PEOPLE v. LATIMER (1992)

OPINION

Defendant appeals from the judgment entered below upon his convictions pursuant to pleas of nolo contendere to two counts of forcible rape (Pen.Code, § 261, subd. (a)(2))—each of which counts was attended by the special allegation that the charged rape was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(3)—and to one count of kidnapping (Pen.Code, § 207, subd. (a))—which count was attended by the special allegation that the charged kidnapping was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(20)—as well as to defendant's admission that he had personally caused great bodily injury to the victim in committing one of the two rapes to which he pled nolo contendere, within the meaning of Penal Code section 12022.8, resulting in that rape being deemed a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(8).¹

On appeal, defendant raises two sentencing contentions:  (1) The trial court erred by not staying, pursuant to section 654, a consecutive sentence imposed with respect to the kidnapping count;  and (2) the trial court erred in failing to state specific reasons for sentencing him to full and consecutive terms on the two forcible rape counts in accordance with section 667.6.   We conclude:  (1) That defendant's section 654 contention is meritorious and requires that we modify the sentence which was imposed in this case;  and (2) that defendant's section 667.6 contention is not meritorious.

FACTS

On Christmas Eve 1989, defendant and a male friend visited the apartment of the woman who was later to become the victim of the crimes charged herein (hereinafter, the victim).   The victim was at home with her female roommate.   The victim knew defendant only slightly, having met him but once before.

Defendant and the victim left to do some grocery shopping and then to briefly visit one of the victim's friends in order to pick up some video tapes and other miscellaneous items.   After making a preliminary stop for wine and cigarettes, however, defendant drove directly past the apartment where the victim was to pick up the video tapes and other items and continued a short distance further, past the point where the paving of the road on which they were driving ended and into an undeveloped area of nearby desert.

Defendant immediately assaulted the victim—grabbing, striking and choking her to compel her to undress and submit to his sexual advances.   The victim, fearing for her life, did submit, and defendant then raped the victim and forced her to orally copulate him.   This entire assaultive episode lasted the better part of an hour, at the end of which defendant and the victim both got dressed.   Defendant started the car and drove away from the site of the first rape.

Rather than return to town, however, defendant merely drove approximately 50–75 yards further into the desert and again assaulted and raped the victim.   Following this second rape episode, which again lasted the better part of an hour, defendant and the victim once again got dressed—and, once again, defendant started the car and drove away from the site of the rape.

The entire sequential scenario began to unfold for yet a third time.   Once again, rather than drive back to town, defendant merely drove another 30–75 yards into the desert and stopped.   The victim, beginning to fear that defendant would not let her live even though she had submitted to him, leapt from the car and ran into the desert.   Defendant simply drove away.²

By amended felony complaint, defendant was alleged to have committed three forcible rapes, two kidnappings and one forcible oral copulation during his terrorization of the victim.   Each of the four sex crime counts was attended by the special allegation that defendant personally inflicted great bodily injury upon the victim in committing the crime.

Prior to a preliminary hearing being conducted, defendant entered into a plea bargain with the prosecution.   In essence, the bargain consisted, on the one hand, of defendant's pleading guilty to two counts of forcible rape and one count of kidnapping, together with an admission of having inflicted great bodily injury upon the victim in connection with one of the rapes, and, on the other hand, of the prosecution's agreement to a 20 year and 8 month “cap” on the sentence to be imposed.

The Superior Court thereafter imposed sentence as follows:  (1) two full and consecutive terms of six years each with respect to the two forcible rape counts;  (2) a five-year enhancement pursuant to section 12022.8 (personal infliction of great bodily injury) with respect to the first of the two forcible rape counts;  and (3) a consecutive “one-third the midterm” of one year and eight months with respect to the kidnapping count.   Altogether, defendant was sentenced to a term of eighteen years and eight months in state prison.

Additional facts will be referred to, as needed, in the discussion which follows.

DISCUSSION

I.SECTION 654 ERROR

 Insofar as it is pertinent here, section 654 states:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  ․” Section 654 applies to limit punishment in those situations, among others, where a defendant violates more than one criminal statute by engaging in an indivisible course of conduct which is comprised of more than one particular act but which is pursued with but one “intent and objective.”  (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63.)

 In this case, defendant argues that the facts indisputably show his kidnapping of the victim to have been carried out in furtherance of, and only in furtherance of, his single “intent and objective” of raping the victim, and that this singularity of intent and objective, under section 654, precludes his being sentenced separately on the kidnapping count as well as on the two rape counts.³  (See People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal.Rptr. 401, 768 P.2d 1078:  “We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.  [Citation.]”)   We agree with defendant's position on this issue.

 In response to defendant's argument, the People have argued that section 667.8 (enacted in 1983 and amended in 1986) evinces a legislative intent that kidnapping for the purpose of committing certain enumerated sex crimes (including rape) is deserving of especially severe punishment, and that this legislative intent would be overborne by the application of section 654's limitations in this case.   This argument is devoid of merit.   First, there is nothing in the language of section 667.8 to suggest that the Legislature intended that section to operate as an exception to section 654.   Presumably, had the Legislature intended section 667.8 to create such an exception it would have said so.⁴  Secondly, and on a more prosaic level, both our Supreme Court and the Legislature have concluded that section 667.8 provides a sentence enhancement which must be pled and proven in any case in which it is to be applied.  (People v. Hernandez (1988) 46 Cal.3d 194, 204–207, 249 Cal.Rptr. 850, 757 P.2d 1013;  see also § 1170.1, subd. (f), as amended by Statutes 1987.)   The section was not pled and proven in this case and we need not concern ourselves with it further.

 Of considerably more concern to us, given the fact that defendant was sentenced pursuant to a plea bargain, was (and is) the following general statement, revealed by our own research, in People v. Masten (1982) 137 Cal.App.3d 579, 187 Cal.Rptr. 515 (disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8), at page 586, 250 Cal.Rptr. 635, 758 P.2d 1165:  “Thus, in the context of a plea bargain, the imposition of consecutive sentences is not violative of section 654.”   In response to our request for the same, the parties provided us with supplemental briefs concerning the interplay between plea bargains and the application of section 654.   We conclude that the above statement in Masten is not an accurate statement of the law and that section 654 does apply, unless otherwise waived, in the context of plea bargains.⁵

Masten relied on two other cases as authority for its position that a plea bargain will permit the imposition and execution of consecutive sentences, the execution of one or more of which would otherwise be barred by section 654.   Masten's reliance was misplaced:

(1) In In re Troglin (1975) 51 Cal.App.3d 434, 124 Cal.Rptr. 234, the defendant expressly agreed, as part of his plea bargain, that the trial court could impose sentences on the multiple counts there in issue to “ ‘run either concurrent or consecutively as the Judge deems proper under the circumstances.’ ”  (51 Cal.App.3d at p. 438, 124 Cal.Rptr. 234.)   Troglin, then, is nothing more than a case in which the defendant expressly bargained away the protections of section 654 and was then held to his bargain.   As we discuss below, such a “bargaining away” did not occur in this case.

(2) In People v. Jones (1981) 124 Cal.App.3d 749, 177 Cal.Rptr. 605, not only was the defendant's plea bargain “expressly predicated on the court retaining an option to sentence consecutively” (124 Cal.App.3d at p. 755, 177 Cal.Rptr. 605), but the crimes of which the defendant stood charged were crimes which “would have permitted his being sentenced separately, and consecutively” even under section 654 (124 Cal.App.3d at p. 754, 177 Cal.Rptr. 605)—rendering Jones 's discussion of section 654's application in the context of a plea bargain dicta.   Neither of those circumstances obtain in this case.

Thus, Masten 's statement stands without supporting authority and in direct contradiction to a myriad of cases that apply section 654 in any and all factual contexts within which the circumstances calling for its application (as discussed above) exist.   It is beyond argument that section 654 is an integral part of the law which governs the imposition and execution of criminal sentences.

 We do agree, as suggested by both Troglin and Jones, that a defendant can waive the application of section 654 in any given case.   There is nothing to preclude the prosecution's bargaining for such a waiver in attempting to secure for the People the most favorable plea bargain available.   Such a waiver did not, however, occur in this case.   The dissent seems to be arguing, in part, that a sort of implied waiver doctrine should be applied in this case—that defendant should be precluded from raising the section 654 issue on appeal because his counsel failed to assert the applicability of section 654 to the matter at hand before the magistrate and/or before the sentencing court.   The dissent cites no specific authority for this position.   It seems to us to be the better general approach to sentencing, absent some rule or statute to the contrary, to assume that specifically pertinent sentencing provisions do apply to a situation unless the parties clearly and affirmatively agree with the court and each other that those provisions are not to apply.

It is true, as noted by the dissent, that our Supreme Court has held that a plea of guilty to multiple offenses constitutes a prima facie admission “that the crimes were separate and not indivisible.”  (Seiterle v. Superior Court (1962) 57 Cal.2d 397, 400–401, 20 Cal.Rptr. 1, 369 P.2d 697.)   However, it is not entirely clear exactly what import a “prima facie admission” that crimes are separate and divisible has in the context of a section 654 issue.   As noted in People v. Lockheed Shipbuilding & Constr. Co. (1977) 69 Cal.App.3d Supp. 1, 138 Cal.Rptr. 445, the meaning of Seiterle 's “prima facie admission” holding has not been substantively discussed or analyzed in any published opinion, and the opinions which have referred to the holding have then gone on to review the evidence in any event to see whether the crimes were truly separate and divisible.  (69 Cal.App.3d Supp., at pp. 7–8, 138 Cal.Rptr. 445.)

People v. Rosenberg (1963) 212 Cal.App.2d 773, 28 Cal.Rptr. 214, which refers to Seiterle, clearly viewed the section 654 issue as surviving (at least at the trial court level) any failure of a defendant to reserve the same in the context of a plea bargain—indeed, Rosenberg seems to suggest a sua sponte obligation on the part of the sentencing court to address section 654 issues whether or not they have been reserved by a defendant who has entered a plea pursuant to a sentence bargain:  “The difficulty in applying the reasoning of the Neal case [the “single intent and objective” test] to the present case arises from the fact that there was no trial on the issue of guilt with respect to either of the offenses stated in the first two counts of the information because the defendant pleaded guilty to them.   By so pleading without reserving or attempting to reserve in any manner the question whether the use of the check and the obtaining of the merchandise constituted an indivisible transaction so as to prevent separate punishment for each under section 654 of the Penal Code, the defendant, at least prima facie, admitted that the crimes were separate and not indivisible.  (Seiterle v. Superior Court, 57 Cal.2d 397, 400–401, 20 Cal.Rptr. 1, 369 P.2d 697.)   However, if a matter is before the trial court which suggests the probability that the several offenses constituted a course of conduct comprising an indivisible transaction, that court must pursue the matter further so that the question so raised may be resolved in harmony with the provisions of section 654 of the Penal Code and the reasoning of the Neal case.”  (212 Cal.App.2d, at pp. 775–776, 28 Cal.Rptr. 214.)

Significantly, our Supreme Court, in In re Dexter (1979) 25 Cal.3d 921, at page 930, 160 Cal.Rptr. 118, 603 P.2d 35, referred with approval to Rosenberg—and referred with specific approval to the fact that the appellate court itself, notwithstanding the defendant's guilty plea, reviewed the record to ascertain whether a violation of section 654 had occurred in that case.⁶

Finally, we note that the People in this case cannot claim that the application of section 654 to the sentence imposed on the kidnapping count deprives them of their benefit under the plea bargain.   The People, by their bargain with defendant, were willing to accept the imposition of any lawful sentence within the “cap” of 20 years and 8 months.   If the People had wanted something more than this (such as the “waiver” of section 654 obtained in Troglin and Jones ), they could have bargained for it.⁷  The dissent argues that the application of section 654 in this case is “inconsistent with the plea bargain” and that the People and defendant “negotiated for a specific sentence range.”   The record clearly reveals that what the People and defendant bargained for in this case was a sentence not in excess of 20 years and 8 months—a bargain which is not inconsistent with the application of section 654 in this case because it (the bargain) contemplates a “specific sentence range” that encompasses any sentence of 20 years and 8 months, or less, in length.

Section 654 applies within the context of defendant's sentence plea bargain, and it's application requires that there be a stay of execution of the sentence with respect to the kidnapping count to which defendant pled nolo contendere.   The appropriate remedy, at the appellate level, by which to correct this error in defendant's sentence is to stay the execution of the sentence on the kidnapping count, said stay to become permanent upon the successful completion of the remainder of defendant's sentence.  (In re McGrew (1967) 66 Cal.2d 685, 688, 58 Cal.Rptr. 561, 427 P.2d 161.) ⁸

II.

FAILURE TO STATE REASONSFOR SENTENCING UNDERSECTION 667.6 **

DISPOSITION

The sentence hereinbelow imposed is hereby and herewith modified by staying execution of that one-year and eight month portion thereof which was imposed with respect to defendant's plea of nolo contendere to one count of kidnapping, said stay to become permanent upon the successful completion of the remainder of defendant's sentence.   As herein modified, the judgment is affirmed in full.

This matter is remanded to the trial court with directions that it prepare an amended Abstract of Judgment in accordance with this opinion and that it transmit copies of said amended Abstract of Judgment to the appropriate correctional authorities.

I respectfully dissent from that part of the decision which determines the court erred in failing to stay sentence on the kidnapping count and which modifies the sentence.   My dissent is based on the following grounds:  (1) by entering a plea of nolo contendere, defendant accepted a sentence cap, and defendant's later claim of Penal Code section 654 ¹ error violated the terms of the plea bargain;  and (2) defendant's plea of nolo contendere without reservation of the section 654 issue was a prima facie admission that his acts were performed with separate intents, and no evidence rebutted that prima facie admission.   I also dissent to express my view that the standard set forth in Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, that only a single punishment may be imposed for multiple violent criminal acts committed pursuant to an indivisible transaction, is ripe for reconsideration.   Finally, the majority should remand the matter for resentencing rather than simply staying the lesser term.

The Section 654 Issue Was Inconsistent With Plea Bargain.  Section 654 states, “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  ․” This statute has been interpreted to apply to “a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.  [Citation.]   Whether a course of conduct is indivisible depends upon the intent and objective of the actor.  [Citation.]   If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.”  (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63.)

However, section 654 does not apply in this case because it is inconsistent with the plea bargain.   A lengthy prison term could have been imposed for the crimes charged, but the defendant and the People negotiated for a specific sentence range.   Having been approved by the court in accepting the plea, that range is prima facie reasonable for the crimes involved.   Thus, the route the court took to impose a sentence within the agreed range has little significance.

If section 654 considerations are important in plea negotiations, the issue should be explicitly raised when the plea is accepted.   Otherwise, an implication arises that section 654 was not a factor so long as sentence is imposed within the agreed range.   Here, defendant pleaded nolo contendere without reserving the section 654 issue for sentencing.

The purpose of section 654 is “to prevent harassment of a defendant by cumulative sentencing not commensurate to actual culpability.  [Citation.]   An accused will not be deemed ‘harassed’ under section 654 when the claimed harassment results from his own conduct.  [Citation.]   Thus, in the context of a plea bargain, the imposition of consecutive sentences is not violative of section 654.  [Citations.]   As the People are held strictly to the terms of the plea bargain, the accused also must be held to his agreement.  [Citation.]”  (People v. Masten (1982) 137 Cal.App.3d 579, 585–586, 187 Cal.Rptr. 515, overruled on another ground in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165.)  Masten expresses my views on section 654 in the context of a plea bargain.

Section 654 “has no fundamental or constitutional roots;  it is but ‘a procedural safeguard against harassment.’  [Citations.]”  (In re Troglin (1975) 51 Cal.App.3d 434, 439, 124 Cal.Rptr. 234.)   As long as no public policy, statutory or decisional law, or constitutional principle directs otherwise, a defendant may be held to the terms of his plea agreement.   (Id., at p. 438, 124 Cal.Rptr. 234.)   Thus, section 654 does not apply when it would be inconsistent with the terms of a plea bargain.

In this case, any issue of noncompliance with section 654 was waived because it was inconsistent with the plea bargain which specified a sentence cap.   To put the issue in perspective, a brief review of the procedural events in this case is necessary.   The plea was negotiated between a deputy public defender and a deputy district attorney, with approval of the municipal court in Victorville.   Sentencing took place before a superior court judge in San Bernardino.

The same deputy district attorney who had negotiated the plea, but a different deputy public defender, appeared at the sentencing hearing.   The second deputy public defender raised the issue of section 654 for the first time in a statement in mitigating circumstances filed in the superior court.   To raise a legitimate section 654 issue, defense counsel should have filed an affidavit with the statement in mitigation stating that section 654 had not been discussed in connection with the plea negotiations, but that there was a problem under section 654.

At the sentencing hearing, the deputy district attorney did not contest the statement in mitigation, and the question of section 654 with respect to the kidnapping count never arose during oral argument.   Had defense counsel provided an affidavit that section 654 had not been considered in the plea negotiations, but that the agreed sentence range would involve section 654 error, the court could then have invited the defendant to withdraw his nolo contendere plea.   Instead, the court proceeded to sentence the defendant on the kidnapping count separately from the rape counts without objection from the defendant or his counsel.   An implication therefore arises that the sentence complied with the plea bargain.   Defendant is trifling with the court by raising the issue on appeal.  (See People v. Jones (1989) 210 Cal.App.3d 124, 136–137, 258 Cal.Rptr. 294.)

To preserve the section 654 issue, defendant should have raised the issue when he entered his plea.   In Seiterle v. Superior Court (1962) 57 Cal.2d 397, 20 Cal.Rptr. 1, 369 P.2d 697, the court stated, “[T]here was no trial on the issue of guilt of any of the offenses here involved because petitioner pleaded guilty to all of them.   By pleading guilty to all of them without reserving, or attempting to reserve in any fashion, the question whether the kidnappings with bodily harm and the murders constituted indivisible transactions so as to prevent their double punishment under Penal Code section 654, petitioner, at least prima facie, admitted that the crimes were separate and not indivisible.  [Citations.]”  (Id., at pp. 400–401, 20 Cal.Rptr. 1, 369 P.2d 697, emphasis added.) ²  Having failed to reserve the section 654 issue when he entered his plea, defendant cannot later argue that section 654 applies to a sentence imposed within the limits agreed to in the plea.

Defendant Did Not Rebut the Prima Facie Admission That His Acts Had Separate Objectives.   Defendant argues the kidnapping was part of an indivisible transaction and was committed to facilitate the single objective of raping Karen.³  (People v. Galvan (1986) 187 Cal.App.3d 1205, 1215, 232 Cal.Rptr. 410;  but see People v. Andrus (1990) 226 Cal.App.3d 73, 79, 276 Cal.Rptr. 30.)   He argues section 654 therefore required the court to stay the sentence for the kidnapping.

As noted above, a defendant who enters a guilty plea prima facie admits that his crimes were separate and divisible.  (Seiterle, supra, 57 Cal.2d 397, 400–401, 20 Cal.Rptr. 1, 369 P.2d 697;  see also People v. Ross (1988) 201 Cal.App.3d 1232, 1240–1241, 247 Cal.Rptr. 827;  People v. Burns (1984) 158 Cal.App.3d 1178, 205 Cal.Rptr. 356;  People v. Morris (1965) 237 Cal.App.2d 773, 47 Cal.Rptr. 253;  People v. Mistretta (1963) 221 Cal.App.2d 42, 43–45, 34 Cal.Rptr. 365;  People v. Rosenberg (1963) 212 Cal.App.2d 773, 28 Cal.Rptr. 214;  People v. Lockheed Shipbuilding & Constr. Co. (1977) 69 Cal.App.3d Supp. 1, 7, 138 Cal.Rptr. 445.)

Seiterle is subject to two possible interpretations:  (1) failure to reserve a section 654 issue when the plea is taken amounts to a waiver of the issue;  or (2) failure to reserve the issue when the plea is taken is prima facie evidence that section 654 does not apply, which evidence may be rebutted for purposes of sentencing.   California courts have adopted the second position.

Seiterle dealt with the successive prosecution prohibition of section 654.  (Seiterle, supra, 57 Cal.2d at p. 399, 20 Cal.Rptr. 1, 369 P.2d 697.)   On the basis of the record of the first trial, the court concluded, “[T]he prima facie showing that the crimes ․ were separate, which followed from the pleas of guilty to both charges, has not been overcome by the record before us.”  (Id., at pp. 402–403, 20 Cal.Rptr. 1, 369 P.2d 697.)   The court considered all the evidence in the record in making its determination and did not find that the guilty plea without reserving the section 654 issue conclusively established there was no section 654 error.

In Rosenberg, supra, 212 Cal.App.2d 773, 28 Cal.Rptr. 214, the court recognized that Seiterle established that a guilty plea was a prima facie admission the crimes were separate and divisible.  (Id., 212 Cal.App.2d at pp. 775–776, 28 Cal.Rptr. 214.)   The court continued, “However, if matter is before the trial court which suggests the probability that the several offenses constituted a course of conduct comprising an indivisible transaction, that court must pursue the matter further so that the question so raised may be resolved in harmony with the provisions of section 654 ․ and the reasoning of the Neal case.”  (Id., at p. 776, 28 Cal.Rptr. 214, emphasis added.)   The court determined that the contents of the probation report were, “as a matter of law, susceptible of only one inference, namely, that [defendant's acts] were parts of a continuous course of conduct and were motivated by one objective, ․” (Id., at p. 777, 28 Cal.Rptr. 214.)   The court therefore found section 654 applicable.   The Rosenberg court, like the Seiterle court, considered all the evidence in the record even though the defendant had not reserved the section 654 issue.   The Supreme Court has endorsed the Rosenberg procedure, citing the case with approval in In re Dexter (1979) 25 Cal.3d 921, 930, 160 Cal.Rptr. 118, 603 P.2d 35.)

In Ross and Mistretta, the section 654 issue was explicitly reserved when the plea was entered.  (Ross, supra, 201 Cal.App.3d at p. 1238, 247 Cal.Rptr. 827;  Mistretta, supra, 221 Cal.App.2d at p. 43, 34 Cal.Rptr. 365.)   The People conceded section 654 error in Burns, and the record contains no indication whether the issue was reserved when the plea was entered.  (Burns, supra, 158 Cal.App.3d at pp. 1180–1181, 205 Cal.Rptr. 356.)

Morris, supra, 237 Cal.App.2d 773, 47 Cal.Rptr. 253 concerned the successive prosecution prohibition of section 654.   The defendant pleaded guilty to one offense and was then charged with and pleaded guilty to a second offense.   After imposition of sentence in the second case, the defendant raised section 654 error.   A majority of the appellate court found such error in the record and reversed (id., at pp. 775–777, 47 Cal.Rptr. 253), with a strong dissent on the ground, among others, that the defendant had not overcome the prima facie evidence of separate crimes created by her guilty pleas.  (Id., at p. 782, 47 Cal.Rptr. 253 (dis. opn. of Whelan, J.).)

In Lockheed, the court interpreted Seiterle and Rosenberg as requiring it to consider all the evidence in the record on the section 654 issue, even though the issue was not reserved when the plea was entered.   (Lockheed, supra, 69 Cal.App.3d Supp. at pp. 6–7, 138 Cal.Rptr. 445.)   The court noted that the Seiterle and Rosenberg courts had stated the principle that a guilty plea without reservation of the issue was prima facie evidence of separate intents.   The Lockheed court continued, “However, neither court discussed the meaning of its ‘prima facie’ admission rule and in both cases the courts, without further mention of the rule, discussed the evidence ․ in some detail when determining the applicability of Penal Code section 654.   The reporter's transcript reveals that, at the time of sentencing, Lockheed clearly did all it could to raise the issue of Penal Code section 654.   Thus, whatever the implication in the above cases may be that a defendant's failure to reserve a Penal Code section 654 issue at time of sentencing waives it, said rule cannot apply here in view of Lockheed's consistent assertions of the applicability of Penal Code section 654.”   (Lockheed, supra, at pp. 7–8, 138 Cal.Rptr. 445.)

The cases discussed above establish that the defendant has the burden of rebutting the prima facie admission that he had separate intents in committing the crimes to which he pleaded guilty.   Prima facie evidence is “Evidence good and sufficient on its face;  such evidence as, in the judgment of the law, is sufficient to establish a given fact ․ and which if not rebutted or contradicted, will remain sufficient.”  (Black's Law Dict. (5th ed. 1979) p. 1071, col. 1.)

The record ⁴ contains no evidence sufficient to rebut the prima facie showing.   The defendant stated to the probation officer that he had been in an alcoholic blackout, and could not remember the incident at all.   The statement in mitigation contained the conclusionary statement of counsel that “The crimes involved here were all part of one, single transaction, with only one goal, purpose and intent, to achieve a sexual climax․”   This statement was, however, unsupported argument, not evidence.⁵  Thus, the record does not indicate the defendant overcame the prima facie admission of separate criminal intents.   The defendant did not consistently do all he could to raise the issue, and section 654 therefore does not bar separate sentences.

Remand for Resentencing.   The majority assumes that staying execution of sentence for the lesser offense is the only remedy for section 654 error.   However, when the total prison term would be significantly changed if we modified the judgment ourselves, we may remand for a new sentencing hearing at which the trial court may reconsider the entire sentence.  (Burns, supra, 158 Cal.App.3d at p. 1184, 205 Cal.Rptr. 356.)  “[A] defendant's aggregate prison term ․ ‘cannot be viewed as a series of separate independent terms, but rather must be viewed as one prison term made up of interdependent components.   The invalidity of some of those components necessarily infects the entire sentence․   In making its sentencing choices in the first instance the trial court undoubtedly considered the overall prison term to be imposed․   When defendant successfully urged the illegality of his sentence on appeal the illegality did not relate only to a portion of the sentence but infected the whole.’  [Citation.]”  (Id., at p. 1183, 205 Cal.Rptr. 356.)   In the context of a plea bargain specifying a maximum sentence of 20 years and 8 months, a reduction of the sentence to 17 years should be considered a significant change requiring resentencing.

Reevaluation of Neal.   The court in Neal, supra, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839 stated, “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.”  (Id., at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.)

In Seiterle, supra, Justice Schauer, with Justice McComb concurring, wrote, “I ․ must dissent from that portion of the opinion which states [the above-quoted portion of the Neal opinion]․  [¶]  The quoted statement, if taken at its face value, appears to mean that a smart criminal—and some of them are smart and learn fast—could always include in his ‘intent and objective’ the commission of every crime within his imagination which conceivably might conduce to the attainment and enjoyment of his ultimate objective.   For example, if his ultimate objective was to steal and enjoy (in freedom for most of his natural life) the use of a proposed victim's wealth he could plan his ‘intent and objective’ to include extortion, forgery, kidnaping, robbery, theft of an automobile, and murder of the victim.   With all of these crimes included in his ‘intent and objective,’ a temporary concealment of most of the crimes coupled with a professed guilty conscience and surrender to police, followed by a plea of guilty to the sole crime of stealing the automobile would, according to the ‘intent and objective’ theory, secure him immunity for all time from subsequent prosecution on the other crimes.   According to the Neal quotation, ‘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.’ ”  (Italics added.)

“The true rule in California has been, and should continue to be, that which is enunciated and applied in In re Chapman (1954) 43 Cal.2d 385, 388–390 [2–8] [273 P.2d 817], particularly as summarized at pages 389–390 [273 P.2d 817]:  ‘[6] The applicability of section 654 depends upon whether a separate and distinct act can be established as the basis of each conviction.  [Citation.]   Multiple convictions have been affirmed in cases in which separate and divisible acts have been proved as the basis of each conviction even though those acts were closely connected in time and were part of the same criminal venture.  [Citations.]  [7] It is only when the two offenses are committed by the same act or when that act is essential to both that they may not both be punished.  [Citations.]’  (Italics added.)   Each of the crimes of the defendant in the hypothetical case would require a separate act;  hence, under the Chapman rule, each could be charged and separately punished;  the defendant would gain no immunity from punishment for his other crimes by confessing and suffering punishment for stealing the automobile.   Even though the extortion, forgery, kidnaping, robbery and the murder, might not be discovered for years the guilty defendant would still be liable to trial and punishment for each of them because each of them was a separate crime done by a separate act, notwithstanding all ‘were incident to one objective.’  (See also People v. Brown (1958) 49 Cal.2d 577, 590–593 [13] [320 P.2d 5].)  The Chapman– Brown rule is not only better law;  it is better penology.”   (Seiterle, supra, 57 Cal.2d at pp. 403–404, 20 Cal.Rptr. 1, 369 P.2d 697 (conc. and dis. opn. of Schauer, J.).)

The Neal court stated that punishment is to be commensurate with culpability.   However, the test created in Neal fails to achieve this objective.   Under Neal, punishment becomes inequitable when a defendant is convicted of two or more serious nonsexual felonies.   If we are in fact to punish individuals commensurate to their culpability for the crimes they have committed, Neal should be overruled and a new yardstick created to measure punishment equitably for serious felonies committed against a victim.   Under the facts of the present case, Neal could direct a punishment which minimizes the extent of defendant's culpability for a night of terrorization of the victim.   The time has come to reevaluate Neal.

FOOTNOTES

1.   Unless otherwise indicated, all statutory citations refer to the Penal Code as it was worded at the time defendant committed the offenses here in issue.   Citations to “rule(s)” refer to rules of the California Rules of Court.

2.   The foregoing facts are taken in large part from the Sheriff's Department report which was augmented to the record on appeal in this matter.   At the time defendant entered his plea in the municipal court, counsel for all parties stipulated that this report constituted a sufficient factual basis for the plea.   Further, this Sheriff's Department report served as the factual basis for the statement of “Circumstances of the Offense” contained in the probation report which was considered by the superior court in connection with defendant's sentencing hearing.   We were left to obtain our background facts from these collateral sources by virtue of the fact that defendant entered his plea in this case prior to a preliminary hearing being conducted.

3.   Preliminarily, we note that a determination of whether a set of circumstances reveals a single intent and objective within the meaning of section 654 is usually a factual determination to be made by the trier of fact (People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5, 153 Cal.Rptr. 40, 591 P.2d 63), and that the sentencing court failed to make such a determination in this case.   There is no need to remand this matter to the court below for such a determination, however, because the facts in this case are undisputed and the application of section 654 to conceded facts is an issue of law which we may directly address.  (Ibid.)

4.   More persuasive, it seems to us, is the inference that the Legislature recognized that section 654 does apply to kidnappings which have as their sole objective the facilitating of the commission of other offenses and, therefore, to preclude the “untoward” reduction of a sentence in the context of a “kidnap/sex crime” circumstance, it (the Legislature) enacted section 667.8 to provide a sentence enhancement which would operate “in lieu of” the sentence stayed by operation of section 654 in such a circumstance.

5.   Our conclusion in this regard is limited to cases concerning plea bargains made prior to January 1, 1991.   Rule 412(b), effective January 1, 1991, significantly effects the interplay between (a) the procedural timing requirements imposed on an assertion that section 654 applies in a particular case and (b) plea bargains, but that rule has no bearing on this case, which involves a plea bargain which was made prior to January 1, 1991.   Rule 412(b) now provides:  “By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.”

6.   If the dissent is asserting (as seems to be suggested by its reference to Seiterle ) that a plea of guilty is prima facie evidence that a sentence pursuant to a plea bargain is not subject to section 654, and that a rebuttable presumption to that effect is created by such a plea, thereby imposing a burden on a criminal defendant to rebut such a presumption, the record on appeal here conclusively meets that burden regarding the kidnapping conviction.   As discussed earlier, there is no real question but that a review of the record on appeal in this case demonstrates that the failure of the trial court to stay execution of the sentence on the kidnapping count, when viewed in the context of the two forcible rape counts, constituted section 654 error.   Defendant's kidnapping of the victim was clearly part of an indivisible course of conduct having as its single objective the forcible rape of the victim.The dissent states that “[t]he record [before the sentencing court] contains no evidence sufficient to rebut the prima facie showing [that the defendant had separate criminal intents as to the forcible rapes and the kidnapping],” but our reading of the summary of facts contained in the probation report which was considered by the sentencing court leaves us absolutely convinced that the kidnapping was carried out for the sole purpose of accomplishing and facilitating the forcible rape of the victim.   In pertinent part, that summary states:“On December 24, 1989, Derek Latimer went to the home of [the victim].   After visiting for a short period of time, the victim left with the defendant to go to the grocery store and to stop by a friend's house to pick up miscellaneous items.   Derek Latimer borrowed a vehicle from a friend and drove to the store.   When they left the store, the victim thought they were going to stop by her friend's house but the defendant drove into the desert.   She advised investigating officers that Derek grabbed her by her throat and her hair and stated he would kill her as he began to pull her clothing off and throw her between the two front seats.   She explained that she put her foot on the horn at which time the defendant started punching her in the face until she quit fighting.   He continued to threaten to do great bodily harm to her until she finally submitted to sexual intercourse.   The victim explained that the defendant tried on three separate occasions to complete sexual intercourse but was unable to maintain an erection.   Additionally, he forced her to orally copulate him and during the entire incident, slapped, punched and choked her and continually pulled her hair.   After the third attempt at sexual intercourse, the victim was able to jump out of the car and run away.   She watched as the defendant made a U-turn and drove away from the area leaving her in the desert.”In our view, this factual rendition fully rebuts any possible presumption, showing or implied admission that the kidnapping was carried out for any purpose other than to accomplish and facilitate the forcible rape of the victim.

7.   Thus, the application of section 654 in the instant case does not operate in contravention of “the concept of reciprocal benefits” (People v. Collins (1978) 21 Cal.3d 208, 214, 145 Cal.Rptr. 686, 577 P.2d 1026)—a concept which is, admittedly, “critical to the plea bargaining process.”  (People v. Miller (1983) 33 Cal.3d 545, 555, 189 Cal.Rptr. 519, 658 P.2d 1320.)

8.   We are not dealing here with an “illegal” or “unauthorized” sentence which was void ab initio as having been imposed in excess of the sentencing court's jurisdiction.  (See People v. Serrato (1973) 9 Cal.3d 753, 764–765, 109 Cal.Rptr. 65, 512 P.2d 289, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144.)   Consequently, there is no need to remand this matter to the lower court for a complete resentencing.  (See discussion in People v. Brown (1987) 193 Cal.App.3d 957, 961–962, 238 Cal.Rptr. 697.)   Indeed, even in People v. Price (1986) 184 Cal.App.3d 1405, 229 Cal.Rptr. 550 (cited in People v. Brown, supra, 193 Cal.App.3d at p. 962, 238 Cal.Rptr. 697), a case in which the inappropriate application of section 654 was found to have created an “unauthorized” sentence, it was recognized that “[t]he erroneous failure to stay punishment under section 654 may be raised on the reviewing court's own motion and corrected by the appellate court.”  (184 Cal.App.3d at p. 1411, 229 Cal.Rptr. 550.)On a related issue, the dissent, citing People v. Burns (1984) 158 Cal.App.3d 1178, 205 Cal.Rptr. 356, suggests that this case be remanded to the trial court for resentencing:  “In the context of a plea bargain specifying a maximum sentence of 20 years and 8 months, a reduction of the sentence to 17 years should be considered a significant change requiring resentencing.”   We disagree.   The “reduction” of the executed portion of the sentence to 17 years in this case is from a sentence of 18 years and 8 months, not 20 years and 8 months—not nearly so significant a change.   Further, it is difficult to imagine what greater sentence would be imposed by the trial court on remand for resentencing in light of the fact that the trial court imposed:  (1) fully consecutive six-year mid-terms on the two forcible rape counts (after specifically finding that neither the aggravating sentencing factors nor the mitigating sentencing factors preponderated);  and (2) a full five-year sentence enhancement for the section 12022.8 “great bodily injury” violation.

FOOTNOTE.   See footnote *, ante.

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   Effective January 1, 1991, this principle was incorporated into the California Rules of Court:  “By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.”  (Cal.Rules of Court, rule 412(b), emphasis added.)

3.   Although defendant did take Karen's jewelry from her during this incident, he also repeatedly told her “he just wanted to get a nut off.”

4.   The record before the court at the time of sentencing consisted of the probation report, the victim's statement, a statement in aggravation prepared by the prosecutor, and a statement in mitigation prepared by defense counsel.   The municipal court in taking defendant's guilty plea relied on the police report as providing the factual basis for the plea.   However, there is no indication that the police report was submitted into evidence to become part of the record, and there is no indication that the sentencing court considered the information in the police report in reaching its sentencing decisions.

5.   Moreover, as noted above, counsel provided no declaration that section 654 had been overlooked in plea negotiations, in my view, a prerequisite to raising the issue at all.

TIMLIN, Associate Justice.

RAMIREZ, P.J., concurs.