P. v. Abouchian

Filed 3/20/06 P. v. Abouchian CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Stephen H. Ashworth, Judge. Affirmed as modified.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch and Robert M. Foster, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, defendant Sarkis Khatchatour Abouchian, Jr. was convicted of seven violations of the Penal Code. These counts include: (1) second degree commercial burglary of Family Auto Sales, in violation of Penal Code^[1] section 459; (2) vandalism in excess of $400 to Family Auto Sales' door frame and electrical box, in violation of section 594, subdivision (b)(1); (3) vandalism under $400 to Fast Lane Market's door frame and electrical box, in violation of section 594, subdivision (b)(1); (4) vandalism in excess of $400 to three cars located at Eagle Motors, in violation of section 594, subdivision (b)(1); (5) receiving stolen property, in violation of section 496, subdivision (a); (6) possession of a firearm by a felon, in violation of section 12021, subdivision (a)(1); and (7) unlawfully possessing ammunition, in violation of section 12316, subdivision (b)(1).

In addition, the trial court found true the allegation that defendant had been convicted of a violent or serious felony within the meaning of section 667, subdivisions (b)-(i), and had served a prior prison term within the meaning of section 667.5, subdivision (b). As a result, defendant was sentenced to a total term of 12 years 4 months in state prison. Defendant's sentence was comprised of the upper term of three years for the burglary violation, which was doubled to six because of defendant's prior strike, a consecutive one-year term due to the prior prison enhancement, two consecutive 16-month terms for two of the vandalism convictions, a 16-month term for the possession of ammunition conviction, and a 16-month term for the possession of a firearm by a felon.

Defendant appeals, arguing primarily that (a) the sentence imposed for count 2 should be stayed pursuant to section 654 because the vandalism of Family Auto Sales arose from an indivisible transaction with the single objective of burglarizing the business; (b) the sentence imposed for count 7 should be stayed pursuant to section 654 because defendant had the same intent when he unlawfully possessed additional ammunition as he did when he unlawfully possessed a gun; and (c) the trial court's sentence of the upper term of three years for second degree commercial burglary, which was doubled to six years, should be reversed because Blakely v. Washington (2004) 542 U.S. 296, advocates imposing the low term of 16 months.

Because defendant's intent to vandalize Family Auto Sales arose out of an indivisible transaction with the single objective of burglarizing the business, we stay defendant's sentence pursuant to section 654 with respect to count 2. However, since defendant's possession of additional ammunition resulted not only from an intent to fire his weapon, but also the separate intent to reload his weapon, we deny defendant's request to stay his sentence with respect to count 7. Finally, based on the California Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238, we reject defendant's claim that his sentence must be reduced to the low term of 16 months. Accordingly, we affirm as modified.

STATEMENT OF FACTS

On January 9, 2005, at roughly 6:00 a.m. in Victorville, defendant burglarized Family Auto Sales. The business was ransacked and numerous items, including a checkbook, a money bag, currency, and a receipt, were stolen.

As a result of the burglary, an outer window was smashed and the back door to the business was left open. Additionally, an internal closet containing the building's electrical box was opened and the electricity turned off. Family Auto Sales' manager testified that the broken window needed repair; however, because the main power switches had merely been switched to the off position, there was no damage to the electrical box. His testimony also acknowledged that receipts detailing the cost of repairs to the business included only the cost of the window replacement, window tinting, blind replacement, repainting, labor, and other small supplies.

After burglarizing Family Auto Sales, defendant moved next door to Fast Lane Market, where he tried to force open the rear door of the business. Because the business was chained and locked from the inside, defendant was unable to enter. Nevertheless, significant damage occurred to the building. The first deputy on the scene testified that she observed an electrical box on the exterior of the building with cut wires hanging from it. The lock and the rear door were also damaged as a result of defendant's attempt to enter the building.

After an attempt to flee, defendant was arrested. During his arrest, defendant was ordered to the ground by the police. As he was going down, defendant pulled out a loaded gun and dropped it to the ground. His car was later searched and it contained, among other things, a total of seventeen .45-caliber bullets.

DISCUSSION

A. Section 654

Defendant contends the sentences imposed for the burglary and vandalism of Family Auto Sales violate the prohibition against multiple punishments under section 654 because the crimes arose from an indivisible transaction with the single objective of burglarizing the business. Defendant further argues that the sentence imposed for the unlawful possession of ammunition violates section 654 because defendant had the same intent when he unlawfully possessed the ammunition as he did when he unlawfully possessed the gun. While we agree with defendant's first contention, we disagree with his second.

Section 654 provides in pertinent part: â€