Opinion
D072764
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. KHALIQ JONES, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN361083) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed as modified and remanded with directions. Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Khaliq Jones of robbery (Pen. Code, § 211; count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 3); and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 4). The jury found true allegations as to each count that Jones personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The court sentenced Jones to a determinate term of six years for the robbery with the infliction of great bodily injury. The court imposed the same term for count 3, but stayed the sentence under section 654. The court also imposed the same term for count 4 and ordered the sentence to be served concurrently with the term for count 1 (robbery).
All further statutory references are to the Penal Code unless otherwise specified.
Jones appeals contending for the first time on appeal, that the sentence for count 4 should also have been stayed under section 654. We find the issue of the application of section 654 has not been forfeited by failure to raise the issue at sentencing. After our review of the record we are satisfied count 4 was committed during a continuous course of conduct and that no separate objective can be discerned for the assault occurring during the course of the robbery. Accordingly, we will remand the case to the trial court with directions to stay the sentence for count 4.
STATEMENT OF FACTS
Jones does not challenge either the admissibility or the sufficiency of the evidence to support his convictions. We will therefore set forth a brief summary of the facts in order to provide context for the discussion which follows.
On the day of the offense the victim prepared to drive to his home in Sacramento, having completed his sophomore year at Cal State San Marcos. On the way home, he stopped in Vista to say goodbye to friends. When he went to what he thought was his friend's house in Vista he discovered he had gone to the wrong place.
As the victim was walking back to his car he observed three men, including Jones, jump over a wall and quickly approach him. Jones had what appeared to be a nine-millimeter pistol pointed at the victim. One of the other men had a knife and the other had a baseball bat.
No gun was ever found by law enforcement. The jury was not able to reach a verdict on count 2, assault with a firearm.
The men pushed the victim against the car and then placed him in the driver's seat with his knees pointed outside the car. Jones struck the victim in the head with the gun multiple times while another man pressed a knife against the victim's side. The three men then demanded money and anything else of value. They searched the victim and the car and found over $1,000. After they found the money Jones hit the victim in the head, causing him to fall to the ground. Jones then struck him in the face, breaking his glasses and causing cuts. The entire transaction lasted about two minutes.
The victim was treated for injuries which required staples to close wounds in his head and seven stitches to close the wounds on his face.
DISCUSSION
The probation officer's report recommended that the court stay the sentence on count 3 under section 654. Without further discussion, the report recommended a concurrent sentence on count 4. The trial court followed the probation officer's recommendation. The parties did not discuss the recommendation for a concurrent sentence for count 4. The only comment by the trial judge was that a concurrent sentence had been selected "because it's based on the same source and factual material." The court did not make any comment regarding the potential applicability of section 654 to that count.
The People urge us to imply a finding by the trial judge that the final assault on the victim was committed for a different purpose or objective than the acts implicit in the robbery. We cannot find a basis in this record to make such implied finding.
A. Legal Principles
Section 654 bars multiple punishments for separate offenses arising out of a single criminal act or course of conduct where the defendant committed the offenses with one criminal intent or objective. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) Where there are multiple offenses arising from the same act or intent, the court should impose sentence on each count and then stay the sentence on any count to which section 654 applies. (People v. Jones (2012) 54 Cal.4th 350, 353.)
Section 654, subdivision (a) provides in relevant 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."
A contention that a count has been sentenced in violation of section 654 can be raised for the first time on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.) A sentence imposed in violation of section 654 is unauthorized, thus the failure to object in the trial court does not forfeit the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) In cases where there was no objection and thus no finding by the trial court as to the intent or objective with which the crime at issue was committed, an appellate court can imply a finding of separate purpose or intent when supported by the record. (People v. Pinon (2016) 6 Cal.App.5th 956, 968.)
Where a defendant commits other offenses, such as assault as part of a robbery, such offenses fall within the scope of section 654, absent proof of a separate objective or intent. (People v. Mitchell (2016) 4 Cal.App.5th 349, 354.) If, however, the record shows that the challenged offense, like an assault, was for another purpose or if it was "gratuitous" (People v. Nguyen (1988) 204 Cal.App.3d 181, 190), section 654 will not apply.
B. Analysis
Jones contends the assault in count 4 was part of the continuous conduct in the commission of the robbery and that it did not have a separate purpose. The People appear to argue that the trial court had found the robbery was over and that the final assault was essentially gratuitous. Of course, the trial court made no such finding and the prosecutor in argument to the jury tended to lump all the assaults into the description of force to commit the robbery.
The events in this case lasted about two minutes. The robbers used force and struck the victim from the beginning of the robbery until the perpetrators fled with the victim's property. While there could be a circumstance where there was a gratuitous assault after the robbery was completed, we have no facts in this case from which we could draw such inference. Indeed, the trial court commented on its decision to impose the sentence on count 4 concurrently with the sentence on count 1, although the court was not required to offer any reasons. The court explained that count 4 was based on the "same source and factual material" as count 1. We are not sure what the court meant by such statement, but it does not hint at the existence of a separate intent or purpose for the offenses in the two counts. The court's remarks do not suggest to us that the court considered the offense in count 4 to be anything except an act of force during the commission of the robbery. Accordingly, the trial court should have stayed the sentence for count 4 pursuant to section 654.
While we recognize the failure to object on section 654 grounds is not a basis for forfeiture, we pause to express some sympathy for the trial court in a case such as this. The probation report recommended a concurrent sentence for count 4 and nobody raised any issue with that recommendation. One can understand how a trial judge could miss the issue. --------
DISPOSITION
The judgment is modified to stay the sentence for count 4 under section 654. The matter is remanded to the trial court to amend the abstract of judgment consistent with our modification and to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. AARON, J.