Filed 8/1/17 P v. Leahy CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

MITCHELL P. LEAHY,

Defendant and Appellant.
C082027

(Super. Ct. No. 13F05866)




A jury convicted defendant Mitchell P. Leahy of first degree residential burglary of Ryan Y. (Pen. Code, § 459; count one), unlawfully taking a firearm worth more than $950 (§ 487, subd. (d)(2); count two), robbery of Vickie L. in the first degree (§ 211; count three), and first degree residential burglary of the occupied residence of Vickie L. (§ 459; count four). With respect to counts three and four, the jury found true defendant personally used a firearm. (§§ 12022.53, subd. (b), 12022.5, subd. (a).) With respect to count four, the jury also found true that another person, other than an accomplice, was present in the residence during the commission of the burglary. (§ 667.5, subd. (c)(21).)
On appeal, defendant contends the trial court erred in imposing the upper term on count three. In addition, defendant contends the trial court improperly stayed counts two and four without first imposing sentence and erroneously calculated his presentence credits, which the People concede. Finally, defendant contends there were errors in the abstract of judgment, and the People concede. We shall modify the credits awarded and remand for resentencing but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 29, 2013, Ryan Y. returned home from work a little after 5:00 p.m. and noticed one of the sliding glass doors was wide open. In the bedroom, dresser drawers had been opened and “stuff was everywhere.” Missing were a handgun worth $1,800 and a safe containing another handgun worth $700. Also missing was a jewelry box containing watches, rings, cufflinks, and the gold police department retirement ring of Ryan Y.’s grandfather. The police obtained from Ryan Y.’s sliding glass door fingerprints matching defendant’s prints. The police also learned defendant on August 29, 2013, sold to a local “buy shop,” a gold ring that had been broken into pieces.
On September 2, 2013, Vickie L. returned home at 2:00 p.m. and saw an unfamiliar white pickup truck in the driveway. She was nervous as she entered and noticed the patio French doors were open. She heard noise from the back of the house and walked toward the bedrooms to investigate. When she got to the master bedroom, she saw defendant standing at her husband’s dresser, loading one of her tote bags with things from the dresser. Defendant appeared to be the age of Vickie L.’s children, and, rather than being scared, she was angry. Vickie L. yelled at defendant, asking him what he was doing and demanding he leave. Defendant, who appeared shocked, headed to the front door. Vickie L. followed him and continued to yell. When he was about three feet away from the door, defendant lifted his shirt and pulled a gun partially out of his waistband as if to show it to Vickie L. She backed away. Defendant resumed leaving but dropped a punch tool and a nail set before he exited the house. According to police testimony at trial, punch tools are commonly used in burglaries. Vickie L. called 911. She later noticed two jewelry boxes had been emptied, including necklaces, watches, and rings. Responding police noticed Vickie L.’s patio doors had pry marks on them. Police obtained from Vickie L.’s patio doors fingerprints matching defendant’s prints.
On October 23, 2013, defendant was arrested. At the time, he was driving a white pickup truck, which was registered to his mother. Inside the truck, police found a gun, crowbars, pry bars, and black latex gloves. Police also found inside three items that Vickie L. later identified as hers. On April 10, 2014, police found Reginald Castex in possession of a handgun with a serial number matching the gun Ryan Y. had reported as stolen on August 29, 2013.
As set out in the initial paragraph, a jury convicted defendant of violating sections 459 (counts one & four), 487 (count two), and 211 (count three). The jury also found true firearm use enhancements. (§§ 12022.53, subd. (b), 12022.5, subd. (a).)
The probation report recommended the midterm. The report noted circumstances in aggravation, including (1) the manner in which the crime was carried out indicated planning, sophistication, or professionalism; and (2) defendant had engaged in violent conduct indicating a serious danger to society. (Cal. Rules of Court, rule 4.421(a)(8) & (b)(1).) In mitigation, the report noted defendant had no prior criminal record. (Rule 4.423(b)(1).) The report also stated defendant had been abusing methamphetamine for a year prior to his arrest but now wanted to participate in a drug treatment program. The report attached a letter from defendant’s father, who explained defendant had a successful granite fabrication business that failed during the recession. Defendant lost his house and his vehicle, and he and his girlfriend broke up. Defendant turned to drugs, and “[h]is life then spiraled out of control where getting his next fix ruled his life.”
During the April 22, 2016 sentencing hearing, defense counsel argued for the lesser term based on defendant’s lack of a criminal record, prior success in society, and temporary lapse in judgment due to economic difficulties and drug abuse. Letters were submitted on defendant’s behalf, which the trial court summarized as indicating he was “a productive member of society,” had a “good heart,” helped others, and “worked hard.” The letters also described defendant falling on hard times during the recession, and the trial court noted the statement in the probation report that defendant had begun using drugs. Vickie L. made a statement to the court that she was affected by the robbery and now feared being home alone. In addition, Vickie L. told the court defendant stole items that were sentimental to her, including jewelry and watches handed down from deceased family members.
Despite the probation report’s recommendation, the trial court imposed the upper term for count three, “because of the threat of violence and potential violence, as well as the planning and sophistication and thought that went into these burglaries. The defendant was particularly callous in the way that he affected the victims in this case, selecting items of particular emotional and sentimental value, as well as the lasting emotional impact on the victims’ lives.” The trial court noted it had “considered the fact that the defendant had no prior record and was in fact a contributing member of society up to the point where he developed a drug problem and turned to a life of crime.”
The trial court sentenced defendant to an aggregate term of 17 years four months in state prison, as follows: six years (the upper term) for count three, plus 10 years for the firearm use enhancement, and one year four months (one-third the midterm) consecutive for count one. Without imposing any term, the trial court stayed pursuant to section 654 counts two and four, including the firearm use allegation.
The trial court also resentenced defendant in Placer County case Nos. 62-125815 and 62-124135A. In case No. 62-125815, the trial court sentenced defendant to an aggregate term of two years eight months for violating sections 459 and 496, subdivision (a), and attempting to violate section 459. In case No. 62-124135A, the trial court sentenced defendant to eight months consecutive for violating section 597, subdivision (b). The total aggregate sentence for the Sacramento County case and the Placer County cases was 20 years eight months in state prison. On May 6, 2016, the trial court awarded 624 days’ custody credit. Defendant filed a timely appeal.
DISCUSSION
I
Defendant contends the trial court abused its discretion in imposing the upper term on count three. According to defendant, there were strong mitigating factors, including that he was a productive citizen, had no prior criminal history, and committed the robbery while he was abusing drugs. Moreover, the crime involved no more callousness, sophistication, or planning than any other residential burglary or robbery. In addition, defendant contends the trial court should not have considered the threat of violence and potential violence because this was inherent in the crime of first degree robbery with firearm use and the firearm use enhancement. (§ 1170, subd. (b); People v. Scott (1994) 9 Cal.4th 331, 350; rule 4.420(c) [a court cannot use a single fact both to impose the upper term and to impose an enhancement].) We note defendant did not raise the dual-use objection below and therefore has forfeited the issue on appeal. (Scott, at pp. 356-357.) But even if defendant’s argument was properly before us, we would reject it because the trial court found valid aggravating factors.
A trial court’s decision to impose the upper term is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion only if it “relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Ibid.) “ ‘[U]nless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria, including any mitigating factors.’ [Citation.]” (People v. King (2010) 183 Cal.App.4th 1281, 1322.) An upper term sentence may be based upon “any aggravating circumstance that the court deems significant” or any other circumstance, even if it is not enumerated in rule 4.421, so long as it is “ ‘reasonably related to the decision being made.’ ” (Sandoval, at p. 848, quoting rule 4.408(a).) “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; accord, People v. Lai (2006) 138 Cal.App.4th 1227, 1258-1259.)
The record supports the conclusion that defendant’s crimes were carried out in a manner that indicates planning. (Rule 4.421(a)(8).) Defendant entered both Vickie L.’s and Ryan Y.’s homes by prying open patio doors. In addition, defendant had a punch tool with him when he burglarized Vickie L.’s home, a tool commonly used in burglaries. Moreover, when defendant was arrested in October 2013, police found a gun, crowbars, pry bars, and black latex gloves inside the vehicle he was driving. A single valid factor is enough to justify imposition of an aggravated term. We find no abuse of discretion. (See People v. Black (2007) 41 Cal.4th 799, 813, overruled on another ground in Cunningham v. California (2007) 549 U.S. 270, 293 [166 L.Ed.2d 856, 871].)
II
The trial court awarded defendant 624 days’ custody credit, including 542 days’ actual time from November 12, 2014, to May 6, 2016, and 82 days of good conduct credit pursuant to section 2933.1. Defendant contends, and the People agree, he is entitled to 1,053 days of custody credit.
When the trial court sentenced defendant in this case and resentenced him on the Placer County cases, defendant was entitled to actual time credits for the time he had already served in the Placer County cases, i.e., following his sentencing in that case and prior to resentencing. (§ 2900.1; People v. Saibu (2011) 191 Cal.App.4th 1005, 1012.) He was also entitled to actual time and conduct credits for the time he served in jail prior to the sentencing on the Placer County cases. (See People v. Phoenix (2014) 231 Cal.App.4th 1119, 1126.)
Defendant was in custody at the Placer County jail from the date of his arrest on October 23, 2013, to August 28, 2014, a total of 310 days. He was in state prison from August 29, 2014, to November 11, 2014, a total of 75 days. He was in Sacramento County jail from November 12, 2014, to May 6, 2016, for a total of 542 days. Accordingly, he should have been awarded 927 days of credit for actual time. (§§ 2933.1, 2900.5, subd. (a).)
Defendant was also entitled to conduct credits at a rate of 15 percent of actual time spent in presentence custody. (§ 2933.1.) Defendant was in presentence custody on the Placer County cases from October 23, 2013, to August 18, 2014, or 300 days. Defendant was in presentence custody in the Sacramento County case from November 12, 2014, to May 6, 2016, or 542 days. With a total of 842 presentence days, the trial court should have awarded 126 days of conduct credit. As such, we shall order the trial court to award a total of 1,053 days of credit.
III
During sentencing, the trial court failed to pronounce sentence on counts two and four and simply announced both counts were stayed under section 654. As both parties acknowledge, it was error to fail to first pronounce sentence on counts two and four and then stay execution of that sentence. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327; see also People v. Deloza (1998) 18 Cal.4th 585, 591-592.) We shall remand for resentencing on counts two and four and direct the trial court to prepare an amended abstract of judgment.
Given our conclusion, we need not address the errors in the abstract of judgment as noted by defendant and acknowledged by the People, including incorrect details about the Placer County cases, such as the date of conviction. The trial court should exercise caution to reflect correctly the judgment in the amended abstract.
DISPOSITION
The judgment is modified to award defendant 927 actual days and 126 days of presentence conduct days, for a total of 1,053 days of credit. The judgment on counts two and four is reversed and the matter is remanded for resentencing. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.


RAYE , P. J.

We concur:


NICHOLSON , J.


HOCH , J.