Fil e d 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115 (b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. ALBERTO JUNIOR VASQUEZ, Defendant and Appellant. G047787 (Super. Ct. No. 11NF3081)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed as modified

.

Ro bert 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.
* * *2 Defendant Alberto Junior Vasquez appeals following his guilty plea on carjacking and robbery charges. He argues the trial court committed two er rors in sentencing : (1) imposing a weapon use enhancement pursuant to Penal Code section 12022, subdivision (b) (2), 1 becaus e that enhancement was never included in the
information nor admitted by defendant ; (2) failing to stay the punishment for robbery
p ursuant to section 654 . He further asserts his waiver of his right to appeal following the guilty plea does not encompass the se errors.

We affirm the weapon use enhancement pursuant to sect ion 12022, subdivision (b)(2). W e find the trial court erred , however, in n ot 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., w ho was standing outside of his car. Martinez brandished a steak knife, made stabbing motions t owar ds 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 wal let, defendant and Martinez drove away in Jorge E. ’ s car. Jorge E. reported
the incident. A Santa Ana police officer saw Jorge E. ’ s SU V, 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

.3 On December 12, 2011, the Orange County District Attorney filed an information charging defendant in count one with carjacking (§ 215, subd. (a)); in count
three 2 with resisting a police officer (§ 148, subd. (a)(1)); and in coun t 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 commiss ion of counts one and four (§ 12022 , subd. (b)(1)) and that defendant had a prior strike under the “ Three Strikes ” l aw (§§ 667, subds. (d) , (e)(1), 1170.12 , subd s . (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

Range Enhancements Yrs. Term for Priors Yrs. Total

Penalty years 1 PC 215(a) 3

- 5

- 9 12022(b)(1) 1

- 2

- 3 667(d) ( e)(1) x2

4 PC 211/ 212.5 (c) 2

- 3

- 5 12022(b)(1) 1 667(a)(1) +5

29 years

2 Count two applied to Martinez only.4 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 l aw, 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 l aw, 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 sec tion 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 f

ailed 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, w hen an appeal attacks grounds that rise after entry of the plea and do es not

3 The m inutes and the r eporter’s t ranscript 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
se ntence, however, the trial judge stated, “Penal Code s ection 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 1 2022 , subdivision (b)(2).5

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 (20 07) 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), an d his section 654 allegation are “ in substance a challenge to the val idity 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 express ly 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, subdivis ion (b)(2); therefore, the sentence is
unauthorized. Defendant attemp ts to frame the error as a sentencing error. He co ntends 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 a n apparent scrivener ’ s

error on the information and defendant ’ s plea agreement, both the plea and sentence were
valid.

B

. Se ction 12022, Subdivision (b)(2) Enhancement

“ A claim that a sentence is unauthorized . . . may be raised for the fir st 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 l awfully 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, subdivisio n (b)(2)

. This6

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 enhanc ement 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 commissi on 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 en hancement section 12022, subdivision (b)(1), for the second degree robbery charge, with a pen alty 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 ” year s for the penalty enhancement , as set forth on the plea form

. I n 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 de adly 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 se ntence, however, it referred to the carjacking enhancement

as s ection 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 sentence d 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 12022,7

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 t he t wo

- year sentence is unauthorized under

s ection 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. ” ( Peo

ple 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 sen tencing defendant to two years.

California law requires that “ [a]ll enhan cements 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 enhancemen t allegation. ( People v. Haskin (199 2) 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 weap on during the commission of rape and oral copulation, within the meaning of8

section 12022, subdivision (b), which allowed a n additional one

- year imprisonment

. ( Neal , supra , 159 Cal.App.3d at p. 72.) The jury found weapons enhancement true as to
each crim e. 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 s ought, 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
p p . 73

- 74 .) Because the defendant could not demonstrate prejudice, the sentence was not reduced. ( Id . at p. 74.)

Similarly, th is information alleged a weapon enhancement for carjacking, pursuant to section 12022, subdivision (b)(1), but the court imposed an en hancement
based on defendant ’ s plea. Defendant was, or should have been aware, the prosecutor

was see king 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 l aw, because

w hen 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 carja cking with a dangerous weapon, instead of the three years authorized under section 12022, subdivision (b)(2). These arguments are9

unconvincing . It is impla usible 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 ca se 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 ar ising 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.) W hether 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.3d10

112, 162.) D efendant argues the evidence establishing multiple intents is insufficient
because t he 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 . T he 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 inapplicabl e , as the Dominguez court held. Here, Martinez ordered Jorge
E. to give Martinez hi s 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 robb ery 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 merge d 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 underly ing circumstances of C ounts 1 and 4, the robbery and carjacking merge within the meaning of Penal Code § 654.”11 II I
DISPOSITION The trial court is ordered t o 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.