Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF05-028
BLEASE , Acting P.J.
Defendant Christopher James Shay filed this appeal after pleading no contest to one count of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and one count of mayhem (§ 203). He raises two issues: (1) the trial court should have dismissed the other three counts charged in the information as provided in his plea bargain, and (2) the trial court abused its discretion in sentencing him to consecutive terms.
Further statutory references to an undesignated section are to the Penal Code.
We shall conclude that the judgment should be modified to dismiss the remaining counts of the information pursuant to the plea agreement. We shall also conclude that the trial court did not abuse its discretion in sentencing defendant to consecutive terms.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant, his ex-girlfriend Veronica Sobey, and Sobey’s uncle, Scott Reed, spent the afternoon and evening of January 12, 2005, together drinking whiskey. They ended up in a barn located on the property of Sobey’s grandparents. Inside the barn was an office, in which Reed had been living.
Sobey testified at the preliminary hearing that she fell asleep on a futon in the office. The next thing she remembered was defendant pulling her off of the futon. Defendant dragged her out the door into the barn and hit her on the head and in the face with a flashlight. He also kicked her in the shin. She required stitches in both her head and her leg.
After the attack, Sobey went back into the office, where she could hear her uncle gurgling as he tried to breathe. Sobey ran to the home of her grandparents to get help.
Deputy Mark Hollitz of the Nevada County Sheriff’s Department responded to the call. He interviewed Sobey, and she told him a slightly different version of the events of the evening. She told him that she went outside to urinate, and when she went back into the office she saw defendant assaulting her uncle. She lay on top of her uncle to protect him from defendant, and defendant hit her.
Detective James Casci also interviewed Sobey. She told Detective Casci that she woke up knowing that there was a disturbance going on, and immediately recognized that her uncle was having some breathing distress. She also told Detective Casci she was dragged and kicked by defendant. Sobey admitted at the preliminary hearing that she was still intoxicated when she was talking to the officers.
Deputy Hollitz testified at the preliminary hearing that defendant stated he hit Reed because Reed was assaulting Sobey. While the officers were interviewing Sobey at the home of her grandparents, she received a voice mail message from defendant. On the voice mail message, defendant told Sobey that her uncle (Reed) had been trying to rape her.
Reed was comatose after the attack, having received multiple blows to the head. When Reed was discharged from the medical center on April 5, 2005, he still needed assistance eating, bathing, dressing, and getting in and out of bed and chairs. He was in a wheelchair, and could not walk without assistance. He had impaired memory and trouble with problem solving. He wore a helmet to protect his brain because there was no skull on the right side of his brain. Reed’s disabilities were expected to be permanent.
An information charged defendant with five counts: (count 1) attempted murder (§ 664/187); (count 2) assault with a deadly weapon by means likely to produce great bodily injury on Reed (§ 245, subd. (a)(1)); (count 3) assault by means likely to produce great bodily injury on Sobey (§ 245, subd. (a)(1)); (count 4) aggravated mayhem (§ 205); and (count 5) mayhem (§ 203). The information alleged enhancements to all counts except count 4, notably an enhancement to count 5 of personally inflicting great bodily injury upon Reed which caused him to become comatose and suffer permanent disability within the meaning of section 12022.7, subdivision (b).
Defendant pleaded no contest to counts 3 and 5, and admitted the enhancement to count 5 for infliction of great bodily injury within the meaning of section 12022.7, subdivision (b). Defendant acknowledged that as a result of his no contest plea he could receive a maximum sentence of 14 years.
At the sentencing hearing, the trial court sentenced defendant to the midterm of four years on count 5 plus five years for the enhancement. The court sentenced defendant to a consecutive one-year term on count 3 (one-third the midterm) for an aggregate sentence of 10 years. The court did not dismiss the other counts against defendant, as provided in the plea agreement.
DISCUSSION
I
Dismissal of the Remaining Counts
The first of defendant’s two arguments on appeal is that the counts remaining after his no contest plea should have been dismissed. The record indicates that counts 1, 2, and 4 were to have been dismissed at sentencing. No reason appears on the record as to why those counts were not dismissed. “When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) The People agree that the appropriate remedy in this situation is enforcement of the plea agreement. We shall therefore modify the judgment by ordering that counts 1, 2, and 4 be dismissed in conformity with the terms of the plea agreement.
II
Consecutive Sentence
Defendant argues the trial court abused its discretion when it imposed consecutive sentences. Although the probation report recommended concurrent sentences, the trial court stated it was imposing a consecutive sentence “because Miss Sobey was assaulted separately from Mr. Reed . . . .” Defendant’s attorney did not object to the imposition of consecutive sentences. The People argue defendant forfeited this argument by failing to raise it at the sentencing hearing, but because defendant claims that if the matter was forfeited he received ineffective assistance of counsel, we shall address the merits of defendant’s argument.
Section 669 grants the trial court broad discretion to impose consecutive sentences for multiple offenses. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) Where a discretionary power is vested in the trial court by statute, we may not disturb the exercise of that discretion except on a showing that the trial court’s discretion was exercised in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The sentencing rules guide the trial court’s exercise of discretion in imposing a consecutive rather than a concurrent sentence. As is relevant here, the factors are whether: “(1) The crimes and their objectives were predominantly independent of each other; (2) The crimes involved separate acts of violence or threats of violence; or (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425(a).)
Defendant argues the version of events that Sobey gave when initially interviewed indicated she was injured because she was lying on top of her uncle while defendant was assaulting him. Defendant argues this version of events is more likely to be the truth because Sobey gave this version when the events were fresher in her memory and there was no opportunity for her to have been influenced by others. Defendant argues that under this version of events the two crimes were not independent and did not involve separate acts of violence, thus the sentencing factors found in rule 4.425 prescribe concurrent sentences.
Assuming for the sake of argument that the version of events Sobey first gave to the officers was the correct version of events, the trial court was well within its discretion to impose consecutive sentences because there were multiple victims. This was addressed in People v. Valenzuela (1995) 40 Cal.App.4th 358, 361 (Valenzuela), where the defendant pleaded guilty to two counts of gross vehicular manslaughter when he broadsided another car, killing both its occupants. In response to the defendant’s argument that it was improper for the trial court to rely on the multiple victims factor to sentence him consecutively, the Court of Appeal held that the multiple victims factor was proper to consider under the circumstances. (Id. at pp. 363, 365.)
The court explained that former California Rules of Court, rule 425, now rule 4.425, had listed a crime involving multiple victims as a factor affecting whether the court imposed consecutive sentences. (Valenzuela, supra, 40 Cal.App.4th at p. 363.) This factor was included in the rules “to further the intent of the Legislature that prison terms be proportionate to the seriousness of the offense.” (Ibid.) In 1991, the multiple victims factor was deleted from former rule 425 “‘to avoid confusion; cases in which that possible circumstance . . . was relied on were frequently reversed on appeal because there was only a single victim in a particular count.’ (Advisory Com. Comment, Cal. Rules of Court, rule 421.)” (Id. at p. 365.)
The reason the cases were reversed on appeal was that some courts failed to recognize when crimes were “transactionally related,” i.e., they did not distinguish between “‘those cases where a finding of multiple victims is proper because of the circumstantial cohesiveness of multiple crimes each involving a single victim, and those cases where the crimes are sufficiently separated in time and circumstance such that a multiple victim finding is unwarranted.’” (Id. at pp. 363-364, quoting People v. Coulter (1983) 145 Cal.App.3d 489, 491-492.)
Valenzuela, supra, 40 Cal.App.4th 358, held that the deletion of the factor from former rule 425 does not prevent the sentencing court from using the factor where it is appropriate. (Id. at p. 365.) Thus, a multiple victims finding is warranted to impose a consecutive sentence where the crimes are transactionally related.
It is appropriate to use the multiple victims factor here because the offenses were transactionally related, and because unless this analysis is used, the admitted assault on Sobey would go unpunished.
DISPOSITION
We order the dismissal of counts 1, 2, and 4 in case No. SF05-028. In all other respects, the judgment is affirmed.
We concur: SIMS , J., CANTIL-SAKAUYE , J.