P. v. Malone

Filed 10/30/06 P. v. Malone CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Michael Johnson, Judge. Modified and, as so modified, affirmed.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Herbert S. Tetef and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant Robert W. Malone appeals from the judgment entered following a jury trial that resulted in his convictions for second degree vehicle burglary and petty theft with a prior. The trial court sentenced Malone to a term of five years in prison.

Malone’s sole contention on appeal is that Penal Code section 654[1] precluded the imposition of consecutive sentences on the offenses. As the People concede, Malone is correct. We modify Malone’s sentence accordingly. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issue on appeal established the following. In the early morning hours of July 9, 2005, Malone broke into store owner Roberto Solis’s locked truck, which was parked on a Los Angeles street. Malone removed boxes of merchandise from the truck and placed them on the ground nearby. Alerted to Malone’s activities by a neighborhood resident, police arrived on the scene as Malone was in the process of removing and stacking the boxes. The value of the merchandise removed from the truck was approximately $150.

2. Procedure.

Trial was by jury. Malone was found guilty of second degree vehicle burglary (§ 459) and petty theft with a prior (§ 666).[2] Malone admitted serving two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Malone to a term of five years in prison, as follows. On count 1, burglary, it imposed the high term of three years. On count 2, petty theft, it imposed a concurrent two-year term. It further imposed two one-year terms for the two section 667.5, subdivision (b) prior prison term enhancements. The trial court additionally imposed a restitution fine, a suspended parole revocation fine, and a court security assessment. Malone appeals.

DISCUSSION

Malone asserts that the trial court erred by imposing sentence on both the burglary and theft convictions. The People concede the point, and we agree. Section 654, subdivision (a), provides that “[a]n 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 therefore “ ‘precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. “Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.” [Citations.] “[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” [Citation.]’ [Citation.]” (People v. Spirlin (2000) 81 Cal.App.4th 119, 129; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) If the defendant harbored “ ‘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. [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) We review the trial court’s findings for substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)

Here, at sentencing the trial court stated that sentence on count 2 was “not barred by Penal Code [section] 654 in that it involved a theft as opposed to burglary, but I will impose the midterm of two years and sentence that concurrently since it involved the same intent and essentially the same conduct as that involved in count 1.” (Italics added.) In other words, the trial court concluded the two crimes were carried out with the same intent and objective. The record reveals no evidentiary basis for concluding otherwise. Accordingly, rather than imposing a concurrent sentence for the petty theft, the trial court should have stayed the sentence on that count. (See People v. Bernal (1994) 22 Cal.App.4th 1455, 1458; People v. Guzman (1996) 45 Cal.App.4th 1023, 1028; People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239 [if section 654, subdivision (a) requires that a sentence be stayed, then concurrent terms may not be imposed]; People v. Hester (2000) 22 Cal.4th 290, 294.)

DISPOSITION

The concurrent two-year term imposed on count 2 is ordered stayed pursuant to section 654. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, ACTING P. J.

KITCHING, J.

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[1] All further undesignated statutory references are to the Penal Code.

[2] Malone’s request to bifurcate trial on the prior convictions was granted. The parties stipulated that the jury would determine only whether Malone had committed a petty theft, and Malone admitted suffering a prior theft-related conviction.