People v. Cleveland

104 Cal. Rptr. 2d 641, 87 Cal. App. 4th 263, 2001 Daily Journal DAR 2051, 2001 Cal. Daily Op. Serv. 1651, 2001 Cal. App. LEXIS 129

• Court: California Court of Appeal
• Decided: February 27, 2001
• Docket: B139266
• Status: Published

Opinions

Opinion

WOODS, J.

In Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], the Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum for the crime must be submitted to a jury and proved beyond a reasonable doubt. In view of Apprendi, Leo Cleveland contends the issue of whether under Penal Code section 654¹ a defendant has a separate “intent and objective” for multiple offenses occurring during a course of criminal conduct, is a factual question for a jury to determine under the “reasonable doubt” standard. Consequently, Cleveland asserts his consecutive sentences for attempted murder and robbery must be vacated because the trial court, rather than the jury, made the relevant section 654 factual determinations and because the trial court applied a standard of proof less stringent than “reasonable doubt.” In addition, Cleveland claims the court erred in failing to “stay” his robbery sentence under section 654.

Cleveland’s contentions lack merit. In our view, section 654 does not run afoul of the rule announced in Apprendi. The question of whether section 654 operates to “stay” a particular sentence does not involve the determination of any fact that could increase the penalty for a crime beyond the prescribed statutory maximum for the underlying crime. In any event, had the section 654 “intent and objective” determination been sent to the jury, we conclude it would have reached the same conclusion. The jury, as did the court, would have refused to stay Cleveland’s robbery sentence. Accordingly, we affirm.

Factual and Procedural History

Cleveland slept in the crawl space behind the apartment building where 66-year-old John Freeman lived.

Freeman, who was feeble and had difficulty walking, on one occasion gave Cleveland some money and asked him to go to the store to buy Freeman a pack of cigarettes. When Cleveland returned with the change, Freeman allowed him to keep it. Cleveland, however, wanted more money, and became angry when Freeman declined to give him any.

On the evening of August 23, 1998, Cleveland knocked on the apartment door of Freeman’s neighbors, Axle and Oscar Cardenas. Cleveland asked Axle Cardenas for a loan or some money. When Cardenas refused him, Cleveland left. A short time later, Cleveland returned with a package of steaks and asked if Cardenas wanted to buy them. Cardenas declined the offer. Cleveland appeared unhappy, but nonetheless left. Cleveland went next door to Freeman’s apartment and asked Freeman if he wanted to buy the steaks. Freeman also declined.

A few minutes later, Axle Cardenas saw Cleveland attempting to remove Freeman’s walker from Freeman’s apartment. Cardenas confronted Cleveland and Cleveland became angry, but left the walker and appeared to leave the premises.

About an hour later, Cleveland entered Freeman’s apartment and began beating him with a two-by-four piece of wood. Freeman did not hear the intruder because he was wearing headphones and listening to a portable “walk-man” radio. Cleveland continued to beat Freeman on the head and legs until the board broke and Freeman lost consciousness. Hearing the commotion, Axle Cardenas went next door and saw Cleveland beating Freeman. Cardenas also saw Cleveland leave the apartment, carrying Freeman’s Walkman radio.

Cleveland was arrested and charged with attempted murder, robbery and assault with a deadly weapon. In addition to various weapons enhancements, Cleveland was also charged with having suffered three prior “strike” convictions.

The jury found Cleveland guilty on all three counts. After waiving his right to a jury trial on the prior conviction allegations, the court found two of the three prior strike allegations to be true. The court sentenced Cleveland to a total of 54 years to life in state prison, consisting of 29 years to life on the attempted murder conviction and a consecutive sentence of 25 years to life on the robbery count. Over Cleveland’s objection, the court refused to “stay” his robbery sentence under section 654, but did “stay” his sentence on the assault with a deadly weapon conviction.

Cleveland appeals.

Discussion

The Trial Court Did Not Err in Imposing Separate Consecutive Sentences on Cleveland’s Attempted Murder and Robbery Convictions Under Section 654.

Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of 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. (Neal v. State of California (1960) 55 Cal.2d 11, 19 [9 Cal.Rptr. 607, 357 P.2d 839].) If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. (People v. Perez (1979) 23 Cal.3d 545, 551 [153 Cal.Rptr. 40, 591 P.2d 63].) If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639 [105 Cal.Rptr. 681, 504 P.2d 905].)

As a general rule, the sentencing court determines the defendant’s “intent and objective” under section 654. (See, e.g., People v. Coleman (1989) 48 Cal.3d 112, 162 [255 Cal.Rptr. 813, 768 P.2d 32].) “In sentencing pursuant to Penal Code section 654, the trial court retains discretion to impose punishment for the offense that it determines, under the facts of the case, constituted the defendant’s ‘primary objective’ ” keeping in mind the overall purpose of section 654. (People v. Norrell (1996) 13 Cal.4th 1, 6 [51 Cal.Rptr.2d 429, 913 P.2d 458].) “[T]he protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.” (Neal v. State of California, supra, 55 Cal.2d at p. 20.) With these principles in mind, we turn to Cleveland’s arguments.

On appeal, Cleveland asserts: (1) the court’s application of section 654 violated the rule announced in Apprendi',² and (2) the court should have “stayed” his robbery sentence under section 654 because he robbed and attempted to murder Freeman during an indivisible course of conduct pursuant to one objective—to rob Freeman. We disagree with each of these contentions, and as set forth below, find the court properly sentenced Cleveland.

A. Apprendi Claim.

Apprendi v. New Jersey, 530 U.S. 466, is one in a series of recent cases in which the United States Supreme Court has expressed concern that a judge’s use of the preponderance of the evidence standard to determine various “sentencing factors” may infringe upon an accused’s constitutional due process rights.³

Apprendi involved two New Jersey criminal statutes working in tandem. The first statute punished the possession of a firearm for an unlawful purpose by imprisonment for between five and 10 years. The second statute, know as a “hate crime” law, was a sentence “enhancement” which increased the range to between 10 and 20 years if the court found by a preponderance of the evidence, the defendant “ ‘acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ ” (Apprendi v. New Jersey, supra, 530 U.S. at pp. 468-469 [120 S.Ct. at p. 2351].) Apprendi, who had shot a rifle into the home of an African-American family, was charged in an indictment that made no reference to New Jersey’s hate crime statute. Among other offenses, he pled guilty to possession of a firearm for an unlawful purpose. After the trial court accepted the plea, the prosecutor filed a motion to enhance the sentence pursuant to the hate crime statute. The trial court conducted an evidentiary hearing and concluded by a preponderance of the evidence that the crime was motivated by racial bias. The judge consequently applied the hate crime enhancement and sentenced Apprendi to 12 years in prison on the firearm charge. The New Jersey Supreme Court upheld his sentence. (Id. at pp. 469-473 [120 S.Ct. at pp. 2352-2354].)

The United States Supreme Court granted certiorari and reversed, holding that the procedure used by the New Jersey courts violated the due process clause of the Fourteenth Amendment. (Id. at p. 476 [120 S.Ct. at p. 2355].) After reviewing the historical importance of trial by jury and the requirement of proof beyond a reasonable doubt, the court concluded that “[t]he historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of the legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” (Id. at pp. 482-483 [120 S.Ct. at p. 2359], italics omitted.) From this principle, the court articulated a new constitutional rule: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum [for the particular crime] must be submitted to a jury, and proved beyond a reasonable doubt.”⁴ (Id. at p. 490 [120 S.Ct. at pp. 2362-2363].)

Here, Cleveland claims the trial court’s determination under section 654 that he had separate objectives with respect to the robbery and attempted murder, violates the Apprendi rule. After Apprendi, Cleveland asserts, a jury, rather than the trial court, must determine the “intent and objective” of the defendant under the standard of “beyond a reasonable doubt.” We do not agree. j

Unlike in the “hate crime” provision in Apprendi, section 654 is not a sentencing “enhancement.” On the contrary, it is a sentencing “reduction” statute. Section 654 is not a mandate of constitutional law. Instead, it is a discretionary benefit provided by the Legislature to apply in those limited situations where one’s culpability is less than the statutory penalty for one’s crimes. Thus, when section 654 is found to apply, it effectively “reduces” the total sentence otherwise authorized by the jury’s verdict. The rule of Apprendi, however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jury’s verdict. In Apprendi, the factual determination (i.e., the element of intent for the hate crime) which increased his sentence was not determined by the trier of fact under the reasonable doubt standard. Here, however, every factual element of the attempted murder and robbery was submitted to the jury, and the jury found Cleveland guilty beyond a reasonable doubt of both crimes. Thus, the jury’s verdict authorized the sentences Cleveland received for each crime. Indeed, in finding section 654 did not apply, Cleveland received the same sentence as he was exposed to by the jury’s verdict. Where, as here, the nonjury factual determination allows for a sentence within the range already authorized by the verdict, Apprendi has no effect.

Cleveland also argues that the rationale of Apprendi applies to the determination of “intent and objective” because section 654 sets the “maximum penalty” for his conduct. He asserts, the “maximum penalty” under section 654 is punishment under a one statutory provision, not more than one. Cleveland claims that to determine whether the defendant should receive a sentence greater than the maximum penalty under section 654 (i.e., whether he should be sentenced under more than one provision), the trier of fact must make a factual determination of the defendant’s “intent and objective.” Thus, under Apprendi, argues Cleveland, the jury rather than the court must make the appropriate factual determination of “intent and objective.” This argument fails. Section 654 does not contain the “maximum penalty” for any particular crime. The “maximum penalty” discussed in Apprendi pertains to the specific offenses at issue; Apprendi is relevant only where a judge-made factual determination increases the maximum statutory penalty for the particular crime or crimes. Here, Cleveland was convicted of both robbery and attempted murder. Because of Cleveland’s prior convictions, each of those offenses, carried a maximum statutory penalty of life in prison. Thus, Cleveland’s sentence of 54 years to life does not exceed the statutory maximum for either of the individual offenses.

Finally, we reject Cleveland’s contention that “when a trial court determines a defendant harbored separate intents,” the court creates a “separate offense” with separate punishment. The court’s finding under section 654 does not create a “new” offense. Instead, it gives effect to the jury’s verdicts on offenses for which the defendant has been fully tried and convicted.

This analysis notwithstanding, any alleged error was harmless error beyond a reasonable doubt. (People v. Marshall (2000) 83 Cal.App.4th 186, 195 [99 Cal.Rptr.2d 441], review granted Nov. 29, 2000 (S091666) [Apprendi errors reviewed under the Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065] harmless error standard].) As set forth below, we conclude the court properly found Cleveland had divisible intents under section 654 for the robbery and attempted murder. We have no doubt a jury would have reached the same conclusion under the reasonable doubt standard.

B. Application of Section 654.

We review the court’s determination of Cleveland’s “separate intents” for sufficient evidence in a light most favorable to the judgment, and presume in support of the court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085 [58 Cal.Rptr.2d 259].)

Sufficient evidence existed for the court to conclude Cleveland harbored divisible intents in committing two separate crimes—robbery and attempted murder of Freeman.⁵ We do not agree with Cleveland that both crimes were committed pursuant to the intent to rob Freeman of his Walkman. As the trial court observed, the amount of force used in taking the Walkman was far more than necessary to achieve one objective. Cleveland repeatedly hit his 66-year-old feeble, unresisting victim on the head and body with a two-by-four board. Cleveland struck Freeman until the board broke and left him unconscious. While it is true that attempted murder can, under some circumstances, constitute the “force” necessary to commit a robbery, here, it was not the necessary force. As the court in People v. Nguyen (1988) 204 Cal.App.3d 181, 191 [251 Cal.Rptr. 40], observed: “at some point the means to achieve an objective may become so extreme they can no longer be termed ‘incidental’ and must be considered to express a different and more sinister goal than mere successful commission of the original crime. . . . RD . . . ffl]. . . [S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.” Cleveland beat Freeman senseless, such that the attempted murder cannot be viewed as merely incidental to the robbery.

The finding Cleveland had separate and simultaneous intents is further bolstered by the evidence that Cleveland and Freeman had a history of negative interaction. Cleveland had been angered by Freeman’s refusal to give him more money after Cleveland ran the errand to buy Freeman cigarettes. In addition, shortly before Cleveland attacked Freeman, Cleveland became upset when his attempt to steal Freeman’s walker was foiled. It is this history which motivated the gratuitous violence supporting the finding of two simultaneous intents.

In view of the foregoing, the court did not err in failing to “stay” Cleveland’s robbery sentence.

Disposition

The judgment is affirmed.

Lillie, P. J., concurred.

1 Penal Code section 654 provides, in pertinent 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. . . .” (§ 654.)

All statutory references are to the Penal Code unless otherwise indicated.

2 We do not agree with the Attorney General’s assertion Cleveland “waived” his Apprendi claim by failing to raise it below. In general, claims of error concerning section 654 are subject to review even in absence of a failure to object. (People v. Hester (2000) 22 Cal.4th 290, 295 [92 Cal.Rptr.2d 641, 992 P.2d 569].) In addition, we observe Apprendi was not decided until after Cleveland was sentenced. Thus, Cleveland cannot be said to have “waived” his constitutional claim. Instead his claim is subject to review under the “plain error” standard. (United States v. Olano (1993) 507 U.S. 725, 732 [113 S.Ct. 1770, 1776-1777, 123 L.Ed.2d 508].) To secure reversal under this standard, Cleveland must prove that: (1) there was “error”; (2) the error was “plain”; and (3) that the error affected “substantial rights.” (Ibid.) This analysis necessitates we reach the merits of Cleveland’s Apprendi claim.

3 In McMillan v. Pennsylvania (1986) 477 U.S. 79 [106 S.Ct. 2411, 91 L.Ed.2d 67], the Supreme Court coined the phrase “sentencing factor" to distinguish between “elements” of a crime which must be determined by a jury and factual matters affecting sentencing that the trial judge decides. In Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. , 140 L.Ed.2d 350], the court determined that an allegation in a sentencing enhancement that the defendant suffered a prior felony conviction did not constitute an “element” of a crime, and thus did not have to be submitted to a jury. Last year, the Supreme Court in Jones v. United States (1999) 526 U.S. 227 [119 S.Ct. 1215, 143 L.Ed.2d 311], foreshadowed Apprendi. The Jones court suggested that under the Sixth Amendment right to jury trial, any factor other than a prior conviction, that could increase the maximum penalty must be tried to a jury, unless jury trial is waived.

4 In announcing the Apprendi rule, the court limited the holding in McMillan v. Pennsylvania, supra, All U.S. 79. McMillan upheld a statute requiring the sentencing judge to impose a minimum sentence, within the statutory range applicable to the crime, if the judge found by a preponderance of the evidence the defendant visibly possessed a firearm during the commission of an offense. (Id. at pp. 81-93 [106 S.Ct. at pp. 2413-2420].) As Apprendi stated: “We do not overrule McMillian. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict. . . .” (Apprendi v. New Jersey, supra, 530 U.S. at p. 487, fn. 13 [120 S.Ct. at p. 2361].)

5 The fact that this case involved two distinct offenses distinguishes it from People v. Logan (1953) 41 Cal.2d 279 [260 P.2d 20], the case upon which Cleveland relies. Here, Cleveland is not challenging the jury’s conclusion that he committed two separate crimes; instead he claims that he should not be punished separately for them under section 654. In Logan, however, the defendant asserted that although he was charged and convicted of both the robbery and the assault, the evidence supported a conviction for only one crime—the robbery. Thus, Logan does not involve the application of section 654.