Filed 4/14/15 P. v. Jenkins CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060810
v. (Super.Ct.No. FWV1303862)
JEFFREY BLAKE JENKINS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed with directions.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted defendant and appellant Jeffrey Blake Jenkins of first degree
1 burglary with a person present (count 1; Pen. Code, § 459)1, assault with a deadly
weapon on victim number one (Ramon) (count 2; § 245, subd. (a)(1)), and assault with a
deadly weapon on victim number two (R.D.) (count 3; § 245, subd. (a)(1)). Defendant
admitted a prior strike conviction (§§ 170.12, subds. (a)-(d), 667, subds. (b)-(i)). The
court sentenced defendant to an aggregate, determinate term of 16 years’ incarceration
consisting of the following: (1) the aggravated term of six years, doubled pursuant to the
prior strike conviction, on count 1; (2) one-third the midterm of three years, one year,
doubled pursuant to prior strike conviction, two years, consecutive on count 2; and (3)
one-third the midterm of three years, one year, doubled pursuant to prior strike
conviction, two years, consecutive on count 3.
On appeal, defendant contends the trial court abused its discretion in imposing the
aggravated term on count 1 and consecutive terms on counts 2 and 3. Defendant argues
defense counsel below provided constitutionally ineffective assistance of counsel (IAC)
to the extent he failed to raise any issues at sentencing and, thereby, forfeited the issues,
and by failing to argue certain mitigating factors to the court. Defendant additionally
claims the court erred, pursuant to section 654, in imposing, without staying, sentence on
count 2. Finally, defendant maintains the abstract of judgment must be corrected. The
People agree with defendant’s latter contention. We shall direct the superior court to stay
imposition of the sentence on count 2 and correct the abstract of judgment. In all other
respects, the judgment is affirmed.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 FACTUAL HISTORY
Ramon testified that on November 19, 2013, he was at his home watching
television alone in the living room. Four of his children were also home. Ramon’s nine-
year-old daughter (E.D.) came running into the house from the backyard screaming that a
man was calling for Ramon. E.D. appeared scared; she ran into her room. Defendant
walked quickly into the house behind E.D. Defendant tried to stab Ramon with two, six-
to seven-inch-long knives defendant held, one in each hand.
Ramon stood and called for his oldest son (Rene). Rene came into the room and
kicked defendant. Ramon picked up a coffee table with which to defend himself.
Defendant hit Ramon on the right side of Ramon’s head with defendant’s hand.
Ramon’s youngest son (R.D.) came into the room. Ramon threw the coffee table
at defendant. Defendant left the home through the backyard. Ramon went to the hospital
with R.D.
Rene testified he was in his room when he heard a man screaming. He opened the
door and saw “[defendant] hitting my dad while he was sitting on the couch.” Defendant
had a knife in each hand. Defendant hit Ramon three times. Rene screamed at
defendant; defendant stopped hitting Ramon and started “saying some crazy things like
that my dad has dead bodies in the house and that he killed somebody.” Defendant exited
the house into the back yard. Rene followed him, and defendant turned and was walking
backwards facing Rene. As defendant reached his side of the house, he said, “‘I’ll be
back.’”
3 R.D., who was 13 years old at the time of the incident, testified he was in Ramon’s
room when he heard Ramon call for Rene. R.D. came out of the room to see defendant
attacking Ramon. Defendant was cursing at Ramon and swinging what appeared to be
two black handles in his hands. Defendant was wearing red shorts.
Defendant’s hand came back and hit R.D. in the stomach where he “felt a pinch”
and got cut. R.D. went back into Ramon’s bedroom to call the police. He then “felt . . .
something dripping on my stomach. And I pulled up my shirt and I saw . . . blood.” R.D.
told police defendant stabbed him. He went to the hospital in an ambulance where he
received one stitch. R.D. still had a scar from the wound.
Ramon’s daughter, L.D., who was around 17 years old at the time of the incident,
testified she was in her room when she heard a door slam and E.D. crying. L.D. asked
E.D. what was wrong; E.D. said “‘My dad’” five times. L.D. went out of the room to see
what had happened. She saw defendant with knives in his hands yelling and cursing at
Ramon. Defendant swung at Ramon with the knives in his hands.
Ramon pushed the table to use “as a shield to protect himself.” Defendant left
saying he would be back. R.D. came out and told L.D. he had been stabbed; he showed
her his bleeding stomach.
Defendant’s sister, Jearolyn, testified she was home, next door to the victims’
house, on the day of the incident. Defendant had been singing and talking to himself in
his room. At some point, it appeared defendant had left the home. Defendant came
running back into the house through the kitchen, upset and mad, with his fists up and
4 clenched. Defendant said “‘I’m tired of this SOB molesting me.’” Defendant went to his
bedroom, took off his shorts, and put them in the laundry basket.
The responding officer testified he saw R.D. inside an ambulance with a very
small, diamond shaped puncture wound to his right midsection, which was bleeding. He
conducted an infield showup of defendant with both Rene and R.D. R.D. was scared,
nervous, overwhelmed, confused, perplexed, and a little shy. He was unable to positively
identify defendant as the perpetrator mentioning “that he did not have red shorts on, so he
wasn’t certain.” Rene was immediately able to positively identify defendant as the
perpetrator.
Another officer who responded to the location interviewed Jearolyn. Jearolyn told
him defendant ran back into their home, quickly removed his red shorts, and shoved them
to the bottom of the laundry hamper. The officer recovered the shorts.
A West Valley Detention Center Facilities Coordinator and Custodian of Records
testified that a phone call between defendant and another individual had been recorded
while defendant was incarcerated. The People played the phone call for the jury. During
the phone call, defendant stated, “That fool lied up in court—man big time, we caught—
we caught him in tons of lies, man didn’t get stabbed or anything. I just punched that
dude one time. [¶] . . . [¶] He don’t know—what happened is he grabbed the table and
tried to swing it at me and then the nail scratched him on the side and um he tried to say
that I had a knife.”
5 DISCUSSION
A. Imposition of the Upper Term on Count 1 and Consecutive Terms on
Counts 2 and 3.
Defendant contends the court erred in imposing the aggravated term on count 1
and consecutive terms on counts 2 and 3 by relying on factors already constituting
elements of the offense, by relying on vague and legally insufficient reasons, by failing to
consider mitigating factors, by misweighing the aggravating and mitigating factors, and
by failing to articulate a legally sufficient basis for doing so. Defendant also maintains
defense counsel provided constitutionally IAC by failing to raise any sentencing issues
below, which might result in forfeiture of the issues on appeal, and in neglecting to argue
certain purported mitigating factors. We disagree.
1. Forfeiture
The People contend defendant forfeited the sentencing issues he raises by failing
to object below. We agree.
After defendant admitted the prior strike conviction allegation, the court continued
the matter for preparation of a probation officer’s report. The probation officer’s report,
filed on February 28, 2014, reflects defendant’s criminal history. Among other
misdemeanors and infractions, defendant had incurred convictions for felony assault with
a deadly weapon in 1987, a felony drug offense in 1990 for which he was sentenced to
prison, felony battery in 1993 for which he was sentenced to prison, and felony robbery
in 2004 for which he was also sentenced to prison. Defendant had incurred one violation
of parole.
6 The probation officer noted she had “learned from . . . defendant’s sister that he
might have possessed controlled substances in the past and has mental health problems.”
“[D]efendant’s mother also confirmed he has mental health issues and suffers from
paranoid schizophrenia. She added the defendant was shot in the head about four months
ago and has four bullets lodged in his skull. He is also a heavy drug user and [she] felt
that he was possibly under the influence of drugs.” In the search of defendant’s room,
officers had found less than a gram of methamphetamine and a pipe. One officer opined
“defendant had some sort of delusional idea the victims[] had sexually molested him at
some point.”
When interviewed by the probation officer, defendant stated he caught a neighbor
who had stolen $200 from him and chased her to the victims’ home. He knocked on the
door. A male came out with whom defendant had a confrontation. Defendant had no
weapon. The whole family came out and started to chase defendant and throw things at
him. Defendant said “he was never in possession of a weapon during this incident.”
However, “defendant added the person he struck sustained ‘one little’ stitch.” Defendant
“denied a history of mental health problems.”
The probation officer noted as aggravating factors that the “crime involved great
violence, great bodily harm, and/or other acts disclosing a high degree of cruelty,
viciousness[,] and callousness;” “[t]he defendant was armed with or used a weapon at the
time of the offense;” “[t]he victims were particularly vulnerable;” “[t]he manner in which
the crime was carried out indicates planning, sophistication[,] or professionalism[;]”
“[t]he defendant has engaged in violent conduct that indicates a serious danger to
7 society;” “[t]he defendant’s prior convictions as an adult are numerous and of increasing
seriousness;” “[t]he defendant has served prior prison terms;” and “[t]he defendant’s
prior performance on parole was unsatisfactory.” The probation officer found no factors
in mitigation.
With respect to factors affecting imposition of consecutive or concurrent
sentences, the probation officer noted “[t]he crimes and their objectives were
predominantly independent of each other”; “[t]he crimes did involve separate acts of
violence or threats of violence”; and “[t]he defendant has not expressed remorse for his
criminal actions, denied he stabbed [R.D.] and insisted he was not in possession of a
weapon during the commission of this offense.” The probation officer recommended
imposition of the upper term on count 1 and consecutive terms on counts 2 and 3 for a
determinate term of 16 years’ incarceration.
On March 14, 2014, the date of sentencing, the court asked if respective counsel
had copies of the probation report. Defense counsel responded he did. The court asked if
either side had any comments. Defense counsel responded that he did. Defense counsel
then argued to the court that it “not follow probation’s recommendation, and probation’s
recommendation is 16 years. They are recommending the aggravated time. [¶] We are
going to ask the Court to consider the mitigated or midterm.” Defense counsel argued
there were mitigating factors. The People argued for the aggravated term based on
defendant’s prior criminal history, increasing criminal history, and crimes involving
violence. The court asked for further comments. Defense counsel responded, “No, I’ll
submit it on my previous arguments, your Honor.”
8 Before imposing sentence, the court observed, “I would like to state for the record,
the Court . . . carefully listened to the trial. And the most disturbing part about this, in the
Court’s mind, is that the home is where someone should feel safe. There were children
involved in this. And a young person, I believe he was 13 years old, was unnecessarily
injured. [¶] The Court feels that there was more going on. This simply didn’t make
sense to the Court. But all the Court has before it is what happened. And what happened
was inexcusable. Because once you enter somebody’s private home with a weapon, that
escalates things to an intolerable degree. And in combination with [defendant’s] history,
the Court has no problem whatsoever imposing the aggravated [term] just because the
circumstances were so egregious, and in the Court’s mind, completely unnecessary.”
The forfeiture doctrine applies “to claims involving the trial court’s failure to
properly make or articulate its discretionary sentencing choices. Included in this category
are cases in which the stated reasons allegedly do not apply to the particular case, and
cases in which the court purportedly erred because it double-counted a particular
sentencing factor, misweighed the various factors, or failed to state any reasons or give a
sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353, italics
added.) “Of course, there must be a meaningful opportunity to object to the kinds of
claims otherwise deemed [forfeited]. This opportunity can occur only if, during the
course of the sentencing hearing itself and before objections are made, the parties are
clearly apprised of the sentence the court intends to impose and the reasons that support
any discretionary choices.” (Id. at p. 356.) “[A] meaningful opportunity to object means
that the defendant be given the opportunity to address the court on the matter of sentence
9 and to object to any sentence or condition thereof imposed by the court.” (People v.
Zuniga (1996) 46 Cal.App.4th 81, 84 [court not required to issue tentative ruling to
foreclose application of forfeiture rule where defense counsel had an opportunity to
address the court regarding sentencing].)
Here, defense counsel had ample opportunity to and actually did address the
sentencing issues before the court. Defense counsel had received the probation officer’s
report prior to the sentencing hearing. Thus, defense counsel had the probation officer’s
recommendation of the precise sentence, which the court eventually imposed, and the
bases for that recommendation prior to the sentencing hearing. The court expressly
afforded defense counsel the opportunity to address the recommended sentence. Defense
counsel availed himself of that opportunity. Defense counsel argued there were
mitigating factors and urged the court to consider imposing the lesser or midterm
sentence. After the People argued otherwise, the court afforded defense counsel another
opportunity to argue the sentencing issues. Defense counsel declined the offer.
Therefore, defendant had opportunity to, and actually did, address the court regarding the
sentencing issues, thus forfeiting on appeal any further arguments he could have made.
2. IAC
Defendant contends trial counsel below committed constitutionally IAC to the
extent he failed to address any issues that result in a forfeiture on appeal and by
neglecting to argue other mitigating factors. We disagree.
“‘“In order to demonstrate ineffective assistance of counsel, a defendant must first
show counsel’s performance was “deficient” because his “representation fell below an
10 objective standard of reasonableness . . . under prevailing professional norms.”
[Citations.] Second, he must also show prejudice flowing from counsel’s performance or
lack thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.”’” [Citation.] [¶] Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel [citation], and there is
a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” [Citation.] Defendant’s burden is difficult to carry on direct
appeal, as we have observed: “‘Reviewing courts will reverse convictions [on direct
appeal] on the ground of inadequate counsel only if the record on appeal affirmatively
discloses that counsel had no rational tactical purpose for [his or her] act or omission.’”
[Citation.]’ [Citation.] If the record on appeal ‘“‘sheds no light on why counsel acted or
failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no satisfactory explanation,’
the claim on appeal must be rejected,”’ and the ‘claim of ineffective assistance in such a
case is more appropriately decided in a habeas corpus proceeding.’ [Citation.]” (People
v. Vines (2011) 51 Cal.4th 830, 875-876.)
To the extent defendant argues defense counsel committed prejudicial IAC by
failing to argue purported mitigating factors to the court at the sentencing hearing, we
hold defense counsel’s performance was not deficient and defendant suffered no
prejudice because the purported mitigating factors were not well supported in the record.
11 Defendant contends defense counsel should have argued that defendant’s ostensible
mental health issues, physical impairment, and drug issues were mitigating factors.
However, none of these factors find substantive support in the record. Indeed, there is no
explanation in the record as to why defense counsel failed to make the proposed
arguments. Defense counsel never made any argument below regarding defendant’s
mental incompetency to stand for trial. Defendant himself told the probation officer he
had no history of mental illness. Thus, defense counsel may not have raised the issue
because there was no independent, verifiable support for any of the proposed arguments
or because defendant forbade him from doing so.
Second, the fact that Jearolyn testified defendant was singing and talking to
himself in his room prior to the incident is not necessarily or even at all convincing of a
conclusion that he suffered from a mental incapacity. Indeed, many individuals sing or
talk to themselves without suffering from any mental incapacity. The oldest son testified
defendant said “some crazy things like that my dad has dead bodies in the house and that
he killed somebody.” Jearolyn also testified that upon returning from the victims’ home,
defendant said, “‘I’m tired of this SOB molesting me.’” While these statements are more
indicative of a potential mental problem, there is, again, no explanation for why defense
counsel did not argue this factor to the court. Defendant’s purported mental illness is the
only proposed mitigating factor with any evidentiary support in the record.
In any event, regardless of whether defense counsel argued this factor to the court,
the sentencing court was the same court that presided over the trial and noted prior to
sentencing that it had paid careful attention to the trial proceedings. Thus, the court may
12 simply have determined that the testimony regarding indications of potential mental
issues from which defendant may have suffered were not credible or sufficiently
established. (People v. Jackson (2014) 58 Cal.4th 724, 749 [it is the exclusive province
of the trial court to make credibility determinations].) Indeed, defendant himself denied
having any mental health issues.
The remainder of defendant’s proposed claims of IAC regarding failure to argue
mitigating factors derive from unsworn statements made in the probation officer’s report.
Jearolyn reported defendant might have possessed controlled substances in the past and
had mental health problems. Defendant’s mother reported he had mental health issues
and suffered from paranoid schizophrenia. She said defendant had been shot four months
prior to sentencing and had four bullets lodged in his skull. Defendant’s mother
additionally reported defendant was a heavy drug user. Officers found methamphetamine
and a pipe in defendant’s bedroom. One officer reported defendant had delusions Ramon
had molested him.
Again, there is no explanation in the record as to why defense counsel did not
argue these factors in mitigation at the sentencing hearing. It is possible that none of the
facts, other than the methamphetamine found in defendant’s bedroom, could be otherwise
confirmed. Indeed, again, defendant denied any mental health issues. He also denied any
drug use during the past 25 years. The court read and signed the probation officer’s
report; thus, the court was cognizant of these issues regardless of whether defense
counsel raised them in argument at sentencing. Thus, we cannot conclude that defense
counsel acted deficiently or that defendant was prejudiced by defense counsel’s decision
13 not to raise defendant’s purported mental health, physical health, or drug use as
mitigating factors. To the extent defendant contends defense counsel provided IAC by
failing to object to the court’s imposition of the aggravated term on count 1, consecutive
terms on counts 2 and 3, and failure to stay the sentence on count 2 pursuant to section
654, we shall address the merits to forestall the IAC claim.
3. Aggravated Term on Count 1
Defendant contends the court erred in imposing the upper term on count 1. We
disagree.
“Within the limits set forth by the Legislature, a trial court has broad discretion . . .
whether to select the upper, middle, or lower term of imprisonment (§ 1170, subd. (b);
Cal. Rules of Court, rule 4.420(b)).” (People v. Clancey (2013) 56 Cal.4th 562, 579.)
“In determining the appropriate term, the court may consider the record in the case, the
probation officer’s report, other reports . . . and statements in aggravation or mitigation
submitted by the prosecution, the defendant, or the victim, . . . and any further evidence
introduced at the sentencing hearing. The court shall select the term which, in the court’s
discretion, best serves the interests of justice. The court shall set forth on the record the
reasons for imposing the term selected and the court may not impose an upper term by
using the fact of any enhancement upon which sentence is imposed under any provision
of law.” (§ 1170, subd. (b).) The sentencing court’s decision is subject to review for
abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
“[A] trial court will abuse its discretion . . . if it relies upon circumstances that are
not relevant to the decision or that otherwise constitute an improper basis for decision.
14 [Citations.]” (People v. Sandoval, supra, 41 Cal.4th at p. 847.) Defendants bear a heavy
burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65
Cal.App.4th 279, 282.) “‘In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.’
[Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) “[A]
trial court may ‘minimize or even entirely disregard mitigating factors without stating its
reasons.’ [Citation.]” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.)
Here, prior to imposing the upper term on count 1, the court noted that defendant
had a lengthy criminal history and that there were children present in the home when
defendant committed the offenses. Either or both of these factors supported imposition of
the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730 [“a single factor in
aggravation suffices to support an upper term”].) Moreover, contrary to defendant’s
contention, either or both of these factors did not violate provisions against dual use of
factors affecting sentencing. That three children other than R.D., who was the victim of
one of the offenses for which defendant was convicted, were present, were not elements
of the substantive offenses or the enhancement. Likewise, that defendant had a number
of felony criminal convictions and a parole violation above and beyond his prior strike
conviction made the court’s consideration of his criminal history proper. Thus, the court
acted within its discretion in imposing the upper term on count 1.
15 4. Consecutive Terms on Counts 2 and 3
Defendant contends the court abused its discretion in imposing consecutive terms
on counts 2 and 3. We disagree.
“‘[A] trial court has discretion to determine whether several sentences are to run
concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse,
the trial court’s discretion in this respect is not to be disturbed on appeal. [Citations.]
Discretion is abused when the court exceeds the bounds of reason, all of the
circumstances being considered.’ [Citation.]” (People v. Caesar (2008) 167 Cal.App.4th
1050, 1059, disproved of on another ground in People v. Superior Court (2010) 48
Cal.4th 1.) “Any circumstances in aggravation or mitigation may be considered in
deciding whether to impose consecutive rather than concurrent sentences, except” factors
already used to impose an upper term, to enhance defendant’s sentence, or which
constitute an element of the crimes for which defendant was convicted. (Cal. Rules of
Court, rule 4.425(b).) “Only one criterion is necessary to impose a consecutive sentence.
[Citation.]” (People v. King (2010) 183 Cal.App.4th 1281, 1323.)
Here, again, the court noted prior to imposing sentence that defendant had a
lengthy criminal history and that there were children present in the home when defendant
committed the offenses. Either one or both of those factors would support the court’s
imposition of consecutive sentences on counts 2 and 3. To the extent the court relied on
one of those factors in imposing the aggravated sentence on count 1, the remaining factor
would suffice for imposition of consecutive sentences on the remaining counts. Thus, the
court acted within its discretion in imposing consecutive terms on counts 2 and 3.
16 Moreover, assuming the court committed any error, we find the error harmless.
(People .v Sanchez (1994) 23 Cal.App.4th 1680, 1686 [“Where, as in this case, it is
improbable that a lower court’s sentencing choice would have been different if it had
been reminded to state a proper reason, the constitutional provision forbidding reversal
for insubstantial errors should apply”].) Here, the court’s impassioned statement
regarding imposition of the sentence makes it improbable the court would have imposed
a lesser sentence had it been informed of the need to identify which factor supported the
aggravated sentence on count 1 and the consecutive sentences on counts 2 and 3. This is
particularly true considering our holding below that the court erred in neglecting to stay
the sentence on count 2.
B. Section 654.
Defendant contends the court erred in neglecting to stay the sentence on count 2.
We agree.
“Section 654 states in relevant 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.’ [Citation.] ‘“Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.”’ [Citation.]” (People v. Capistrano (2014) 59
Cal.4th 830, 885.)
17 “‘[T]he purpose of section 654 “is to insure that a defendant’s punishment will be
commensurate with his culpability.”’ [Citation.] ‘It is [the] defendant’s intent and
objective, not temporal proximity of his offenses, which determine whether the
transaction is indivisible.’ [Citation.] ‘“The defendant’s intent and objectives are factual
questions for the trial court; [to permit multiple punishments,] there must be evidence to
support [the] finding the defendant formed a separate intent and objective for each
offense for which he was sentenced.”’ [Citation.]” (People v. Capistrano, supra, 59
Cal.4th at p. 886.)
“When a defendant is convicted of burglary and the intended felony underlying the
burglary, section 654 prohibits punishment for both crimes. [Citations.]” (People v. Islas
(2012) 210 Cal.App.4th 116, 130.) “[S]ection 654 does not apply to crimes of violence
against multiple victims. [Citation.] The reason is that ‘[a] defendant who commits an
act of violence with intent to harm more than one person or by means likely to cause
harm to several persons is more culpable than a defendant who harms only one person.’
[Citation.]” (People v. Correa (2012) 54 Cal.4th 331, 341, fn. omitted.) “The failure of
defendant to object on this basis in the trial court does not forfeit the issue on appeal.
[Citation.]” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)
Here, the court’s failure to stay sentence on count 2, the assault upon Ramon,
violated the proscriptions of section 654 because it was the felony underlying the
burglary. Section 654 was not addressed in either the probation officer’s report or at the
sentencing hearing. Nevertheless, the court expressly instructed the jury that one of the
elements of the crime of burglary was that when defendant “entered the inhabited
18 dwelling house, he did so with the intent to commit an assault with a deadly weapon.”
“A burglary was committed if the defendant entered with the intent to commit an assault
with a deadly weapon.” (CALCRIM No. 1700.) The People expressly argued that
defendant’s felonious intent in entering Ramon’s house was to assault Ramon. Thus, the
court should have stayed sentence on count 2.
The People argue that where the information fails to identify the victim of the
underlying felony supporting a burglary offense and there were multiple victims, the
court is not required to stay sentence on the separate, underlying count: “[A] number of
cases have upheld the application of the multiple victim exception based on evidence of
multiple victims, without considering whether the identities of those victims had been
pleaded.” (People v. Centers (1999) 73 Cal.App.4th 84, 101 [Fourth Dist, Div. Two].) A
burglary may be treated as a violent crime for purposes of the multiple victim exception
to section 654 where the defendant inflicted great bodily injury in the commission of the
burglary. (Centers, at p. 100.) Likewise, a burglary may be treated as a violent crime for
purposes of the multiple victim exception to section 654 where defendant personally used
a firearm in the commission of the burglary. (Centers, at p. 100.)
“Here, the trial court could properly find multiple victims even though the
information did not specify, and the jury did not make any finding regarding, the identity
of any victim of the burglary or the personal firearm use.” (People v. Centers, supra, 73
Cal.App.4th at pp. 89, 101 [where defendant entered home for purposes of kidnapping
the victim, two other individuals were present, defendant threatened one of the other
individuals, and jury found true personal use of a firearm enhancement, court did not err
19 in imposing separate, unstayed sentences for kidnapping and burglary].) “[T]here was at
least one victim of the burglary and the personal firearm use who was not also a victim of
the kidnapping. This was sufficient. [Citation.]” (Id. at p. 102.)
However, here, unlike in Centers, no great bodily injury or personal use of a
firearm in the commission of the burglary enhancements were alleged by the People or
found true by the jury. Moreover, while unnamed in the information and the verdict, the
People’s argument that the felony underlying the burglary was defendant’s assault upon
Ramon makes it highly probable that that assault, and not any perceived offense against
the unnamed children who were not the subject of any pled counts, enhancements,
convictions, and findings, was the underlying felony found by the jury to support the
burglary conviction. We decline to extend Centers to the facts of the instant case. We
shall direct the superior court to stay sentence on count 2.
C. Abstract of Judgment.
Defendant contends the abstract of judgment must be corrected to reflect the
court’s imposition of consecutive one-third the midterm sentences on counts 2 and 3
rather than consecutive full terms. The People agree. We also note the abstract of
judgment incorrectly reflects defendant was found guilty by the court rather than a jury.
We shall order the court to correct the abstract of judgment.
“It is well settled that ‘[a]n abstract of judgment is not the judgment of conviction;
it does not control if different from the trial court’s oral judgment and may not add to or
modify the judgment it purports to digest or summarize. [Citation.]’ [Citation.] When
an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s
20 verbal pronouncement, [appellate courts have] the inherent power to correct such clerical
error on appeal, whether on our own motion or upon application of the parties.
[Citation.]” (People v. Jones (2012) 54 Cal.4th 1, 89.)
Here, the court imposed one-third the midterm on both counts 2 and 3; however,
the abstract of judgment erroneously reflects the court imposed consecutive full terms.
Likewise, although a jury convicted defendant, the abstract of judgment reflects
defendant was convicted by court trial. We shall direct the superior court clerk to correct
the abstract of judgment.
DISPOSITION
The trial court is ordered to modify the sentence on count 2 to reflect a stay
pursuant to section 654. The trial court is further directed to correct the abstract of
judgment to reflect defendant was convicted by a jury and that the sentencing court
imposed consecutive terms of one-third the midterm on counts 2 and 3. The trial court is
also directed to forward a copy of the new abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.