THE PEOPLE v. RAYMOND ANTHONY BROWN (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

A jury convicted Raymond Anthony Brown of (1) the murder of Jose Miranda with the special circumstance of robbery (Pen.Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(a); ¹  count 1);  (2) the attempted robbery of Jose Miranda (§§ 211, 664;  count 2);  (3) the robbery of Javier Mendoza (§ 211;  count 3);  and (4) the attempted robbery of Antonio Miranda (§ 211;  count 4).   The jury, however, was unable to reach a decision on section 12022.5, subdivision (a)(1) and section 12022.53, subdivision (b), firearm use allegations attached to each count.   Brown was sentenced to a determinate term of six years, four months, comprised of the five year upper term for the count 3 robbery and eight months for each of the count 2 and 4 attempted robberies, to be followed by a consecutive term of life without the possibility of parole for the murder.

On appeal, Brown contends (1) the jurors were improperly instructed on conspiracy as a form of vicarious liability, (2) the trial court erred in denying his request to continue the sentencing hearing, and (3) his determinate sentence for the robbery and attempted robberies should be stayed pursuant to section 654.   As we shall explain, while we disagree with Brown's first two contentions, we agree that the sentence on count 2 should be stayed and will modify the judgment accordingly.

In the early morning hours of April 15, 2006, brothers Jose Miranda (Jose) and Antonio Miranda Solorio (Antonio), and their friend, Javier Mendoza, were driving from a dance club to a house belonging to Antonio's aunt and uncle located in Merced County, where the three had been staying.   Mendoza drove the car, while Jose was in the front passenger seat and Antonio in the back seat.   On the way, Mendoza noticed another car following them.   When they arrived at the house, the car behind them sped up;  after Mendoza parked in the driveway, the other car stopped behind them “real fast.”   Antonio saw three men run toward their car.   One man, who was carrying a small rifle, ran to the driver's side door and pointed the rifle at Mendoza, demanding money.   Mendoza got out of the car and handed the money in his wallet to the man, which the man put in his pocket.   Antonio tried to hide in the back seat by slumping down a few inches.   At some point, the rifle hit the window or door where Antonio was sitting, but the man did not say anything or gesture to Antonio.

Antonio saw two figures in the dark on the car's passenger side.   They pulled on Jose and said, “money.”   Jose said, “no money.”   Antonio saw the man with the rifle fire through the driver's side window at Jose, who was still in the car.   The other two pulled Jose from the car on the passenger side.   Antonio saw the man with the rifle run around the back of the car to the passenger side and heard another two to three shots.   He could not tell if the other men had guns.   Antonio saw the men run to their car, which looked like a Mustang with its top down, and drive off.   Antonio got out of the car on the driver's side and ran to his brother, who was lying on the front porch.   Antonio could tell the man with the rifle was African-American and he believed the other men were African-American because their voices “sounded black.”   Antonio, however, could not identify any of the men.

A Merced deputy sheriff was dispatched to the scene shortly before 2:00 a.m.. On arrival, the deputy found a man down on the front porch who was not breathing.   Paramedics arrived shortly thereafter but efforts to revive the man, identified as Jose, failed.   The deputy questioned the visibly upset, Spanish-speaking men present at the scene through an interpreter.   The men told her they had been robbed by three black adult males and described the car carrying the robbers as a two-door Mustang.

The pathologist who conducted Jose's autopsy found two gunshot wounds.   One bullet entered his left shoulder, shattered the bone, and exited through the posterior.   It was possible Jose was seated when he was shot.   The size of the entry wound was consistent with a small caliber weapon like a .22.   Another bullet entered through Jose's right shoulder and passed through his right lung and the aorta, triggering extensive and fatal bleeding.   The pathologist recovered that bullet from the body, which appeared to be a small caliber bullet consistent with a .22.   The pathologist opined the cause of death was bleeding due to the gunshot wound that severed the aorta.

Fernando Barrera's sister is married to Brown.   At the time of the crime, Barrera, who owned a 1998 Ford Mustang convertible, was staying with his sister and Brown at their apartment.   Marcus Whitaker, who Barrera knew as “Feddy,” also was staying at the apartment.   On the night of the crime, Whitaker was driving Barrera's car with Barrera in the front passenger seat and Brown in the back seat.   According to Barrera, another African-American male, who Barrera did not know, also was sitting in the back seat.   As the men were trying to get the attention of some girls who were in another car, a third car cut them off.   Whitaker began following that car.   When the car turned into a private home driveway, they pulled in right behind it.

Barrera saw Whitaker go up to the driver's side of the victims' car and the driver get on the ground.   Barrera also saw Brown and the unidentified man get out of the Mustang;  Brown was struggling with the passenger on the passenger side of the victims' car and Brown's hands went into the car like he was hitting the passenger.   The unidentified man was standing behind Brown.   Barrera explained “Marcus Whitaker let a round off from the driver's side and hit the passenger and the passenger got out and I heard him yell, ‘ay guey [,]’ ” which Barrera said would be translated as “oh shit” or “oh fuck.”   Barrera then got out of the car and yelled, “What the fuck.”   Whitaker told Barrera to get back in the car and he did so.   Brown was backing up towards the trunk of the victims' car as the passenger was walking toward Brown when Whitaker “came around and just started letting rounds off.”   Barrera claimed that Brown and the unidentified man did not have guns.   As Brown was struggling with the passenger just before Whitaker fired the first shot, Barrera heard Brown say to Whitaker “get him Nigger.”   Barrera and his three companions got into the Mustang and drove off, dropping the unidentified man at a convenience store.   The remaining three then returned to Brown's apartment.   Whitaker told Barrera not to say anything about the shooting.   Barrera saw Brown and Whitaker splitting up the robbery money at the apartment.

Barrera did not know what was going to happen when he went to the scene with the others and denied participating in the robbery in any way.   Barrera did not know why he did not call the police.   He was afraid of his companions after what had happened.   Barrera admitted that when he was first arrested, he told officers he did not know about the robbery and shooting, and he was not there.   But after a third interview he started to tell the truth, revealing Brown's participation in the incident.   Barrera said he decided to disclose what he had seen after talking to family members and people from his church, and because he felt guilty about what happened.

On cross-examination Barrera admitted initially lying to detectives about his presence at the murder scene and said he did so because he was afraid of Whitaker and concerned he or his family might be harmed.   According to Barrera, there was no plan to commit a robbery and the robbery came as a shock and surprise to him.   He acknowledged he was placed in a witness protection program or protective custody after he told authorities the truth.   He was subpoenaed to testify in Whitaker's case.   Barrera said the only “deal” he had with the prosecution was to tell the truth.   Barrera also acknowledged he was arrested in November 2007 for being drunk and disorderly, and in May 2008 for being drunk and disorderly and resisting arrest.   He conceded those charges may have been dismissed.

After Barrera's arrest, deputies seized Barrera's Mustang.   An expended CCI brand .22-caliber shell casing was found behind the back seat.   Four Federal brand .22 caliber shell casings were found at the crime scene around the victims' car.   No .22-caliber weapons were ever recovered.   During a search of Brown's apartment pursuant to a warrant, three CCI brand .22-caliber bullets were found in a window sill.   A Department of Justice criminalist analyzed the five .22 caliber shell casings and opined they were “most likely” fired by the same weapon, although he could not be absolutely certain of that.   The criminalist was never provided a weapon with which to compare the casings.

Former Merced Sheriff's Department detective Tim McCann interviewed Brown on April 21, 2006, after returning him to Merced from the Oakland jail.   The videotape of the interview was placed for the jury.   In that interview, Brown denied knowing much about Whitaker, who “had a lot of secrets.”   Brown admitted being involved in an attempted robbery.   Brown initially claimed that on the night of the murder he and his wife had gone out drinking with Barrera and Whitaker's girlfriend, and then returned home and went to sleep.

After detectives told Brown they had evidence he was involved in Jose's murder, Brown admitted he was with Whitaker, Barrera and an unidentified male that night.   They were in Barrera's Mustang, with Whitaker driving, Barrera in the front passenger seat and Brown and the unidentified man in the back seat.   When the Mustang stopped behind the victims' car, Brown and his companions all got out of the Mustang and tried to rob the guys in the car.   Brown approached Jose on the passenger side and pointed a broken revolver at his head.   Brown demanded money, stating “give it up.”   Jose grabbed the revolver, took it away from Brown and pointed it at him.   Brown, who knew the gun could fire at least once before jamming, said to Whitaker “get this fool.   Get him.”   Later in the interview, he claimed he said he called to his fellow robbers to “shoot” Jose, saying “get him off of me somebody.   Get him.   Shoot him or something.”   Brown fled behind the victims' car and back to the Mustang;  only then did he hear a shot.   Brown denied knowing who shot Jose. Brown did not know what happened to his gun and thought it was left at the crime scene.   Brown did not know how many shots he heard.   Brown was told Barrera also had a gun, but it also did not work properly.   Brown said Whitaker was carrying a sawed-off, small caliber rifle.   At one point in the interview, Brown said he knew Whitaker had fired a shot, but he thought the shot was aimed at the sky.   Brown admitted being involved in other robberies or robbery attempts with Whitaker and Barrera.   Brown admitted his job was to go up to the car and take the guy's money, but he didn't get the job done.

McCann interviewed Brown a second time 12 hours after the first interview.   Brown refused to reveal the name of the fourth man in the vehicle.   Brown again stated he had a revolver with him during the robbery which was broken and held only one round, and that Jose had taken the gun from him and pointed it at him.   Brown also claimed all four suspects carried guns, including Barrera.

Defense Case

Brown's mother, Sonya Brown, said Barrera called her Oakland home a couple of times on April 20, 2006 and asked to speak with Brown.   She did not know how long the two talked.   At the time of the calls, her son and his wife had been staying with her for several days.

Brown's wife, Lastar Brown, is Barrera's sister.   She said that on the night of the murder, Brown was with her at their Merced apartment the entire night.   Barrera was also at the apartment that night.   She did not know whether Brown left after she went to sleep that night and admitted he could have done so, but she probably would have heard him.   On April 16, 2006, which was Easter Sunday, Lastar and Brown left the apartment and went to her mother's.   They did not return to the apartment and instead drove to Oakland, where they stayed for a couple of days.

DISCUSSION

I. Instructional Error

The prosecution presented two possible theories of liability for murder:  aiding and abetting and conspiracy to commit robbery or attempted robbery.   The jury was instructed that Brown was charged with murder under a theory of felony murder, and to prove his guilt of first degree murder, the People must prove, inter alia, Brown “aided and abetted, or was a member of a conspiracy to commit robbery or attempted robbery;  ․ “ The jury also was instructed that Brown could be convicted of the robbery or attempted robbery counts based on either aiding and abetting or conspiracy.

Brown contends the trial court erred in instructing the jury that criminal liability could be based on a theory of conspiracy.   He asserts that conspiracy is a crime, not a theory of criminal liability, therefore an uncharged conspiracy cannot provide the basis for finding him guilty of robbery or attempted robbery and then of first degree murder using the felony murder rule.   He notes that section 31 limits principals to persons who “directly commit the act constituting the offense, or aid and abet in its commission․”  He observes that a person can engage in a conspiracy without aiding and abetting the commission of another crime and without attempting to commit another crime, and asserts that no case has held that an uncharged conspiracy may serve as the only basis of liability for a separate offense.   (See People v. Belmontes (1988) 45 Cal.3d 744, 788-789, disapproved on other grounds in People v. Dodin (2009) 45 Cal.4th 390, 421, fn. 22);  People v. Durham (1969) 70 Cal.2d 171, 185.) ²

The contention is academic because the evidence in the present case showed that Brown either directly committed or aided and abetted the others in committing the robbery or attempted robberies upon which the felony murder charge was based.   Thus, we need not decide whether an uncharged conspiracy may serve as the basis of a defendant's liability for another crime, where the facts constituting the defendant's participation in the uncharged conspiracy do not constitute aiding and abetting in the commission of the other crime.

As Brown observes, a person who either directly commits a crime or aids and abets another in committing a crime is a principal in the commission of that crime. (§ 31.)  “A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.”  (People v. Cooper (1991) 53 Cal.3d 1158, 1164;  People v. Beeman (1984) 35 Cal.3d 547, 561.)

Here, the evidence showed that at least Brown and Whitaker approached the victims' car and with each others' active assistance, robbed or attempted to rob the men inside, and Whitaker shot Jose during Brown's attempt to rob him.   While, as Brown points out, the prosecutor argued conspiracy to commit robbery as a separate theory of liability for felony murder, the facts the prosecutor relied on in making that argument are the same facts he relied upon when arguing Brown aided and abetted the commission of the robbery and attempted robberies, namely that Brown and the others acted together in attempting to rob the victims.

Thus we reject Brown's contention, because it is inapposite to the facts of the present case.

II. Sentencing Issues

Brown contends the trial court abused its discretion when it denied the defense a third continuance of the sentencing hearing.   He also contends he was incorrectly sentenced, as the court was required to stay his determinate sentences pursuant to section 654.

A. Sentencing Hearing

Brown was represented below by two attorneys, Linden Lindahl and Glenn Wilson.   On the original sentencing date of August 22, 2008, the trial court granted Wilson's request to continue the sentencing hearing to September 11 so the defense could collect letters supporting Brown.   On September 11, the trial court again continued sentencing to September 19, because Lindahl was in trial on another matter and Wilson was ill.

At the September 19, 2008 sentencing, Wilson appeared on Brown's behalf and informed the court Brown wanted to request a continuance, he had talked to Brown “about this,” and Brown wanted to address the court himself regarding a lack of contact with him.   Brown then asked the court for a “stay of execution or a Cruz waiver for 30 to 60 days, based on the fact that I was not informed, did not know either of the right to appeal or that it had to be exercised within a specific time period, due to good cause of-based on good cause, due to the lack of communication between my lawyer and I.” The court explained to Brown that he would be advised of his appellate rights at the conclusion of the sentencing hearing and the “issue at this stage is whether or not you had enough time to review the probation report or any other issues related to your guilty verdicts” with co-counsel.   Brown responded he had not.

Wilson explained he met with Brown at the conclusion of the trial and at the last hearing Wilson attended in the case, when they discussed the appellate process and what took place at trial.   Wilson also met with Brown “briefly” that day, which is when Brown instructed him “he wanted to go forward in this matter,” and Wilson advised Brown he would give him an opportunity to talk with the court.   Wilson told the court he and Lindahl met after the trial “to go over that whole concept of whether we had the grounds to file any post judgment or post trial motions and determined they would not stand.”   Wilson also stated he had not reviewed the probation report with Brown.   The prosecutor gave Wilson his copy to use and the court gave Wilson time to review the report with Brown during a recess in the proceedings.

After an unspecified amount of time, the hearing resumed.   Wilson informed the court Brown still did not believe he had “enough time to go over this and fully understand the ramification of the conviction and the various special circumstances allegation and is requesting additional time to go over the probation report in more detail with me and over the conviction of the charges with him, in more detail.”   The prosecutor asked the court to proceed, noting the hearing had been continued twice for the defense, the defense had plenty of time to review the probation report as it was completed in August, and he was sure Wilson would have gone over the potential consequences of the conviction and the enhancements before trial.   Wilson admitted they had gone over “in great detail” the potential ramifications of the charges and enhancements, and had spent a considerable amount of time with Brown, but this was the first he had seen the probation report and the first opportunity he had to review it with Brown, which was “the only fly in the ointment.”   Wilson agreed with the court that Brown had been fully apprised of the special circumstances and consequences associated with that.   The court stated it could not find good cause to continue sentencing and asked if there was anything else.

Wilson responded “[n]othing other than it's Mr. Brown's request he be fully apprised of everything relating to this, including the probation report, and would like me to have the opportunity to go over that in more detail with him.   Specifically as to whether or not all aggravating and mitigating circumstances that may apply to him were, in fact, applied.”   The court responded that the jury found one of the circumstances in aggravation not true, which was that Brown was armed with or used a weapon at the time of the commission of the crime.   After Wilson conferred with Brown off-the-record, Wilson stated Brown was “not in agreement of going forward” as he wanted to meet with Wilson “at great length to go over the consequences of the guilt conviction” and its potential ramifications.   Wilson also stated that Brown apparently had information he wanted to address with Wilson regarding a possible new trial motion, although Wilson was not sure what “all that information is,” noting that Brown had a notebook full of writing and Wilson had not been in communication with Brown since the last court hearing.

The court responded this was the second continuance.   The prosecutor stated is was third time they had been there and he wanted to go forward because the victims' family had been there three times and each time they came, they had to relive the case.   In addition, it would be difficult for him to return the following week because he was starting a murder trial and was currently in trial.   The prosecutor noted it had “been a full afternoon devoted here to this” and although he was willing to give defense counsel more time to talk to Brown that day, he wanted to finish the hearing.   He also thought a new trial motion was untimely.   The court added that defense counsel had looked at the issue of a new trial motion and had not found a legal basis to pursue “any of those rights,” so the only issue was sentencing factors.   The court asked Wilson if there was any other information and Wilson responded, “[n]othing other than that.”   Wilson explained that the prior continuances were not Brown's fault and apologized to the court and victims for having to show up on the last hearing, but stated he did not believe it should be attributed to Brown.   The court responded it was not, but it still needed legal cause to continue the hearing and it had not heard a legal basis or good cause to do so.   Wilson stated it was “Brown's position” that he hadn't “had sufficient time to confer with his attorney in order to go forward with sentencing and have a full understanding of the procedures that are happening at this time.”

The court stated there had been sufficient opportunity to review the matter, as the probation report had been available since August 18, 2008.   Wilson was not certain he had received the report and Lindahl had not mentioned anything about it.   The court asked if the family was local and the prosecutor responded that one of the victims' relatives had lost her job because of all of the time she had to come to court and he wanted to proceed.   The court did not find good cause to continue the sentencing, explaining that a line had to be drawn at some point in time and it would not be a surprise to anyone that this was the day to pronounce sentence.

The court then proceeded with the sentencing.   The court stated it had reviewed the probation and restitution reports, as well as a binder submitted on Brown's behalf.   The prosecutor noted letters submitted on Brown's behalf were unsigned, but asked the court to consider the letters since defense counsel stated he would attempt to get signatures.   The court agreed to allow the record to remain open so Wilson could obtain signatures.   The court took victim impact statements, which included the reading of a letter from Jose's niece and a statement from Jose's sister.

Wilson requested corrections to the probation report, which included removing certain circumstances in aggravation that were checked on the probation report and considering circumstances in mitigation that were not checked.   The prosecutor objected to these requests and asked the court to consider other circumstances in aggravation.   The prosecutor also asked the court to run the determinate sentence consecutive to the life sentence because the robbery victim, Mendoza, was a separate victim from the attempted robbery victim, Antonio, and sentence Brown to the upper term of five years on the full robbery count, with the others consecutive.   Wilson argued sentencing should be concurrent because it was a single transaction or incident that resulted in the death.   The prosecutor responded that three separate victims were involved.   Brown and his mother then personally addressed the court.

The court denied probation.   The court selected the upper term for purposes of the determinate sentences, explaining that the factors in aggravation outweighed the factors in mitigation, since the crime was carried out in a manner that involved planning, sophistication and professionalism, as shown by the three principals getting out of the car and acting on cue without any words being said, and the robberies involved violent conduct indicating Brown presented a serious danger to society.   The court further explained the only convincing factor in mitigation was that Brown initially admitted wrongdoing early in the process, but that factor was nullified by Brown's position at trial and in court, where he continued to deny involvement in the crimes, and by lying to the detective to protect Barrera.

The court selected the count 3 robbery as the principal term for the determinate sentence, and imposed the upper term of five years.   The court found there should be consecutive sentences for counts 2 and 3 and count 1, as there were three separate victims involved in those crimes and the attempts to rob could be separated from the actual murder because the murder occurred while Brown and Jose were struggling and Brown yelled to Whitaker to “get ‘em,” which showed Brown wanted “serious action taken against the decedent.”   Accordingly, the court imposed one-third the midterm consecutive sentence on count 2 and one-third the midterm consecutive sentence on count 4, for a total determinate sentence on counts 2, 3 and 4 of six years, four months.   On count 1, the court found the indeterminate sentence of life without the possibility of parole should commence upon completion of the determinate sentence, as Brown directed or commanded the action which directly resulted in Jose's being shot and killed.  !(RT 750-751)!

B. Denial of Continuance

In ruling on a motion to continue, the court must consider not only the benefit that the moving party anticipates, but also the likelihood that such benefit will result, the burden on other witnesses, jurors, and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.  (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)   The trial court decision will not be disturbed on appeal in the absence of a clear abuse of discretion.  (Ibid.)

No abuse of discretion appears here.   While Brown contends that Wilson was unprepared for the hearing because he had not seen the probation report previously, the court gave Wilson time to review the probation report with Brown.   Wilson was then able to argue regarding the circumstances in aggravation and mitigation that the court should consider.   Significantly, Wilson never stated that he needed additional time to review the report or prepare for the hearing.

Brown also contends that Wilson did not have time to advise him regarding the wisdom or content of his allocution, which became part of the aggravating circumstances.   Nothing in the record, however, suggests that Wilson did not have time to advise Brown about his statement to the court.   Wilson met with Brown before the sentencing hearing and Brown was given time during the hearing to discuss the probation report with Wilson.   During those conversations, Wilson may very well have discussed the allocution with Brown.   Even if Wilson did not have time to discuss the allocution with Brown, no prejudice resulted because Brown's statement was only one factor the court considered when determining whether to impose the upper term on the robbery count.   The court articulated at least two other aggravating factors, any one of which would justify a high term sentence.  (People v. Castorena (1996) 51 Cal.App.4th 558, 562, fn. 11.)   The court's evaluation of the aggravating and mitigating factors was consistent with the probation report.   We have reviewed the court's explanation for selecting the high term and conclude that the numerous aggravating factors articulated would justify the high term even if Brown could establish a mitigating factor.

C. Section 654

The jury convicted Brown of the murder of Jose in count 1, under a theory of felony murder, and found true the special circumstance that the murder was committed while engaged in the commission of robbery or attempted robbery.   The jury also convicted Brown in count 2 of the attempted robbery of Jose, in count 3 of the robbery of Mendoza, and in count 4 of the attempted robbery of Antonio.   At sentencing the trial court imposed a five-year sentence for the count 3 robbery, and eight month sentences for counts 2 and 4, and ordered they be served consecutive to each other and to the murder.

Brown contends that because (1) section 654 bars consecutive sentences for felony murder and the underlying felony, (2) the jury did not determine specifically which of counts 2, 3 or 4 served as the basis for the felony murder conviction, and (3) there was evidence that the robbery and attempted robberies were incident to one intent and objective, the trial court should have stayed the sentences imposed on all three of those counts.   While the People agree that the sentence on one of the counts should be stayed, they contend the other two counts may be imposed because multiple victims were involved.

Section 654 bars double punishment not only for a single criminal act but for a single indivisible course of conduct in which the defendant had only one criminal intent or objective.³  (People v. Bauer (1969) 1 Cal.3d 368, 376;  In re Ward (1966) 64 Cal.2d 672, 675-676;  Neal v. State of California (1960) 55 Cal.2d 11, 19.)   We review under the substantial evidence standard the court's factual finding, implicit or explicit, of whether or not there was a single criminal act or a course of conduct with a single criminal objective.  (People v. Coleman (1989) 48 Cal.3d 112, 162;  People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.)   As always, we review the trial court's conclusions of law de novo.  (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687.)

Section 654 does not bar multiple punishments where multiple crimes of violence arising from a single act had separate victims.  (People v. Miller (1977) 18 Cal.3d 873, 885-886, overruled on other grounds in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8;  People v. Young (1992) 11 Cal.App.4th 1299, 1311-1312 (Young ).)   Here, Brown's crimes of violence had a total of three victims - the attempted robbery and murder of Jose, the robbery of Mendoza, and the attempted robbery of Antonio.

Since multiple victims were involved, imposition of multiple punishment, at least with respect to the attempted robbery of Antonio and the robbery of Mendoza is permissible.   This is true even if those convictions were the basis of the felony-murder conviction.   While, as Brown points out, in People v. Mulqueen (1970) 9 Cal.App.3d 532, 547 (Mulqueen ), the court held that section 654 requires a stay on a sentence for robbery where the robbery elevated a murder, for which the defendant was separately sentenced, to the first degree, that case involved only one victim.  (Id. at p. 536.)   In a multiple-victim case, however, where the defendant robbed one person and in the commission of that robbery killed a different person, the defendant may be punished for both the robbery and the murder.  (Young, supra, 11 Cal.App.4th at pp. 1302, 1311.)   The result is essentially the same here.   Section 654 does not bar multiple punishments for felony murder and the underlying felony where the two crimes had separate victims.

The same, however, is not true for the attempted robbery of Jose, as he is the victim of both the attempted robbery and murder.   Therefore, assuming his attempted robbery was the basis for the felony-murder conviction, multiple punishment is prohibited under Mulqueen.   Even if the attempted robbery of Jose was not the basis for felony-murder, there is no independent basis for imposing separate punishment, as evidence shows his murder was committed in the course of the attempt to rob him.   That Brown may have encouraged or instructed Whitaker to shoot Jose is of no moment, as his instruction occurred as part of the attempted robbery.   Since the court should have stayed the attempted robbery of Jose, we will modify the judgment by staying execution of the terms imposed on count 2.

DISPOSITION

The judgment is modified by staying execution of the sentence on count 2. The trial court is directed to prepare an amended abstract of judgment that reflects the

modified judgment and forward a copy to the Department of Rehabilitation and Corrections.   As so modified, the judgment is affirmed.

Gomes, J.

WE CONCUR:

Vartabedian, Acting P.J.

Wiseman, J.

FOOTNOTES

FN1. All further statutory references are to the Penal Code, unless otherwise stated..  FN1. All further statutory references are to the Penal Code, unless otherwise stated.

FN2. The People contend this contention is forfeited because Brown did not raise at trial the claim he raises on appeal, namely that an uncharged conspiracy is not a valid theory of liability.   As Brown asserts, to the extent the asserted instructional error affected his substantial rights, his claim is reviewable on appeal without objection. (§ 1259.)   Accordingly, we address his claim..  FN2. The People contend this contention is forfeited because Brown did not raise at trial the claim he raises on appeal, namely that an uncharged conspiracy is not a valid theory of liability.   As Brown asserts, to the extent the asserted instructional error affected his substantial rights, his claim is reviewable on appeal without objection. (§ 1259.)   Accordingly, we address his claim.

FN3. Section 654 provides, in part, as follows:  “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”.  FN3. Section 654 provides, in part, as follows:  “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”