Filed 2/8/18 P. v. Conelly 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JEDEDIAH CONELLY,

Defendant and Appellant.

F074479

(Super. Ct. Nos. VCF324510 & VCF329723)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Jedediah Richard Conelly stands convicted of second degree burglary, grand theft of personal property, receiving a stolen vehicle, unlawful driving or taking of a vehicle, and petty theft. He contends his sentence for receiving a stolen vehicle must be stayed pursuant to Penal Code section 654 because it was part of one indivisible act of burglary. He also contends the abstract of judgment does not reflect the trial court’s oral pronouncement of sentence. We reject both contentions and affirm.
FACTUAL AND PROCEDURAL SUMMARY
On March 14, 2016, in Tulare Superior Court case No. VCF324510, Conelly was charged in count 1 with felony second degree burglary of a commercial building in violation of section 459; in count 2, with grand theft of personal property exceeding $950 in value, specifically a wood stove, wood lathe, compressor, ceramic items, John Deere parts, a plow, and a scraper blade in violation of section 487, subdivision (a); and in count 3, with purchasing or receiving a stolen vehicle in violation of section 496d, subdivision (a) and Vehicle Code section 415, specifically a Honda motorcycle. As to each count, it was alleged that Conelly had been convicted of a prior serious felony within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d). Each count referenced the date of the offense as between July 1, 2015, and July 18, 2015.
On March 14, 2016, in Tulare Superior Court case No. VCF329723, Conelly was charged with unlawful driving or taking of a vehicle, a utility trailer, in violation of Vehicle Code section 10851, subdivision (a); and with receiving stolen property, the utility trailer, in violation of section 496d, subdivision (a). The date of the offenses was specified as July 2, 2015. It was alleged as to each count that Conelly had suffered a prior strike conviction.
The People moved to consolidate Tulare Superior Court case Nos. VCF324510 and VCF329723. Defense counsel opposed consolidation on the grounds the cases addressed “completely separate incidences.” After argument, the trial court granted the motion to consolidate. The counts in Tulare Superior Court case No. VCF329723 became counts 4 and 5, respectively.
At trial, Joel Ivey testified that he lived in Ivanhoe next door to his recently deceased mother’s property, which consisted of nine acres of walnuts, a house, and a shop. He had been having problems with people stealing items from his mother’s property and break-ins at the buildings on her property.
On July 18, 2015, Ivey went to his mother’s property to feed the animals, check on the place, and organize items in the shop. When he entered the shop, he noticed that a box of sentimental items he previously had packed up was missing, as well as larger items. He had last been in the shop a couple days earlier. Ivey called the sheriff’s department.
Ivey had pictures of most of the items that had been in the shop because he and his brother were deciding who was going to take which items. Among the items missing were his father’s “vintage dirt bike,” a 1969 Honda SS street dirt bike; items belonging to Ivey’s 1957 Ford; three or four boxes of personal items, including items Ivey made while in Boy Scouts; an antique chain pulley; ceramic items made by Ivey’s grandmother; car and farm equipment parts; and a scraper blade for a John Deere tractor.
A couple of weeks later, Ivey was driving past his mother’s property when he noticed a white vehicle parked up against the house. He pulled in and asked the woman he saw what she was doing. The woman replied, “we’re doing some clean-up.” Ivey told her, “This is my mom’s place, you’re not supposed to be here.” Ivey demanded her name and phone number; the woman showed him her driver’s license and gave him her phone number. Ivey called the sheriff’s department, spoke with Deputy Kyle Kalender, and passed along the information. The woman’s name was Jamie Fessler.
Kalender contacted Fessler, who told him that Conelly had stolen a motorcycle from the property and still had it in his possession. Kalender went to Conelly’s house and found Conelly and his father in the front yard, holding a yard sale. Kalender could identify some of the items in the yard sale as having been stolen from the Ivey property, including the dirt bike. Kalender asked Conelly where he got the dirt bike; Conelly stated a friend dropped it off along with other items.
Kalender informed Conelly he knew where the dirt bike came from and Conelly admitted taking it from an “abandoned house” in Ivanhoe. Conelly told Kalender that he and two friends went to the property in Ivanhoe and took items; they made two trips. Conelly pointed out items he had taken from the Ivanhoe property, stating some were inside the shop and some items were outside of the shop. Conelly stated the dirt bike was outside the shop.
Ivey was contacted by Kalender and asked to come to an address in Visalia. Kalender asked Ivey to walk around the yard sale items located at that address and see if he could identify any items. Ivey spotted numerous items taken from his shop, including the dirt bike. However, the personal items he had boxed up were not among the items at the yard sale.
Conelly’s father testified that Fessler brought a trailer full of items, including the dirt bike, over to his house and he tried to sell the items at his yard sale.
Conelly testified his father told him Fessler brought a “bunch of junk” over to his house and Conelly told his father to sell it and “make some money.” Conelly stated he had been to the Ivanhoe property one time because Fessler asked him to help clear items off the property; however, the job “was just too much work for what she wanted to pay me.” Conelly stated he did not take any items from the Ivanhoe property at any time. Conelly also claimed that Ivey identified some items as stolen when they in fact were his, specifically chainsaws.
The jury found Conelly guilty as charged of counts 1, 3, 4, and 5, and guilty of the lesser included offense of petty theft on count 2. In a bifurcated proceeding, the trial court found true that Conelly had a prior strike conviction.
The probation report noted that Conelly had numerous prior convictions. The probation report opined that the “crimes and their objectives were predominantly independent of each other.” The probation report recommended a term of 32 months on count 1, and a concurrent 32-month term on count 3; no section 654 stay was recommended on the count 3 term.
A sentencing hearing was held on August 16, 2016. The parties and trial court discussed the probation report recommendations; the defense asked the trial court to exercise leniency in sentencing; and Conelly inquired about his custody credits. The defense did not raise any section 654 concern regarding the proposed sentence on counts 1 and 3. The defense asked to continue sentencing in order to file a motion for a new trial and a motion to strike the prior conviction.
Conelly filed a motion asking the trial court to strike his prior conviction pursuant to section 1385. He also filed a motion for new trial on the grounds the verdict was “contrary to the law or evidence.”
At the September 27, 2016, sentencing hearing, the parties commenced by arguing the motion for new trial; the trial court denied the motion. The parties then argued the motion to strike the prior conviction pursuant to section 1385; the trial court denied the motion. The trial court stated Conelly had been sentenced on August 16, 2016, and the current hearing was to determine the motions.
Conelly was sentenced to a term of imprisonment of 32 months for count 1; 32 months for count 3 to run concurrently with the term imposed for count 1; and 16 months for count 4 to run consecutive to the term for count 1, for a total term of four years. A term of 32 months was imposed for count 5, but stayed pursuant to section 654. No time was imposed for the count 2 conviction.
Conelly filed his notice of appeal on September 30, 2016.
DISCUSSION
Conelly contends the trial court was required to stay imposition of punishment on the count 3 offense pursuant to section 654, instead of imposing a concurrent term. He also contends the abstract of judgment is incorrect and must be corrected to award him an additional day of credit.
I. Section 654
Even though Conelly failed to raise this issue in the trial court, it is not forfeited. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295.)
Standard of Review
Section 654, subdivision (a) states: “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 potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.)
“Whether a course of 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. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268; see People v. Martin (2005) 133 Cal.App.4th 776, 781.)
In addition, “‘a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]’ [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) “Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted ‘one indivisible course of conduct’ for purposes of section 654. If the offenses were committed on different occasions, they may be punished separately.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.)
“Whether multiple convictions are part of an indivisible transaction is primarily a question of fact. [Citation.] We review such a finding under the substantial evidence test [citation]; we consider the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Martin, supra, 133 Cal.App.4th at p. 781.) The trial court is given broad latitude in making this determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) A trial court’s decision not to stay the imposition of sentence on a count is deemed an implicit finding that each crime had a separate objective. (See People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Analysis
Kalender testified at trial that Conelly stated he and two friends went to the property in Ivanhoe and took items; they made two trips. Conelly pointed out items he had taken from the Ivanhoe property, stating some were inside the shop and some items were outside of the shop. Conelly stated the dirt bike was outside the shop. In the information, the items taken from inside the shop were identified in count 2; the dirt bike or motorcycle was the subject of count 3.
The sentencing court determines the defendant’s intent and objective under section 654. (People v. Norrell (1996) 13 Cal.4th 1, 6.) The trial court’s decision not to stay the imposition of sentence on a count is deemed an implicit finding that each crime had a separate objective. (See People v. Blake, supra, 68 Cal.App.4th at p. 512.) The reviewing court presumes in support of the trial court’s conclusion the existence of every fact that the trier of fact could reasonably deduce from the evidence. (People v. Cleveland, supra, 87 Cal.App.4th at p. 271.)
The case of In re Maurice H. (1980) 107 Cal.App.3d 305 (Maurice H.), cited by Conelly, might support his position that section 654 applies in his case, if Conelly had made only one trip, or one entry onto the property. In In re Maurice H., the “gate was forcibly opened in the fenced multibusiness lot.” (Id. at p. 308.) The defendant stole a pickup truck from the lot, and forcibly entered two shops on the lot and took tools and equipment. (Id. at pp. 308–309.) The defendant was charged both with auto theft and burglary. (Id. at p. 308.) The appellate court concluded the defendant had engaged in an “indivisible transaction with one objective, theft.” (Id. at p. 312.) Thus, the punishment for the auto theft had to be stayed pursuant to section 654 when punishment for the burglary was imposed. (Ibid.)
The defendant in Maurice H. made only one entry onto the property, where he took multiple items and, therefore, engaged in a single, indivisible course of conduct. Here, the evidence supports the trial court’s implicit finding of separate incidents on separate occasions. The People charged Conelly with only one count of second degree burglary, not two, even though Conelly stated two trips were made to the Ivanhoe property. The evidence supports the implicit finding of the trial court that the burglary in the charged count and the taking of the dirt bike occurred on two different occasions; therefore, the two offenses were not part of an indivisible course of conduct, and the offenses could be punished separately. (People v. Kwok, supra, 63 Cal.App.4th at p. 1253.)
Considering the evidence in the light most favorable to the trial court’s determination and presuming the existence of every fact that could be deduced from the evidence to uphold the trial court’s finding, there is substantial record evidence supporting the trial court’s implicit finding that separate punishment was permissible for counts 1 and 3 because section 654 did not apply. (People v. Martin, supra, 133 Cal.App.4th at p. 781.)
II. Sentencing
Conelly contends he was awarded 493 days of presentence custody credits, but the abstract reflects only 492 days. The abstract of judgment reflects an award of 246 days actual and 246 days good conduct credit, for a total of 492 days.
At sentencing, there was a discussion about the correct number of days of credit, with the trial court initially stating Conelly had 245 days of custody credit. The prosecutor interjected that Conelly was entitled to an additional day of custody, for a total of 246 days of custody credit. The trial court then proceeded to award 246 days of custody credit, 123 days good conduct credit, and 123 days work time credit, for a total of 492 days credit pursuant to section 4019.
At the conclusion of the sentencing hearing, Conelly inquired about the calculation of credits and both the trial court and defense counsel explained the calculation and award of credits when there were multiple counts on which Conelly was being sentenced. The trial court informed Conelly that he was “getting your 492 days” and “getting all your credits.” The trial court then asked, “Okay?” Conelly responded, “Yes, ma’am.”
The abstract of judgment correctly reflects the trial court’s oral pronouncement of sentence and award of a total of 492 days of credit.
DISPOSITION
The judgment is affirmed.