People v. Barrios

Filed 2/22/21; See dissenting opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B302847
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA116550)
v.
JOSE MARCOS BARRIOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mike Camacho, Judge. Remanded to modify
sentence.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Jose Marcos Barrios hijacked I. Hsiung and his car for a
robbery. Barrios took the cash from Hsiung’s wallet and ordered
Hsiung to drive them both to ATMs for more cash. This
nighttime affair lasted some two hours. It included freeway
travel and a long interval of inaction while Barrios persisted in
holding Hsiung. Barrios awaited the stroke of midnight in hopes
it would bring Hsiung a new daily ATM withdrawal limit and so
would allow Barrios to rob Hsiung of yet more cash. Police
rescued Hsiung after he texted for help.
The jury convicted Barrios of several crimes. Pertinent
now are two: kidnapping for robbery and robbery. Each
conviction, with its gun enhancement, meant a separate sentence
of 25 years to life plus 10 years. (Pen. Code, § 12022.53, subd.
(b).) The court did not stay either sentence, but ordered them to
be consecutive: 50 years to life plus 20 years. The whole
sentence, including a five-year prior conviction enhancement
(Pen. Code, § 667, subd. (a)(1)), was 75 years to life.
If many offenses were incident to one objective, Barrios
may be punished for any of the offenses but not for more than
one. (People v. Goode (2015) 243 Cal.App.4th 484, 492; Pen.
Code, § 654.) Here, robbery was an incident to Barrios’s
kidnapping for robbery. Because the kidnapping had no objective
but robbery, the robbery sentence and its enhancement must be
stayed.
I
Hsiung was parked on the street at about 10:30 p.m. Out
of the dark, Barrios approached on foot wearing sunglasses, a
mask, and a hat. He tapped the car window with a gun and told
Hsiung to open his car or lower the window. Hsiung lowered the
window.
2
Barrios asked if Hsiung had money in the car. Hsiung said
he had cash in his wallet and “I will just give you that.” After
getting this cash, Barrios told Hsiung he wanted to get in
Hsiung’s car to go to an ATM to withdraw money. Barrios got in
back and made Hsiung drive to an ATM. Barrios, not Hsiung,
raised the topic of ATMs.
The two drove to a Bank of the West. Hsiung told Barrios
he could withdraw only his daily limit of $500. Barrios ordered
Hsiung to make the withdrawal and to keep the car door open so
Barrios could shoot if Hsiung ran. Hsiung got $500 and gave it to
Barrios.
Barrios told Hsiung they would wait until after midnight,
“so technically it’s another day.” Barrios wanted to see if Hsiung
could withdraw more money after midnight. They parked a ways
off and waited.
Astonishingly, robber Barrios took a nap. Hsiung texted
friends for help. A text time stamp showed 11:50 p.m.
After midnight, Barrios awoke and they started to return to
the ATM. On the way there were police. Barrios told Hsiung to
drive to the freeway. After five minutes on the freeway, Barrios
told Hsiung to exit and they drove to a Bank of America. Hsiung
tried but could not withdraw money from the ATM there. At
Barrios’s command, Hsiung kept driving until a police roadblock
ended the episode.
II
Whether Barrios can be imprisoned for both robbery and for
kidnapping to commit robbery calls for an interpretation of Penal
Code section 654, which says an “act” punishable in different
ways by different legal provisions shall be punished under the
provision providing the longest potential term of imprisonment,
3
but in no case shall the “act” be punished under more than one
provision.
We must interpret the statutory word “act.” Was Barrios’s
venture one “act” or more than one “act?” Obviously Barrios
performed many different physical actions over these two
hours: he tapped with his gun, he issued commands, he napped,
he awoke, and so on. Yet the question is legal and not
physical: within the meaning of Penal Code section 654, was this
course of conduct but a single “act?” This question of statutory
interpretation is a question of law.
The facts in this case are undisputed because Barrios
testified to an exculpatory version that the jury, to convict, had to
reject. Barrios does not press his version on appeal. We are left
with only Hsiung’s version, which is uncontested.
When facts are undisputed, the application of Penal Code
section 654 raises a question of law. It is purely a question of
statutory interpretation. Our review is independent. (People v.
Corpening (2016) 2 Cal.5th 307, 312.) This remains true whether
the statutory “act” is or is not a course of conduct that violates
more than one statute and thus poses the problem of whether the
course of conduct comprises a divisible transaction that can be
punished under more than one statute within the meaning of
section 654. (People v. Beamon (1973) 8 Cal.3d 625, 637
(Beamon).)
The Beamon decision, for instance, grappled with facts
similar to those here. We detail the similarity in the next
paragraph. First we note Beamon used an independent standard
of review: “We are compelled to the conclusion as a matter of law
that on the record here both crimes were committed pursuant to
a single intent and objective, i.e., to rob Ashcraft of the truck or
4
its contents.” (Beamon, supra, 8 Cal.3d at p. 639 [italics added];
cf. People v. Coleman (1989) 48 Cal.3d 112, 162 & 163 [citing
Beamon]; Coleman, at p. 128 [“Defendant [Coleman]
testified. His account corroborated most of the prosecution
testimony but differed in certain crucial respects.”].)
We now detail how the facts of the Beamon case resemble
this case.
Victim Ashcraft drove a liquor truck and got out for a
delivery. When Ashcraft returned to the driver’s seat, Beamon
entered the passenger side with a gun. The two drove a distance
and then fought. Ashcraft fled and called police, who later
arrested Beamon. The episode lasted about 20 minutes and
covered about 15 blocks. (Beamon, supra, 8 Cal.3. at pp. 630–
631.) The jury convicted Beamon of robbery and kidnapping for
robbery. The Supreme Court had “little difficulty” with the
case: Beamon “was convicted of [kidnapping] for the purpose of
robbery and for the commission of that very robbery. We are
compelled to the conclusion as a matter of law that on the record
here both crimes were committed pursuant to a single intent and
objective, i.e., to rob Ashcraft of the truck or its contents.” (Id. at
p. 639.) Beamon “may therefore be punished for only one of such
crimes. As punishment for second degree robbery is the lesser
punishment for the two crimes, its execution must be
stayed.” (Id. at pp. 639–640.)
Beamon governs. It is not identical to this case, but the
facts of this Supreme Court precedent are close. Under Beamon,
Barrios’s robbery sentence and his sentence for the associated
enhancement must be stayed.
The prosecution cites People v. Porter (1987) 194
Cal.App.3d 34, which itself cited Beamon. (Porter, at p. 38.) The
5
Court of Appeal, however, made no effort to distinguish Beamon;
Porter merely asserted every case must be decided on its own
facts. (Porter, at p. 38 [application of Pen. Code, § 654 “to any
particular case depends upon the circumstances of that
case”].) This treatment of a factually similar Supreme Court
precedent is baffling.
If you kidnap people to rob them, robbing them is the whole
point. The project has no other goal. Breaking robbery apart
from kidnapping for robbery is artificial and unconvincing, absent
some event or occurrence that, midstream, marks a transition
and redirects the perpetrator to embark on a new criminal
objective.
This record reveals no epiphany for Barrios. He kept doing
what he set out to do: commandeer Hsiung and his car for a
robbery. Barrios sought to rob Hsiung of as much cash as he
could. That intent is apparent from Barrios’s command to
Hsiung to go to the ATM to withdraw money. No factual
development broke the chain of events and showed Barrios
changed his plan or developed a new one. There was but one
criminal “act.”
6
DISPOSITION
We remand this case for the trial court to stay both the
sentence for the robbery conviction on count 4 and for the
enhancement for that count. The trial court is to modify the
abstract of judgment accordingly and to forward the corrected
abstract to the Department of Corrections and Rehabilitation.
WILEY, J.
I Concur:
STRATTON, J.
7
BIGELOW, P. J.
I respectfully dissent.
In People v. Porter (1987) 194 Cal.App.3d 34 (Porter),
1
the court held Penal Code section 654 allowed a defendant to be
separately punished for robbery and kidnapping for robbery when
he and another suspect robbed a victim at knifepoint in the
victim’s car, then, unsatisfied with the money they found, forced
the victim to drive to an ATM machine to withdraw more money.
In this case, defendant Barrios did the same thing—he demanded
and received $50 from the victim at gunpoint while standing
outside the victim’s car, then got into the car and forced the
victim to drive to an ATM to withdraw $500 more. Like the
defendant in Porter, Barrios was separately punished for robbery
and kidnapping for robbery.
Though these cases are basically identical, the majority
disagrees with Porter and holds Barrios could not be punished for
both felonies pursuant to section 654 based on People v. Beamon
(1973) 8 Cal.3d 625 (Beamon). I do not find that case controlling
here and, based on Porter, would affirm.
The majority makes two errors in its analysis that lead it to
the wrong conclusion. First, it applies the wrong standard of
review. Second, it fails to appreciate that the robbery here was
completed before the kidnapping for a second robbery even began.
With this in mind, I turn to the facts. At 10:30 p.m. on
October 20, 2017, victim I. Hsiung went to pick up his mother at
her friend’s house. He parked outside and sent her a text.
1
All undesignated statutory citations refer to the Penal
Code.
1
While he was waiting, Barrios knocked on the closed driver’s side
window. He was in disguise, wearing dark clothes, a mask, a
beanie, sunglasses, and gloves. He had a gun.
Hsiung rolled down the window, and Barrios demanded
money. Hsiung gave him the $50 cash he had in his wallet.
Apparently unsatisfied with it, Barrios got into the back seat of
Hsuing’s car and told him to drive to an ATM to withdraw more
money. Hsiung said he was waiting for his mother, and Barrios
forced him to text her and tell her to get a ride from her friend.
If Hsiung did not obey, Barrios threatened to kill everyone inside
the house.
With Barrios in the back seat, Hsiung drove to a nearby
bank and withdrew $500, his daily withdrawal limit. He gave it
to Barrios. Barrios wanted more. Since it was almost
midnight—and close to a new day with a new withdrawal limit—
Barrios forced Hsiung to park on a nearby street and wait to
make another withdrawal. He threatened to shoot Hsiung if he
ran.
As they waited, Barrios fell asleep. Hsiung texted some
friends he was being robbed and told them to call 911. They did.
Barrios woke up after midnight and forced Hsiung to drive
to the ATM. When they spotted police, Barrios pressed the gun
to the back of Hsiung’s neck and told him to keep driving. They
eventually stopped at another ATM and Hsiung tried
unsuccessfully to withdraw more money. They kept driving until
Barrios told Hsiung to get out of the car. Hsiung did, but Barrios
commanded him to get back inside when someone called out to
them. Hsiung continued driving slowly as police arrived. Barrios
took off his mask, sunglasses, and gloves. Eventually Hsiung
stopped when police cars blocked the road.
2
Barrios jumped out of the car and ran. He was caught and
arrested. Officers found a loaded gun in a construction site
where Barrios was seen discarding it as he fled. Police found
gloves and $550 in Hsiung’s car.
A jury convicted Barrios of five felonies: kidnapping to
commit robbery (§ 209, subd. (b)(1)); possession of a firearm by a
felon (§ 29800, subd. (a)(1)); unlawful possession of ammunition
(§ 30305, subd. (a)(1)); robbery (§ 211); and assault with a firearm
(§ 245, subd. (a)(2)). The jury found true firearm enhancements.
(§§ 12022.5, subd. (a), 12022.53, subd. (b).) The court found true
three prior convictions. (§ 667, subds. (a)(1), (b)–(j); § 667.5;
§ 1170.12.)
In its sentencing brief, the prosecution argued that Barrios
should be sentenced consecutively for the robbery and kidnapping
for robbery counts. It relied on Porter and contended Barrios
committed two crimes: robbing Hsiung of the money in his wallet
followed by kidnapping him at gunpoint to drive to rob him a
second time at an ATM. The prosecution pointed out—
accurately—that jury could not have convicted Barrios of robbery
based on the conduct at the ATM because the jury was
specifically instructed it could not find him guilty of robbery
unless they found he took first the initial $50 before forcing
Hsiung to drive to the ATM.
At the sentencing hearing, the trial court agreed with the
prosecution and imposed consecutive sentencing. It noted “the
jury made a specific finding that this robbery was separate and
apart from the robbery that was the subject of the kidnap for
purposes of count 1,” and it found that the robbery “was
completed first and before the kidnapping occurred.”
3
Barrios was given a third-strike sentence of 75 years to life.
It was composed of 25 years to life for the kidnapping for robbery
count plus a 10-year firearm enhancement; a consecutive 25
years to life for the robbery count plus a 10-year firearm
enhancement; and a consecutive five years pursuant to section
667, subdivision (a)(1). The terms for the rest of the counts were
stayed pursuant to section 654. The consecutive terms for
robbery and kidnapping for robbery are at issue here.
Section 654 states in relevant 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 possible term of imprisonment, but in no case shall the
act or omission be punished under more than one provision.”
(§ 654, subd. (a).)
The majority opinion’s first error occurs when it identifies
our standard of review as de novo. The case it cites—People v.
Corpening (2016) 2 Cal.5th 307 (Corpening)—addressed the
application of section 654 to the single act of forcefully taking a
vehicle that constituted both carjacking and robbery. The
question was whether section 654 barred separate punishment
when “the same action completed the actus reus for [both]
crimes.” (People v. Corpening, supra, at p. 309.) The court
explained the application of section 654 requires a two-step
inquiry. “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.” (People v. Corpening, supra, at p 311.) The issue in
4
Corpening only implicated the first step, and because the facts at
that first step were undisputed, “the application of section 654
raises a question of law we review de novo.” (Id. at p. 312.)
To support its standard of review, the majority
characterizes the issue as whether Barrios committed one act or
multiple acts and then inexplicably claims that issue is a
question of statutory interpretation. Nobody has raised those
issues -- not at the trial court and not on appeal. In fact, the
parties agree this is not a single-act case. They agree Barrios’s
actions amounted to a course of conduct: Barrios’s initial act of
taking Hsiung’s money while standing outside Hsiung’s car, then
Barrios’s act of getting into the car and forcing Hsiung to drive to
the ATM. Even Beamon, which the majority treats as dispositive,
involved a course of conduct, not a single act. (Beamon, supra, 8
Cal.3d at p. 639.) We are thus confronted only with the second
step in the application of section 654: whether Barrios’s course of
conduct reflected multiple intents and objectives. That is not a
question of the legal meaning of “act” in section 654. As I outline
below, this is a purely factual question entrusted to the trial
court in the first instance.
The majority also relies on Beamon to support a de novo
standard of review. Beamon did not discuss the standard of
review. True, it held as a matter of law that a defendant cannot
be punished for kidnapping for robbery and committing that
same robbery. That does not tell us much, if anything, about the
correct standard of review for a trial court’s punishment for
robbery and kidnapping for a second, later robbery.
Finally, the majority says de novo review applies because
the facts are undisputed. I agree the facts surrounding the
crimes are undisputed, but the issue here is what was going on in
5
Barrios’s head at the time of the crimes, which was disputed. We
wouldn’t be here if the parties agreed on Barrios’s intent and
objectives in committing the robbery and the kidnapping for a
second robbery. The majority simply misunderstands what is
contested.
The correct standard of review is substantial evidence.
(People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) “ ‘ “Whether
a course of criminal conduct is divisible and therefore gives rise to
more than one act within the meaning of section 654 depends on
the intent and objective of the actor. If all the offenses were
incidental to one objective, the defendant may be punished for
any one of such offenses but not more than one.” ’ [Citation.] [¶]
‘[T]he purpose of section 654 “is to insure that a defendant’s
punishment will be commensurate with his culpability.” ’
[Citation.] ‘It is [the] defendant’s intent and objective, not
temporal proximity of his offenses, which determine whether the
transaction is indivisible.’ ” (People v. Capistrano (2014) 59
Cal.4th 830, 885–886, overruled on another ground by People v.
Hardy (2018) 5 Cal.5th 56, 104.)
Thus, “ ‘[t]he defendant’s intent and objective are factual
questions for the trial court.’ ” (People v. Coleman (1989) 48
Cal.3d 112, 162; see People v. Jackson (2016) 1 Cal.5th 269, 354
[“Intent and objective are factual questions for the trial court,
which must find evidence to support the existence of a separate
intent and objective for each sentenced offense.”].) Multiple
punishments are permissible if there is some “ ‘evidence to
support [the] finding the defendant formed a separate intent and
objective for each offense for which he was sentenced.” ’ ” (People
v. Capistrano, supra, 59 Cal.4th at p. 886.) The court’s finding of
separate intents, whether express or implied, must be viewed “
6
‘in a light most favorable to the judgment, and [we must]
presume in support of the court’s conclusion the existence of
every fact the trier of fact could reasonable deduce from the
evidence. [Citation.]’ ” (People v. Andra (2007) 156 Cal.App.4th
638, 640–641.)
The second flaw in the majority’s reasoning is finding
section 654 barred separate punishment for robbery and
kidnapping because it believes the robbery and kidnapping were
crimes committed with only one intent and objective. The
majority acknowledges the court in Porter rejected this argument
in an indistinguishable set of facts, but contends Porter was
wrong and conflicts with Beamon. I disagree.
In Porter, the defendant and an accomplice entered the
victim’s car and robbed him of money and his wallet at
knifepoint. Finding only $7 or $8, the defendant forced the victim
to drive to his bank to withdraw more money from an ATM.
(Porter, supra, 194 Cal.App.3d at p. 36.) The defendant was
convicted of robbery and kidnapping for robbery, and the trial
court sentenced him to concurrent terms on the counts. (Id. at
p. 37.) Recognizing that cases frequently bar punishment for
both robbery and kidnapping for robbery pursuant to section 654,
the Court of Appeal nonetheless upheld the dual sentence
because “[t]he record . . . supports the trial court’s implied finding
that the two crimes for which appellant was sentenced involved
multiple objectives, were not merely incidental to each other, and
were not part of an indivisible course of conduct.” (Id. at p. 38.)
The court explained: “A reasonable inference from the
record is that appellant and his companion initially planned only
to rob the victim of the contents of his wallet, but thereafter came
up with a new idea: kidnapping the victim to his bank to compel
7
him to withdraw money from his account by means of what they
thought was an automated teller card. . . . What began as an
ordinary robbery turned into something new and qualitatively
very different. No longer satisfied with simply taking the
contents of the victim’s wallet, appellant decided to forcibly
compel the victim to drive numerous city blocks to a bank where,
only with the victim’s compelled assistance, could appellant
achieve a greater reward. The trial court could reasonably treat
this as a new and independent criminal objective, not merely
incidental to the original objective and not a continuation of an
indivisible course of conduct. In the unusual circumstances of
this case, appellant could be punished both for the robbery he
committed and the kidnapping for the purpose of a distinctly
different type of robbery.” (Porter, supra, 194 Cal.App.3d at pp.
38–39.)
Barrios’s course of conduct is equally divisible. He knocked
on Hsiung’s closed car window and demanded money at gunpoint.
When Hsiung gave him the $50 he had on him, Barrios thought it
was not enough so he entered his car and forced Hsiung at
gunpoint to drive to an ATM to withdraw more. This case is even
stronger than Porter because the jury necessarily found the
robbery and kidnapping divisible. The jury was instructed that it
could only convict Barrios of robbery if jurors unanimously
agreed “the People have proved specifically that the defendant
committed that offense on October 20, 2017 when cash was taken
at gunpoint from Mr. Ian Hsiung prior to the events that took
place at the Bank of the West. Evidence that the defendant may
have committed the alleged offense on another day or in another
manner is not sufficient for you to find him guilty of the offense
charged.” On this record, the trial court could readily infer
8
Barrios’s initial plan to rob Hsiung of the money he had on him
turned into the very different plan to forcibly compel him to drive
to an ATM to “achieve a greater reward,” that is, commit a second
robbery. (Porter, supra, 194 Cal.App.3d at p. 39.)
Porter didn’t hide from or ignore Beamon, as the majority
implies. Porter cited Beamon for the correct legal standards and
explained “the application of section 654 to any particular case
depends upon the circumstances of that case.” (Porter, supra, 194
Cal.App.3d at p. 38.) The majority criticizes Porter for not
further distinguishing Beamon. That view is understandable
because the majority doesn’t think the question is a factual one.
To me, the differences between Porter and Beamon are obvious.
In Beamon, the victim parked his work truck to make a delivery
of liquor to a customer. The truck had approximately $2,500
worth of merchandise in it. When the victim returned to the
truck, before he started the motor, defendant entered the truck’s
cab with a gun. The defendant told the victim to lie face down on
the floor of the truck’s cab and then took the keys and drove
away. The two fought and the victim managed to get away. The
truck had been driven approximately 20 blocks for some 20
minutes. The truck was later found abandoned.
The court held section 654 barred punishment for both
“kidnaping for the purpose of robbery and for the commission of
that very robbery,” because “both crimes were committed
pursuant to a single intent and objective, i.e, to rob [the victim]
of the truck or its contents.” (Beamon, supra, 8 Cal.3d at p. 639.)
Here, in contrast, Barrios demanded money from Hsiung at
gunpoint while standing outside his car, received it, and then got
into the car and forced Hsiung to drive to an ATM to withdraw
more money. The jury expressly found the first robbery was
9
completed before Barrios began the kidnapping for a second,
distinct robbery. Had Barrios simply walked away after taking
the $50 Hsiung had in his wallet, he could have been charged
with robbery but not with kidnapping for robbery. The
asportation element would have been missing. (CALCRIM No.
1203.) In the words of Beamon, Barrios was not punished for
“kidnaping for the purpose of robbery and for the commission of
that very robbery.” (Beamon, supra, 8 Cal.3d at p. 639.) We
must defer to the trial court’s finding that Barrios harbored
separate intent and objectives when he committed these distinct
acts constituting separate crimes.
Lest any question remain over Porter’s validity, the
California Supreme Court expressly endorsed this conclusion in
People v. Latimer (1993) 5 Cal.4th 1203 (Latimer). In Latimer,
the Court considered whether to overrule Neal v. State of
California (1960) 55 Cal.2d 11 (Neal), which “established the
direction multiple-punishment analysis has taken in California”
under section 654 ever since the case was decided. (Latimer, at
p. 1205.) The Latimer court did not embrace Neal, but declined
to overrule it largely for reasons of stare decisis. (Latimer, at
p. 1206.)
In explaining how courts have limited the reach of Neal,
the Latimer court cited a series of cases that had “found separate,
although sometimes simultaneous, objectives under the facts.”
(Latimer, supra, 5 Cal.4th at p. 1212.) Porter was among the
cases cited. The court explained in a parenthetical that Porter
held “robbery and kidnapping the same victim for a later,
additional, robbery had separate objectives.” (Latimer, at
p. 1212.) At the end of the Latimer opinion, the court wrote:
“We also stress that nothing we say in this opinion in intended to
10
cast doubt on any of the later judicial limitations of the Neal rule.
For example, we do not intend to question the validity of
decisions finding consecutive, and therefore separate, intents,
and those finding different, if simultaneous, intents. (See pt. II,
A., ante, last three paragraphs.) Multiple punishment in those
cases remains appropriate.” (Id. at p. 1216.) The favorable
citation of Porter is contained in those “last three paragraphs” of
part II, A. of the Latimer opinion.
Porter remains good law, specifically endorsed by the
California Supreme Court. I would uphold the trial court’s
sentencing decision in the face of this section 654 challenge
because it is supported by substantial evidence. (People v. Jones,
supra, 103 Cal.App.4th at p. 1143.) As in Porter, the evidence,
along with the jury’s finding that the robbery occurred before the
kidnapping, amply supported a conclusion Barrios harbored two
distinct intents: to rob Hsiung of the cash on him, and when the
money he had was not enough, to then kidnap him to drive to
another location to rob him of more money at the ATM. Barrios’s
separate punishment under section 654 was valid.
BIGELOW, P. J.
11