P. v. Wiggan

Filed 1/23/07  P. v. Wiggan CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            APPEAL from a judgment of the Superior Court of Los Angeles County.  Rafael  A.  Ongkeko, Judge.  Remanded with directions and affirmed.

            James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Richard  S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

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            In this case, we must decide whether, among other things, Penal Code section 654^[1] prohibits multiple punishment where appellant was convicted of both burglary (§  459) and forgery (§  470, subd. (d)) when he stole a check, falsely made it out, then entered a check cashing service business with the intent to pass the forged check.  We conclude that appellant committed the acts in an indivisible course of conduct in pursuit of a single criminal objective, and the trial court erred in failing to stay the sentence for the forgery conviction.

            Appellant Christopher Charles Wiggan appeals from a judgment entered after a jury found him guilty on January 6, 2006, of second–degree commercial burglary in violation of section 459 and forgery in violation of section 470, subdivision (d).  Appellant admitted that he had previously suffered prior felony convictions and that he had served prior prison terms for violation of section 422 and Health and Safety Code section 11350, subdivision (a).

            On March 17, 2006, appellant pled guilty to charges filed in a separate information for possession of methamphetamine in violation of Health and Safety Code section  11377, subdivision (a).

            Sentencing was called for both matters on March 17, 2006.  With respect to the second-degree commercial burglary and forgery matter, the trial court denied appellant's motion to strike the prior under People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero), and denied probation.  The trial court selected second-degree commercial burglary as the base count and selected the midterm of two years, which it then doubled under section 667, subdivisions (b) through (i) (the three-strikes law).  As to the forgery count, the trial court imposed an additional 16 months, calculated as one third of the midterm of two years, doubled for the prior strike.  Over appellant's objection, the trial court found that the forgery and the second-degree commercial burglary involved separate transactions and ordered the sentences to be served consecutively.  The trial court added one year for the state prison allegation.

            In the methamphetamine matter, the trial court denied probation and imposed a sentence of two years eight months, consisting of the low term of 16 months, doubled for the prior strike, in accordance with the terms of the plea bargain.

CONTENTIONS

            Appellant contends that:  (1) the trial court abused its discretion in refusing to consider appellant's motion to dismiss a prior felony conviction on the ground that written notice had not been given; (2) imposition of consecutive sentences for burglary and forgery violated the statutory ban against multiple punishment for a single transaction; (3) the trial court's determination that appellant's burglary and forgery convictions involved independent objectives deprived him of his Sixth Amendment and Fourteenth Amendment rights to jury trial; and (4) the trial court should order the abstract of judgment corrected to conform with the trial court's oral pronouncement of judgment.

FACTUAL BACKGROUND

            Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139), the evidence established the following.

            In 2005, Michael Carter was a drug user.  He and appellant would get together to use marijuana and crystal methamphetamine.  After Michael lost his job, he stole three or four checks from his father, Gregory Carter.^[2]  He forged his father's signature, made the checks out to himself, and took them to a liquor store to cash them.

            On April 4, 2005, Michael took a check from his father's checkbook.  Appellant, who was visiting Michael, saw him do this.  On April 5, 2005, Michael was asleep in the house when he woke to find appellant standing next to him and calling his name.  Michael had not invited appellant to the house and had not given him permission to enter the house.  On April 6, 2005, Michael left the house unlocked for 30 minutes, and found appellant inside the house when he returned.  Michael did not call appellant to ask him for drugs.  Michael did not steal a check from his father to give it to appellant to pay for drugs or ask appellant to meet him at his house so that he could deliver a check to him to pay for drugs.  Later, Michael confronted a friend, Joshua Skinner, about a check that was missing from his father's checkbook.  Mr. Skinner said that he had seen appellant with the check.

            On April 6, 2005, appellant offered $20 to his friend Michelle Calhoun to cash a check for him.  Ms. Calhoun picked up appellant, and he gave her a check drawn on the account of Gregory Carter, doing business as Carter Construction Company, payable to Ms. Calhoun in the amount of $200.  The check bore a notation that it was for â€