Opinion
H048014
05-11-2021
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN KENNEDY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. 17CR08281 & 18CR01862)
After appellant Stephen Kennedy entered guilty pleas in two cases, the trial court sentenced him to 14 years, eight months in prison. In this appeal, Kennedy asserts the trial court erred when it did not stay pursuant to Penal Code section 654 sentences on three counts in one of the cases. For the reasons we explain below, we agree and modify the judgment in that case. As modified, that judgment is affirmed.
Unspecified statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
The Santa Cruz County District Attorney (district attorney) charged Kennedy with multiple crimes in two separate matters.
1. Case No. 17CR08281
The first case (No. 17CR08281) involved charges related to two residential burglaries from December 2017. While those charges were pending, in October 2019 Kennedy escaped from county jail and was not apprehended for approximately six weeks.
On February 6, 2020, the district attorney filed a second amended information (information) charging Kennedy with first degree burglary occurring on or about December 19, 2017 (§ 459; count 1), receiving a stolen motor vehicle (a utility trailer) on or about December 19, 2017 (§ 496d, subd. (a); count 2), grand theft of a firearm related to the December 19 burglary (§ 487, subd. (d)(2); count 3), first degree burglary occurring on or about December 12, 2017 (§ 459; count 4), grand theft of a firearm related to the December 12 burglary (§ 487, subd. (d)(2); count 5), receiving stolen property on or about or between December 12, 2017 and December 27, 2017 (§ 496, subd. (a); count 6), and escape while felony charges were pending (§ 4532, subd. (b)(1); count 7). The information further alleged that Kennedy had a prior serious felony conviction (§ 667, subd. (a)(1)), a prior strike conviction (§ 667, subds. (b)-(i)), and prior prison terms for eight separate felony convictions (§ 667.5, subd. (b)).
2. Case No. 18CR01862
In the second case (No. 18CR01862), the district attorney charged Kennedy by information with two counts of second degree burglary (§ 459) occurring on or about and between January 4, 2018 and January 5, 2018, and on or about December 7, 2017 (counts 1 and 3), two counts of receiving stolen property (§ 496, subds. (a) & (b)) occurring on or about January 5, 2018, and on or about and between January 4, 2018 and January 5, 2018 (counts 2 and 4), and one count of identifying information theft (§ 530.5, subd. (c)(1)) occurring on or about and between January 4, 2018 and January 5, 2018 (count 5). The information further alleged, consistent with the first case, that Kennedy had a prior serious felony conviction (§ 667, subd. (a)(1)), a prior strike conviction (§ 667, subds. (b)-(i)), and prior prison terms for eight separate felony convictions (§ 667.5, subd. (b)).
B. Pleas and Sentencing
Kennedy first resolved the second case (No. 18CR01862, involving the second degree burglary charges). In that matter, on July 31, 2018, the trial court gave an indicated sentence of 32 months in prison. Kennedy pleaded no contest to all the charges and admitted all the allegations. The trial court agreed to defense counsel's request to delay sentencing until Kennedy had resolved the first case involving the residential burglaries (No. 17CR08281).
On February 10, 2020, shortly after jury selection had begun in the first case, Kennedy stated he did not want to move forward with a jury trial. The trial court gave an indicated sentence of 12 years in the matter. Kennedy then pleaded guilty to all the counts, except for count 2 which the prosecution stated it would dismiss. Regarding count 4, the trial court granted the prosecution's motion to strike the "person present" allegation and the violent felony allegation (§ 667.5, subd. (c)).
On February 19, 2020, the trial court sentenced Kennedy in both cases (i.e., case Nos. 17CR08281 and 18CR01862). Related to the first case (No. 17CR08281), the trial court imposed a 12-year prison sentence, calculated as follows:
Count 1 (first degree burglary): 12 years;
Count 3 (grand theft of a firearm): four years, concurrent;
Count 4 (first degree burglary): eight years, concurrent;
Count 5 (grand theft of a firearm): four years, concurrent;
Count 6 (receiving stolen property): four years, concurrent; and
Count 7 (escape while felony charges are pending): four years, concurrent.
The trial court did not stay any of the sentences in the case. That same day, the trial court imposed a sentence of 32 months in case No. 18CR01862.
The 32 months imposed in case No. 18CR01862 consisted of 16-month sentences for each second degree burglary conviction (counts 1 & 3). The trial court stayed the punishment pursuant to section 654 for the convictions for receiving stolen property (counts 2 & 4). As to count 5 (identifying information theft), the trial court imposed 180 days, concurrent. Kennedy raises no issue on appeal related to the sentencing in case No. 18CR01862. --------
II. DISCUSSION
On appeal, Kennedy challenges only his sentence in the first case (No. 17CR08281). Specifically, he argues that section 654 precludes the imposition of unstayed sentences on counts 3 and 5 (for grand theft of a firearm) and count 6 (for receiving stolen property), because those crimes involved the same intent and objective as those for which he was punished in counts 1 and 4 (the two residential burglaries).
1. Legal Principles
Section 654 provides that "[a]n 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." (§ 654, subd. (a).)
Section 654's prohibition on multiple punishment applies to crimes that arise from a single, indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) Whether crimes arise from an indivisible course of conduct turns on the perpetrator's intent and objective. (Ibid.) "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." (Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled in part on another ground in People v. Correa (2012) 54 Cal.4th 331, 341.)
Whether a defendant harbored a single intent—and thus a single objective—is a factual question; the applicability of section 654 to settled facts is a question of law. (Harrison, supra, 48 Cal.3d at p. 335.) Where, as here, the trial court makes no explicit factual findings with respect to the application of section 654 and does not stay any aspect of the sentence, we must affirm the trial court's determination that section 654 does not apply if substantial evidence supports its implicit factual findings. (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045.) We presume the existence of every fact the trial court could reasonably determine from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Section 654's prohibition on multiple punishment applies to the execution of concurrent sentences because a concurrent sentence is considered punishment. (People v. Duff (2010) 50 Cal.4th 787, 796.)
If a trial court erroneously fails to stay the execution of a sentence pursuant to section 654, the court has acted in excess of its jurisdiction, and a reviewing court must correct the error on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) A defendant's "failure . . . to object on this basis in the trial court does not forfeit the issue." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)
However, the duty of a reviewing court to correct a section 654 error on appeal, even when the defendant failed to raise the issue in the trial court, is itself subject to an exception: "Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. [Citations.] While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. 'When a defendant maintains that the trial court's sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.' " (People v. Hester (2000) 22 Cal.4th 290, 295.)
Similarly, California Rules of Court, rule 4.412(b) (rule 4.412(b)) states in pertinent part that: "By agreeing to a specified term in prison . . . personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record."
2. Forfeiture
Relying on Hester and rule 4.412(b), the Attorney General contends that Kennedy forfeited his right to challenge under section 654 the concurrent terms he received for the three counts at issue in this appeal. The Attorney General argues both Kennedy and his counsel "stated their acceptance of the restructured sentence as part of the agreed-upon disposition of appellant's case." Kennedy contests the Attorney General's assertion of forfeiture. Kennedy argues that Hester is inapplicable because he did not plead guilty pursuant to a plea bargain and because a successful appeal will not result in the imposition of a more lenient sentence.
We decide that Hester is factually distinguishable, and Kennedy thus did not forfeit his section 654 claim. Unlike in Hester, the resolution of Kennedy's criminal case was not pursuant to a plea bargain negotiated with the prosecutor but rather resulted from an indicated sentence by the trial court. The prosecutor specifically stated that the offer was not "from the People." When the trial court referenced the 12-year potential sentence, it described it as "the Court's indicated" sentence.
Unlike a negotiated plea agreement which is a form of contract (People v. Segura (2008) 44 Cal.4th 921, 930), "[a]n indicated sentence is just that: an indication. Until sentence is actually imposed, no guarantee is being made." (People v. Delgado (1993) 16 Cal.App.4th 551, 555.) When announcing an indicated sentence, a trial judge "may not bargain with a defendant over the sentence to be imposed." (People v. Clancey (2013) 56 Cal.4th 562, 575.) More fundamentally, "[w]hen a trial court properly indicates a sentence, it has made no promise that the sentence will be imposed. Rather, the court has merely disclosed to the parties at an early stage—and to the extent possible—what the court views, on the record then available, as the appropriate sentence so that each party may make an informed decision." (Ibid.) Therefore, neither Kennedy nor the trial court agreed to a specified term, a precondition to triggering Hester and rule 4.412(b). While the trial court indicated that it intended to impose a sentence of 12 years in case No. 17CR01862, it had not entered into a binding agreement to do so, as would have been the case with a plea bargain entered into with the district attorney. (Cf. People v. Kim (2011) 193 Cal.App.4th 1355, 1360 ["[L]ike the parties to a private contract, the state and the defendant are bound by the agreement as between themselves."].)
Based on the lack of any evidence of a plea bargain in the record before us, we disagree with the Attorney General that the holding in Hester or rule 4.412(b) precludes our consideration of Kennedy's section 654 claim of error. The Attorney General provides no authority for the contention that we must apply the doctrine of forfeiture because of the way the trial court "structured" the sentences. For these reasons, we reject the Attorney General's assertion of forfeiture and turn to the merits of Kennedy's section 654 claim.
3. Sentences on Two Counts of Grand Theft of a Firearm (Counts 3 and 5)
Kennedy asserts section 654 bars separate punishment for the two counts of grand theft of a firearm (counts 3 and 5). He argues the sentences imposed for those counts should have been stayed pursuant to section 654, because he harbored the same intent and objective for those criminal counts (i.e., to steal and obtain property from the residences) as for the residential burglaries in counts 1 and 4 for which he was already punished. In support, Kennedy relies primarily on People v. Bauer (1969) 1 Cal.3d 368, People v. McFarland (1962) 58 Cal.2d 748 (McFarland), and In re José P. (2003) 106 Cal.App.4th 458, disapproved on another ground in People v. Prunty (2015) 62 Cal.4th 59, 78, fn. 5.
Based on these authorities, we agree with Kennedy's claim that the trial court should have stayed execution of the sentences on counts 3 and 5. McFarland is particularly instructive. In McFarland, the California Supreme Court held that a defendant could not be doubly punished for both offenses of theft and burglary where the record only supported the conclusion that the defendant committed the burglary to engage in theft. Our higher court noted that "[t]he record contains nothing indicating that [defendant] entered the hospital with intent to commit some crime other than theft. In these circumstances the only reasonable conclusion is that the entry of the hospital and the taking of the air compressor were parts of a continuous course of conduct and were motivated by one objective, theft; the burglary, although complete before the theft was committed, was incident to and a means of perpetrating the theft." (McFarland, supra, 58 Cal.2d at p. 762.)
Similarly, in the present case, the only reasonable conclusion from the record is that Kennedy committed the residential burglaries in order to engage in theft. The Attorney General does not argue otherwise. The parties stipulated that the factual basis underlying Kennedy's pleas included that Kennedy unlawfully entered the home of a victim on December 19, 2017, in order to take property from that victim, including one of the firearms that was in that victim's gun safe, and that Kennedy unlawfully entered another home of another victim on December 12, 2017, and stole that victim's firearm on that same date.
Accordingly, we modify the judgment in case No. 17CR08281 to stay the sentences for counts 3 and 5.
4. Sentence on Receiving Stolen Property (Count 6)
Kennedy further argues that the trial court should have stayed the sentence on count 6 (receiving stolen property) because "[s]ection 654 equally bars imposing a separate sentence for possessing stolen property that was taken during a burglary committed by the same defendant." In support, Kennedy relies on People v. Allen (1999) 21 Cal.4th 846, 864 (Allen) and People v. Bernal (1994) 22 Cal.App.4th 1455, 1457-1458. The Attorney General does not address the merits of Kennedy's argument. We agree that the punishment for count 6 should be stayed.
As to count 6, the information alleged that Kennedy on or about or between December 12, 2017 and December 27, 2017, "did unlawfully buy, receive, conceal, sell, withhold, and aid in concealing, selling, and withholding property, to wit, firearms, jewelry, artwork, tools and ammunition." At the hearing when Kennedy pleaded no contest to that charge, the factual basis for Kennedy's plea included that, related to the residential burglary on December 19, 2017, Kennedy possessed in a storage locker the victim's jewelry, artwork (including many valuable paintings), ammunition, and other items including the victim's social security cards, passports, and bank checks.
The circumstances here are similar to those in Allen, where the defendant burglarized homes, stealing jewelry from each, and was convicted of three counts of burglary and two counts of receiving stolen property involving the jewelry taken in two of the burglaries. (Allen, supra, 21 Cal.4th at p. 850.) In Allen, the California Supreme Court affirmed the defendant's convictions of both burglary and receiving stolen property and also indicated that it approved of the trial court's stay of execution of sentence for receiving stolen property. (Id. at pp. 866-867.)
Here, as in Allen, the property taken in the residential burglary was the same property that was the basis of the receiving stolen property charge. (See also People v. Landis (1996) 51 Cal.App.4th 1247, 1253-1254 ["Because burglary requires only unconsented entry with the intent to commit theft or another felony (see Pen. Code, § 459), and receiving stolen goods involves the knowing, receiving, concealing, or withholding of goods obtained by theft or extortion (see Pen. Code, § 496, subd. (a)), appellant may be convicted of both crimes, subject to the provisions of section 654."].) Kennedy's intent in committing the burglary was to obtain the stolen property.
We decide no substantial evidence in the record supports any implicit finding by the trial court that Kennedy had a separate objective in his commission of receiving stolen goods obtained from the burglary. Section 654, therefore, bars imposition of an unstayed sentence for count 6.
III. DISPOSITION
The judgment in case No. 17CR08281 is modified to stay the sentences for the two counts of grand theft of a firearm (counts 3 and 5) and the count for receiving stolen property (count 6); as modified, the judgment is affirmed. The judgment in case No. 18CR01862 is affirmed.
The clerk of the superior court shall prepare and transmit to the Department of Corrections and Rehabilitation an amended abstract of judgment in case No. 17CR08281 marking counts 3, 5, and 6 stayed.
/s/_________
Danner, J.
WE CONCUR:
/s/_________
Greenwood, P.J.
/s/_________
Grover, J.