IN RE: Dennis Casey JONES (1994)

OPINION

Petitioner Dennis Casey Jones requests us to issue a writ of habeas corpus, contending he is being unlawfully held by the Department of Corrections under a judgment dated November 24, 1976.   Although the judgment was affirmed on appeal in an unpublished opinion and we denied this same petition following the trial court's denial of such a writ, the California Supreme Court issued an order to show cause returnable in our court and we subsequently heard oral argument.

Jones contends the judgment violates the statutory proscription against double punishment in that he received concurrent sentences for both conspiracy to commit burglary and conspiracy to commit robbery when he was already sentenced for the felony murders which occurred during the commission of the burglary and robbery.   We disagree and deny the petition.

STATEMENT OF THE CASE

In October 1976, Jones was convicted by jury for the double murders of Janet Metz and Ronald Cauwells, the kidnapping of Walter Rose (a friend of Cauwells) for robbery, the burglary of Cauwells' home, a conspiracy to rob Cauwells, a conspiracy to burglarize the home, and a conspiracy to kidnap Rose.   In November 1976, he was sentenced under indeterminate sentencing to the term prescribed by law for the murders, the conspiracy to commit robbery, the conspiracy to commit burglary and the kidnapping, to be served concurrently.   The burglary and conspiracy to kidnap counts were stayed.   The judgment was affirmed on appeal.

In 1983, 1985, 1987, twice in 1990, again in 1991 and 1993, the Board of Prison Terms denied Jones' request for parole.   In 1986, one of Jones' codefendants—Ronald D'Orio—was granted parole.¹

In December 1992, Jones petitioned the Orange County Superior Court for a writ of habeas corpus, contending the 1976 judgment violated the proscription against double punishment of Penal Code section 654.²  Judge John J. Ryan denied the petition because:  (1) the delay in bringing the request was unjustified and unexplained;  (2) the issue should have been raised in petitioner's appeal but was not;  and (3) Jones failed to make a prima facie case for relief because there was no evidence the conspiracies shared the same objectives as the kidnapping and murders.

Jones petitioned us in March 1993 following this denial.   We also denied his petition, but subsequently set it for oral argument, by virtue of an order to show cause made returnable to us by the Supreme Court on February 18, 1994.

FACTS

As summarized in our previous opinion, the facts presented at the trial underlying this judgment are as follows:

In 1975, Dale Irwin and Ronald Cauwells negotiated to buy 174 pounds of marijuana from Allen Irving and Tom Dunker for $20,000.   At the exchange, however, Irwin and Cauwells decided a better deal would be for them to take all the marijuana—at gun point.   Irving and Dunker, not liking the new arrangement, contacted Ronald D'Orio to help them settle the score.   D'Orio gathered Jones, Thomas Hester, Richard Suder and Roger Davis to assist Irving and Dunker.   Of this group, D'Orio, Davis, Irving and Dunker specifically agreed to murder Cauwells.  (But see, fn. 1, ante.)   Jones agreed to the overall plan to get both the marijuana and the original $20,000 as well as any other money they could find in Cauwells' home.

Jones arranged for two other men to join the group:  William Tibbitts and Michael Petrone.   Jones also enticed Walter Rose—a friend of Cauwells—to visit, only to kidnap him and turn him over to Suder, who along with Irving, Dunker and D'Orio blindfolded Rose and “interrogated” him.   The group originally intended to use Rose as a ruse to gain entrance into Cauwells' home, but abandoned that plan when their interrogation proved unsuccessful.

The eight men then drove to Cauwells' home, with Hester carrying a military-style, automatic weapon and Tibbitts armed with a pistol.   D'Orio remained outside while Hester and the rest of the group pushed their way past Janet Metz—Cauwells' girlfriend—shoved the weapon into Irwin's mouth, and beat him.   Unable to find either the $20,000 or the marijuana, the group started to leave with Cauwells in tow.   Suddenly, Tibbitts shot Cauwells in the head, and Hester opened fire on Metz with the automatic weapon.   Both Cauwells and Metz died.   As Jones drove the killers away from the murder scene, he boasted about the beating he had given Irwin.   As they crossed a bridge over the bay near Long Beach, Jones ordered the murderers to throw their weapons in the water.

DISCUSSION

IWrit Formalities

Jones waited approximately 14 years after losing his appeal before petitioning the trial court for redress of this alleged sentencing error.   The Attorney General contends Jones waived the issue by his dilatory action and failure to explain the delay.   We agree.

 When a trial court acts in excess of its jurisdiction, a defendant may collaterally attack the resulting judgment, even after an appeal of that judgment is affirmed.  (In re Harris (1993) 5 Cal.4th 813, 840, 21 Cal.Rptr.2d 373, 855 P.2d 391.)   A sentencing scheme which violates the proscription found in Penal Code section 654 is in excess of jurisdiction.   (People v. Price (1986) 184 Cal.App.3d 1405, 1412, 229 Cal.Rptr. 550.)   But our inquiry does not end there.   Where “unreasonable delay is reflected on the face of the petition[,]” a summary denial of the petition is in order.  (In re Clark (1993) 5 Cal.4th 750, 798, fn. 35, 21 Cal.Rptr.2d 509, 855 P.2d 729.)   Further, it has been “consistently required that a petitioner explain and justify any substantial delay in presenting a claim.  [Citation.]”  (Id. at p. 783, 21 Cal.Rptr.2d 509, 855 P.2d 729.)

 As explanation for his delay, Jones offers two facts.   First, he contends he presented his initial petition as soon as possible following his parole denial in 1987.   He contends he then learned for the first time that the concurrent terms for the two conspiracies negatively “impacted” his chances for parole,³ thus alerting him to the sentencing error.   But that does not explain why he waited until that parole denial before examining his sentence for any “error.”   Jones knew since 1977 that he had concurrent terms for those two conspiracies;  he was fully cognizant of their existence.   Nothing about the parole denial alerted him to anything about the illegality of his sentence;  he had constructive knowledge of his sentence in 1977 as well as in 1987 after the parole denial.   The denial caused him to focus his attack on the conspiracy counts, but it did nothing to inform him in any way that there was a flaw in the judgment, fundamental or otherwise.   As such, there is no explanation for the delay in Jones' petition.⁴

As a second reason for his delay, Jones asserts he was never put on notice that there was an error in his sentence until after D'Orio was granted parole in 1985 but he was denied that privilege.   Arguing that D'Orio was more culpable than he, he opines that parole should also be granted to him.

Jones overlooks that he was convicted of two serious crimes in addition to all those to which D'Orio pleaded guilty.   Jones was personally involved in the kidnapping of Rose;  he was personally present at the murders and told the murderers how to (successfully) dispose of their murder weapons.   D'Orio might very well have been pivotal in contacting and enticing the original conspirators into the plan, although not the last conspirators who pulled the triggers.   As such, he was quite culpable for the crimes to which he pleaded guilty.   But the parole board specifically found there was no evidence that D'Orio knew of or planned either victim's death and found that he was not involved with the kidnapping of Walter Rose which was a violent crime against another victim.   Such distinctions assuredly weighed heavily in the parole board's multiple denials of parole to Jones.

II

The Concurrent Sentences

Assuming arguendo Jones' explanation for the delay is sufficient, we address his main contention.   Jones argues the judgment violates Penal Code section 654's proscription against double punishment when he received concurrent sentences for both the conspiracy to commit burglary and a conspiracy to commit robbery after he was already sentenced for the felony murders which occurred during commission of the burglary and robbery.   We disagree.

Initially, we note the trial court stayed the sentence on the burglary count;  and there was no charge of robbery.   Jones' contention rests exclusively on the felony murders of Cauwells and Metz which, he maintains, occurred during the robbery and burglary which were the objects of the two conspiracy counts.   Thus, he argues he was sentenced doubly for the single criminal act of the burglary-robbery.

 Penal Code section 654 prohibits double punishment for a single, indivisible course of criminal conduct.  (People v. Latimer (1993) 5 Cal.4th 1203, 1207–1208, 23 Cal.Rptr.2d 144, 858 P.2d 611.)   The conduct's divisibility is determined by the intent and objective of the perpetrator (id. at p. 1208, 23 Cal.Rptr.2d 144, 858 P.2d 611) as found by the trial court.  (People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal.Rptr. 813, 768 P.2d 32.)   That finding, whether implicit or explicit, must be upheld if “supported by the evidence” in the record.  (People v. Nelson (1989) 211 Cal.App.3d 634, 638, 259 Cal.Rptr. 549.)   As in Nelson, the implicit finding of divisible crimes inheres in the judgment here, which we must uphold if there is evidence to support it.  (Coleman, supra, 48 Cal.3d at p. 162, 255 Cal.Rptr. 813, 768 P.2d 32.)

 We agree Jones could not be punished for both the burglary and resulting felony murder.  (People v. Price (1991) 1 Cal.4th 324, 492, 3 Cal.Rptr.2d 106, 821 P.2d 610.)   Similarly, he could not be punished for both the burglary and the conspiracy to commit it (see People v. Ramirez (1987) 189 Cal.App.3d 603, 615–617, 236 Cal.Rptr. 404) if the conspiracy “had [no] objective apart from [the charged] offense․”  (Id. at p. 615, 236 Cal.Rptr. 404.)   We are not convinced, however, those two rules automatically merge and render the conspiracy to commit robbery and the conspiracy to commit burglary to be the same indivisible conduct as the felony murders that occurred in the perpetration of the burglary and attempted robbery.   Instead, we must determine if the object of the felony murders was one and the same with that of the conspiracies.

 The record shows the two conspiracies—to rob and to commit burglary—were formed to take revenge on Cauwells and Irwin for “burning” Irving and Dunker.   The object of those two conspiracies was not exclusively to take property from their person by means of force or fear (the definition of robbery), or to merely enter the residence with the intent to commit larceny (the definition of burglary).   The objective was much broader:  to teach Cauwells and Irwin a horrible lesson and dissipate the frustration Irving and Dunker felt at being outfoxed.   Jones would get paid out of the proceeds of what was taken, but those proceeds were not the only reasons for the extensive efforts of this group.   As the trial court stated in denying the original petition in 1992, “[t]here is no indication that the two conspiracies for which Jones is serving time on [—]burglary and robbery[—] included the objective of kidnapping and murder.”   Whenever a conspiracy has a broader objective than just the charged crime, the sentencing court can reasonably find separate intents and objectives.  (Ramirez, supra, 189 Cal.App.3d at p. 617, 236 Cal.Rptr. 404;  e.g., People v. Moringlane (1982) 127 Cal.App.3d 811, 819, 179 Cal.Rptr. 726 [conspiracy to murder two men permitted sentence for both conspiracies and the accidental murder of an innocent bystander].)

Accordingly, the writ is denied.

FOOTNOTES

1.   D'Orio pleaded guilty to the first degree murder of Cauwells, the second degree murder of Metz and the conspiracy to commit robbery.   It was noted at the parole hearing there was no evidence D'Orio ever had a weapon or planned to kill either Cauwells or Metz.   It was also noted he was not involved in the abduction and interrogation of Rose, although there was evidence to the contrary in the report.

2.   Penal Code 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;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

3.   We assume for argument's sake that this is true.   Jones provides us with a single page of a transcript in which he and a member of the parole board are discussing a completely unrelated topic.   During that conversation, the board member asks Jones if he has told some woman just how long he may be incarcerated considering he was serving a sentence for serious offenses such as “two counts of murder and conspiracy to commit robbery and conspiracy to commit burglary and kidnapping․”  This does not prove Jones was denied parole for his two concurrent terms of conspiracy.   However, assuming arguendo that it permits that inference, we address the contention Jones makes from it.

4.   This does not automatically mean Jones' counsel on appeal failed to competently represent him.   As discussed in Clark, supra, 5 Cal.4th at pp. 783–784, footnote 20, 21 Cal.Rptr.2d 509, 855 P.2d 729:  “․ noncapital appellate counsel in this state who are aware of a basis for collateral relief should not await the outcome of the appeal to determine if grounds for collateral relief exist.   While they have no obligation to conduct an investigation to discover if facts outside the record on appeal would support a petition for habeas corpus or other challenge to the judgment, if they learn of such facts in the course of their representation they have an ethical obligation to advise their client of the course to follow to obtain relief or to take other appropriate action.”   As we established above, appellate counsel did not err in attacking the judgment on double punishment grounds.

SILLS, Presiding Justice.

WALLIN and SONENSHINE, JJ., concur.