Opinion
E052339 Super.Ct.No. FVI800549
04-18-2012
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER SHANE RIVERA, Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret, Judge. Affirmed with directions.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Christopher Shane Rivera guilty of the first degree felony murder of Adam Atencio in count 1, attempted robbery as a lesser included offense of robbery in count 2, and burglary in count 3. In each count, the jury found that a principal was armed with a firearm, but found not true additional allegations, in each count, that defendant personally discharged a firearm. Defendant was sentenced to eight years plus 25 years to life, and appeals.
Defendant, relying on People v. Chun (2009) 45 Cal.4th 1172 (Chun), contends that because attempted robbery is an offense which is assaultive in nature, it merges with the homicide and cannot be used as a basis for finding first degree felony murder. As such, he contends he was convicted on a legally incorrect theory. We disagree for two primary reasons: (1) Chun dealt with second degree felony murder, not first degree felony murder; and (2) first degree felony murder is based on Penal Code section 189,which does not except from its application crimes which are assaultive in nature. Additionally, the jury necessarily found that the murder of Atencio was perpetrated during the commission of a burglary with the intent to commit a theft, and theft is a nonassaultive crime.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant also claims that his separate sentence on the burglary conviction should have been stayed under section 654 because the evidence indisputably showed that the burglary and murder were based on the same indivisible course of conduct. Again, we do not agree. Because the murder and burglary involved separate victims, we conclude that the sentence on the burglary conviction was properly not stayed.
Lastly, defendant claims the sentencing minute order and abstracts of judgment must be corrected in several respects. We remand the matter with directions to correct errors in these documents, and affirm the judgment in all other respects.
II. FACTUAL BACKGROUND
On the evening of March 6, 2008, Lucas Buckingham was partying in his apartment with the murder victim, Atencio, Atencio's brother Andrew, and a friend of Andrew's. They were drinking and doing drugs. They went to sleep between 2:00 a.m. and 4:00 a.m. Atencio slept on the living room couch. Andrew and his friend left the apartment between 7:30 a.m. and 8:00 a.m. At that time, Atencio was in the living room talking on the telephone with his fiancé.
Later that day, Troy Fava, Peter Lewis, Charles Carr, and defendant arrived at Buckingham's apartment complex in two cars. Fava and Lewis were in one car and defendant and Carr were in defendant's sister's BMW. After exiting their vehicles they walked through the complex to Buckingham's apartment. They entered through an already open front door.
The apartment was a one-bedroom, one-bathroom apartment with a small kitchen and living room.
Carr testified that at the time of entry, Atencio was seated on the living room couch. He testified that defendant, Fava, and Lewis went into Buckingham's bedroom, and he remained at the doorway to the apartment. Defendant testified that as they walked in, Atencio stood up and asked, "[w]hat's going on?;" after being asked where Buckingham was, one of the group pushed Atencio into a chair.
Buckingham testified that after going to sleep in the early morning hours, the next thing he remembered was that it was daylight and Fava was straddling him on the bed and punching him. Buckingham indicated that Lewis was behind Fava and there was another person in the doorway he did not recognize. Fava then pulled him to the floor and continued punching him while Lewis was holding a black semiautomatic pistol. After Fava stopped beating Buckingham, Lewis asked where the stash was; Fava indicated to Lewis that that was not what they were there for, and that they needed to do what they came to do. Lewis then put down the gun, took his gloves off, and started to choke Buckingham.
Defendant testified that after entering the apartment, he and Fava went to Buckingham's bedroom and Carr and Lewis remained in the front room with Atencio. As Fava was beating Buckingham, defendant stood at the door. In a statement to an investigating officer, defendant indicated it was he who asked Buckingham where the money and drugs were. He further testified that at some point Lewis entered the room and started beating on Buckingham.
Buckingham testified that as he was being choked by Lewis, things began to go fuzzy. He then heard from the living room a large thud, which was followed by gunshots. Looking from his bedroom he could see Lewis standing in the area where the carpet joins the kitchen linoleum, shooting a firearm. Lewis was facing the front door. Two guns were being fired. He believes he heard approximately 15 gunshots. He then heard Fava say, "[w]e've got to leave now," and they left the apartment.
Carr testified that as he was standing at the door to the apartment he heard sounds of fighting coming from the bedroom. During this time, Atencio got off the couch and went towards the hallway leading to the bedroom; as Atencio turned, Carr saw a gun in Atencio's right hand. Carr immediately ran from the apartment. As he was running he heard about 10 shots being fired. Defendant testified that as Lewis was beating up Buckingham he heard a commotion in the living room. He then saw Atencio moving towards the living room with a gun. Defendant went back into the bedroom and got on the floor; at this point, gunshots started; after they stopped, he ran outside.
Buckingham testified that shortly before the incident, he purchased off the street a Glock, model 22, 40-caliber handgun. He normally slept with the gun under his pillow, but did not recall putting it under his pillow the night before the incident. It is quite possible that he left the Glock on the kitchen counter when he went to bed. Atencio's brother, Andrew, testified that during the evening before the shooting, he saw a handgun on the coffee table in the living room.
Buckingham indicated that after the shooting stopped he went outside; Atencio was lying on the ground bleeding with a bullet in his chest. Atencio was breathing at that point. After Buckingham called 911, he watched Attencio die. He did not see any firearms in the vicinity of Atencio.
The entire incident from the first punch to when he went outside and saw Atencio take his last breath was about a minute and a half.
After leaving the apartment, defendant ran to his car. As he was leaving the apartment complex he stopped to pick up Carr. Carr testified they drove to Carr's house. When they got there, defendant pulled two guns from his jacket and indicated that he needed to do something with them. Defendant told Carr that Atencio would not stop shooting and that he had to shoot back. He indicated he did not know how many times he fired and that he just hung the gun around the corner and fired. He was unsure if he shot Atencio. Defendant told Carr that as he was leaving the apartment Atencio was lying on the ground and still moving; defendant picked up a gun lying near Atencio.
Carr further testified that after going to defendant's house they drove into the desert and hid the guns in some rocks. At the time of the incident, Steven Pennington was on homicide detail with the San Bernardino County Sheriff's Department. He testified that he interviewed Carr in the early morning hours of March 8. Carr pointed out the area where the guns were hidden. He located a Glock model 22 and a Sig P226.
William Matty, a criminalist with the State of California Department of Justice, testified that he examined a Glock model 22 and a Sig Sauer nine-millimeter. Three of the cartridges collected at the apartment were fired by the Glock pistol. Two other cartridges were fired by the Sig Sauer pistol. The two bullets retrieved during the autopsy could not have been fired by the Glock, but could have been fired by the Sig Sauer. The Sig Sauer was owned by William Rivera, defendant's father.
Hazel Whitworth, a criminalist with the sheriff's crime laboratory, testified that Atencio had gunshot wounds to the chest area. He was somewhere in the entryway of the apartment when a bullet hit him in the heart. Dr. Chanikarn Changsri, a deputy medical examiner with the San Bernardino County Sheriff's Coroner's Division, indicated that the cause of Atencio's death was a bullet that penetrated between the ribs and went into the heart.
Prior to the incident in question, Buckingham had known Fava for a few months. Buckingham had dated Fava's present girlfriend, Stephanie Barlington. He was also selling drugs to Stephanie's mother, Bobbie, and to Bobbie's son. One evening, a few weeks before the incident, Buckingham called Bobbie because Bobbie owed money to a friend of his. In the conversation he accused her of using all the money to purchase methamphetamine; in response, she said that she could have a couple of people beat the "living crap" out of him. A few days later, Lewis and Fava came to his apartment and forced themselves in. They beat him. They asked where his drugs and money were. Upon leaving, they took two freezer bags of marijuana, a shotgun, some cellular telephones, and a camcorder, as well as $500 to $600. A few days later, and about two weeks before the incident in question, Buckingham was in his car about ready to leave his apartment. An SUV, driven by defendant, pulled up and stopped partially behind Buckingham's car. Fava got out of the SUV and walked to Buckingham's driver's side window. Fava knocked on the window. Buckingham cracked the window and pointed a .40-caliber Glock 22 at Fava and told him to back up. Buckingham then backed his car into the SUV, causing damage to the SUV's back bumper. The SUV was owned by defendant's mother.
The defense was premised on the notion that Carr was the shooter. Defendant's father testified that on the day before the shooting he was going to take his Sig Sauer pistol to the shooting range. Prior to going, he took the gun (in its case) from his safe and put it in his pickup truck. Thereafter, and at the behest of his wife, he agreed to go to San Diego for the weekend. As they were packing to leave for San Diego, he noticed the gun case in his pickup; rather than take it back into the house, he placed it on the rear floorboard of his daughter's BMW. Defendant testified he did not know of the presence of the gun. On the morning of the shooting, he drove his sister's BMW and picked up Carr; the two of them went to Fava's house. Lewis was at Fava's house. The rag top on the BMW was down. Carr and others had access to the inside of the car during the period of time they were at Fava's house.
Defendant testified that as he was leaving the apartment after the shooting he passed by Atencio; there were no objects on the ground around the victim. As he was leaving the complex in his car, he picked up Carr. When they arrived at Carr's house, and while defendant was on the telephone with Fava's sister, he noticed that Carr had a gun on his lap. Thereafter, Carr pulled another gun from a pocket of his hoodie. Shortly thereafter they went into the desert and Carr hid the guns in a rock pile.
Robin Gryvnak testified that four days before the shooting she was talking to Lewis about Lewis repaying a $10 debt. Carr was with Lewis. Carr was talking on the telephone and she overheard him say, "[c]ause dude's always strapped and I wanted to have a piece with me, and I thought maybe you could have my back."
III. DISCUSSION
A. The First Degree Felony-murder Conviction Was Necessarily Based on a Correct Legal Theory
The jury found defendant guilty of first degree felony murder based solely on a felony-murder theory, with the underlying offenses being attempted robbery and burglary with the intent to commit a robbery or theft. Based on the evidence and the not true findings on the personal and intentional discharge allegations, it is clear the jury did not believe defendant was the shooter. It is also evident that the jury necessarily concluded that defendant intended to rob or steal from Buckingham when he entered Buckingham's apartment.
Evidence supporting the proposition that defendant entered the apartment with the intent to rob Buckingham or commit larceny was as follows: Buckingham backed into defendant's mother's SUV. Defendant was angry about the damage to his mother's SUV, and wanted to get it fixed before she noticed. He was involved in the incident because he needed a couple of hundred dollars to fix the SUV. He would have taken drugs or money. As the group was planning to go over to Buckingham's, defendant indicated he needed to pay for the bumper, so he would go with them. He heard that Buckingham had drugs and money; he was going to take the money from Buckingham's pocket. As Fava was beating Buckingham, defendant was looking for things of value. He told Sergeant John Gaffney they were going to Buckingham's house to beat him and get some money and drugs so that defendant could fix his mother's car. As Fava was beating Buckingham, defendant was looking around the room for things of value, and asked Buckingham, "[w]here's your money and your drugs."
Relying on Chun, supra, 45 Cal.4th 1172, defendant contends that because attempted robbery is assaultive in nature, it merged with the homicide and cannot be used as a basis for finding first degree felony murder. For this reason, defendant argues his first degree felony-murder conviction is based on a legally incorrect theory and must be reversed. (People v. Calderon (2005) 129 Cal.App.4th 1301, 1306-1307 & fn. 5 [a legally incorrect theory, if relied upon by the jury, cannot support a conviction of the charged offense as a matter of law].)
As set forth in Chun, the state of the law regarding the merger doctrine is "muddled." (Chun, supra, 45 Cal.4th at p. 1189). As explained in People v. Ireland (1969) 70 Cal.2d 522, "a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Id. at p. 539, fn. omitted.) Over time, various assaultive crimes have been deemed to be an integral part of the homicide, and their use has been found to be inappropriate for purposes of a second degree felony-murder instruction.
1. The Chun and Farley Decisions
People v. Farley (2009) 46 Cal.4th 1053 (Farley).
In Chun, the 16-year-old defendant was in a vehicle which pulled up alongside another vehicle, occupied by three individuals. The defendant fired numerous shots into the vehicle. Two individuals seated in the front were injured and the backseat passenger was killed. The defendant was charged with various crimes, including murder and shooting at an occupied vehicle, a violation of section 246. In addition to instructing the jury on first degree murder, the trial court instructed on second degree felony murder, with the underlying target felony being shooting at an occupied motor vehicle. The jury found the defendant guilty of second degree murder.
Although the Chun court affirmed the conviction, it nonetheless found error in the second degree felony-murder instructions. Specifically, the court concluded that second degree felony murder cannot be based on any assaultive crime, including shooting at an occupied vehicle, because all "assaultive-type crimes" merge with the charged homicide. (Chun, supra, 45 Cal.4th at pp. 1178, 1200.) At the outset of its decision, the court wrote: "[W]e reconsider the contours of the so-called merger doctrine this court adopted in People v. Ireland[, supra,] 70 Cal.2d 522 . . . . After reviewing recent developments, primarily some of our own decisions, we conclude the current state of the law in this regard is untenable. We will overrule some of our decisions and hold that all assaultive- type crimes, such as a violation of section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction. Accordingly, the trial court erred in instructing on felony murder in this case." (Id. at p. 1178.)
The Chun court reasoned that: "An 'assaultive' felony is one that involves a threat of immediate violent injury. [Citation.] In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive. . . ." (Chun, supra, 45 Cal.4th at p. 1200.) The court expressly declined to determine "what felonies are assaultive in nature, and hence may not form the basis of a felony-murder instruction, and which are inherently collateral to the resulting homicide and do not merge." (Ibid.) Instead, the court determined that "shooting at an occupied vehicle under section 246 is assaultive in nature and hence cannot serve as the underlying felony for purposes of the felony-murder rule." (Ibid., fn. omitted.)
Shortly after Chun was decided, the court in Farley, supra, 46 Cal.4th 1053 concluded the "merger doctrine" does not apply to first degree felony murder when the underlying felony is a burglary premised on an entry with the intent to commit a felonious assault. In so holding, the court reasoned that the power to define crimes lies exclusively in the Legislature, and by way of section 189, the Legislature enumerated several crimes, including burglary, as felonies that can support a first degree felony-murder conviction. And because a burglary can be committed by entering a structure with the intent to commit any felony, including a felonious assault, such entry can serve as the predicate offense for burglary and the resulting application of the first degree felony-murder rule.
Farley thus concluded that the "merger doctrine," as initially set forth in People v. Ireland, supra, 70 Cal.2d 522 and extended to first degree felony murder in People v. Wilson (1969) 1 Cal.3d 431, no longer applies to first degree felony murder. (Farley, supra, 46 Cal.4th at pp. 1119-1120.) Farley further held, however, that because of ex post facto concerns, its decision did not apply retroactively to crimes occurring before June 2, 2009, the date of the Farley decision. Because defendant's crimes occurred in March 2008, Farley does not apply in this case.
2. Analysis
Defendant submits that attempted robbery, one of the two underlying offenses supporting his first degree felony-murder conviction, with the other being burglary, has as one of its elements the application of "force or fear" by the perpetrator. Thus, defendant argues that robbery is assaultive in nature and cannot serve as the underlying felony for first degree felony murder. We disagree with defendant's analysis.
First, Chun dealt with second degree felony murder as opposed to first degree felony murder. As stated by the Chun court: "The merger doctrine also has a first degree felony-murder counterpart. (See People v. Wilson[, supra,] 1 Cal.3d 431 . . . .) Because first degree felony murder is specifically proscribed by statute (§ 189), what we say about the second degree felony-murder rule does not necessarily apply to the first degree felony-murder rule." (Chun, supra, 45 Cal.4th at p. 1189, fn. 6.)
Second, though Farley does not apply to the present case because of ex post facto concerns, its logic is persuasive. As explained in Farley: "'"'[T]he power to define crimes and fix penalties is vested exclusively in the legislative branch.' (Keeler v. Superior Court[(1970)] 2 Cal.3d 619, 631. . . .)"' [Citation.] The courts may not expand the Legislature's definition of a crime (Keeler v. Superior Court, supra, 2 Cal.3d at p. 632), nor may they narrow a clear and specific definition." (Farley, supra, 46 Cal.4th at p. 1119.) Here, the Legislature has defined burglary and robbery as two of the underlying crimes which may support a conviction of first degree felony murder. There is nothing in the statute which exempts from its application those crimes which are assaultive in nature. Moreover, to extend Chun's discussion to first degree felony murder would, in essence, delete from the Penal Code first degree felony murder as provided by section 189. (See Farley, supra, at pp. 1118-1119, disapproving People v. Wilson, supra, 1 Cal.3d 431 to the extent it narrowed the Legislature's "clear and specific definition" of first degree murder.) All of the predicate crimes enumerated in section 189, save and except burglary, deal in one fashion or another with the application of force. As such, defendant's argument is untenable.
Defendant submits that in concluding that all assaultive felonies merge with the homicide for purposes of second degree felony murder, Chun eliminated the "independent and collateral purpose" exception to the Ireland merger doctrine, even for purposes of first degree murder. This overstates the holding of Chun. Chun expressly declined to decide "exactly what felonies are assaultive in nature, and hence may not form the basis of a felony-murder instruction, and which are inherently collateral to the resulting homicide and do not merge," for purposes of second degree felony murder. (Chun, supra, 45 Cal.4th at p. 1200, italics added.) Chun also cautioned that, "[b]ecause first degree felony murder is specifically proscribed by statute (§ 189), what we say about the second degree felony-murder rule does not necessarily apply to the first degree felony-murder rule." (Id. at p. 1189, fn. 6.)
Moreover, Farley made it abundantly clear that, under the law as it existed at the time of the present crimes in March 2008, the independent and collateral purpose exception to the merger doctrine was of continuing vitality. (Farley, supra, 46 Cal.4th at pp. 1113-1117.) The defendant in Farley had been employed at Electromagnetic Systems Laboratory (ESL). He was terminated from his employment due to his harassment of a coemployee, Laura Black, and Black obtained a temporary restraining order against him. Thereafter, the defendant entered ESL's work premises, killing six people with a firearm and wounding four others, including Black. (Id. at pp. 1060-1069.) At trial, the jury was instructed that it could find the defendant guilty of first degree murder if it found the killings were committed in the course of a burglary, and it could find the defendant committed burglary if it found he entered building with the intent to assault Black with a firearm. (Id. at p. 1111.)
The defendant in Farley claimed that the merger rule precluded application of the first degree felony-murder rule as a matter of law, and for this reason the instructions for murder were erroneous. Relying in part on People v. Wilson, supra, 1 Cal.3d 431, where the court concluded that "'an instruction on first degree felony murder is improper when the underlying felony is burglary based upon an intention to assault the victim of the homicide with a deadly weapon'" (Farley, supra, 46 Cal.4th at p. 1114, citing People v. Wilson, supra, at p. 442), the defendant in Farley sought to extend the merger rule to include cases in which "the burglary charge is based upon an intention to assault someone other than the victim of the homicide" (Farley, supra, at p. 1114).
The Farley court rejected this claim, relying primarily on People v. Gutierrez (2002) 28 Cal.4th 1083. In Gutierrez, the defendant burglarized the home of his estranged wife, intending to assault her, but killed her boyfriend. (Farley, supra, 46 Cal.4th at p. 1115.) The jury was instructed on first degree felony murder based upon a burglary committed by the defendant with the intent to commit five target felonies, including assault with a deadly weapon upon his wife. The defendant's first degree murder conviction was upheld, with the Gutierrez court observing: "'Notably, [the killing of the boyfriend] was not alleged as a target offense of the burglary . . . . Had the independent target offenses not been alleged in connection with the burglary charge, the merger doctrine might have applied. [Citation.]'" (Farley, supra, at p. 1115, quoting People v. Gutierrez, supra, at p. 1140, fn. 7.)
Similarly, in Farley, the defendant's assaults upon victims other than Black were not alleged as target offenses of the burglary. Rather, only the target offenses of intent to assault Black and to vandalize were alleged in connection with the burglary charge. (Farley, supra, 46 Cal.4th at p. 1115.) For this reason, the Farley court concluded that the alleged target offenses—the assault upon Black and vandalism—did not merge with the killings of the six individuals inside ESL's premises, and there was no error in the felony-murder instructions. (Id. at pp.1115-1116.)
Here, as in Farley and Gutierrez, the jury was instructed it could find defendant guilty of first degree felony murder if it found he entered Buckingham's apartment with the intent to rob or steal from Buckingham. These target offense crimes did not merge with the resulting homicide of Atencio, but were independent and collateral to the homicide. Thus here, as in Farley and Gutierrez, the felony-murder instructions were proper.
Lastly, even were we to accept defendant's argument that: (1) robbery is a crime which is assaultive in nature, (2) it merges for purposes of first degree felony murder, and (3) is a legally incorrect theory which may not support his conviction, we would nonetheless affirm the conviction. As stated in People v. Pulido (1997) 15 Cal.4th 713 at page 727, "[a]n instructional error presenting the jury with a legally invalid theory of guilt does not require reversal, . . . if other parts of the verdict demonstrate that the jury necessarily found the defendant guilty on a proper theory."
"That an offense has assaultive aspects does not mean it is an assault." (People v. Anderson (2011) 51 Cal.4th 989, 996, fn. 2.)
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Here, defendant's first degree felony-murder conviction was necessarily based on burglary with intent to commit a theft. The jury was instructed it could find first degree felony murder based on the attempted robbery or the burglary, and it could find the burglary based on the intent to rob or the intent to commit a larceny. "'Theft is a lesser included offense of robbery, which includes the additional element of force or fear.' [Citation.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) In finding defendant guilty of the first degree felony murder, the jury necessarily found that he entered Buckingham's apartment with the intent to commit a theft—even if it also found he entered the apartment with the intent to commit a robbery. Based on its elements, burglary with the intent to commit a theft is a nonassaultive crime. B. Separate Punishment Was Properly Imposed on the Burglary Conviction
Defendant was sentenced to seven years for his burglary conviction and armed enhancement in count 3, and a consecutive term of 25 years to life plus one year for the felony-murder conviction and armed enhancement in count 1. The court imposed but stayed a three-year term for the attempted robbery and armed enhancement in count 2.
Given that he was separately punished for his felony-murder conviction, defendant claims his sentence for his burglary conviction must be stayed under section 654 because both crimes involved a single, indivisible course of conduct—namely, his act of aiding and abetting the burglary and attempted robbery of Buckingham, during which Atencio was shot and killed. For their part, the People argue that separate punishment was properly imposed and not stayed for the burglary conviction and armed enhancement in count 3, under the multiple victim exception to section 654. Because the felony murder involved a separate victim (Atencio) than the burglary and attempted robbery (Buckingham), we agree with the People that separate punishment was properly imposed on count 3.
Section 654 precludes multiple punishment, including concurrent or consecutive sentences, for separate crimes based on a single act or omission, or an indivisible course of conduct, but section 654 does not bar multiple punishment for crimes involving separate victims. (People v. Deloza (1998) 18 Cal.4th 585, 593-594.) "Under . . . section 654 as construed by the California Supreme Court, even if a defendant entertained a single principal objective during an indivisible course of conduct, he may be punished separately if during the course of that conduct he committed crimes of violence against different victims." (People v. Young (1992) 11 Cal.App.4th 1299, 1311-1312; accord, People v. Garcia (1995) 32 Cal.App.4th 1756, 1784 [Fourth Dist., Div. Two].)
Thus here, the separate, unstayed punishment was properly imposed on the felony-murder conviction. Atencio was the victim of that crime, while Buckingham was the victim of the attempted robbery and burglary. C. The Two Abstracts of Judgment and the November 9, 2010, Sentencing Minute Order Must be Corrected
Lastly, defendant claims the November 9, 2010, sentencing minute order and the abstracts of judgment for his determinate and indeterminate sentences must be corrected in several respects. We agree in part.
At sentencing, the court orally ordered defendant to pay "the court security fee and criminal conviction fee as recommended" by the probation department. According to the probation report, the department recommended that the court impose, on each count, a $30 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373, subd. (a)). The November 9, 2010, sentencing minute order and both abstracts of judgment show, however, that the court ordered defendant to pay $70 for the security fee and conviction assessment combined, on each count. Defendant was convicted on October 6, 2010, Penal Code section 1465.8 was amended effective October 19, 2010, to increase the court security fee from $30 to $40 per count. (Stats. 2010, ch. 720, § 33, p. 4918.) Defendant was sentenced on November 9, 2010, after the $40 security fee went into effect.
The timing of the October 19 statutory amendment may explain the discrepancy between the sentencing minute order and the abstracts of judgment, on the one hand, and the court's oral pronouncement of judgment on November 9, which is controlling. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.) Additionally, and as the People concede, the version of section 1465.8 in effect at the time of defendant's conviction on October 6 applied, not the version in effect at the time of sentencing on November 9. (People v. Alford (2007) 42 Cal.4th 749, 753-756; People v. Lopez (2010) 188 Cal.App.4th 474, 479 [Fourth Dist., Div. Two].)
Accordingly, the sentencing minute order and the abstracts of judgment must be corrected (People v.Crabtree (2009) 169 Cal.App.4th 1293, 1328) to show that the trial court imposed $60, not $70, on each count for the security fee and conviction assessment combined. But rather than correct the November 9, 2010, sentencing minute order itself, on remand the trial court is directed to issue a new sentencing minute order stating that on November 9 the court imposed $60 on each count for the security fee and conviction assessment combined, and that the court's November 9 sentencing minute order incorrectly states that $70 per count was imposed.
Lastly, defendant points out that both abstracts of judgment show he was ordered to pay $7,500 in victim restitution (§ 1202.4, subd. (f)) and a $200 restitution fine (§ 1202.4, subd. (b)). Defendant claims the references to the restitution order and fine must be removed from one of the abstracts because "it is possible, if not likely, that the Department of Corrections and Rehabilitation will interpret the abstracts of judgment as requiring [defendant] to pay a total of $15,000 in victim restitution and $400 in restitution fines."
The People disagree, and point out that defendant cites no law requiring that the restitution order and fine appear on only one abstract. The People also point out that the two abstracts of judgment refer to each other, and it is unlikely they will be misinterpreted as defendant claims. Additionally, the November 9, 2010, sentencing minute order shows that only one $7,500 restitution order was made and only one $200 restitution fine was imposed.
Nevertheless, and as discussed, both abstracts must be amended to reflect that $60 rather than $70 was imposed on each count for the combined security fee and conviction assessment. Thus, on remand the trial court is further directed to amend both abstracts by including, under paragraph 11, the following statement: "Only one $7,500 restitution order was made and only one $200 restitution fine was imposed on defendant's determinate and indeterminate sentences combined."
IV. DISPOSITION
The matter is remanded to the trial court with directions to: (1) issue a new minute order stating that the court's November 9, 2010, sentencing minute order incorrectly states that the court imposed $70 on each of counts 1, 2, and 3 for the court security fee and conviction assessment combined, and that the court actually imposed $60 on each count for the combined fee and assessment; (2) prepare amended determinate and indeterminate abstracts of judgment showing that (a) $60 rather than $70 was imposed on each count for the court security fee and conviction assessment combined, and (b) stating under paragraph 11 that "[o]nly one $7,500 restitution order was made and only one $200 restitution fine was imposed on defendant's determinate and indeterminate sentences combined; and (3) forward copies of the amended abstracts to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RICHLI
Acting P.J.
MILLER
J.