Filed 4/21/21 P. v. Leyva CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge.

Conness A. Thompson, under appointment by the Court of Appeal, Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Mark William Leyva appeals from an open plea of guilty. His plea included a waiver of his right to appeal from the trial court’s sentence. Following sentencing, defense counsel filed a notice of appeal on Leyva’s behalf, but did not apply for a certificate of probable cause. On appeal, Leyva contends the trial court abused its discretion in denying him probation, and the court punished him three times for a single act in violation of Penal Code section 654. If these issues are held waived, he submits defense counsel rendered ineffective assistance of counsel by failing to object to the appellate rights waiver and by failing to seek a certificate of probable cause. We will order his sentence on count 4 stayed. In all other respects, we affirm the judgment.

PROCEDURAL HISTORY

On December 6, 2017, the Tuolumne County District Attorney filed a criminal complaint, deemed an information, charging Leyva with elder abuse likely to produce great bodily harm or death (Pen. Code,[1] § 368, subd. (b)(1), count 1); assault with a firearm (§ 245, subd. (a)(2), counts 2 & 3); discharge of a firearm with gross negligence (§ 246.3, subd. (a), count 4); false imprisonment of an elder dependent adult (§ 368, subd. (f), count 5); false imprisonment by violence (§ 236, count 6); criminal threats (§ 422, subd. (a), counts 7 & 8); and vandalism over $400 (§ 594, subd. (a), count 9). It was further alleged that as to counts 1 and 2, Leyva inflicted great bodily injury to a victim over 70 years of age (§ 12022.7, subd. (c)); as to count 3, he inflicted great bodily injury (§ 12022.7, subd. (a)); and as to counts 1 through 3 and 5 through 9, Leyva personally used a firearm (§ 12022.5, subds. (a) & (d)).

On April 16, 2018, Leyva pled guilty to all counts and admitted all enhancement allegations. Leyva’s guilty plea was entered as an open plea.[2] In consideration of his plea, and in view of the fact that Leyva is a veteran of the United States military with a mental health condition, defense counsel requested Leyva be considered for probation pursuant to section 1170.9.[3] His maximum exposure was an aggregate prison term of over 40 years.

On November 13, 2018, the court denied Leyva’s request for probation and sentenced him to a prison term of 22 years.

On November 28, 2018, Leyva filed a timely notice of appeal but did not request a certificate of probable cause.

On May 2, 2019, Leyva’s appellate counsel filed an application for leave to seek a belated certificate of probable cause.

On May 16, 2019, this Court denied the application.

STATEMENT OF FACTS

The parties stipulated to the following statement of facts as the factual basis for Leyva’s plea:

On April 2, 2017, Leyva was living in a residence in Twain Harte. He was living with John Hodgins, who was 70 years old, and Jeanne Guthmiller.

On the morning of April 2, 2017, Leyva and Hodgins got into an argument. During the argument, Leyva retrieved a nine-millimeter Beretta pistol. He struck Hodgins on the head several times with the pistol. A physical struggle ensued between Hodgins and Leyva. The gun discharged several times. One of the bullets went through Hodgins’s arm, and another bullet struck somewhere in the building, ricocheted, and struck Guthmiller in the leg. During the struggle, Leyva fired several shots inside the house destroying a computer and a television set. Leyva told both Guthmiller and Hodgins he was going to kill them and directed them into a bedroom where he told them that he would kill them later.

Leyva ultimately exited the residence. His pistol was subsequently retrieved. Leyva admitted his crimes to members of the Tuolumne County Sheriff’s Department.

DISCUSSION

1. Reviewability of Appellant’s Claims

Leyva is appealing from a guilty plea entered open that included a written and oral waiver of his right to appeal. Leyva did not secure a certificate of probable cause. He contends his appeal is nonetheless cognizable because a certificate of probable cause is not required to raise sentencing issues that do not attack the validity of the plea. With respect to the appellate waiver, Leyva asserts the issues raised in this appeal are outside the scope of the waiver, and “a defendant cannot knowingly and intelligently waive the right to appeal an issue not contemplated at the time … an appellate waiver [is executed].”

The People agree that Leyva does not need a certificate of probable cause to appeal his sentence. However, because Leyva knowingly, voluntarily, and intelligently waived his right to appeal, they submit his challenge to the trial court’s denial of his request for probation is not cognizable.

First, we conclude Leyva’s claim that the trial court erred in denying his request for probation is not an attack on the validity of the plea. It is an attack on the court’s sentencing decision. As that is a noncertificate issue, Leyva’s failure to secure a certificate of probable cause does not, by itself, foreclose our ability to reach the merits of his claim. Second, with respect to the appellate rights waiver, we conclude his claim concerning the sentencing court’s denial of his request for probation falls within the scope of the waiver. Because the record shows Leyva’s waiver was knowingly, voluntarily, and intelligently made, his claim asserting the trial court abused its discretion in denying him probation is waived. As discussed in part II, post, we reject Leyva’s claim of ineffective assistance of counsel.

Finally, as discussed in part III, post, we conclude Leyva’s claim that portions of his sentence were imposed in violation of section 654 falls outside the scope of the waiver.

1. Background

On April 16, 2018, Leyva pled guilty to all counts charged in the information. Defense counsel stated, “We have a plea. He is going to plead to all counts, no promises from the Court.” After defense counsel recited the factual basis for the plea, the court reaffirmed there was no plea agreement. Defense counsel stated, “Essentially, he is putting himself at the mercy of the Court … for the benefit of the veterans’ court slash chance at probation.”

The court explained the superior court did not “have a veterans’ court per se” but that Leyva’s status as a veteran would be considered in determining whether he would be suitable for probation. The court stated it would need to see the probation report to determine whether he would be suitable for probation, but warned Leyva that if he were not, he would face a potentially long prison sentence. The court proceeded to admonish Leyva, inter alia, regarding the waiver of rights form.

The plea form Leyva signed advised, “You have the following trial rights in connection with the charges which are now pending against you. You will be giving up all of the following rights if you enter a plea of guilty or no contest.” Under the section titled, “Waiver of Appeal,” a statement read, “I understand that I will be waiving my right to appeal and I will not be able to appeal from this Court’s sentence based on the plea that I enter into in this matter.” Leyva initialed two boxes next to the statement to indicate, “I understand this right,” and “I give up this right.”

Leyva also signed a statement at the bottom of the plea form that read, “I have read and understand the front and back of this form. I have had enough time to speak with my attorney; I have told my attorney everything I know about this case; my attorney has explained to me my rights, my defenses, and the possible consequences of my plea, including the consequences explained on the second page of this form. I am entering this plea freely and voluntarily. I understand that I may not withdraw this plea without a showing of good cause.” During the plea colloquy, Leyva confirmed he had spoken with his attorney before pleading guilty, and he had read and understood the plea form before he initialed it and signed it.

The court asked Leyva, “And do you understand there won’t be any appeal from this conviction?” Leyva responded affirmatively.

The court told Leyva it would consider his request for a grant of probation, but if the court concluded probation was not appropriate, then “[he] would be facing a prison sentence,” which would be anywhere between 16 months to a term “in excess of 40 years.” The court reiterated that it would take into account all relevant factors but “there are no promises” and if Leyva were denied probation, he “could be placed in prison for an extended period of time.” Leyva indicated he understood. The trial court accepted the terms of the agreement and found Leyva had knowingly and voluntarily entered his plea and waived his rights.

On June 18, 2018, the court ordered a diagnostic assessment of Leyva pursuant to section 1203.3. The diagnostic report included an interview with a correctional counselor and a psychological report submitted by Dr. S. Muong, Doctor of Psychology, Deuel Vocational Institution. The correctional counselor, the correctional counselor’s supervisor, and the doctor who conducted Leyva’s diagnostic assessment all recommended probation be denied and that Leyva receive a prison sentence. The probation officer recommended Leyva receive a prison term of 43 years 8 months.

On November 13, 2018, Leyva was sentenced to a total prison term of 22 years. The trial court reasoned that while Leyva did not have a prior criminal history, the seriousness of the offense and the fact that Leyva had discharged a firearm, resulting in great bodily injury, warranted that he receive a prison term.

2. Certificate of Probable Cause

Section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or no contest unless he has applied to the trial court for, and the trial court has executed and filed, a certificate of probable cause for such an appeal. (People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Mendez (1999) 19 Cal.4th 1084, 1095; see Cal. Rules of Court, rule 8.304(b).) “Despite this broad language, [our Supreme Court has] held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, ... and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Buttram (2003) 30 Cal.4th 773, 780 (Buttram); People v. Panizzon (1996) 13 Cal.4th 68, 74 (Pannizon); People v. Shelton, supra, 37 Cal.4th at p. 766.)

The substance of Leyva’s appeal is based upon the trial court’s denial of his request for probation, and a sentence imposed in violation of section 654. Thus, he raises “issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (Buttram, supra, 30 Cal.4th at p. 780, citing Panizzon, supra, 13 Cal.4th at p. 74.) We therefore conclude Leyva’s failure to secure a certificate of probable cause does not, by itself, foreclose our ability to reach the merits of his claims.

3. Waiver of the Right to Appeal

With respect to the appellate waiver, Leyva argues the waiver does not encompass sentencing issues that occurred subsequent to entry of his plea, which were left unresolved by the plea agreement. According to Leyva, sentencing was left unresolved because he plead open. As a result, he contends his claims fall outside the scope of the appellate waiver.

If the sentencing issues Leyva raises fall within the scope of the appellate waiver, then we must determine whether the waiver is enforceable. An argument pertaining to the enforceability of an appellate waiver may amount to an attack on the validity of the plea, thus requiring a certificate of probable cause. (People v. Becerra (2019) 32 Cal.App.5th 178, 188; Buttram, supra, 30 Cal.4th at p. 793 (conc. opn. of Baxter, J.) [an “attempt to appeal the enforceability of the appellate waiver itself (for example, on grounds that it was not knowing, voluntary, and intelligent, or had been induced by counsel’s ineffective assistance)” constitutes “an attack on the plea’s validity, thus requiring a certificate”].) However, if the sentencing issues Leyva raises fall outside the scope of the appellate waiver, no certificate of probable cause is required to address the merits of Leyva’s claims on appeal. (People v. Becerra, at p. 188.) In the latter circumstance, the appellate waiver and its enforceability are simply not relevant. In view of these principles, we address the scope of the appellate waiver first.

1. Scope of the Appellate Waiver

Leyva contends he executed a general appellate waiver which does not encompass unknown or unforeseen sentencing errors, such as those he alleges occurred here. As stated, Leyva raises two issues on appeal. First, the trial court’s denial of his request for probation, and second, a section 654 sentencing issue. Because of the distinct nature of his claims, we address them separately.[4] We turn first to Leyva’s contention that the trial court abused its discretion in denying him probation.

“Waiver is the voluntary, intelligent, and intentional relinquishment of a known right or privilege. [Citations.] ‘ “[T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived.” ’ ” (People v. Castellanos (2020) 51 Cal.App.5th 267, 272.) “ ‘A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error.’ ” (People v. Patton (2019) 41 Cal.App.5th 934, 940.)

Here, the record amply supports the conclusion that one issue Leyva raises on appeal—the trial court’s denial of his request for probation—was contemplated at the time he entered his plea. Leyva executed an oral and written waiver of his right to appeal. The plea form contains a section titled, “Waiver of Appeal.” The waiver proviso states, “I understand that I will be waiving my right to appeal and I will not be able to appeal from this Court’s sentence based on the plea that I enter into in this matter.” (Italics added.) Leyva signed a section of the plea form acknowledging his attorney had explained his rights to him, as well as the possible consequences of his plea, and that he was entering his plea “freely and voluntarily.” The trial court asked Leyva, “And do you understand there won’t be any appeal from this conviction?” Leyva replied, “Yes, sir.”

The only issue that remained when Leyva entered his plea was the punishment he would receive. Specifically, whether he would receive probation or a prison sentence. Defense counsel stated Leyva was entering into an open plea for the purpose of “putting himself at the mercy of the [c]ourt … for the benefit of the veterans’ court slash chance at probation.” The court made clear that Leyva could receive anything from probation to a prison term in excess of 40 years.

The appellate waiver thus contemplated the trial court would exercise its discretion to determine an appropriate sentence within the parameters of the applicable sentencing range. Leyva was undeniably aware of the fact that he might not receive a grant of probation. Accordingly, upon this record, we are unable to conclude the denial of his request for probation was an “unforeseen or unknown future error.” (People v. Patton, supra, 41 Cal.App.5th at p. 940.) That was the sole purpose for which he entered his plea to the court.

2. Enforceability of the Appellate Waiver

Because we conclude the appellate waiver encompasses one of the sentencing errors Leyva complains of on appeal, we now turn to whether the waiver is enforceable. Leyva contends his appeal arises from a non-negotiated plea where he was offered nothing in exchange for his plea. He appears to argue that because he did not receive a benefit in exchange for waiving his right to appeal, he cannot be bound to the waiver.

The People contend that if a defendant can waive his constitutional rights by pleading guilty, it follows that he may waive his statutory right to appeal. As the record here shows Leyva understood and knowingly waived his appellate rights, the People submit the waiver is enforceable.

Plea bargain agreements are viewed through the paradigm of contract law. (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157; People v. Shelton, supra, 37 Cal.4th at p. 767; People v. Nguyen (1993) 13 Cal.App.4th 114, 120.) The legal precedent addressing the enforceability of an appellate rights waiver has addressed such waivers in the context of plea bargains or in open pleas where some type of offer of leniency is given in exchange for the defendant’s waiver of his right to appeal. As a result, the defendant is held to the waiver, and in turn, the state is required to uphold its end of the bargain. (People v. Cisneros-Ramirez (2018) 29 Cal.App.5th 393, 400, citing People v. Collins (1996) 45 Cal.App.4th 849, 862-863 [“ ‘ “[w]hen a guilty plea ... is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties ... must abide by the terms of the agreement” ’ ”].)

But what if nothing has been offered in exchange for the defendant’s plea? With respect to open pleas, the court cannot make any promises or inducements in exchange for the defendant’s plea. (Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1055; People v. Clancey (2013) 56 Cal.4th 562, 575, citing People v. Superior Court (Felmann) (1976) 59 Cal.App.3d at p. 276 [“ ‘[a] court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial’ ”]; People v. Collins, supra, 26 Cal.4th at p. 307 [if a guilty plea is induced by “a trial court’s explicit promise of more lenient treatment in sentencing,” the plea is invalid].) In the context of a truly open plea where the People have not agreed to dismiss any counts or enhancements, or to impose a sentencing lid, nothing is given in exchange for the defendant’s waiver of his right to appeal. Leyva appears to imply there can be no binding waiver of his right to appeal under the circumstances.

Whatever the merits of Leyva’s contention may be, he fails to adequately develop his argument. Leyva’s argument appears to be that he cannot knowingly and intelligently waive future unknown errors, such as the sentencing errors he raises on appeal. That argument pertains to the scope of the waiver. But assuming the scope of the waiver and Leyva’s failure to secure a certificate of probable cause are not impediments, he does not explain how the waiver here was not knowingly and voluntarily made. In other words, he does not directly address the enforceability of the waiver except to state it was not supported by consideration.

We conclude it appropriate to hold Leyva to the appellate waiver. Leyva entered into an open plea for purposes of “putting himself at the mercy of the Court” in hopes of bolstering his chance at receiving probation. He agreed to waive his right to appeal, following an oral advisement from the court, a succinct but clear written advisement, and the advice of counsel. Although he did not have a criminal history, and therefore lacked experience with criminal proceedings, he did have a college education and could reasonably be expected to understand the consequences of his waiver: specifically, that there would be no appeal from the sentence imposed. Leyva was 69 years old at the time he entered his plea. Nothing in the record suggests he suffered from any type of mental defect which would have inhibited his ability to understand the nature of the right he was waiving.

Leyva was repeatedly cautioned that a grant of probation may not be an appropriate disposition in his case. When he was subsequently denied probation—an outcome which was reasonably foreseeable based on the seriousness of his commitment offenses—he appealed the sentencing court’s decision. This is not a circumstance where an unforeseen sentencing irregularity occurred postplea. This is a matter where one of the parties disagrees with the trial court’s exercise of its sentencing discretion, a decision which rests within the broad discretion of the court. (People v. Welch (1993) 5 Cal.4th 228, 233.) However, by entering into a plea to the court, Leyva accepted the risk of being sentenced up to the maximum term his convictions carried. Although he did not receive an express benefit in exchange for his plea, the record demonstrates the waiver of his right to appeal was otherwise knowingly, voluntarily, and intelligently executed. We therefore conclude it is appropriate to hold him to the waiver.

2. Ineffective Assistance of Counsel

Leyva contends his trial counsel was ineffective for failing to object to the appellate rights waiver at sentencing and for failing to “pursue” a certificate of probable cause. Even if we were to presume error, Leyva has failed to properly articulate how the prejudice he has allegedly suffered meets the standard articulated under Strickland v. Washington (1984) 466 U.S. 668. Leyva argues defense counsel’s errors obstructed his ability to seek appellate review of his sentence, but that alone does not prove prejudice.

To establish prejudice based on a claim of ineffective assistance of counsel, “prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 333.) “It is the defendant’s burden on appeal ... to show that he or she was denied effective assistance of counsel and is entitled to relief.” (In re Hill (2011) 198 Cal.App.4th 1008, 1016.)

Even if defense counsel had successfully objected to the appellate rights waiver, the record refutes Leyva’s implied assertion that it would have made any difference in the outcome of Leyva’s case. Leyva could not have been admitted to veteran’s treatment court because the superior court did not have such a program. Pursuant to section 1170.9, subdivision (b)(1), the court had a duty to consider the fact that Leyva was a veteran with a qualifying mental health disorder as a factor weighing in favor of granting probation. The court acknowledged this duty but advised Leyva that the decision to grant him probation was ultimately discretionary.

Prior to the entry of his plea, the court made abundantly clear it was not providing any assurances that Leyva would be granted probation if he plead guilty. Indeed, Leyva was cautioned that he could face a prolonged prison sentence, ranging from 16 months to a term of over 40 years. The probation officer, the correctional counselor, the correctional counselor’s supervisor, and the doctor who conducted Leyva’s diagnostic assessment all recommended probation be denied and that Leyva be incarcerated. The Probation Officer’s report recommended Leyva receive a prison term of 43 years 8 months.

Although Leyva contends these reports “contained inconsistencies, errors, and/or unsupported conclusions,” he points primarily to the fact that each report ultimately recommended incarceration rather than probation. The trial court considered all relevant circumstances and concluded that Leyva should receive a prison term of 22 years. Given the nature and seriousness of his offenses, we reject Leyva’s assertion that the trial court erred by denying his request for probation. We therefore conclude Leyva has failed to show prejudice resulting from defense counsel’s presumed errors.

3. Application of Section 654 to Counts 1 and 4

Leyva argues the trial court imposed an unauthorized sentence when it punished him several times for one act in violation of section 654. He contends the trial court erred by sentencing him on count 1 (elder abuse) and count 4 (discharge of a firearm with gross negligence) when it ran both counts concurrent to count 2 (assault with a firearm), but then failed to stay the sentences on counts 1 and 4. According to Leyva, all three counts are based on the single act of assault with a firearm on Hodgins.[5]

The People concede Leyva’s sentence on count 4 must be stayed. With respect to Leyva’s conviction for elder abuse (count 1), they submit the court did not err by failing to stay the sentence on this count because Leyva harbored a separate intent and objective from his intent in the commission of the assault with a firearm in count 2. We agree with the People.

1. Background

During sentencing, the court stated the following:

“It seems to me that the [section] 368 [count 1] on Mr. Hodgins is the same act as the [section] 245 [count 2] or at least it’s so related that it should not be punished separately. I will impose concurrent time on the [section] 368, same with the [c]ount 4, the reckless discharge of a firearm. He’s already being punished with the firearm usage with the [section] 12022.5 and the [section] 245.

2. Reviewability

“It is well settled ... that the court acts ‘in excess of its jurisdiction’ and imposes an ‘unauthorized’ sentence when it erroneously stays or fails to stay execution of a sentence under section 654.” (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) A defendant may challenge an unauthorized sentenced on appeal even if they failed to object below, provided the defendant did not plead guilty in exchange “for a specified sentence.” (People v. Hester (2000) 22 Cal.4th 290, 295.) Here, as there was no agreement to a specified or maximum agreed upon prison term, Leyva’s failure to object does not foreclose his section 654 challenge to his sentence.

Moreover, this alleged sentencing error could not have been anticipated at the time Leyva executed the waiver of his right to appeal. Consequently, it is outside the scope of the waiver and may therefore be raised on appeal. (See, People v. Panizzon, supra, 13 Cal.4th at p. 85 [a waiver of appeal rights does not apply to “ ‘possible future error’ [that] is outside the defendant’s contemplation and knowledge at the time the waiver is made”].)

3. Law

Section 654, subdivision (a), provides, in part: “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.” The statute precludes multiple punishment when a single act or an indivisible course of conduct violates two or more criminal statutes. (Hester, supra, 22 Cal.4th at p. 294; People v. Deloza (1998) 18 Cal.4th 585, 591.) It is error for a trial court to impose a concurrent sentence if section 654 applies. The proper procedure if the statute applies is to impose a sentence but stay its execution, despite little practical difference between a concurrent sentence and a stayed sentence. (People v. Jones (2012) 54 Cal.4th 350, 353.)

As the court explained in People v. Corpening (2016) 2 Cal.5th 307 (Corpening), “[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.” (Corpening, at pp. 311-312.)

Whether multiple crimes were committed as part of an indivisible course of conduct depends upon the defendant’s intent and objective. (People v. Harrison (1989) 48 Cal.3d 321, 335; In re Adams (1975) 14 Cal.3d 629, 634.) “ ‘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.’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) “On the other hand, if the evidence discloses that a defendant entertained ‘multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ ” (In re Adams, at p. 634.)

4. Analysis

1. Counts 2 and 4

The People concede Leyva acted with the same intent and objective in the commission of count 4, discharge of a firearm with gross negligence, as he did in the commission of count 2, assault with a firearm. Consequently, they submit the sentence attached to count 4 must be stayed. We agree.

The record supports the conclusion count 2 is based on Leyva’s act of shooting Hodgins. Count 3 alleges an identical charge and enhancement but it pertains to Guthmiller. She was also shot during Leyva’s struggle with Hodgins. Thus, it appears the single physical act of shooting Hodgins was used to support Leyva’s conviction for assault with a firearm in count 2 and discharging a firearm with gross negligence in count 4. We will therefore order the sentence on count 4 stayed pursuant to section 654.

2. Counts 1 and 2

With respect to Leyva’s conviction for count 1, elder abuse likely to produce great bodily injury, we reject his assertion that this conviction is also based upon count 2, Leyva’s act of shooting Hodgins. The record supports the conclusion count 1 was based upon Leyva’s act of striking Hodgins with the pistol, which is distinct from the subsequent shooting.

Leyva claims he pistol whipped Hodgins because Hodgins repeatedly went after Leyva’s pistol. During this initial struggle, Leyva pushed Hodgins against a closed door. Hodgins was “bleeding ‘everywhere.’” At this point, there was a momentary pause during the struggle. Leyva “realized he was going to jail and became ‘pissed.’ ” He began shooting at Hodgins’s computer and his television, and he began breaking Hodgins’s pictures. Leyva and Hodgins began wrestling for the pistol, and according to Leyva, “it went off twice.” Both Hodgins and Guthmiller were shot. Thus, not only are Leyva’s convictions for elder abuse (count 1) and assault with a firearm (count 2) distinct physical acts, they were accomplished with different motives in mind.[6]

When there is no “explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it.” (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045, citing People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.) Here, the trial court impliedly determined section 654 does not apply to Leyva’s conviction for discharging a firearm with gross negligence because it did not stay the sentence on count 4. We must affirm the court’s determination if it is supported by substantial evidence. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Mejia, at p. 1045.) Based on our review of the record, there is substantial evidence to support the trial court’s implied finding.

Leyva contends the trial court made an express finding that section 654 must be applied to counts 1 and 4. During sentencing, the court stated, “t seems to me that the [section] 368 [count 1] on Mr. Hodgins is the same act as the [section] 245 [count 2] or at least it’s so related that it should not be punished separately. I will impose concurrent time on the [section] 368, same with the [c]ount 4, the reckless discharge of a firearm.” Out of context, this statement may appear inconsistent with the court’s implied determination that section 654 does not apply, but Leyva’s argument does not accurately characterize the record.

Trial courts have the discretion to impose concurrent or consecutive sentences when confronted with multiple convictions. (§ 669, subd. (a); [i]People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479.) Further, the determination of whether section 654 applies precedes the determination of whether to impose a concurrent or consecutive sentence. (Cal. Rules of Court, rule 4.424.) In determining whether to impose a concurrent or consecutive sentence, the court considers factors such as whether “[t]he crimes involved separate acts of violence” (rule 4.425(a)(2)). Thus, notwithstanding the court’s implied determination that the sentence for elder abuse was not required to be stayed pursuant to section 654, it still had to determine whether to impose a concurrent or consecutive sentence. In so doing, the court was required to consider factors that necessarily overlap with section 654 considerations.

During the sentencing hearing, the court stated counts 1, 2, and 4 were the same act or “at least … so related that [they] should not be punished separately.” Given the circumstances underlying Leyva’s crimes, the court’s statutory authority to select either a concurrent or a consecutive term for counts 1 and 4, and the rule delineating the criteria for making that selection, we conclude the court’s comment was made in the context of explaining why it was exercising its discretion to impose a concurrent term. We reject Leyva’s contention that the court’s comment referred to section 654 considerations.

DISPOSITION

The judgment is modified to stay the concurrent sentence on count 4. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

* Before Poochigian, Acting P.J., Franson, J. and Peña, J.

[1] All undefined statutory citations are to the Penal Code unless otherwise indicated.

[2] In an open plea, the defendant pleads unconditionally to all charges, and is exposed to the maximum possible sentence. (People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4.)

[3] “Section 1170.9 authorizes alternative commitment for eligible military veterans convicted of felonies.” (People v. Panozo (2021) 59 Cal.App.5th 825, 835-836.) Under the statute, a court is obligated to consider a defendant’s qualifying service-related psychological condition as a mitigating circumstance weighing in favor of granting probation. (Ibid.)

[4] We address Leyva’s section 654 claim in part III, post, for the reasons discussed therein.

[5] Based on the context of Leyva’s argument, we interpret “assault” to mean Leyva’s act of discharging the pistol.

[6] A trial court’s section 654 analysis is not necessarily limited by the agreed factual basis for the plea. “The right to enter a plea of guilty or to waive trial by jury cannot be deemed to include the right to deprive the court of facts that must be known in order to make a correct sentencing decision; nor can a plea bargain limit that inherent judicial prerogative.” (People v. Ross (1988) 201 Cal.App.3d 1232, 1241.)