Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH43967
Pollak, Acting P.J.
Defendant Sou Hang Saephan appeals from a judgment convicting him of robbery and burglary and sentencing him to 13 years in prison. He does not challenge the convictions but contends the trial court made several sentencing errors. We affirm.
Background
Defendant was charged by amended information with one count of first degree residential robbery (Pen. Code, § 211) and one count of first degree burglary (§ 459). The information alleged that defendant had suffered a prior felony conviction for “attempted first degree residential burglary.” The information also advised that the charged offenses were serious felonies within the meaning of section 1192.7, subdivision (c) and violent felonies within the meaning of section 667.5, subdivision (c) and that “having suffered the above prior conviction, defendant must be sentenced pursuant to Penal Code sections 1170.12(c)(1) and 667(e)(1).”
All statutory references are to the Penal Code.
At trial, a witness testified that at approximately 9:45 a.m. on September 4, 2007, she noticed two men sitting in a truck in her neighbor’s driveway. When she looked again, she saw that the passenger had gotten out of the car and was on her neighbor’s porch. “He was there for longer than you would be if you were on the porch knocking on the doorway for someone to answer. He knocked on the door and waited a couple of minutes and then [put] his ear towards the door.” He was at the door for approximately four to five minutes. When no one answered the door, the man returned to the truck, which pulled out of the driveway and parked down the block. When the men returned to the house by foot and went around the side of the neighbor’s house toward the backyard, she called the police.
The daughter of the family that lived in the house testified that she awoke to find a man at her bedroom door. He asked where their safe was located and demanded $20,000.00 in cash. She could hear a second man in her mother’s bedroom. The police then arrived and arrested defendant and an accomplice. The daughter identified the accomplice as the man in her room and also identified her cell phone, which the accomplice had taken from her room, and some jewelry that had been taken from her mother’s room.
The jury found defendant guilty as charged and defendant admitted the prior conviction. Defendant was sentenced to 13 years in prison, calculated as follows: For the robbery, the middle term of four years, doubled to eight years under section 1170.12, plus five years for a serious felony prior conviction under section 667, subdivision (a); for the burglary, a concurrent term of four years, doubled to eight years pursuant to section 1170.12. Defendant filed a timely notice of appeal.
Discussion
1. The section 667, subdivision (a) enhancement
Defendant contends that the five-year enhancement imposed under section 667, subdivision (a) must be stricken because it was not pled in the information. Defendant does not dispute that he was charged with and convicted of a serious felony within the meaning of section 1192.7, subdivision (c) and that he was charged with and admitted a prior conviction for attempted first degree burglary, which, although not expressly alleged as such in the information, is also a serious felony under section 1192.7, subdivision (c). He argues that “[i]n the complete absence of any mention of section 667, subdivision (a) in the pleading or during the taking of the admission, the five-year enhancement must be stricken.”
Section 667, subdivision (a) provides, “(1) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively. [¶] . . . [¶] (4) As used in this subdivision, ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”
Under section 1170.1, subdivision (e), “[a]ll enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” Insofar as the information failed to allege the section 667, subdivision (a) enhancement, it failed to comply with section 1170.1. Any error in this regard, however, was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Epps (2001) 25 Cal.4th 19, 29 [failure to comply with sentencing law is subject to harmless error review under the Watson standard].) Section 667, subdivision (a)(1) mandates imposition of a five-year enhancement for conviction of a serious felony by one who previously has been convicted of a serious felony. Defendant does not dispute that he had a prior serious felony conviction and he does not contend that he would not have admitted the prior conviction had the enhancement been pled in the information. Accordingly, there is no likelihood that defendant’s sentence would have been different had the enhancement allegation been alleged properly in the information.
In his reply brief, defendant states that he “wanted to challenge the prior up until the court told him he could not and then took the admission . . . .” He requests that his admission be vacated, arguing that “he did not want to admit his prior, but to re-open the case and fight it.” However, defendant did not indicate at any time that he wanted to challenge the fact of his prior strike conviction. Rather, he asked the court whether he could “reopen the case for 1999 and fight that case.” The court correctly advised him that he could not do so in these proceedings and that the only factual questions to be resolved were if he was the person that was convicted and if the crime for which he was convicted was a strike.
Defendant’s suggestion that the failure to plead the enhancement allegation resulted in an “unauthorized sentence” not subject to a harmless error analysis is incorrect. An “unauthorized sentence” or a sentence entered in “excess of jurisdiction” is one that “ ‘could not lawfully be imposed under any circumstance in the particular case.’ ” (People v. Castillo (2009) 170 Cal.App.4th 1156, 1181.) As explained above, the failure to comply with the pleading requirement did not render defendant’s sentence in excess of the court’s jurisdiction. Nor were defendant’s due process rights impacted so as to invoke the heightened Chapman standard of harmless error. While due process requires a criminal defendant be given fair notice of the charges to provide an opportunity to prepare a defense and to avoid unfair surprise at trial, constitutional principles of due process are satisfied if the accusatory pleading apprises the defendant of the potential for the enhanced penalty by alleging every fact and circumstance necessary to establish its applicability. (People v. Thomas (1987) 43 Cal.3d 818, 823; People v. Fitzgerald (1997) 59 Cal.App.4th 932, 936-937 [due process did not preclude limitation on accrual of presentence conduct credits even though charging document failed to allege that defendant was subject to section 667.5 limitation because “charging defendant with five violent felonies was sufficient to constitutionally inform him of the nature of the charges including the 15 percent limitation on presentence conduct credits”].) As set forth above, all of the facts necessary to support the application of the five-year enhancement were alleged in the information.
Chapman v. California (1967) 386 U.S. 18.
2. Defendant’s admission of his prior strike conviction
Defendant contends that both the five-year enhancement and the doubling of the midterm sentence for committing a second strike must be reversed because the court failed to advise him of the penal consequences of his admission. “A defendant who admits a prior criminal conviction must first be advised of the increased sentence that might be imposed. [Citations.] However, unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. [Citations.] Consequently, when the only error is a failure to advise of the penal consequences, the error is waived if not raised at or before sentencing. [Citation.] Such policies ensure the fair and orderly administration of justice. [Citation.] ‘The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had.’ ” (People v. Wrice (1995) 38 Cal.App.4th 767, 770-771 (Wrice).)
In Wrice, the court found that defendant had waived any claim based on the trial court’s failure to advise him of the penal consequences of his admission by failing to object before sentencing. The court explained, “while the trial court did not advise appellant of the additional prison terms for the enhancement allegations, the record discloses that appellant was not only aware of the increased penalties, but argued for leniency with that awareness. Appellant also did not object when the judge sentenced him. Appellant argues that his waiver was invalid if he was unaware of the error being waived. The cases appellant cites acknowledge that presentence probation reports provide notice and an opportunity to object to sentencing alternatives. [Citations.] It is true that the probation report in this case does not state the penal consequences of the enhancement allegations. However, attached to the probation report is a letter from the prosecutor explicitly recommending a consecutive five-year term for the section 667 prior and a consecutive one-year term for the section 667.5 prior. In appellant’s sentencing memorandum filed before the sentencing hearing, he acknowledged receiving a copy of the prosecutor's letter and responded to the sentencing recommendations, including the priors. He requested a nine-year sentence, noting that this was ‘[t]he minimum term that could be imposed with the 667 prior,’ implicitly acknowledging that the five-year section 667 enhancement would be imposed. He asked the court to stay the section 667.5 enhancement. The record fully demonstrates that appellant was informed of the sentencing consequences of his admission and argued them to the trial court. Had the imposition of sentence on the enhancement allegations ‘come as a genuine surprise, it would have been a simple matter to bring the issue to the attention of the trial court.’ [Citation.] ‘Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is “reasonably probable” the defendant would not have pleaded guilty if properly advised.’ ” (Id. at p. 771.)
The facts in Wrice are indistinguishable from those in the present case. The prosecutor’s sentencing memorandum notified defendant that any term imposed would be doubled as a result of his prior strike and that an additional five-year term would be imposed for the prior strike conviction. Defendant’s argument for leniency at the sentencing hearing demonstrates his understanding of the penal consequences of his prior conviction: “[M]y client, by virtue of the fact that he has a strike prior, is having his sentence doubled and five years added and I think that that especially makes [the] midterm reasonable . . . .” Contrary to defendant’s suggestion, the prosecutor’s failure to reference the proper code section in his sentencing memorandum in support of the five year enhancement does not alter this conclusion. Defendant clearly was on notice of the effect of his prior conviction on his sentence. If he believed he was misled prior to his admission he was required to have moved to remedy the error long before now.
3. Section 654
Defendant contends that the trial court erred in failing to stay his burglary conviction under section 654. Under section 654, subdivision (a) “[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.” “ ‘Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. [Citation.] “The proscription against double punishment ... is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute .... The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.” ’ [Citation.] ‘ “The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he 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.” [Citation.] Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.’ ” (People v. Stringham (1988) 206 Cal.App.3d 184, 202.)
Substantial evidence supports the trial court’s implicit finding that defendant possessed two different and distinct objectives with respect to the burglary and robbery. The Attorney General relies correctly on People v. Green (1985) 166 Cal.App.3d 514 and People v. Dugas (1966) 242 Cal.App.2d 244. In Green, the court found that substantial evidence supported the trial court’s determination that a burglary and robbery did not constitute an indivisible course of conduct. The court explained, “There was no indication the intruders were aware that Ms. L. was in the residence when they entered. The record clearly establishes that Green and his companions entered with the intent to commit theft, as evidenced by the companion’s inquiry as to the location of certain property and the taking of the stereo and cash. The burglary was thus properly punished separately from the rape and robbery which occurred when, having unexpectedly come upon Ms. L. in the bedroom, Green raped her and one of the men removed the rings from her fingers.” (166 Cal.App.3d at p. 518.) Likewise in Dugas, the court rejected defendant’s argument that section 654 barred punishment for both a robbery and burglary conviction where the victim came home during the course of the burglary. The court explained, “In the instant case, the evidence clearly supports a finding that the burglary, consisting of the breaking and entering with intent to steal, had already been accomplished when Schuler returned to the apartment. [Citation.] Up until this point, defendant might have had no intent to commit a robbery, as opposed to a theft, and might well have broken into the apartment only after he had taken steps to ascertain that it was unoccupied at the time. It is equally possible that defendant’s intent to commit a robbery and to forcibly deprive Schuler of articles in his immediate possession did not arise until the latter returned and entered the apartment. Under such circumstances, it is apparent that the two crimes cannot be deemed part of an indivisible transaction incident to the same objective and that there is accordingly no merit to defendant’s contention that he was wrongly subjected to double punishment.” (242 Cal.App.2d at p. 251.)
In the present case, the neighbor testified that defendant and his accomplice knocked and listened at the victim’s front door for an unusually long time. The reasonable inference to draw from their behavior was that they wanted to be sure that the home was not occupied before they entered. The record also suggests that defendant and his accomplice entered with the intent to commit theft, as evidenced by the accomplice’s inquiry as to the location of the safe and demand for a specific amount of money. If, as the record suggests, defendant was surprised to find the daughter at home, he could not have formed the intent to commit the robbery by taking the jewelry and cell phone from the victim’s immediate presence until the burglary was already complete.
Contrary to defendant’s argument, the jury instructions did not require a finding that the robbery was “part of the same common plan as the burglary.” The prosecution advanced two alternative legal theories on which defendant, who had no direct contact with the daughter, the person robbed, could be found guilty of the robbery. The secondary theory on which the jury was instructed was that defendant was guilty of the robbery because it was a natural and probable consequence of the burglary. However, the prosecutor’s principal contention was that defendant was guilty of robbery based on the testimony that he gathered items of value from the mother’s room while his accomplice kept the daughter in her room through the use of fear. The jury was instructed fully on the elements of robbery and on the legal requirements for aiding and abetting. Although section 654 would apply if defendant’s conviction could only have been based on the theory that the robbery was a natural and probable consequence of the burglary (see, e.g., People v. Bradley (2003) 111 Cal.App.4th 765, 768, 771), the jury in this case reasonably could have convicted defendant based on the prosecutor’s theory that defendant participated in the robbery intentionally and independent of the plan to commit the burglary. Because the record contains evidence supporting the trial court’s implicit finding that the robbery was divisible from the burglary, the court did not err in imposing concurrent sentences on both the burglary and robbery convictions. (See, e.g., People v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
The jury was instructed pursuant to CALCRIM No. 402 regarding the natural and probable consequences as follows: “The defendant is charged in count four [with] residential burglary and in count one [with] residential robbery. [¶] You must first decide whether the defendant is guilty of count four residential burglary. If you find the defendant is guilty of this crime, you must then decide whether he is guilty of count one residential robbery. [¶] Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time. [¶] To prove that the defendant is guilty of count one residential robbery, the People must prove that: [¶] 1. The defendant is guilty of count four residential burglary; [¶] 2. During the commission of count four residential burglary a coparticipant in that count four residential burglary committed the crime of count one residential robbery; [¶] AND [¶] 3 Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of count one residential robbery was a natural and probable consequence of the commission of the count four residential burglary. [¶] . . . [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the Count one residential robbery was committed for a reason independent of the common plan to commit the count four residential burglary, then the commission of the count one residential robbery was not a natural and probable consequence of count four residential burglary. [¶] To decide whether the crime of count one residential robbery was committed, please refer to the separate instructions that I will give you on that crime.”
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.