People v. Jenkins CA4/2

Filed 4/14/15 P. v. Jenkins CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E060810

v. (Super.Ct.No. FWV1303862)

JEFFREY BLAKE JENKINS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,

Judge. Affirmed with directions.

Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and

Respondent.

A jury convicted defendant and appellant Jeffrey Blake Jenkins of first degree

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burglary with a person present (count 1; Pen. Code, § 459)1, assault with a deadly

weapon on victim number one (Ramon) (count 2; § 245, subd. (a)(1)), and assault with a

deadly weapon on victim number two (R.D.) (count 3; § 245, subd. (a)(1)). Defendant

admitted a prior strike conviction (§§ 170.12, subds. (a)-(d), 667, subds. (b)-(i)). The

court sentenced defendant to an aggregate, determinate term of 16 years’ incarceration

consisting of the following: (1) the aggravated term of six years, doubled pursuant to the

prior strike conviction, on count 1; (2) one-third the midterm of three years, one year,

doubled pursuant to prior strike conviction, two years, consecutive on count 2; and (3)

one-third the midterm of three years, one year, doubled pursuant to prior strike

conviction, two years, consecutive on count 3.

On appeal, defendant contends the trial court abused its discretion in imposing the

aggravated term on count 1 and consecutive terms on counts 2 and 3. Defendant argues

defense counsel below provided constitutionally ineffective assistance of counsel (IAC)

to the extent he failed to raise any issues at sentencing and, thereby, forfeited the issues,

and by failing to argue certain mitigating factors to the court. Defendant additionally

claims the court erred, pursuant to section 654, in imposing, without staying, sentence on

count 2. Finally, defendant maintains the abstract of judgment must be corrected. The

People agree with defendant’s latter contention. We shall direct the superior court to stay

imposition of the sentence on count 2 and correct the abstract of judgment. In all other

respects, the judgment is affirmed.

1 All further statutory references are to the Penal Code unless otherwise indicated.

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 FACTUAL HISTORY

Ramon testified that on November 19, 2013, he was at his home watching

television alone in the living room. Four of his children were also home. Ramon’s nine-

year-old daughter (E.D.) came running into the house from the backyard screaming that a

man was calling for Ramon. E.D. appeared scared; she ran into her room. Defendant

walked quickly into the house behind E.D. Defendant tried to stab Ramon with two, six-

to seven-inch-long knives defendant held, one in each hand.

Ramon stood and called for his oldest son (Rene). Rene came into the room and

kicked defendant. Ramon picked up a coffee table with which to defend himself.

Defendant hit Ramon on the right side of Ramon’s head with defendant’s hand.

Ramon’s youngest son (R.D.) came into the room. Ramon threw the coffee table

at defendant. Defendant left the home through the backyard. Ramon went to the hospital

with R.D.

Rene testified he was in his room when he heard a man screaming. He opened the

door and saw “[defendant] hitting my dad while he was sitting on the couch.” Defendant

had a knife in each hand. Defendant hit Ramon three times. Rene screamed at

defendant; defendant stopped hitting Ramon and started “saying some crazy things like

that my dad has dead bodies in the house and that he killed somebody.” Defendant exited

the house into the back yard. Rene followed him, and defendant turned and was walking

backwards facing Rene. As defendant reached his side of the house, he said, “‘I’ll be

back.’”

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 R.D., who was 13 years old at the time of the incident, testified he was in Ramon’s

room when he heard Ramon call for Rene. R.D. came out of the room to see defendant

attacking Ramon. Defendant was cursing at Ramon and swinging what appeared to be

two black handles in his hands. Defendant was wearing red shorts.

Defendant’s hand came back and hit R.D. in the stomach where he “felt a pinch”

and got cut. R.D. went back into Ramon’s bedroom to call the police. He then “felt . . .

something dripping on my stomach. And I pulled up my shirt and I saw . . . blood.” R.D.

told police defendant stabbed him. He went to the hospital in an ambulance where he

received one stitch. R.D. still had a scar from the wound.

Ramon’s daughter, L.D., who was around 17 years old at the time of the incident,

testified she was in her room when she heard a door slam and E.D. crying. L.D. asked

E.D. what was wrong; E.D. said “‘My dad’” five times. L.D. went out of the room to see

what had happened. She saw defendant with knives in his hands yelling and cursing at

Ramon. Defendant swung at Ramon with the knives in his hands.

Ramon pushed the table to use “as a shield to protect himself.” Defendant left

saying he would be back. R.D. came out and told L.D. he had been stabbed; he showed

her his bleeding stomach.

Defendant’s sister, Jearolyn, testified she was home, next door to the victims’

house, on the day of the incident. Defendant had been singing and talking to himself in

his room. At some point, it appeared defendant had left the home. Defendant came

running back into the house through the kitchen, upset and mad, with his fists up and

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clenched. Defendant said “‘I’m tired of this SOB molesting me.’” Defendant went to his

bedroom, took off his shorts, and put them in the laundry basket.

The responding officer testified he saw R.D. inside an ambulance with a very

small, diamond shaped puncture wound to his right midsection, which was bleeding. He

conducted an infield showup of defendant with both Rene and R.D. R.D. was scared,

nervous, overwhelmed, confused, perplexed, and a little shy. He was unable to positively

identify defendant as the perpetrator mentioning “that he did not have red shorts on, so he

wasn’t certain.” Rene was immediately able to positively identify defendant as the

perpetrator.

Another officer who responded to the location interviewed Jearolyn. Jearolyn told

him defendant ran back into their home, quickly removed his red shorts, and shoved them

to the bottom of the laundry hamper. The officer recovered the shorts.

A West Valley Detention Center Facilities Coordinator and Custodian of Records

testified that a phone call between defendant and another individual had been recorded

while defendant was incarcerated. The People played the phone call for the jury. During

the phone call, defendant stated, “That fool lied up in court—man big time, we caught—

we caught him in tons of lies, man didn’t get stabbed or anything. I just punched that

dude one time. [¶] . . . [¶] He don’t know—what happened is he grabbed the table and

tried to swing it at me and then the nail scratched him on the side and um he tried to say

that I had a knife.”

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 DISCUSSION

A. Imposition of the Upper Term on Count 1 and Consecutive Terms on

Counts 2 and 3.

Defendant contends the court erred in imposing the aggravated term on count 1

and consecutive terms on counts 2 and 3 by relying on factors already constituting

elements of the offense, by relying on vague and legally insufficient reasons, by failing to

consider mitigating factors, by misweighing the aggravating and mitigating factors, and

by failing to articulate a legally sufficient basis for doing so. Defendant also maintains

defense counsel provided constitutionally IAC by failing to raise any sentencing issues

below, which might result in forfeiture of the issues on appeal, and in neglecting to argue

certain purported mitigating factors. We disagree.

1. Forfeiture

The People contend defendant forfeited the sentencing issues he raises by failing

to object below. We agree.

After defendant admitted the prior strike conviction allegation, the court continued

the matter for preparation of a probation officer’s report. The probation officer’s report,

filed on February 28, 2014, reflects defendant’s criminal history. Among other

misdemeanors and infractions, defendant had incurred convictions for felony assault with

a deadly weapon in 1987, a felony drug offense in 1990 for which he was sentenced to

prison, felony battery in 1993 for which he was sentenced to prison, and felony robbery

in 2004 for which he was also sentenced to prison. Defendant had incurred one violation

of parole.

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 The probation officer noted she had “learned from . . . defendant’s sister that he

might have possessed controlled substances in the past and has mental health problems.”

“[D]efendant’s mother also confirmed he has mental health issues and suffers from

paranoid schizophrenia. She added the defendant was shot in the head about four months

ago and has four bullets lodged in his skull. He is also a heavy drug user and [she] felt

that he was possibly under the influence of drugs.” In the search of defendant’s room,

officers had found less than a gram of methamphetamine and a pipe. One officer opined

“defendant had some sort of delusional idea the victims[] had sexually molested him at

some point.”

When interviewed by the probation officer, defendant stated he caught a neighbor

who had stolen $200 from him and chased her to the victims’ home. He knocked on the

door. A male came out with whom defendant had a confrontation. Defendant had no

weapon. The whole family came out and started to chase defendant and throw things at

him. Defendant said “he was never in possession of a weapon during this incident.”

However, “defendant added the person he struck sustained ‘one little’ stitch.” Defendant

“denied a history of mental health problems.”

The probation officer noted as aggravating factors that the “crime involved great

violence, great bodily harm, and/or other acts disclosing a high degree of cruelty,

viciousness[,] and callousness;” “[t]he defendant was armed with or used a weapon at the

time of the offense;” “[t]he victims were particularly vulnerable;” “[t]he manner in which

the crime was carried out indicates planning, sophistication[,] or professionalism[;]”

“[t]he defendant has engaged in violent conduct that indicates a serious danger to

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society;” “[t]he defendant’s prior convictions as an adult are numerous and of increasing

seriousness;” “[t]he defendant has served prior prison terms;” and “[t]he defendant’s

prior performance on parole was unsatisfactory.” The probation officer found no factors

in mitigation.

With respect to factors affecting imposition of consecutive or concurrent

sentences, the probation officer noted “[t]he crimes and their objectives were

predominantly independent of each other”; “[t]he crimes did involve separate acts of

violence or threats of violence”; and “[t]he defendant has not expressed remorse for his

criminal actions, denied he stabbed [R.D.] and insisted he was not in possession of a

weapon during the commission of this offense.” The probation officer recommended

imposition of the upper term on count 1 and consecutive terms on counts 2 and 3 for a

determinate term of 16 years’ incarceration.

On March 14, 2014, the date of sentencing, the court asked if respective counsel

had copies of the probation report. Defense counsel responded he did. The court asked if

either side had any comments. Defense counsel responded that he did. Defense counsel

then argued to the court that it “not follow probation’s recommendation, and probation’s

recommendation is 16 years. They are recommending the aggravated time. [¶] We are

going to ask the Court to consider the mitigated or midterm.” Defense counsel argued

there were mitigating factors. The People argued for the aggravated term based on

defendant’s prior criminal history, increasing criminal history, and crimes involving

violence. The court asked for further comments. Defense counsel responded, “No, I’ll

submit it on my previous arguments, your Honor.”

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 Before imposing sentence, the court observed, “I would like to state for the record,

the Court . . . carefully listened to the trial. And the most disturbing part about this, in the

Court’s mind, is that the home is where someone should feel safe. There were children

involved in this. And a young person, I believe he was 13 years old, was unnecessarily

injured. [¶] The Court feels that there was more going on. This simply didn’t make

sense to the Court. But all the Court has before it is what happened. And what happened

was inexcusable. Because once you enter somebody’s private home with a weapon, that

escalates things to an intolerable degree. And in combination with [defendant’s] history,

the Court has no problem whatsoever imposing the aggravated [term] just because the

circumstances were so egregious, and in the Court’s mind, completely unnecessary.”

The forfeiture doctrine applies “to claims involving the trial court’s failure to

properly make or articulate its discretionary sentencing choices. Included in this category

are cases in which the stated reasons allegedly do not apply to the particular case, and

cases in which the court purportedly erred because it double-counted a particular

sentencing factor, misweighed the various factors, or failed to state any reasons or give a

sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353, italics

added.) “Of course, there must be a meaningful opportunity to object to the kinds of

claims otherwise deemed [forfeited]. This opportunity can occur only if, during the

course of the sentencing hearing itself and before objections are made, the parties are

clearly apprised of the sentence the court intends to impose and the reasons that support

any discretionary choices.” (Id. at p. 356.) “[A] meaningful opportunity to object means

that the defendant be given the opportunity to address the court on the matter of sentence

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and to object to any sentence or condition thereof imposed by the court.” (People v.

Zuniga (1996) 46 Cal.App.4th 81, 84 [court not required to issue tentative ruling to

foreclose application of forfeiture rule where defense counsel had an opportunity to

address the court regarding sentencing].)

Here, defense counsel had ample opportunity to and actually did address the

sentencing issues before the court. Defense counsel had received the probation officer’s

report prior to the sentencing hearing. Thus, defense counsel had the probation officer’s

recommendation of the precise sentence, which the court eventually imposed, and the

bases for that recommendation prior to the sentencing hearing. The court expressly

afforded defense counsel the opportunity to address the recommended sentence. Defense

counsel availed himself of that opportunity. Defense counsel argued there were

mitigating factors and urged the court to consider imposing the lesser or midterm

sentence. After the People argued otherwise, the court afforded defense counsel another

opportunity to argue the sentencing issues. Defense counsel declined the offer.

Therefore, defendant had opportunity to, and actually did, address the court regarding the

sentencing issues, thus forfeiting on appeal any further arguments he could have made.

2. IAC

Defendant contends trial counsel below committed constitutionally IAC to the

extent he failed to address any issues that result in a forfeiture on appeal and by

neglecting to argue other mitigating factors. We disagree.

“‘“In order to demonstrate ineffective assistance of counsel, a defendant must first

show counsel’s performance was “deficient” because his “representation fell below an

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objective standard of reasonableness . . . under prevailing professional norms.”

[Citations.] Second, he must also show prejudice flowing from counsel’s performance or

lack thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.”’” [Citation.] [¶] Reviewing courts defer to counsel’s reasonable tactical

decisions in examining a claim of ineffective assistance of counsel [citation], and there is

a “strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” [Citation.] Defendant’s burden is difficult to carry on direct

appeal, as we have observed: “‘Reviewing courts will reverse convictions [on direct

appeal] on the ground of inadequate counsel only if the record on appeal affirmatively

discloses that counsel had no rational tactical purpose for [his or her] act or omission.’”

[Citation.]’ [Citation.] If the record on appeal ‘“‘sheds no light on why counsel acted or

failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation

and failed to provide one, or unless there simply could be no satisfactory explanation,’

the claim on appeal must be rejected,”’ and the ‘claim of ineffective assistance in such a

case is more appropriately decided in a habeas corpus proceeding.’ [Citation.]” (People

v. Vines (2011) 51 Cal.4th 830, 875-876.)

To the extent defendant argues defense counsel committed prejudicial IAC by

failing to argue purported mitigating factors to the court at the sentencing hearing, we

hold defense counsel’s performance was not deficient and defendant suffered no

prejudice because the purported mitigating factors were not well supported in the record.

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Defendant contends defense counsel should have argued that defendant’s ostensible

mental health issues, physical impairment, and drug issues were mitigating factors.

However, none of these factors find substantive support in the record. Indeed, there is no

explanation in the record as to why defense counsel failed to make the proposed

arguments. Defense counsel never made any argument below regarding defendant’s

mental incompetency to stand for trial. Defendant himself told the probation officer he

had no history of mental illness. Thus, defense counsel may not have raised the issue

because there was no independent, verifiable support for any of the proposed arguments

or because defendant forbade him from doing so.

Second, the fact that Jearolyn testified defendant was singing and talking to

himself in his room prior to the incident is not necessarily or even at all convincing of a

conclusion that he suffered from a mental incapacity. Indeed, many individuals sing or

talk to themselves without suffering from any mental incapacity. The oldest son testified

defendant said “some crazy things like that my dad has dead bodies in the house and that

he killed somebody.” Jearolyn also testified that upon returning from the victims’ home,

defendant said, “‘I’m tired of this SOB molesting me.’” While these statements are more

indicative of a potential mental problem, there is, again, no explanation for why defense

counsel did not argue this factor to the court. Defendant’s purported mental illness is the

only proposed mitigating factor with any evidentiary support in the record.

In any event, regardless of whether defense counsel argued this factor to the court,

the sentencing court was the same court that presided over the trial and noted prior to

sentencing that it had paid careful attention to the trial proceedings. Thus, the court may

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simply have determined that the testimony regarding indications of potential mental

issues from which defendant may have suffered were not credible or sufficiently

established. (People v. Jackson (2014) 58 Cal.4th 724, 749 [it is the exclusive province

of the trial court to make credibility determinations].) Indeed, defendant himself denied

having any mental health issues.

The remainder of defendant’s proposed claims of IAC regarding failure to argue

mitigating factors derive from unsworn statements made in the probation officer’s report.

Jearolyn reported defendant might have possessed controlled substances in the past and

had mental health problems. Defendant’s mother reported he had mental health issues

and suffered from paranoid schizophrenia. She said defendant had been shot four months

prior to sentencing and had four bullets lodged in his skull. Defendant’s mother

additionally reported defendant was a heavy drug user. Officers found methamphetamine

and a pipe in defendant’s bedroom. One officer reported defendant had delusions Ramon

had molested him.

Again, there is no explanation in the record as to why defense counsel did not

argue these factors in mitigation at the sentencing hearing. It is possible that none of the

facts, other than the methamphetamine found in defendant’s bedroom, could be otherwise

confirmed. Indeed, again, defendant denied any mental health issues. He also denied any

drug use during the past 25 years. The court read and signed the probation officer’s

report; thus, the court was cognizant of these issues regardless of whether defense

counsel raised them in argument at sentencing. Thus, we cannot conclude that defense

counsel acted deficiently or that defendant was prejudiced by defense counsel’s decision

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not to raise defendant’s purported mental health, physical health, or drug use as

mitigating factors. To the extent defendant contends defense counsel provided IAC by

failing to object to the court’s imposition of the aggravated term on count 1, consecutive

terms on counts 2 and 3, and failure to stay the sentence on count 2 pursuant to section

654, we shall address the merits to forestall the IAC claim.

3. Aggravated Term on Count 1

Defendant contends the court erred in imposing the upper term on count 1. We

disagree.

“Within the limits set forth by the Legislature, a trial court has broad discretion . . .

whether to select the upper, middle, or lower term of imprisonment (§ 1170, subd. (b);

Cal. Rules of Court, rule 4.420(b)).” (People v. Clancey (2013) 56 Cal.4th 562, 579.)

“In determining the appropriate term, the court may consider the record in the case, the

probation officer’s report, other reports . . . and statements in aggravation or mitigation

submitted by the prosecution, the defendant, or the victim, . . . and any further evidence

introduced at the sentencing hearing. The court shall select the term which, in the court’s

discretion, best serves the interests of justice. The court shall set forth on the record the

reasons for imposing the term selected and the court may not impose an upper term by

using the fact of any enhancement upon which sentence is imposed under any provision

of law.” (§ 1170, subd. (b).) The sentencing court’s decision is subject to review for

abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)

“[A] trial court will abuse its discretion . . . if it relies upon circumstances that are

not relevant to the decision or that otherwise constitute an improper basis for decision.

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[Citations.]” (People v. Sandoval, supra, 41 Cal.4th at p. 847.) Defendants bear a heavy

burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65

Cal.App.4th 279, 282.) “‘In the absence of such a showing, the trial court is presumed to

have acted to achieve legitimate sentencing objectives, and its discretionary

determination to impose a particular sentence will not be set aside on review.’

[Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) “[A]

trial court may ‘minimize or even entirely disregard mitigating factors without stating its

reasons.’ [Citation.]” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.)

Here, prior to imposing the upper term on count 1, the court noted that defendant

had a lengthy criminal history and that there were children present in the home when

defendant committed the offenses. Either or both of these factors supported imposition of

the upper term. (People v. Osband (1996) 13 Cal.4th 622, 730 [“a single factor in

aggravation suffices to support an upper term”].) Moreover, contrary to defendant’s

contention, either or both of these factors did not violate provisions against dual use of

factors affecting sentencing. That three children other than R.D., who was the victim of

one of the offenses for which defendant was convicted, were present, were not elements

of the substantive offenses or the enhancement. Likewise, that defendant had a number

of felony criminal convictions and a parole violation above and beyond his prior strike

conviction made the court’s consideration of his criminal history proper. Thus, the court

acted within its discretion in imposing the upper term on count 1.

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 4. Consecutive Terms on Counts 2 and 3

Defendant contends the court abused its discretion in imposing consecutive terms

on counts 2 and 3. We disagree.

“‘[A] trial court has discretion to determine whether several sentences are to run

concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse,

the trial court’s discretion in this respect is not to be disturbed on appeal. [Citations.]

Discretion is abused when the court exceeds the bounds of reason, all of the

circumstances being considered.’ [Citation.]” (People v. Caesar (2008) 167 Cal.App.4th

1050, 1059, disproved of on another ground in People v. Superior Court (2010) 48

Cal.4th 1.) “Any circumstances in aggravation or mitigation may be considered in

deciding whether to impose consecutive rather than concurrent sentences, except” factors

already used to impose an upper term, to enhance defendant’s sentence, or which

constitute an element of the crimes for which defendant was convicted. (Cal. Rules of

Court, rule 4.425(b).) “Only one criterion is necessary to impose a consecutive sentence.

[Citation.]” (People v. King (2010) 183 Cal.App.4th 1281, 1323.)

Here, again, the court noted prior to imposing sentence that defendant had a

lengthy criminal history and that there were children present in the home when defendant

committed the offenses. Either one or both of those factors would support the court’s

imposition of consecutive sentences on counts 2 and 3. To the extent the court relied on

one of those factors in imposing the aggravated sentence on count 1, the remaining factor

would suffice for imposition of consecutive sentences on the remaining counts. Thus, the

court acted within its discretion in imposing consecutive terms on counts 2 and 3.

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 Moreover, assuming the court committed any error, we find the error harmless.

(People .v Sanchez (1994) 23 Cal.App.4th 1680, 1686 [“Where, as in this case, it is

improbable that a lower court’s sentencing choice would have been different if it had

been reminded to state a proper reason, the constitutional provision forbidding reversal

for insubstantial errors should apply”].) Here, the court’s impassioned statement

regarding imposition of the sentence makes it improbable the court would have imposed

a lesser sentence had it been informed of the need to identify which factor supported the

aggravated sentence on count 1 and the consecutive sentences on counts 2 and 3. This is

particularly true considering our holding below that the court erred in neglecting to stay

the sentence on count 2.

B. Section 654.

Defendant contends the court erred in neglecting to stay the sentence on count 2.

We agree.

“Section 654 states in relevant 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.’ [Citation.] ‘“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.”’ [Citation.]” (People v. Capistrano (2014) 59

Cal.4th 830, 885.)

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 “‘[T]he purpose of section 654 “is to insure that a defendant’s punishment will be

commensurate with his culpability.”’ [Citation.] ‘It is [the] defendant’s intent and

objective, not temporal proximity of his offenses, which determine whether the

transaction is indivisible.’ [Citation.] ‘“The defendant’s intent and objectives are factual

questions for the trial court; [to permit multiple punishments,] there must be evidence to

support [the] finding the defendant formed a separate intent and objective for each

offense for which he was sentenced.”’ [Citation.]” (People v. Capistrano, supra, 59

Cal.4th at p. 886.)

“When a defendant is convicted of burglary and the intended felony underlying the

burglary, section 654 prohibits punishment for both crimes. [Citations.]” (People v. Islas

(2012) 210 Cal.App.4th 116, 130.) “[S]ection 654 does not apply to crimes of violence

against multiple victims. [Citation.] The reason is that ‘[a] defendant who commits an

act of violence with intent to harm more than one person or by means likely to cause

harm to several persons is more culpable than a defendant who harms only one person.’

[Citation.]” (People v. Correa (2012) 54 Cal.4th 331, 341, fn. omitted.) “The failure of

defendant to object on this basis in the trial court does not forfeit the issue on appeal.

[Citation.]” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)

Here, the court’s failure to stay sentence on count 2, the assault upon Ramon,

violated the proscriptions of section 654 because it was the felony underlying the

burglary. Section 654 was not addressed in either the probation officer’s report or at the

sentencing hearing. Nevertheless, the court expressly instructed the jury that one of the

elements of the crime of burglary was that when defendant “entered the inhabited

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dwelling house, he did so with the intent to commit an assault with a deadly weapon.”

“A burglary was committed if the defendant entered with the intent to commit an assault

with a deadly weapon.” (CALCRIM No. 1700.) The People expressly argued that

defendant’s felonious intent in entering Ramon’s house was to assault Ramon. Thus, the

court should have stayed sentence on count 2.

The People argue that where the information fails to identify the victim of the

underlying felony supporting a burglary offense and there were multiple victims, the

court is not required to stay sentence on the separate, underlying count: “[A] number of

cases have upheld the application of the multiple victim exception based on evidence of

multiple victims, without considering whether the identities of those victims had been

pleaded.” (People v. Centers (1999) 73 Cal.App.4th 84, 101 [Fourth Dist, Div. Two].) A

burglary may be treated as a violent crime for purposes of the multiple victim exception

to section 654 where the defendant inflicted great bodily injury in the commission of the

burglary. (Centers, at p. 100.) Likewise, a burglary may be treated as a violent crime for

purposes of the multiple victim exception to section 654 where defendant personally used

a firearm in the commission of the burglary. (Centers, at p. 100.)

“Here, the trial court could properly find multiple victims even though the

information did not specify, and the jury did not make any finding regarding, the identity

of any victim of the burglary or the personal firearm use.” (People v. Centers, supra, 73

Cal.App.4th at pp. 89, 101 [where defendant entered home for purposes of kidnapping

the victim, two other individuals were present, defendant threatened one of the other

individuals, and jury found true personal use of a firearm enhancement, court did not err

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in imposing separate, unstayed sentences for kidnapping and burglary].) “[T]here was at

least one victim of the burglary and the personal firearm use who was not also a victim of

the kidnapping. This was sufficient. [Citation.]” (Id. at p. 102.)

However, here, unlike in Centers, no great bodily injury or personal use of a

firearm in the commission of the burglary enhancements were alleged by the People or

found true by the jury. Moreover, while unnamed in the information and the verdict, the

People’s argument that the felony underlying the burglary was defendant’s assault upon

Ramon makes it highly probable that that assault, and not any perceived offense against

the unnamed children who were not the subject of any pled counts, enhancements,

convictions, and findings, was the underlying felony found by the jury to support the

burglary conviction. We decline to extend Centers to the facts of the instant case. We

shall direct the superior court to stay sentence on count 2.

C. Abstract of Judgment.

Defendant contends the abstract of judgment must be corrected to reflect the

court’s imposition of consecutive one-third the midterm sentences on counts 2 and 3

rather than consecutive full terms. The People agree. We also note the abstract of

judgment incorrectly reflects defendant was found guilty by the court rather than a jury.

We shall order the court to correct the abstract of judgment.

“It is well settled that ‘[a]n abstract of judgment is not the judgment of conviction;

it does not control if different from the trial court’s oral judgment and may not add to or

modify the judgment it purports to digest or summarize. [Citation.]’ [Citation.] When

an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s

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verbal pronouncement, [appellate courts have] the inherent power to correct such clerical

error on appeal, whether on our own motion or upon application of the parties.

[Citation.]” (People v. Jones (2012) 54 Cal.4th 1, 89.)

Here, the court imposed one-third the midterm on both counts 2 and 3; however,

the abstract of judgment erroneously reflects the court imposed consecutive full terms.

Likewise, although a jury convicted defendant, the abstract of judgment reflects

defendant was convicted by court trial. We shall direct the superior court clerk to correct

the abstract of judgment.

DISPOSITION

The trial court is ordered to modify the sentence on count 2 to reflect a stay

pursuant to section 654. The trial court is further directed to correct the abstract of

judgment to reflect defendant was convicted by a jury and that the sentencing court

imposed consecutive terms of one-third the midterm on counts 2 and 3. The trial court is

also directed to forward a copy of the new abstract of judgment to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

RAMIREZ
P. J.

McKINSTER
J.

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