Opinion
B193065
4-25-2007
THE PEOPLE, Plaintiff and Respondent, v. JAMES DARREN COOPER, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, and Cannon & Harris for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
James Cooper appeals from the judgment entered following a jury trial in which he was convicted of attempted premeditated murder, robbery, and burglary, with further findings that he used a knife and inflicted great bodily injury upon his victim. In a bifurcated bench trial, defendant was found to have sustained three prior convictions under Penal Code section 667.5, subdivision (b), and two prior convictions under sections 667, subdivisions (b)-(i), 1170.12 (the "Three Strikes" law). Defendant contends that the trial court erred in calculating his sentence for attempted murder and in failing to stay sentence for robbery and burglary under section 654. We agree with the former contention and agree in part with the latter. We accordingly modify the judgment to strike a portion of the sentence for attempted murder and stay imposition of sentence for burglary, and affirm.
Further section references are to the Penal Code.
BACKGROUND
On October 19, 2004, Amalia Mejia was alone, preparing to close the beauty supply store where she worked when defendant entered and asked for a hair relaxer. Mejia showed defendant where the products were located but defendant said that he did not see the brand he wanted. Mejia was in the process of taking defendant to see different brands in another part of the store when defendant covered Mejias mouth with his hand, stabbed her five times in the side and the neck, and threw her to the floor. Defendant next took Mejias keys, turned off the lights, and locked the store. Defendant then struck Mejia twice in the head with what she thought was a metal object. As Mejia remained motionless and pretended to be dead, she saw defendant try to open the cash register. When he was unsuccessful, he went out the back door carrying the cash register, as well as Mejias purse, which had been under the register.
Once defendant was gone, Mejia called 911. She was taken to the hospital, where she remained for two and one-half days, having sustained multiple injuries.
Officers responding to the 911 call detained defendant about 75 yards away from the store. Defendant looked agitated and was sweating profusely. Among other items, officers recovered keys from defendant with which the door of the beauty supply store could be opened. The cash register and Mejias purse were found next to a dumpster about 20 yards from the rear door of the store. A knife with blood on the tip was located inside the store.
Defendant did not present any evidence in his behalf.
Defendant was sentenced to 25 years to life for attempted murder (count 1), with a 3-year enhancement for great bodily injury and a 1-year enhancement for use of the knife. The court imposed an additional term of 15 years to life based on the premeditation finding, for a total sentence on count 1 of 44 years to life. For robbery (count 2), defendant was sentenced to a consecutive term of 25 years to life and a 1-year enhancement for use of the knife. A sentence of 25 years to life for burglary (count 3) was imposed concurrently with counts 1 and 2. Additional 5-year terms were imposed based on the true findings under section 667.5, subdivision (b). In pronouncing sentence, the trial court did not make any comments or findings regarding its decisions to sentence consecutively on count 2 or with respect to section 654.
DISCUSSION
1. Sentence for Attempted Murder
Defendant contends and the Attorney General aptly concedes that the additional term of 15 years to life for attempted murder was improper. The parties agree that defendant, with two prior strike convictions, was properly sentenced to 25 years to life for attempted premeditated murder. (See People v. Williams (2004) 34 Cal.4th 397, 403; § 664, subd. (a).) The parties further agree that there was no legitimate basis for imposition of an additional 15 years to life for this offense. Accordingly, the judgment will be modified to eliminate this additional term, reducing sentence on count 1 with its associated enhancements to 29 years to life.
2. Section 654
In his opening brief, defendant argues that section 654s prohibition against multiple punishment for separate crimes arising out of an indivisible course of conduct and sharing the same intent and objective should have been applied to counts 2 (robbery) and 3 (burglary). The Attorney General responds that the consecutive sentence imposed on count 2 was proper under the rule that where, as here, a defendant commits gratuitous acts of violence against the victim the robbery, the violent conduct demonstrates a separate intent and objective beyond the robbery. (See, e.g., People v. Coleman (1989) 48 Cal.3d 112, 162-163; People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191.) Thus, continues the Attorney General, under the rule that an implied finding under section 654 will be upheld on appeal if supported by substantial evidence (People v. Blake (1998) 68 Cal.App.4th 509, 512), the consecutive sentence imposed for count 2 was proper.
We agree with the argument of the Attorney General that defendants conduct toward Mejia was an "example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not `incidental to robbery for purposes of Penal Code section 654. [Citations.]." (People v. Nguyen, supra, 204 Cal.App.3d at pp. 190-191). But we further note that the argument does not address count 3, on which a concurrent sentence was imposed. Section 654 applies to concurrent sentences. (People v. Deloza (1998) 18 Cal.4th 585, 592.) And although the record supports an interpretation that defendants attempt to murder Mejia was separate from his robbery, the burglary conviction was necessarily based on an entry with the intent to commit theft or murder or both. Accordingly, separate punishment was not proper with respect to the burglary conviction. (Cf. People v. Booth (1988) 201 Cal.App.3d 1499, 1505.) We shall order that sentence on count 3 be stayed.
In defendants reply brief, he raises the new argument that under Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny determinations regarding the existence of a separate intent and objective under section 654 are proper only if made by the jury beyond a reasonable doubt, rather than decided by the trial court at sentencing. We disagree.
As noted in People v. Cleveland (2001) 87 Cal.App.4th 263, 270, "Unlike in the `hate crime provision in Apprendi, section 654 is not a sentencing `enhancement. On the contrary, it is a sentencing `reduction statute. Section 654 is not a mandate of constitutional law. Instead, it is a discretionary benefit provided by the Legislature to apply in those limited situations where ones culpability is less than the statutory penalty for ones crimes. Thus, when section 654 is found to apply, it effectively `reduces the total sentence otherwise authorized by the jurys verdict. The rule of Apprendi, however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jurys verdict. In Apprendi, the factual determination (i.e., the element of intent for the hate crime) which increased his sentence was not determined by the trier of fact under the reasonable doubt standard. Here, however, every factual element of [defendants crimes] was submitted to the jury, and the jury found [defendant] guilty beyond a reasonable doubt of [all the charges]. Thus, the jurys verdict authorized the sentences [defendant] received for each crime. Indeed, in finding section 654 did not apply, [defendant] received the same sentence as he was exposed to by the jurys verdict. Where, as here, the nonjury factual determination allows for a sentence within the range already authorized by the verdict, Apprendi has no effect."
DISPOSITION
The judgment is modified to reduce the term on count 1 (attempted murder) to 29 years to life in prison and to stay imposition of sentence on count 3 (burglary) pursuant to Penal Code section 654. As modified, the judgment is affirmed. The trial court is directed to send a corrected abstract of judgment to the Department of Corrections.
We concur:
ROTHSCHILD, J.
JACKSON, J.