Filed 5/29/15 P. v. Butts CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065066
Plaintiff and Respondent,
v. (Super. Ct. No. SCD245797)
ROLANDO LOUIS BUTTS et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of San Diego County, Albert T.
Harutunian III, Judge. Affirmed as modified.
Patrick M. Ford, under appointment by the Court of Appeal, for Defendant and
Appellant Rolando Louis Butts.
Esther K. Hong, under appointment by the Court of Appeal, for Defendant and
Appellant Willie Deshawn Brown, Jr.
Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and
Appellant Christopher Kennison. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Warren Williams
and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Rolando Louis Butts, Willie Deshawn Brown, Jr., and
Christopher Kennison of conspiracy to commit a crime (Pen. Code,1 § 182, subd. (a)(1);
count 1), robbery (§ 211; count 2), and simple battery (§ 242) [as a lesser included
offense of battery causing serious bodily injury (§ 243, subd. (d))]; count 3). The trial
court sentenced Butts to three years in state prison, consisting of the middle term of three
years for count 2 and a concurrent middle term of three years for count 1, which the court
stayed under section 654. The court did not sentence Butts for count 3; however, the
court sentenced him to a concurrent term of 16 months in a separate probation revocation
case. The court sentenced Brown to three years in state prison, consisting of the middle
term of three years for count 2, a concurrent middle term of three years for count 1,
which the court stayed under section 654, and a concurrent term of 180 days for count 3.
The court sentenced Kennison to two years in state prison, consisting of the lower term of
two years for count 2, a concurrent lower term of two years for count 1, which the court
stayed under section 654, and a concurrent term of 180 days for count 3.
1 Further statutory references are also to the Penal Code unless otherwise stated. 2 Butts appeals, contending the court erred in admitting one of his codefendant's
statements, denying his motion to sever his trial from his codefendants' trial, and allowing
the prosecutor to use his and his codefendants' booking photographs during opening
argument. He further contends the accumulation of these errors deprived him of due
process of law and a fair trial.
Brown and Kennison also appeal, contending their abstracts of judgment must be
corrected to show the trial court stayed their sentences for count 1. They additionally
contend the court should have stayed their sentences for count 3 and their restitution fines
must be reduced to reflect the stayed sentences. The People concede Brown's and
Kennison's abstracts of judgment must be corrected as to count 1 and their restitution
fines must be reduced, but contend we must order the imposition of an additional
restitution fine for their convictions for count 3.
We are unpersuaded by Butts's contentions; however, we requested and received
supplemental briefing from him and the People on whether the trial court erred by failing
to sentence him for count 3. We also requested and received supplemental briefing from
him and the People on whether any sentence for count 3 should be stayed and whether the
court correctly calculated the amount of the restitution and parole revocation fines it
imposed on Butts.
We conclude the trial court erred in failing to sentence Butts for count 3 and we
remand the matter for sentencing as to that count. We further conclude Brown's and
Kennison's sentences for count 3, as well as the sentence Butts will receive for count 3,
must be stayed as there is insufficient evidence the battery was independent from, rather
3 than incidental to, the robbery. We also conclude the restitution and parole revocation
fines imposed in this case must be reduced to reflect the stayed sentences in counts 1 and
3. Finally, as to Butts, we conclude the court erroneously imposed a second restitution
fine in the probation revocation case and the parole revocation fine it imposed in that case
must be reduced. We affirm the judgment in all other respects.
BACKGROUND
The victim sold medical marijuana. Brown contacted the victim through e-mail,
phone calls, and text messages seeking to buy medical marijuana. After Brown e-mailed
the victim his identification information and prescription, the two men arranged to meet
at a large strip mall where Brown would purchase two pounds of marijuana from the
victim for $5,250.
The next day, the victim arrived at the strip mall, parked his truck, and sent Brown
a message informing Brown where he parked. Brown approached the victim's truck on
foot, carrying a backpack. Brown sat in the front passenger seat of the victim's truck and
showed the victim his driver's license and prescription for marijuana, which the victim set
about photographing. At Brown's request, the victim gave Brown some sample
marijuana packages to inspect. Brown took out a small scale from his backpack and
attempted to weigh the amount; however, his scale was too small for the task.
Suddenly, Kennison opened the driver's side door of the victim's truck and said,
"Yeah, this is happening, we're taking your shit." The victim looked over to Brown, who
nodded and smiled while pointing a gun at him.
4 The victim pushed Kennison away from the driver's side door, got out of the truck,
and walked around the back to the passenger side door. He saw Butts and an unidentified
man rapidly advancing toward him in an aggressive manner. Brown got out of the truck,
taking his backpack, the victim's cell phone and the sample marijuana packages with him.
Brown joined Kennison, Butts, and the unidentified man in surrounding the victim.
Kennison approached the victim as Brown and the other men went into the back of the
victim's truck and took the rest of the victim's marijuana packages. The victim struggled,
but the men overcame his struggles, tackled him to the ground, and struck him in the
face. Though the victim tried to hold on to Brown, the other men freed Brown and they
all fled, carrying the victim's marijuana with them.
The victim chased them and saw them get into an awaiting green sedan and
quickly drive away. He ran back to his truck, wrote down the license plate number of the
sedan, and borrowed a stranger's phone to call 911.
When a police officer arrived, the victim described the four men to the officer.
Approximately an hour later, other law enforcement officers spotted and stopped the
green sedan. Butts, another male passenger, and the female driver were in the car.2
Butts had the victim's cell phone and the officers found some of the victim's marijuana in
the trunk of the sedan.
The victim identified Brown, Butts, and Kennison at trial. The victim also
identified Butts during an in-field lineup.
2 Although the driver and the male passenger were tried along with Brown, Butts, and Kennison, the jury acquitted the driver and the male passenger of all charges. 5 During the incident, the victim suffered several facial injuries, including a black
eye and a chipped tooth. He also suffered injuries to his left shoulder and knees.
DISCUSSION
I
Failure to Exclude Getaway Driver's Statement
A
As part of the criminal investigation, a police detective interviewed the suspected
getaway driver. At the outset of the interview, before the detective provided the driver
with the advisements required by Miranda v. Arizona (1966) 384 U.S. 436, 444-445
(Miranda advisements), the pair had the following exchange:
"[DETECTIVE]: . . . Now you need to make a choice right now. You got a baby.
"[DRIVER]: Mm-hmm. [¶] . . . [¶] He's 18 months. [¶] . . . [¶]
"[DETECTIVE]: . . . I want to give you an opportunity. You lied to me [during a previous conversation] and I caught you in a lie. I caught you in another lie? Okay? Now you need to make up your mind . . . and you tell me what you wanna do. Okay? Because I will walk out this door. I'll give you back to the patrol guys. They'll take you to Las Colinas, we're done. We'll let all the chips fall where they may in court. Okay? But I wanna give you an opportunity to come clean with this thing. You need to, you need to make up your mind who you're gonna be loyal to, your baby or your man. Because your man got you in some shit. He got you in some shit and that's not fair to you. He wasn't thinkin' of your baby, was he? So who's gonna think of your baby?
"[DRIVER]: Me.
6 "[DETECTIVE]: How about the state? How about the state takes care of your baby? Who's gonna think of your baby?
"[DETECTIVE]: Okay. Alright. Okay? Alright. You and me. You and I, we're gonna think of your baby, okay?"
The detective then provided the driver with the Miranda advisements and they
discussed the robbery. The driver told the detective only Brown and Kennison planned
the robbery. The detective told the driver not to lie to him about anything and asked her
why telling the truth was the best thing to do. She replied, "So I can go home?" He
responded: "No. No. you're not going home, honey. You're going to jail. Okay? You
can't help people rob somebody and go home. You've gotta be responsible. But you
don't have a record so I don't know what the DA's . . . office is gonna do with you. But
what you need to be thinking about is your child here. Okay? If they think you're lying
to me right now . . . if they think you're lying to me they're gonna think you're not being
remorseful. Okay? I know you're just scared, but you know how you can get through
this conversation? By telling the truth. You know why? Because the truth doesn't
change. Okay? Do you understand that? That way you don't have to worry about what
you told me. That way when you . . . take the stand or if you tell your lawyer or this or
that and the other thing, 'cause you're gonna get one, you . . . the truth will come out
really, really easy."
The driver then told the detective her account of the robbery, which implicated all
of the defendants.
7 2
Butts filed a motion to suppress the driver's extrajudicial statements to the
detective, arguing the statements could not be used against any defendant because the
statements were involuntary. He also joined the driver's own motion to suppress the
statements. The prosecutor indicated she did not intend to use the statements, except for
impeachment purposes.
The driver argued the statements should also be excluded as impeachment
evidence because the detective unduly influenced her by capitalizing on her concerns
about being separated from her baby. The prosecutor argued the statements were
voluntary as the driver was having "a back and forth sort of a congenial conversation"
with the detective.
The trial court ruled the statements were voluntary and could be used for
impeachment purposes. The court reasoned the detective's reference to the driver's child
during the interview was not conveyed as a threat or improperly used to induce the
driver's statements. The detective never told the driver she would be reunited with her
child if she told him what happened. He also did not tell her she would be separated from
her child for an extended period of time if she did not tell him what happened. The driver
knew she was going to jail and the detective's suggestion that honesty would benefit her
was true because truthfulness is considered during sentencing.
Neither the driver nor Butts testified at trial. Consequently, the prosecutor never
used the driver's statements for any purpose.
8 B
Butts contends the court erred in determining the driver's extrajudicial statements
were voluntary and in failing to exclude the statements for impeachment purposes. He
further contends the error prejudiced him, implying it led him to decide not to testify on
his own behalf. We need not address whether the court correctly decided the driver's
statements were voluntary and admissible for impeachment purposes because Butts has
not established the court's decision deprived him of a fair trial.
"[D]efendants generally lack standing to complain that a police interrogation
violated a third party witness's Fifth Amendment privilege against self-incrimination or
Sixth Amendment right to counsel." (People v. Williams (2010) 49 Cal.4th 405, 452.)
"A defendant may assert a violation of his or her own right to due process of the law and
a fair trial based upon third party witness coercion, however, if the defendant can
establish that trial evidence was coerced or rendered unreliable by prior coercion and that
the admission of this evidence would deprive the defendant of a fair trial." (Id. at
pp. 452-453.) "The burden rests upon the defendant to demonstrate how the earlier
coercion 'directly impaired the free and voluntary nature of the anticipated testimony in
the trial itself' [citation] and impaired the reliability of the trial testimony." (Id. at
p. 453.)
In this case, the driver never testified and the prosecutor never used the driver's
statements for any purpose. Therefore, the driver's statements could not have impaired
the reliability of her trial testimony.
9 Although Butts implies the court's ruling prompted him to elect not to testify, the
record does not support this implication. Rather, the record shows Butts announced his
intention not to testify in the middle of the prosecutor's case-in-chief, well before it was
known whether the driver would testify. Moreover, as the People point out, there were
other factors bearing on Butts's election not to testify, not the least of which was the
prospect of his impeachment with his prior felony theft conviction. Accordingly, we
conclude Butts has not met his burden of showing the court's decision resulted in
"fundamental unfairness at trial." (People v. Williams, supra, 49 Cal.4th at p. 455.)
II
Denial of Severance Motion
Butts moved to sever his trial from his codefendants' trial because incriminating
statements by his codefendants, if admitted, would deprive him of his right to confront
adverse witnesses. The prosecutor opposed the motion, arguing a joint trial was
warranted based on the two theories of culpability, conspiracy and aiding and abetting, as
well as the facts supporting these theories. The prosecutor further argued a joint trial
would not prejudice Butts because the prosecution's case was equally strong as to all of
the defendants. The trial court agreed with the prosecutor's position and denied the
motion.
B
Butts contends the court prejudicially erred in denying his severance motion
because the evidence against him was not as strong as the evidence against his
10 codefendants, there were conflicting defenses, and the driver's extrajudicial statements
posed a confrontation issue. " 'We review a trial court's denial of a severance motion for
abuse of discretion based upon the facts as they appeared when the court ruled on the
motion.' [Citations.] 'If we conclude the trial court abused its discretion, reversal is
required only if it is reasonably probable the defendant would have obtained a more
favorable result at a separate trial.' [Citations.] 'If the court's joinder ruling was proper
when it was made, however, we may reverse a judgment only on a showing that joinder
" 'resulted in "gross unfairness" amounting to a denial of due process.' " ' " (People v.
Souza (2012) 54 Cal.4th 90, 109 (Souza).) Butts has not shown the court abused its
direction or that joinder deprived him of due process of law.
"Our Legislature has expressed a strong preference for joint trials. [Citations.]
'Section 1098 provides in pertinent part: "When two or more defendants are jointly
charged with any public offense, whether felony or misdemeanor, they must be tried
jointly, unless the court order[s] separate trials." The court may, in its discretion, order
separate trials if, among other reasons, there is an incriminating confession by one
defendant that implicates a codefendant, or if the defendants will present conflicting
defenses.' [Citations.] 'Additionally, severance may be called for when "there is a
serious risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or
innocence." ' " (Souza, supra, 54 Cal.4th at p. 109.)
Here, the defendants were charged with common crimes involving common events
and victims, presenting a classic case for a joint trial. (Souza, supra, 54 Cal.4th at
11 p. 110.) Although Butts contends his defense conflicted with or was antagonistic to his
codefendants' defenses, this circumstance is not sufficient by itself to require separate
trials. (Ibid.) " ' "Rather, to obtain severance on the ground of conflicting defenses, it
must be demonstrated that the conflict is so prejudicial that [the] defenses are
irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates
that both are guilty." ' " (Id. at p. 111.) Butts has not asserted, much less attempted to
demonstrate, the requisite irreconcilability. Indeed, the example of conflicting defenses
he identifiedthat two of his codefendants claimed not to be present during the robbery
and that he claimed to be present solely to purchase marijuana, not steal itare not only
reconcilable, but are arguably compatible.3
The potential use of the driver's extrajudicial statements for impeachment is also
not a sufficient circumstance to require separate trials. (See People v. Hoyos (2007) 41
Cal.4th 872, 895-896 [failure to sever a trial where a codefendant's extrajudicial
statements could potentially be used for impeachment did not result "in gross unfairness
amounting to a violation of due process"], disapproved on other points in People v. Black
(2014) 58 Cal.4th 912, 919-920, and People v. McKinnon (2011) 52 Cal.4th 610, 638,
641-642.) Further, and contrary to Butts's suggestions, nothing in the record indicates the
3 Given our conclusion, we need not address the People's contention Butts forfeited the existence of conflicting defenses as a ground for challenging the trial court's denial of his severance motion. (But see, People v. Tafoya (2007) 42 Cal.4th 147, 163; People v. Jenkins (2000) 22 Cal.4th 900, 949 [appellant forfeited specific argument for challenging trial court's denial of severance motion because he did not raise the argument below].) 12 court could have or would have permitted the use of the driver's statements to impeach
Butts if Butts testified and the driver did not.
Finally, the evidence of the codefendants' varying roles and relationships to one
another and to the robbery did not require severance. It is "quite likely that different
defendants participating together in a crime will have different levels of involvement and
different personal backgrounds. These circumstances alone do not compel severance or
render a joint trial grossly unfair." (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 383.) "To justify severance the characteristics or culpability of one or more
defendants must be such that the jury will find the remaining defendants guilty simply
because of their association with a reprehensible person, rather than assessing each
defendant's individual guilt of the crimes at issue." (Ibid.) Here, however, the record
does not show the evidence against Brown, which included rap videos the prosecution
opted not to offer at trial, portrayed him so reprehensibly the jury would have found his
codefendants guilty by association. In addition, the evidence against Brown, Kennison,
and Butts, while differing, was of comparable strength and amply supported their
convictions. Moreover, the jury demonstrated its ability to consider and weigh the
relative strength of the evidence against each individual by acquitting two of Butts's
codefendants. (See fn. 2, ante.) Accordingly, Butts has not established the trial court
prejudicially erred in denying his severance motion.
13 III
Admission of Kennison's Statements to Victim
Before trial, the prosecutor moved to admit Kennison's statements to the victim
indicating a robbery was occurring. The prosecutor argued the statements were
admissible under Evidence Code section 1223 as statements by a coconspirator during the
course of a conspiracy. The defendants objected to admission of the statements, arguing
the hearsay exception did not apply until the prosecutor first proved the existence of a
conspiracy at the time the statements were made. The prosecutor argued the statements
were admissible subject to a motion to strike absent sufficient proof of a conspiracy. The
prosecutor also argued there was prima facie evidence of a conspiracy because the crime
and, consequently, the conspiracy were underway when Kennison made the statements
and the defendants all fled in the same vehicle. The trial court granted the prosecutor's
motion, finding the prosecutor's offer of proof was sufficient to warrant admission of the
statements subject to any change in the evidence.
Hearsay is generally inadmissible. (Evid. Code, § 1200.) However, "[e]vidence
of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶]
(a) The statement was made by the declarant while participating in a conspiracy to
commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶]
(b) The statement was made prior to or during the time that the party was participating in
that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence
14 sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the
court's discretion as to the order of proof, subject to the admission of such evidence."
(Evid. Code, § 1223.)
A prima facie showing of a conspiracy is required before a trial court may admit a
statement under Evidence Code section 1223. (People v. Gann (2011) 193 Cal.App.4th
994, 1005 (Gann).) A prima facie showing in this context "simply means that a
reasonable jury could find it more likely than not that the conspiracy existed at the time
the statement was made." (People v. Herrera (2000) 83 Cal.App.4th 46, 63.)
"A conspiracy is an agreement between two or more persons, with specific intent,
to achieve an unlawful objective, coupled with an overt act by one of the conspirators to
further the conspiracy." (Gann, supra, 193 Cal.App.4th at p. 1005.) A "conspiracy may
be shown by circumstantial evidence and the agreement may be inferred from the
conduct of the defendants mutually carrying out a common purpose in violation of a
penal statute." (Id. at pp. 1005-1006.)
" 'Once independent proof of a conspiracy has been shown, three preliminary facts
must be established: "(1) that the declarant was participating in a conspiracy at the time
of the declaration; (2) that the declaration was in furtherance of the objective of that
conspiracy; and (3) that at the time of the declaration the party against whom the
evidence is offered was participating or would later participate in the conspiracy." ' "
(People v. Homick (2012) 55 Cal.4th 816, 871.)
In California, the existence of the conspiracy must be established by evidence
independent of the proffered statement. (People v. Herrera, supra, 83 Cal.App.4th at
15 p. 65.) However, after the existence of the conspiracy is established, the content of the
statement must be considered in determining whether the statement was in furtherance of
the conspiracy. (Ibid.)
In this case, the prosecutor proffered sufficient evidence, which if believed by the
jury, supported a finding Kennison and his codefendants were more likely than not
engaged in a conspiracy at the time Kennison made the statements to the victim.
Specifically, there was evidence Brown arranged to meet the victim, went to the meeting
location, got in the victim's truck, and was inspecting the victim's marijuana when
Kennison approached the victim. When the victim got out of his truck to protect himself
and his marijuana, Kennison, Brown, Butts, and another man surrounded the victim. As
some of the men beat the victim to the ground, Brown took the victim's phone and the
marijuana. Then all four men fled in an awaiting car.
This same evidence, coupled with the content of Kennison's statements, also
supports the court's findings Kennison made the statements in furtherance of the
conspiracy and while participating in the conspiracy along with Butts. Butts, therefore,
has not established the trial court erred in admitting Kennison's statements under
Evidence Code section 1223.
IV
Use of Booking Photographs During Opening Statement
Before trial, the prosecutor requested the trial court's permission to use the
defendants' booking photographs in a slide show presentation during her opening
16 statement. She explained she would not refer to the photographs as booking photos and
she would only use them to "identify the players" in the case. The defendants objected to
the use of the photographs, arguing the photographs were prejudicial and unnecessary as
all of the defendants would be present in court.
The court overruled the defendants' objections. The court explained, "I don't
believe that they are improper in terms of placing the defendants in a bad light. It doesn't
show them shackled. They're basically headshots. I don't think it shows them with some
sort of improper expression on their faces. They are photos that are of the defendants at
the time that they were contacted by law enforcement relating to this case. And so I think
that the passing reference use of them by the People in referring to the defendants who
are spread around half the courtroom is permissible and is not unduly prejudicial to any
defendant."
Before the prosecutor's opening statement, the court instructed the jury "[a]n
opening statement is not evidence" and the jury "must not consider as evidence any
statement of any attorney made during the trial." It also instructed the jury, "You must
not be biased against the defendants because they may have been arrested for this
offense, charged with a crime, ever been in custody, or been brought to trial. None of
these circumstances would be evidence of guilt and you must not infer or assume from
any or all of them that the defendant[s] may be more likely to be guilty than not guilty."
Before closing arguments, the court further instructed the jury, "Nothing that the
attorneys say is evidence. In their opening statements and closing arguments the
17 attorneys discussed the case, but their remarks are not evidence, their questions are not
evidence . . . ."
Butts contends the trial court erred in allowing the prosecutor to use his and his
codefendants' booking photographs in her opening statement. He further contends the
use of the photographs deprived him of the presumption of innocence and the right to a
fair trial.
Assuming, without deciding, the trial court erred in allowing the demonstrative
use of the booking photographs, the error was harmless under both the federal and state
standards. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46
Cal.2d 818, 836-837.) Nothing in the record indicates the photographs were
inflammatory or that defendants' appearance in the photographs differed appreciably from
their appearance at trial. The prosecutor did not refer to the photographs as booking
photographs nor did she seek to admit them as evidence. The court advised the jury the
prosecutor's statements were not evidence. The court also advised the jury it must not be
biased against the defendants because they were charged with a crime or were in custody,
and it could not consider these circumstances as evidence of guilt. "We presume the jury
followed the instructions it was given." (People v. Chism (2014) 58 Cal.4th 1266, 1299.)
Butts has not rebutted this presumption. To the contrary, the jury's acquittal of two of the
defendants whose photographs were shown demonstrates the jury was not unduly
influenced by the photographs. Therefore, Butts has failed to establish he was prejudiced
by the claimed error.
18 V
Cumulative Error
Butts contends the accumulation of the above errors deprived him of due process
of law and, consequently, requires us to reverse his conviction. We reject this argument
as "[w]e have found no error that, either alone or in conjunction with others, prejudiced
[him]." (People v. Williams (2013) 56 Cal.4th 165, 201.)
VI
Abstract of Judgment Error
Although the trial court stayed Brown's and Kennison's sentences for their count 1
conspiracy convictions under section 654, their abstracts of judgment indicate the court
imposed concurrent sentences for this count.4 Brown and Kennison contend, the People
concede, and we agree the abstracts of judgment must be corrected to reflect the court's
oral pronouncement of sentence.
"In a criminal case, it is the oral pronouncement of sentence that constitutes the
judgment. [Citation.] To the extent a minute order diverges from the sentencing
proceedings it purports to memorialize, it is presumed to be the product of clerical error.
[Citation.] Likewise, the abstract of judgment ' "cannot add to or modify the judgment
which it purports to digest or summarize." ' [Citations.] As with other clerical errors,
discrepancies between an abstract and the actual judgment as orally pronounced are
4 Butts's abstract of judgment correctly indicates the court stayed the sentence for his count 1 conspiracy conviction. 19 subject to correction at any time, and should be corrected by a reviewing court when
detected on appeal." (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)
VII
Stay of Sentences for Battery Convictions
Brown and Kennison contend the trial court should have stayed their sentences for
their count 3 battery convictions because the battery was part of an indivisible course of
conduct. We agree.
"[Section 654] prohibits the imposition of punishment for more than one violation
arising out of an 'act or omission' which is made punishable in different ways by different
statutory provisions." (People v. Beamon (1973) 8 Cal.3d 625, 636.) Section 654 applies
" ' "not only where there was but one 'act' in the ordinary sense . . . but also where a
course of conduct violated more than one statute . . . within the meaning of section
654." ' " (People v. Beamon, supra, at p. 637; People v. Rodriguez (2009) 47 Cal.4th
501, 507.) "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." (Neal v. State of
California (1960) 55 Cal.2d 11, 19; disapproved on another ground in People v. Correa
(2012) 54 Cal.4th 331, 336; People v. Rodriguez, supra, at p. 507; People v. Wynn (2010)
184 Cal.App.4th 1210, 1214-1215.) "If, on the other hand, defendant harbored 'multiple
criminal objectives,' which were independent of and not merely incidental to each other,
20 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.' " (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Wynn,
supra, at p. 1215.) " ' " 'A trial court's implied finding that a defendant harbored a
separate intent and objective for each offense will be upheld on appeal if it is supported
by substantial evidence.' " ' " (People v. McKinzie (2012) 54 Cal.4th 1302, 1368.)
Here, in imposing concurrent terms for Brown's and Kennison's battery
convictions, the trial court implicitly found they had a separate objective to commit the
battery. However, the evidence is insufficient to support this finding. The evidence
shows the men beat the victim while trying to take the victim's marijuana. The beating
ended when they successfully obtained the marijuana and fled. These facts indicate the
battery was incidental to the robbery and was not a gratuitous act of violence, an
afterthought, or motivated by animus unrelated to the robbery. (See People v. Nunez
(2012) 210 Cal.App.4th 625, 630 [assault was not divisible from carjacking where
defendant committed the assault to take the car from a resisting victim].) Accordingly,
section 654 prohibits multiple punishments for both the robbery and the battery and the
trial court should have stayed the sentences for Brown's and Kennison's battery
convictions.
As noted earlier, the trial court failed to sentence Butts for his battery conviction.
The court was not authorized to waive sentencing for this conviction. We, therefore,
remand the matter to permit the court to impose a sentence for it. (People v. Cunningham
21 (2001) 25 Cal.4th 926, 1044-1045 [failing to imposed a sentence is error subject to
correction when it comes to the trial court's or appellate court's attention].) Once the
court imposes its sentence, the sentence must be stayed under section 654 for the same
reasons discussed in part VII.A, ante.
VIII
Restitution Fines
As part of Kennison's sentence, the court imposed a restitution fine of $1,120 and
a corresponding parole revocation fine of the same amount. As part of Butts's and
Brown's sentences, the trial court imposed a restitution fine of $2,520 and a
corresponding parole revocation fine in the same amount. As part of Butts's sentence for
his probation revocation case, the court imposed a new restitution fine of $200 as well as
a previously stayed restitution fine of $200. It also imposed a parole revocation fine of
$280.
All three men contend the court erred in calculating the amount of their restitution
and parole revocation fines. Butts additionally contends the court erred in its imposition
of restitution and parole revocation fines in his probation revocation case. We agree.
"In every case where a person is convicted of a crime, the court shall impose a
separate and additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).)
22 For a conviction of a felony crime on or after January 1, 2013, but before January 1,
2014, the fine may not be less than $280 or more than $10,000. (§ 1202.4, subd. (b)(1).)
The court may, as it intended to do in this case, determine the amount of the fine
by calculating the product of the minimum fine "multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted." (§1202.4, subd. (b)(2).) The calculation
may not, however, include convictions for which the court must stay execution of
sentence under section 654. (People v. Sencion (2012) 211 Cal.App.4th 480, 483; People
v. Le (2006) 136 Cal.App.4th 925, 934.) As the court's calculation of the appellants'
restitution fines included convictions for which it stayed or should have stayed execution
of sentence, the fine amount must be reduced accordingly. The fine amount for Brown
and Butts should be $840 ($280 multiplied by three years in prison, multiplied by one
felony count) and the fine amount for Kennison should be $560 ($280 multiplied by two
years in prison, multiplied by one felony count).
As the court was required to impose matching parole revocation fines (§ 1202.45,
subd. (a)), these fines must also be reduced to $840 for Brown and Butts and $560 for
Kennison. Given our conclusions in this part and part VII, ante, we need not address the
People's contention the trial court erred by failing to impose a restitution fine for
appellants' battery convictions.
The court also erred in imposing a new restitution fine in Butts's probation
revocation case. A "court may not impose a second restitution fine after probation has
23 been revoked because the original fine survives the revocation of probation." (People v.
Rios (2013) 222 Cal.App.4th 542, 576.) The amount of the parole revocation fine must
also be reduced to $200 since the parole revocation fine must be in the same amount as
the original restitution fine imposed in the probation revocation case. (Ibid.)
DISPOSITION
As to Brown, the trial court is directed to modify the abstract of judgment to show
the stay of his sentences for counts 1 and 3, the imposition of a felony restitution fine of
$840, and the imposition of a corresponding parole revocation fine of $840. As to
Kennison, the trial court is directed to modify the abstract of judgment to show the stay
of his sentences for counts 1 and 3, the imposition of a felony restitution fine of $560,
and the imposition of a corresponding parole revocation fine of $560. As to Butts, the
matter is remanded for sentencing as to count 3, consistent with this court's decision in
part VII. In addition, the trial court is directed to modify the abstract of judgment to
show the imposition of a felony restitution fine of $840 and a corresponding parole
revocation fine of $840 in this case, and the imposition of a restitution fine of $200 and a
corresponding parole revocation fine of $200 in the probation revocation case.
24 The trial court shall forward a copy of each amended abstract of judgment to the
Department of Corrections and Rehabilitation. The judgments are affirmed in all other
respects.
MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
MCINTYRE, J.