Opinion
F072174
09-22-2017
THE PEOPLE, Plaintiff and Respondent, v. TAVARIE EPPERSON, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CM1949)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Late one evening at a motel in Hanford, defendant Tavarie Epperson and two other men robbed victims Deonka Rainey and Rachel Taylor at gunpoint. One of the men shot Rainey in the leg during the incident and then fired again as Rainey fled.
Defendant was arrested several weeks later and charged with the attempted murder of Rainey (Pen. Code, §§ 664/187) (count 1), the robbery of Taylor (§ 211) (count 2), the attempted robbery of Rainey (§§ 664/211) (count 3) and burglary (§ 459) (count 4). The attempted murder was alleged to have been premeditated, willful and deliberate (§ 189), and sentence enhancement allegations for the personal use of a firearm were attached to counts 2 and 4 (§§ 12022.5, subd. (a), 12022.53, subd. (b)).
All further statutory references are to the Penal Code.
Defendants first trial ended in a mistrial after the jury deadlocked on all counts. At the close of the Peoples case-in-chief in the second trial, the trial court granted the prosecutors motion to amend count 3 from the attempted robbery of Rainey to the robbery of Rainey. The jury subsequently convicted defendant on all counts, found true the premeditation allegation attached to count 1 and found true the firearm enhancements attached to counts 2 and 4.
The trial court imposed a total determinate prison term of 20 years plus an indeterminate term of seven years to life in prison, as follows. The court sentenced defendant to seven years to life for the attempted murder of Rainey (count 1). For the robbery of Taylor (count 2), the court sentenced defendant to a consecutive aggravated term of nine years, plus it imposed and stayed a sentence of 10 years for personal use of a firearm under section 12022.5, subdivision (a), and imposed a sentence of 10 years for personal use of a firearm under section 12022.53, subdivision (b). For the robbery of Rainey (count 3), the court sentenced defendant to a consecutive one-year term (one-third of the middle term). Finally, for the burglary (count 4), the court sentenced defendant to the aggravated term of six years, plus 10 years for personal use of a firearm under section 12022.5, subdivision (a). The court stayed the burglary sentence under section 654.
Defendants claims on appeal are tied to his conviction for the robbery of Rainey (count 3). Defendant seeks reversal of that robbery conviction on the ground that his right to due process was violated when, at the close of the Peoples case-in-chief, the trial court permitted the prosecutor to amend count 3 from attempted robbery to robbery. Relatedly, he also seeks reversal of his conviction for the attempted murder of Rainey on the ground that as he is entitled to reversal of his conviction for robbing Rainey, it cannot be determined whether the jury impermissibly relied on that robbery count in finding that the attempted murder of Rainey was a natural and probable consequence of robbery. Finally, if we do not find he is entitled to reversal of his conviction on count 3 for robbing Rainey, defendant argues the trial court erred in failing to stay that sentence under section 654, which prohibits multiple punishments for both crimes completed by a single act and a criminal course of conduct committed pursuant to a single intent and objective. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).).
With respect to the attempted murder count, the jury was instructed on the natural and probable consequences doctrine, under which ""[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime."" (People v. Favor (2012) 54 Cal.4th 868, 874.) In this case, attempted murder was the nontarget offense and robbery was the target offense. Defendant agrees that if his attempted murder conviction under the natural and probable consequences doctrine was based on the robbery of Taylor, it is valid. He argues, though, that given his entitlement to reversal of his conviction for robbing Rainey, the jury may have convicted him of attempted murder based on a legally invalid theory: that the attempted murder of Rainey was the natural and probable consequence of the robbery of Rainey. Defendant correctly points out that when a jury has been presented with a legally invalid theory, "reversal generally is required unless it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory." (People v. Perez (2005) 35 Cal.4th 1219, 1233.)
The People dispute defendants entitlement to any relief.
We reject defendants claim that the amendment of count 3 at trial to charge him with robbing Rainey violated his right to due process, which renders moot his challenge to his attempted murder conviction on the ground that the jury may have relied on a legally inadequate theory to convict him. We agree with him, however, that his sentence for robbing Rainey should have been stayed under section 654. We therefore stay the sentence for count 3, but otherwise affirm the judgment.
FACTUAL SUMMARY
On June 19, 2014, Rainey and Taylor were at a motel in Hanford where Rainey had rented a room. At approximately 10:30 p.m., Rainey stepped outside the room to smoke a cigarette. He noticed a black sport utility vehicle drive by with its lights off. Minutes later, as he stood there smoking, three men came up the stairs. The first man, who was armed with a pistol, approached and told Rainey to give him everything Rainey had. The man then cocked the gun and fired, hitting Rainey in the leg. As Rainey turned and ran, the man fired again, hitting an exterior wall of the motel.
Rainey testified the gunman fired once as he fled; Taylor testified she heard three gunshots. Law enforcement officers recovered two bullet casings from the ground and located two bullet holes in the exterior wall of the motel.
Taylor, who was inside the motel room, heard three gunshots and then the three men came into the motel room. Defendant, who had a distinctive tattoo under his eye, pointed a shotgun in Taylors face and asked, "[W]here is all the stuff at?" As she knelt on the floor pleading for her life, the other two men took some items that belonged to her and some items that belonged to Rainey. All three men then fled.
DISCUSSION
I. Amendment of Count 3 from Attempted Robbery to Robbery
A. Background
As set forth ante, defendant was initially charged in count 3 with the attempted robbery of Rainey and his first jury trial ended in a mistrial. After the People concluded their case-in-chief in the second jury trial, the prosecutor moved to amend count 3 from attempted robbery to robbery, to conform to proof of evidence adduced at trial. Defendants counsel did not object to the amendment and the trial court granted the motion. Defendant was subsequently convicted on all counts and he now claims that the amendment at that juncture in the proceedings violated his right to due process.
A prosecutors right to amend the information is governed by statute. Section 1009 provides that "[a]n information may be amended for any defect or insufficiency, at any stage of the proceedings, so long as the amended information does not charge an offense not shown by the evidence taken at the preliminary examination. (§ 1009.) If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted. [Citation.] If there is no prejudice, an amendment may be granted up to and including the close of trial." (People v. Goolsby (2015) 62 Cal.4th 360, 367-368]; accord, People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1580-1581 (Arevalo-Iraheta); People v. Winters (1990) 221 Cal.App.3d 997, 1005 (Winters).) "The court has broad discretion to deny leave to amend, and must do so if the amendment would prejudice the defendants substantial rights." (People v. Birks (1998) 19 Cal.4th 108, 129.)
Section 1009 provides in full: "An indictment, accusation or information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint. The amended complaint must be verified but may be verified by some person other than the one who made oath to the original complaint." (Italics added.)
"The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion." (People v. Hamernik, supra, 1 Cal.App.5th at p. 424; accord, Arevalo-Iraheta, supra, 193 Cal.App.4th at pp. 1580-1581; People v. Bolden (1996) 44 Cal.App.4th 707, 716.)
Defendant asserts that the de novo standard of review applies in this instance because "[t]his issue arguably raises a pure question of law." However, he neither cites to direct authority for that proposition nor addresses the long line of appellate court cases applying the abuse of discretion standard to claims of error under section 1009. (E.g., People v. Hamernik (2016) 1 Cal.App.5th 412, 424; People v. Byrd (1960) 187 Cal.App.2d 840, 842 ["Whether the prosecution will be permitted to amend an information is a matter within the sound discretion of the trial court and its determination will not be overturned on review in the absence of a clear abuse thereof."].) Defendant cites People v. Cromer (2001) 24 Cal.4th 889, but that case did not involve a challenge to a ruling under section 1009 and it appears it is cited for the general proposition that "[t]raditionally ... an appellate court reviews findings of fact under a deferential standard (substantial evidence under California law, clearly erroneous under federal law), but it reviews determinations of law under a nondeferential standard, which is independent or de novo review." (Cromer, supra, at p. 894.) As the California Supreme Court has explained, "[t]he abuse of discretion standard ... reflects the trial courts superior ability to consider and weigh the myriad factors that are relevant to the decision at hand." (People v. Roldan (2005) 35 Cal.4th 646, 688, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) To the extent defendants assertion might arguably be construed as challenging the longstanding application of the abuse of discretion standard to section 1009 rulings, we find that argument waived as a result of defendants failure to support it with legal argument and citation to authority. (People v. Hovarter (2008) 44 Cal.4th 983, 1029.)
B. Forfeiture
Correctly anticipating the Peoples argument that he forfeited this claim by failing to object at trial, defendant argues the failure to object does not forfeit a claim of jurisdictional error and "[a]s the jurisdictional error is based on the constitution, [he] is permitted to raise claims asserting the deprivation of certain fundamental, constitutional rights for the first time on appeal." We are unpersuaded.
Defendants argument fails to distinguish between types of jurisdictional defects. There is a distinction between fundamental jurisdiction and acts in excess of jurisdiction granted by statute or other basis in the law, and this distinction matters for purposes of the forfeiture doctrine. The California Supreme Court has explained, "In its fundamental sense, jurisdiction refers to a courts power over persons and subject matter. [Citation.] Less fundamentally, jurisdiction refers to a courts authority to act with respect to persons and subject matter within its power. [Citation.] Issues relating to jurisdiction in its fundamental sense indeed may be raised at any time. [Citations.] By contrast, issues relating to jurisdiction in its less fundamental sense may be subject to bars including waiver (i.e., the intentional relinquishment of a known right) [citation] and forfeiture ... [citation]." (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6; see People v. Delgado (2017) 2 Cal.5th 544, 558-559.) "When a trial court has fundamental jurisdiction but fails to act in the manner prescribed, it is said to have acted in excess of its jurisdiction. [Citation.] Because an ordinary act in excess of jurisdiction does not negate a courts fundamental jurisdiction to hear the matter altogether [citation], such a ruling is treated as valid until set aside. [Citation.] A party may be precluded from seeking to set aside such a ruling because of waiver, estoppel, or the passage of time." (People v. Ford (2015) 61 Cal.4th 282, 287.) Thus, while "a lack of fundamental jurisdiction may be raised at any time, a challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely asserted." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1422.)
The issue raised by defendant on appeal does not implicate fundamental jurisdiction. As we explain below, section 1009 itself protects a criminal defendants right to due process and where a court has abused its discretion in permitting an amendment under that section, it has acted in excess of its statutory jurisdiction. Such a claim is subject to forfeiture in the absence of an objection. (People v. Seaton (2001) 26 Cal.4th 598, 641; People v. Leonard (2014) 228 Cal.App.4th 465, 481-484; People v. Fernandez (2013) 216 Cal.App.4th 540, 555; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1056.)
Turning to forfeiture in this instance, the "doctrine is a well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court. [Citation.] [Citations.] Strong policy reasons support this rule: It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) We find defendants failure to object to the amendment in the trial court forfeits the claim on appeal; his contrary arguments are unpersuasive. (People v. Seaton, supra, 26 Cal.4th at p. 641; People v. Leonard, supra, 228 Cal.App.4th at p. 481; People v. Fernandez, supra, 216 Cal.App.4th at p. 555; People v. Carrasco, supra, 137 Cal.App.4th at p. 1056; cf. People v. Valladoli (1996) 13 Cal.4th 590, 606 [facial constitutional challenge to statute permitting amendment to indictment or information arguably properly raised despite failure to object in trial court].) Forfeiture notwithstanding, we will nevertheless address the merits of defendants claim given his appended ineffective assistance of counsel argument. (People v. McCullough (2013) 56 Cal.4th 589, 593; People v. Lua (2017) 10 Cal.App.5th 1004, 1014; see Harrington v. Richter (2011) 562 U.S. 86, 105 ["An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial ...."]; People v. Jackson (2016) 1 Cal.5th 269, 347; but see People v. Riel (2000) 22 Cal.4th 1153, 1202 ["[The defendant] cannot automatically obtain merit review of a noncognizable issue by talismanically asserting ineffective assistance of counsel."].)
C. Analysis
"The preeminent due process principle is that one accused of a crime must be informed of the nature and cause of the accusation. (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citation.] [¶] Thus, the right to defend has two related components, namely, the right to notice of the charges, and the right to present a defense to those charges." (People v. Jones (1990) 51 Cal.3d 294, 317; see People v. Seaton, supra, 26 Cal.4th at pp. 640-641; People v. Peyton (2009) 176 Cal.App.4th 642, 657.)
"Section 1009 specifically proscribes amending an information to charge an offense not shown by the evidence taken at a preliminary hearing." (Arevalo-Iraheta, supra, 193 Cal.App.4th at p. 1581.) We have recognized that in this way, "[s]ection 1009 preserves a defendants substantial right to trial on a charge of which he had due notice. [Citation.] In other words, [the statute itself] protects a defendants right to due process." (People v. Pitts (1990) 223 Cal.App.3d 606, 903-904 (Pitts); accord, People v. Leonard, supra, 228 Cal.App.4th at p. 481.) In this case, defendant is not claiming that the statute is facially unconstitutional nor has he articulated any grounds showing prejudice. Rather, the crux of defendants grievance is that the prosecutor waited until the People rested in his second trial before moving to amend count 3 from attempted robbery to robbery. The mere timing alone, however, provides no basis for attacking the trial courts ruling, as amendment during trial is permitted by section 1009. (§ 1009; People v. McCoy (2013) 215 Cal.App.4th 1510, 1531; Arevalo-Iraheta, supra, at pp. 1580-1581; Pitts, supra, at p. 903.) To the extent the proposed amendment arguably unfairly surprised defendant and caused him prejudice with respect to notice and an opportunity to defend himself, the statutory remedy was an objection and a request for a continuance.
Counsel did not object, however, and defendants contention that this, then, constituted ineffective assistance of counsel lacks merit. (Harrington v. Richter, supra, 562 U.S. at pp. 104-105.) Counsel is presumed competent (id. at p. 104) and the record reveals no basis for an objection in the form of unfair surprise and prejudice based on lack of notice. The pre- and postamendment charges against defendant arose out of the same incident against victims Rainey and Taylor and involved the same facts. Defendant concedes as much; absent is any argument that his conviction for the robbery of Rainey is based on evidence not presented at the preliminary hearing.
As well, we find the authority cited by defendant for the implied proposition that he suffered prejudice inapposite. In Winters, the defendant waived the preliminary hearing and, over his objection, the trial court permitted amendment of the information to add a new charge at the close of the prosecutors case-in-chief. (Winters, supra, 221 Cal.App.3d at pp. 1001-1002.) The defendant did not claim prejudice, but argued that section 1009 did not authorize the amendment. (Winters, supra, at p. 1005.) The Court of Appeal held that because section 1009 does not permit amendment to add a charge "not shown by the evidence taken at the preliminary hearing," no basis existed to permit amendment given the defendants waiver of the preliminary hearing. (Winters, supra, at p. 1007.) This case does not involve a waiver of the preliminary hearing or a claim that the amendment was otherwise unauthorized by section 1009 and, therefore, Winters is distinguishable.
As we have stated, defendant does not advance any specific claim of prejudice.
In Pitts, a multi-defendant case involving a multitude of sexual abuse charges, we reversed numerous convictions for offenses not shown at the preliminary hearing. (Pitts, supra, 223 Cal.App.3d at pp. 908, 915-916.) We did so after concluding that the variances between the preliminary hearing and the trial were material because they misled the defendants in making a defense. (Id. at pp. 905-906.) We observed that "[i]n such a situation, the preliminary hearing transcript would not afford the defendant adequate notice of the specific acts against which he might have to defend. Moreover, in such a situation the opportunity to prepare a meaningful defense would obviously be adversely affected, since the change in alleged acts would affect medical testimony, cross-examination of the alleged victim(s), etc." (Ibid.) In this case, there were no material variances between the preliminary hearing and trial with respect to the evidence nor does defendant contend otherwise.
Finally, in People v. Burnett (1999) 71 Cal.App.4th 152, 155-156 (Burnett), the defendant was charged, in relevant part, with being a felon in possession of a weapon, which was identified as a .38-caliber revolver. (Former § 12021, subd. (a)(1).) During trial, a witness described a second, entirely different incident involving a .357-caliber revolver and the trial court permitted the prosecutor to amend the information to strike the caliber allegation from the information. (Burnett, supra, at p. 164.) The prosecutor then argued the jury could convict the defendant based on either incident. (Id. at p. 169.) The Court of Appeal found the amendment striking the caliber allegation immaterial because the witness at the preliminary hearing did not testify to the guns caliber and it found the issue of the defendants conviction based on an incident not shown at the preliminary hearing forfeited by virtue of counsels failure to object. (Id. at pp. 178-179.) It reversed the conviction, however, because the defendants trial attorney rendered ineffective assistance of counsel in failing to object when it became clear the jury was going to be asked to convict either on the incident that was the subject of the preliminary hearing or on the second incident described at trial, resulting in prejudice to the defendant. (Id. at pp. 179-183.) In this case, defendant was not convicted of an offense that was not shown by the evidence at the preliminary hearing and, thus, Burnett is not analogous.
In sum, defendants limited focus on the charges as listed in the information and the prosecutors arguments prior to amendment is misplaced. (People v. Peyton, supra, 176 Cal.App.4th at p. 657; Pitts, supra, 223 Cal.App.3d at pp. 905-906.) The focus of a claim that the trial court abused its discretion in permitting the information to be amended is properly on notice and the opportunity to present a defense, and that inquiry is viewed through the lens of the evidence presented at the preliminary hearing. (Arevalo-Iraheta, supra, 193 Cal.App.4th at pp. 1580-1581; People v. Peyton, supra, at pp. 656-658; Pitts, supra, at p. 906.) In this case, the attempted robbery count was based on the gunman demanding what Rainey had while he was standing outside the motel room; the amended robbery count was based on the theft of Raineys belongings from the room. The facts underlying the amended robbery count were presented at the preliminary hearing. Defendant does not contend otherwise nor does he offer any specific argument that he suffered prejudice. (People v. Graff (2009) 170 Cal.App.4th 345, 362; Pitts, supra, at p. 906.) In the absence of a showing that amending the information to charge robbery deprived defendant of notice and an opportunity to present a defense to the charge, the trial court did not abuse its discretion in permitting the amendment.
Defendants second claim on appeal—that he is entitled to reversal of his attempted murder conviction because the jury may have relied on the robbery of Rainey to find the attempted murder was a natural and probable consequence of robbery—is predicated on the success of his due process challenge to the robbery conviction. Our rejection of due process challenge renders moot his challenge to the attempted murder conviction and we do not consider the claim.
II. Applicability of Section 654 to Sentence for Robbery of Rainey
A. Background
Assuming rejection of his due process challenge to his conviction for robbing Rainey, defendant claims that because he was convicted of attempted murder based on the natural and probable consequences doctrine and harbored but a single intent, the trial court erred in punishing him for both the attempted murder of Rainey and the robbery of Rainey. For the reasons set forth below, we agree.
Defendant did not object to his sentence in the trial court but, as he points out, because a sentence imposed in contravention of section 654 is an unauthorized sentence, the error may be raised on appeal even in the absence of an objection. (People v. Brents (2012) 53 Cal.4th 599, 618.)
The statutory purpose underlying section 654 "is to ensure that a defendants punishment will be commensurate with his culpability." (People v. Correa (2012) 54 Cal.4th 331, 341.) To that end, the statute prohibits courts from imposing multiple punishments for the same act or omission. As the California Supreme Court recently observed, however, the application of section 654 can leave courts with more questions than answers. (Corpening, supra, 2 Cal.5th at p. 312.) This is because "[n]either the text nor structure of section 654 resolves when exactly a single act begins or ends, for example, or how to take account of the fact that virtually any given physical action may, in principle, be divided into multiple subsets that each fit the colloquial definition of an act." (Ibid.)
As the court explained in Corpening, determining "[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a single physical act. [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single "intent and objective" or multiple intents and objectives." (Corpening, supra, 2 Cal.5th at p. 311.)
When there is no "explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it." (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045, citing People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.) "[The] trial courts express or implied determination that two crimes were separate, involving separate objectives, must be upheld ... if supported by substantial evidence" (People v. Brents, supra, 53 Cal.4th at p. 618), that is, evidence which is reasonable, credible and of solid value (People v. Armstrong (2016) 1 Cal.5th 432, 450).
B. Multiple Punishments for Attempted Murder and Robbery of Rainey Unsupported by Substantial Evidence
Defendant, citing to People v. Bradley (2003) 111 Cal.App.4th 765 (Bradley), argues that "multiple punishment of an aider and abettor for robbery and attempted murder [is prohibited] when the aider and abettors liability for the attempted murder rests solely on the natural and probable consequences doctrine ...." Further, because he had only a single intent and objective in aiding and abetting the robberies, the trial court improperly imposed punishments for robbery and attempted murder.
The People, relying in part on People v. Nguyen (1988) 204 Cal.App.3d 181 (Nguyen), counter that the jurys finding the attempted murder was a natural and probable consequence of the robbery does not foreclose the trial court from finding the shooting was divisible from the robbery for the purpose of imposing multiple punishments. They contend that "[g]ratuitous violence against a helpless and unresisting victim has traditionally been viewed as not incidental to robbery for purposes of ... section 654" and, here, sufficient evidence supports the trial courts determination that defendant and his coconspirators had separate intents when they robbed Rainey and then shot at him as he ran away.
In this case, although the trial court stayed the burglary sentence under section 654, it did not make any express findings regarding the applicability of section 654 to defendants sentences for attempted murder and the robbery of Rainey. Thus, in imposing but not staying the sentences for attempted murder and robbery, the court impliedly determined that the course of conduct (1) did not involve a single physical act and (2) reflected multiple intents and objectives. (Corpening, supra, 2 Cal.5th at p. 311.)
As an initial matter, we observe that in exercising its discretion to impose consecutive sentences for these offenses (§ 669, subd. (a); People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479), the court reasoned, "[T]he attempted murder of victim Rainey and the robbery of Rainey were two separate ... incidences and warrant consecutive sentences. Specifically, victim Rainey was shot in the leg, which was the force used to facilitate the robbery. Thereafter, as victim Rainey ran, at that time the victim had abandoned the motel room so that the suspects could steal his property. Independent of that robbery, a separate gratuitous force was used in that they attempted to kill the victim as he fled by firing two more shots. So consecutive sentences will be imposed for Counts 1 and 3."
By rule, the determination whether section 654 applies precedes the determination whether to impose a concurrent or consecutive sentence (Cal. Rules of Court, rule 4.424), and in making the latter determination, the court considers factors such as whether "[t]he crimes and their objectives were predominantly independent of each other" (id., rule 4.425). Hence, while the courts aforementioned comments were made in the context of electing to impose consecutive sentences rather than concurrent sentences, its evaluation took into account factors that overlap with section 654 considerations and we include the comments here because they supply some context for the courts implicit view that section 654 did not apply.
Turning to the propriety of the courts section 654 determination in this case, the parties disagree over the sufficiency of the evidence that defendant had multiple intents and objectives. As previously stated, defendant relies on Bradley as controlling. To the extent defendant is arguing, in part, that multiple punishments may never be imposed on an aider and abettor convicted based on the natural and probable consequences doctrine, we do not read Bradley that broadly. We agree with defendant, however, that in this case, there is no evidence he personally harbored multiple intents and objectives. (Bradley, supra, 111 Cal.App.4th at pp. 768-769.)
The defendant in Bradley was a participant in a scheme to lure a prosperous customer away from a casino for the purpose of robbing him and it was her role to do the luring. (Bradley, supra, 111 Cal.App.4th at p. 767.) After locating a promising, inebriated target, the defendant succeeded in luring him away from the casino and, per the groups plan, the defendant, who was driving the victims car, pulled over. (Ibid.) Her two male confederates then entered the car and took control of it, during the process of which one of them leveled an Uzi at the victim and threatened him. (Ibid.) The defendant joined a female confederate in another car and they followed the first car to a second location, where the men robbed the victim of his valuables and then ordered him into the trunk of the car. (Id. at pp. 767-768.) When the victim purported not to know how to open the trunk, one of the men beat him with the Uzi and shot him eight times. (Id. at p. 768.)
The victim survived and the defendant was subsequently convicted of attempted murder and robbery based on aider and abettor liability. As in this case, liability for the attempted murder was premised on the natural and probable consequences doctrine. (Bradley, supra, 111 Cal.App.4th at p. 768.) The trial court imposed consecutive sentences for the crimes and, on appeal, the defendant raised a challenge under section 654. (Ibid.)
The Court of Appeal held that it was error to impose consecutive sentences for the two crimes and it remanded the matter to the trial court for resentencing consistent with section 654. (Bradley, supra, 111 Cal.App.4th at p. 772.) The court concluded that to avoid section 654s bar on multiple punishments, the defendant must have, herself, had dual objectives and, instead, she not only had the single objective of aiding and abetting a robbery but she was in fact unaware of the attempted murder plan until she heard the gunshots signaling the completion of the crime. (Id. at p. 770.) The court pointed out that "[s]he was neither tried nor convicted of the attempted murder charge on the theory she intended the commission of that crime. Rather, she was convicted on a theory this second offense was a natural and probable consequence of the offense she did intend, that is, the robbery." (Id. at p. 769.) The court noted the prosecutor could have elected to have the jury determine the defendant had the specific intent to attempt to murder the victim but did not do so. (Id. at p. 770.) Under such circumstances, "the trial court cannot countermand the jury and make the contrary finding [the] appellant in fact personally had both objectives. Indeed there is a complete absence of any evidence in this record to support such a finding had the trial judge attempted to do so." (Ibid.)
In this case, the trial court expressed its view that the initial shot was the force that facilitated the robbery while the shots taken at the fleeing Rainey were intended to kill him. The prosecutor, however, argued to the jury that the conspirators intended to kill Rainey in order to effectuate the taking of his property and the shots taken at him as he fled underscored this intent to kill.
In support of their positon, the People rely on the decision in Nguyen, an earlier case that was discussed in Bradley. (Bradley, supra, 111 Cal.App.4th at pp. 771-772.) In Nguyen, a different Court of Appeal rejected a section 654 challenge to consecutive sentences for attempted murder and robbery where the attempted murder conviction also rested on the natural and probable consequences doctrine. (Nguyen, supra, 204 Cal.App.3d at pp. 184-185, 188.) The Nguyen court opined that the finding the attempted murder was a natural and probable consequence of the robbery "in no manner foreclosed the trial courts conclusion that the act of violence was sufficiently divisible from the robbery to justify multiple punishments. That a shooting may have been foreseeable, or even probable, does not mean it was necessary or useful in effectuating the robbery or that it was committed for that purpose." (Id. at p. 190.) The court pointed out that the shooting, which occurred after the victim had been relieved of his valuables and forced to lie on the ground, "constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not incidental to robbery for purposes of ... section 654." (Ibid.)
In reaching its contrary conclusion, the Bradley court observed that the Nguyen court did not expressly address whether the aider and abettor could be found to have entertained multiple objectives, but it recognized that the aider and abettor in Nguyen actively encouraged the shooting of the victim. (Bradley, supra, 111 Cal.App.4th at p. 771.) The Bradley court concluded that when the reasoning of its decision was applied to the facts in Nguyen, Nguyens consecutive sentences were appropriate, as "[a]mple evidence in the record of that case would support a finding Nguyen shared his cohorts independent objective of attacking the victim." (Bradley, supra, at p. 772.)
Two years later, a different panel of the same Court of Appeal that decided Bradley revisited the Bradley and Nguyen decisions. In People v. Cummins (2005) 127 Cal.App.4th 667 (Cummins), one of the defendants challenged his consecutive sentences for attempted premeditated murder, kidnapping for the purpose of carjacking and robbery. (Cummins, supra, at p. 681.) The Cummins court noted that the Bradley court had distinguished Nguyen based on the larger role Nguyen played in the crimes compared with that of Bradley. (Cummins, supra, at p. 682.) After determining the defendants participation was commensurate with that of Nguyen, the Cummins court found the consecutive sentences were properly imposed. (Id. at pp. 682-683.)
In this case, the sole basis of defendants liability for the attempted murder of Rainey was that it was a natural and probable consequence of robbery. As in Bradley, and in contrast with Cummins and Nguyen, there is an absence of evidence in the record that defendant personally possessed dual objectives. The evidence in this case was relatively simple and straightforward. Defendant and another man followed the principal up the stairs. The principal demanded everything Rainey had, cocked his handgun and shot Rainey in the leg. As Rainey turned and ran, the man fired again. The trio then entered the motel room where defendant pointed his shotgun at Taylors head while his two companions stole Raineys and Taylors property. Assuming for the sake of argument that this spare set of facts might support a finding that the principal had dual objectives, there is simply no evidentiary support for an interpretation that defendant personally shared in those dual objectives.
The focus of the parties argument on appeal is intent and objective. Therefore, we assume without deciding that because the principal fired at Rainey more than once even though the first shot caused him to turn and run, the crimes were at least arguably the result of a divisible course of conduct rather than a single physical act. (Corpening, supra, 2 Cal.5th at p. 316 [where crimes were the result of a single physical act, multiple punishment is precluded and step two of analysis involving intent and objective is not reached]; People v. Mitchell (2016) 4 Cal.App.5th 349, 353 [intent and objective test did not apply because assault with deadly weapon and robbery constituted an indivisible transaction].)
Of further note, the acts underlying the attempted murder convictions in Cummins, Bradley and Nguyen, along with other decisions cited by the People in support of their argument, are distinguishable on another ground. In Cummins, Bradley and Nguyen, the attempted murders occurred after the victims had been robbed of their possessions, more readily supporting the arguable existence of divisible courses of conduct involving the presence, or absence as in the Bradley case, of dual objectives. Here, in contrast, although multiple shots were fired, the shooting occurred as the robberies commenced and was the force that facilitated the robbery of Rainey and satisfied one of the offenses material elements.
In addition to Nguyen, the People cited the following cases in support of their argument that there was sufficient evidence to support the imposition of multiple punishments: People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272 (senseless beating of feeble victim with whom the defendant had negative history supported finding of multiple objectives for the assault and robbery); People v. Johnson (1969) 270 Cal.App.2d 204, 208-209 (shot fired from departing vehicle was divisible from robbery where robbery had been accomplished); People v. Birdwell (1967) 253 Cal.App.2d 621, 631 (both acts punishable where assault was not the means of the robbery but followed the robbery); and People v. Williams (1966) 244 Cal.App.2d 658, 662-663 (double punishment permissible where assault occurred after objective of robbery accomplished).
"It has long been recognized that where a defendant is convicted of robbery and other crimes incidental to the robbery such as assault, section 654 precludes punishment for both crimes." (People v. Mitchell, supra, 4 Cal.App.5th at p. 354; accord, People v. Hensley (2014) 59 Cal.4th 788, 828.) In this case, the evidence shows that the attempted murder of Rainey was incidental to the robbery of Rainey and, even if we assume the evidence might arguably suggest the principal possessed an intent or objective for the shooting beyond facilitating the robbery, as discussed ante, there is no evidence in the record supporting a finding that defendant shared that dual objective. (People v. Hensley, supra, at p. 828 [evidence did not suggest intent or objective for shooting beyond facilitating robbery]; People v. Pearson (2012) 53 Cal.4th 306, 334 [robbery and sexual assault had different objectives than murder that followed them and could be punished separately].)
Accordingly, we conclude the trial courts implied determination that section 654 did not bar multiple punishments for the attempted murder and the robbery of Rainey is not supported by substantial evidence and the robbery sentence should have been stayed.
DISPOSITION
Defendants sentence on count 3, the robbery of Rainey, is stayed pursuant to Penal Code section 654. The trial court shall issue an amended abstract of judgment reflecting this order and forward it to the appropriate authorities. The judgment is otherwise affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.