P. v. Spangler

Filed 6/25/07 P. v. Spangler 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(El Dorado)

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A jury convicted defendant Todd Gregory Spangler of first degree burglary, unlawfully driving or taking a vehicle, and possessing a hypodermic needle. He admitted having served a prior prison term and was sentenced to an aggregate term of five years and eight months in state prison, including a consecutive term of eight months for unlawfully driving or taking a vehicle.

On appeal, defendant contends his sentence for unlawfully driving or taking a vehicle should have been stayed pursuant to Penal Code section 654. We disagree and shall affirm the judgment.

FACTS

On March 9, 2006, Larry and Sharon Spangler were getting ready to go on vacation when defendant, their son, called and said that he had been released from jail and had nowhere to stay. The Spanglers took him into their home and then went on the vacation.

Their Cameron Park residence was a two-story house with the bedrooms located upstairs. The upstairs bedrooms were locked, and the Spanglers told defendant that he could not use any of the upstairs rooms except for one bathroom that was unlocked. Defendant did not have permission to use the Spanglers truck that was parked in the driveway. Mr. Spangler hid credit cards and the keys to his truck in a drawer in his locked upstairs room.

The Spanglers returned home on March 19, 2006. The door to Mr. Spanglers room had been pried open, and the keys to the truck were missing, along with some of Mr. Spanglers clothes. Missing from the other upstairs bedrooms were a classical guitar and amplifier, an electric keyboard, Mrs. Spanglers laptop computer and printer, and a flat screen television. The garage was pretty much [in] shamble[s] and the toolbox from the truck was on the floor. The truck--which contained valuable power tools, a digital camera, and a laptop computer--was also gone.

On March 21, 2006, El Dorado County Sheriffs deputies spotted defendant and Michael Stevens by the Spanglers truck in an isolated part of Shingle Springs. The truck was surrounded by a 20 to 25 foot radius of garbage, including rotting food, broken tools, golf clubs, empty milk containers, metal containers and many pieces of dirty and wet clothing.

Defendant and Stevens were arrested and given Miranda warnings. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].) In the truck were six hypodermic needles, which defendant admitted owning. Mr. Spanglers laptop and some plastic tool containers and miscellaneous tools were found in the truck, but none of the other stolen items were ever recovered.

At trial, defendant testified as follows: A methamphetamine addict, he knew he did not have permission to go into the upstairs bedrooms. After receiving a distressing call from his girlfriends mother, he and about ten others had a party at his parents house. Methamphetamine was used, and defendant drank heavily. Having been up for ten days straight, he fell asleep at around midnight. When a caretaker hired by the Spanglers awakened him at around 2:00 p.m. the next day, defendant noticed that no one else was there and that items were missing from the upstairs bedrooms. He then took some clothes that his father had given to him and drove the truck for about a day and a half looking for the people at the party. Items that he had stored in the truck got wet in a rainstorm, and he was sorting them when the police found him.

DISCUSSION

Penal Code section 654, subdivision (a) states in pertinent part: 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. (Further section references are to the Penal Code unless otherwise specified.)

Under its literal language, section 654 proscribes multiple punishment for multiple convictions arising from a single act or omission. (See Neal v. State of California (1960) 55 Cal.2d 11, 18.) However, application of section 654 has been extended to a course of criminal conduct wherein multiple violations are incident to an accuseds single criminal objective. (People v. Beamon (1973) 8 Cal.3d 625, 638.) Thus, the question is whether the course of conduct comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. [Citation.] [] Whether a course of criminal 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. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Id. at p. 637, italics omitted; see People v. Latimer (1993) 5 Cal.4th 1203, 1216.)

Nevertheless, when an accused has embarked upon a course of conduct wherein he may be deemed to have entertained multiple criminal objectives none of which are merely incidental to any other, the meaning of act or omission has been construed in a manner consistent with that multiple objective and what may appear on the surface to be a single act may embody separately punishable violations. We must, accordingly, give heed to an accuseds objectives when they can be ascertained. [Citation.] . . . [] . . . The initial inquiry in any section 654 application is to ascertain the defendants objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon, supra, 8 Cal.3d at p. 638-639; see People v. Britt (2004) 32 Cal.4th 944, 951-952.)

Whether the crimes were committed during an indivisible transaction is a question of fact to be determined by the trial court; that courts finding will not be disturbed on appeal if it is supported by substantial evidence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) However, the California Supreme Court has warned against pars[ing] the objectives too finely in analyzing potentially impermissible multiple punishments. (People v. Britt, supra, 32 Cal.4th at p. 953 [when a registered sex offender moved from his place of residence and failed to inform both the law enforcement agency in the community from which the offender moved and the law enforcement agency in the community to which the offender moved, it parses the objectives too finely for purposes of section 654 to conclude the offender had two separate objectives: (1) to mislead law enforcement and the residents of one community to believe that the sex offender remains there; and (2) to conceal from law enforcement and the residents of another community the fact that the sex offender is now residing in that community].)

Here, in imposing a consecutive sentence for the unlawful driving or taking of the Spanglers truck, the trial court found that all of the crimes and their objectives were independent of one another . . . .

In defendants view, the courts finding is erroneous because the record contains no evidence that would support a determination that the taking of the pickup keys from [the] locked bedroom during the burglary was anything other than part and parcel of the theft of the pickup from the driveway of the Spangler home. The clear and only reasonable implication from the record is that [defendant] burglarized his parents [sic] bedrooms, stole items from them--including the pickup truck keys--and then stole the pickup, likely to provide a get-a-way vehicle and as a means of removing the stolen property away from the house. Thus, he argues, the sentence for unlawfully taking or driving the truck must be stayed pursuant to section 654 because the burglary and the theft of the pickup were part of one continuing, single objective, course of criminal conduct by [him].

The People disagree, asserting it was reasonable for the court to infer that defendants intent and objective in taking the items--other than the truck keys and truck--was to sell them or otherwise dispose of them for value, but that he intended only to temporarily deprive his parents of the truck, not keep it, sell it, or trade it for something else.

The inference urged by the People is not, as defendant argues, unsupported by the evidence. Twelve days after the Spanglers left defendant in their home while they went on vacation, defendant was found in possession of the truck, but almost all the other items taken from the home were missing. From this it may be inferred that defendant took the other items with the intent of selling or otherwise disposing of them for value. The fact that defendant had not disposed of the truck, coupled with his testimony that he did not intend to permanently deprive his parents of the vehicle, supports an inference that he had a separate objective in taking the keys and truck, i.e., to temporarily use it for transportation or shelter before returning it to his parents with the explanation that he used the truck to search for, what he claimed, were the real culprits.^[1] Thus, the facts in this case are unlike those in People v. Bauer (1969) 1 Cal.3d 368, at page 378 [section 654 applies to the theft of an automobile committed as part of a residential burglary], People v. Bernal (1994) 22 Cal.App.4th 1455, at page 1458 [section 654 applies to a petty theft committed as part of a burglary], and other opinions cited in defendants briefs.

It is immaterial whether we would have concluded otherwise, had any of us been the sentencing judge. It matters only whether there was substantial evidence from which the sentencing judge could infer that defendant had a separate intent and objective in taking the truck and keys. There was.

Because defendant did not object when the sentencing judge imposed the consecutive term for defendants act of unlawfully driving or taking the truck, he cannot now complain that neither the probation department (which recommended the consecutive sentence because, in its view, the vehicle crime and the burglary and their objectives were independent) nor the sentencing court gave a more fact-specific explanation for the sentencing choice.

And we cannot assume, as suggested by defendant, that the sentencing judge, who had not been the trial judge and who had not heard the evidence presented to the jury, simply accepted the probation reports recommendation for a consecutive term. To the contrary, we must presume, absent evidence to the contrary, that the sentencing judge familiarized himself with the facts of the case before making its sentencing choice. (Evid. Code,  664.) Indeed, a detailed account of the facts is in the probation report, which the judge read and considered.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

NICHOLSON , J.

RAYE , J.

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^[1] It cannot be said this is parsing the objectives too finely. (Cf. People v. Britt, supra, 32 Cal.4th at p. 953.)