Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF054754, John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
Following a jury trial, defendant Mario Alberto Valenzuela was convicted of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), robbery by force inside an inhabited dwelling (§§ 211, 212.5, subd. (a)), residential burglary (§ 459), assault with a deadly weapon (§ 245, subd. (a)(1)), and possession of stolen property (§ 496, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations that defendant suffered three prior serious felony strike convictions and two prior prison term commitments. He was sentenced to a total prison term of 48 years, followed by an indeterminate term of 75 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
In June 2006, Thomas Makowsky (the victim) was living in a single-family home in La Quinta. On the evening of June 17, the victim went to bed at approximately 11:00 p.m. All of the doors and windows to the house were locked, along with the garage door; however, the victim’s pickup truck was parked in the driveway. Between 2:00 and 3:00 a.m., the victim got up to get a drink of water. As he started down the hallway, he saw two men standing at the other end of the hall in the kitchen. The victim told the men to leave; however, they turned around and walked back towards him. One of the men stabbed the victim. The victim screamed, and when the man pulled out the knife, the victim fell to the floor in pain.
The victim described the man who had stabbed him as “bald, shaved head, with a moustache or goatee.” The victim did not notice any tattoos on the man. The second man had “close cropped” hair, a moustache, and perhaps a goatee or a full beard. Both of the men appeared to be Hispanic, and one of them may have been wearing a tank top. The man with the shaved head bent over the victim, threatened his life, and demanded to know where the victim kept his money. Both men searched for things in the bedrooms. The man with the shaved head found a shotgun.
During the search, the victim heard them talking about telephones, and the second man said he was taking them with him. The second man approached the victim twice, once to ask him for the combination to the lock on an attaché case, and a second time to ask how to open the garage door. Otherwise, the second man was more interested in what he could find in the house than he was in the victim. During part of the time the men were searching, a shirt was placed over the victim’s head. Before the men left, they ordered the victim to get into a closet in one of the bedrooms. After hearing the sound of a door on the vehicle being opened and closed, and then the sound of an engine, the victim waited a little longer before getting up and going to a neighbor’s house for help. The victim noticed his truck was missing. The neighbor called 911 and the victim was taken by ambulance to a hospital, where he remained for 11 or 12 days.
The stab wound in the victim’s abdomen went through the abdominal muscle and penetrated the liver and gastric artery. There were two separate wounds on the liver. The victim lost two-fifths of his blood.
A technician with the Riverside County Sheriff’s Department photographed the victim’s home. Shoe impressions in the dirt outside a window on the side of the house revealed the letter “A” and a star pattern. The technician also lifted finger and palm prints from inside the house. A certified latent fingerprint examiner ran the lifted prints through the Automated Fingerprint Identification System (AFIS) and obtained a match for defendant’s fingerprints. The print examiner also rolled defendant’s fingerprints during a break in court and visually confirmed the prints lifted inside the victim’s house belonged to defendant.
Upon being advised of the identification of defendant’s fingerprints, Investigator Bradley Farwell of the Riverside County Sheriff’s Department obtained a search warrant for defendant’s residence. When investigators arrived on the street where defendant lived, they saw him standing near a white vehicle in front of the house. The investigators were not yet ready to serve the search warrant, so they watched him leave in the car and followed. Later, they stopped the car; defendant was sitting in the front passenger seat and the driver of the car was Ramiro Garcia. Items found in the trunk of Garcia’s car included a typewriter, laptop computer in a case, headphones, and computer cables. Investigator Farwell also identified a photograph of defendant taken on the day of his arrest.
Ramiro Garcia testified that he had been approached by defendant as he was leaving the Spotlight 29 casino at approximately 2:00 p.m. on June 19, 2006. Defendant asked him for a ride. Defendant directed Garcia to a house where he said he needed to pick up a few things. Garcia waited, and when defendant returned, he put some things in the trunk of Garcia’s car. Defendant directed Garcia to another house, where defendant took something out of the trunk, went inside, cleaned up, and changed clothes. The two got back into the car, and as they were driving, they were pulled over by a sheriff’s deputy.
During the search of a room that defendant rented in a house in Coachella, pay stubs from Round Table Pizza and other papers with defendant’s name and address were found. Some clothing and a pair of U.S. Polo shoes were collected from the room. The soles of the shoes had lettering that said “U.S. Polo Association.” Reddish-brown stains were visible on the clothing and soles of the shoes. A criminalist with the California Department of Justice obtained a presumptive positive result when he tested the bottom of the shoes for blood. He then performed a DNA analysis of the blood on one of the shoes, and the DNA profile was a match to blood identified as the victim.
On June 18, 2006, a witness saw defendant holding a shotgun with a wooden stock and black barrel. At trial, the victim identified photographs of some of his stolen property, including a typewriter, laptop computer and its case, computer modems, and a headset. The victim also identified photographs of how his house looked after it had been ransacked by the robbers, and of his blood on the carpet. The victim did not recognize defendant.
II. DOUBLE JEOPARDY
After the People rested their case-in-chief, defense counsel moved to dismiss the charges on the ground there had been a break in the chain of custody of the fingerprints lifted at the scene. (§ 1118.1.) The trial court stated: “There is plenty of evidence. My concern on [section] 1118.1 is the great bodily injury allegation.” The prosecution argued there was enough evidence “to show that [defendant] was the stabber based on the general description given.” The trial court disagreed, saying, “I don’t think there is sufficient evidence to allow the great bodily injury allegation to go to the jury based on the description given by the victim, who I thought was a credible witness.... I think he is describing somebody else. I could be wrong. But I think on appeal that would be reversible. That is the test. [¶]... [¶]... And I don’t care what you argue to the jury.... [Y]ou can argue that he did the stabbing. I just don’t think there is sufficient evidence for the finding to go to the jury. So the GBI allegation is stricken.”
The jury was instructed that defendant could be guilty “in two ways, ” either as a perpetrator or as an aider and abettor. During closing argument, the prosecutor argued the jurors did not have to unanimously agree that defendant was the man with the knife or was the aider and abettor in order to find him guilty of the crimes.
On appeal, defendant contends the trial court’s finding that there was insufficient evidence to support the great bodily injury enhancement requires a reversal of all his convictions on the grounds of double jeopardy. We disagree.
Although the People argue defendant has forfeited this argument on appeal because he failed to raise it at the trial level, we choose to address it on its merits.
“‘The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.’ (Fn. omitted.) [Citations.] The Supreme Court has also applied the principles of collateral estoppel in the double jeopardy context to prevent relitigation of factual issues once decided adversely to the government. [Citation.] These holdings are consistent with the rule that an acquittal triggering the prohibition against multiple prosecutions is ‘a resolution, correct or not, of some or all of the factual elements of the offense charged’ in the defendant’s favor. [Citations.]” (Stone v. Superior Court (1982) 31 Cal.3d 503, 515.) When applying the principle in criminal cases, the United States and California Supreme Courts have emphasized that “collateral estoppel... is not to be applied with [a] hypertechnical and archaic approach... but with realism and rationality.... The inquiry ‘must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.’ [Citation.]” (Ashe v. Swenson (1970) 397 U.S. 436, 444, fn. omitted.)
Here, the fact that the trial court found the evidence to be insufficient to support the great bodily injury enhancement allegations was not the same as a determination of the ultimate fact of whether defendant committed attempted murder, robbery, burglary or assault with a deadly weapon. As our Ninth Circuit has pointed out, a jury determination on a weapons enhancement does not “necessarily mean that the jury had therefore found [defendant] guilty of murder only as an aider and abettor. First, we must bear in mind that ‘an acquittal is not a finding of any fact. An acquittal can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt.’ [Citations.] Second, California allows a jury to convict a defendant for murder without unanimous agreement as to whether he was guilty as an aider and abettor or as a direct perpetrator. [Citations.] Thus, California does not require the individual jurors to choose a particular theory of murder beyond a reasonable doubt, ‘so long as each is convinced of guilt.’ [Citation.]” (Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242, 1245-1246 (modification to concurrence at 138 F.3d 1280); People v. Thompson (2010) 49 Cal.4th 79, 119-120.)
The People note that defendant’s argument has already been rejected by our state’s highest court in People v. Santamaria (1994) 8 Cal.4th 903 (Santamaria). In that case, the defendant was charged with murder, a robbery-murder special circumstance, and the allegation that he had personally used a knife in the commission of the crime. The main witness had been charged with and convicted of being an accessory to the murder. (Id. at pp. 908-909.) The jury convicted the defendant of murder and robbery, and found true the special circumstance; however, it found not true the personal knife use allegation. (Id. at p. 909.) The convictions were reversed on appeal after the reviewing court found that an 11-day continuance during the factually-complicated trial had been prejudicial to defendant. The issue on retrial was whether the prosecution was prevented from proceeding again on the theory that the defendant was the direct perpetrator, since the first jury had found the personal knife use allegation to be untrue. (Id. at p. 909.)
Our Supreme Court held that retrial was not precluded on a direct perpetrator theory because the “not true” verdict on the personal knife use allegation was “of far less significance” than the defendant had contended. (Santamaria, supra, 8 Cal.4th at p. 919.) Recognizing that murder was the substantive offense, whereas the knife use allegation was merely a sentence-enhancing allegation attached to the substantive offense, our high court stated, “It shows only that there was a reasonable doubt in the minds of the jurors that defendant specifically used a knife. It does not show the reverse, that the jury specifically found defendant was an aider and abettor.... The jury may merely have believed, and most likely did believe, that defendant was guilty of murder as either a personal knife user or an aider and abettor but it may have been uncertain exactly which role defendant played. That, too, would fully explain, and necessitate, the split verdict.” (Ibid., fn. omitted.)
Applying our high court’s reasoning to the facts in this case, we conclude the trial court’s decision to grant the defense motion to dismiss the great bodily injury enhancement allegations had no effect on the substantive offenses. The jury did not have to decide whether defendant was guilty as an aider and abettor or as the direct perpetrator of the offenses, as long as they were unanimous in their finding that the People had proved defendant’s guilt beyond a reasonable doubt. Accordingly, neither double jeopardy nor collateral estoppel requires a reversal of any of his convictions.
III. SUFFICIENCY OF EVIDENCE
Noting the trial court’s finding that he was not the principal in the assault or murder, defendant contends the evidence was insufficient to support his convictions of attempted murder and assault with a deadly weapon, because there was insufficient evidence to show he would have known those crimes were a natural and probable consequence of the burglary. We disagree.
A. Standard of Review
Our review of any claim of insufficiency of the evidence is limited. “‘“When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.”’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard of review applies when a conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’ [Citation.]” (People v. Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears that “upon no hypothesis whatever is there sufficient substantial evidence” to support the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.) Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his convictions.
B. Analysis
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) The crime of assault with a deadly weapon requires proof of the basic crime of assault, plus proof that it was accomplished by the use of a deadly weapon or with force likely to cause great bodily injury. (§ 245, subd. (a).) Assault is a general intent crime that does not require a specific intent to injure the victim or a subjective awareness of the risk that an injury might occur. (People v. Williams (2001) 26 Cal.4th 779, 788, 790.) “Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Id. at p. 790.)
A conviction for attempted murder “requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623.) “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 739.) “Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life.” (People v. Lasko (2000) 23 Cal.4th 101, 104.) “Express malice requires a showing that the assailant ‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citations.]” (Smith, supra, 37 Cal.4th at p. 739.) “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.]” (People v. Pre (2004) 117 Cal.App.4th 413, 420; see also Smith, supra, 37 Cal.4th at p. 741.)
In the present case, when defendant and his co-perpetrator burglarized the victim’s home, it was reasonably foreseeable an assault would occur: “A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) In light of the evidence, the jury could reasonably find that defendant was an aider and abettor in the attempted murder and assault with a deadly weapon, or they were the natural and probable consequences of the burglary.
According to the record, defendant and his co-perpetrator went to the victim’s home in the middle of the night. Given the fact that the victim had parked his truck in the driveway, it was reasonable to expect someone was in the home asleep. Likewise, it was reasonable for the jury to infer that the perpetrators would be prepared to overcome any resistance they may encounter inside. They entered through a window on the side of the house, which had been closed and locked. The brick found below the window may have made it easier for the burglars to climb inside. As the People note, these facts show planning and suggest the burglars may have used a knife or a tool to open the window.
When the victim saw the perpetrators in his home, he ordered them to leave. At first it appeared they would comply with the order, but they turned around together and advanced toward the victim. One of the perpetrators stabbed him. According to the victim, he did not know who had stabbed him until he remembered that one of them said, “I didn’t cut you that bad.” Thus, both men were close enough to the victim to suggest that either one could have been the stabber. Also, there is nothing in the record that shows the other perpetrator was surprised by this action. Instead, as the victim lay on the floor, the other perpetrator walked past him and searched the home for things to take. He approached the victim two times for the purpose of obtaining the combination to the lock on the attaché case and the key to the padlock on the garage door. The victim heard the other perpetrator state that he would be taking the telephones with him.
According to this evidence, defendant willingly participated in the residential burglary. Either he was an aider and abettor in the assault with a deadly weapon and attempted murder, or they were the natural and probable consequences of the burglary. This was a question of fact for the jury to decide, and the jurors did so by finding defendant guilty. We find substantial evidence supports the jury’s finding.
IV. INSTRUCTION ON NATURAL AND PROBABLE CONSEQUENCES DOCTRINE
Defendant faults the trial court for failing to properly instruct the jury that it had to find attempted premeditated murder was a natural and probable consequence of residential burglary. He claims that “[u]nder the facts of this case, the jury could have concluded that attempted unpremeditated murder was a natural and probable consequence of the burglary and that attempted premeditated murder was not a natural and probable consequence. [Thus, ] [t]he instructions here were insufficient to advise the jury of its duty in this regard.”
In instructing on the natural and probable consequences doctrine, the court told the jury that to convict defendant of attempted murder, it must find attempted murder was a natural and probable consequence of the residential burglary. (CALCRIM No. 402m.) The court further told the jury it was alleged that the attempted murder was premeditated, and that if it found defendant guilty of attempted murder, it must determine whether that allegation was true. (CALCRIM Nos. 600, 601.)
The court did not instruct, specifically, that the jury must find premeditation was a natural and probable consequence of the target crime of residential burglary. Defendant contends such an instruction was required; however, he does not claim, and the record does not show, that he requested such an instruction. Therefore, to prevail on his claim of error, defendant must show that the principle of law stated in the unrequested instruction was “necessary for the jury’s understanding of the case.” (People v. Price (1991) 1 Cal.4th 324, 442.) For the following reasons, we conclude the jury was properly instructed.
In his reply brief, he argues “the issue is whether the trial court failed to instruct the jury on an essential element of the crime....” We disagree.
To begin with, the instructions given to the jury were a correct statement of law. Specifically, in addition to the instructions on natural and probable consequences (CALCRIM No. 402m), the jury was also given CALCRIM No. 600 [Attempted Murder] and 601 [Attempted Murder: Deliberation and Premeditation]. CALCRIM No. 601 instructed the jury: “If you find the defendant guilty of attempted murder under Count 1, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. [¶] A principal acted willfully if he intended to kill when he acted. A principal deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. A principal premeditated if he decided to kill before acting. [¶] The attempted murder was done willfully and with deliberation and premeditation if either the defendant or another principal or both of them acted with that state of mind.” Applying these instructions, the jury found defendant guilty of attempted premeditated murder.
Even if we assume it was necessary to inform the jury that premeditation had to be a natural and probable consequence of the target crime, the instructions as a whole adequately did so. “Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury. [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 677.)
In addition to instructing the jury with CALCRIM No. 601, the court instructed: “A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the attempted murder, robbery, and assault with a deadly weapon was committed for a reason independent of the common plan to commit the residential burglary, then the commission of attempted murder, robbery, and assault with a deadly weapon was not a natural and probable consequence of residential burglary.” (CALCRIM No. 402m.)
Under these instructions, to convict defendant of premeditated attempted murder, the jury had to find (1) a reasonable person would have foreseen it was likely that in the course of committing the burglary, a co-perpetrator would try to kill the victim, and (2) the co-perpetrator decided before he put a knife in the victim that he would try to kill him. It is not reasonably possible that having made those findings, the jury would have concluded attempted murder was a natural and probable consequence of the burglary, but premeditation was not. To reach such a conclusion, the jury would have to find it was foreseeable the co-perpetrator would knife the victim and continue to threaten to kill him while burglarizing his house, but not foreseeable he would consider his actions beforehand. The two findings are too inherently contradictory to have been a reasonably possible outcome. On the facts of this case, the instructions the court gave effectively required the jury to find premeditation was a natural and probable consequence of the target crime, even though they did not expressly require that finding.
Notwithstanding the above, as the People point out, this issue was addressed by the reviewing court in People v. Cummins (2005) 127 Cal.App.4th 667 (Cummins). In that case, Cummins and Kelly carjacked the victim’s vehicle, robbed him, and took him to a location where one of them pushed him off a cliff. Kelly was convicted of premeditated attempted murder under the natural and probable consequences doctrine. (Id. at pp. 667, 669, 677.) He argued the trial court erroneously “failed to inform the jury it had to find that a premeditated attempted murder had to be a natural and probable consequence of the robbery or carjacking.” (Id. at p. 680.) The court disagreed, stating: “The jury here was properly instructed on the elements of attempted premeditated murder and, based on the evidence, found the attempt on [the victim’s] life was willful, deliberate, and premeditated. Nothing more was required.” (Id. at p. 681.)
The Cummins court relied on the reasoning in People v. Lee (2003) 31 Cal.4th 613 (Lee), which held that a person “could be convicted of premeditated attempted murder, even if he did not personally act with deliberation and premeditation. The law only required that the attempted murder had to be committed by one of the perpetrators with the requisite state of mind.” (Cummins, supra, 127 Cal.App.4th at p. 680.) The Cummins court acknowledged the fact that Lee did not involve the natural and probable consequences doctrine; however, it pointed out that Lee did note, “We conclude that the Legislature reasonably could have determined that an attempted murderer who is guilty as an aider and abettor, but who did not personally act with willfulness, deliberation, and premeditation, is sufficiently blameworthy to be punished with life imprisonment.... Punishing such an attempted murderer with life imprisonment would not run counter to section 664[, subdivision] (a)’s purpose of making the punishment proportionate to the crime. Of course, where the natural-and-probable-consequences doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy. In light of such a possibility, it would not have been irrational for the Legislature to limit section 664[, subdivision] (a) only to those attempted murderers who personally acted willfully and with deliberation and premeditation. But the Legislature has declined to do so.” (Lee, supra, at pp. 624-625.)
The Cummins court saw no reason to “depart from the reasoning of the Lee court in a situation that applies the natural and probable consequences doctrine.” (Cummins, supra, 127 Cal.App.4th at p. 680.) Thus, the Cummins court concluded, “Kelly was a willing and active participant in all the steps that led to the attempt on [the victim’s] life. Although the evidence did not conclusively determine which defendant had physical contact with the victim when he was pushed, certainly Kelly’s conduct makes him no less blameworthy than Cummins. The jury here was properly instructed on the elements of attempted premeditated murder and, based on the evidence, found the attempt on [the victim’s] life was willful, deliberate, and premeditated. Nothing more was required.” (Id. at pp. 680-681; see also, People v. Curry (2007) 158 Cal.App.4th 766, 791-792.)
Rejecting the above, defendant argues the decision in People v. Hart (2009) 176 Cal.App.4th 662 is better reasoned. In Hart, the defendant was convicted of premeditated attempted murder when his codefendant shot the owner of the food and liquor store they were robbing. (Id. at pp. 666-667.) According to the instructions, the jury was told it could find the defendant guilty of attempted murder if it found that it was a natural and probable consequence of the attempted robbery. (Id. at pp. 669-670.) Defendant challenged the instructions and the reviewing court held that the instructions failed to inform the jury that in order to find the accomplice “guilty of attempted premeditated murder as a natural and probable consequence of attempted robbery, it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery.” (Id. at p. 673.)
However, Hart fails to address either Lee or Cummins. (Hart, supra, 176 Cal.App.4th at pp. 670-675.) And as observed by our state’s highest court in Lee, the Legislature has declined to make a distinction in the findings necessary for perpetrators or for aiders and abettors in section 664, subdivision (a). (Lee, supra, 31 Cal.4th at pp. 624-625.) Accordingly, we reject defendant’s challenge to the court’s instructions.
V. CONSECUTIVE SENTENCES ON RESIDENTIAL BURGLARY AND ROBBERY CONVICTIONS
Defendant contends his sentence on count 3 (residential burglary) should have been stayed pursuant to section 654 because the offenses were committed with a single intent and objective. The People argue the offenses are divisible because defendant’s “original objective was to burglarize [the victim’s] home, not effectuate a robbery.” They rely on the holdings in People v. Green (1985) 166 Cal.App.3d 514 (Green) and People v. Dugas (1966) 242 Cal.App.2d 244 (Dugas), disapproved on other grounds in Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 327, fn. 11.
Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.)
In Green, the court found that substantial evidence supported the trial court’s determination that a burglary and robbery did not constitute an indivisible course of conduct, explaining the burglars were unaware the victim was in the home when they entered, “unexpectedly c[a]me upon” the victim in the bedroom, raped her and stole her rings from her fingers. (Green, supra, 166 Cal.App.3d at p. 518.) Likewise, in Dugas the court rejected the defendant’s argument that section 654 barred punishment for both a robbery and burglary conviction where the victim came home during the course of the burglary. The court explained that the burglary had already been accomplished when the victim returned to the residence, and the defendant had no intent to commit a robbery until the victim returned and entered his residence. (Dugas, supra, 242 Cal.App.2d at pp. 250-251.)
Defendant argues this case is factually distinguishable from Green and Dugas because in both of those cases, “the burglars stole additional items directly from victims after encountering the victims during the burglary; they could not have intended to steal these items when they entered the house.” We disagree. According to the victim’s testimony, the perpetrators were in the house when he discovered them. After making his presence known, they stole money from his wallet, an attaché case, and the key to the lock on the garage door. The victim estimated it was “about an hour” from the time he initially encountered them that he went for help from his neighbor. Thus, during sentencing, the trial court found that section 654 did not apply to the burglary and robbery convictions because the burglary “was committed long before the robbery started.” Specifically, the trial court explained, “The intent was to steal. I think that everybody was surprised when the victim woke up and came out of the bedroom. Everything in this case was separate intents. He had three intents. Intent to steal, attempt to kill, and then the robbery with the force and fear over a long period of time.” We agree.
VI. CONSECUTIVE SENTENCES ON ATTEMPTED MURDER, BURGLARY AND ROBBERY CONVICTIONS
Finally, defendant asserts that under section 654, the trial court erred in imposing consecutive sentences on his convictions of burglary, robbery and attempted murder. Citing People v. Bradley (2003) 111 Cal.App.4th 765 (Bradley), defendant argues that if he was convicted of attempted murder solely on the basis that it was the natural and probable consequence of burglary, then his sentence on the burglary and robbery convictions should be stayed because he personally had only one criminal objective.
Trial courts are given broad latitude in determining whether section 654 is factually applicable to a given series of offenses. An appellate court must uphold a trial court’s decision if its findings on this question are supported by any substantial evidence. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) “We must ‘view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
In Bradley, a female defendant was convicted of robbery and attempted murder as an aider and abettor. (Bradley, supra, 111 Cal.App.4th at p. 767.) She had entered into a scheme with two men to lure a wealthy-looking individual to a location where the men could rob him. After luring the individual to such location, the defendant waited in another car while the others robbed him. (Id. at pp. 767-768.) The individual was beaten and shot during the robbery. (Id. at p. 768.) Finding that the robbery and attempted murder offenses had different objectives, the trial court sentenced the female defendant to consecutive terms. (Id. at p. 767.) On appeal, the consecutive sentences were reversed. The appellate court found that the evidence supported a finding that the female defendant had only one criminal objective—to rob the individual. The court said, “Indeed she was unaware that second crime was occurring until after it was completed and thus didn’t have an opportunity to prevent or even protest its commission. As a result, there simply was no evidence [she] exhibited the more dangerous mental state warranting a consecutive sentence under... section 654.” (Bradley, supra, 111 Cal.App.4th at pp. 771.)
Here, unlike the facts in Bradley, the evidence shows defendant not only aided and abetted the residential burglary and robbery, he acted in concert with the co-perpetrator. He was present and assisting his co-perpetrator. When the victim caught them inside the house, they both turned around and advanced towards him. The victim was stabbed, to no surprise of either perpetrator, and the victim did not know who had stabbed him until one of the perpetrators told the victim that he (the perpetrator) had not “cut [him] that bad.” As the victim lay on the floor, defendant continued to search the house for things to take. On two occasions defendant asked for the combination to the attaché case and the key to the lock on the garage door. Defendant was well aware of what he and his co-perpetrator were doing. Accordingly, the evidence suggests defendant fully supported any and all actions of his co-perpetrator and harbored different intents during the commission of the crimes. The trial court agreed and imposed consecutive sentences. Because there is evidence to support the trial court’s finding of multiple objectives, we must uphold the trial court’s decision. (People v. Latimer (1993) 5 Cal.4th 1203, 1216.)
VII. DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., CODRINGTON J.