Opinion
D071426
07-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN J. DIDONATO, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN345878) APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed in part and reversed in part with directions. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Facing a maximum sentence of 66 years to life, Justin J. Didonato pleaded guilty to first degree residential burglary (count 1; Pen. Code, §§ 459/460) and robbery (count 2; § 211) after the trial court stated an indicated maximum sentence of 30 years. The court sentenced Didonato to 26 years in state prison. Didonato appeals, contending the court violated the prohibition against multiple punishments for the same act (§ 654, subd. (a)) by imposing unstayed sentences for both the burglary and robbery counts. We agree and remand the case for resentencing, but otherwise affirm the judgment.
All further statutory references are to the Penal Code. Didonato also pleaded guilty to one prison prior (§§ 667.5, subd. (b), 668), one violent felony prior (§ 667.5, subd. (a)), three serious felony priors (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and three "strike" priors (§§ 667, subds. (b)-(i), 667, 1170.12).
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report. Didonato submitted on the facts of the probation report in his supplemental sentencing memorandum.
In May 2015, Didonato entered an Escondido residence through the window of the master bedroom. He picked up a silver wedding band, a Nixon watch, and a wallet, and was walking toward the front door when Jake H., a resident of the house who had been asleep in a bedroom, heard Didonato and ran toward him tackling him just outside the doorway. Didonato dropped the wallet and was able to break free. He punched Jake on the side of the head and ran away.
We decline to use the full name of Didonato's victim in order to protect his privacy. (Cal. Rules of Court, rule 8.90(b).) Our use of the victim's first name is in no way intended as a sign of disrespect.
In May 2016, Didonato entered a plea after the trial court notified him of an indicated sentence of 30 years maximum. He had not reached a plea agreement with the prosecutor. Didonato's change of plea form indicated his intent to "[p]lea to sheet" and listed as an inducement: "Judge indicates 30 years lid." Didonato also initialed the following provision on his change of plea form: "I give up my right to appeal . . . any sentence stipulated herein."
At the plea hearing, the trial court opined "application of the California Rules of Court in this matter would support the Court's position that a plea to the face of the Information should carry with it a term of no more than 30 years." The court explained Didonato faced "the possibility in this matter of 66 years to life, absent the Court's observations regarding the application of California Rules of Court." The court stated, "You understand that means that at the time of sentencing, the Court may well impose a 30-year term; and in fact, you know [the prosecutor] will ask for at least a 30-year term." The court further explained, "The question [remaining at sentencing] is not whether state prison will ensue but rather how much time will be imposed by the Court." Didonato indicated his understanding of various terms of the plea and entered his guilty plea on the record. The People did not object to the plea and the trial court set the case for sentencing.
Didonato submitted a supplemental sentencing memorandum in which he acknowledged he could be sentenced to life in prison, but argued for a lighter sentence and characterized the potential "middle ground" 30-year sentence "as a likely sentencing range" indicated by the court. Didonato also argued the events underlying the two counts constituted a single course of conduct necessitating application of section 654. In opposition, the People contended section 654 did not apply because the burglary was completed as soon as Didonato entered the residence, but the robbery did not occur until he was attempting to escape and "the force used to prevent the victim from reclaiming his property was used after [Didonato] was outside of the house." The People thus characterized "the acts constituting the burglary and robbery" as "separate and distinct" for the purposes of section 654.
At the sentencing hearing, the People urged the court to impose the upper term on count 1 and impose a consecutive sentence on count 2 "if the court is going to follow its indicated [sentence]." Didonato's counsel urged the trial court to apply section 654 to his sentence because the two counts constituted "one course of conduct, one event." In rendering its sentencing decision, the trial court indicated it would take into account that although Didonato "attempted to exercise a level of violence on the victim to escape," the violence "came as a result of . . . the victim attempting to accost the defendant he found at his home," and Didonato "didn't initiate that." In addition, the court observed if Didonato had "attacked the victim affirmatively" he "might well be facing a life term." The trial court concluded that because the "residential burglary was committed once entry was made" and the other offense occurred "subsequent to that," the two offenses were "separate" and "independent crimes" and section 654 did not apply.
The court sentenced Didonato to a total prison term of 26 years. The sentence included the middle term of four years for the burglary count, doubled to eight years due to the prior strike; a consecutive one-third the middle term, doubled to two years, for the robbery count; a consecutive term of one year for the prison prior (§ 667.5, subd. (b)); and additional consecutive terms of five years for each of Didonato's three serious felony priors.
On December 5, 2016, Didonato filed a notice of appeal. Didonato did not obtain a certificate of probable cause under section 1237.5, contending in his notice of appeal that the "appeal is based on the sentence or other matters that occurred after the plea and do not affect its validity."
DISCUSSION
Didonato maintains his sentence on the robbery count should have been stayed under section 654 because the robbery was committed with the same intent and objective as the burglary. The People contend we need not address Didonato's argument because (1) he did not secure a certificate of probable cause before filing his appeal; (2) he forfeited his right to raise the section 654 issue by not raising it when he entered his plea; and (3) he expressly waived his right to appeal his sentence on the plea form. The People further contend section 654 does not apply because substantial evidence supports the trial court's finding of Didonato's separate intent and objective in committing each of the two crimes. We conclude the trial court erred in not staying the sentence on one of the two counts.
A. The People's Preliminary Arguments
Under section 1237.5, absent a certificate of probable cause, Didonato's appeal is only cognizable if it is not "in substance a challenge to the validity of the plea." (People v. Buttram (2003) 30 Cal.4th 773, 782.) An appeal fits within this exception when the plea agreement leaves issues open for resolution by litigation and "appellate claims arising within the scope of that litigation do not attack the validity of the plea . . . . (Id. at p. 783.) The exception applies to appellate "issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (Id. at p. 780.)
Section 1237.5 provides as follows: "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty" unless "[t]he trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." (Id. at subd. (b).)
In People v. Shelton (2006) 37 Cal.4th 759 (Shelton), the California Supreme Court addressed the requirement for a certificate of probable cause in the context of a section 654 sentence challenge when the defendant had agreed to a plea bargain that included a negotiated maximum sentence. The court held the defendant's failure to secure a certificate of probable cause barred his attempt to appeal because his appeal challenged an integral aspect of the negotiated plea agreement. (Shelton, at pp. 766-769.) In making its ruling, the court applied "general contract principles" to interpret "the language of the plea agreement concerning sentencing" (id. at p. 767), and noted "the specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose, and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term." (Id. at p. 768.) The court therefore construed the section 654 challenge as "a challenge to the plea's validity," requiring a certificate of probable cause. (Id. at p. 769.)
The People maintain Shelton's holding requires dismissal of Didonato's appeal because he similarly "agreed to a lid sentence as part of his plea agreement," but did not obtain a certificate of probable cause. However, in this case Didonato did not enter a negotiated plea. Instead, he entered a "[p]lea to sheet," which represents a plea made "in the hope that the court will show leniency," rather than "for a consideration which would support a contract." (People v. Marsh (1984) 36 Cal.3d 134, 140.) The only inducement for Didonato's plea was an indicated sentence described as "Judge indicates 30 years lid," on the change of plea form.
As explained in People v. Clancey (2013) 56 Cal.4th 562, 575, an indicated sentence represents "the same punishment the court would be prepared to impose if the defendant were convicted at trial," rather than "an attempt to induce a plea by offering the defendant a more lenient sentence than what could be obtained through plea negotiations with the prosecuting authority," and when properly indicating a sentence, the trial court makes "no promise that the sentence will be imposed." Didonato acknowledged this in his supplemental sentencing memorandum in arguing for a lower sentence while recognizing the trial court's ability to sentence him to life in prison. Likewise, at the sentencing hearing the People urged the trial court to adopt a particular sentence configuration "if the court is going to follow its indicated [sentence]." Accordingly, there was no "contract" or "mutual understanding" between the parties as to the maximum sentence term and the trial court's authority to sentence defendant to the specified term, as there was in Shelton. Thus, Didonato's section 654 challenge to his sentence is not in substance a challenge to the validity of his plea, and he does not need a certificate of probable cause to raise it on appeal.
The People further contend Didonato forfeited his section 654 challenge by not raising the issue when he accepted the plea bargain. Like their previous argument, this argument assumes Didonato's sentence was a negotiated sentence provided for in a plea bargain. (See, e.g., People v. Jones (2013) 217 Cal.App.4th 735, 746 ["when a maximum term is specified in a plea agreement, the defendant is estopped from arguing on appeal that the sentence violates section 654, 'unless that claim is asserted at the time the agreement is recited on the record' "], quoting Cal. Rules of Court, rule 4.412(b); People v. Hester (2000) 22 Cal.4th 290, 295 [plea bargain providing for specified sentence forfeits claim of unauthorized sentence]; People v. Cole (2001) 88 Cal.App.4th 850, 872-873 [defendant forfeited his section 654 challenge when he agreed to a specified maximum prison term of concurrent sentencing, with the concurrence of the prosecutor.].) As discussed above, in Didonato's case there was no negotiated plea bargain. Moreover, the parties did not view Didonato's plea as foreclosing litigation on the issue of the section 654 bar, as both parties addressed the issue in their sentencing briefing and Didonato's counsel also raised the issue at the sentencing hearing. (Compare Cole, at pp. 858, 873 [defendant raised no argument in the trial court regarding the section 654 bar at the plea hearing or during sentencing]; Hester, at p. 296 [same].)
In addition, the People contend Didonato expressly waived his right to challenge the sentence when entering his plea, citing People v. Panizzon (1996) 13 Cal.4th 68, 81, 85-86, in which the defendant waived his sentence challenge when he entered into a negotiated plea agreement for a specific term and his plea contained a provision waiving the right to appeal from the sentence he received. Didonato's change of plea form contains an initialed provision indicating he waived his "right to appeal . . . any sentence stipulated herein." However, as explained above, Didonato's plea did not involve any "stipulated" or agreed upon sentence; it involved the trial court's advisement of an indicated sentence. Thus, the waiver provision is not applicable to his sentence and does not bar his section 654 challenge.
B. Section 654
Section 654 prohibits separate punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of criminal conduct. (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.' " (Id. at p. 507.)
Courts have repeatedly found section 654 to bar separate punishment when a defendant commits robbery after being confronted during a burglary. (See, e.g., People v. Perry (2007) 154 Cal.App.4th 1521, 1526-1527 (Perry) [no multiple punishment when victim interrupted defendant in midst of stealing stereo from victim's car and defendant pointed screwdriver or ice pick at victim in effort to get away]; People v. Le (2006) 136 Cal.App.4th 925, 931 (Le) [§ 654 barred multiple punishment for defendant's burglary of a drugstore and subsequent robbery of the store manager, which occurred when he struggled with the manager in the parking lot in an attempt to escape with the stolen merchandise]; People v. Alvarado (2001) 87 Cal.App.4th 178, 198 (Alvarado) [a defendant convicted of burglary, robbery and rape could not be sentenced for both robbery and burglary, because the "robbery sentence punished defendant's intent to steal and precluded separate punishment for the burglary conviction itself because both shared the same intent"]; People v. Guzman (1996) 45 Cal.App.4th 1023, 1028 (Guzman) [burglar had not "won [his] way to a place of temporary safety after the burglary" when he beat up the victim who attempted to thwart his escape on a stolen motorcycle and could not be sentenced for both burglary and robbery].) As explained in Perry, while a determination under section 654 depends on the specific facts of a case, "if property is taken during a burglary and a robbery pertaining to the same property is committed during the escape, the objective is still essentially to steal the property." (Perry, at p. 1526.) The court acknowledged there generally will also be "an additional objective of preventing the victim or another person from taking back the property," but noted such objective "may be incidental to, rather than independent of, the objective of stealing the property." (Id. at pp. 1526-1527.)
In contrast, an independent objective may be shown when a defendant uses force or violence to such an extent it evidences " 'a different and a more sinister goal than mere successful commission of the original crime.' " (Perry, supra, 154 Cal.App.4th at p. 1527, quoting Nguyen, supra, 204 Cal.App.3d at p. 191.) Further, in Perry, the appellate court concluded the "trial court erred by focusing on the completion of the burglary," because "[t]he moment at which a defendant committed all of the elements of an offense is immaterial in applying . . . section 654." (Perry, at p. 1527; see People v. McFarland (1962) 58 Cal.2d 748, 762 (McFarland) [completion of burglary prior to commission of theft of hospital equipment did not change the only reasonable conclusion that both crimes were part of a continuous course of conduct and were motivated by a single objective]; People v. Helms (1966) 242 Cal.App.2d 476, 487 (Helms) [completion of burglary prior to the robbery and assault which occurred when the homeowner returned to his residence while defendant was still inside was immaterial to the multiple punishment analysis]; but see People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299 [court considered whether attempted robbery was complete before the defendant shot a cashier who refused to relinquish cash from the register, when the defendant thereafter left without taking the cash].)
For example, a robber's shooting of a store clerk after he had been relieved of his valuables and was prone on the floor "constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not 'incidental' to robbery for purposes of . . . section 654." (People v. Nguyen (1988) 204 Cal.App.3d 181, 190 (Nguyen).)
On appeal, we review the trial court's factual determinations regarding the defendant's intent and objective under the substantial evidence test. (Perry, supra, 154 Cal.App.4th at p. 1525.) "We review de novo the legal question of whether section 654 applies." (People v. Valli (2010) 187 Cal.App.4th 786, 794; see Guzman, supra, 45 Cal.App.4th at p. 1028 ["[w]hether the facts and circumstances reveal a single intent and objective within the meaning of . . . section 654 is generally a factual matter; the dimension and meaning of section 654 is a legal question"].)
Here, there is insufficient evidence to establish Didonato's independent objectives in carrying out the robbery and burglary. In making its decision, the trial court determined Didonato used force during the robbery in an attempt "to escape," following the victim's attempt to detain him, and characterized the use of force as something Didonato "didn't initiate," and as distinguishable from an affirmative attack. Thus, this is not a case such as Nguyen in which the evidence indicated the defendant had a different goal in using force beyond the "mere successful commission of the original crime." (Nguyen, supra, 204 Cal.App.3d at p. 191.) There is nothing to distinguish Didonato's case from other California cases in which a burglar was interrupted prior to successful escape and used force in order to leave with the stolen property, and courts applied the section 654 bar to multiple punishment. (See, e.g., Perry, supra, 154 Cal.App.4th at pp. 1526-1527; Le, supra, 136 Cal.App.4th at p. 931, Guzman, supra, 45 Cal.App.4th at p. 1028.) Here, as in those cases, Didonato's objective in carrying out the robbery was incidental to his objective in committing burglary—to steal property. Moreover, the trial court's decision not to apply section 654 appears to have been based primarily (or exclusively) on its determination that the robbery occurred after all elements of the burglary had been committed, and such determination is not generally material to the issue of whether a defendant held an independent objective when committing a subsequent crime. (See, e.g., Perry, at p. 1527; McFarland, supra, 58 Cal.2d at p. 762; Helms, supra, 242 Cal.App.2d at p. 487.) Accordingly, as in Perry, we conclude the "trial court erred by focusing on the completion of the burglary," and because there was insufficient evidence to support the trial court's implied finding that Didonato harbored independent objectives in committing the two offenses, the sentence on one of the counts must be stayed. (Perry, at p. 1527.)
Regarding the proper remedy for the error, the goal of section 654 is to ensure punishment commensurate with a defendant's culpability. (People v. Meeks (2004) 123 Cal.App.4th 695, 705-706.) Because our decision requiring the correction of the sentencing error will serve to reduce the total sentence, we will remand for resentencing to afford the trial court the opportunity to exercise its discretion to determine an appropriate sentence. (See People v. Edwards (2011) 195 Cal.App.4th 1051, 1060.)
DISPOSITION
The judgment is reversed as to the sentence only and is otherwise affirmed. The case is remanded to the trial court for resentencing in accordance with the views expressed in this opinion. The court is directed to prepare an amended abstract of judgment reflecting the revised sentence and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
McCONNELL, P. J. WE CONCUR: BENKE, J. O'ROURKE, J.