People v. Trejo CA3 ( 2022 )

Filed 6/30/22 P. v. Trejo CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C086916
Plaintiff and Respondent, (Super. Ct. No. CM040152)
v.
SALVADOR TREJO,
Defendant and Appellant.
THE PEOPLE, C086993
Plaintiff and Respondent, (Super. Ct. No. CM040151)
v.
YONATAN ISSAK TESFAZGHI,
Defendant and Appellant.
1
For their participation in a failed robbery, where one of their confederates was shot
and killed, defendants Yonatan Issak Tesfazghi and Salvador Trejo were found guilty by
a jury of multiple offenses including, murder, attempted home invasion robbery in
concert, and burglary.
In this consolidated appeal, defendants raise several contentions challenging their
murder convictions, including that the jury received an erroneous instruction on the
natural and probable consequences doctrine. Defendants also contend their robbery
convictions were unauthorized as the jury verdict forms did not reference “in concert,”
and punishment for the robbery must be stayed under Penal Code section 654.
(Unspecified statutory section citations that follow are to the Penal Code unless otherwise
stated.) Defendant Trejo independently contends his trial counsel rendered ineffective
assistance of counsel by failing to object to the imposition of consecutive sentences for
robbery and burglary; and his abstract of judgment must be corrected to reflect the
sentence imposed. To these, we find merit as to the first and last contention.
Additionally, through supplemental briefs, defendants contend that Senate Bill
No. 775 (2021-2022 Reg. Sess.) provides further grounds to challenge their murder
convictions, and that remand is required for resentencing on their upper-term convictions,
in light of Senate Bill No. 567 (2021-2022 Reg. Sess.). To these, we need not address the
former as the murder conviction must be reversed based on instruction error. But as to
the latter, remand is warranted.
We will therefore reverse the murder convictions and remand for resentencing on
the upper-term counts. In all other respects, we affirm.
FACTS AND HISTORY OF THE PROCEEDINGS
A group of robbers, including defendants Tesfazghi and Trejo, attempted to rob
the home of a family where marijuana was grown. During the attempt, one of the victims
2
of the robbery shot and killed one of the robbers. At trial, numerous witnesses testified
including several members of the victim family and several of the robbers.
The Victims’ Testimony
The mother of the victim family testified that she was serving lunch to her
children, when she heard a car drive quickly up their driveway. Looking out the window,
she saw four people get out of the car, wearing masks. One drew a gun.
She told her adult son (the shooter) that masked men with guns were coming. The
shooter told her to take the younger daughter to the bedroom. The mother did, and from
the bedroom she heard gunshots.
The shooter testified that he heard someone drive into the driveway very fast. His
mother then told him armed, masked men were outside. He looked through the window
and saw someone (the decedent) dressed in black draw a gun.
The shooter tried to lock the door to the house, but he couldn’t get it closed. He
then ran to his parent’s bedroom and got their revolver. He came back to discover the
decedent in the space between the kitchen and the living room.
The shooter testified that the decedent looked “shocked.” For a second, the
decedent and shooter looked at each other. As the shooter explained at trial: “I see him
making a move, like trying to lift up his gun, and that’s when I pulled the trigger.” The
shooter also answered “Correct” when the prosecutor sought to clarify: “You saw his
right hand move?” “Correct.” “So you shot him?” “Correct.”
As the decedent fell, the decedent fired a shot that hit the ceiling. The shooter then
heard several gunshots coming from the kitchen, along with the sounds of chairs being
trampled over.
3
The Robbers’ Testimony
The wife of the decedent testified to hearing a conversation between the decedent
and defendant Tesfazghi, about robbing someone in Oroville. They intended to steal 200
pounds of marijuana and guns.
In two cars, the wife and the other robbers, including defendant Trejo, drove to
Oroville. There, they drove past the victims’ house several times before commencing the
robbery. On a nearby street, defendant Tesfazghi, the decedent, and a third robber
donned masks and gloves. The decedent and defendant Tesfazghi had guns; the third
robber had a crowbar. Those three robbers and the wife then drove to the victims’ house
(defendant Trejo and another robber drove around the corner). Before he got out, the
decedent told his wife that if she heard gunshots, she should try to leave.
The wife testified that she watched the decedent enter the house, followed by
defendant Tesfazghi, then the robber with the crowbar. Seconds later she heard gunshots.
Shortly thereafter, she picked up defendant Tesfazghi and the robber with the crowbar.
Tesfazghi got in the driver’s seat and eventually drove back home with the wife and
several of the robbers. The wife later pleaded guilty to home invasion robbery, with a
gun enhancement.
The robber with the crowbar testified that he had gone to the victims’ back door,
with the decedent in the lead. He then watched the decedent and defendant Tesfazghi go
inside; he did not go inside himself. He heard three or four gunshots. He also saw
defendant Tesfazghi raise and point a gun. He then ran away from the house.
Jury Verdict and Sentencing
The jury found both defendants Tesfazghi and Trejo guilty of murder (§ 187, subd.
(a); count 1); attempted home invasion robbery in concert (§ 211; count 2); and first
degree burglary (§ 459; count 3).
4
Separately, the jury found defendant Tesfazghi guilty of shooting at an inhabited
dwelling (§ 246; count 4). It also found he had personally and intentionally discharged a
firearm (§12022.53, subd. (c)); personally used a firearm (§§ 1203.06, subd. (a)(1),
12022.5, subd. (a)); and had been armed with a firearm (§ 12022, subd. (a)(1)) as to
counts 1 through 3. It further found there was a person present in the home as to the
burglary count. And as to defendant Trejo, the jury found a principal had been armed
with a firearm (§ 12022, subd. (a)(1)) for counts 1 through 3.
Defendant Tesfazghi was sentenced to a 15-year-to-life indeterminate term along
with a 24-year, six-month determinate term: the four-year, six-month upper term for
robbery, with a 20-year firearm enhancement; and a 15-year-to-life term for murder.
Concurrent upper terms were imposed for the burglary and shooting into an inhabited
dwelling counts. Various gun enhancements were also imposed and stayed.
Defendant Trejo was sentenced to a 15-year-to-life indeterminate term, along with
a nine-year four-month determinate term: the six-year upper term for burglary, with a
one-year firearm enhancement; a one-year four-month term (one third the middle) for
robbery, with a one year firearm enhancement; and a 15-year-to-life term for murder.
DISCUSSION
I
Murder
On appeal, defendants collectively raise six contentions challenging their murder
convictions. We address only the first of those, as we find it has merit and warrants
reversal of the murder convictions. For that contention, defendants argue the trial court
erred in instructing the jury with a legally invalid theory of the natural and probable
consequences doctrine.
5
A. Additional Background
1. The prosecution request for a CALCRIM No. 402 instruction
Prior to jury deliberation, the prosecution requested a number of jury instructions,
including CALCRIM No. 402, which pertains to the natural and probable consequences
doctrine. Attorneys for defendants objected with one adding, “I think it would be more
confusing than beneficial to keep it in.” The prosecutor responded that the instruction
was necessary to explain parts of CALCRIM No. 561, provocative acts by an accomplice.
Defense counsel countered that the requested instruction bled into felony murder, to
which the prosecutor replied that the CALCRIM No. 402 instruction is “absolutely
imperative, and to not give it I think would take a major, major argument out of my tool
chest . . . .” He added that all along, “it’s natural and probable consequences.”
The trial court took the matter under submission, adding, “if it’s just repeating an
instruction that is given elsewhere, but it clarifies, I would give it. I tend to give more
instructions than maybe we need to.” The next morning the court announced it would
instruct with a modified version of CALCRIM No. 402.
2. The jury instructions
The trial court thereafter instructed the jury with a modified version of CALCRIM
No. 402. In pertinent part it told the jury: “You must decide whether a defendant is
guilty of either or both attempted home invasion robbery and/or first degree burglary with
person present. If you find the defendant is guilty of this crime, you must then decide
whether he is guilty of murder. [¶] Under certain circumstances, a person who’s guilty
of one crime may also be guilty of other crimes that were committed at the same time.”
The instruction continued: “To prove that a defendant is guilty of murder, the
People must prove that: [¶] 1. The defendant is guilty of either or both attempted home
invasion robbery and first degree burglary with person present; [¶] 2. During the
commission of the attempted home invasion robbery and/or first degree burglary with
6
person present a third party killed a principal or accomplice to the attempted home
invasion robbery and/or first degree burglary with person present; [¶] And [¶] 3. Under
all the circumstances, a reasonable person in the defendant’s position would have known
that death was a natural and probable consequence of the commission of the attempted
home invasion robbery and/or first degree burglary person present.” (Italics added.)
For comparison, the form instruction provides in pertinent part: “1. The defendant
is guilty of ________ ; [¶] 2. During the commission of ________
a coparticipant in that ________
committed the crime of ________ ; [¶] AND [¶] 3. Under all
of the circumstances, a reasonable person in the defendant’s position would have known
that the commission of ________ was a natural and probable
consequence of the commission of the ________ .” (CALCRIM
No. 402, original italics omitted, italics added.)
The instruction also explained: “A natural and probable consequence is one that a
reasonable person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of the circumstances
established by the evidence.”
We note that two paragraphs later, the jury was told: “To decide whether the
crime of murder was committed, please refer to the separate instructions that I will give
you on that crime.” The instruction immediately went on to say: “The People allege that
the defendant originally intended to aid and abet the commission of attempted home
invasion robbery and first degree burglary with person present. The defendant is guilty
of murder if the People have proved that the defendant aided and abetted attempted home
invasion robbery or first degree burglary, or both, and that murder was the natural and
probable consequence of either attempted home invasion robbery and/or first degree
burglary. However, you do not need to agree on which of these two crimes the defendant
aided and abetted.”
7
The court went on to instruct on conspiracy, using CALCRIM No. 416.
Thereafter the court told the jury: “The next series of jury instructions relate to the
charge in Count 1, which is homicide of murder.” After, defining homicide, the court
instructed on CALCRIM No. 561, explaining: “This is the provocative act by an
accomplice instruction. [¶] . . . A person can be guilty of murder under the provocative
act doctrine even if someone else did the actual killing. [¶] To prove that a defendant is
guilty of murder under the provocative act doctrine, the People must prove . . . that: [¶]
1. The defendant was an accomplice of [the other robbers] in committing attempted home
invasion robbery and first degree residential burglary with person present; [¶] 2. In
attempting to commit a home invasion robbery and first degree residential burglary with
person present either defendant and/or [the robber with a crowbar] intentionally did a
provocative act; [¶] 3. The defendants knew that the natural and probable consequences
of the provocative act were dangerous to human life, and then acted with conscious
disregard for that life; [¶] 4. In response to the provocative act or acts [the shooter] killed
[the decedent]; [¶] And [¶] 5. [The decedent’s] death was the natural and probable
consequence of the provocative act or acts.”
To that, the jury was instructed: “In order to prove that [the decedent’s] death was
a natural and probable consequence of [the decedent, defendant Tesfazghi, and the robber
with the crowbar’s] provocative act, the People must prove that: [¶] 1. A reasonable
person, [in the decedent, defendant Tesfazghi, and the robber with the crowbar’s]
position would have foreseen that there was a high probability that their act could begin a
chain of events resulting in someone’s death; [¶] 2. [The decedent, defendant Tesfazghi,
and the robber with the crowbar’s] act was a direct and substantial factor in causing [the
decedent’s] death; [¶] And [¶] 3. [The decedent’s] death would not have happened if [the
decedent, defendant Tesfazghi, and the robber with the crowbar] had not committed the
provocative act.”
8
The instruction went on to explain: “A provocative act is an act: [¶] 1. That goes
beyond what is necessary to accomplish the home invasion robbery and first degree
residential burglary with person present; [¶] And [¶] 2. Whose natural and probable
consequences are dangerous to human life because there is a high probability that the act
will provoke a deadly response.”
The jury was also instructed that, “If you decide that the only provocative act that
caused [the decedent’s] death was committed by [the decedent], then the defendants are
not guilty of [the decedent’s] murder.”
3. Closing arguments
During closing arguments, the prosecutor told the jury: “Robbery, burglary, plus
provocative acts, plus natural and probable consequences, plus principal liability, equals
murder.” He explained: “[W]hen you go through the instructions, you go through the
principal instructions, you go through the provocative act instructions, you go through the
natural and probable consequences instructions, and what they’ll tell you is first you’ve
got to find them guilty of the predicate crimes . . . . Once you find the defendants guilty
of that, then you move on to the provocative acts. Did they do something more than what
was necessary to commit those offenses that provoked the violent and ultimately deadly
reaction that they got?”
As to the provocative act, the prosecutor argued: “Where in the robbery
instructions does it say that you need a facial covering? Where in the robbery instruction
does it say you need a gun? Where in the robbery instruction does it say that you hit the
place fast and you hit it hard? It doesn’t. Those are the things that are over and above
what are necessary. Those are the provocative acts. And whose natural, probable
consequences are dangerous to human life, because there’s a high probability the act will
provoke a deadly response.”
9
The prosecutor also argued the shooter had the right to defend himself: “So when
somebody’s robbing your house, and the law recognizes it, the natural, probable
consequences are dangerous to human life, because there’s a high probability that the act
will provoke a deadly response.” “What these guys did is so dangerous. It is so
dangerous that it justified [the shooter] taking a life.”
And anticipating an argument that the decedent performed the sole provocative
act, the prosecutor argued the provocative act occurred when the mother heard the
robbers’ car pull up and saw the “masked gunmen getting out of the car and heading
towards the house.” “[T]hat justified [the shooter’s] shooting. That’s the provocative act
right there, ladies and gentlemen. Those provocative acts were done, yes, by [the
decedent], but also by [defendant Tesfazghi] and [the robber with the crowbar]. That is a
provocative act right there that causes the effect, the ultimate effect, which is [the
shooter] shooting [the decedent] and killing him. . . . None of this would have happened
but for that fact. That’s what starts it all.”
B. Analysis
1. Instruction error
Defendants argue the modified CALCRIM No. 402 instruction was not only
unnecessary, it effectively gave the jury a second theory of liability—a legally invalid
one. Defendants note the natural and probable consequences doctrine does not apply
where the decedent is an accomplice, and the actual killer is a victim of the target offense.
(See People v. Smith (2014) 60 Cal.4th 603, 611 [“An aider and abettor is guilty not only
of the intended, or target, crime but also of any other crime a principal in the target crime
actually commits (the nontarget crime) that is a natural and probable consequence of the
target crime,” italics added].)
The People agree the natural and probable consequences doctrine is inapplicable
where the intended victim kills an accomplice but argue reversal is not required for
10
several reasons. First, the contention is forfeited for failure to object to the instruction.
Second “the given instruction did not assert that the jury could find [defendants] guilty
under the natural and probable consequences theory of murder liability.” Rather, the
instruction simply explained the “natural and probable consequences,” terminology used
in CALCRIM No. 561. We agree with defendants.
We may quickly dispense with forfeiture. Both defense attorneys objected when
CALCRIM No. 402 was proposed. And were that not sufficient, an instruction error
affecting the substantial rights of the defendant requires no objection in order for it to be
raised on appeal. (§ 1259; People v. Hillhouse (2002) 27 Cal.4th 469, 505-506 [“Even
without an objection, a defendant may challenge on appeal an instruction that affects ‘the
substantial rights of the defendant’ ”]; People v. Hudson (2006) 38 Cal.4th 1002, 1012
[“Because the instruction given was wrong, the rule of forfeiture does not apply”].)
Neither can the instruction be excused as a mere clarification of CALCRIM
No. 561. While the instruction defined natural and probable consequences, it also
directed the jury (after finding either burglary or robbery), to “decide whether [each
defendant] is guilty of murder.” It then enumerated three elements the People must prove
in order “[t]o prove that a defendant is guilty of murder . . . .” And as the parties agree,
those elements constituted an invalid theory of natural and probable consequences
murder liability, allowing a conviction for a third party’s offense based solely on the
natural and probable consequences of the target offense.
We therefore conclude the trial court erred in instructing the jury with the
modified CALCRIM No. 402.
2. Prejudice
As to prejudice, the parties disagree as to the applicable standard. Defendants
maintain reversal is required unless the record demonstrates beyond a reasonable doubt
that the jury based its verdict on a valid ground. The People maintain the reasonable
11
probability standard applies, as the instruction was merely an abstract principle not
pertinent to the case. Defendants are correct.
As is the case here, “[w]hen the jury is ‘misinstructed on an element of the offense
. . . reversal . . . is required unless we are able to conclude that the error was harmless
beyond a reasonable doubt.’ ” (People v. Wilkins (2013) 56 Cal.4th 333, 348.) Doing so,
“we consider whether ‘it appears “beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.” ’ ” (People v. Chavez (2004) 118 Cal.App.4th
379, 387.) We “must conclude, beyond a reasonable doubt, that the jury based its verdict
on a legally valid theory . . . .” (People v. Chun (2009) 45 Cal.4th 1172, 1203.)
Here, the People offer several arguments as to why the jury did not rely on the
modified CALCRIM No. 402 instruction. The People point to the trial court’s instruction
that, “Some of these instructions may not apply depending on your findings about the
facts of the case. . . . After you have decided what the facts are, follow the instructions
that do apply to the facts as you find them,” and argue if the jury found the instruction
inapplicable, it would have ignored it.
But the only portion of the instruction indicating it might not apply was the
admonition that the defendant must first be found guilty of robbery or burglary: “If you
find the defendant is guilty of this crime, you must then decide whether he is guilty of
murder.” Nothing else suggested some or all of the instruction might be inapplicable or
could be ignored.
Indeed, to a lay juror, the modified instruction was all too applicable. It provided
a direct and seemingly unassailable path to a guilty verdict for murder: the jury need
only find that during the robbery or burglary, a principal or accomplice was killed, and it
was reasonable for a defendant to know death was a natural and probable consequence of
the robbery or burglary. Many of these elements were in little dispute by the evidence.
The People also argue that any confusion was eliminated by the prosecution’s
closing argument, which repeatedly argued defendants were guilty under the provocative
12
acts doctrine. But the prosecutor’s focus on provocative acts was in conflict with the
direct path provided in the modified CALCRIM No. 402 instruction. And the jury had
been instructed to follow the court’s instructions if a conflict arises: “If you believe that
the attorneys’ comments on the law conflict with my instructions, you must follow my
instructions.”
And most problematically, the circumstances do not engender confidence that the
erroneous instruction played no role in the verdict. With the provocative acts theory, the
jury was instructed that if the only provocative act causing the death was committed by
the decedent, then the defendants are not guilty of murder. Arguably, that may have been
the case. The shooter testified that the reason he shot the decedent was because he saw
the decedent raise his gun: “I see him making a move, like trying to lift up his gun, and
that’s when I pulled the trigger.” The prosecutor confirmed: “And you saw his right
hand move?” “Correct.” “So you shot him?” “Correct.”
With the modified CALCRIM No. 402 instruction, however, the jury need only
conclude the shooting was a natural and probable consequence of an attempted home
invasion robbery or burglary. Thus, it provided a far simpler path to a guilty verdict than
the prosecution’s theory. (Cf. People v. Powell (2021) 63 Cal.App.5th 689, 717 [finding
instruction harmless where “[t]here was simply no reason for the jury to deviate from the
prosecutor’s suggested path and find defendant guilty based on implied malice, a far
more difficult route to a second degree murder verdict than the natural and probable
consequences doctrine”].)
Under these circumstances, we cannot conclude beyond a reasonable doubt that
the jury’s verdict was based on a valid theory. And even under the standard urged by the
People, we could comfortably find a reasonable probability that the jury applied an
invalid legal theory based on the erroneous instruction. We will therefore reverse
13
defendants Tesfazghi and Trejo’s murder convictions.1 We, accordingly, do not address
defendants’ additional contentions challenging those convictions, beyond addressing the
following two points.
Defendant Tesfazghi argues the prosecution should not be permitted to retry the
murder charges because the only provocative act was done by the decedent. We disagree.
While we find the record does not provide sufficient certainty that the jury relied on a
valid theory, at the same time we cannot say that on this record, the jury was precluded
from finding a provocative act satisfying the doctrine.
Additionally, defendant Tesfazghi, while acknowledging this court is bound by
stare decisis, announces his intention to ask the Supreme Court to re-examine and
abrogate the provocative acts doctrine. He is correct as to stare decisis, and it appears he
has preserved the issue for a further appeal. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
II
Robbery in Concert
Defendants next contend their convictions for attempted home invasion robbery in
concert were unauthorized because the jury found only robbery, not “robbery in concert.”
They reason that because the jury verdict forms failed to reference “in concert,” there was
no jury finding that the robbery was committed while they were acting in concert with
two or more individuals within the meaning of section 213.
The People respond that because robbery in concert was charged in count 2 and
the jury was instructed with CALCRIM No. 1601 on attempted home invasion robbery in
concert, the in concert allegation was sufficiently pleaded and proven.
1 Doing so, we do not address the contention raised in defendants’ supplemental
briefs challenging their murder convictions in light of Senate Bill No. 775.
14
We agree with the People.
A. Additional Background
For both defendants, the jury forms, under the caption “Verdict Count 2”
provided: “We, the jury . . . find the defendant . . . who has been charged with the crime
of Attempted Home Invasion Robbery, a violation of Section 211 of the Penal Code, a
Felony, . . .” Guilty was checked on both forms.
As reflected in the amended information, defendants were charged in count 2 with
“attempted home invasion robbery.” It was also alleged that, “pursuant to Penal Code
section 213(a)(1)(A), as to Count(s) 1, 2, & 3 that the above offense was committed by
the defendant(s) who voluntarily acted in concert and entered a structure described in that
section.”
Before jury deliberation, the jury was instructed several times that, “[t]he
defendants are charged in Count 2 with attempted home invasion robbery in concert.”
With CALCRIM No. 1601, the jury was instructed: “The defendants are charged in
Count 2 with robbery by acting in concert with [several named robbers, including the
decedent, the wife, and the robber with the crowbar] in violation of Penal Code section
213(a)(1)(A).” The instruction went on to explain that the People must prove, inter alia,
that “the defendant voluntarily acted with two or more other people who also committed
or aided and abetted the commission of the robbery . . . .”
During closing arguments, both attorneys for the defendants conceded the robbery
and burglary counts. One explained, “I would concede that there is ample evidence from
which you could find my client guilty of attempted home invasion by accomplice
liability, the robbery, the burglary . . . .” The other similarly explained, “I’m going to
concede to you that the elements of the attempted home invasion robbery, first degree
burglary, those have been proven to you by proof beyond a reasonable doubt.”
15
B. Analysis
Section 213, subdivision (a)(1)(A), robbery in concert operates as a sentence
enhancement and therefore must be pleaded or proven beyond a reasonable doubt. (In re
Jonathan T. (2008) 166 Cal.App.4th 474, 482.)
At the same time, “ ‘[t]echnical defects in a verdict may be disregarded if the
jury’s intent to convict of a specified offense within the charges is unmistakably clear,
and the accused’s substantial rights suffered no prejudice.’ ” (People v. Camacho (2009)
171 Cal.App.4th 1269, 1272.) To that end, “ ‘ “ ‘[a] verdict is to be given a reasonable
intendment and be construed in light of the issues submitted to the jury and the
instructions of the court.’ ” ’ ” (Ibid.) “No particular form of verdict is required, so long
as it clearly indicates the intention of the jury to find the defendant guilty of the identical
offense with which he is charged.” (People v. Fisher (1948) 86 Cal.App.2d 24, 31.) A
verdict “is sufficient if it finds him guilty by reference to a specified count contained in
the information.” (Ibid.)
Accordingly, where a challenge is directed at the verdict form, our “inquiry is
confined to determining beyond any reasonable doubt whether the jury did find [the
disputed finding] and whether it intended the verdict it returned to reflect that
determination.” (People v. Coelho (2001) 89 Cal.App.4th 861, 877, original italics.)
Here, we are satisfied beyond a reasonable doubt that the jury found a robbery in
concert. While the verdict forms failed to include the phase, “in concert,” the forms
made clear a guilty verdict pertained to count 2. And the jury was repeatedly and
consistently instructed that count 2 pertained to a robbery in concert. We further note
that the robbery count was conceded by both defense counsel, and nothing in the record
tended to support a finding of a robbery that was not in concert.
16
Under the circumstances, we find the jury’s intent to return a guilty verdict for
attempted home invasion robbery in concert unmistakably clear and that defendants
suffered no prejudice.
III
Section 654
Defendants next contend punishment for their robbery convictions must be stayed
under section 654 because both offenses were incident to one objective: to rob the
victims of their marijuana. The People respond, inter alia, that separate punishment is
supported by the multiple victim exception to section 654. We again agree with the
People.
We note that defendants also contend that punishment for both their robbery and
burglary convictions must be stayed, under section 654, as they were the target felonies
used to convict on the murder count. Having determined the murder conviction must be
reversed, we do not reach that contention.
A. Additional Background
The probation report, prepared for sentencing, noted that section 654 does not
apply to crimes of violence against multiple victims, and while counts 2 and 3 arose from
the same course of conduct, they were alleged to involve different victims. In the count 2
robbery the shooter was threatened, while in count 3 the home of the entire victim family
was burglarized.
At sentencing, defense counsel asked the trial court to stay punishment for
burglary under section 654, arguing the home invasion robbery and burglary shared the
same objective. The court declined, finding “each of those charges consist of separate
elements and are distinguishable factually and by time.”
17
B. Analysis
Though a person may be convicted of more than one crime for the same act,
section 654 proscribes multiple punishments for the same act. (§§ 654, 954; People v.
Correa (2012) 54 Cal.4th 331, 337 (Correa).) An “ ‘act’ ” can include a “ ‘ “course of
conduct.” ’ ” (Correa, at p. 335.) But a course of conduct causing multiple offenses is
divisible—and subject to separate punishment—if the defendant entertained multiple
objectives, independent of and not merely incidental to each other. (Correa at pp. 335-
336; People v. Liu (1996) 46 Cal.App.4th 1119, 1134.)
Here, the burglary and attempted robbery were both parts of a single course of
conduct. And the record supports only one objective for them both: to deprive the
victims of the marijuana and guns. (See People v. Green (1985) 166 Cal.App.3d 514,
518 [“section 654 precludes punishment for both burglary and robbery when the burglary
was incident to the objective of robbing the victim”].)
But another exception exists. Multiple punishment is not proscribed, if “the
defendant has engaged in an act of violence against two or more people . . . .” (People v.
Newman (2015) 238 Cal.App.4th 103, 112; see also People v. Felix (2009) 172
Cal.App.4th 1618, 1630–1631 [“There is a multiple victim exception to Penal Code
section 654 which allows separate punishment for each crime of violence against a
different victim, even though all crimes are part of an indivisible course of conduct with a
single principal objective”].)
And here, the robbery and burglary were perpetrated against different victims.
The robbery, as alleged in the amended information, was perpetrated against the shooter
victim, while the burglary was perpetrated against the entire victim family.
Further, robbery is a violent crime. (People v. Deloza (1998) 18 Cal.4th 585, 592
[“ ‘Robbery is violent conduct warranting separate punishment for the injury inflicted on
each robbery victim’ ”].) And while burglary, “ ‘standing alone is not,’ ” “where the
18
burglary has been committed in conjunction with an act of violence that qualified for
treatment as an enhancement, the multiple-victim exception can be satisfied.” (People v.
Hall (2000) 83 Cal.App.4th 1084, 1090-1091, disapproved on another ground in Correa,
supra, 54 Cal.4th at pp. 343-344.) As one court concludes, “any crime involving the
‘use’ of a firearm should be deemed violent for this purpose.” (People v. Centers (1999)
73 Cal.App.4th 84, 99.)
Here, the burglary involved storming the victims’ home by two armed robbers
who together fired multiple shots in the home while it was occupied by the victims.
Under these circumstances, we are satisfied that the burglary was a violent crime for
purposes of the multiple victim exception.
Defendants, nevertheless, argue the multiple victim exception cannot apply here
because both counts 2 and 3 named the shooter as the victim and therefore did not name
different victims. Defendants, however, provide no authority to support this proposition.
And in fact, our Supreme Court in Miller included a footnote that even if the robbery and
burglary counts there alleged an overlapping victim, it would not preclude multiple
punishment, because “each crime would involve at least one different victim.” (People v.
Miller (1977) 18 Cal.3d 873, 886, fn. 11.) Indeed, this is consistent with section 654’s
purpose of ensuring punishment commensurate with criminal liability. (Correa, supra,
54 Cal.4d at p. 341.) It would run counter to that purpose if commensurate multiple
punishment could be escaped merely because an overlapping victim was named on
counts where multiple victims were alleged. (See also People v. Centers, supra, 73
Cal.App.4th at p. 101 [“We know of no case in which the court declined to apply the
multiple victim exception simply because the victims had not been named in the
information”].)
We therefore conclude multiple punishment for robbery and burglary is supported
by an implied finding of multiple violent acts perpetrated against different victims.
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IV
Ineffective Assistance of Counsel
Defendant Trejo contends his trial counsel rendered ineffective assistance in
failing to object to the imposition of consecutive sentence for his burglary and robbery
convictions. He points to the trial court’s statement while sentencing on the count 2
robbery conviction: “The Court has imposed a consecutive sentence by reason of the
separate nature of the offense committed.” Trejo argues that his offenses were in fact
committed during the same incident and were all part of the same objective. Therefore
the relevant California Rules of Court, rule 4.425 factor (“The crimes and their objectives
were predominantly independent of each other”) weighed in favor of concurrent
sentences. He maintains that it is reasonably probable that had trial counsel alerted the
court to this fact, the court would have imposed concurrent sentences for robbery and
burglary.
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692; People v. Ledesma (1987)
43 Cal.3d 171, 216-217.) But we need not determine if counsel’s performance was
deficient before considering prejudice. (People v. Holt (1997) 15 Cal.4th 619, 703.) To
show prejudice, the defendant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” (Ledesma
at pp. 217–218). “ ‘It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding. . . .’ ” (Id. at p. 217.)
Here, defendant has not shown prejudice. As discussed, the robbery and burglary
involved crimes of violence perpetrated against multiple victims. This too may form the
basis for consecutive terms. (Cal. Rules of Court, rule 4.425(a) [“The crimes involved
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separate acts of violence or threats of violence”]; People v. Chacon (1995) 37
Cal.App.4th 52, 67 [trial court did not abuse its discretion in imposing consecutive
sentence where crimes involved separate acts of violence or threats of violence against
separate victims].) And given the nature of the separate acts of violence, we do not
conclude that there is a reasonable probability of a different result had counsel objected.
V
Senate Bill No. 567
In supplemental briefs, defendants contend that remand is required for
resentencing of their upper-term counts, in light of Senate Bill No. 567. The People
agree, and so do we.
While this appeal was pending, the Governor signed Senate Bill No. 567 (2021-
2022 Reg. Sess.); (Stats. 2021, ch. 731), effective January 1, 2022, which among other
things, limits the trial court’s ability to impose an upper term sentence unless aggravating
circumstances have been stipulated to by the defendant or found true beyond a reasonable
doubt by a jury or by the court in a court trial. (§ 1170, subd. (b)(1), (2), added by Stats.
2021, ch. 731, § 1.3.) An exception exists for evidence of prior convictions established
by certified records of conviction, which need not be submitted to a jury. (§ 1170, subd.
(b)(3), added by Stats. 2021, ch. 731, § 1.3.)
In defendant Tesfazghi’s case, upper terms were imposed for robbery, burglary,
and shooting into an inhabited dwelling. In defendant Trejo’s case, an upper term was
imposed for burglary.
As the parties agree, it does not appear that the Legislature intended this
amendment to apply prospectively only. (See People v. Superior Court (Lara) (2018) 4
Cal.5th 299, 308 [“ ‘The Estrada rule rests on an inference that, in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative changes to the criminal
law to extend as broadly as possible, distinguishing only as necessary between sentences
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that are final and sentences that are not’ ”].) We therefore conclude Senate Bill No. 567
applies retroactively to defendants, and we must order resentencing as to the upper-term
counts.
VI
Abstract of Judgment
Finally, defendant Trejo contends his abstract of judgment must be corrected to
reflect his sentence. He notes that the abstract conflates counts 2 and 3. The People
concede error, and while we agree, our remand for resentencing renders this a moot point.
DISPOSITION
For both defendants Tesfazghi and Trejo, the judgment is reversed and remanded
for a new trial on count 1, murder, as well as resentencing for all counts wherein an upper
term was imposed. In all other respects, we affirm the judgments.
HULL, J.
We concur:
ROBIE, Acting P.J.
HOCH, J.
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