Filed 5/29/15 P. v. Butts CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065066

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD245797)

ROLANDO LOUIS BUTTS et al.,

         Defendants and Appellants.


         APPEALS from judgments of the Superior Court of San Diego County, Albert T.

Harutunian III, Judge. Affirmed as modified.



         Patrick M. Ford, under appointment by the Court of Appeal, for Defendant and

Appellant Rolando Louis Butts.

         Esther K. Hong, under appointment by the Court of Appeal, for Defendant and

Appellant Willie Deshawn Brown, Jr.

         Sheila Quinlan, under appointment by the Court of Appeal, for Defendant and

Appellant Christopher Kennison.
       Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Warren Williams

and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.



                                    INTRODUCTION

       A jury convicted Rolando Louis Butts, Willie Deshawn Brown, Jr., and

Christopher Kennison of conspiracy to commit a crime (Pen. Code,1 § 182, subd. (a)(1);

count 1), robbery (§ 211; count 2), and simple battery (§ 242) [as a lesser included

offense of battery causing serious bodily injury (§ 243, subd. (d))]; count 3). The trial

court sentenced Butts to three years in state prison, consisting of the middle term of three

years for count 2 and a concurrent middle term of three years for count 1, which the court

stayed under section 654. The court did not sentence Butts for count 3; however, the

court sentenced him to a concurrent term of 16 months in a separate probation revocation

case. The court sentenced Brown to three years in state prison, consisting of the middle

term of three years for count 2, a concurrent middle term of three years for count 1,

which the court stayed under section 654, and a concurrent term of 180 days for count 3.

The court sentenced Kennison to two years in state prison, consisting of the lower term of

two years for count 2, a concurrent lower term of two years for count 1, which the court

stayed under section 654, and a concurrent term of 180 days for count 3.




1      Further statutory references are also to the Penal Code unless otherwise stated.
                                             2
       Butts appeals, contending the court erred in admitting one of his codefendant's

statements, denying his motion to sever his trial from his codefendants' trial, and allowing

the prosecutor to use his and his codefendants' booking photographs during opening

argument. He further contends the accumulation of these errors deprived him of due

process of law and a fair trial.

       Brown and Kennison also appeal, contending their abstracts of judgment must be

corrected to show the trial court stayed their sentences for count 1. They additionally

contend the court should have stayed their sentences for count 3 and their restitution fines

must be reduced to reflect the stayed sentences. The People concede Brown's and

Kennison's abstracts of judgment must be corrected as to count 1 and their restitution

fines must be reduced, but contend we must order the imposition of an additional

restitution fine for their convictions for count 3.

       We are unpersuaded by Butts's contentions; however, we requested and received

supplemental briefing from him and the People on whether the trial court erred by failing

to sentence him for count 3. We also requested and received supplemental briefing from

him and the People on whether any sentence for count 3 should be stayed and whether the

court correctly calculated the amount of the restitution and parole revocation fines it

imposed on Butts.

       We conclude the trial court erred in failing to sentence Butts for count 3 and we

remand the matter for sentencing as to that count. We further conclude Brown's and

Kennison's sentences for count 3, as well as the sentence Butts will receive for count 3,

must be stayed as there is insufficient evidence the battery was independent from, rather

                                               3
than incidental to, the robbery. We also conclude the restitution and parole revocation

fines imposed in this case must be reduced to reflect the stayed sentences in counts 1 and

3. Finally, as to Butts, we conclude the court erroneously imposed a second restitution

fine in the probation revocation case and the parole revocation fine it imposed in that case

must be reduced. We affirm the judgment in all other respects.

                                     BACKGROUND

       The victim sold medical marijuana. Brown contacted the victim through e-mail,

phone calls, and text messages seeking to buy medical marijuana. After Brown e-mailed

the victim his identification information and prescription, the two men arranged to meet

at a large strip mall where Brown would purchase two pounds of marijuana from the

victim for $5,250.

       The next day, the victim arrived at the strip mall, parked his truck, and sent Brown

a message informing Brown where he parked. Brown approached the victim's truck on

foot, carrying a backpack. Brown sat in the front passenger seat of the victim's truck and

showed the victim his driver's license and prescription for marijuana, which the victim set

about photographing. At Brown's request, the victim gave Brown some sample

marijuana packages to inspect. Brown took out a small scale from his backpack and

attempted to weigh the amount; however, his scale was too small for the task.

       Suddenly, Kennison opened the driver's side door of the victim's truck and said,

"Yeah, this is happening, we're taking your shit." The victim looked over to Brown, who

nodded and smiled while pointing a gun at him.



                                             4
       The victim pushed Kennison away from the driver's side door, got out of the truck,

and walked around the back to the passenger side door. He saw Butts and an unidentified

man rapidly advancing toward him in an aggressive manner. Brown got out of the truck,

taking his backpack, the victim's cell phone and the sample marijuana packages with him.

Brown joined Kennison, Butts, and the unidentified man in surrounding the victim.

Kennison approached the victim as Brown and the other men went into the back of the

victim's truck and took the rest of the victim's marijuana packages. The victim struggled,

but the men overcame his struggles, tackled him to the ground, and struck him in the

face. Though the victim tried to hold on to Brown, the other men freed Brown and they

all fled, carrying the victim's marijuana with them.

       The victim chased them and saw them get into an awaiting green sedan and

quickly drive away. He ran back to his truck, wrote down the license plate number of the

sedan, and borrowed a stranger's phone to call 911.

       When a police officer arrived, the victim described the four men to the officer.

Approximately an hour later, other law enforcement officers spotted and stopped the

green sedan. Butts, another male passenger, and the female driver were in the car.2

Butts had the victim's cell phone and the officers found some of the victim's marijuana in

the trunk of the sedan.

       The victim identified Brown, Butts, and Kennison at trial. The victim also

identified Butts during an in-field lineup.


2     Although the driver and the male passenger were tried along with Brown, Butts,
and Kennison, the jury acquitted the driver and the male passenger of all charges.
                                              5
       During the incident, the victim suffered several facial injuries, including a black

eye and a chipped tooth. He also suffered injuries to his left shoulder and knees.

                                      DISCUSSION

                                              I

                     Failure to Exclude Getaway Driver's Statement

                                             A

                                             1

       As part of the criminal investigation, a police detective interviewed the suspected

getaway driver. At the outset of the interview, before the detective provided the driver

with the advisements required by Miranda v. Arizona (1966) 384 U.S. 436, 444-445

(Miranda advisements), the pair had the following exchange:

          "[DETECTIVE]: . . . Now you need to make a choice right now.
          You got a baby.

          "[DRIVER]: Mm-hmm. [¶] . . . [¶] He's 18 months. [¶] . . . [¶]

          "[DETECTIVE]: . . . I want to give you an opportunity. You lied to
          me [during a previous conversation] and I caught you in a lie. I
          caught you in another lie? Okay? Now you need to make up your
          mind . . . and you tell me what you wanna do. Okay? Because I will
          walk out this door. I'll give you back to the patrol guys. They'll take
          you to Las Colinas, we're done. We'll let all the chips fall where
          they may in court. Okay? But I wanna give you an opportunity to
          come clean with this thing. You need to, you need to make up your
          mind who you're gonna be loyal to, your baby or your man. Because
          your man got you in some shit. He got you in some shit and that's
          not fair to you. He wasn't thinkin' of your baby, was he? So who's
          gonna think of your baby?

          "[DRIVER]: Me.



                                             6
           "[DETECTIVE]: How about the state? How about the state takes
           care of your baby? Who's gonna think of your baby?

           "[DRIVER]: Me.

           "[DETECTIVE]: Okay. Alright. Okay? Alright. You and me.
           You and I, we're gonna think of your baby, okay?"

       The detective then provided the driver with the Miranda advisements and they

discussed the robbery. The driver told the detective only Brown and Kennison planned

the robbery. The detective told the driver not to lie to him about anything and asked her

why telling the truth was the best thing to do. She replied, "So I can go home?" He

responded: "No. No. you're not going home, honey. You're going to jail. Okay? You

can't help people rob somebody and go home. You've gotta be responsible. But you

don't have a record so I don't know what the DA's . . . office is gonna do with you. But

what you need to be thinking about is your child here. Okay? If they think you're lying

to me right now . . . if they think you're lying to me they're gonna think you're not being

remorseful. Okay? I know you're just scared, but you know how you can get through

this conversation? By telling the truth. You know why? Because the truth doesn't

change. Okay? Do you understand that? That way you don't have to worry about what

you told me. That way when you . . . take the stand or if you tell your lawyer or this or

that and the other thing, 'cause you're gonna get one, you . . . the truth will come out

really, really easy."

       The driver then told the detective her account of the robbery, which implicated all

of the defendants.



                                              7
                                             2

       Butts filed a motion to suppress the driver's extrajudicial statements to the

detective, arguing the statements could not be used against any defendant because the

statements were involuntary. He also joined the driver's own motion to suppress the

statements. The prosecutor indicated she did not intend to use the statements, except for

impeachment purposes.

       The driver argued the statements should also be excluded as impeachment

evidence because the detective unduly influenced her by capitalizing on her concerns

about being separated from her baby. The prosecutor argued the statements were

voluntary as the driver was having "a back and forth sort of a congenial conversation"

with the detective.

       The trial court ruled the statements were voluntary and could be used for

impeachment purposes. The court reasoned the detective's reference to the driver's child

during the interview was not conveyed as a threat or improperly used to induce the

driver's statements. The detective never told the driver she would be reunited with her

child if she told him what happened. He also did not tell her she would be separated from

her child for an extended period of time if she did not tell him what happened. The driver

knew she was going to jail and the detective's suggestion that honesty would benefit her

was true because truthfulness is considered during sentencing.

       Neither the driver nor Butts testified at trial. Consequently, the prosecutor never

used the driver's statements for any purpose.



                                             8
                                                B

       Butts contends the court erred in determining the driver's extrajudicial statements

were voluntary and in failing to exclude the statements for impeachment purposes. He

further contends the error prejudiced him, implying it led him to decide not to testify on

his own behalf. We need not address whether the court correctly decided the driver's

statements were voluntary and admissible for impeachment purposes because Butts has

not established the court's decision deprived him of a fair trial.

       "[D]efendants generally lack standing to complain that a police interrogation

violated a third party witness's Fifth Amendment privilege against self-incrimination or

Sixth Amendment right to counsel." (People v. Williams (2010) 49 Cal.4th 405, 452.)

"A defendant may assert a violation of his or her own right to due process of the law and

a fair trial based upon third party witness coercion, however, if the defendant can

establish that trial evidence was coerced or rendered unreliable by prior coercion and that

the admission of this evidence would deprive the defendant of a fair trial." (Id. at

pp. 452-453.) "The burden rests upon the defendant to demonstrate how the earlier

coercion 'directly impaired the free and voluntary nature of the anticipated testimony in

the trial itself' [citation] and impaired the reliability of the trial testimony." (Id. at

p. 453.)

       In this case, the driver never testified and the prosecutor never used the driver's

statements for any purpose. Therefore, the driver's statements could not have impaired

the reliability of her trial testimony.



                                                9
       Although Butts implies the court's ruling prompted him to elect not to testify, the

record does not support this implication. Rather, the record shows Butts announced his

intention not to testify in the middle of the prosecutor's case-in-chief, well before it was

known whether the driver would testify. Moreover, as the People point out, there were

other factors bearing on Butts's election not to testify, not the least of which was the

prospect of his impeachment with his prior felony theft conviction. Accordingly, we

conclude Butts has not met his burden of showing the court's decision resulted in

"fundamental unfairness at trial." (People v. Williams, supra, 49 Cal.4th at p. 455.)

                                              II

                                Denial of Severance Motion

                                              A

       Butts moved to sever his trial from his codefendants' trial because incriminating

statements by his codefendants, if admitted, would deprive him of his right to confront

adverse witnesses. The prosecutor opposed the motion, arguing a joint trial was

warranted based on the two theories of culpability, conspiracy and aiding and abetting, as

well as the facts supporting these theories. The prosecutor further argued a joint trial

would not prejudice Butts because the prosecution's case was equally strong as to all of

the defendants. The trial court agreed with the prosecutor's position and denied the

motion.

                                              B

       Butts contends the court prejudicially erred in denying his severance motion

because the evidence against him was not as strong as the evidence against his

                                             10
codefendants, there were conflicting defenses, and the driver's extrajudicial statements

posed a confrontation issue. " 'We review a trial court's denial of a severance motion for

abuse of discretion based upon the facts as they appeared when the court ruled on the

motion.' [Citations.] 'If we conclude the trial court abused its discretion, reversal is

required only if it is reasonably probable the defendant would have obtained a more

favorable result at a separate trial.' [Citations.] 'If the court's joinder ruling was proper

when it was made, however, we may reverse a judgment only on a showing that joinder

" 'resulted in "gross unfairness" amounting to a denial of due process.' " ' " (People v.

Souza (2012) 54 Cal.4th 90, 109 (Souza).) Butts has not shown the court abused its

direction or that joinder deprived him of due process of law.

       "Our Legislature has expressed a strong preference for joint trials. [Citations.]

'Section 1098 provides in pertinent part: "When two or more defendants are jointly

charged with any public offense, whether felony or misdemeanor, they must be tried

jointly, unless the court order[s] separate trials." The court may, in its discretion, order

separate trials if, among other reasons, there is an incriminating confession by one

defendant that implicates a codefendant, or if the defendants will present conflicting

defenses.' [Citations.] 'Additionally, severance may be called for when "there is a

serious risk that a joint trial would compromise a specific trial right of one of the

defendants, or prevent the jury from making a reliable judgment about guilt or

innocence." ' " (Souza, supra, 54 Cal.4th at p. 109.)

       Here, the defendants were charged with common crimes involving common events

and victims, presenting a classic case for a joint trial. (Souza, supra, 54 Cal.4th at

                                              11
p. 110.) Although Butts contends his defense conflicted with or was antagonistic to his

codefendants' defenses, this circumstance is not sufficient by itself to require separate

trials. (Ibid.) " ' "Rather, to obtain severance on the ground of conflicting defenses, it

must be demonstrated that the conflict is so prejudicial that [the] defenses are

irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates

that both are guilty." ' " (Id. at p. 111.) Butts has not asserted, much less attempted to

demonstrate, the requisite irreconcilability. Indeed, the example of conflicting defenses

he identifiedthat two of his codefendants claimed not to be present during the robbery

and that he claimed to be present solely to purchase marijuana, not steal itare not only

reconcilable, but are arguably compatible.3

       The potential use of the driver's extrajudicial statements for impeachment is also

not a sufficient circumstance to require separate trials. (See People v. Hoyos (2007) 41

Cal.4th 872, 895-896 [failure to sever a trial where a codefendant's extrajudicial

statements could potentially be used for impeachment did not result "in gross unfairness

amounting to a violation of due process"], disapproved on other points in People v. Black

(2014) 58 Cal.4th 912, 919-920, and People v. McKinnon (2011) 52 Cal.4th 610, 638,

641-642.) Further, and contrary to Butts's suggestions, nothing in the record indicates the




3       Given our conclusion, we need not address the People's contention Butts forfeited
the existence of conflicting defenses as a ground for challenging the trial court's denial of
his severance motion. (But see, People v. Tafoya (2007) 42 Cal.4th 147, 163; People v.
Jenkins (2000) 22 Cal.4th 900, 949 [appellant forfeited specific argument for challenging
trial court's denial of severance motion because he did not raise the argument below].)
                                              12
court could have or would have permitted the use of the driver's statements to impeach

Butts if Butts testified and the driver did not.

       Finally, the evidence of the codefendants' varying roles and relationships to one

another and to the robbery did not require severance. It is "quite likely that different

defendants participating together in a crime will have different levels of involvement and

different personal backgrounds. These circumstances alone do not compel severance or

render a joint trial grossly unfair." (People v. Bryant, Smith and Wheeler (2014) 60

Cal.4th 335, 383.) "To justify severance the characteristics or culpability of one or more

defendants must be such that the jury will find the remaining defendants guilty simply

because of their association with a reprehensible person, rather than assessing each

defendant's individual guilt of the crimes at issue." (Ibid.) Here, however, the record

does not show the evidence against Brown, which included rap videos the prosecution

opted not to offer at trial, portrayed him so reprehensibly the jury would have found his

codefendants guilty by association. In addition, the evidence against Brown, Kennison,

and Butts, while differing, was of comparable strength and amply supported their

convictions. Moreover, the jury demonstrated its ability to consider and weigh the

relative strength of the evidence against each individual by acquitting two of Butts's

codefendants. (See fn. 2, ante.) Accordingly, Butts has not established the trial court

prejudicially erred in denying his severance motion.




                                              13
                                            III

                      Admission of Kennison's Statements to Victim

                                             A

       Before trial, the prosecutor moved to admit Kennison's statements to the victim

indicating a robbery was occurring. The prosecutor argued the statements were

admissible under Evidence Code section 1223 as statements by a coconspirator during the

course of a conspiracy. The defendants objected to admission of the statements, arguing

the hearsay exception did not apply until the prosecutor first proved the existence of a

conspiracy at the time the statements were made. The prosecutor argued the statements

were admissible subject to a motion to strike absent sufficient proof of a conspiracy. The

prosecutor also argued there was prima facie evidence of a conspiracy because the crime

and, consequently, the conspiracy were underway when Kennison made the statements

and the defendants all fled in the same vehicle. The trial court granted the prosecutor's

motion, finding the prosecutor's offer of proof was sufficient to warrant admission of the

statements subject to any change in the evidence.

                                             B

       Hearsay is generally inadmissible. (Evid. Code, § 1200.) However, "[e]vidence

of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶]

(a) The statement was made by the declarant while participating in a conspiracy to

commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶]

(b) The statement was made prior to or during the time that the party was participating in

that conspiracy; and [¶] (c) The evidence is offered either after admission of evidence

                                            14
sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the

court's discretion as to the order of proof, subject to the admission of such evidence."

(Evid. Code, § 1223.)

       A prima facie showing of a conspiracy is required before a trial court may admit a

statement under Evidence Code section 1223. (People v. Gann (2011) 193 Cal.App.4th

994, 1005 (Gann).) A prima facie showing in this context "simply means that a

reasonable jury could find it more likely than not that the conspiracy existed at the time

the statement was made." (People v. Herrera (2000) 83 Cal.App.4th 46, 63.)

       "A conspiracy is an agreement between two or more persons, with specific intent,

to achieve an unlawful objective, coupled with an overt act by one of the conspirators to

further the conspiracy." (Gann, supra, 193 Cal.App.4th at p. 1005.) A "conspiracy may

be shown by circumstantial evidence and the agreement may be inferred from the

conduct of the defendants mutually carrying out a common purpose in violation of a

penal statute." (Id. at pp. 1005-1006.)

       " 'Once independent proof of a conspiracy has been shown, three preliminary facts

must be established: "(1) that the declarant was participating in a conspiracy at the time

of the declaration; (2) that the declaration was in furtherance of the objective of that

conspiracy; and (3) that at the time of the declaration the party against whom the

evidence is offered was participating or would later participate in the conspiracy." ' "

(People v. Homick (2012) 55 Cal.4th 816, 871.)

       In California, the existence of the conspiracy must be established by evidence

independent of the proffered statement. (People v. Herrera, supra, 83 Cal.App.4th at

                                              15
p. 65.) However, after the existence of the conspiracy is established, the content of the

statement must be considered in determining whether the statement was in furtherance of

the conspiracy. (Ibid.)

       In this case, the prosecutor proffered sufficient evidence, which if believed by the

jury, supported a finding Kennison and his codefendants were more likely than not

engaged in a conspiracy at the time Kennison made the statements to the victim.

Specifically, there was evidence Brown arranged to meet the victim, went to the meeting

location, got in the victim's truck, and was inspecting the victim's marijuana when

Kennison approached the victim. When the victim got out of his truck to protect himself

and his marijuana, Kennison, Brown, Butts, and another man surrounded the victim. As

some of the men beat the victim to the ground, Brown took the victim's phone and the

marijuana. Then all four men fled in an awaiting car.

       This same evidence, coupled with the content of Kennison's statements, also

supports the court's findings Kennison made the statements in furtherance of the

conspiracy and while participating in the conspiracy along with Butts. Butts, therefore,

has not established the trial court erred in admitting Kennison's statements under

Evidence Code section 1223.

                                             IV

                 Use of Booking Photographs During Opening Statement

                                             A

       Before trial, the prosecutor requested the trial court's permission to use the

defendants' booking photographs in a slide show presentation during her opening

                                             16
statement. She explained she would not refer to the photographs as booking photos and

she would only use them to "identify the players" in the case. The defendants objected to

the use of the photographs, arguing the photographs were prejudicial and unnecessary as

all of the defendants would be present in court.

       The court overruled the defendants' objections. The court explained, "I don't

believe that they are improper in terms of placing the defendants in a bad light. It doesn't

show them shackled. They're basically headshots. I don't think it shows them with some

sort of improper expression on their faces. They are photos that are of the defendants at

the time that they were contacted by law enforcement relating to this case. And so I think

that the passing reference use of them by the People in referring to the defendants who

are spread around half the courtroom is permissible and is not unduly prejudicial to any

defendant."

       Before the prosecutor's opening statement, the court instructed the jury "[a]n

opening statement is not evidence" and the jury "must not consider as evidence any

statement of any attorney made during the trial." It also instructed the jury, "You must

not be biased against the defendants because they may have been arrested for this

offense, charged with a crime, ever been in custody, or been brought to trial. None of

these circumstances would be evidence of guilt and you must not infer or assume from

any or all of them that the defendant[s] may be more likely to be guilty than not guilty."

       Before closing arguments, the court further instructed the jury, "Nothing that the

attorneys say is evidence. In their opening statements and closing arguments the



                                             17
attorneys discussed the case, but their remarks are not evidence, their questions are not

evidence . . . ."

                                              B

        Butts contends the trial court erred in allowing the prosecutor to use his and his

codefendants' booking photographs in her opening statement. He further contends the

use of the photographs deprived him of the presumption of innocence and the right to a

fair trial.

        Assuming, without deciding, the trial court erred in allowing the demonstrative

use of the booking photographs, the error was harmless under both the federal and state

standards. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46

Cal.2d 818, 836-837.) Nothing in the record indicates the photographs were

inflammatory or that defendants' appearance in the photographs differed appreciably from

their appearance at trial. The prosecutor did not refer to the photographs as booking

photographs nor did she seek to admit them as evidence. The court advised the jury the

prosecutor's statements were not evidence. The court also advised the jury it must not be

biased against the defendants because they were charged with a crime or were in custody,

and it could not consider these circumstances as evidence of guilt. "We presume the jury

followed the instructions it was given." (People v. Chism (2014) 58 Cal.4th 1266, 1299.)

Butts has not rebutted this presumption. To the contrary, the jury's acquittal of two of the

defendants whose photographs were shown demonstrates the jury was not unduly

influenced by the photographs. Therefore, Butts has failed to establish he was prejudiced

by the claimed error.

                                              18
                                             V

                                     Cumulative Error

       Butts contends the accumulation of the above errors deprived him of due process

of law and, consequently, requires us to reverse his conviction. We reject this argument

as "[w]e have found no error that, either alone or in conjunction with others, prejudiced

[him]." (People v. Williams (2013) 56 Cal.4th 165, 201.)

                                             VI

                                Abstract of Judgment Error

       Although the trial court stayed Brown's and Kennison's sentences for their count 1

conspiracy convictions under section 654, their abstracts of judgment indicate the court

imposed concurrent sentences for this count.4 Brown and Kennison contend, the People

concede, and we agree the abstracts of judgment must be corrected to reflect the court's

oral pronouncement of sentence.

       "In a criminal case, it is the oral pronouncement of sentence that constitutes the

judgment. [Citation.] To the extent a minute order diverges from the sentencing

proceedings it purports to memorialize, it is presumed to be the product of clerical error.

[Citation.] Likewise, the abstract of judgment ' "cannot add to or modify the judgment

which it purports to digest or summarize." ' [Citations.] As with other clerical errors,

discrepancies between an abstract and the actual judgment as orally pronounced are




4      Butts's abstract of judgment correctly indicates the court stayed the sentence for
his count 1 conspiracy conviction.
                                             19
subject to correction at any time, and should be corrected by a reviewing court when

detected on appeal." (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.)

                                             VII

                         Stay of Sentences for Battery Convictions

                                              A

       Brown and Kennison contend the trial court should have stayed their sentences for

their count 3 battery convictions because the battery was part of an indivisible course of

conduct. We agree.

       "[Section 654] prohibits the imposition of punishment for more than one violation

arising out of an 'act or omission' which is made punishable in different ways by different

statutory provisions." (People v. Beamon (1973) 8 Cal.3d 625, 636.) Section 654 applies

" ' "not only where there was but one 'act' in the ordinary sense . . . but also where a

course of conduct violated more than one statute . . . within the meaning of section

654." ' " (People v. Beamon, supra, at p. 637; People v. Rodriguez (2009) 47 Cal.4th

501, 507.) "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." (Neal v. State of

California (1960) 55 Cal.2d 11, 19; disapproved on another ground in People v. Correa

(2012) 54 Cal.4th 331, 336; People v. Rodriguez, supra, at p. 507; People v. Wynn (2010)

184 Cal.App.4th 1210, 1214-1215.) "If, on the other hand, defendant harbored 'multiple

criminal objectives,' which were independent of and not merely incidental to each other,

                                              20
he may be punished for each statutory violation committed in pursuit of each objective,

'even though the violations shared common acts or were parts of an otherwise indivisible

course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Wynn,

supra, at p. 1215.) " ' " 'A trial court's implied finding that a defendant harbored a

separate intent and objective for each offense will be upheld on appeal if it is supported

by substantial evidence.' " ' " (People v. McKinzie (2012) 54 Cal.4th 1302, 1368.)

       Here, in imposing concurrent terms for Brown's and Kennison's battery

convictions, the trial court implicitly found they had a separate objective to commit the

battery. However, the evidence is insufficient to support this finding. The evidence

shows the men beat the victim while trying to take the victim's marijuana. The beating

ended when they successfully obtained the marijuana and fled. These facts indicate the

battery was incidental to the robbery and was not a gratuitous act of violence, an

afterthought, or motivated by animus unrelated to the robbery. (See People v. Nunez

(2012) 210 Cal.App.4th 625, 630 [assault was not divisible from carjacking where

defendant committed the assault to take the car from a resisting victim].) Accordingly,

section 654 prohibits multiple punishments for both the robbery and the battery and the

trial court should have stayed the sentences for Brown's and Kennison's battery

convictions.

                                              B

       As noted earlier, the trial court failed to sentence Butts for his battery conviction.

The court was not authorized to waive sentencing for this conviction. We, therefore,

remand the matter to permit the court to impose a sentence for it. (People v. Cunningham

                                             21
(2001) 25 Cal.4th 926, 1044-1045 [failing to imposed a sentence is error subject to

correction when it comes to the trial court's or appellate court's attention].) Once the

court imposes its sentence, the sentence must be stayed under section 654 for the same

reasons discussed in part VII.A, ante.

                                            VIII

                                      Restitution Fines

                                              A

        As part of Kennison's sentence, the court imposed a restitution fine of $1,120 and

a corresponding parole revocation fine of the same amount. As part of Butts's and

Brown's sentences, the trial court imposed a restitution fine of $2,520 and a

corresponding parole revocation fine in the same amount. As part of Butts's sentence for

his probation revocation case, the court imposed a new restitution fine of $200 as well as

a previously stayed restitution fine of $200. It also imposed a parole revocation fine of

$280.

        All three men contend the court erred in calculating the amount of their restitution

and parole revocation fines. Butts additionally contends the court erred in its imposition

of restitution and parole revocation fines in his probation revocation case. We agree.

                                              B

                                              1

        "In every case where a person is convicted of a crime, the court shall impose a

separate and additional restitution fine, unless it finds compelling and extraordinary

reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b).)

                                             22
For a conviction of a felony crime on or after January 1, 2013, but before January 1,

2014, the fine may not be less than $280 or more than $10,000. (§ 1202.4, subd. (b)(1).)

       The court may, as it intended to do in this case, determine the amount of the fine

by calculating the product of the minimum fine "multiplied by the number of years of

imprisonment the defendant is ordered to serve, multiplied by the number of felony

counts of which the defendant is convicted." (§1202.4, subd. (b)(2).) The calculation

may not, however, include convictions for which the court must stay execution of

sentence under section 654. (People v. Sencion (2012) 211 Cal.App.4th 480, 483; People

v. Le (2006) 136 Cal.App.4th 925, 934.) As the court's calculation of the appellants'

restitution fines included convictions for which it stayed or should have stayed execution

of sentence, the fine amount must be reduced accordingly. The fine amount for Brown

and Butts should be $840 ($280 multiplied by three years in prison, multiplied by one

felony count) and the fine amount for Kennison should be $560 ($280 multiplied by two

years in prison, multiplied by one felony count).

       As the court was required to impose matching parole revocation fines (§ 1202.45,

subd. (a)), these fines must also be reduced to $840 for Brown and Butts and $560 for

Kennison. Given our conclusions in this part and part VII, ante, we need not address the

People's contention the trial court erred by failing to impose a restitution fine for

appellants' battery convictions.

                                              2

       The court also erred in imposing a new restitution fine in Butts's probation

revocation case. A "court may not impose a second restitution fine after probation has

                                              23
been revoked because the original fine survives the revocation of probation." (People v.

Rios (2013) 222 Cal.App.4th 542, 576.) The amount of the parole revocation fine must

also be reduced to $200 since the parole revocation fine must be in the same amount as

the original restitution fine imposed in the probation revocation case. (Ibid.)

                                       DISPOSITION

       As to Brown, the trial court is directed to modify the abstract of judgment to show

the stay of his sentences for counts 1 and 3, the imposition of a felony restitution fine of

$840, and the imposition of a corresponding parole revocation fine of $840. As to

Kennison, the trial court is directed to modify the abstract of judgment to show the stay

of his sentences for counts 1 and 3, the imposition of a felony restitution fine of $560,

and the imposition of a corresponding parole revocation fine of $560. As to Butts, the

matter is remanded for sentencing as to count 3, consistent with this court's decision in

part VII. In addition, the trial court is directed to modify the abstract of judgment to

show the imposition of a felony restitution fine of $840 and a corresponding parole

revocation fine of $840 in this case, and the imposition of a restitution fine of $200 and a

corresponding parole revocation fine of $200 in the probation revocation case.




                                             24
The trial court shall forward a copy of each amended abstract of judgment to the

Department of Corrections and Rehabilitation. The judgments are affirmed in all other

respects.


                                                                    MCCONNELL, P. J.

WE CONCUR:


BENKE, J.


MCINTYRE, J.




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