Filed 8/6/15 P. v. Mayo CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068380
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F11907197)
                   v.

JAMAR MARQUIS MAYO,                                                                       OPINION

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell III, Judge.
         Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant claims he was sentenced more harshly than provided in his plea
agreement. The Attorney General contends defendant was not promised any sentencing
lid as part of the plea agreement. We conclude the terms of the plea agreement are
ambiguous. In accordance with the applicable interpretive canon, we construe this
ambiguity in defendant’s favor. As a result we will remand with directions that
defendant be permitted to withdraw his plea, if he requests to do so within 30 days of the
issuance of the remittitur.1
                                           FACTS
   I. Procedural Facts
       A. Charges
       On April 23, 2012, defendant was charged with kidnapping to commit robbery
(count I – Pen. Code, § 209, subd. (b)(1)),2 elder abuse (count II – § 368, subd. (b)(1)),
first degree residential robbery (count III – § 211), first degree residential burglary (count
IV3 – §§ 459, 460, subd. (a)), and false imprisonment of an elder adult (count V – § 368,
subd. (f).) As to the kidnapping, robbery and burglary counts, the information alleged the
victim was an elder dependent adult. (§ 667.9, subd. (a).) As to the burglary count, it
was alleged that a nonaccomplice was present in the residence. (§ 667.5, subd. (c)(21).)
       Defendant pleaded not guilty to all counts.
       B. Change of Plea
       On June 6, 2013, a “Felony Advisement, Waiver of Rights, and Plea Form” was
filed (hereafter, “change of plea form”). In the form, defendant requested to withdraw his
plea of not guilty as to the kidnapping and burglary counts (I and IV), and enter a plea of
guilty to those charges. Defendant also agreed to admit the enhancements to count IV.
(§§ 667.9, 667.5, subd. (c)(21).) In the same area of the form where the counts were
listed, there was a handwritten notation reading: “Plea is straight up.”4 Under the form’s
heading “Consequences of Plea of Guilty or No Contest,” defendant initialed a box

       1We also address and reject defendant’s claim that one of his prison terms should
have been stayed under section 654.
       2   All subsequent statutory references are to the Penal Code unless otherwise noted.
       3 The count initially contained no allegations as to defendant, only allegations
against codefendant Vincent Alexander Deen. The charging document was later
amended by interlineation to insert defendant’s name.
       4   All of the form’s handwritten text appears in upper case.

                                              2.
demonstrating that he understood the maximum sentence he could receive as a result of
the plea was “9 yrs 4 mos to life.”
       At a change of plea hearing on the same day, defense counsel informed the court
that his client wished to “plead to” counts I and IV, and admit the enhancements on count
4. Defense counsel then said, “And the plea is straight up.”
       The court asked defendant several questions regarding the change of plea form and
whether he understood his constitutional rights. The court then asked: “Do you
understand that the maximum period of confinement is … nine years, four months to
life?” Defendant responded affirmatively. The court then asked whether anyone
promised defendant “that is not set forth in writing on this change of plea form …?”
Defendant responded negatively.
       The prosecutor and defense counsel stipulated that there was a factual basis for the
guilty pleas and admissions, but did not verbally state the factual basis for the plea nor
did they identify any particular document or transcript that set forth the factual basis. The
prosecutor orally moved to dismiss the remaining counts “in light of the plea.”
       C. Sentencing
       Defendant was sentenced on October 11, 2013. At the beginning of the sentencing
hearing, the court said it had read and considered the probation report, defendant’s
statement in mitigation, and sentencing memoranda submitted by the prosecution and
defense, including various letters that were attached thereto.
       The court then asked whether there were “any additions, corrections, deletions to
the probation report?” Defense counsel said there were “only a couple ....” Defense
counsel asked the court to incorporate into the probation report a letter defendant had
written to the court. Counsel also said “the time credits” needed to be updated. Defense
counsel identified no other additions, corrections or deletions to the probation report and
did not object to the court’s consideration of the probation report for any purpose.



                                             3.
       The court denied probation. The court sentenced defendant to an aggravated term
of six years on the burglary count, plus one year for the elder victim enhancement
(§ 667.9, subd. (a)), plus a consecutive term of life in prison with the possibility of
parole. The total sentence was one “determinate term of seven years, followed by … one
indeterminate term of life with the possibility of parole.”
       D. Facts of the Underlying Crimes5
       Defendant and codefendant Deen committed several crimes on December 19,
2011. The victim, Jennie Molina (“Jennie”),6 was 69 years old at the time.
       In 2010, Jennie had allowed Deen to live with her for “a couple months” because
he did not have a place to stay. Jennie’s grandson and Deen went to high school together
and were friends. During the time Deen was living with her, Deen stole Jennie’s personal
checks and wrote approximately $24,000 worth of checks to himself.


       5 In their appellate briefs, both parties base their statement of facts on the
preliminary hearing. However, the facts of the underlying crimes are only relevant to the
sentencing issue raised by defendant involving section 654. At sentencing, the court
indicated that it had reviewed the probation report, but there is no indication the court
reviewed the preliminary hearing transcript. (And the sentencing judge did not preside
over the preliminary hearing.) We are directed to nothing in the record that suggests the
sentencing court relied on, or was even aware of, the evidence offered at the preliminary
hearing. Therefore, we base our statement of facts on the probation report. (See, e.g.,
People v. Whisenand (1995) 37 Cal.App.4th 1383, 1376, fn. 1; People v. Sewell (1989)
210 Cal.App.3d 1447, 1448, fn. 3.)
        We note that we need not decide whether a sentencing court should look to the
probation report in determining whether section 654 applies if the defendant has not
stipulated that the probation report constitutes the factual basis for the plea. (Cf. People
v. Mustafaa (1994) 22 Cal.App.4th 1305, 1312; People v. Johnson (1984) 162
Cal.App.3d 1003, 1010, fn. 4; but cf. People v. Ross (1988) 201 Cal.App.3d 1232, 1238–
1241.) Before sentencing the defendant, the court said it had considered the probation
report. At no time did the defense object to the court’s consideration of the probation
report. To the contrary, defense counsel actually requested the court incorporate a letter
defendant had written into the probation report. Moreover, defendant does not argue on
appeal that the court erred in relying on the probation report at sentencing.
        6 We refer to Ms. Molina and her daughter by their first names because they share
a last name; no disrespect is intended.

                                              4.
       In February 2011, Jennie’s grandson borrowed $4,000 from Deen. Approximately
two months prior to the burglary, Jennie’s grandson learned Deen had stolen checks from
Jennie. Jennie’s grandson told Deen he would not pay him back for the $4,000 loan.
Jennie’s grandson thought Deen did not seem upset.
       On December 19, 2011, defendant and Deen broke into Jennie’s home. Deen
entered the home through a back window. When Jennie arrived at home, defendant
knocked on the door to distract her. Defendant asked Jennie if her grandson was home,
and she said he was not. Defendant asked Jennie to take down his telephone number.
Jennie then walked to her bedroom. Deen opened the door for defendant.
       Deen and defendant then attacked Jennie from behind. Deen began to choke
Jennie with a pair of her sweatpants but eventually stopped. Defendant and Deen then
bound Jennie’s mouth, hands and feet with duct tape.
       Defendant and Deen carried Jennie to her car in the garage and put her in the
trunk. Defendant later said that Deen had “planned on driving the victim’s vehicle, with
the victim inside, and get out of the city.” They placed a television from Jennie’s home
in the back seat of the same car and hid in the garage.
       As the men were moving Jennie to the garage, they heard Jennie’s daughter, Delia,
returning home at around 3:30 p.m. Delia noticed “that things were ‘out of place’ ” and
her son’s television was missing from his room. Delia saw bloody clothes in Jennie’s
bedroom.
       A man, later identified as defendant, appeared “out of nowhere” in front of the
house. Defendant identified himself as “Robert” and asked for Delia’s son. Delia told
defendant her son was not home. Defendant asked for a drink of water. Delia let
defendant in and gave him a drink of water.
       Delia felt uncomfortable when defendant followed her to her son’s bedroom. She
asked him to leave, and he did. Then Delia called the police.
       Defendants fled the scene, leaving Jennie in the trunk.

                                              5.
       When officers arrived and walked through the home, they immediately noticed
signs of a struggle and a strong odor of bleach.7 Officers also observed a bloody tissue
on the hallway floor and what appeared to be blood stains on the carpet. As they walked
through the home, they saw a pair of prescription glasses with a bent frame on the floor,
blood-stained clothes and more bloody tissues. Officers discovered Jennie in the trunk of
her car, still gagged and bound at the hands and feet.
       Jennie had suffered numerous injuries, including: a broken finger, “[b]ruising and
swelling around both of her eyes, multiple abrasions, scratches, and swelling to her face
and head, cuts and swelling to the insides of her upper and lower lips, a bruise underneath
her chin, [and] on her neck, along with scratches and red marks on her neck, bruises on
her upper left arm and right forearm, and a dark red mark and a bruise on her left
forearm.”

Jennie’s Statement
       Immediately after the incident, Jennie gave a statement. Jennie’s statement, as
summarized by the probation report, differs from the probation report’s factual summary
in several respects, including how Deen entered Jennie’s home. In her statement, Jennie
said that she heard a knock at her door. When she answered, a man later identified as
defendant was standing at her door. Deen was standing by the street. Defendant asked if
Jennie’s older grandson was home and said the grandson owed him money. Jennie said
the grandson was not home, but that she would take down defendant’s number and have
the grandson call him. She was unafraid at this point because defendant had asked for the
grandson by name. When Jennie turned her back to get a pen and paper, defendant and
Deen “forced” their way inside the residence and began “beating” her and trying to
suffocate her. Jennie fought back as best she could.




       7   Jennie and Delia denied using any bleach products in the home.

                                             6.
Defendant’s Statement
       Defendant also gave a statement to police after his arrest. He admitted that Deen
had gone through the back window. He also admitted knocking on the door and asking
Jennie if her grandson was home. As she turned to get something to write on, Deen
began “wailing” on her. Deen began to “tape her up” and defendant could hear Jennie
screaming. Defendant helped Deen put Jennie in the trunk. They heard Delia arrive
home, so Deen put the television they had taken in Jennie’s vehicle, and they both hid in
the garage. Defendant realized his cell phone was still in the home so he went around to
the front door and knocked. Defendant was allowed in the residence. He got his cell
phone and left. Defendant said Deen’s plan was to drive Jennie’s vehicle, with Jennie
inside, and “get out of the city.”
Deen’s Statement
       In his own postarrest statement, Deen said that it was defendant who had “taped
her up” and had encouraged Deen to take off with Jennie’s car. The probation report says
that “[m]any times it sounded like Deen was recalling what he did, but blaming [sic]
[defendant].”
                                     DISCUSSION
I.     DEFENDANT MUST BE PERMITTED TO WITHDRAW HIS PLEA

       A. The Terms of the Plea Agreement Are Ambiguous and Must Therefore be
          Resolved in Defendant’s Favor
       Defendant claims the court erred in imposing a sentence that exceeded the
maximum exposure identified on his change of plea form.
       A defendant may enter a guilty plea “in exchange for specified benefits such as the
dismissal of other counts or an agreed maximum punishment ….” (People v. Walker
(1991) 54 Cal.3d 1013, 1024, overruled on another point by People v. Villalobos (2012)
54 Cal.4th 177, 183.) Here, there is a dispute as to what benefits defendant was to
receive for his guilty plea. The Attorney General contends defendant agreed to a “charge


                                            7.
bargain, i.e., he agreed to plead guilty to certain charges in exchange for the dismissal of
others but did not negotiate a sentence lid or stipulated term ….” (People v. Rushing
(2008) 168 Cal.App.4th 354, 360.) Defendant, however, claims that the plea agreement
provided “he would plead guilty to two counts and admit one enhancement in exchange
for the dismissal of the remaining counts and enhancement, and a maximum sentence of
nine years and four months to life.” (Italics added.)
              1. Legal Principles for Ascertaining the Terms of a Plea Agreement
       We must determine whether the plea agreement included a negotiated maximum
sentence. As we do so, we are guided by several interpretive principles applicable to plea
agreements.
       If the terms of a promise in a plea bargain are “ ‘ “…in any respect … uncertain, it
must be interpreted in the sense in which the promisor believed, at the time of making it,
that the promisee understood it.” [Citations.]’ [Citation.]” (People v. Shelton (2006) 37
Cal.4th 759, 767.) “ ‘The mutual intention to which the courts give effect is determined
by objective manifestations of the parties’ intent, including the words used in the
agreement, as well as extrinsic evidence of such objective matters as the surrounding
circumstances under which the parties negotiated or entered into the contract; the object,
nature and subject matter of the contract; and the subsequent conduct of the parties.
[Citations.]’ [Citations.]” (Ibid.)
       When and if an ambiguity is identified, it is resolved in favor of the defendant,
because the proper focus is on what induced the defendant to plead guilty. (In re Timothy
N. (2013) 216 Cal.App.4th 725, 734; V.C. v. Superior Court (2009) 173 Cal.App.4th
1455, 1467, fn. 12, disapproved on another point by In re Greg F. (2012) 55 Cal.4th 393,
415; People v. Toscano (2004) 124 Cal.App.4th 340, 345.)
       Guided by the foregoing rules, we conclude that (1) there is an ambiguity as to
whether defendant’s maximum exposure as stated on the change of plea form was a term
of the plea agreement and (2) that since the ambiguity must be resolved in defendant’s

                                             8.
favor, we must deem the maximum exposure language to be a term of the plea
agreement.

               2. Whether the Maximum Exposure Identified in the Change of Plea Form
                  was a Term of the Plea Agreement is Ambiguous
         On the change of plea form, defendant indicated that he understood the maximum
sentence that he could receive “as a result of my plea” was nine years four months to
life.8 This language suggests the defendant’s guilty plea was entered, at least in part, in
exchange for the promise that his maximum exposure would be nine years four months to
life.9
         The Attorney General points to a handwritten notation on the change of plea form
that reads: “Plea is straight up.” The Attorney General contends that the phrase “straight
up” means defendant received no promise whatsoever as to his sentence on the counts to
which he pled guilty. We acknowledge that a plausible reading of the phrase “straight
up” (perhaps the most plausible one) is that the plea agreement did not include a
sentencing lid. (Cf. People v. Cobb (1983) 139 Cal.App.3d 578, 581 [recounting defense
counsel’s use of phrase “straight up” to indicate unconditional plea].)
         However, a contrary interpretation is supported by another aspect of the
agreement. Specifically, the plea form lists defendant’s “maximum exposure” at nine
years four months to life, which is less than the statutory maximum exposure of seven
years, plus life with the possibility of parole. One reasonable interpretation of this
language is that the plea agreement set defendant’s maximum exposure below the
maximum permitted by statute (i.e., a sentencing lid).

         8The Attorney General “submits that the plea form simply set forth counsel’s
understanding of appellant’s exposure on counts IV and I.” We do not doubt that this
language on the plea form set forth counsel’s understanding of defendant’s exposure. But
the more important question is whether the language also sets forth a negotiated term of
the plea agreement.
        9 The parties agree that the defendant’s plea was also entered in exchange for, at
least in part, dismissal of the remaining counts.

                                              9.
       While the phrase “straight up” may militate in favor of the Attorney General’s
interpretation, the “maximum exposure” entry creates an ambiguity as to whether the plea
agreement provides for a sentencing lid. We must resolve that ambiguity in defendant’s
favor. (In re Timothy N., supra, 216 Cal.App.4th at p. 734.)
              3. Other Considerations Support our Conclusion
       Additionally, because the terms of the plea agreement are uncertain, the agreement
must be interpreted in the sense the prosecutor and trial court believed defendant
understood it. (People v. Shelton, supra, 37 Cal.4th at p. 767.) At the change of plea
hearing, the trial court asked defendant, “Did anyone promise you anything that is not set
forth in writing on this change of plea form, sir?” Defendant replied, “No, sir.” The trial
court’s question indicates the trial court believed defendant understood the change of plea
form to set forth the promises he was receiving in exchange for pleading guilty.10
       Moreover, our Supreme Court has repeatedly encouraged trial courts to “either
require defendants to sign a written change of plea form specifying all serious
consequences of the plea [citation], or follow an informal “script” in orally taking pleas.”
(People v. Walker, supra, 54 Cal.3d at p. 1030; see also People v. Villalobos, supra, 54
Cal.4th at p. 186; People v. Crandell (2007) 40 Cal.4th 1301, 1310.) Here, defendant did
“sign a written change of plea form specifying” that one of the “serious consequences of
the plea” was the possibility of being sentenced to nine years four months to life in
prison. Yet, the Attorney General would have us construe this maximum exposure
language as “simply set[ting] forth counsel’s understanding of [defendant’s] exposure”
but not actually promising anything. This would undermine the apparent purpose of the
Supreme Court’s advisement.




       10The trial court also asked defendant whether he understood his maximum period
of confinement is “nine years, four months to life?” Defendant responded affirmatively.

                                            10.
       B. Defendant’s Actual Sentence Significantly Exceeds the Maximum Exposure
          Contemplated When Defendant Pled Guilty
       “When a guilty plea is entered in exchange for specified benefits such as the
dismissal of other counts or an agreed maximum punishment, both parties, including the
state, must abide by the terms of the agreement. The punishment may not significantly
exceed that which the parties agreed upon.” (People v. Walker, supra, 54 Cal.3d at
p. 1024.) Defendant contends his punishment did significantly exceed that contemplated
by his change of plea form.
       Defendant was sentenced to consecutive terms of (1) seven years and (2) life with
the possibility of parole. We must determine whether that aggregate sentence exceeds the
maximum exposure set forth in the change of plea form, which was “9 years 4 mos. to
life.” That is, we must compare the two sentences and determine which is greater. If the
actual punishment significantly exceeds the maximum punishment identified in the plea
agreement, defendant must be permitted to withdraw his plea. (People v. Walker, supra,
54 Cal.3d at p. 1024.)
       At first glance, it seems that comparing a sentence of nine years four months to
life on the one hand, to a sentence that includes a term of life with the possibility of
parole on the other, is like comparing apples and oranges. But the comparison is made
simpler by recognizing that “ ‘the prison “term” for … indeterminate life sentences with
the possibility of parole ‘is the actual time served in prison before release on parole ....’
[Citation.]’ ” (People v. Acosta (2002) 29 Cal.4th 105, 113, original italics, citing People
v. Jefferson (1999) 21 Cal.4th 86, 95.)
       In this case, defendant will necessarily serve at least seven years of his life term
before even becoming eligible for release on parole. (§ 3046, subd. (a)(1).) And he will
do so after having served the seven years of his determinate sentence. (§ 669, subd. (a);
Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2015) § 37.38 [entire
determinate sentence served before consecutive indeterminate sentence].) Consequently,
the sentence defendant actually received provides for 14 years in prison before parole

                                              11.
eligibility. In this respect, defendant’s sentence was the functional equivalent of 14 years
to life. Yet, he pled guilty with the apparent understanding his maximum exposure was a
sentence of nine years four months to life. Clearly, defendant’s actual punishment
exceeded the maximum exposure identified in the change of plea form. As a result, he
must be permitted to withdraw the guilty plea.11

          C. Our Approach of Viewing a Life Sentence in the Context of Minimum Time to
             Parole Eligibility Under Section 3046 is Consistent with People v. Superior
             Court (Sanchez) (2014) 223 Cal.App.4th 567 (Sanchez)
          The Attorney General contends defendant’s characterization of his actual
sentence – a characterization we essentially adopt – is unpersuasive. However, it is
entirely appropriate to view a sentence of life with possibility of parole in terms of the
minimum incarceration time before parole eligibility. (E.g., Sanchez, supra, 223
Cal.App.4th 567; see also People v. Somnang Kim (2011) 193 Cal.App.4th 1355, 1359,
fn. 2.)
          For example, in Sanchez, supra, 223 Cal.App.4th 567, the defendant agreed to
plead no contest to attempted murder in exchange for a sentence of 25 to years to life and
dismissal of all other counts. (Id. at p. 570.) However, the lower court ultimately

          11
           Defendant requests that we order specific enforcement of the plea agreement by
requiring trial court to resentence him in accordance with the plea agreement. The
Attorney General contends that remand with an opportunity to withdraw the plea is the
appropriate remedy. We agree with the Attorney General. “Specific enforcement is
appropriate when it will implement the reasonable expectations of the parties without
binding the trial judge to a disposition that he or she considers unsuitable under all
circumstances.” (People v. Mancheno (1982) 32 Cal.3d 855, 861.) We have concluded
that the terms of the agreement were ambiguous and that the issue must be resolved in
defendant’s favor. But that is not equivalent to concluding that the prosecution
intentionally agreed to a sentencing lid of nine years four months. To the contrary, we
doubt the prosecution intended to enter such an agreement. In other words, we do not
believe that effectively ordering a sentencing lid of nine years four months to life “will
implement the reasonable expectations” (ibid) of the prosecution. Therefore, we decline
to order specific enforcement and remand with directions to permit defendant to
withdraw his plea in a timely fashion, as described in the disposition.


                                             12.
sentenced defendant to a term of life with the possibility of parole. (Id. at p. 571.) The
People filed a writ petition in the Court of Appeal challenging the sentence.
       The Court of Appeal observed that “[w]hen a guilty [or nolo contendere] plea is
entered in exchange for specified benefits such as the dismissal of other counts or an
agreed maximum punishment, both parties, including the state, must abide by the terms
of the agreement. [Citations.] [Citation.]” (Sanchez, supra, 223 Cal.App.4th at p. 573,
internal quotes omitted.) The court further noted that a trial court must impose a sentence
“within the limits of” a plea bargain. (Ibid.)
       The Court of Appeal then proceeded to compare the sentence the defendant
actually received (i.e., life with the possibility of parole) with the sentence provided for in
the plea agreement (i.e., 25 years to life). The Court of Appeal observed that by
sentencing the defendant to life with the possibility of parole, the lower court had
“effectively giv[en] defendant a minimum term of just seven years rather than 25. (Pen.
Code, § [citation] 3046, subd. (a)(1).)” (Sanchez, supra, 223 Cal.App.4th at p. 571.) As
a result, the sentencing court had imposed a “lesser term of imprisonment” than
contemplated by the plea agreement. (Id. at p. 573.)
       In the present case, we have viewed the life with possibility of parole term in the
same way: As functionally equivalent to a term of seven years to life. (See Sanchez,
supra, 223 Cal.App.4th at p. 571 [life with possibility of parole has “effectiv[e] …
minimum term of … seven years…”].) And when we add that term to the consecutive
seven-year determinate term, the result is a punishment that exceeds the maximum
contemplated by the change of plea form.




                                             13.
       D. The Attorney General’s Remaining Contentions on this Point are Not
          Persuasive

          1. If the Nine Years Four Months to Life Term Stated on the Change of Plea
             was Intended to Set Forth the Statutory Maximum, it was an
             Understatement of Defendant’s Exposure, Not an Overstatement
       The Attorney General questions how an apparent overstatement of defendant’s
exposure on the burglary and elderly victim enhancement (seven years vs. nine years four
months) could be considered detrimental to defendant. First, this contention assumes that
the “maximum exposure” language in the change of plea form endeavored to state
defendant’s statutory maximum exposure, rather than a negotiated sentencing lid.
Assuming for argument’s sake that assumption is correct, we would nonetheless conclude
the plea form did not overstate defendant’s total exposure, it understated it.
       The actual maximum statutory exposure for the crimes defendant pled to was a
sentence of seven years plus a consecutive life term, not seven years to life. (§§ 209,
subd. (b)(1) [life with possibility of parole for kidnapping to commit robbery], 461,
subd. (a) [six year maximum for first degree burglary]; 667.9, subd. (a) [one year for
elderly victim enhancement]; 669, subd. (a) [“Life sentences … may be imposed to run
consecutively … with any other term of imprisonment for a felony conviction”].) Seven
years plus life is a greater sentence than nine years, four months to life. (See §§ 669,
subd. (a), 3046, subd. (a)(1); cf. Sanchez, supra, 223 Cal.App.4th at pp. 571, 573 [25
years to life greater punishment than life with possibility of parole].) Consequently, even
if the change of plea form intended to set forth a maximum statutory exposure, it did so
by erroneously understating defendant’s exposure.

          2. Defendant’s Actual Sentence was the Functional Equivalent of a Term of
             14 years to Life, not 14 Years Plus Life
       The Attorney General describes defendant’s argument as an “attempt to stack the
minimum time he must serve on count I on top of count IV’s determinate term in an
effort to craft a 14 year determinate term and thereby create a determinate term in excess
of what was listed in the plea agreement.” However, we understand defendant’s

                                             14.
contention to be that his sentence was the functional equivalent of an indeterminate term
of 14 years to life (not a determinate term of 14 years plus an indeterminate term of life).
So stated, the contention is persuasive, as we have explained above.

II.    THE TRIAL COURT’S SENTENCE DID NOT VIOLATE SECTION 65412
       Under section 654, as interpreted by our Supreme Court, a defendant may not be
punished more than once for “a single act or omission, or an indivisible course of
conduct. [Citations.]” (People v. Deloza (1998) 18 Cal.4th 585, 591.) “ ‘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. Latimer (1993) 5
Cal.4th 1203, 1208, original italics.)
       In this case, the trial sentenced defendant “to separate terms without making an
express finding the defendant entertained separate objectives ….” (People v. Islas (2012)
210 Cal.App.4th 116, 129.) In that circumstance, “the trial court is deemed to have made
an implied finding each offense had a separate objective. [Citation.]” (Ibid.) We will
uphold that implied finding on appeal if supported by substantial evidence. (Ibid.)
       The question is whether the burglary and kidnapping were incident to “one
objective.” (People v. Latimer, supra, 5 Cal.4th at p. 1208.) According to the probation
report,13 defendant admitted that the burglary was done with intent to steal a television
and video game console from Jennie’s residence. As we will explain, there was


       12 Even though we conclude defendant must be permitted to withdraw his plea, we
address his argument that his sentence violates section 654. Given our disposition, the
judgment will be reinstated if defendant does not request to withdraw his plea. In that
circumstance, the issue of whether the sentence violates section 654 remains relevant.
And, even if defendant does withdraw his plea, the same issue may arise if defendant is
resentenced.
       13 See footnote 5, supra.


                                            15.
substantial evidence that the kidnapping was done pursuant to one of several different
objectives.
       After Deen choked, “brutally” assaulted, bound and gagged Jennie, he and
defendant put her in a car trunk in the garage. According to Mayo, Deen intended to “get
out of the city” in Jennie’s car while she remained in the trunk. This evidence gives rise
to several reasonable inferences as to the ultimate objective of the kidnapping.
       Deen may have intended to take Jennie away so he could harm her further, just for
the sake of inflicting pain. (See People v. Nelson (1989) 211 Cal.App.3d 634, 638–639
[stealing and intent to inflict physical harm upon the victims held to be separate
objectives under section 654].) The inference that Deen harbored this intent in
kidnapping Jennie is also supported by the fact that he had, moments earlier, “brutally”
assaulted and choked her, even though those acts were not necessary to complete the
burglary.
       Or Deen may have intended to harm Jennie or otherwise prevent her from
speaking with police in order to ensure he was never caught. (See People v. Rodriguez
(2015) 235 Cal.App.4th 1000 [trial court could have reasonably concluded objective of
obtaining valuables and avoiding being caught were separate for section 654 purposes];
People v. Wynn (2010) 184 Cal.App.4th 1210, 1216 [defendant’s objective of burglary
was to obtain property while objective of assault was to avoid arrest].) This inference is
supported by defendant’s statement that Deen intended to kidnap Jennie and “get out of
the city.”
       Either way, there was substantial evidence the kidnapping was done pursuant to a
separate objective from the burglary.
                                     DISPOSITION
       The judgment is vacated and the matter remanded to the trial court. Defendant
shall have 30 days from the issuance of the remittitur to request to withdraw his guilty



                                            16.
plea. If a timely request is made, the court shall grant it. If no timely request is made, the
court shall reinstate the judgment.

                                                             _________________________
                                                            POOCHIGIAN, A. P. J.

WE CONCUR:


_________________________
DETJEN, J.


_________________________
PEÑA, J.




                                             17.
