P. v. Cazelly
Filed 4/13/06 P. v. Cazelly CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE
| THE PEOPLE, Plaintiff and Respondent, v. CARLOS RUBEN CAZELLY, Defendant and Appellant. | G034720 (Super. Ct. No. 04HF0544) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, William Lee Evans, Judge. Affirmed.
Linda Casey Mackey, 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, Assistant Attorney General, Barry J.T. Carlton and Patricia Mallen, Deputy Attorneys General, for Plaintiff and Respondent.
Carlos Ruben Cazelly appeals from a judgment after a jury convicted him of numerous counts of burglary and various theft-related offenses. Relying on Penal Code section 654,[1] Cazelly argues the trial court erred in imposing a consecutive sentence for receiving stolen property because it was part of the same course of conduct as the burglary. We disagree and affirm the judgment.
FACTS
On August 5, 2003, Cazelly entered Macy's in the City of Laguna Hills and applied for a credit account under the name of Kalyne Durant. Because he had only copies of the required identification, Cazelly was denied credit. Durant neither knew nor gave permission to Cazelly to use her personal information to apply for a credit account.
On November 20, 2003, Cazelly returned to Macy's to purchase items with a shopping pass in the name of Nicholas Garcia. When told the shopping pass expired, Cazelly left the store. Garcia neither knew nor consented to Cazelly's use of his personal identifying information.
On December 10, 2003, Cazelly and a female were shopping at Nordstrom. Cazelly made purchases on a credit card account he opened that day under the name Eduardo Diaz. Diaz did not consent to Cazelly's use of his personal information to obtain the credit card.
On January 29, 2004, Cazelly signed a lease agreement at the Hampton Point Apartments in the name of and without the consent of David Kim.
On February 1, 2004, Cazelly returned to Macy's, but this time he was accompanied by Yvanna Libejas.[2] They purchased perfume with a gift card that was charged to the account of Myra Padilla. David Avanoni, a loss prevention agent at Macy's, observed this purchase and immediately called the police. Later, Officer Whitman saw Cazelly's car and pulled him over. During a consensual search of Cazelly's car, Whitman found numerous pieces of mail, identity cards, and credit applications in other peoples' names, including a second Macy's gift card charged to Padilla's account, which was later determined to be a different card than the one used to purchase the fragrance.
A 23-count information charged Cazelly with numerous felonies and misdemeanors. With respect to the events on August 5, 2003, Cazelly was charged with second degree commercial burglary (§§ 459, 460, subd. (b)) (count 1) and felony identity theft (§ 530.5, subd. (a)) (count 5). As to the events on November 20, 2003, Cazelly was charged with second degree commercial burglary (§§ 459, 460, subd. (b)) (count 3) and felony identity theft (§ 530.5, subd. (a)) (count 6). With respect to the events on January 29, 2004, Cazelly was charged with second degree commercial burglary (§§ 459, 460, subd. (b)) (count 15). As to the events on December 10, 2003, Cazelly was charged with second degree commercial burglary (§§ 459, 460, subd. (b)) (count 10), grand theft (§ 487, subd. (a)) (count 11), and felony identity theft (§ 530.5, subd. (a)) (count 12).
With respect to the events on February 1, 2004, some of the counts which are at issue in this appeal, Cazelly was charged with receiving stolen property (§ 496, subd. (a)) (count 2), second degree commercial burglary (§§ 459, 460, subd. (b)) (count 4), three counts of felony identity theft of separate victims (§ 530.5, subd. (a)) (counts 7, 14, and 16), seven counts of misdemeanor identity theft of separate victims (§ 530.5, subd. (d)) (counts 13, 18, 19, 20, 21, 22, and 23), and three counts of possession of a forged driver's license and identification card to facilitate forgery (§ 470, subd. (b)) (counts 8, 9, and 17). The information also alleged Cazelly suffered a prior prison term (§ 667.5, subd. (b)).
The trial court selected count 1 as the base term and imposed a two-year term. On counts 3, 4, 10, and 15, the court found the events were separate and distinct commercial burglaries and imposed one-third the midterm, eight months, on each count. With respect to counts 5, 6, 7, 12, and 16, the court stayed the sentences pursuant to section 654. On count 14, the court imposed one-third the midterm, eight months, because it found it to be separate criminal conduct apart from any burglary. The court found count 11 to be linked to count 1 and stayed the sentence. In finding count 2, receiving stolen property, was a distinct crime, the court imposed one-third the midterm, eight months. The court imposed one-third the midterm, eight months, for count 9 and stayed the two-year sentence on counts 8 and 17. Lastly, on counts 13, 18, 19, 20, 21, 22, and 23, all misdemeanors, the court stayed the sentences. After imposing a one-year sentence on the prior prison term, the court sentenced Cazelly to a total term of seven years and eight months.
DISCUSSION
Cazelly argues the trial court erroneously imposed an eight-month sentence on count 2, receiving stolen property, because possessing the gift card and the Macy's burglary, count 4,[3] â€
