P. v. Epperson

Filed 9/22/17 P. v. Epperson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
TAVARIE EPPERSON,
Defendant and Appellant.
F072174
(Super. Ct. No. 14CM1949)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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INTRODUCTION
Late one evening at a motel in Hanford, defendant Tavarie Epperson and two other
men robbed victims Deonka Rainey and Rachel Taylor at gunpoint. One of the men shot
Rainey in the leg during the incident and then fired again as Rainey fled.
Defendant was arrested several weeks later and charged with the attempted murder
of Rainey (Pen. Code, §§ 664/187) (count 1),1 the robbery of Taylor (§ 211) (count 2),
the attempted robbery of Rainey (§§ 664/211) (count 3) and burglary (§ 459) (count 4).
The attempted murder was alleged to have been premeditated, willful and deliberate (§
189), and sentence enhancement allegations for the personal use of a firearm were
attached to counts 2 and 4 (§§ 12022.5, subd. (a), 12022.53, subd. (b)).
Defendant’s first trial ended in a mistrial after the jury deadlocked on all counts.
At the close of the People’s case-in-chief in the second trial, the trial court granted the
prosecutor’s motion to amend count 3 from the attempted robbery of Rainey to the
robbery of Rainey. The jury subsequently convicted defendant on all counts, found true
the premeditation allegation attached to count 1 and found true the firearm enhancements
attached to counts 2 and 4.
The trial court imposed a total determinate prison term of 20 years plus an
indeterminate term of seven years to life in prison, as follows. The court sentenced
defendant to seven years to life for the attempted murder of Rainey (count 1). For the
robbery of Taylor (count 2), the court sentenced defendant to a consecutive aggravated
term of nine years, plus it imposed and stayed a sentence of 10 years for personal use of a
firearm under section 12022.5, subdivision (a), and imposed a sentence of 10 years for
personal use of a firearm under section 12022.53, subdivision (b). For the robbery of
Rainey (count 3), the court sentenced defendant to a consecutive one-year term (one-third
of the middle term). Finally, for the burglary (count 4), the court sentenced defendant to
1 All further statutory references are to the Penal Code.

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the aggravated term of six years, plus 10 years for personal use of a firearm under
section 12022.5, subdivision (a). The court stayed the burglary sentence under
section 654.
Defendant’s claims on appeal are tied to his conviction for the robbery of Rainey
(count 3). Defendant seeks reversal of that robbery conviction on the ground that his
right to due process was violated when, at the close of the People’s case-in-chief, the trial
court permitted the prosecutor to amend count 3 from attempted robbery to robbery.
Relatedly, he also seeks reversal of his conviction for the attempted murder of Rainey on
the ground that as he is entitled to reversal of his conviction for robbing Rainey, it cannot
be determined whether the jury impermissibly relied on that robbery count in finding that
the attempted murder of Rainey was a natural and probable consequence of robbery.2
Finally, if we do not find he is entitled to reversal of his conviction on count 3 for
robbing Rainey, defendant argues the trial court erred in failing to stay that sentence
under section 654, which prohibits multiple punishments for both crimes completed by a
single act and a criminal course of conduct committed pursuant to a single intent and
objective. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).).
The People dispute defendant’s entitlement to any relief.
2 With respect to the attempted murder count, the jury was instructed on the natural and
probable consequences doctrine, under which “‘“[a] person who knowingly aids and abets
criminal conduct is guilty of not only the intended crime [target offense] but also of any other
crime the perpetrator actually commits [nontarget offense] that is a natural and probable
consequence of the intended crime.”’” (People v. Favor (2012) 54 Cal.4th 868, 874.) In this
case, attempted murder was the nontarget offense and robbery was the target offense. Defendant
agrees that if his attempted murder conviction under the natural and probable consequences
doctrine was based on the robbery of Taylor, it is valid. He argues, though, that given his
entitlement to reversal of his conviction for robbing Rainey, the jury may have convicted him of
attempted murder based on a legally invalid theory: that the attempted murder of Rainey was the
natural and probable consequence of the robbery of Rainey. Defendant correctly points out that
when a jury has been presented with a legally invalid theory, “reversal generally is required
unless ‘it is possible to determine from other portions of the verdict that the jury necessarily
found the defendant guilty on a proper theory.’” (People v. Perez (2005) 35 Cal.4th 1219, 1233.)

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We reject defendant’s claim that the amendment of count 3 at trial to charge him
with robbing Rainey violated his right to due process, which renders moot his challenge
to his attempted murder conviction on the ground that the jury may have relied on a
legally inadequate theory to convict him. We agree with him, however, that his sentence
for robbing Rainey should have been stayed under section 654. We therefore stay the
sentence for count 3, but otherwise affirm the judgment.
FACTUAL SUMMARY
On June 19, 2014, Rainey and Taylor were at a motel in Hanford where Rainey
had rented a room. At approximately 10:30 p.m., Rainey stepped outside the room to
smoke a cigarette. He noticed a black sport utility vehicle drive by with its lights off.
Minutes later, as he stood there smoking, three men came up the stairs. The first man,
who was armed with a pistol, approached and told Rainey to give him everything Rainey
had. The man then cocked the gun and fired, hitting Rainey in the leg. As Rainey turned
and ran, the man fired again, hitting an exterior wall of the motel.3
Taylor, who was inside the motel room, heard three gunshots and then the three
men came into the motel room. Defendant, who had a distinctive tattoo under his eye,
pointed a shotgun in Taylor’s face and asked, “[W]here is all the stuff at?” As she knelt
on the floor pleading for her life, the other two men took some items that belonged to her
and some items that belonged to Rainey. All three men then fled.
DISCUSSION
I. Amendment of Count 3 from Attempted Robbery to Robbery
A. Background
As set forth ante, defendant was initially charged in count 3 with the attempted
robbery of Rainey and his first jury trial ended in a mistrial. After the People concluded
3 Rainey testified the gunman fired once as he fled; Taylor testified she heard three
gunshots. Law enforcement officers recovered two bullet casings from the ground and located
two bullet holes in the exterior wall of the motel.

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their case-in-chief in the second jury trial, the prosecutor moved to amend count 3 from
attempted robbery to robbery, to conform to proof of evidence adduced at trial.
Defendant’s counsel did not object to the amendment and the trial court granted the
motion. Defendant was subsequently convicted on all counts and he now claims that the
amendment at that juncture in the proceedings violated his right to due process.
A prosecutor’s right to amend the information is governed by statute.
Section 1009 provides that “[a]n information may be amended ‘for any defect or
insufficiency, at any stage of the proceedings,’ so long as the amended information does
not ‘charge an offense not shown by the evidence taken at the preliminary examination.’
(§ 1009.)[4] ‘If the substantial rights of the defendant would be prejudiced by the
amendment, a reasonable postponement not longer than the ends of justice require may
be granted.’ [Citation.] If there is no prejudice, an amendment may be granted ‘up to
and including the close of trial.’” (People v. Goolsby (2015) 62 Cal.4th 360, 367–368];
accord, People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1580–1581 (Arevalo-
Iraheta); People v. Winters (1990) 221 Cal.App.3d 997, 1005 (Winters).) “The court has
4 Section 1009 provides in full: “An indictment, accusation or information may be
amended by the district attorney, and an amended complaint may be filed by the prosecuting
attorney, without leave of court at any time before the defendant pleads or a demurrer to the
original pleading is sustained. The court in which an action is pending may order or permit an
amendment of an indictment, accusation or information, or the filing of an amended complaint,
for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment
or information be one that cannot be remedied by amendment, may order the case submitted to
the same or another grand jury, or a new information to be filed. The defendant shall be required
to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if
the defendant has not yet pleaded and the trial or other proceeding shall continue as if the
pleading had been originally filed as amended, unless the substantial rights of the defendant
would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends
of justice require, may be granted. An indictment or accusation cannot be amended so as to
change the offense charged, nor an information so as to charge an offense not shown by the
evidence taken at the preliminary examination. A complaint cannot be amended to charge an
offense not attempted to be charged by the original complaint, except that separate counts may
be added which might properly have been joined in the original complaint. The amended
complaint must be verified but may be verified by some person other than the one who made
oath to the original complaint.” (Italics added.)

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broad discretion to deny leave to amend, and must do so if the amendment would
prejudice the defendant’s substantial rights.” (People v. Birks (1998) 19 Cal.4th 108,
129.)
“‘The questions of whether the prosecution should be permitted to amend the
information and whether continuance in a given case should be granted are matters within
the sound discretion of the trial court and its ruling will not be disturbed on appeal absent
a clear abuse of discretion.’”5 (People v. Hamernik, supra, 1 Cal.App.5th at p. 424;
accord, Arevalo-Iraheta, supra, 193 Cal.App.4th at pp. 1580–1581; People v. Bolden
(1996) 44 Cal.App.4th 707, 716.)
B. Forfeiture
Correctly anticipating the People’s argument that he forfeited this claim by failing
to object at trial, defendant argues the failure to object does not forfeit a claim of
jurisdictional error and “[a]s the jurisdictional error is based on the constitution, [he] is
5 Defendant asserts that the de novo standard of review applies in this instance because
“[t]his issue arguably raises a pure question of law.” However, he neither cites to direct
authority for that proposition nor addresses the long line of appellate court cases applying the
abuse of discretion standard to claims of error under section 1009. (E.g., People v. Hamernik
(2016) 1 Cal.App.5th 412, 424; People v. Byrd (1960) 187 Cal.App.2d 840, 842 [“Whether the
prosecution will be permitted to amend an information is a matter within the sound discretion of
the trial court and its determination will not be overturned on review in the absence of a clear
abuse thereof.”].) Defendant cites People v. Cromer (2001) 24 Cal.4th 889, but that case did not
involve a challenge to a ruling under section 1009 and it appears it is cited for the general
proposition that “[t]raditionally … an appellate court reviews findings of fact under a deferential
standard (substantial evidence under California law, clearly erroneous under federal law), but it
reviews determinations of law under a nondeferential standard, which is independent or de novo
review.” (Cromer, supra, at p. 894.) As the California Supreme Court has explained, “[t]he
abuse of discretion standard … reflects the trial court’s superior ability to consider and weigh the
myriad factors that are relevant to the decision at hand.” (People v. Roldan (2005) 35 Cal.4th
646, 688, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
To the extent defendant’s assertion might arguably be construed as challenging the longstanding
application of the abuse of discretion standard to section 1009 rulings, we find that argument
waived as a result of defendant’s failure to support it with legal argument and citation to
authority. (People v. Hovarter (2008) 44 Cal.4th 983, 1029.)

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permitted to raise claims asserting the deprivation of certain fundamental, constitutional
rights for the first time on appeal.” We are unpersuaded.
Defendant’s argument fails to distinguish between types of jurisdictional defects.
There is a distinction between fundamental jurisdiction and acts in excess of jurisdiction
granted by statute or other basis in the law, and this distinction matters for purposes of
the forfeiture doctrine. The California Supreme Court has explained, “In its fundamental
sense, ‘jurisdiction’ refers to a court’s power over persons and subject matter. [Citation.]
Less fundamentally, ‘jurisdiction’ refers to a court’s authority to act with respect to
persons and subject matter within its power. [Citation.] Issues relating to jurisdiction in
its fundamental sense indeed may be raised at any time. [Citations.] By contrast, issues
relating to jurisdiction in its less fundamental sense may be subject to bars including
waiver (i.e., the intentional relinquishment of a known right) [citation] and forfeiture …
[citation].” (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6; see People v. Delgado
(2017) 2 Cal.5th 544, 558–559.) “When a trial court has fundamental jurisdiction but
fails to act in the manner prescribed, it is said to have acted ‘in excess of its jurisdiction.’
[Citation.] Because an ordinary act in excess of jurisdiction does not negate a court’s
fundamental jurisdiction to hear the matter altogether [citation], such a ruling is treated as
valid until set aside. [Citation.] A party may be precluded from seeking to set aside such
a ruling because of waiver, estoppel, or the passage of time.” (People v. Ford (2015) 61
Cal.4th 282, 287.) Thus, while “a lack of fundamental jurisdiction may be raised at any
time, a challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely
asserted.” (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1422.)
The issue raised by defendant on appeal does not implicate fundamental
jurisdiction. As we explain below, section 1009 itself protects a criminal defendant’s
right to due process and where a court has abused its discretion in permitting an
amendment under that section, it has acted in excess of its statutory jurisdiction. Such a
claim is subject to forfeiture in the absence of an objection. (People v. Seaton (2001) 26

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Cal.4th 598, 641; People v. Leonard (2014) 228 Cal.App.4th 465, 481–484; People v.
Fernandez (2013) 216 Cal.App.4th 540, 555; People v. Carrasco (2006) 137 Cal.App.4th
1050, 1056.)
Turning to forfeiture in this instance, the “doctrine is a ‘well-established
procedural principle that, with certain exceptions, an appellate court will not consider
claims of error that could have been—but were not—raised in the trial court. [Citation.]’
[Citations.] Strong policy reasons support this rule: ‘It is both unfair and inefficient to
permit a claim of error on appeal that, if timely brought to the attention of the trial court,
could have been easily corrected or avoided. [Citations.]’” (People v. Stowell (2003) 31
Cal.4th 1107, 1114.) We find defendant’s failure to object to the amendment in the trial
court forfeits the claim on appeal; his contrary arguments are unpersuasive. (People v.
Seaton, supra, 26 Cal.4th at p. 641; People v. Leonard, supra, 228 Cal.App.4th at p. 481;
People v. Fernandez, supra, 216 Cal.App.4th at p. 555; People v. Carrasco, supra, 137
Cal.App.4th at p. 1056; cf. People v. Valladoli (1996) 13 Cal.4th 590, 606 [facial
constitutional challenge to statute permitting amendment to indictment or information
arguably properly raised despite failure to object in trial court].) Forfeiture
notwithstanding, we will nevertheless address the merits of defendant’s claim given his
appended ineffective assistance of counsel argument. (People v. McCullough (2013) 56
Cal.4th 589, 593; People v. Lua (2017) 10 Cal.App.5th 1004, 1014; see Harrington v.
Richter (2011) 562 U.S. 86, 105 [“An ineffective-assistance claim can function as a way
to escape rules of waiver and forfeiture and raise issues not presented at trial .…”];
People v. Jackson (2016) 1 Cal.5th 269, 347; but see People v. Riel (2000) 22 Cal.4th
1153, 1202 [“[The defendant] cannot automatically obtain merit review of a
noncognizable issue by talismanically asserting ineffective assistance of counsel.”].)
C. Analysis
“The ‘preeminent’ due process principle is that one accused of a crime must be
‘informed of the nature and cause of the accusation.’ (U.S. Const., Amend. VI.) Due

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process of law requires that an accused be advised of the charges against him so that he
has a reasonable opportunity to prepare and present his defense and not be taken by
surprise by evidence offered at his trial. [Citation.] [¶] Thus, the right to defend has two
related components, namely, the right to notice of the charges, and the right to present a
defense to those charges.” (People v. Jones (1990) 51 Cal.3d 294, 317; see People v.
Seaton, supra, 26 Cal.4th at pp. 640–641; People v. Peyton (2009) 176 Cal.App.4th 642,
657.)
“‘Section 1009 specifically proscribes amending an information to charge an
offense not shown by the evidence taken at a preliminary hearing.’” (Arevalo-Iraheta,
supra, 193 Cal.App.4th at p. 1581.) We have recognized that in this way, “[s]ection 1009
preserves a defendant’s substantial right to trial on a charge of which he had due notice.
[Citation.] In other words, [the statute itself] protects a defendant’s right to due process.”
(People v. Pitts (1990) 223 Cal.App.3d 606, 903–904 (Pitts); accord, People v. Leonard,
supra, 228 Cal.App.4th at p. 481.) In this case, defendant is not claiming that the statute
is facially unconstitutional nor has he articulated any grounds showing prejudice. Rather,
the crux of defendant’s grievance is that the prosecutor waited until the People rested in
his second trial before moving to amend count 3 from attempted robbery to robbery. The
mere timing alone, however, provides no basis for attacking the trial court’s ruling, as
amendment during trial is permitted by section 1009. (§ 1009; People v. McCoy (2013)
215 Cal.App.4th 1510, 1531; Arevalo-Iraheta, supra, at pp. 1580–1581; Pitts, supra, at
p. 903.) To the extent the proposed amendment arguably unfairly surprised defendant
and caused him prejudice with respect to notice and an opportunity to defend himself, the
statutory remedy was an objection and a request for a continuance.
Counsel did not object, however, and defendant’s contention that this, then,
constituted ineffective assistance of counsel lacks merit. (Harrington v. Richter, supra,
562 U.S. at pp. 104–105.) Counsel is presumed competent (id. at p. 104) and the record
reveals no basis for an objection in the form of unfair surprise and prejudice based on

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lack of notice. The pre- and postamendment charges against defendant arose out of the
same incident against victims Rainey and Taylor and involved the same facts. Defendant
concedes as much; absent is any argument that his conviction for the robbery of Rainey is
based on evidence not presented at the preliminary hearing.
As well, we find the authority cited by defendant for the implied proposition that
he suffered prejudice inapposite.6 In Winters, the defendant waived the preliminary
hearing and, over his objection, the trial court permitted amendment of the information to
add a new charge at the close of the prosecutor’s case-in-chief. (Winters, supra, 221
Cal.App.3d at pp. 1001–1002.) The defendant did not claim prejudice, but argued that
section 1009 did not authorize the amendment. (Winters, supra, at p. 1005.) The Court
of Appeal held that because section 1009 does not permit amendment to add a charge
“not shown by the evidence taken at the preliminary hearing,” no basis existed to permit
amendment given the defendant’s waiver of the preliminary hearing. (Winters, supra, at
p. 1007.) This case does not involve a waiver of the preliminary hearing or a claim that
the amendment was otherwise unauthorized by section 1009 and, therefore, Winters is
distinguishable.
In Pitts, a multi-defendant case involving a multitude of sexual abuse charges, we
reversed numerous convictions for offenses not shown at the preliminary hearing. (Pitts,
supra, 223 Cal.App.3d at pp. 908, 915–916.) We did so after concluding that the
variances between the preliminary hearing and the trial were material because they
misled the defendants in making a defense. (Id. at pp. 905–906.) We observed that “[i]n
such a situation, the preliminary hearing transcript would not afford the defendant
adequate notice of the specific acts against which he might have to defend. Moreover, in
such a situation the opportunity to prepare a meaningful defense would obviously be
adversely affected, since the change in alleged acts would affect medical testimony,
6 As we have stated, defendant does not advance any specific claim of prejudice.

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cross-examination of the alleged victim(s), etc.” (Ibid.) In this case, there were no
material variances between the preliminary hearing and trial with respect to the evidence
nor does defendant contend otherwise.
Finally, in People v. Burnett (1999) 71 Cal.App.4th 152, 155–156 (Burnett), the
defendant was charged, in relevant part, with being a felon in possession of a weapon,
which was identified as a .38-caliber revolver. (Former § 12021, subd. (a)(1).) During
trial, a witness described a second, entirely different incident involving a .357-caliber
revolver and the trial court permitted the prosecutor to amend the information to strike
the caliber allegation from the information. (Burnett, supra, at p. 164.) The prosecutor
then argued the jury could convict the defendant based on either incident. (Id. at p. 169.)
The Court of Appeal found the amendment striking the caliber allegation immaterial
because the witness at the preliminary hearing did not testify to the gun’s caliber and it
found the issue of the defendant’s conviction based on an incident not shown at the
preliminary hearing forfeited by virtue of counsel’s failure to object. (Id. at pp. 178–
179.) It reversed the conviction, however, because the defendant’s trial attorney rendered
ineffective assistance of counsel in failing to object when it became clear the jury was
going to be asked to convict either on the incident that was the subject of the preliminary
hearing or on the second incident described at trial, resulting in prejudice to the
defendant. (Id. at pp. 179–183.) In this case, defendant was not convicted of an offense
that was not shown by the evidence at the preliminary hearing and, thus, Burnett is not
analogous.
In sum, defendant’s limited focus on the charges as listed in the information and
the prosecutor’s arguments prior to amendment is misplaced. (People v. Peyton, supra,
176 Cal.App.4th at p. 657; Pitts, supra, 223 Cal.App.3d at pp. 905–906.) The focus of a
claim that the trial court abused its discretion in permitting the information to be amended
is properly on notice and the opportunity to present a defense, and that inquiry is viewed
through the lens of the evidence presented at the preliminary hearing. (Arevalo-Iraheta,

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supra, 193 Cal.App.4th at pp. 1580–1581; People v. Peyton, supra, at pp. 656–658; Pitts,
supra, at p. 906.) In this case, the attempted robbery count was based on the gunman
demanding what Rainey had while he was standing outside the motel room; the amended
robbery count was based on the theft of Rainey’s belongings from the room. The facts
underlying the amended robbery count were presented at the preliminary hearing.
Defendant does not contend otherwise nor does he offer any specific argument that he
suffered prejudice. (People v. Graff (2009) 170 Cal.App.4th 345, 362; Pitts, supra, at
p. 906.) In the absence of a showing that amending the information to charge robbery
deprived defendant of notice and an opportunity to present a defense to the charge, the
trial court did not abuse its discretion in permitting the amendment.7
II. Applicability of Section 654 to Sentence for Robbery of Rainey
A. Background
Assuming rejection of his due process challenge to his conviction for robbing
Rainey, defendant claims that because he was convicted of attempted murder based on
the natural and probable consequences doctrine and harbored but a single intent, the trial
court erred in punishing him for both the attempted murder of Rainey and the robbery of
Rainey.8 For the reasons set forth below, we agree.
The statutory purpose underlying section 654 “is to ensure that a defendant’s
punishment will be commensurate with his culpability.” (People v. Correa (2012) 54
7 Defendant’s second claim on appeal—that he is entitled to reversal of his attempted
murder conviction because the jury may have relied on the robbery of Rainey to find the
attempted murder was a natural and probable consequence of robbery—is predicated on the
success of his due process challenge to the robbery conviction. Our rejection of due process
challenge renders moot his challenge to the attempted murder conviction and we do not consider
the claim.
8 Defendant did not object to his sentence in the trial court but, as he points out, because a
sentence imposed in contravention of section 654 is an unauthorized sentence, the error may be
raised on appeal even in the absence of an objection. (People v. Brents (2012) 53 Cal.4th 599,
618.)

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Cal.4th 331, 341.) To that end, the statute prohibits courts from imposing multiple
punishments for the same act or omission. As the California Supreme Court recently
observed, however, the application of section 654 can leave courts with more questions
than answers. (Corpening, supra, 2 Cal.5th at p. 312.) This is because “[n]either the text
nor structure of section 654 resolves when exactly a single act begins or ends, for
example, or how to take account of the fact that virtually any given physical action may,
in principle, be divided into multiple subsets that each fit the colloquial definition of an
‘act.’” (Ibid.)
As the court explained in Corpening, determining “[w]hether a defendant may be
subjected to multiple punishment under section 654 requires a two-step inquiry, because
the statutory reference to an ‘act or omission’ may include not only a discrete physical act
but also a course of conduct encompassing several acts pursued with a single objective.
[Citations.] We first consider if the different crimes were completed by a ‘single physical
act.’ [Citation.] If so, the defendant may not be punished more than once for that act.
Only if we conclude that the case involves more than a single act—i.e., a course of
conduct—do we then consider whether that course of conduct reflects a single ‘“intent
and objective”’ or multiple intents and objectives.” (Corpening, supra, 2 Cal.5th at
p. 311.)
When there is no “explicit ruling by the trial court at sentencing, we infer that the
court made the finding appropriate to the sentence it imposed, i.e., either applying
section 654 or not applying it.” (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045, citing
People v. Tarris (2009) 180 Cal.App.4th 612, 626–627.) “[The] trial court’s express or
implied determination that two crimes were separate, involving separate objectives, must
be upheld … if supported by substantial evidence” (People v. Brents, supra, 53 Cal.4th at
p. 618), that is, evidence which is reasonable, credible and of solid value (People v.
Armstrong (2016) 1 Cal.5th 432, 450).

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B. Multiple Punishments for Attempted Murder and Robbery of Rainey
Unsupported by Substantial Evidence
Defendant, citing to People v. Bradley (2003) 111 Cal.App.4th 765 (Bradley),
argues that “multiple punishment of an aider and abettor for robbery and attempted
murder [is prohibited] when the aider and abettor’s liability for the attempted murder
rests solely on the natural and probable consequences doctrine .…” Further, because he
had only a single intent and objective in aiding and abetting the robberies, the trial court
improperly imposed punishments for robbery and attempted murder.
The People, relying in part on People v. Nguyen (1988) 204 Cal.App.3d 181
(Nguyen), counter that the jury’s finding the attempted murder was a natural and probable
consequence of the robbery does not foreclose the trial court from finding the shooting
was divisible from the robbery for the purpose of imposing multiple punishments. They
contend that “[g]ratuitous violence against a helpless and unresisting victim has
traditionally been viewed as not ‘incidental’ to robbery for purposes of … section 654”
and, here, sufficient evidence supports the trial court’s determination that defendant and
his coconspirators had separate intents when they robbed Rainey and then shot at him as
he ran away.
In this case, although the trial court stayed the burglary sentence under
section 654, it did not make any express findings regarding the applicability of
section 654 to defendant’s sentences for attempted murder and the robbery of Rainey.
Thus, in imposing but not staying the sentences for attempted murder and robbery, the
court impliedly determined that the course of conduct (1) did not involve a single
physical act and (2) reflected multiple intents and objectives. (Corpening, supra, 2
Cal.5th at p. 311.)
As an initial matter, we observe that in exercising its discretion to impose
consecutive sentences for these offenses (§ 669, subd. (a); People v. Woodworth (2016)
245 Cal.App.4th 1473, 1479), the court reasoned, “[T]he attempted murder of victim

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Rainey and the robbery of Rainey were two separate … incidences and warrant
consecutive sentences. Specifically, victim Rainey was shot in the leg, which was the
force used to facilitate the robbery. Thereafter, as victim Rainey ran, at that time the
victim had abandoned the motel room so that the suspects could steal his property.
Independent of that robbery, a separate gratuitous force was used in that they attempted
to kill the victim as he fled by firing two more shots. So consecutive sentences will be
imposed for Counts 1 and 3.”
By rule, the determination whether section 654 applies precedes the determination
whether to impose a concurrent or consecutive sentence (Cal. Rules of Court, rule 4.424),
and in making the latter determination, the court considers factors such as whether “[t]he
crimes and their objectives were predominantly independent of each other” (id.,
rule 4.425). Hence, while the court’s aforementioned comments were made in the
context of electing to impose consecutive sentences rather than concurrent sentences, its
evaluation took into account factors that overlap with section 654 considerations and we
include the comments here because they supply some context for the court’s implicit
view that section 654 did not apply.
Turning to the propriety of the court’s section 654 determination in this case, the
parties disagree over the sufficiency of the evidence that defendant had multiple intents
and objectives. As previously stated, defendant relies on Bradley as controlling. To the
extent defendant is arguing, in part, that multiple punishments may never be imposed on
an aider and abettor convicted based on the natural and probable consequences doctrine,
we do not read Bradley that broadly. We agree with defendant, however, that in this
case, there is no evidence he personally harbored multiple intents and objectives.
(Bradley, supra, 111 Cal.App.4th at pp. 768–769.)
The defendant in Bradley was a participant in a scheme to lure a prosperous
customer away from a casino for the purpose of robbing him and it was her role to do the
luring. (Bradley, supra, 111 Cal.App.4th at p. 767.) After locating a promising,

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inebriated target, the defendant succeeded in luring him away from the casino and, per
the group’s plan, the defendant, who was driving the victim’s car, pulled over. (Ibid.)
Her two male confederates then entered the car and took control of it, during the process
of which one of them leveled an Uzi at the victim and threatened him. (Ibid.) The
defendant joined a female confederate in another car and they followed the first car to a
second location, where the men robbed the victim of his valuables and then ordered him
into the trunk of the car. (Id. at pp. 767–768.) When the victim purported not to know
how to open the trunk, one of the men beat him with the Uzi and shot him eight times.
(Id. at p. 768.)
The victim survived and the defendant was subsequently convicted of attempted
murder and robbery based on aider and abettor liability. As in this case, liability for the
attempted murder was premised on the natural and probable consequences doctrine.
(Bradley, supra, 111 Cal.App.4th at p. 768.) The trial court imposed consecutive
sentences for the crimes and, on appeal, the defendant raised a challenge under
section 654. (Ibid.)
The Court of Appeal held that it was error to impose consecutive sentences for the
two crimes and it remanded the matter to the trial court for resentencing consistent with
section 654. (Bradley, supra, 111 Cal.App.4th at p. 772.) The court concluded that to
avoid section 654’s bar on multiple punishments, the defendant must have, herself, had
dual objectives and, instead, she not only had the single objective of aiding and abetting a
robbery but she was in fact unaware of the attempted murder plan until she heard the
gunshots signaling the completion of the crime. (Id. at p. 770.) The court pointed out
that “[s]he was neither tried nor convicted of the attempted murder charge on the theory
she intended the commission of that crime. Rather, she was convicted on a theory this
second offense was a ‘natural and probable’ consequence of the offense she did intend,
that is, the robbery.” (Id. at p. 769.) The court noted the prosecutor could have elected to
have the jury determine the defendant had the specific intent to attempt to murder the

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victim but did not do so. (Id. at p. 770.) Under such circumstances, “the trial court
cannot countermand the jury and make the contrary finding [the] appellant in fact
personally had both objectives. Indeed there is a complete absence of any evidence in
this record to support such a finding had the trial judge attempted to do so.”9 (Ibid.)
In support of their positon, the People rely on the decision in Nguyen, an earlier
case that was discussed in Bradley. (Bradley, supra, 111 Cal.App.4th at pp. 771–772.)
In Nguyen, a different Court of Appeal rejected a section 654 challenge to consecutive
sentences for attempted murder and robbery where the attempted murder conviction also
rested on the natural and probable consequences doctrine. (Nguyen, supra, 204
Cal.App.3d at pp. 184–185, 188.) The Nguyen court opined that the finding the
attempted murder was a natural and probable consequence of the robbery “in no manner
foreclosed the trial court’s conclusion that the act of violence was sufficiently divisible
from the robbery to justify multiple punishments. That a shooting may have been
foreseeable, or even probable, does not mean it was necessary or useful in effectuating
the robbery or that it was committed for that purpose.” (Id. at p. 190.) The court pointed
out that the shooting, which occurred after the victim had been relieved of his valuables
and forced to lie on the ground, “constituted an example of gratuitous violence against a
helpless and unresisting victim which has traditionally been viewed as not ‘incidental’ to
robbery for purposes of … section 654.” (Ibid.)
In reaching its contrary conclusion, the Bradley court observed that the Nguyen
court did not expressly address whether the aider and abettor could be found to have
entertained multiple objectives, but it recognized that the aider and abettor in Nguyen
actively encouraged the shooting of the victim. (Bradley, supra, 111 Cal.App.4th at
9 In this case, the trial court expressed its view that the initial shot was the force that
facilitated the robbery while the shots taken at the fleeing Rainey were intended to kill him. The
prosecutor, however, argued to the jury that the conspirators intended to kill Rainey in order to
effectuate the taking of his property and the shots taken at him as he fled underscored this intent
to kill.

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p. 771.) The Bradley court concluded that when the reasoning of its decision was applied
to the facts in Nguyen, Nguyen’s consecutive sentences were appropriate, as “[a]mple
evidence in the record of that case would support a finding Nguyen shared his cohort’s
independent objective of attacking the victim.” (Bradley, supra, at p. 772.)
Two years later, a different panel of the same Court of Appeal that decided
Bradley revisited the Bradley and Nguyen decisions. In People v. Cummins (2005) 127
Cal.App.4th 667 (Cummins), one of the defendants challenged his consecutive sentences
for attempted premeditated murder, kidnapping for the purpose of carjacking and
robbery. (Cummins, supra, at p. 681.) The Cummins court noted that the Bradley court
had distinguished Nguyen based on the larger role Nguyen played in the crimes compared
with that of Bradley. (Cummins, supra, at p. 682.) After determining the defendant’s
participation was commensurate with that of Nguyen, the Cummins court found the
consecutive sentences were properly imposed. (Id. at pp. 682–683.)
In this case, the sole basis of defendant’s liability for the attempted murder of
Rainey was that it was a natural and probable consequence of robbery. As in Bradley,
and in contrast with Cummins and Nguyen, there is an absence of evidence in the record
that defendant personally possessed dual objectives. The evidence in this case was
relatively simple and straightforward. Defendant and another man followed the principal
up the stairs. The principal demanded everything Rainey had, cocked his handgun and
shot Rainey in the leg. As Rainey turned and ran, the man fired again. The trio then
entered the motel room where defendant pointed his shotgun at Taylor’s head while his
two companions stole Rainey’s and Taylor’s property. Assuming for the sake of
argument that this spare set of facts might support a finding that the principal had dual
objectives, there is simply no evidentiary support for an interpretation that defendant
personally shared in those dual objectives.10
10 The focus of the parties’ argument on appeal is intent and objective. Therefore, we
assume without deciding that because the principal fired at Rainey more than once even though

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Of further note, the acts underlying the attempted murder convictions in Cummins,
Bradley and Nguyen, along with other decisions cited by the People in support of their
argument, are distinguishable on another ground.11 In Cummins, Bradley and Nguyen,
the attempted murders occurred after the victims had been robbed of their possessions,
more readily supporting the arguable existence of divisible courses of conduct involving
the presence, or absence as in the Bradley case, of dual objectives. Here, in contrast,
although multiple shots were fired, the shooting occurred as the robberies commenced
and was the force that facilitated the robbery of Rainey and satisfied one of the offense’s
material elements.
“It has long been recognized that where a defendant is convicted of robbery and
other crimes incidental to the robbery such as assault, section 654 precludes punishment
for both crimes.” (People v. Mitchell, supra, 4 Cal.App.5th at p. 354; accord, People v.
Hensley (2014) 59 Cal.4th 788, 828.) In this case, the evidence shows that the attempted
murder of Rainey was incidental to the robbery of Rainey and, even if we assume the
evidence might arguably suggest the principal possessed an intent or objective for the
shooting beyond facilitating the robbery, as discussed ante, there is no evidence in the
the first shot caused him to turn and run, the crimes were at least arguably the result of a divisible
course of conduct rather than a single physical act. (Corpening, supra, 2 Cal.5th at p. 316
[where crimes were the result of a single physical act, multiple punishment is precluded and step
two of analysis involving intent and objective is not reached]; People v. Mitchell (2016) 4
Cal.App.5th 349, 353 [intent and objective test did not apply because assault with deadly weapon
and robbery constituted an indivisible transaction].)
11 In addition to Nguyen, the People cited the following cases in support of their argument
that there was sufficient evidence to support the imposition of multiple punishments: People v.
Cleveland (2001) 87 Cal.App.4th 263, 271–272 (senseless beating of feeble victim with whom
the defendant had negative history supported finding of multiple objectives for the assault and
robbery); People v. Johnson (1969) 270 Cal.App.2d 204, 208–209 (shot fired from departing
vehicle was divisible from robbery where robbery had been accomplished); People v. Birdwell
(1967) 253 Cal.App.2d 621, 631 (both acts punishable where assault was not the means of the
robbery but followed the robbery); and People v. Williams (1966) 244 Cal.App.2d 658, 662–663
(double punishment permissible where assault occurred after objective of robbery
accomplished).

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record supporting a finding that defendant shared that dual objective. (People v. Hensley,
supra, at p. 828 [evidence did not suggest intent or objective for shooting beyond
facilitating robbery]; People v. Pearson (2012) 53 Cal.4th 306, 334 [robbery and sexual
assault had different objectives than murder that followed them and could be punished
separately].)
Accordingly, we conclude the trial court’s implied determination that section 654
did not bar multiple punishments for the attempted murder and the robbery of Rainey is
not supported by substantial evidence and the robbery sentence should have been stayed.
DISPOSITION
Defendant’s sentence on count 3, the robbery of Rainey, is stayed pursuant to
Penal Code section 654. The trial court shall issue an amended abstract of judgment
reflecting this order and forward it to the appropriate authorities. The judgment is
otherwise affirmed.
___________________________
MEEHAN, J.
WE CONCUR:
__________________________
GOMES, Acting P.J.
__________________________
FRANSON, J.

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