G044797 Super. Ct. No. 08SF0717
Kevin D. Sheehy, 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, Andrew Mestman and Steve Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed as modified.
Kevin D. Sheehy, 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, Andrew Mestman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Arsenio Lamonte Collins appeals from a judgment after a jury convicted him of two counts of deliberate and premeditated attempted murder, two counts of assault with a semiautomatic firearm, and two counts of attempted robbery, and found true he personally used and discharged a firearm in committing all the offenses. The trial court sentenced Collins to two consecutive life sentences with the possibility of parole plus 20-year firearm enhancements for both counts of attempted murder. The court stayed the sentences on both counts of assault pursuant to Penal Code section 654, but it sentenced Collins to concurrent terms of two years plus consecutive 20-year firearm enhancements for both counts of attempted robbery. Collins contends the sentence on one of the robbery counts should also be stayed pursuant to section 654. In addition, Collins argues his total presentence custody credits were erroneously calculated. The Attorney General agrees with both contentions, and we conclude they are both correct. We also impose sentence for both counts of assault to correct what would otherwise be an unauthorized sentence. Accordingly, we modify the judgment.
All further statutory references are to the Penal Code.
On the morning of September 3, 2008, John Lana, owner and manager of a medical marijuana dispensary, was warned by a customer the dispensary was possibly going to be robbed. In response, Lana locked the doors, letting only customers into the store one at a time. He also had his volunteer employee, Alex Hanna, call a friend, Kevin McGoldrick, to come to the store to act as a security guard.
A few hours later, Collins and two other men knocked at the door of the dispensary. When Lana opened the door, he saw the three men standing against the wall just outside the door. Lana told the three men only one person would be allowed in at a time. Collins entered the dispensary, and Lana locked the door on the other two men. As they conducted business, Collins asked why Lana was taking the extra security precautions. Lana replied the store had received a warning of a possible robbery. At that point, Collins stood up, announced he was there to rob the store, and pulled a handgun from his waistband.
Collins pointed the gun in the general direction of Lana, as well as Hanna and McGoldrick, the only other people in the store. When Collins took his eyes off Lana for a brief moment, Lana reached for Collins's arm and pushed the gun up into the air. Collins brought the gun back down and fired close to Lana's head. Lana tackled Collins to the ground, a struggle ensued, and the gun discharged a second time. Collins attempted to fire the gun several more times, but it was jammed. Collins and Lana ended up on the ground with Lana on his back holding on to Collins, who was on top of him. Lana yelled to Hanna to get the gun away from Collins. Hanna and McGoldrick succeeded in getting the gun from Collins's hands and subdued him until the police arrived.
Police arrested Collins and took him to the police station for questioning along with two other suspects, Miles York and Michael Monroe. Police interviewed one suspect at a time while leaving the remaining two suspects together in another room equipped with covert surveillance equipment. Police recorded the men's conversations in which Collins acknowledged to York and Monroe he intended to rob the dispensary, he pulled out a gun, and he fired two shots before the gun jammed.
An information charged Collins with attempted murder of Lana and McGoldrick (§§ 664, 187), assault with a semiautomatic firearm of Lana and McGoldrick (§ 245, subd. (b)), and attempted second degree robbery of Lana and Hanna (§§ 664, 211, 212.5). The information also alleged three enhancements under sections 12022.5 and 12022.53 for the personal use and discharge of a firearm during the commission of the charged offenses (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (c)).
The information named McGoldrick as the victim of the attempted robbery in count 6, however, the prosecutor asked to amend it to interlineate Hanna as the victim rather than McGoldrick because McGoldrick was not an employee of the dispensary. The defense stipulated to the interlineation and the court amended the information.
A jury found Collins guilty of all charges and found true all the enhancement allegations. The trial court sentenced Collins to consecutive terms of life with the possibility of parole for each attempted murder count (counts 1 & 2), plus consecutive 20-year terms for the firearm enhancements. The court sentenced Collins to the middle term of two years for each attempted robbery count (counts 5 & 6), plus a consecutive firearm enhancement term of 20-years. The court ordered the sentences for counts 5 and 6 to run concurrently to each other and to the sentences for counts 1 and 2. The court stayed the sentences for both counts of assault (counts 3 & 4), pursuant to section 654. Finally, the court awarded Collins 887 days of presentence custody credits but did not award presentence conduct credits, directing the Department of Corrections to calculate them.
I. Section 654
Collins contends, and the Attorney General agrees, the trial court should have stayed the sentence for the attempted robbery of Lana (count 5) pursuant to section 654 because it was part of the same indivisible course of conduct as the attempted murder of Lana (count 1). We agree.
Section 654, subdivision (a), provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "The 'act' necessary to invoke section 654 need not be an act in the ordinary sense of a separate, identifiable, physical incident, but may instead be a 'course of conduct' or series of acts violating more than one statute and comprising an indivisible transaction punishable under more than one statute." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135; see also People v. Alford (2010) 180 Cal.App.4th 1463, 1468 (Alford).)
When a separate act of violence is committed to facilitate a robbery, the two offenses are incidental to one other, and section 654 precludes punishment for both. (See, e.g., People v. Ridley (1965) 63 Cal.2d 671 [victim shot when he attempted to knock gun from robbers hands]; People v. Flowers (1982) 132 Cal.App.3d 584 [victim assaulted while struggling with robbers].) However, "at some point the means to achieve an objective may become so extreme they can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission of the original crime." (People v. Nguyen (1988) 204 Cal.App.3d 181,191; see, e.g., In re Jesse F. (1982) 137 Cal.App.3d 164, 171 [robbers assaulted victim after "[t]he fruits of the robbery were theirs and their escape was apparently assured"]; People v. Hopkins (1975) 44 Cal.App.3d 669 [robber assaulted victim while she was tied up and could no longer resist].)
Here, after Collins brandished a weapon and announced he was robbing the store, Lana resisted, and Collins shot at him in the ensuing struggle. In contrast to the line of cases finding an act of violence so extreme as to preclude the application of section 654, when Collins shot at Lana the robbery was not complete, Collins was not in a place of safety, and the victims were not restrained. The Attorney General concedes "this was not a case in which the defendant inflicted gratuitous violence after the victim had already been subdued." We conclude the attempted murder and attempted robbery of Lana were incident to the objective of robbing the marijuana dispensary. Therefore, because Collins was sentenced for the attempted murder of Lana in count 1, the trial court should have stayed the sentence for the attempted robbery of Lana in count 5. "Where a trial court erroneously fails to stay terms subject to section 654, the appellate court must stay sentence on the lesser offenses while permitting execution of the greater offense consistent with the intent of the sentencing court. [Citation.]" (People v. Pena (1992) 7 Cal.App.4th 1294, 1312.) Accordingly, we order the abstract of judgment modified to stay the sentence for count 5 and its attendant firearm enhancement. (People v. Guilford (1984) 151 Cal.App.3d 406, 412 (Guilford).)
Although also incident to the overall objective of robbing the dispensary, the attempted robbery of Hanna (count 6) falls under the multiple-victim exception to section 654. "Under this exception, 'even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim.' [Citations.]" (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) "Robbery is violent conduct warranting separate punishment for the injury inflicted on each robbery victim." (People v. Champion (1995) 9 Cal.4th 879, 935.) Thus, because Hanna was not a victim in any other count, the sentence imposed for count 6 does not violate section 654.
In view of our agreement count 5 must be stayed, we need not address Collins's argument the abstract of judgment erroneously indicates the count was imposed to run consecutive rather than concurrent.
II. Custody Credits
The trial court, operating under the assumption it was not allowed to calculate presentence conduct credits because it sentenced Collins to an indeterminate term of life, instead directed the Department of Corrections to calculate the presentence conduct credits. Collins contends, and the Attorney General concedes, the trial court should have calculated the presentence conduct credits. We agree.
An inmate serving an indeterminate sentence is generally precluded from earning postconviction conduct credits under section 2933. (See In re Jenkins (2010) 50 Cal.4th 1167, 1179.) However, "[t]he circumstance that a defendant is sentenced to an indeterminate sentence does not preclude the earning of presentence conduct credit" under sections 2900.5 and 4019. (People v. Duff (2010) 50 Cal.4th 787, 793, italics added; see also People v. Brewer (2011) 192 Cal.App.4th 457, 464.) Further, the trial court has a nondelegable duty to determine the total number of presentence credits a defendant is authorized under section 2900.5, including the presentence conduct credits authorized by section 4019. (§ 2900.5, subd. (d); see People v. Goodloe (1995) 37 Cal.App.4th 485, 495-496; In re John H. (1992) 3 Cal.App.4th 1109, 1111.)
Accordingly, the trial court should have calculated Collins's presentence conduct credits and entered them on the abstract of judgment. Because Collins was convicted of at least one violent felony, as defined in section 667.5, his presentence conduct credits are limited to no more than 15 percent of his presentence custody credits. (§§ 2933.1, subds. (a) & (c), 667.5, subds. (c)(8), (12) & (22).) The trial court should have credited Collins with 133 presentence conduct days, which is 15 percent of his 887 days of presentence custody. (See People v. Ramos (1996) 50 Cal.App.4th 810, 815-816 [explaining how to calculate credits under section 2933.1].)
III. Counts 3 and 4
Although not raised by the parties at trial or on appeal, our review of the record reveals the trial court failed to first impose a sentence for counts 3 and 4 before staying those sentences pursuant to section 654. "[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence." (Alford, supra, 180 Cal.App.4th at p. 1466.) The trial court's failure to impose a sentence for counts 3 and 4 resulted in an unauthorized sentence that we have the inherent power to correct even though the issue was not raised at trial or on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 354; Alford, supra, 180 Cal.App.4th at p. 1472; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1124.)
We could correct the unauthorized sentence by remanding the matter to the trial court for resentencing. (Alford, supra, 180 Cal.App.4th at p. 1473; People v. Cheffen (1969) 2 Cal.App.3d 638, 641-642.) However, under certain circumstances, it is more appropriate for the reviewing court to modify an unauthorized sentence (Alford, supra, 180 Cal.App.4th at p. 1473 [choosing to modify an unauthorized sentence rather than remand for resentencing because there was no doubt how the trial court would have sentenced the defendant and because the new sentence would not change the actual prison time]; People v. Flores (1987) 193 Cal.App.3d 915, 922 [deciding to modify the sentence rather than remand because imposition of the sentence would not significantly affect defendant's total prison term].) Here, because the trial court imposed the midterm sentence for the attempted robbery, it undoubtedly would have also imposed the midterm sentence for the assault counts. (See Alford, supra, 180 Cal.App.4th at p. 1473.) Moreover, because the sentences will be imposed and then stayed, Collins's total prison term will not be altered. Accordingly, we will modify the judgment rather than remand for resentencing. For each count of assault we impose the midterm sentence of six years plus a consecutive term of four years for the personal use of a firearm. (§§ 245, subd. (b), 12022.5, subd. (a).) Pursuant to section 654, we order the sentences stayed. (Guilford, supra, 151 Cal.App.3d at pp. 410-412.)
The judgment is modified as follows: (1) The concurrent sentence and firearm enhancement imposed on count 5 is ordered stayed pursuant to section 654; (2) Collins is entitled to 887 days of actual credit and 133 days of local conduct credit for a total of 1020 days of presentence custody credits; and (3) sentence on counts 3 and 4 is imposed and stayed as described in this opinion. In all other respects, the judgment is affirmed. We direct the clerk of the superior court to prepare an amended abstract of judgment, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations.
O'LEARY, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.