P. v. Robertson
Filed 6/10/13 P. v. Robertson CA3
NOT TO BE PUBLISHED
COPY
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opinion has not been certified for publication or ordered published for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.
THEODORE ROBERTSON,
Defendant and Appellant.
C070332
(Super. Ct. No. 11F01105)
burglary of the Roose residence ( ADDIN BA xc <@st> xl 16 s
BSJLAR000001 xpl 1 l "Pen. Code, § 459" Pen. Code, § 459--count one) and to
taking and driving a car from the Roose residence ( ADDIN BA xc <@st> xl 29 s
BSJLAR000002 xpl 1 l "Veh. Code, § 10851, subd. (a)" Veh. Code, § 10851, subd. (a)--count
two). In the same proceeding defendant
also pleaded no contest to burglary of the Hanson residence (Pen. Code, ADDIN
BA xc <@$st> xl 5 s BSJLAR000001 xpl 1 § 459--count three) and to
theft of various items from that home, including
a gun (Pen. Code, ADDIN BA xc <@osdv> xl 19 s
BSJLAR000020 xpl 1 l "§ 487, subd. (d)(2)" § 487, subd. (d)(2)--count four). (Unless otherwise stated, all statutory
references that follow are to the Penal Code.)
On appeal, defendant contends the trial court erred in failing to stay
the sentences imposed on counts two and four pursuant to ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654.
We agree and direct the trial court to stay the sentences imposed on
counts two and four.
Facts and Proceedings
Because defendant pleaded no contest
to the crimes, we summarize the offenses from facts taken from the probation
report and the factual basis cited by the prosecutor at the time of defendant’s
plea.
Arrested as he walked from a residence
from which an audible alarm was sounding, defendant had stolen property in his
possession. Based in part on his
admissions to police, defendant was charged with (among others) the following
burglaries of homes in the neighborhood where he lived with his parents.
Burglary (Counts One and Two)
The Rooses were on vacation when
their house was burglarized. Three very
expensive purses were stolen. Defendant
also admitted stealing a car from the garage and placing it in the garage of
his own home; its keys were in defendant’s possession at the time of his
arrest. The contents of two of the
stolen purses were found in the backseat of the stolen car; the third purse was
found in the trunk. Burglary of the
Roose residence gave rise to the allegations of count one of the information;
taking the car without the owner’s consent gave rise in count two to a charge
defendant violated ADDIN
BA xc <@st> xl 43 s BSJLAR000003 l "Vehicle Code section 10851,
subdivision (a)" Vehicle Code section 10851, subdivision
(a).
Burglary (Counts Three and Four)
The Hanson home was also
burglarized; entry was likely made through an unlocked garage door. A handgun, flat-screen television, laptop
computer, and other items were stolen during the burglary. Defendant admitted breaking into the Hanson
home and possessing the stolen items.
Defendant was charged in count three with burglary of the Hanson
residence; theft of the gun gave rise to the grand theft charge alleged in
count four.
The probation officer recommended no
“additional term†be imposed by virtue of the application of ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654 on count two, because “the crime
occurred during a continuous course of criminal [conduct as] to Count 1, where
defendant harbored a single criminal objective†or on count four, because
“commission of the crime occurred during a continuous course of criminal
conduct as to Count 3, where the defendant harbored a single criminal
objective.â€
At sentencing, the trial court
selected a burglary count as the principle term, and sentenced defendant to
prison. It imposed an eight-month
(one-third the midterm) sentence on count two, stating to defendant that “even
if you entered with intent to take nothing but the car, the fact that you did
take the car is an additional crime that’s not subject to ADDIN
BA xc <@st> xl 22 s BSJLAR000004 l "Penal Code section 654"
Penal Code section 654.†On count four, the court declined to stay the
sentence pursuant to ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654; it imposed a two-year term, to
run concurrent.
Discussion
Defendant contends his sentences on
counts two and four should be stayed under ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654, as the crimes charged in count
two (theft of a car) and count one (residential burglary) were part of an
indivisible course of conduct with the single intent and objective of stealing
items from the Roose residence, and the crimes charged in count four (theft of
a gun) and count three (residential burglary) were likewise part of an
indivisible course of conduct with the single intent and objective of stealing
items from the Hanson residence. For
reasons we shall explain, we agree.
BA xc <@$st> xl 11 s BSJLAR000004 Section
654 Applicability
In general, a person may be
convicted of more than one crime arising out of the same act or course of
conduct. ( ADDIN BA xc <@osdv> xl 5 s
BSJLAR000021 xpl 1 l "§ 954" § 954; ADDIN
BA xc <@cs> xl 43 s BSJLAR000005 xhfl Rep xpl 1 l "
Cal.4th 331" People
v. Correa (2012) 54 Cal.4th 331, 337 (Correa).) However, ADDIN
BA xc <@osdv> xl 28 s BSJLAR000022 l "section 654, subdivision
(a)" section 654, subdivision (a) provides in
relevant part 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.â€
As stated in Correa, supra, 54 Cal.4th at page 335, the California Supreme Court
“added a ‘gloss’ to ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654†in ADDIN
BA xc <@cs> xl 34 s BSJLAR000006 xhfl Rep l "
Cal.2d 11" People
v. Neal (1960) 55 Cal.2d 11 ( ADDIN BA xc <@$cs> xl 4 s
BSJLAR000006 xpl 1 Neal),
when it opined that, although ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654 refers to an “act or omission,â€
“[f]ew if any crimes . . . are the result of a single physical
act.†( ADDIN BA xc <@$cs> xl 14 s
BSJLAR000006 xhfl Rep xpl 1 Neal, at
p. 19.) Accordingly, the relevant
question is typically whether a defendant’s “ ‘course of conduct
. . . comprised a divisible transaction which could be punished under
more than one statute within the meaning of ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654.’ †( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.,
quoting ADDIN BA xc <@cs> xl 41 s
BSJLAR000007 xhfl Rep xqt xpl 1 l "People
v. Brown
v. Brown (1958) 49 Cal.2d 577, 591.)
To resolve this question, the ADDIN
BA xc <@$cs> xl 4 s BSJLAR000006 Neal
court announced the following test:
“Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654 depends on the intent and
objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any
one of such offenses but not for more than one.†( ADDIN BA xc <@$cs> xl 14 s
BSJLAR000006 xhfl Rep xpl 1 Neal, at p. 19; see ADDIN
BA xc <@$cs> xl 45 s BSJLAR000005 xhfl Rep xpl 1 Correa,
supra, 54 Cal.4th at p. 335.)
Some aspects of ADDIN
BA xc <@$cs> xl 4 s BSJLAR000006 Neal
have been recently reconsidered and rejected by the California Supreme
Court. ( ADDIN BA xc <@$cs> xl 50 s
BSJLAR000005 xhfl Rep xpl 1 Correa, supra,
54 Cal.4th at pp. 338-344 [concluding that ADDIN
BA xc <@nper> xl 17 s BSJLAR000023 xpl 2 l "
footnote 1 incorrectly states that the “basic principle†of ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 xpl 2 section 654 bars multiple punishment for
multiple violations of the same statute].)
ADDIN BA xc <@nper> xl 15 s
BSJLAR000024 l "However, Neal’s"
However, Neal’s
holding that ADDIN BA xc <@$st> xl 11 s
BSJLAR000004 section 654 precludes separate punishment
for separate acts that constitute an indivisible course of conduct, shown by
facts defendant harbored a single intent remains. (See ADDIN
BA xc <@cs> xl 45 s BSJLAR000008 xhfl Rep xpl 1 l "
Cal.4th 191" People
v. Mesa (2012) 54 Cal.4th 191, 199-200, and cases cited therein; see
also ADDIN BA xc <@cs> xl 48 s
BSJLAR000009 xhfl Rep xpl 1 l "People
v. Wooten
v. Wooten (2012) 209 Cal.App.4th 737, 748 [ ADDIN BA xc <@$st> xl 11 s
BSJLAR000004 xpl 2 section 654 does not bar multiple
punishments for a single course of criminal conduct when defendant entertains
multiple criminal objectives].)
Accordingly, a defendant may be
convicted of both burglary and theft, since a burglary may be committed without
committing a theft, and theft is not a lesser included offense of
burglary. ( ADDIN BA xc <@cs> xl 49 s
BSJLAR000010 xhfl Rep xpl 1 l "People
v. Bernal
v. Bernal (1994) 22 Cal.App.4th 1455, 1458.) But ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654 “has been held to preclude
punishment for both burglary and theft where . . . the burglary is
based on an entry with intent to commit that
theft.†( ADDIN BA xc <@cs> xl 56 s
BSJLAR000011 xhfl Rep xpl 1 l "People
v. Alford
v. Alford (2010) 180 Cal.App.4th 1463, 1466, 1468 [evidence at trial
was that defendant entered a Wal-Mart, loaded a shopping cart with meat, put it
in an ice chest; loaded other items in the cart and tried to leave without
paying; defendant said he “was going camping and did not have money to pay for
the meatâ€], italics added; ADDIN
BA xc <@$cs> xl 50 s BSJLAR000010 xhfl Rep xpl 1 People
v. Bernal, supra,
22 Cal.App.4th at pp. 1457-1458 [defendant entered his mother’s home,
“went into a bedroom and stole a car stereoâ€; trial court correctly allowed
defendant’s conviction of both burglary and petty theft occurring during the burglary
and then stayed punishment for the theft pursuant to ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 xpl 2 section 654].)
Generally, the trial court is vested
with broad latitude in determining whether ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654 applies in a given case, and its
“findings will not be reversed on appeal if there is any substantial evidence
to support them.†( ADDIN BA xc <@cs> xl 49 s
BSJLAR000012 xhfl Rep xpl 1 l "People
v. Jones
v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Have Been Stayed by Operation of ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 Section
654
Defendant contends ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654 bars his separate punishment for
burglarizing the Roose residence and stealing a car from the same residence,
citing ADDIN BA xc <@$cs> xl 45 s
BSJLAR000011 xhfl Rep xqt People
v. Alford, supra, 180 Cal.App.4th 1463. He argues that taking the vehicle arose out
of the burglary and occurred at the same time and from the same course of
conduct as the burglary.
We agree with defendant. The course of conduct here was to burglarize
the Roose home and, taking the car was part of an indivisible transaction with
one objective, theft. Moreover, nothing
in the evidence (limited as it is) suggests defendant had multiple, independent
objectives. (See ADDIN
BA xc <@cs> xl 54 s BSJLAR000015 xhfl Rep xpl 1 l "
Cal.App.4th 1521" People
v. Perry (2007) 154 Cal.App.4th 1521, 1525-1526.) It is the defendant’s intent and objective
that determines whether the course of conduct is indivisible. ( ADDIN BA xc <@cs> xl 41 s
BSJLAR000016 xhfl Rep xpl 1 l "People
v. Hicks
v. Hicks (1993) 6 Cal.4th 784, 789.)
Thus, “ ‘[i]f all of 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.’ †( ADDIN BA xc <@cs> xl 50 s
BSJLAR000017 xhfl Rep xpl 1 l "People
v. Palmore
v. Palmore (2000) 79 Cal.App.4th 1290, 1297, quoting ADDIN
BA xc <@cs> xl 44 s BSJLAR000018 xhfl Rep xqt xpl 1 l "
48 Cal.3d 321" People
v. Harrison (1989) 48 Cal.3d 321, 335.)
The trial court did not make any
factual findings that defendant should be punished separately for stealing the
car because he harbored a separate intent.
Rather, it appears the trial court may have mistakenly believed that
Penal Code ADDIN BA xc <@$st> xl 11 s
BSJLAR000004 section 654 could not apply to a vehicle
taking conviction under ADDIN
BA xc <@st> xl 26 s BSJLAR000013 l "Vehicle Code section 10851" Vehicle Code section 10851. (See ADDIN
BA xc <@cs> xl 52 s BSJLAR000014 xhfl Rep xpl 1 l "In re Maurice
H.
In re
Maurice H. (1980) 107 Cal.App.3d 305, 308, 311 [applying Pen. Code, § ADDIN BA xc <@$st> xl 11 s
BSJLAR000004 xpl 2 654
analysis to ADDIN BA xc <@$st> xl 18 s
BSJLAR000013 xpl 2 Veh. Code, § 10851 violation].)
We are unpersuaded by the People’s
contrary argument that defendant formed a separate intent to steal the car
“only after his burglary of her residence provided him with the keys to the car
and his fortuitous discovery†of the car in the garage, and this separate
intent should preclude the application of ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654.
The same could be said of the “fortuitous discovery†of any item of
value inside the house; that a thief decides to take a gold watch only after he
sees it inside the house he has entered with an intent to steal does not mean
he may be separately punished for the theft.
The district attorney suggested at
sentencing that defendant could be separately punished for stealing the car
because “there’s also evidence of future driving.†We do not agree: There is no evidence in the record before us
that defendant did anything but take the car, drive it to where he was living
with his father, and park it in the garage.
Again, these facts are not analytically different from entering a house,
stealing a gold watch, and hiding it in a drawer. The record does not suggest defendant took
the car so as to be able to drive it on any other occasion, nor does the record
suggest he actually did drive it on any other occasion.
Finally, the People on appeal
suggest that defendant violated ADDIN
BA xc <@$st> xl 43 s BSJLAR000003 Vehicle Code section 10851, subdivision (a)
by the “unauthorized driving†of the Roose car.
Not so; the district attorney stated that the factual basis for
defendant’s conviction was that “he stole a 1994 Mercedes belonging to [a
member of the Roose family]â€).
Defendant’s theft of the car was incidental to the burglary of the Roose
home, and ADDIN BA xc <@$st> xl 11 s
BSJLAR000004 section 654 bars its separate
punishment.
Defendant’s
Sentence on Count Four Should Have Been Stayed
Defendant also contends ADDIN
BA xc <@$st> xl 11 s BSJLAR000004 section 654 bars his separate punishment for
burglarizing the Hanson residence and stealing the firearm from the same
residence, citing ADDIN BA xc <@$cs> xl 44 s
BSJLAR000011 xhfl Rep xqt People
v. Alford, supra, 180 Cal.App.4th 1463. The People agree. We also agree: The record shows defendant’s single intent
and objective was to steal from the Hanson home. The trial court made no finding to the
contrary, gave no explanation when pressed by defense counsel, and there is no
evidence to suggest defendant went to the Hanson home with any additional or
alternative intent or objective. We will
modify the judgment to stay execution of the sentence on the grand theft in
count four.
Disposition
The matter is
remanded to the superior court with directions to stay the sentences imposed on
counts two and four. In all other
respects, the judgment is affirmed. The
clerk of the superior court is directed to prepare an abstract of judgment as
set forth in this opinion and to forward it to the
of Corrections and Rehabilitation.
HULL ,
Acting P. J.
We concur:
ROBIE , J.
HOCH , J.
