Filed 8/25/14 P. v. Vasquez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047787

         v.                                                            (Super. Ct. No. 11NF3081)

ALBERTO JUNIOR VASQUEZ,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, William
R. Froeberg, Judge. Affirmed as modified.
                   Robert L.S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              Defendant Alberto Junior Vasquez appeals following his guilty plea on
carjacking and robbery charges. He argues the trial court committed two errors in
sentencing: (1) imposing a weapon use enhancement pursuant to Penal Code section
12022, subdivision (b)(2),1 because that enhancement was never included in the
information nor admitted by defendant; (2) failing to stay the punishment for robbery
pursuant to section 654. He further asserts his waiver of his right to appeal following the
guilty plea does not encompass these errors.
              We affirm the weapon use enhancement pursuant to section 12022,
subdivision (b)(2). We find the trial court erred, however, in not staying the sentence for
robbery under section 654. Because his sentence was to run concurrently on the robbery
and carjacking charges, we need not remand for resentencing, and instead correct the
sentence by modification.
                                               I
                                          FACTS
              We draw the facts primarily from the preliminary hearing transcript. On
October 16, 2011, defendant and codefendant Anthony Martinez approached the victim,
Jorge E., who was standing outside of his car. Martinez brandished a steak knife, made
stabbing motions towards the victim, and demanded his car keys. After Jorge E. handed
Martinez the car keys, Martinez demanded the victim’s wallet and Jorge E. complied.
During this encounter, defendant stood nearby, holding a baseball bat. After receiving
Jorge E.’s wallet, defendant and Martinez drove away in Jorge E.’s car. Jorge E. reported
the incident. A Santa Ana police officer saw Jorge E.’s SUV, driven by defendant, with
Martinez in the passenger seat. After a brief pursuit, partly on foot, defendant and
Martinez were arrested.




1      All subsequent statutory references are to the Penal Code.

                                               2
               On December 12, 2011, the Orange County District Attorney filed an
information charging defendant in count one with carjacking (§ 215, subd. (a)); in count
three2 with resisting a police officer (§ 148, subd. (a)(1)); and in count four with second
degree robbery (§§ 211, 212.5, subd. (c)). The trial court later granted the prosecution’s
motion to dismiss count three.
               The information also alleged defendant used a dangerous and deadly
weapon in the commission and attempted commission of counts one and four (§ 12022,
subd. (b)(1)) and that defendant had a prior strike under the “Three Strikes” law (§§ 667,
subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)) and a prior serious felony conviction (§
667, subd. (a)(1)).
               On May 7, 2012 defendant pled guilty to counts one and four and admitted
the weapons enhancement was true as to each count. Defendant also admitted the truth of
the prior strike and felony convictions. On the plea form, which he signed, defendant
stated he “understood that [he was] pleading guilty, and admitting the following offenses,
special punishment allegations, and prior convictions, carrying the possible penalties” as
follows:


     Count     Charge       Sentence Enhancements         Yrs.     Term for       Yrs.      Total
                            Range                                  Priors                   Penalty
                                                                                            years
     1         PC 215(a)    3-5-9       12022(b)(1)       1-2-3    667(d)(e)(1) x2

     4         PC 211/      2-3-5       12022(b)(1)       1        667(a)(1)      +5
               212.5 (c)

                                                                                            29
                                                                                            years




2        Count two applied to Martinez only.

                                               3
              On December 7, 2012, defendant was sentenced to an aggregate term of 17
years. For count one, the trial court imposed five years, doubled to 10 under the Three
Strikes law, plus two years for an enhancement under section 12022, subdivision (b)(2).3
As to count four, defendant was sentenced to three years, doubled to six under the Three
Strikes law, plus one year for the section 12022, subdivision (b)(1), enhancement, to run
concurrently to count one. Defendant filed a timely appeal, but did not obtain a
certificate of probable cause.
                                             II
                                      DISCUSSION
A. Certificate of Probable Cause
              Defendant offers two arguments. First, he claims his sentence on count
one, carjacking, was incorrectly enhanced under section 12022, subdivision (b)(2),
because subdivision (b)(1), not (b)(2), was alleged in the information and listed on the
plea form. Second, he argues his sentence on count four, robbery, should have been
stayed pursuant to section 654 rather than running concurrently with the carjacking count.
              The Attorney General argues defendant’s section 12022 claim should be
dismissed because he failed to obtain a certificate of probable cause, and he waived the
right to appeal. Generally, an appeal from a trial court judgment after a guilty plea
requires a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(1).)
However, when an appeal attacks grounds that rise after entry of the plea and does not


3       The minutes and the reporter’s transcript state defendant was sentenced under
section 12022, subdivision (b)(1), which provides for an additional consecutive term of
one year for the use of a dangerous or deadly weapon. Immediately prior to issuing the
sentence, however, the trial judge stated, “Penal Code section 12022 (b)(2) provides that
if the person described in paragraph one has been convicted of carjacking or attempted
carjacking, the additional term shall be one, two or, three years.” Because the trial judge
imposed the midterm for each crime and enhancement, and defendant pled guilty to
carjacking, it is clear the judge intended to enhance defendant’s sentence per section
12022, subdivision (b)(2).

                                             4
attack the validity of a defendant’s underlying plea, acquisition of a certificate of
probable cause is not prerequisite to appellate review. (People v. Williams (2007) 156
Cal.App.4th 898, 910; Cal. Rules of Court, rule 8.304(b)(4)(B).)
              The crucial question is whether or not defendant’s weapon enhancement
under section 12022, subdivision (b)(2), and his section 654 allegation are “in substance a
challenge to the validity of his plea. [Citations.] In other words, the question is whether
defendant ‘seeks only to raise [an] issue[ ] reserved by the plea agreement, and as to
which he did not expressly waive the right to appeal. [Citations.]’” (People v. Cuevas
(2008) 44 Cal.4th 374, 381.)
              Defendant argues the trial court erred when it imposed a weapon
enhancement pursuant to section 12022, subdivision (b)(2); therefore, the sentence is
unauthorized. Defendant attempts to frame the error as a sentencing error. He contends
this error does not affect the validity of the plea; therefore, a certificate of probable cause
is unnecessary. We will assume, without deciding, a certificate of probable cause is not
required and defendant did not waive his right to appeal. Despite an apparent scrivener’s
error on the information and defendant’s plea agreement, both the plea and sentence were
valid.


B. Section 12022, Subdivision (b)(2) Enhancement
              “A claim that a sentence is unauthorized . . . may be raised for the first time
on appeal, and is subject to judicial correction whenever the error comes to the attention
of the reviewing court. [Citations.]” (People v. Dotson (1997) 16 Cal.4th 547, 554, fn.
6.) “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed
under any circumstances in the particular case.” (People v. Scott (1994) 9 Cal.4th 331,
354.)
              According to defendant, the sentence is unauthorized because he neither
pled to nor admitted the enhancement under section 12022, subdivision (b)(2). This

                                               5
claim fails because the plea form indicates defendant knew he was pleading guilty to an
enhancement stemming from his use of a dangerous weapon during the commission of a
carjacking, and he therefore knew he was subject to an penalty enhancement of up to
three years.
               Section 12022, subdivision (b)(1) authorizes an additional and consecutive
one-year term of imprisonment for use of a dangerous weapon in the commission of a
felony. Section 12022, subdivision (b)(2) states, “If the person described in paragraph (1)
has been convicted of carjacking or attempted carjacking, the additional term shall be in
the state prison for one, two, or three years.” (§ 12022, subd. (b)(2).) The plea form
signed by defendant shows he pled guilty to the enhancement section 12022, subdivision
(b)(1), for the second degree robbery charge, with a penalty enhancement of one year.
He also pled to another enhancement under section 12022, subdivision (b)(1), for the
carjacking charge, with a possible “1-2-3” years for the penalty enhancement, as set forth
on the plea form. In another section of the plea form, defendant offered the following as
the basis for his guilty plea: “[A]nd during the commission of the above described
carjacking and robbery, I personally used a wooden baseball bat as a deadly weapon.”
               During sentencing, the trial court clarified both subdivisions (b)(1) and
(b)(2): “Penal code section 12022[] (b)(1) provides for an additional consecutive term of
one year for the use of a dangerous or deadly weapon. Penal code section 12022 (b)(2)
provides that if the person described in paragraph one has been convicted of carjacking or
attempted carjacking, the additional term shall be one, two, or three years.” When the
trial court read defendant’s sentence, however, it referred to the carjacking enhancement
as section 12022, subdivision (b)(1): “Pursuant to the provisions of Penal Code section
667(d) and (e)(1), the sentence on count one, five years, is doubled to ten. The defendant
is also sentenced to the term of two years on the 12022[] (b)(1) enhancement.”
               It is evident the information and the plea form contained a scrivener’s error
and should have specified the sentence would be imposed under section 12022,

                                              6
subdivision (b)(2) rather than (b)(1). Nonetheless, the plea form made the consequences
of defendant’s plea clear. Defendant was apprised the potential of an enhanced penalty
for use of a dangerous weapon during the commission of a carjacking and defendant
knew he faced up to three years imprisonment because of the enhancement. Defendant’s
plea supported the increased penalty. (See People v. Robinson (2004) 122 Cal.App.4th
275, 282.) For this reason, defendant’s claim of a due process violation, based on lack of
notice, is meritless.
               Defendant further claims the two-year sentence is unauthorized under
section 12022, subdivision (b)(1), because “parties may not enter into a negotiated
disposition, either by negligence or design, which specifies a sentence not authorized by
law.” (People v. Velasquez (1999) 69 Cal.App.4th 503, 505.) Because section 12022,
subdivision (b)(1) only authorizes a one year enhancement, defendant contends the trial
court erred in sentencing defendant to two years.
               California law requires that “[a]ll enhancements shall be alleged in the
accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact.” (§ 1170.1, subd. (e).) However, a defendant may consent to a
trial court considering an uncharged enhancement allegation. (People v. Haskin (1992) 4
Cal.App.4th 1434, 1438.) The record reflects that defendant agreed to an enhancement of
up to three years for carjacking with a dangerous weapon. Given the totality of the
record, the labeling of section 12022, subdivision (b)(1) on the plea form as the
enhancement corresponding with carjacking appears to be a scrivener’s error that did not
affect defendant’s plea or sentence.
               Even if we were to assume defendant intended to plead to the enhancement
under section 12022, subdivision (b)(1) and the court nonetheless sentenced defendant
under subdivision (b)(2), defendant’s claim still fails. People v. Neal (1984) 159
Cal.App.3d 69 (Neal) is instructive. In Neal, the information alleged defendant used a
deadly weapon during the commission of rape and oral copulation, within the meaning of

                                              7
section 12022, subdivision (b), which allowed an additional one-year imprisonment.
(Neal, supra, 159 Cal.App.3d at p. 72.) The jury found weapons enhancement true as to
each crime. The trial court, however, increased the imprisonment to three years per
crime, relying on section 12022.3. Section 12022.3 provides an enhancement for using
dangerous weapons during the commission or attempted commission of certain sex
crimes. (Neal, supra, 159 Cal.App.3d at p. 72.)
              On appeal, defendant argued the three-year enhancements should be
modified to one year because the information relied on section 12022, subdivision (b),
rather than section 12022.3. (Neal, supra, 159 Cal.App.3d at p. 72.) The Neal court
held, “[W]here the information puts the defendant on notice that a sentence enhancement
will be sought, and further notifies him of the facts supporting the alleged enhancement,
modification of the judgment for a misstatement of the underlying enhancement statute is
required only where the defendant has been misled to his prejudice. [Citations.]” (Id. at
pp. 73-74.) Because the defendant could not demonstrate prejudice, the sentence was not
reduced. (Id. at p. 74.)
              Similarly, this information alleged a weapon enhancement for carjacking,
pursuant to section 12022, subdivision (b)(1), but the court imposed an enhancement
based on defendant’s plea. Defendant was, or should have been aware, the prosecutor
was seeking up to three years imprisonment for use of a dangerous weapon in the course
of carjacking, based on his own plea agreement and admitted facts.
              Defendant questions whether Neal appropriately applied the law, because
when a prosecutor fails to prove or plead a specific enhancement, the proper framework
is “the doctrine[] of waiver and estoppels, rather than harmless error . . . .” (People v.
Mancebo (2002) 27 Cal.4th 735, 749.) Defendant also attempts to distinguish Neal.
Defendant alleges he suffered prejudice because he could have logically concluded he
was facing a one-year enhancement for carjacking with a dangerous weapon, instead of
the three years authorized under section 12022, subdivision (b)(2). These arguments are

                                              8
unconvincing. It is implausible defendant could have believed he was only subject to an
additional year for the carjacking enhancement, when the plea form clearly indicated he
faced up to three years. The scrivener’s error on the plea form by writing the wrong
subdivision was not prejudicial and defendant is not entitled to a reduction in sentence.


C. Section 654
              Defendant alleges the trial court erred when it failed to stay the punishment
on count four, robbery, pursuant to section 654. Defendant claims he is not prohibited
from raising a section 654 claim and he is correct. Because defendant’s plea was an
“open plea,” he has not waived his right to appeal, and he does not require a certificate of
probable cause in order to attack the sentence as unauthorized.
              Section 654, subdivision (a) provides: “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. An acquittal or
conviction and sentence under any one bars a prosecution for the same act or omission
under any other.”
              The statute therefore “prohibits punishment for two crimes arising from a
single, indivisible course of conduct. [Citation.] If all of the crimes were merely
incidental to, or were the means of accomplishing or facilitating one objective, a
defendant may be punished only once.” (People v. Perry (2007) 154 Cal.App.4th 1521,
1525.) Whether a course of conduct is indivisible depends upon the perpetrator’s intent
and objective. (Neal v. State (1960) 55 Cal.2d 11, 19, disapproved on other grounds in
People v. Correa (2012) 54 Cal.4th 331, 341.)
              A lack of a section 654 stay will be upheld if substantial evidence supports
the trial court’s determination that defendant harbored different objectives when he
committed the carjacking and the robbery. (See People v. Coleman (1989) 48 Cal.3d

                                             9
112, 162.) Defendant argues the evidence establishing multiple intents is insufficient
because the two offenses stemmed from the same criminal conduct.
              Generally, “‘the theft of several articles at one same time constitutes but
one offense.’” (People v. Dominguez (1995) 38 Cal.App.4th 410, 420 (Dominguez).)
For example, the Dominguez victim gave the defendant both his jewelry and vehicle in
response to defendant’s demanding, “‘Give me everything you have.’” (Id. at p. 414.)
The trial court’s determination that the robbery and carjacking were pursuant to a single
criminal objective was upheld. The Attorney General attempts to distinguish Dominguez
because the trial court here made an express finding that section 654 did not apply. The
objectives for each count were different: “In that the objectives to counts one and two
were different, that is, an automobile in count one and a wallet in count two, 654 does not
apply.”
              Stealing multiple objects, however, does not mean section 654 is
automatically inapplicable, as the Dominguez court held. Here, Martinez ordered Jorge
E. to give Martinez his car keys and then directed him to hand over his wallet.
Defendant, who was standing nearby with a baseball bat, then joined Martinez in the car
and drove away. The robbery and carjacking occurred at nearly the same time and at the
same location. Even the prosecutor conceded, in his sentencing brief, that the robbery
and carjacking merged within the meaning of section 654, citing Dominguez.4
Dominguez is applicable here. Based on the record, we cannot say defendant harbored
multiple intents and objectives. Therefore, the sentence on the robbery count should have
been stayed pursuant to section 654.




4       “The People concede that, based on the underlying circumstances of Counts 1 and
4, the robbery and carjacking merge within the meaning of Penal Code § 654.”

                                             10
                                            III
                                      DISPOSITION
              The trial court is ordered to modify the sentence on count four to reflect a
stay pursuant to section 654. The clerk of the court is directed to forward a copy of the
new abstract to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.




                                                  MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




                                            11
