Opinion
D058387 Super. Ct. No. INF57530
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. CLAYTON CORNELL JACKSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, Joe O. Littlejohn, Judge. Affirmed as modified and remanded with directions.
A jury convicted Clayton Jackson of kidnapping to commit sex offenses (Pen. Code, § 209, subd. (b)(1), count 1); forcible sexual penetration by a foreign object (§ 289, subd. (a)(1), count 2); forcible oral copulation (§ 288, subd. (c)(2), count 3); burglary of an inhabited dwelling (§ 459, count 4); making criminal threats (§ 422, count 5); dissuading a witness from reporting a crime to law enforcement (§ 136.1, subd. (c)(1), count 6); and assault with a semiautomatic firearm (§ 245, subd. (b), count 7). It found true allegations that as to counts 2 and 3, Jackson entered the inhabited dwelling with the intent to commit a violent sex offense and did commit a sex offense during the burglary within the meaning of section 667.61, subdivisions (d)(4) and (e)(2), and engaged in the tying or binding of a person within the meaning of section 667.61, subdivision (e)(6). The trial court found true the People's allegation that Jackson had suffered a prior conviction for burglary that qualified as a serious and violent felony under sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).
All statutory references are to the Penal Code unless otherwise indicated.
Before sentencing, the court granted Jackson's request to dismiss his prior strike conviction in the interests of justice. It sentenced him to a total determinate term of 25 years, four months, consisting of the "upper term" of 18 years on count 7, a consecutive term of six years on count 6, and a consecutive term of one year, four months on count 5. It also imposed a total indeterminate term of 57 years to life, consisting of unstayed sentences of life with the possibility of parole after seven years on count 1, a consecutive term of 25 years to life on count 2, and a consecutive term of 25 years to life on count 3. The court stayed Jackson's sentence on the count 4 residential burglary because it served as the basis for the section 667.61 enhancement.
On appeal, Jackson contends: (1) section 654 required that the trial court stay his sentence for the kidnapping charge and also precluded separate sentences for the count 5 criminal threat conviction and the count 6 conviction for dissuading a witness; (2) the court prejudicially erred by instructing the jury with a modified version of CALCRIM No. 3178 regarding the "One Strike" allegations of section 667.61; and (3) the court imposed an unauthorized sentence on his count 6 conviction. The People conceded the sentencing error on count 6, and asked that the matter be remanded for resentencing.
We asked the parties to provide supplemental briefing to address several sentencing issues, including whether the trial court imposed an unauthorized sentence when it failed to impose one or more five-year sentence enhancements under section 667, subdivision (a)(1) based on its finding that Jackson had suffered a prior conviction of first degree burglary, a serious and violent felony, that qualified as a strike under section 667, subdivisions (c) and (e)(1) and section 1170.12, subdivision (c)(1). On that issue, the People agree the sentence was unauthorized absent those enhancements; that the trial court was required to impose one section 667, subdivision (a) enhancement to Jackson's determinate sentence and one such enhancement on each of his indeterminate sentences.
The People initially took the position that the trial court's sentence was authorized without the section 667, subdivision (a)(1) enhancements because the information did not allege Jackson's prior conviction qualified as a serious felony within the meaning of section 667, subdivision (a)(1).
As we will explain, the trial court's only discretion was to impose five-year enhancements under section 667, subdivision (a)(1), because as a matter of law the prior conviction for residential burglary qualifies as a serious felony under section 1192.7, subdivision (c)(18), the People pleaded the factual basis for the prior conviction, and the enhancement is mandatory even where the prior conviction is stricken under section 1385 in the interests of justice. We further hold the court should have stayed execution of Jackson's sentence on the count 1 kidnapping charge under section 654; the court was required to pronounce sentence on count 4 before staying it; and the sentences on counts 6 and 7 are unauthorized. We modify the judgment accordingly and remand the matter with directions that the court exercise its discretion in pronouncing sentences on counts 4, 6 and 7.
FACTUAL AND PROCEDURAL BACKGROUND
Around noon on February 22, 2007, Jane Doe returned to her townhome from the gym and put her three-year-old son and three-month old daughter down for naps. When they were asleep, she went to check on her laundry, which was in machines located in the garage of another apartment in which James Cadotte, an employee of her husband, lived. Doe noticed as she approached the apartment that its garage door was propped open; when she opened it, she saw Jackson walking back and forth inside the garage with a handgun in his hand. She started to run back to her house and got about 15 feet away but Jackson told her to stop or he would shoot her. Considering her children's safety, Doe stopped rather than continue home.
Jackson grabbed a hold of Doe's wrist and put her arm behind her back, telling her, "Stop or your kids are going to pay for it." At the time, Jackson was agitated and making statements such as the "white man" owed him money and that he was owed money for work from " 'that F'n white guy.' " He led Doe back to the garage and let go of her, after which she started to talk to him and fold her laundry in an attempt to calm him down. She told him she did not know anything or want to be involved, but he became more agitated, stating he knew she had kids and was married to a white man. He also told Doe that if she told anyone, he would return and the "whole place was going to go down and that [Doe's] little girl would pay for it." Jackson then pushed Doe from the garage through a doorway to the apartment's master bedroom, stating that she knew about her husband's work and also telling her, "Your little girl is not going to live through this." Upset and shaking, Jane Doe tried to dissuade him from hurting her and told him she had just given birth; he acknowledged he knew she just had had a baby.
Once inside the bedroom, Jackson pointed his gun at Doe, demanded she take her sandals off and told her to lie on the floor on her stomach. Jackson proceeded to sexually assault Doe by kissing her, digitally penetrating her and orally copulating her. When he was done, he found a sweatshirt and tied Doe's hands and feet together with it, telling her if she said anything about what happened, he would "burn the place down." Jackson took his gun and left the room; when Doe could not hear him any longer, she worked on getting her feet untied, went to check on her children, and then called her husband, who called police.
DISCUSSION
I. Section 654 Claims
Jackson contends that under section 654, the trial court should have stayed his sentence on the count 1 kidnapping conviction. Specifically, he argues the evidence shows he harbored a single criminal objective and engaged in an indivisible course of conduct when he moved Doe from the garage into the house and committed the sexual offenses against her; that the act of moving her was incidental to the sexual assaults. Jackson similarly contends the court should have stayed the sentence on either the count 5 or 6 convictions of making criminal threats and dissuading a witness; that those counts involved a continuous and indivisible course of conduct with the objective of frightening Doe so she would not alert authorities. A. General Principles
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
" . . . ' "Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. 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.' " (People v. Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted; see also People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.) " 'If [a] defendant harbored "multiple criminal objectives," which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." ' [Citation.] The application of section 654, thus, 'turns on the defendant's objective in violating' multiple statutory provisions. [Citation.] Where the commission of one offense is merely ' "a means toward the objective of the commission of the other," ' section 654 prohibits separate punishments for the two offenses." (Wynn, 184 Cal.App.4th at p. 1215.)
" 'The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial.' [Citations.] '[T]he law gives the trial court broad latitude in making this determination.' " (People v. Wynn, supra, 184 Cal.App.4th at p. 1215.) B. Count 1: Kidnapping For the Purpose of Committing Sex Offenses
After hearing Jackson's counsel's argument that section 654 applied, the trial court imposed unstayed sentences for the count 1 aggravated kidnapping (see People v. Martinez (1999) 20 Cal.4th 225, 232), as well as the sex offenses of counts 2 and 3. The court did not state its reasons for declining to stay Jackson's sentence on count 1. Treating the question of Jackson's intent and objective as a factual determination as we must (People v. Wynn, supra, 184 Cal.App.4th at p. 1215), we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence (People v. Cleveland (2001) 87 Cal.App.4th 263, 271) and uphold the trial court's findings, even if implicit, as long as they are supported by substantial evidence. (People v. Evers (1992) 10 Cal.App.4th 588, 604; People v. Laster (1971) 18 Cal.App.3d 381, 394; see also People v. Hutchins (2001) 90 Cal.App.4th 1308.)
Here, the jury found Jackson kidnapped Doe with the intent to commit sex crimes and also committed sex offenses against Doe; the evidence shows that after forcing her to return to the garage and speaking with her about being owed money, Jackson moved Doe from the garage to the master bedroom, and then sexually assaulted her. Under these circumstances, we are unable to imply a finding that Jackson had one criminal objective in moving Doe to the master bedroom for the purpose of assaulting her, and a separate and independent criminal purpose in actually assaulting her, because the evidence does not support any such finding.
The People maintain that under these circumstances, we should not apply the "intent and objective" test broadly; that we must ensure a defendant's punishment is commensurate with his culpability. They argue the facts show the forcible sex crimes of counts 2 and 3 "differed from the kidnapping not only because the sexual assaults were later in time and in a different location, but because they were also accomplished with a different intent — the intent to commit violence against Doe." Under that rationale and relying on People v. Perez (1979) 23 Cal.3d 545, the People argue Jackson's sexual assaults inflicted injuries on Doe separate from any caused by the kidnapping, and thus he is more culpable and should be "deemed to have entertained multiple criminal objectives." According to them, applying section 654 to Jackson's actions in moving Doe and then sexually assaulting her would reward Jackson for his greater criminal ambition; that the fact Jackson actually assaulted Doe after moving her a substantial distance makes him more culpable than if he had only kidnapped her with the mere intent to sexually assault her.
People v. Perez is inapposite. In Perez, the defendant, who committed a number of sexual assaults, contended that section 654 applied because each separate sexual assault was intended to achieve the single intent and objective of sexual gratification. (People v. Perez, supra, 23 Cal.3d at p. 552.) The California Supreme Court rejected that argument, holding that a person who commits multiple criminal acts is substantially more culpable than a defendant who commits only one such act. "We therefore decline to extend the single intent and objective test of section 654 beyond its purpose to preclude punishment for each such act." (Id. at p. 553.)
More recently, the high court explained that cases have found separate objectives, and multiple punishment permitted, when the objectives were either "(1) consecutive even if similar or (2) different even if simultaneous." (People v. Britt (2004) 32 Cal.4th 944, 952.) It observed People v. Perez, supra, 23 Cal.3d 545 was such a case. "In Perez . . . the objective — sexual gratification — was achieved each time the defendant committed a sex offense. Each sex offense provided a new, and separate, sexual gratification; hence, the objectives were consecutive even if similar. (People v. Britt, 32 Cal.4th at p. 953, citing People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
This case does not involve a question of whether sentences for multiple sexual offenses must be stayed under section 654. Rather, the facts here are like those in People v. Latimer, supra, 5 Cal.4th 1203, in which a defendant kidnapped his victim, drove her to the desert, and raped her. (Id. at pp. 1205, 1217.) Ultimately, our Supreme Court held section 654 applied, explaining that "[a]lthough the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes." (Latimer, at p. 1216.) In short, because the kidnapping was incident to the defendant's objective of rape, he could be sentenced only for rape and not for kidnapping. (Ibid.) Likewise, in People v. Laster, supra, 18 Cal.App.3d 381, a roadside kidnap and rape, the defendant was sentenced to consecutive terms in state prison for forcible rape, kidnapping and assault. (Id. at p. 384.) The victim was held by her abductors for several hours and transported about two miles before she attempted to escape. She was then recaptured, transported another five miles, removed from the car, and dragged about 40 feet off the road, where she was raped. (Id. at p. 390.) The appellate court concluded: "Where the only reasonable conclusion is that the kidnapping was part of a continuous course of conduct motivated by one objective, rape, the kidnapping although complete before the rape was committed will be treated as incidental to and a means of committing the rape." (Id. at p. 394.)
Failing to stay a sentence when a stay is required by section 654 would result in an unauthorized sentence in excess of the court's jurisdiction. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) We conclude the evidence shows an indivisible course of conduct and single objective here, namely, Jackson sought to forcibly sexually assault Doe. His act of kidnapping Doe by moving her to the master bedroom was incidental to and a means of committing the intended sex offenses. The trial court did not identify, and we are unable to ascertain, evidence otherwise supporting the People's position. Absent substantial evidence demonstrating some other intent or objective, the sentence on Jackson's count 2 aggravated kidnapping must be stayed under section 654. C. Counts 5 and 6: Making a Criminal Threat and Felony Dissuading a Witness
The jury convicted Jackson of making a criminal threat under section 422 in count 5, and dissuading a witness from reporting a crime to law enforcement under section 136.1, subdivision (c)(1) in count 6. A criminal threat requires proof that, among other elements, the defendant intended the subject statement to be taken as a threat and the statement caused the victim reasonably to be in sustained fear for her own safety or the safety of her immediate family. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Felony dissuading a witness has different elements and requires a different intent. "Section 136.1 criminalizes trying to dissuade a victim from reporting a crime." (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320.) Conviction of that felony offense requires the jury to find the defendant knowingly and maliciously tried to prevent or discourage a crime victim from making a report of that victimization to law enforcement. (§ 136.1; see Upsher, at pp. 1318-1319.)
We conclude the evidence amply supports the trial court's implied factual finding that, in making his threats, Jackson had distinct criminal objectives that justified separate sentences for the criminal threat and dissuading convictions. Jackson initially threatened Doe before sexually assaulting her, telling her he would shoot her and make her children "pay" if she did not stop running away, and also stating her "little girl is not going to live through this" while walking her to the bedroom. The court could reasonably conclude those were threats plainly intended to place Doe in sustained fear for the safety of herself and her children and prevent her from trying to escape. After assaulting Doe, Jackson told her if she said anything about what happened, he would "burn the place down." The trial court could reasonably conclude that this threat had a separate and independent objective: to dissuade Doe from reporting her assault to police. In sum, the trial court did not err under section 654 by imposing sentences for both the count 5 and count 6 offenses.
The circumstances at issue are unlike those in People v. Mendoza (1997) 59 Cal.App.4th 1333, relied upon by Jackson, in which one single threat gave rise to two separate convictions under sections 422 and 136.1. (Id. at p. 1346.) The defendant in Mendoza, whose brother was charged with murder, went to a witness's home, told her she had " 'fucked up' " his brother's testimony, and stated he intended to talk to some members of his and his brother's gang. (Id. at p. 1337.) The appellate court found both offenses incidental to one objective — to help the defendant's brother by preventing further testimony from the witness — and stayed the concurrent sentence on the criminal threat count. (Id. at p. 1346.) As stated, the evidence in the present case shows Jackson made separate remarks at different times for different purposes, permitting the court to imposed unstayed sentences.
II. Claim of Instructional Error
A. Background
Section 667.61 was enacted in 1994 as part of what is commonly known as the "One Strike" law. (People v. Rayford (1994) 9 Cal.4th 1, 8.) In general, it requires the trial court to sentence a defendant found guilty of committing specified sexual offenses under specified aggravating circumstances to a lengthy indeterminate term — 15 or 25 years to life, depending on the particular aggravating circumstances. (People v. Palmore (2000) 79 Cal.App.4th 1290, 1295, see § 667.61, subds. (e)(1)-(e)(7).) The purpose of the One Strike law is "to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction . . . where the nature or method of the sex offense 'place[d] the victim in a position of elevated vulnerability.' " (Palmore, at p. 1296, italics omitted; People v. Hernandez (2009) 180 Cal.App.4th 337, 346.)
"Circumstances that elevate a victim's vulnerability and fall within the one strike statutory scheme include sex offenses where the attacker: kidnapped the victim (§ 667.61, subd. (e)(1)), inflicted great bodily injury on the victim (§ 667.61, subd. (e)(3)), used a dangerous or deadly weapon in the commission of the sex offense (§ 667.61, subd. (e)(4)), tied or bound the victim (§ 667.61, subd. (e)(6)), [or] administered a controlled substance to the victim by force or fear (§ 667.61, subd. (e)(7)) . . . ." (People v. Palmore, supra, 79 Cal.App.4th at p. 1296.)
One of the qualifying circumstances provided in subdivision (e) of section 667.61 is defendant's commission of a sex offense during commission of a burglary (§ 667.61, subd. (e)(2)). (See People v. Hernandez, supra, 180 Cal.App.4th at p. 346 ["A true finding on a section 667.61, subdivisions (a) and (d)(4) allegation results in a sentence of 25 years to life where, as here, the accused is convicted of forcible sodomy and rape under the aggravated circumstance that those crimes were committed during the commission of residential burglary 'with intent to commit an offense specified in subdivision (c).' "].) Section 667.61, subdivision (e)(2) deters with harsher punishment those who burglarize homes and exploit the vulnerability of people inside to commit sex offenses. (See, e.g., People v. Hicks (1993) 6 Cal.4th 784, 796-797 [interpreting section 667.6, subdivision (c), and observing the statute produces a just result by authorizing an increased penalty for a burglary that aggravated the sexual offenses "by increasing the victim's vulnerability and decreasing her chance of escape"].)
"The burglary circumstance is different from the other circumstances listed in section 667.61, subdivision (d) because it requires proof of specific intent on entry to a residence. Section 459, the general burglary statute, requires proof of entry 'with intent to commit grand or petit larceny or any felony. . . . ' (Italics added.) In section 667.61, the Legislature expressly narrowed the required intent at the time of entry to include not the specific intent to commit 'any felony,' but the specific intent to commit 'an offense' — that is, any felony sex offense — listed in section 667.61, subdivision (c). Language limiting the type of felonious intent to be proved is consistent with the purpose of 667.61 to increase punishment to a life sentence where the way the defendant committed a sex offense placed the victim in a position of elevated vulnerability." (People v. Hernandez, supra, 180 Cal.App.4th at p. 349.)
At trial in the present case, the trial court instructed the jury on the One Strike allegation with CALCRIM No. 3178, as follows:
"If you find the defendant guilty of the crime charged in Count 3, [section] 288[, subdivision] (a)(c)(2) of the Penal Code, oral copulation by force, fear or threat, you must then decide whether the People have proved the additional allegation that the defendant committed the crime during the commission of burglary with the intent to commit [section] 289[, subdivision] (a)(1), that is sexual penetration by force or fear; or [section] 288[, subdivision] (a)(c)(2), that is oral copulation by force, fear or threat. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.
"To prove this allegation, the People must prove that: [¶] One, the defendant entered an inhabited house or a room within an inhabited house; [¶] And, two, when the defendant entered the house or room within the house, he intended to commit [section] 289[, subdivision] (a)(1), that is sexual penetration by force or fear; or [section] 288[, subdivision] (a)(c)(2), that is oral copulation by force, fear or threat.
"And three, after the defendant entered the house or room within the house, he committed [section] 289[, subdivision] (a)(1), that is sexual penetration by force or fear; or [section] 288[, subdivision] (a)(c)(2), that is oral copulation by force, fear or threat before he escaped to a place of temporary safety.
"A house or a room within an inhabited house is inhabited if someone uses it as a dwelling, whether or not . . . someone is inside at the time of the alleged entry. A house includes any structure or garage that is attached to the house and functionally connected with it. The defendant intended to commit rape if he intended to have sexual intercourse with a woman who is not his wife without her consent by using force, duress, menace, or fear, or fear of immediate and unlawful bodily injury to her, or to another person or threatening to retaliate against her or against a third person with a reasonable possibility that the threat would be carried out.
"To decide whether the defendant intended to commit [section] 288[, subdivision] (a)(1) [sic], that is sexual penetration by force or fear; or [section] 288[, subdivision] (a)(c)(2), that is oral copulation by force, fear or threat, please refer to the separate instructions that I will give you on that crime.
"A person has reached a place of temporary safety if he or she has successfully escaped from the scene of the crime and is no longer being pursued. The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved." B. Analysis
Jackson contends the court prejudicially erred when it instructed the jury regarding the One Strike allegations of section 667.61 with CALCRIM No. 3178, which he characterizes as "confusing and ambiguous." He argues the portion of the instruction stating the People must prove he "entered an inhabited house or a room within an inhabited house" allowed the jury to return multiple true findings on the burglary special circumstances even if it believed he did not form the intent to rape Doe until after he entered the garage. Jackson argues People v. Richardson (2004) 117 Cal.App.4th 570, demonstrates the error in the court's instruction and seeks to distinguish People v. Sparks (2002) 28 Cal.4th 71. According to Jackson, the "rule to be drawn from [Richardson and Sparks] is that a defendant does not commit the crime of burglary when he enters an unsecured room within a single dwelling, even though the dwelling, as a whole, constitutes a single family household if the victim does not have a separate expectation of privacy in the room." We disagree with Jackson's characterization of these authorities.
People v. Richardson, supra, 117 Cal.App.4th 570, involved a defendant convicted of two separate burglaries, who on appeal claimed the court erred by instructing the jury with modified versions of CALJIC Nos. 14.50 and 14.52 permitting the jury to improperly convict him of both offenses. (Id. at pp. 571, 573.) There, the defendant entered two different bedrooms of an apartment shared by two roommates and took property from each room. (Id. at pp. 572, 575.) The appellate court concluded the trial court erred by instructing that the defendant's entry into each bedroom could constitute a separate burglary offense. (Id. at pp. 573, 577.) It observed the women shared the apartment without locked doors, and thus could not have "a separate, reasonable expectation of protection against an unauthorized entry . . . ." (Id. at p. 575.) Thus, "the burglary of different unlocked rooms in a single-family residence constituted a single burglary." (Ibid.) Accordingly, the court reversed the defendant's conviction of the second burglary offense. (Id. at p. 577.)
Unlike Richardson, Jackson was not charged with or convicted of separate burglaries; the question for the jury was whether it could find he committed a burglary with the requisite intent for purposes of the section 667.61 allegations. Thus, the question at hand is like the one presented in People v. Sparks, supra, 28 Cal.4th 71, in which the California Supreme Court upheld the jury's true finding on a section 667.61 burglary allegation after it had been reversed by the Court of Appeal. (Id. at pp. 73, 75, 88.) In Sparks, the California Supreme Court squarely held a defendant's entry into a bedroom within a single-family home with the requisite intent can support a burglary conviction even if the intent was formed only after the defendant's entry into the home. (Id. at p. 73; see also People v. Taylor (2010) 48 Cal.4th 574, 627.) Thus, the "trial court did not err . . . by instructing the jury that entry into [the victim's] bedroom with the specific intent to commit rape constitutes a burglary in violation of section 459." (Sparks, 28 Cal.4th at p. 87.) The court emphasized that its holding did not signify that a defendant's entry into multiple unsecured rooms in a single-family house permitted that defendant's conviction of multiple burglary counts. (Id. at pp. 87-88, fn. 21.)
The evidence in this case showed Jackson forced Doe into the house from the garage and then to the master bedroom. Regardless of whether the jurors found he had the intent to commit rape on his entry into the house and/or on his entry into the master bedroom pursuant to a section 667.61 allegation, those entries constituted only a single discrete criminal event and therefore Jackson committed only one burglary for purposes of the section 667.61 allegations. (See People v. Taylor, supra, 48 Cal.4th at p. 627, citing People v. Russo (2001) 25 Cal.4th 1124, 1132-1135; cf. People v. Hernandez, supra, 180 Cal.App.4th at p. 349 ["[T]he question whether Hernandez entered the victim's residence with the intent to commit forcible sodomy or rape involves only the theory of how the crime was committed, and the jury was not required to agree unanimously that he entered with the intent to commit one or both of those sex offenses"].) Jackson's entry into the house from the garage, followed by his entry into the master bedroom did not involve multiple burglaries at different times and places, but a single discrete criminal event involving only multiple theories. (Taylor, at p. 627; Russo, at pp. 1132-1133, 1135.) Whether he had the intent to commit the sex offenses on his initial entry into the house from the garage and/or on his later entry into the master bedroom, Jackson committed only one burglary for purposes of section 667.61.
Based on the foregoing, Jackson has not shown CALCRIM No. 3178 misstated the law for purposes of the section 667.61 true finding.
III. The Court Must Pronounce Sentence on Count 4 Before Staying the Sentence
At the sentencing hearing, the trial court did not specify a sentence for the count 4 burglary, which it then stayed. The abstract of judgment indicates a midterm on that count, but otherwise does not specify a sentence. This results in an unauthorized absence of sentence.
The proper procedure was for the court to pronounce sentence on count 4, then stay the sentence under section 654. (People v. Miller (1977) 18 Cal.3d 873, 886 ["When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable"]; overruled on other grounds in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8; see also People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) On remand, the court shall pronounce sentence on count 4 and then stay its execution under section 654.
IV. Unauthorized Sentences on Counts 6 and 7
A. Count 6
At the sentencing hearing, the trial court imposed what it stated was the "full mid term of six years" on the count 6 conviction for dissuading a witness, and ran the term consecutive to the other terms. Later, after summarizing the indeterminate and determinate terms, the court stated: "And the Court will indicate on the record that the sentencing date supported the Court's application of the upper term in consecutizing the counts are [sic] related to the fact that the defendant did engage in violent conduct, which indicated a serious danger to society; that the victim was particularly vulnerable; and that the manner in which the crime was carried out indicated some planning and sophistication, which arose, that the Court will consider in enhancing or consecutizing counts."
Jackson contends the court imposed an unauthorized sentence on his count 6 conviction for dissuading a witness; that it erred by imposing a six-year term on that count when the statutory maximum for that count is four years. He asks us to remand the matter for resentencing. The People concede the sentence on count 6 is unauthorized; they point out that while "the six-year term imposed is a doubling of the mid term of three years, which would have been appropriate had the court not stricken appellant's strike offense, the trial court had dismissed appellant's single prior strike offense in the interests of justice." The People also state remand is required because "it is not clear from the record the source of the court's error . . . ."
We agree that after the trial dismissed Jackson's prior strike conviction, it no longer had discretion to double the term under the "Three Strikes" law. (See § 667, subd. (c); 1170.12, subd. (a).) A person convicted of felony dissuading a witness is subject to a state prison term of two, three or four years. (§ 136.1, subd. (c)(1).) Because the trial court retains its discretion to select the upper, lower or middle term for the offense (§ 1170, subd. (b)), the matter is remanded for the trial court to exercise its discretion to select the upper, middle or lower term for Jackson's count 6 conviction. B. Count 7
The trial court also imposed an "upper term" of 18 years on count 7, assault with a semiautomatic firearm. (§ 245, subd. (b). The upper term for that offense, however, is nine years. (Ibid. [punishment for offense shall be "three, six or nine years"].) In response to our request for supplemental briefing on that point, the People conceded that the 18 year sentence on count 7 is unauthorized. For the same reasons expressed above with regard to count 6, we agree. Accordingly, on remand, the trial court is directed to exercise its discretion to select the upper, middle or lower term for Jackson's count 7 conviction.
V. Section 667, Subdivision (a) Prior Serious Felony Conviction Enhancement We asked the parties to provide supplemental letter briefs on the question of whether the trial court imposed an unauthorized sentence when, notwithstanding its dismissal of Jackson's prior strike conviction for first degree burglary under section 1385, it failed to impose one or more five-year sentence enhancements under section 667, subdivision (a). (Govt. Code, § 68081.)
Initially, the People responded that the sentence was authorized because an enhancement under section 667, subdivision (a) was not specifically pleaded by statutory number in the information, and the trial court only found true that the prior offense qualified as a "strike," not as a serious offense under section 667, subdivision (a). They distinguished several authorities on the question, including People v. Garcia (2001) 167 Cal.App.4th 1550 and People v. Turner (1998) 67 Cal.App.4th 1258, on grounds the enhancement was pleaded in those cases. Jackson took the same position. After we pointed out to the People some inconsistency in its prior positions, the People conceded the court's sentence was unauthorized absent the enhancements. We conclude the court had no discretion but to impose the mandatory five-year enhancement under section 667, subdivision (a). A. Applicable Legal Principles
Section 667, subdivision (a)(1) provides that "any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . 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." (Italics added.) "Where a person has been convicted of a serious felony in the current case, and it has been alleged and proved the person suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), the trial court must impose a consecutive five-year term for each such prior conviction. The trial court has no discretion and the sentence is mandatory." (People v. Purata (1996) 42 Cal.App.4th 489, 498, (Purata); accord, People v. Rivadeneira (1991) 232 Cal.App.3d 1416, 1420.) B. Analysis
The question here is whether Jackson's serious felony was sufficiently alleged and proved for purposes of triggering the mandatory section 667, subdivision (a) enhancement. The People alleged in the information that "on or about September 13, 2006, in the Superior Court of the State of California, for the County of Riverside (INFO52333), [Jackson was] convicted of the crime of burglary, a serious and violent felony, in violation of Penal Code section 459, within the meaning of Penal Code sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1)." Though the information contains an allegation that Jackson's burglary qualified as a "serious . . . felony," there was no reference to subdivision (a) of section 667. However, it is plain from these allegations that the factual basis for the serious felony was pleaded, and indeed, the court expressly found true the allegation that Jackson's burglary was a residential burglary, thus qualifying as a serious felony under section 1192.7, subdivision (c)(18).
The trial court stated: "And the Court will further find that the — the Court is finding that beyond a reasonable doubt, counsel. And the Court will find that defendant's prior conviction is a residential burglary, and residential burglary qualifies as a serious felony under the [T]hree [S]trikes laws. And specifically the [T]hree [S]trikes law defines a strike, among other things, as the offenses alleged in [section] 1192.7[, subdivision] (c). Residential burglary is found at [section] 1192.7[, subdivision] (c)(18). The Court is making that finding beyond a reasonable doubt."
Under these circumstances, we conclude the conditions for imposition of the mandatory five-year enhancement are satisfied. Jackson was convicted in the current case of several serious felonies, including kidnapping (§ 1192.7, subd. (c)(20)) and forcible oral copulation. (§ 1192.7, subd. (c)(5).) The trial court found Jackson's prior residential burglary offense was a serious felony. (§ 1192.7, subd. (c)(18); see People v. Kelii (1999) 21 Cal.4th 452, 454-456 [trial court determines whether prior conviction qualifies as a serious felony]; accord, People v. McGee (2006) 38 Cal.4th 682, 694-695.) Thus, the trial court had no discretion but to impose the consecutive five-year prison term prescribed by section 667, subdivision (a)(1). (People v. Purata, supra, 42 Cal.App.4th at p. 498.)
We disagree that Jackson lacked notice the five year enhancement could be imposed because it was not specifically alleged that his prior burglary conviction was a serious felony within the meaning of section 667, subdivision (a)(1). Jackson relies on People v. Mancebo (2002) 27 Cal.4th 735, in which the California Supreme Court construed the language of section 667.61, subdivisions (f) and (i), and limited its holding to those statutory provisions. (Mancebo, at p. 745, fn. 5.) Mancebo held unauthorized a sentence including 10-year gun-use enhancements based on a multiple-victim circumstance (§ 667.61, subd. (e)(5)) that was not alleged in the information. (Mancebo, at p. 745.) The court observed that because the information "neither alleged multiple victim circumstances nor referenced subdivision (e)(5) of section 667.61 in connection with those counts[,] . . . no factual allegation in the information or pleading in the statutory language informed defendant that if he was convicted of the underlying charged offenses, the court would consider his multiple convictions as a basis for One Strike sentencing under section 667.61, subdivision (a)." (Mancebo, at p. 745.) This violated the defendant's due process right to fair notice of the specific sentence enhancement allegations that would be invoked to increase his punishment. (Id. at p. 747.) Likewise, in People v. Haskin (1992) 4 Cal.App.4th 1434, also cited by Jackson, the Court of Appeal held a trial court was without authority to impose a five-year enhancement under section 667 where the information neither "statutorily nor factually charged" that enhancement. (Haskin, at p 1440.)
We perceive no such due process violation here, where the factual basis for the enhancement was both alleged and found true beyond a reasonable doubt. A "valid accusatory pleading need not specify by number the statute under which the accused is being charged." (People v. Thomas (1987) 43 Cal.3d 818, 826; see also People v. Shoaff (1993) 16 Cal.App.4th 1112, 1117.) It is sufficient that the accusatory pleading identify the factual basis for imposition of an enhanced penalty. (People v. Flynn (1995) 31 Cal.App.4th 1387, 1393 [a defendant "is entitled to notice of the factual basis underlying the serious felony allegation rather than the precise subdivision designation"]; People v. Shoaff, at pp. 1117-1118 ["It is the specific factual allegations of a pleading which determine what offenses are charged. An accusatory pleading must likewise allege each fact required for imposition of an enhanced term"].)
When an information puts a defendant on notice that an increased sentence will be sought and alleges the facts supporting the increased sentence, modification of the judgment for errors or omissions in the information in required only when the defendant has been misled to his or her prejudice. (People v. Thomas, supra, 43 Cal.3d at p. 831; People v. Neal (1984) 159 Cal.App.3d 69, 73.) Jackson does not claim he would have defended the matter any differently if the precise code section had been pleaded in the information. Because the information alleged his prior conviction and its status as a strike, he had actual notice that the information exposed him to enhanced punishment for that prior conviction. We are satisfied he was not misled to his prejudice. (Neal, at p. 73.)
In People v. Neal, supra, 159 Cal.App.3d 69, the information alleged that the defendant used a deadly weapon within the meaning of section 12022, subdivision (b), a one-year enhancement. The court enhanced the sentence by three years under section 12022.3. The Neal court held that a misstatement of the code section did not prejudice the defendant where the information placed him on notice that an enhancement would be sought and of the facts on which the enhancement was based. (Neal, 159 Cal.App.3d at pp. 72-73.)
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In sum, we conclude because Jackson's prior residential burglary conviction qualified as a serious felony under section 1192.7, subdivision (c)(18) and the factual basis of the serious felony was alleged, proved, and found true, the court's failure to impose the five-year enhancement prescribed by section 667, subdivision (a)(1) resulted in an unauthorized sentence. (People v. Turner, supra, 67 Cal.App.4th at p. 1269.) This court must correct an unauthorized sentence on appeal whenever the error comes to our attention, even if it results in harsher punishment. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; see People v. Woods (2010) 191 Cal.App.4th 269, 273; People v. Cates (2009) 170 Cal.App.4th 545, 552.)
The final question is how to handle the five-year enhancement applicable to the count 1 kidnapping indeterminate sentence that must be stayed under section 654. Citing People v. Smith (1985) 163 Cal.App.3d 908 and People v. Guilford (1984) 151 Cal.App.3d 406, the People state "[n]o additional punishment for appellant's prior conviction would be imposed on any count where sentence is stayed under Penal Code section 654." We recognize that "the term 'impose' is itself used loosely, either to mean impose and execute or impose and stay." (People v. Alford, supra, 180 Cal.App.4th at p. 1471, citing People v. Gonzalez (2008) 43 Cal.4th 1118, 1125-1127.) If by their argument the People mean the enhancement is added to the kidnapping count but stayed, we agree.
This was the apparent procedure in People v. Guilford, involving a section 12022, subdivision (b) deadly weapon use enhancement. There, the question was "whether an enhancement relating to a count may be treated as having viability independent of the sentence on that count, so that even where the sentence on the count is stayed, the enhancement as to that term is not automatically required to be stayed." (People v. Guilford, supra, 151 Cal.App.3d at p. 411.) The court held "an enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed." (Ibid., italics added.) In Guilford, the enhancement was added but then stayed under section 654. The court in People v. Smith, supra, 163 Cal.App.3d 908 appears to have reached the same conclusion. (Id. at p. 914 [staying additional term provided in section 12022].) More recently, the court in People v. Alford confirmed the longstanding rule in place is that the court must impose sentence on every count, including applicable enhancements, but stay execution as necessary to implement section 654. (People v. Alford, supra, 180 Cal.App.4th at pp. 1472, 1467.) The correct procedure is to impose the section 667, subdivision (a)(1) five-year enhancement and stay its execution. (Ibid.)
A prior serious felony enhancement under section 667, subdivision (a) is applied to every indeterminate term, but only once to a determinate sentence. (See People v. Williams (2004) 34 Cal.4th 397, 401-405; People v. Garcia, supra, 167 Cal.App.4th at p. 1562 ["in cases where multiple indeterminate terms are imposed, all section 667, subdivision (a) five-year serious felony enhancements must be imposed on every count"] (italics added); People v. Misa (2006) 140 Cal.App.4th 837, 845-847.) We accordingly modify the judgment to impose one five-year enhancement on Jackson's determinate sentence, making that sentence 30 years and four months, and one five-year enhancement on each of Jackson's indeterminate terms on counts 1, 2 and 3, staying Jackson's sentence on count 1. (§ 667, subd. (a)(1); People v. Purata, supra, 42 Cal.App.4th at pp. 498-499.)
DISPOSITION
The judgment is modified to stay Jackson's sentence on count 1 under Penal Code section 654; add one five-year prior serious felony enhancement under Penal Code section 667, subdivision (a)(1) to Jackson's determinate term; and impose five-year prior serious felony enhancements on each of Jackson's indeterminate terms on counts 1, 2 and 3, so that Jackson's sentence is 30 years to life on count 2 and 30 years to life on count 3. The matter is remanded and the trial court directed to pronounce sentence on count 4 then stay that sentence under Penal Code section 654, and exercise its discretion to impose the upper, lower or middle term on counts 6 and 7. The court shall prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
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O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P. J.
IRION, J.