Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD204647, Frank A. Brown, Judge.
McINTYRE, J.
A jury convicted Hoa Van Dinh of multiple counts of extortion, attempted extortion, making criminal threats, and burglary as well as a single count of grand theft. The charges arose from Dinh's initially successful scheme to collect protection money from the owners of a beauty school. Dinh admitted allegations that he had one "strike," which the court struck as to all counts except count 1. The court sentenced Dinh to 11 years in prison.
On appeal, Dinh argues that the court erred in admitting evidence of uncharged crimes and expert testimony about the reluctance of Vietnamese to report gang-related crime. He also asserts that he is entitled to reversal of his conviction for grand theft in count 20 because grand theft is a lesser included offense of extortion, and for making criminal threats in counts 6, 9, 12, 15 and 19 because there is insufficient evidence that he threatened to commit a crime that would result in death or great bodily injury. With respect to sentencing, Dinh contends that the court erred in failing to stay the burglary convictions in counts 4, 7, 10, 13 and 16 pursuant to Penal Code section 654, awarding restitution to victims in a separate misdemeanor action, and calculating pre-sentence credits under section 4019. (Undesignated statutory references are to the Penal Code.) We modify the judgment and vacate the sentence for grand theft in count 20, stay the sentences for Dinh's burglary convictions, strike the order for $5,350 in restitution for the victims in the separate misdemeanors cases, and reinstate the misdemeanor dismissed at sentencing in this case. We also direct the court to correct the abstract of judgment to reflect the specific sentences imposed and stayed in counts 2, 6, 9, 12, 15, and 19. We affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
De Nguyen and his wife Le Chi Theologidy operated the Linda Beauty School in Mira Mesa. As we explain below, Dinh approached Nguyen at the beauty school on at least seven occasions asking for money. At trial, the prosecution argued that Dinh was a "predator" who hustled people for money. Dinh maintained that he was a seafood salesman who asked Nguyen for money to set up booths and advertise the beauty school at the Chinese New Year's Festival. We recount the facts in the light most favorable to the judgment in favor of the prosecution. (People v. Marshall (1997) 15 Cal.4th 1, 34.)
December 8, 2006:
Dinh entered the beauty school, introduced himself to Nguyen and handed him a business card with the printed name "Jimmy Dinh Trum So." Nguyen testified that in Vietnamese, "Trum" means "the boss" of "a group of bad people" or "the gangs." He understood the term because he had worked in the juvenile justice system in Vietnam. Based on Dinh's appearance, including colored, "spikey" hair, and the way he talked, Nguyen believed Dinh was the boss of bad people.
Dinh told Nguyen that he was working with the owner of a beauty school on 54th Street to close down another beauty school that had opened in San Diego. Dinh said that everyone knew he was the boss in San Diego. If they wanted their businesses to succeed, they had to pay him. Nguyen was not surprised by Dinh's statements because he was familiar with Vietnamese gangsters collecting "monthly dues" from merchants in Orange County.
Dinh asked for money to protect Nguyen. When Nguyen said that he had no money, Dinh became aggressive and said, "if I don't get money something [will] happen, happen tonight, my boys." Dinh took off his shirt, flexed his muscles, and showed Nguyen a ring he described as a weapon he could use to "kill anybody before the police arrive[d]." He mentioned having guns at his house and the ability to summon his Cambodian and Laotian associates with "one phone call."
Nguyen and his wife were afraid and believed they had to pay Dinh. Although Dinh demanded $2,000 in cash, Nguyen wrote him a check for $1,000. Nguyen did not call police because he feared retaliation.
December 11, 2006:
Dinh returned three nights later. He asked for an additional $2,000 for protection. Dinh also mentioned advertising Nguyen's school at the Chinese New Year's Festival. Once again, Dinh took off his shirt, displayed his muscles, flashed the ring, and mentioned his guns. Dinh told Nguyen that if he did not provide the money, "something happen tonight, something will happen, his associates come." Nguyen believed that his family was in danger. He gave Dinh a check for $1,000. Nguyen told Dinh, "This is the last time, don't come back." Dinh agreed it would be the last time.
December 22, 2006:
Dinh returned asking for between $3,000 and $4,000. Nguyen negotiated down to $1,500. Nguyen testified that "every time [Dinh] comes threatening, [he talks] about he the boss of the gangs." Nguyen believed that Dinh was a gangster and was scared of him. On this occasion he told Nguyen that if he did not have the money that night, "his boys will do something, something will happen tonight."
January 8, 2007:
Dinh returned to demand $10,000, making the same threats as before. He had a man with him, but that person stayed outside. Nguyen wrote a check for $1,500. Dinh told Nguyen not to call the police, again warning that he could kill someone before the police arrived.
January 20, 2007:
Dinh returned, this time demanding $10,000. Dinh repeated his threats, stating that he forced another beauty school owner to pay him at the point of a gun. Nguyen wrote a check for $2,000, but cautioned that he needed time to put money in his account to cover it. Dinh threatened that something would happen to him "tonight" if there was no money to cover the check. Nguyen believed Dinh would follow through with guns or a knife. His wife feared retaliation and wanted to negotiate monthly dues. Nguyen told himself, "No more," and vowed to call the police.
January 22, 2007:
Nguyen called the police. Dinh returned after the detectives had left and demanded money. A Hispanic man accompanied him. Dinh brought a banner with him that read, "We Wish The People A Happy New Year." The banner included the address and phone number for the Linda Beauty School. When Nguyen continued to refuse to pay on instructions from the police, Dinh told him that the Hispanic man had a big knife.
February 6, 2007:
Not realizing that police were on the premises setting up surveillance for the next day, Dinh returned to renew his demands. As instructed, Nguyen told Dinh that he had no money, and to come back in a few days.
February 8, 2007:
When Dinh did not show up on February 7, the police "packed up and went home." They came back when Nguyen reported that Dinh was at the school early on the evening of February 8. Dinh demanded $3,000, and Nguyen told him to return when classes ended at 9:00 p.m. Dinh got "really mad." He used "bad language or different motion... motion, moving. Motion, fists, flex muscle, bad language." Police provided Nguyen with a "listening wire" for his final meeting with Dinh. When Dinh arrived, he demanded $2,000 to pay for food for the festival. Police arrested Dinh when he left the meeting.
DISCUSSION
I. Evidentiary Rulings
A. Admission of Expert Testimony
Dinh argues that his right to a fair trial was irreparably damaged by testimony from the prosecution's gang expert suggesting that Dinh was, in fact, extorting money from Nguyen. Dinh maintains that the defense theory of the case was "rendered moot" by the expert's improper testimony, and the trial court abused its discretion in denying his motion for a mistrial.
An expert witness may not express an opinion on the guilt of the defendant or whether a crime was committed. (People v. Torres (1995) 33 Cal.App.4th 37, 47; People v. Brown (1981) 116 Cal.App.3d 820, 828-829.) However, the trial court should grant a motion for mistrial on this ground "'only when "'a party's chances of receiving a fair trial have been irreparably damaged'"' [citation], that is, if it is 'apprised of prejudice that it judges incurable by admonition or instruction' [citation]. 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.] Accordingly, we review a trial court's ruling on a motion for mistrial for abuse of discretion. [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 573-574.) We conclude there was no abuse of discretion in this case.
Detective Tu Nguyen, who was Vietnamese and had worked with Asian street gangs in San Diego, testified at the close of the prosecution's case-in-chief. The prosecutor asked Detective Nguyen whether, based on his experience with the Vietnamese culture, he had noticed "some kind of trend where the victims or businesses don't want to cooperate or are afraid to cooperate."
Nguyen answered over defense counsel objection, "I guess it's a two-part answer. The first part in Vietnam, the police department is very corrupt so people do not like to come forward to the police... out of fear.... [¶] Police department[s] over here, take this case as an example, it takes a long time from the time they report to the police until actually something is being done. This case started over a year ago and here we are over a year later still at it. The immediate action is not there so, and most of the victims see themselves as out in the lights where as the suspects are in the shadows. They can always see and know where the victims are, whereas the victims will never know where the suspects come from." (Italics added.)
Defense counsel objected to the prosecution "using this case as an example where it's generalized knowledge of culture" and moved to strike. The court denied the motion, viewing the statement as expert testimony based on Detective Nguyen's training and unique experience. Outside the presence of the jury, defense counsel renewed his motion to strike stating, "If you strike that answer in response, you'll probably save the record." The prosecutor agreed that the answer needed to be stricken, and the court denied a subsequent motion for mistrial. The court gave the following admonition when trial re-convened with the jury present: "Before the break, Sergeant Nguyen was testifying there was a remark that was made and the remark started out by saying this, 'Take this case as an example.' Okay? I'm going to instruct you that anything related to that part of his testimony is to be stricken. Which means you heard it. I know you heard it. It's like unringing a bell. I can't unring the bell. I'm instructing you all to disregard that statement about 'take this case as an example.' Can you all do that and give me your assurance that will not enter into your deliberation in any way? This case is not an example of anything. It is what it is and the officer's opinions as to gang culture or Vietnamese culture, whatever those are, are his opinions based on his training and experience. This case is not an example."
Thus, the court properly agreed with defense counsel that striking Detective Nguyen's statement and admonishing the jury was an appropriate alternative to declaring a mistrial. The record does not support Dinh's argument that Detective Nguyen's statement confirmed the prosecution theory that Dinh was guilty of extorting money. Read in context, Detective Nguyen's statement simply expressed his opinion why victims of Vietnamese gangs were reluctant to report crimes against them. In any event, Dinh was not prejudiced by the detective's testimony. The court struck the challenged statement and quickly admonished the jury to disregard it. Defense counsel agreed at trial that these actions were sufficient to "probably save the record." The court also followed up by instructing the jury that it was not required to accept expert testimony as "true or correct." (CALCRIM No. 332.) Under these circumstances, the trial court did not abuse its discretion in denying Dinh's motion for mistrial.
B. Admission of Uncharged Offenses
The prosecutor moved in limine to admit evidence of Dinh's betting record and prior business dealings to show that he needed money and therefore had a motive to commit the charged crimes. Defense counsel had seen the betting record, considered it inadmissible, and wanted to see the other specific evidence the prosecution was planning to use. The court indicated it would revisit the issue at trial, but failed to do so. On appeal, Dinh contends that he is entitled to reversal because the court improperly admitted evidence of two disputed business transactions to show Dinh had a propensity to commit crimes of this type. He maintains that defense counsel preserved the issue for appeal by objecting to the evidence at the pretrial hearing. Alternatively, Dinh argues that counsel's failure to object amounts to ineffective assistance of counsel. Although Dinh forfeited his challenge to admission of the uncharged acts by failing to object at trial (Evid. Code, § 353, subd. (a); People v. Williams (2008) 43 Cal.4th 584, 620), we consider the merits of Dinh's claim in order to forestall the claim of ineffective assistance of counsel (see People v. Mattson (1990) 50 Cal.3d 826, 854).
Evidence Code section 1101, subdivision (b) authorizes admission of evidence of uncharged crimes "when relevant to prove some fact (such as motive...) other than his or her disposition to commit such an act." The admissibility of uncharged crimes depends on: "'(1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.] The main policy that may require exclusion of the evidence is the familiar one stated in Evidence Code section 352: Evidence may be excluded if its prejudicial effect substantially outweighs its probative value. Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value. [Citation.] This determination lies within the discretion of the trial court. [Citation.]" (People v. Kelly (2007) 42 Cal.4th 763, 783 (Kelly).)
To be "relevant," the evidence must show a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Although the prosecution need not prove the existence of motive to convict defendant of a crime, "[m]otive is an intermediate fact which may be probative of such ultimate issues as intent... or commission of the criminal act itself...." (People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018, citations omitted.) Where the prosecution proffers evidence of uncharged acts to show identity, intent or common design, the uncharged acts must be similar to the charged acts to be relevant. (Id. at p. 1018.) "The existence of a motive requires a nexus between the prior crime and the current one, but such linkage is not dependent on comparison and weighing of the similar and dissimilar characteristics of the past and present crimes." (Ibid., italics added.) Thus, in contrast with cases where identity, intent or common design are at issue, "'the intermediate fact of motive' may be established by evidence of 'prior dissimilar crimes.' [Citation.]" (Ibid.)
At trial, two prosecution witnesses testified about their business dealings with Dinh. In June 2005, Mai To Le-Tran's mother contracted with Dinh to install drywall at two apartments for $6,500. Dinh collected a cash deposit and cash advance totaling $4,500, did some of the work, but did not return to finish the job. When Le-Tran threatened to sue, Dinh yelled that he did not care because he had a license. Jimmy Thai testified that in May 2005, he hired Dinh to do repair work at his rental property for the agreed-upon price of $1,600. Dinh told Thai that he had a license. Thai gave Dinh $500 in cash to buy materials and Dinh promised to complete the job in four days. However, Dinh failed to start the job and ultimately told Thai that the work was too hard. Later, Thai learned that Dinh had given him a bogus contractor's license number. When Thai demanded return of the deposit, Dinh wrote a check and asked for the written contract. Thai indicated he would give Dinh the contract after he cashed the check, but Dinh grabbed the check, tore it up and left. After Thai filed a small claims action to collect the money, Dinh left intimidating telephone messages at Thai's business, which included, among other things, cussing, yelling, and sounds of a "gunshot movie" in the background.
We conclude that the evidence of Dinh's aborted attempts at construction work in late 2005 and Le-Tran's and Thai's subsequent efforts to get their money back through small claims court tended to prove that Dinh was in need of money when he approached Nguyen in December 2006. Indeed, he told Nguyen on one occasion that he needed $10,000 because he had "a problem with the court." Thus, there is sufficient nexus between the charges Dinh faced in this case and the uncharged acts of failing to complete the contracted work and operating without a contractor's license.
We also reject Dinh's claim that he was unduly prejudiced by the evidence of uncharged offenses. The testimony of Le-Tran and Thai was not inflammatory. Nor was the case as close as Dinh suggests. Thus, the court did not abuse its discretion in admitting the uncharged offenses under Evidence Code section 1101, subdivision (b). (Kelly, supra, 42 Cal.4th at pp. 783, 787.) And because the evidence was properly before the jury, there is no basis for a claim that defense counsel's performance was deficient. (See People v. Ledesma (1987) 43 Cal.3d 171, 216, citing Strickland v. Washington (1984) 466 U.S. 668, 687.)
II. Convictions for Extortion and Theft
The jury convicted Dinh of extortion in counts 1, 5, 8, 11 and 14, and grand theft in count 20 based on his actions between December 8, 2006, and February 8, 2007. The court sentenced Dinh on each of these counts, but stayed the two-year sentence imposed in count 20 pursuant to section 654. Thus, what follows is largely an academic exercise.
Dinh argues that his conviction for grand theft must be reversed rather than stayed because it is necessarily included in the offense of extortion. In his reply and supplemental briefs, Dinh argues alternatively that based on the jury's implied finding of consent as an element of extortion in counts 1, 5, 8, 11 and 14, there is insufficient evidence of lack of consent to sustain his conviction of grand theft in count 20. We agree with Dinh's first argument and need not reach the second.
Constitutional principles, statutory law and case authority support the rule that a defendant may not stand convicted of both a greater and lesser, necessarily included offense. (U.S. Const., amend. V, XIV; § 1023; People v. Pearson (1986) 42 Cal.3d 351, 355; In re Dennis B. (1976) 18 Cal.3d 687, 691.) "If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed" (People v. Moran (1970) 1 Cal.3d 755, 763 (Moran), not merely stayed (People v. Ortiz (2002) 101 Cal.App.4th 410, 415 (Ortiz)).
The California Supreme Court offers alternative tests to assist courts in determining whether a lesser offense is necessarily included in the greater. "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) Both tests are applicable in deciding whether defendant may be convicted of an uncharged, lesser included crime, but courts may consider "only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (Id. at p. 1231.) We turn to the statutory elements of extortion and theft.
The information charged Dinh with five counts of extortion in violation of section 520, which states: "Every person who extorts any money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, such as is mentioned in Section 519, shall be punished by imprisonment in the state prison for two, three or four years." Section 518 defines extortion as "the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right." (Italics added.) However, for purposes of establishing extortion, the victim's consent is "coerced and unwilling." (People v. Goodman (1958) 159 Cal.App.2d 54, 61.)
The information charged Dinh with a single violation of section 487, subdivision (a), which simply provides: "Grand theft is theft committed in any of the following cases: [¶] (a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400)...." Case law holds that theft or larceny is committed by "every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citations.] The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property. [Citation.]" (People v. Davis (1998) 19 Cal.4th 301, 305 (Davis); fns. omitted, italics added.)
The Attorney General cites People v. Serrano (1992) 11 Cal.App.4th 1672 (Serrano) and Goodman, supra, 159 Cal.App.2d 54 in support of his response that extortion and theft are not the same offense. The Attorney General is correct, but not for the reasons he suggests.
We begin with the observation that although extortion and theft are not the same offense (Serrano, supra, 11 Cal.App.4th at p. 1677; Goodman, supra, 159 Cal.App.2d at p. 61), "consent" is not the element that distinguishes them. "The victim of an extortioner might openly consent to the taking of his money 'and yet protest in his own heart' against its being taken." (People v. Goldstein (1948) 84 Cal.App.2d 581, 586.) Thus, the victim of extortion does not, in actuality, "consent" to the taking of his or her property. That element is more precisely a "coerced consent" which, in our view, is no consent at all. (See, Davis, supra, 19 Cal.4th at p. 305, fn. 3 ["When the consent is procured by fraud it is invalid" and constitutes larceny by trick and device]; People v. Hernandez (1988) 47 Cal.3d 315, 344 ["Rape involves intercourse that is nonconsensual either because consent is not given, is coerced, or is unavailing" under section 261].) "The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property." (Davis, supra, 19 Cal.4th at p. 305, fns. omitted.) Instead, it is the use of force or threat to induce consent that sets extortion apart from theft. (See Goldstein, supra, 84 Cal.App.2d at pp. 585-586.) The Legislature adopted section 518 et seq. to "denounce[e] the wrongful use of fear as a means of obtaining property from another" by means of the threats listed in section 519. (People v. Beggs (1918) 178 Cal. 79, 83.)
However, the fact that extortion and theft are separate offenses does not mean theft is not a necessarily included offense of extortion. It is well-established that theft is a lesser included offense of robbery, which includes the additional element of force or fear. (People v. Ortega (1998) 19 Cal.4th 686, 694, disapproved on a different point in People v. Reed, supra, 38 Cal.4th at p. 1228; People v. Jones (1878) 53 Cal. 58, 59.) Under similar reasoning, we conclude theft is a lesser included offense of extortion, which includes the additional element of the wrongful use of force or fear to induce consent. Accordingly, we reverse Dinh's conviction of grand theft in count 20 (Moran, supra, 1 Cal.3d at p. 763; People v. Ortiz, supra, 101 Cal.App.4th at p. 415), and need not address his argument regarding the sufficiency of the evidence.
III. Evidence of Criminal Threats
Next, Dinh contends there is insufficient evidence to support his convictions in counts 6, 9, 12 15 and 19 for making criminal threats. Specifically, he maintains that "the evidence is insubstantial to support the first element of section 422, that of willfully threaten[ing] to commit a crime that would result in death or great bodily injury." Dinh maintains that the alleged threats were vague and ambiguous. He nonetheless concedes that he faces "a substantial burden" on this issue. We agree, given the record before us.
When a criminal defendant challenges the sufficiency of the evidence of appeal, the reviewing court "must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) Applying this standard, we conclude there is substantial evidence to support the jury's verdicts.
To prove a violation of section 422, the prosecution must establish: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat -- which may be 'made verbally, in writing, or by means of an electronic communication device' -- was 'on its face and under the circumstances in which it [was] made,... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.' [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) "'While the statute does not require that the violator intend to cause death or serious bodily injury to the victim, not all serious injuries are suffered to the body. The knowing infliction of mental terror is equally deserving of moral condemnation.' [Citation.]" (People v. Solis (2001) 90 Cal.App.4th 1002, 1024, italics omitted.) An ambiguous statement may provide the basis for a violation of section 422. "'[T]he determination whether a defendant intended his... words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate, and specific that they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties' history can also be considered as one of the relevant circumstances. [Citations.]'" (People v. Butler (2000) 85 Cal.App.4th 745, 753-754.)
The factual summary details the threatening words and gestures employed by Dinh on December 11, 2006, December 22, 2006, January 8, 2007, January 20, 2007, and February 8, 2007, which form the basis for his convictions. Based on the parties' history beginning on December 8, 2006, references to guns and knives, and Dinh's repeated threat that "something" would happen if Nguyen refused to pay, the jury could reasonably infer that Dinh threatened to commit a crime that would result in death or great bodily injury to Nguyen and his family, including injury in the form of mental terror.
IV. Section 654 and the Burglary Convictions
Dinh argues that because "the burglaries and the extortions each arose from the same criminal intent with the same criminal objective," the court should have stayed the concurrent sentences imposed for burglary in counts 4, 7, 10, 13 and 16 pursuant to section 654. He maintains the evidence shows that he committed the burglaries by entering the premises of the beauty school with the intent to extort money -- a single criminal intent and objective. We agree. Accordingly, we modify the judgment to stay Dinh's sentences on the burglary counts.
It is well-established that under section 654, a course of conduct undertaken with a single intent and objective that violates more than one criminal statute may be punished only once. Although the defendant may be convicted of both violations, the court must stay punishment for one. (People v. Beamon (1973) 8 Cal.3d 625, 637, 640.) "The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent." (Id. at p. 639.) Where, as here, the defendant stands convicted of burglary and the underlying intended felony, section 654 permits punishment for one or the other but not both. (See, e.g., People v. Price (1991) 1 Cal.4th 324, 492 [burglary and murder part of single, indivisible transaction]; People v. Lee (1980) 110 Cal.App.3d 774, 784-785 [burglary incidental to rape and robbery]; and In re Maurice H. (1980) 107 Cal.App.3d 305, 312 [burglary and auto theft an indivisible transaction with one objective -- theft].) People v. Camodeca (1959) 52 Cal.2d 142, the case cited by the Attorney General in support of his argument that burglary and extortion were both punishable as separate acts, did not involve burglary and therefore does not apply in these circumstances.
In this case, the prosecution's closing argument demonstrates that it, too, considered the burglaries incidental to the underlying felonies, including extortion. The prosecutor told the jury that "Mr. Dinh is charged with five counts of burglary for each of the five times he walked into the beauty school with the intent to commit a felony. So everything the burglar did is a good start. [Burglary is] the first crime that happens when he walks into that door of the beauty school with the intent to commit a crime. And this one is fairly simple. It requires that the defendant entered in the building. And when he does so he's got in mind to commit a felony. And in this case it could be the grand theft, it could be the extortion, it could be the criminal threat. It happens once he gets inside.... He went in the beauty school and walked out with cash, walked out with checks and money." Thus, the court erred when it failed to stay the concurrent sentences imposed for the burglary counts under section 654.
V. Victim Restitution
At the end of the sentencing hearing, the court attempted to resolve two open misdemeanor cases in which Dinh was charged with unlicensed contracting with Le-Tran and Thai, who testified at trial on the felonies. It ultimately ordered Dinh to pay $5,350 in restitution to Le-Tran and Thai as part of the judgment in this separate felony case. Dinh contends the court erred in awarding restitution to victims of crimes for which Dinh was not convicted. We agree.
We begin by rejecting the prosecution's claim that Dinh forfeited this argument by failing to object to restitution below. As we shall explain, the record makes clear that during the sentencing hearing, Dinh denied wrongdoing in the misdemeanor cases and wanted to go to trial.
There are at least two reasons for our conclusion that the court erred in requiring Dinh to pay restitution to Le-Tran and Thai. To the extent the disposition can be viewed as a negotiated resolution of the misdemeanor actions, the court failed to obtain Dinh's assent on the record, personally or through counsel. (See Mills v. Municipal Court (1973) 10 Cal.3d 288, 306; § 1429 [plea to a misdemeanor may be entered by defendant or defendant's counsel].) The court's action imposing restitution on the victims of a separate action is also barred by the language of section 1202.4 which limits the scope of victim restitution to losses caused by the criminal conduct for which the defendant sustained the conviction, where that conviction results in a prison sentence. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1247-1249; People v. Percelle (2005) 126 Cal.App.4th 164, 180-181.)
The attorney who represented Dinh on the misdemeanors stated that his client would not agree to pay restitution to Le-Tran and Thai, and wanted to go to trial. The prosecutor did not want the court to dismiss the misdemeanors unless Dinh agreed to pay her witnesses. She turned to defense counsel and said, "Come on, Joe, you are creative." The court stated, "I'm willing to try whatever. But it would be nice if he'd just admit that he's willing to [sic] a resolution of those misdemeanors, pay back the $5,350. Period." Counsel on the misdemeanors asked to speak with his client, then the following exchange took place:
"THE COURT: So Mr. Dinh, you want to assume the fact that you are liable to these two individuals [whose] names are
"Thank you Ms. [Harvey][deputy district attorney].
"MR. McNAMERA [deputy city attorney]: We have two victims, Jimmy Thai, T-H-A-I for $850.
"THE COURT: I'll order that as a restitution amount. [¶] And $4,500.
"MS. HARVEY: To Mai, M-A-I, Le, L-E, Tran, T-R-A-N. That's acceptable to you, Mr. Dinh. You accepted that restitution amount owed, yes?
"MR. McNAMERA: Okay.
"THE COURT: Okay. Fine. So ordered. I'll dismiss the charge on the People's motion.
"MR. McNAMERA: Yes, your Honor."
It may be that Dinh nodded his assent at some point during this discussion. However, that fact is irrelevant because the record does not show that he or his counsel on the misdemeanor cases verbally agreed to the disposition. Clearly, the deputy city attorney and the deputy district attorney were not authorized to speak for Dinh. We therefore strike the $5,350 in restitution and reinstate the misdemeanor actions that the court dismissed as part of the purported agreement.
VI. Pre-Sentence Credits
Dinh withdraws his claim that the court erred in calculating his presentence credits, noting that the trial court corrected the abstract of judgment.
VII. Additional Corrections To the Abstract of Judgment
The minute order and the abstract included in the clerk's transcript omit the specific, concurrent sentences imposed, then stayed, in counts 2, 6, 9, 12, 15 and 19. The reporter's transcript shows that the court imposed the following concurrent middle terms: count 2 - three years; count 6 - two years; count 9 - two years; count 12 - 2 years; count 15 - two years; count 19 - two years. The record does not include the corrected abstract of judgment referenced by Dinh in his reply brief. In the event the corrected abstract does not include the addition of the specific sentences imposed by the court, we direct the trial court to make the corrections.
DISPOSITION
The judgment in count 20 is reversed and the sentence vacated; the sentences imposed for burglary in counts 4, 7, 10, 13 and 16 are stayed pursuant to section 654; the order for victim restitution to Le-Tran and Thai in the amount of $5,350 is stricken; and the two misdemeanor cases are reinstated. The court is directed to correct the abstract of judgment to reflect the specific sentences imposed and stayed in counts 2, 6, 9, 12, 15 and 19, and, along with the modifications already set forth, send a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.