P. v. Cerda

Filed 1/21/09 P. v. Cerda 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Merced County. Hugh M. Flanagan, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

After breaking into a house and accosting the occupants, defendant Ryan Cerda was convicted of burglary, attempted robbery, assault with a deadly weapon, and preventing or dissuading a witness from reporting the crimes. His aggregate prison sentence was 16 years. Cerda argues now that the court gave the jury erroneous instructions and an inadequate verdict form. He also contends that the sentences for three of his crimes should have been stayed pursuant to Penal Code section 654 and that the court imposed consecutive sentences improperly.

We modify the judgment to stay, pursuant to Penal Code section 654, the 16-month sentence for burglary and the eight-month sentence for attempted robbery, reducing the total unstayed sentence to 14 years. We affirm the judgment as modified.

FACTUAL AND PROCEDURAL HISTORIES

Ted Harris awoke from an afternoon nap on April 27, 2007, to the sound of glass breaking. He roused his girlfriend, Julie Hughey, and said, Julie, I think somebodys breaking in. Cerda and another man rushed into the bedroom. Cerda asked Harris, Who are you? Before Harris could get up from the bed, Cerda pushed him down and drew a folded knife. Cerda said to Hughey, Are you Julie? Are you Julie? Uh, listen [here], [b]itch, I heard you been talking shit all over town about me, and its time for you to pay. He claimed Hughey had ripped [him] off. Then he said, give me all your money and possibly also give me all your dope. Hughey picked up the telephone and began to dial 911. Cerda or his accomplice grabbed the phone from Hugheys hands. Harris grabbed the phone back. About this time, Cerda opened the knife. He told Hughey she was a dead bitch if [she] touched the phone again.

Harris had $300 to $400 in his pants pocket, but did not give it to Cerda. Hughey threw Cerda a $10 bill. Cerda reached for it. Hughey picked up the phone and dialed 911 again. Cerda took it and hung it up, again telling Hughey she was a dead bitch. The phone rang. Hughey believed it was the 911 operator calling back. With the $10 bill, Cerda and his accomplice began to leave the bedroom.

Harris, rising from the bed and putting on his pants, pursued, telling the intruders, Youre gonna pay for this and get the fuck out. Harris and Cerda stood face to face for a moment, then Cerda struck Harris with the knife, knocking Harris to the floor and cutting his face and neck. Harris got a towel for the wound and a baseball bat and ran into the street after the intruders, who fled. Shortly afterward, Harris was airlifted to a hospital for surgery to repair the wound.

The district attorney filed an information alleging four counts: (1) burglary of an inhabited dwelling (Pen. Code,  459^[1]); (2) attempted robbery of Harris in an inhabited dwelling ( 212.5, subd. (a) & 664); (3) assault against Harris with a deadly weapon or by means of force likely to cause great bodily injury ( 245, subd. (a)(1)); and (4) preventing or dissuading Hughey from reporting or testifying about a crime ( 136.1, subd. (c)(1)). Each count included, for sentence-enhancement purposes under section 667.5, subdivision (b), allegations that Cerda served prison terms for four prior offenses: illegal weapon possession ( 12020); reckless driving while fleeing police (Veh. Code,  2800.2); unauthorized possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)); and receiving stolen property ( 496, subd. (a)). Count one included, for sentence-enhancement purposes under section 667.5, subdivision (c)(21), the allegation that Harris and Hughey were present during the burglary. Count three included, for sentence-enhancement purposes under section 12022.7, subdivision (a), the allegation that Cerda personally inflicted great bodily injury on Harris.

The jury found Cerda guilty of all four counts. It found true the allegations that Harris and Hughey were present during the burglary and that Cerda personally inflicted great bodily injury on Harris. Cerda admitted the prior-prison-term allegations.

The court imposed the upper term of four years for the assault plus three years for personal infliction of great bodily injury. It imposed a full, consecutive sentence of three years, the middle term, for preventing or dissuading a witness, and four consecutive one-year sentences for the prior prison terms. For the burglary and robbery, the court imposed subordinate consecutive terms of 16 months and eight months, respectively, equal to one-third of the middle term for each offense. The aggregate sentence was 16 years.

DISCUSSION

I. CALCRIM No. 358

Cerda did not request, and the court did not give, a jury instruction in compliance with CALCRIM^[2]No. 358, which states:

You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s].

[You must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded.]

Citing People v. Beagle (1972) 6 Cal.3d 441, 455-456, the bench notes to CALCRIM No. 358 assert that [t]he court has a sua sponte duty to give the bracketed cautionary instruction for evidence of out-of-court oral statements made by the defendant. Cerda argues that the court was required to give this cautionary instruction in connection with counts two (attempted robbery) and four (preventing or dissuading a witness) because the convictions for those counts depended on his oral demand for money or drugs and his oral threat that Hughey was dead if she tried to call the police. As we will explain, there was no prejudicial error.

In a criminal trial, the court must give an instruction requested by a party if the instruction correctly states the law and relates to a material question upon which there is evidence substantial enough to merit consideration by the jury. (People v. Avena (1996) 13 Cal.4th 394, 424; People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on other grounds by People v. Barton (1995) 12 Cal.4th 186, 201.) The court must also give some instructions sua sponte:

[E]ven in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial. The most rational interpretation of the phrase general principles of law governing the case would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court. [Citations.] (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)

The court has no duty to give an instruction if it is repetitious of another instruction the court gives. (People v. Turner (1994) 8 Cal.4th 137, 203, overruled on other grounds by People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Failure to give an instruction, even if it was required under the above principles, warrants reversal only if there is a reasonable probability that the defendant would have obtained a more favorable outcome if it had been given. (People v. Breverman (1998) 19 Cal.4th 142, 178.)

With respect to the charge of preventing or dissuading Hughey from reporting the crimes, the omission of CALCRIM No. 358 and its cautionary language was not erroneous. The instruction is not required where the statement in question is an element of the crime. (People v. Zichko (2004) 118 Cal.App.4th 1055, 1059-1060 [comparable cautionary language in CALJIC No. 2.71 not required with respect to statement constituting offense of making a criminal threat]; CALCRIM No. 358, bench notes.) Cerda contends that the Zichko rule applies only where the statement at issue was a necessary element of the offense; a threat is not a necessary element of a violation of section 136.1, subdivision (c)(1), which requires force or [a] threat of force (italics added). Cerda cites no case endorsing this limitation of the Zichko rule, however, and we see no reason to adopt it. As the Court of Appeal explained in Zichko, the point of the cautionary instruction is to alert the jury to the potential unreliability of evidence of a defendants unrecorded oral admission that tends to prove he committed the crime. (People v. Zichko, supra, 118 Cal.App.4th at pp. 1059-1060.) It is not intended to impose a special disability on the testimony of witnesses who say they heard the defendant make a statement that constituted part of the crime. This distinction is sound regardless of whether the making of a statement was the only way to commit the crime or, as here, one of two possible ways to commit the crime.

Even if the omission of the cautionary instruction had been error in this case, it would have been harmless for two reasons. First, Cerda used a threat and force to prevent Hughey from speaking to the 911 operator, for, as he threatened her life, he also took the phone from her hands and hung it up, physically stopping her from reporting his crimes. Even if the jury had been told to regard the victims testimony about the threat with caution, in fact, even if it had never heard that testimony, there is no reasonable probability it would have reached a different verdict on count four.

Second, our Supreme Court has observed that the cautionary instruction serves to warn jurors that conflicts in the testimony about what the defendant said may be a signal that the defendant really made no admission at all, so the error of failing to give the instruction is less likely to be prejudicial where there are no such conflicts, especially if the jury received other correct instructions on evaluating witness credibility. (People v. Dickey (2005) 35 Cal.4th 884, 905-906; People v. Bunyard (1988) 45 Cal.3d 1189, 1224-1226.) Here, there was no inconsistency in the testimony that Cerda said Hughey would be a dead bitch if she tried to call the police; and the court gave appropriate instructions on evaluating witness credibility (CALCRIM Nos. 226, 316).

The People concede error on the failure to give CALCRIM No. 358s cautionary instruction with respect to the evidence that Cerda demanded money or drugs in committing the attempted robbery. This error, however, was also harmless. True, there was a conflict in the evidence; Harris testified that Cerda asked for money and drugs, while Hughey testified that Cerda demanded money but not drugs. The other evidence that Cerda used threats or force in an attempt to take property from the person or presence of another, however, was powerful. Cerda broke into the house, found the occupants, and displayed a knife. A victim then threw money toward him, and he took it. There was no likelihood the jury would have found Cerda not guilty of attempted robbery even if it had been instructed to view the evidence of his oral demand for property with caution.

II. Verdict form and jury instructions on preventing or dissuading a witness

In accordance with CALCRIM Nos. 2622 and 2623, the court instructed the jury on preventing or dissuading a witness, by threats or force, from reporting a crime or testifying (count four,  136.1, subd. (c)(1)). The courts instruction stated:

The defendant is charged in Count 4 with intimidating a witness, in violation of Penal Code section 136.1.

To prove that the defendant is guilty of this crime, the People must prove that:

One, the defendant maliciously tried to prevent or discourage Julie Hughey from making a report that she or someone else was a victim of a crime of burglary, attempted robbery and assault with a deadly weapon.

Julie Hughey was a witness or crime victim.

And the defendant knew he was trying to prevent or discourage Julie Hughey from making a report that she or someone else was a victim of a crime of burglary, attempted robbery and assault with a deadly weapon with intent to do so. [] []

If you find the defendant guilty of intimidating a witness, you must then decide whether the People have proved the additional allegations that the defendant acted maliciously and used or threatened to use force or acted to obtain money or something of value.

To prove this allegation, the People must prove that:

The defendant acted maliciously;

And the defendant used force or threatened, either directly or indirectly, to use force or violence on the person or property of a witness or victim.

The instructions discussion of the additional allegations that the defendant acted maliciously and used or threatened to use force refers to the circumstance in subdivision (c)(1) of section 136.1 that the act is accompanied by force or by an express or implied threat of force . This circumstance is a sentencing factor that increases the applicable sentence to a triad of two, three, or four years. ( 136.1, subds. (a), (b), (c).)

The bench notes to CALCRIM No. 2623 advise that [t]he court must provide the jury with a verdict form on which the jury will indicate if each alleged sentencing factor has or has not been proved.

The verdict form provided to the jury in this case made no reference to sentencing factors. As filled out by the jury, the form simply says, We, the jury in the above entitled cause, find the defendant RYAN CERDA guilty of Prevent or Dissuade a Witness, a violation of Section 136.1(c)(1) of the California Penal Code, a felony, Count 4 of the Information.

We agree with Cerdas contention that the court committed error. If the jury had been instructed that the elements of a violation of section 136.1, subdivision (c)(1), included the use of threats or forceso that a verdict of guilty would necessarily include a finding that Cerda used threats or forcethe verdict form might have been adequate. Instead, however, the court told the jury it must separately decide whether Cerda was guilty of the offense and whether he committed the offense through threats or force. Following the pattern instruction, the court explicitly directed the jury to make its decision in two stages. Overlooking the notes accompanying the pattern instruction, however, the court failed to provide the jurors a verdict form permitting a two-stage decision. The jurors were asked whether Cerda was guilty of the offense, but not asked whether the sentencing factor was true. It makes no difference that the verdict form cited subdivision (c)(1) of section 136.1, in which the threat-or-force factor is contained. Nothing in the record shows that the jury was told the citation had that meaning.

The court could direct the jury to make the decision in one step and provide a one-step form, or it could direct the jury to make the decision in two steps and provide a two-step form, but it could not mix and match. In sum, if the instructions were correct, the verdict form was erroneous; and if the verdict form was correct, the instructions were erroneous.

As Cerda concedes, the error is subject to review for harmlessness under Washington v. Recuenco (2006) 548 U.S. 212, 214, 222, in which, as here, the jury never made a finding necessary to the sentence imposed. The Supreme Court did not expressly state a standard for harmless-error review in Recuenco, so we will assume for the sake of argument that the error here is reversible unless harmless beyond a reasonable doubt. Under that standard, the error is harmless. The only evidence supporting count four was the testimony that, after Hughey dialed 911, Cerda physically took the phone from her hands, hung it up, and told her she would be dead if she kept trying. An act of force and a threat were the only means by which any witness claimed Cerda tried to prevent or dissuade Hughey from reporting the crimes. There was no evidence that would have supported a finding that he tried to dissuade or prevent her from calling the police without threats or force. Under these circumstances, the jurys finding that Cerda tried to dissuade or prevent Hughey logically necessitates a finding that he did it by means of threats or force. Therefore, we are confident beyond a reasonable doubt that the error was harmless.

III. Section 654

Cerda claims he committed all four offenses as part of the same indivisible course of conduct and pursuant to a single criminal objective. Consequently, he argues, the sentences for all but count three, assault with a deadly weapon, should be stayed pursuant to section 654.

Section 654, subdivision (a), provides:

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.

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

An assault committed during a robbery generally presents a situation not allowing multiple punishment under section 654,^[3]and the People concede that the sentence for attempted robbery should be stayed. We accept the concession.

The court also erred in imposing separate punishments for the assault and burglary. Many cases have held that the objective of a burglary is not divisible from the burglars objective in committing crimes once inside the building. (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 886 [sentence for assault with deadly weapon stayed under  654 where burglar entered store and committed robbery and assault inside], overruled on other grounds in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8; People v. McElrath (1985) 175 Cal.App.3d 178, 191 [burglary sentence stayed under  654 where burglar entered house with intent to rape and did rape victim]; People v. Collins (1963) 220 Cal.App.2d 563, 578-579 [burglars sentences for theft and assault with deadly weapon set aside where he committed offenses after entering house with intent to commit theft].)

In cases reaching the opposite result, the second crime has generally been connected with some later occurrence, such as an escape or flight, on the basis of which a new objective could be imputed. (See, e.g., People v. McGahuey (1981) 121 Cal.App.3d 524, 528-529 [after completing burglary, fleeing burglar threw hatchet through window at victim as victim telephoned police; stay of sentence for assault not appropriate under  654 because assault motivated by new objective, escape]; People v. Vidaurri (1980) 103 Cal.App.3d 450, 463-464, 465-466 [after completing burglary, fleeing burglar assaulted security guards in parking lot; stay of sentences for assaults not called for].)

In light of these precedents, we do not see a sufficient evidentiary basis for the courts implicit finding of separate objectives for the burglary and the assault here. As Cerda began to withdraw, Harris got out of bed and rushed toward him. Cerdas objective in cutting Harris with the knife was to overpower Harris in order to get out of the house that Cerda had just burglarized. True, these facts have points in common with McGahuey and Vidaurri. The scenario presented here, howevera burglar or robber commits an assault when he meets resistance from victims in the course of committing the burglary or robberyhas consistently been treated in case law as a single-objective scenario.

The People have not supplied us with any basis for a contrary conclusion. They state that only the robbery sentence, not the burglary sentence, should be stayed, but they offer no reasons why the burglary should be viewed as having an objective divisible from that of the other offenses. As we have found none on our own, we conclude that the burglary sentence must be stayed.

The preventing-or-dissuading offense falls into a category different from the robbery and burglary. As in People v. Nichols (1994) 29 Cal.App.4th 1651, Cerdas objective in preventing a victim from reporting the crime was to avoid detection, and this was distinct from the objective of the underlying crime. Nichols hijacked a truck and kidnapped the driver. Before releasing him, Nichols learned the drivers address from his drivers license and said he would come kill him if he reported the crime. (Id. at p. 1654.) The Court of Appeal held that separate punishments were permissible for kidnapping and attempting to dissuade the victim from reporting the crime because there was sufficient evidence that the hijacking and kidnapping had one objective and the attempt to dissuade another. (Id. at pp. 1657-1658.) Here, similarly, there was sufficient evidence to support a finding that the burglary, robbery, and assault had stealing as their objective while the objective of the attempt to prevent Hughey from calling the police was to avoid detection. Separate punishments for the assault and the preventing-or-dissuading offense therefore were appropriate.

In sum, the offenses charged in counts one (burglary), two (attempted robbery), and three (assault with a deadly weapon) constituted a single course of conduct with the single objective of stealing. The offense charged in count four (preventing or dissuading a witness) had a distinct objective, the avoidance of detection. Separate punishments therefore were appropriate under section 654 for counts three and four, but the sentences for counts one and two must be stayed. This means the four-year sentence for count three, the three-year enhancement for great bodily injury, the three-year sentence for count four, and the four, one-year enhancementsa total of 14 yearswill remain unstayed, while the 16-month sentence for count one and the eight-month sentence for count two will be stayed.

IV. Dual use of facts to justify consecutive sentences

At the sentencing hearing, Cerdas principal argument was that some of the sentences should have been imposed to run concurrently. Rejecting this, the court said:

The recommended sentence from the District Attorneys Office is consistent with what I had previously figured. Also, I note that the crime does involve great violence and great bodily harmthreats of great bodily harm, and then, in fact, a significant neck and chin wound with a knife to the victim, that the defendant was, in fact, armed at the time he entered the home and used that weapon, that knife, in carrying out the conduct in the home.

I also find that Mr. Cerda has support of his family. His father has been here for most of the hearings. Hes been in the community for a number of years. And I note that next year well make it the 20th year of a criminal career of various nature thats extended over a long period of time. And this most recent act was certainly violent, and it was serious. But for the location of the actual knife wounds, the results could have been much worse than they were for the victim.

I adopt each of the five findings under [California Rules of Court, rule 4.421(b)(5)]. As to anything that would mitigate imposition of sentence as outlined in Mr. Cerdas matter, I find nothing nor do I find any sentence that would be appropriate for having any concurrent sentences in this matter.

Citing California Rules of Court, rule 4.425(b),^[4]Cerda argues that the imposition of consecutive sentences was erroneous because the court relied on factors it had already employed in imposing other aspects of the sentence. Specifically, Cerda says his use of a deadly weapon could not be used to impose consecutive sentences because it was an element of assault with a deadly weapon; his causation of great bodily injury could not be used for this purpose because it was used to enhance the sentence for assault with a deadly weapon. He could have added that if the courts reference to his criminal record was intended to include his prior prison terms, the court could not rely on those to impose consecutive sentences because it used them to impose enhancements.

Cerda waived his dual-use claim by failing to make it at the sentencing hearing. A defendant must make an objection to the trial courts discretionary sentencing choices in the trial court. This rule applies in cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons. (People v. Scott (1994) 9 Cal.4th 331, 353.)

Contrary to Cerdas argument, the failure to make the claim at the sentencing hearing was not ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, defendant must show that counsels performance fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) It is not necessary to determine whether counsels challenged action was professionally unreasonable in every case. If the reviewing court can resolve the ineffective-assistance claim by proceeding directly to the issue of prejudice, i.e., whether there is a reasonable probability that the outcome would have been different absent counsels challenged actions or omissions, it may do so. (Strickland v. Washington, supra, at p. 697.) Here, there is no reasonable probability that the court would have made a different decision if the issue had been raised. Since we are ordering the sentences for counts one and two stayed under section 654, we consider the question of prejudice here with respect to count four alone, the only remaining offense for which a sentence was imposed consecutive to the principal term.

It is true that the court employed weapon use, great bodily injury, and prior prison terms for purposes other than the imposition of consecutive sentences. The list of aggravating factors it recited was longer than this, however. In particular, the court said it was making all five findings set out in California Rules of Court, rule 4.421(b).^[5] These are:

(1) The defendant has engaged in violent conduct that indicates a serious danger to society;

(2) The defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;

(3) The defendant has served a prior prison term;

(4) The defendant was on probation or parole when the crime was committed; and

(5) The defendants prior performance on probation or parole was unsatisfactory.

Not all of these factors were used in making other parts of the sentencing decision. For no purpose but the imposition of consecutive sentences did the court mention that Cerdas prior convictions were numerous or of increasing seriousness; that he was on probation or parole when the current offenses were committed; or that his prior performance on probation or parole was unsatisfactory. Even if it is assumed that the court relied on some aspects of Cerdas recidivism (such as the numerousness and increasingly serious nature of his prior convictions) to impose the upper term for count three,^[6]other aspects (such as his being on probation or parole at the time of the current offenses and his prior unsatisfactory performance on probation or parole) justified the imposition of consecutive sentences. The court could have separated these out to justify consecutive sentencing. There is little doubt that it would have done so if a dual-use objection had been raised, for the court made clear that it considered concurrent terms inappropriate. Under the reasonable-probability standard, we are confident that if defense counsel had made a dual-use objection at the sentencing hearing, the court would simply have used greater precision in assigning particular factors to particular parts of the sentence. This would have cured any dual-use problem. Cerda therefore has not shown ineffective assistance of counsel.

DISPOSITION

The judgment is modified to stay, pursuant to section 654, the 16-month sentence for count one (burglary) and the eight-month sentence for count two (attempted robbery). The trial court shall prepare an amended abstract of judgment and forward it to the appropriate authorities. The judgment is affirmed as modified.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

_____________________

Cornell, J.

_____________________

Gomes, J.

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^[1]Subsequent statutory references are to the Penal Code unless otherwise specified.

^[2]Judicial Council of California, Criminal Jury Instructions (2006-2007) (CALCRIM).

^[3]See, e.g., In re Henry (1966) 65 Cal.2d 330, 330-331 (robbing liquor store owner was sole objective of attempted armed robbery and assault with a deadly weapon); People v. Ridley (1965) 63 Cal.2d 671, 677-678 (robbery and assault with deadly weapon with intent to commit murder had only one objective); People v. Logan (1966) 244 Cal.App.2d 795, 798 (attempted robbery and assault with intent to kill had one objective), overruled on other grounds by People v. Collie (1981) 30 Cal.3d 43.) Our Supreme Court has stated that one who uses a deadly weapon in the commission of first degree robbery simultaneously assaults the victim with such weapon but clearly may not be punished for both the robbery and assault with a deadly weapon. (People v. Beamon (1973) 8 Cal.3d 625, 637.)

The exception to section 654 for crimes with multiple victims does not apply to the attempted robbery here because the information named only Harris as a victim of the attempted robbery. (See In re Henry, supra, 65 Cal.2d at pp. 331-333.)

^[4]Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except:

(1) A fact used to impose the upper term;

(2) A fact used to otherwise enhance the defendants prison sentence; and

(3) A fact that is an element of the crime may not be used to impose consecutive sentences.

^[5]Actually, it said all five findings in Rule 421(b)(5). This evidently reflects both the former numbering system and a slight citation error. The court must have meant rule 4.421(b).

^[6]The Peoples sentencing memorandum recommended imposing the upper term for count three based on defendants recidivism.