’s cell phone, but Olvera refused to relinquish the phone. At about that time, the police arrived and ordered everyone out of the house. Defendant hid in a walk-in closet where the police found him after a brief search.
At defendant’s sentencing hearing the trial court stated, in accordance with section 654, that the court intended to stay execution of the sentences imposed on defendant’s attempted robbery conviction and related firearm use enhancement, and on defendant’s conviction for being a felon in possession of a firearm. Defense counsel asserted that the trial court should also stay execution of the burglary sentence. The trial court acknowledged that defendant “entered the house to commit the robbery. So you can’t punish for both of those,” presumably meaning the burglary and the robbery. After defense counsel agreed, the following exchange occurred:
“THE COURT: And you can’t punish for him having a gun because he’s already been punished for having a gun and using a gun on the other counts. But I don’t see a 654 problem on the burglary issue.
“[DEFENSE COUNSEL]: Well, here is the thing, though. He’s also got the gun enhancement on that burglary as well.
“THE COURT: That’s correct.
“[DEFENSE COUNSEL]: So I think that would – at least that would be 654. In fact – and I’ve always had this argument, and I can’t find the case law, but I remember reading it – on count 3 [assault with a firearm], I don’t think the – I don’t think the gun enhancement applies because the gun – having a gun is part of 245(a)(2). It’s assault with a firearm.
“THE COURT: No. It does apply. But I can see your argument about staying the allegation on the 12022.5, subdivision (a), on count 5 [the burglary].”
When the trial court asked the prosecutor for his view, the prosecutor agreed with the trial court: “If the Court is going to 654 count 4, the 211, because of the continuing conduct on the 459, then the People would agree on that. As far as the [sic] count 3, with the gun allegation, a 12022.5 does attach to a 245(a)(2). And the People would submit on the 12022.5 on the [sic] count 5, the first-degree burglary.”
The trial court then concluded, “Well, I believe [defense counsel]’s argument is well-taken on that gun use because the 245 was the victim that he was intending to rob when he entered the house. And so you can’t punish him twice for basically the same conduct, walking in with the gun, intending to do the robbery, and then confronting the victim, pointing the gun at her and attempting to rob her.” Therefore, the trial court stayed execution of the firearm use allegation imposed on defendant’s burglary conviction (count 5).
The trial court found, as set out above, that defendant entered the house with the intent to commit robbery and therefore the trial court could not punish defendant for both the robbery and burglary. However, the trial court did not expressly address the question of whether defendant could be separately punished for both the assault with a firearm and the burglary.
The Attorney General contends that the facts support separate sentences on the assault and burglary convictions because the crimes involve multiple acts of violence against separate victims. In Centers, supra, 73 Cal.App.4th 84, we held that when a jury finds that a defendant used a firearm in the commission of a burglary, that burglary is a violent crime that will support multiple punishments if there is evidence that the burglary and the underlying felony, in that case kidnapping, involved different victims. (Id. at pp. 99-102.)
Defendant contends that although implied findings may be made that support the trial court’s sentencing decision, in this case the trial court made express findings that preclude implied findings. According to defendant, the trial court made express findings that the burglary and the assault with a firearm had different objectives, and therefore were separately punishable, as evidenced by the trial court’s previously quoted statement that “you can’t punish him twice for basically the same conduct, walking in with the gun, intending to do the robbery, and then confronting the victim, pointing the gun at her and attempting to rob her.” We do not share defendant’s interpretation. The trial court made the quoted statement in the course of deciding whether to “stay” the gun use enhancement the jury found true in connection with the burglary. Neither the trial court nor the parties expressly addressed the question of whether defendant’s conviction on count 3 of assault with a firearm on Rivas was subject to section 654.
Because the trial court did not make an express finding that would conflict with an implied finding, we may imply a finding under Centers and in doing so may conclude that the trial court did not err when it declined to stay defendant’s sentence on either the burglary or the assault with a firearm conviction. Here, as in Centers, the robbery victim (Rivas) shared her home with another person (Olvera), and therefore Olvera and Rivas both were victims of the burglary. (Centers, supra, 73 Cal.App.4th at pp. 101-102, citing People v. Davis (1998) 18 Cal.4th 712, 720-722 [burglary statute protects occupant’s possessory interest in building].) From these facts we can imply a finding by the trial court that the assault with a firearm and the burglary involved crimes of violence against separate victims and therefore may be separately punished. In short, the unstayed sentences do not violate section 654.
DISPOSITION
The judgment is modified by dismissing the sentence enhancement under section 667.5, subdivision (b) that the trial court imposed and stayed in connection with each count based on defendant’s first alleged prior robbery conviction. As modified, the judgment is affirmed. The court is directed to prepare and forward to the appropriate agencies an amended abstract of judgment that correctly reflects defendant’s modified sentence.
We concur: Hollenhorst Acting P.J., Miller J.