Opinion
H030372
5-30-2007
THE PEOPLE, Plaintiff and Respondent, v. GABRIELA ISABEL AGUILERA, Defendant and Appellant.
NOT TO BE PUBLISHED
This appeal asks us to decide whether the trial court violated Penal Code section 654 by imposing a term for assault concurrent to a term for robbery based on information contained in the probation report.
Unspecified section references are to the Penal Code.
Defendant Gabriela Isabel Aguilera was convicted by no contest plea of assaulting Anahi Rodriguez with a wooden bat (count 1 — § 245, subd. (a)(1)) and robbing her (count 2 — § 211) the same day, July 23, 2004. Defendant also admitted that, during both crimes, she personally used the bat as a dangerous weapon (§ 12022, subd. (b)(1)) to inflict great bodily injury on Rodriguez (§§ 12022.7, subd. (a), 1203, subd. (e)(3)). Her plea was entered with no conditions in advance of a preliminary examination. Defendants attorney signed a plea form stipulating to a factual basis for the plea. The judge also signed the form finding a factual basis for the plea.
After considering the probation report and arguments of counsel, the court sentenced defendant to prison for seven years as recommend in the probation report, consisting of the three-year midterm for the robbery, enhanced by four consecutive years, three years for inflicting great bodily injury and one year for personally using a dangerous weapon. The court imposed a concurrent three-year term for the assault and stayed the enhancements pursuant to section 654. The court ordered victim restitution of $16,257.28 and $247.55 to the State Victims Board.
The parties recognize that the abstract of judgment needs to be corrected, as it erroneously recorded these amounts as $16,237.28 and $277.05. The Attorney Generals brief concedes the victim restitution error identified in defendants opening brief. Defendants reply brief concedes that she was mistaken to argue in the opening brief that the court did not order a State Victims Board payment.
On appeal after her no contest plea, defendant asserts that the court erred in imposing a concurrent term for the assault when it should be stayed pursuant to section 654. She also contends that the trial court should not have considered the probation report in imposing sentence. For the reasons stated below, we will affirm the judgment.
The Offenses
Because this case was resolved without a preliminary examination, the offenses are described most thoroughly in the presentence probation report.
As we explain below (post, p. 8 ), we will reject defendants claim that the sentence should not have been based on information in the probation report.
The victim, 15-year-old Anahi Rodriguez, met "Crystal" in an Internet chat room. After talking on the telephone several times, they made plans to go to the movies. On July 23, 2004, 18-year-old defendant, who was posing as "Crystal," came to the victims house and picked her up. Noel Garcia was the driver of the car, which also contained two minor females, Amanda and Amber.
In the car, they made plans to smoke marijuana in a park in San Jose, to which they drove. They walked on a trail deep into the park. Defendant carried a wooden baseball bat, purportedly for protection from mountain lions. At some point, the three females attacked Rodriguez. Defendant hit her with the bat while the other girls punched and kicked her and demanded her cell phone. Defendant said that she was hitting her for having a chat room conversation with her boyfriend, Julio. The victim was surrounded and knocked to the ground, where she was kicked in the face. Garcia brandished a knife and threatened to kill her if she did not hand over her cell phone. They eventually left her in the park, with defendant taking her phone. They were apprehended the same day.
The other three participants told the police that defendant intended to teach the victim a lesson for chatting on the Internet with defendants boyfriend and so lured her to the park.
Defendant told the police a different story about gang rivalry and the victim threatening her life on the Internet. Defendant devised a plan to jump the victim first by posing as Crystal and luring her to the park. She admitted striking the victim three times with the bat. She wrote the victim a letter saying in part, "hope you . . . learned your lesson not to go out with people that you dont know because you never know whats going to happen. And dont threaten people if you know youre not even going to do anything." Defendant also wrote that she should stop calling her "va[t]o."
Defendant told the probation officer that the entire plan was Amandas and that she had no prior knowledge an assault was planned. Amanda brought and used the bat, while defendant punched and kicked her.
The victims left elbow was broken and bears a scar. She had 42 staples in her left arm. It was in a cast for over two months. She had three deep wounds and 27 staples in her head. She could not open her right eye for two weeks. Six months after the attack, her hand continued to hurt and she had constant headaches.
The Sentencing Hearing
At the sentencing hearing, the court announced without objection that it had read and considered the probation report and received it into evidence. The prosecutor argued for the seven-year prison term recommended by the probation report. The following discussion ensued.
"[The Prosecutor:] . . . I think that the court could run the two counts consecutive to each other. I think in this case the evidence shows that there was definitely an opportunity to reflect between the commission of the 245 and the 211 in this case.
"[The Court:] Thats the criteria for the nonsexual case. The criteria reflect for 654
"[The Prosecutor:] Well, I think that the evidence
"[The Court:] 654 as you know, one act, one intent.
"[The Prosecutor:] Right.
"[The Court:] Several acts, 654 says to me youve got to stay it.
"[The Prosecutor:] Well, I think in this case what the evidence shows that the intent was to take the victim out into a remote area and beat her up. The 211 was an afterthought that occurred after the victim was already beaten up when the codefendant intentionally made the statement, `get her cell phone. This defendant then took the cell phone from the victim, and they left.
"So I think under that factual scenario the 245 was not committed with the same intent as the 211 was.
"[The Court:] That force and violence and fear is a continuing act. The force and fear and threat of force and fear, the acts of violence that are as a result of seemed to be a continuing saga.
"[The Prosecutor:] Thats not my interpretation of the facts in this case. I think that this court could, however, I think even if the court can given the circumstances of the defendant, that probably running them concurrent is appropriate. However, I dont think anything less than a seven-year term in this case is appropriate."
After hearing more argument, the court eventually imposed the sentence stated above. The court initially stayed the one-year personal weapon use enhancement under section 654, stating, "you cant [use] both. One enhancement per count." After objections by the prosecutor and the probation officer, the court referred to section 1170.1, subdivision (g), and corrected itself, imposing a consecutive one-year enhancement for the weapon use. Then the court imposed a three-year concurrent term on the assault and stayed the enhancements under section 654.
The Application of Section 654
Defendant asserts that the three-year concurrent term for assault must be stayed pursuant to section 654.
Although "[a]n act or omission" may be "punishable in different ways by different provisions of law," section 654 provides that "in no case shall the act or omission be punished under more than one provision." This statute has been applied to a course of conduct as explained by the California Supreme Court in People v. Britt (2004) 32 Cal.4th 944 at pages 951-952: "The test for determining whether section 654 prohibits multiple punishment has long been established: `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 . . . .) A decade ago, we criticized this test but also reaffirmed it as the established law of this state. (People v. Latimer (1993) 5 Cal.4th 1203, 1209-1216 . . . .) We noted, however, that cases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted. (Id. at pp. 1211-1212 . . . .)" It is established that a concurrent sentence is regarded as multiple punishment. (In re Wright (1967) 65 Cal.2d 650, 654-655.)
It is generally a factual question for the sentencing court whether a defendants multiple crimes involved multiple objectives. (People v. Coleman (1989) 48 Cal.3d 112, 162.) On appeal we defer to express or implicit determinations that are based upon substantial evidence. (Cf. People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. McCoy (1992) 9 Cal.App.4th 1578, 1585; In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
When an assault is the means by which the objective of robbery is accomplished, a defendant should not be punished for both crimes. (In re Henry (1966) 65 Cal.2d 330, 331-332; People v. Medina (1972) 26 Cal.App.3d 809, 824; People v. Flowers (1982) 132 Cal.App.3d 584, 589; contra People v. Watts (1999) 76 Cal.App.4th 1250, 1265 [assaults during robbery found to have separate intents].) However, an assault that occurs after a robbery is completed may be found to have a different objective or motivation. (People v. Coleman (1989) 48 Cal.3d 112, 162-163 [having essentially completed a robbery and a murder, the defendant stabbed the robbery victim with the separate intent of preventing her from reporting the murder]; People v. Williamson (1979) 90 Cal.App.3d 164, 172 [having completed a robbery, the defendant removed his gun from his pocket and aimed it at one of the victims in response to a complaint]; People v. Jenkins (1987) 196 Cal.App.3d 394, 406 [the defendant fired one shot in order to accomplish a robbery and fired another shot after the robbery was completed in an unnecessary, gratuitous act of violence], disapproved on another ground by People v. Brown (1993) 6 Cal.4th 322, 336, fn. 12.)
Just as an assault following a robbery may have a separate objective, so may a robbery following an assault. In this case, there was ample evidence that defendants initial objective was to physically punish the victim for chatting with the defendants boyfriend. To accomplish this objective, defendant befriended the victim using a false name, lined up other assailants, brought a weapon, and lured the victim to an isolated area to administer a beating. It does not appear that defendants initial objective was to deprive the victim of her property. When a defendant accomplishes his or her initial objective of physically disabling the victim, if the defendant thereafter takes advantage of that opportunity to deprive the victim of personal property, the evidence may support a conclusion that the robbery was an afterthought with a separate objective.
The defendants in the following three cases were found to have different objectives for a taking that followed an assault. In People v. Cleveland (2001) 87 Cal.App.4th 263, the defendant beat an elderly neighbor senseless, repeatedly hitting him with a two-by-four board, before taking his radio. (Id. at pp. 266-267.) The appellate court upheld consecutive sentences for robbery and attempted murder based on an implied finding of divisible intents, stating: "As the trial court observed, the amount of force used in taking the Walkman was far more than necessary to achieve one objective. . . . [Citation.] . . . Cleveland beat Freeman senseless, such that the attempted murder cannot be viewed as merely incidental to the robbery." (Id. at pp. 271-272.)
In People v. Nelson (1989) 211 Cal.App.3d 634, the appellate court upheld the imposition of terms for two assaults consecutive to a burglary term. In the course of a burglary, the two burglars encountered the two occupants of the house and engaged in a physical confrontation. The appellate court reasoned: "On this record, it is reasonable to infer, as we assume the trial judge did, that theft was not the burglars only object and purpose. Rather, they deliberately chose to enter the McLeod residence while the victims were at home, knowing as they must that their presence reduced the chances of a successful theft, because separate and apart from thievery they intended to inflict physical harm upon the victims." (Id. at p. 639, fn. omitted.)
In People v. Helton (1979) 91 Cal.App.3d 987, the appellate court upheld separate sentences for kidnapping, armed robbery, and auto theft. The defendant was apparently dissuaded from his initial intent to kidnap and rape the victim. He "abandoned the rape, and as an afterthought, independent of and not merely incident to the other acts, took the victims money and her truck." (Id. at p. 992.)
In this case it appears that defendants initial plan and intent was to physically punish Rodriguez for talking to her boyfriend, not to take her property. While the assailants apparently demanded her cell phone during the beating, there was evidence provided by the probation report that this separate intent arose as an afterthought based on the victims fortuitous possession of the phone. We conclude that substantial evidence supports the sentencing courts implicit conclusion that defendants two crimes of assault and robbery had separate objectives.
Reliance on Probation Report
Defendant contends that it was error for the sentencing court to base any conclusions on the probation report. She contends that "[t]he factual basis for the plea is the basis for determining whether the court had authority to impose sentences for both robbery and the assault." Further, "there was no agreement in this case that the court would rely on some basis other than the stipulated facts in determining the sentence."
We see nothing in defendants plea or precedent that required her sentencing to be based solely on her plea admissions. Defendants argument about the limited factual basis of her plea in the absence of a preliminary examination is irrelevant.
Section 1192.5 provides in part that "a plea of guilty or nolo contendere . . . may specify the punishment . . . ." The court cannot impose a greater punishment than specified once "the plea is accepted by the prosecuting attorney in open court and is approved by the court." (Ibid.) The statute requires certain judicial advice and further provides: "The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea." (Ibid.)
In People v. Holmes (2004) 32 Cal.4th 432 (Holmes), on which defendant relies, the California Supreme Court stated at page 436: "We conclude that in order for a court to accept a conditional plea, it must garner information regarding the factual basis for the plea from either defendant or defense counsel to comply with section 1192.5. If the trial court inquires of the defendant regarding the factual basis, the court may develop the factual basis for the plea on the record through its own examination by having the defendant describe the conduct that gave rise to the charge [citation], or question the defendant regarding the factual basis described in the complaint or written plea agreement. [Citations.] If the trial court inquires of defense counsel regarding the factual basis, it should request that defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.] Under either approach, a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate."
In relying on this passage in Holmes, defendant overlooks its prelude. "There are two types of guilty or no contest pleas in California: (1) a conditional plea, where the plea is conditioned upon receipt of a particular disposition; and (2) an unconditional or open plea." (Holmes, supra, 32 cal.4th at p. 435.) Section 1192.5 applies to conditional pleas. Defendants plea was an unconditional plea. The trial court was not required to conduct any inquiry into its factual basis. (People v. Hoffard (1995) 10 Cal.4th 1170, 1183-1184.) Moreover, the entire focus of Holmes was to "provide guidelines for the trial courts regarding how to comply with their obligations under section 1192.5 and what constitutes a `factual basis for the plea. " (Holmes, supra, 32 Cal.4th at pp. 435-436.) It contains no discussion about what documents a sentencing court may rely on.
It is implicit in a plea bargain, absent a contrary agreement, that a sentencing court will not consider the facts underlying a dismissed charge. (People v. Harvey (1979) 25 Cal.3d 754, 758.) However, it is not implicit that the sentencing court will disregard the facts underlying an uncontested charge.
California statutes authorize and sometimes require sentencing courts to obtain and consider presentence probation reports. Section 1203, subdivision (b)(1) states: "Except as provided in subdivision (j), if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment." The defendant is entitled to review the report before sentencing. (§§ 1203, subd. (b)(2)(E); 1203d.) The court is required to consider the report and say it did so, on the record. (§ 1203, subd. (b)(3).) Even when a person is ineligible for probation, the court may order a probation report (§ 1203, subd. (g)) and consider it in sentencing the defendant (§ 1170, subd. (b)).
In this case, due to the admission that defendant willfully inflicted great bodily injury on her victim, defendant was presumptively ineligible for probation except in an unusual case. (§ 1203, subd. (e)(3).) There was no error in the trial court ordering and consulting the probation report to determine if this was an unusual case.
Defendant cites no authority precluding the sentencing court from relying on the probation report to determine whether her crimes involved separate intents. It is true that the only facts, apart from prior convictions, that a sentencing court can rely on to impose a sentence in excess of the statutory maximum are those found by the jury or admitted by the defendant. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Blakely v. Washington (2004) 542 U.S. 296, 303; Cunningham v. California (2007) 549 U.S. __ .) But defendant does not contend that a concurrent sentence exceeds the statutory maximum for the crimes of forcible assault and robbery.
It is well established that a sentencing court, particularly after a plea of guilty or no contest, may base its sentencing determinations, including the application of section 654, on the probation report. (People v. Rosenberg (1963) 212 Cal.App.2d 773, 776-777.) It is not surprising that defendant did not object at sentencing either to specific parts of the probation report or to the courts general statement that it had read and considered the probation report. Defendant establishes no error in the court doing so here.
Disposition
The judgment is affirmed. The trial court is directed to prepare a new abstract of judgment reflecting victim restitution of $ 16,257.28 and $247.55 to the State Victims Board and to forward the abstract to the Department of Corrections.
We concur:
PREMO, J.
ELIA, J.