PEOPLE v. ROMINES (1979)

This is an appeal from the manner in which sentence, pursuant to a plea of guilty and an agreed disposition, was imposed. Appellant claims that the trial court failed to comply with rules 433 and 449 of the California Rules of Court and Penal Code section 654, and that the court erred in enhancing one of the counts pursuant to Penal Code section 12022.5.

In a six-count information filed by the Los Angeles County District Attorney, appellant was charged with robbery, (counts I, II, IV and VI), in violation of Penal Code section 211.¹ It was further alleged that in the commission and attempted commission of these offenses, appellant personally used a firearm, to wit, a .38 caliber revolver, within the meaning of sections 12022.5 and 1203.06, subdivisions (a)(1). In count III appellant was charged with rape, in violation of section 261, subdivisions 2 and 3. Count III also alleged that appellant, during the commission of the offense, voluntarily acted in concert with another person or persons by force and violence against the will of the victim, personally and by aiding and abetting others, within the meaning of section 264.1. Count III further alleged that in the commission and the attempted commission of the offenses, appellant personally used a firearm, within the meaning of sections 12022.5 and 1203.06, subdivisions (a)(1). Count V charged defendant with attempted robbery in violation of sections 664 and 211. Also alleged was a firearm use pursuant to sections 12022.5 and 1203.06, subdivisions (a)(1).

Although appellant initially pleaded not guilty, he subsequently waived his rights to trial by jury, confrontation of witnesses and the privilege against self-incrimination and withdrew his plea of not guilty. He entered a plea of guilty to all six counts, admitting the sections 12022.5 and 1203.06, subdivisions (a)(1), allegations, and the acting in concert by force or violence allegation (s 264.1) charged in count III. A review of the case by the trial court prior to appellant entering the guilty plea had resulted in appellant's attorney and the district attorney agreeing to an imposition of sentence of nine years. Before imposing sentence, the court again indicated that the matter of sentencing was pursuant to an agreed disposition.

Probation was denied to each count and appellant was sentenced as follows: count III: seven years in the state prison (upper term for the section 264.1 violation plus two years enhancement under section 12022.5); count VI, four years in state prison, one year enhancement under section 12022.5, sentence to run concurrently with count III; count I: one year in state prison, no enhancement, sentence to run consecutively to count VI, but concurrently with count III; count II: one year in state prison, no enhancement, sentence to run consecutively to counts VI and I, but concurrently with count III; count IV: one year state prison, no enhancement, sentence to run consecutively to counts VI, I and II, but concurrently with count III; count V: eight months in state prison, no enhancement, sentence to run consecutively to counts VI, I, II and IV, but concurrently with count III. Appellant was given credit for 183 days in custody. Appellant's sentence will require that he serve a total of nine years in state prison, essentially on his pleas to count III, for which he was sentenced to the upper term possible of seven years, plus two years' enhancement.

Appellant's first contention on appeal is that the trial court failed to comply with rule 433 of the California Rules of Court which requires, in pertinent part: “If a sentence of imprisonment is to be imposed, or if the execution of a sentence of imprisonment is to be suspended during a period of probation, the sentencing judge shall: (1) Hear evidence in aggravation and mitigation, and determine, pursuant to section 1170(b), whether to impose the upper, middle or lower term; and set forth on the record the facts and reasons for imposing the upper or lower term.” Appellant also points out that the sentencing judge is required by rule 440, even when sentence is imposed following an “agreed disposition,” to set forth appropriate facts and reasons for imposing a term other than the middle term. Respondent claims, however, that any error committed by the sentencing judge in failing to state the reasons for imposing the upper term could not amount to a miscarriage of justice, as the term was arrived at by an agreed disposition between appellant, appellant's counsel, the prosecutor and the trial court. Therefore, respondent asserts, a result more favorable to appellant in the length of the sentence imposed would not have obtained even if the court had stated on the record the reasons justifying imposition of the upper term, citing People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.

The requirement that the reasons for imposing either the upper or lower term of imprisonment be stated on the record is found throughout the rules governing sentencing for the superior courts. (Cal.Rules of Court, rule 401, Et seq.) However, the rules recognize their application is to be used with common sense. Here the judge carefully explained that a total sentence of nine years had been agreed upon by appellant, appellant's counsel and the court; this is spread upon the record. This complies with the rules and there was no error. People v. Turner (1978) 87 Cal.App.3d 244, 150 Cal.Rptr. 807 is conceded by respondent in its brief as holding that “(e)ven if a plea bargain specifies that the upper prison term will be imposed, the reasons for imposing that term must be set forth in the record.” It holds no such thing$ The defendant in Turner entered a plea to one count alleging a felony. He was sentenced to the state prison for the upper term. Nowhere in that three-page opinion is there even a suggestion that the term to be imposed was a part of the reason for the plea. In fact, there is no evidence that the plea was a plea bargain at all. There the court, very correctly, held that the contents of the probation report could not suffice for the “statement on the record” required by Penal Code section 1170. The Turner case is just not authority on the issue before us.

As we have stated, the clear statement on the record as to the term of sentence, entered into as part and parcel of the plea bargain adequately complies with the law.² In addition, the defendant has waived any right to raise this issue on appeal by (1) his bargain therefor, and (2) his failure to raise the issue before the trial court. Further, to reverse under the circumstances of this case would be a travesty upon the court system. Beyond doubt, the technicality allegedly bypassed by the court was completely harmless for there could not have been any more favorable result. The courts and the laws under which they operate are not a Disneyland for criminals and issues on appeal must at least be reasonable ones.

The above statement is equally applicable to defendant's contention that there was error in sentencing as to count VI pursuant to Penal Code section 12022.5 because the firearm use was also considered for the purpose of aggravation. It was defendant who bargained for a sentence far shorter than could have lawfully been imposed on the multiple violent crimes to which he pled guilty.³

Appellant also claims that he was improperly sentenced for both the robbery charged in count I and the rape charged in count III, as he perpetrated these crimes pursuant to the same criminal intent. If we accept appellant's statement as true, the proscriptions against multiple punishment in section 654 and (Rule) 449 require that the sentence for the less serious offense, the robbery, be stayed. However, case law directly holds against appellant on this point. By pleading guilty to the offenses charged, appellant is deemed to have admitted 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; People v. Rosenberg (1963) 212 Cal.App.2d 773, 775-776, 28 Cal.Rptr. 214.) In Rosenberg, however, the appellate court said that it could look to the entire record to determine what the underlying facts were. The probation report in that case provided a detailed enough account for the court to hold, as a matter of law, that the offenses charged (forgery and grand theft) constituted a single, indivisible course of conduct. The court, therefore, reversed the judgment insofar as it imposed a sentence for the grand theft, the less serious of the offenses.

In the instant case, the robbery charged in count I and the rape charged in count III were both perpetrated against the victim. However, we cannot say, as a matter of law, that the offenses were committed as part of an indivisible course of conduct. On the contrary, the probation report, with which we have augmented the record on our own motion, indicates that the primary purpose for appellant entering the house of the victim was to rob her because he had heard that she was involved in drug trafficking. Therefore, the rape that was perpetrated was not in furtherance of an objective relative to the robbery, but an afterthought, and, as such, is separately punishable. (People v. Sutton (1973) 35 Cal.App.3d 264, 271, 110 Cal.Rptr. 635.)

The judgment is affirmed.

FOOTNOTES

1.  All references to code sections refer to the Penal Code unless otherwise specified.

2.  Rule 440 of the California Rules of Court states:“If a plea of guilty or nolo contendere pursuant to section 1192.5 specified a prison term other than the middle term as the punishment and the plea was accepted by the prosecuting attorney in open court and was conditionally approved by the court, the sentencing judge may impose the specified term provided there is evidence Or a factual stipulation in the record justifying that term and appropriate facts and reasons for imposing that term are set forth on the record.” (Italics added.)

3.  Where the plea includes the bargain for sentence there is no violation of the requirement of People v. Cheatham (1979) 23 Cal.3d 829, 153 Cal.Rptr. 585, 591 P.2d 1237 that the same facts may not be used for both imposition of the upper term and for enhancement.

STEPHENS, Associate Justice.

KAUS, P. J., and ASHBY, J., concur.