P. v. Gueras

Filed 5/15/08 P. v. Gueras CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed as modified.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Walter Gueras guilty of second degree commercial burglary (count 1), receiving stolen property (count 3), resisting or delaying or obstructing an officer (count 4), and false representation to a peace officer (count 5). The trial court determined Gueras was previously convicted of a serious or violent felony qualifying as a strike under Penal Code sections 667, subdivisions (d) and (e)(1), and 1170.12, subdivisions (b) and (c)(1).[1] Gueras was sentenced to state prison for four years. The two-year middle term for count 1 was doubled pursuant to the Three Strikes law. The court imposed a concurrent four-year term for count 3 (the middle term of two years doubled by the strike). It suspended sentence on counts 4 and 5, both misdemeanors.

Guerass sole contention on appeal is the trial court erroneously imposed a concurrent term for receiving stolen property (count 3). Gueras maintains he harbored a single intent for both the burglary and receiving stolen property and thus he has been punished twice in violation of section 654. We agree. The proper remedy is to affirm, but modify the judgment to stay execution of the sentence on the receipt of stolen property conviction in count 3.

I

Facts

In the middle of the night, Fountain Valley police officers responded to an audible burglar alarm coming from the Dollar Tree Discount Store (Dollar Tree) located in a strip mall. Police officers discovered the front glass doors of the Dollar Tree and a nearby tattoo shop had been smashed. The first officer to arrive on the scene saw three suspects, wearing dark clothing, quickly exiting an alley and disappear between a building and a trailer on Harbor Boulevard. The officers detained two of the men, and later found Gueras hiding under a trailer behind a wheel well.

Gueras was wearing a digital camera around his neck, and had CDs, a cordless telephone, and several new tattoo tools in his pockets. In a nearby alley, police officers found a jewelry box containing jewelry, a bicycle, and a baseball bat inside a trash can. The bat had scratches, suggesting it had been used to smash the glass doors in the burglaries. Near the trash can, officers discovered an Xbox game console, remote controls, more CDs, tattooing tubes, and several T-shirts. On a nearby parking island, police located a 100 pound plasma TV partially covered by a jean jacket. The above items, except the bike and bat, were taken in the burglary of the tattoo shop (charged in count 1). Officers also discovered a bag of potato chips, a bottle of Gatorade, a pair of sunglasses, and a balloon weight near the trash which appeared to be stolen from the Dollar Tree (charged in count 2). The jury found Gueras not guilty of this charge, but guilty of burglarizing the tattoo shop and receiving stolen property from that store.

II

Discussion

Gueras contends the facts and circumstances relating to the commercial burglary and the receiving stolen property in counts 1 and 3 reveal a single intent and objective and, therefore, the sentence on count 3 must be stayed pursuant to section 654. We agree.

Section 654 reads: 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. . . . Although section 654 speaks in terms of an act or omission, it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.] The key inquiry is whether the objective and intent attending more than one crime committed during a continuous course of conduct was the same. [Citation.] [I]f all of the offenses were merely incident 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.] [] If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (People v. Meeks (2004) 123 Cal.App.4th 695, 703-704.)

In People v. Allen (1999) 21 Cal.4th 846, the defendant burglarized three homes, stealing jewelry from each. He was convicted of three counts of burglary and two counts of receiving stolen property involving the jewelry taken in two of the burglaries. The Supreme Court held defendant was properly convicted of both burglary and receiving stolen property, but also indicated it approved of the trial courts stay of execution of sentence for receiving stolen property. This disposition was correct, satisfying both section 954 (allowing multiple convictions) and section 654 (barring multiple punishment). (Id. at pp. 866-867.)

Here, the property taken in the burglary was the same property that was the basis of the receiving stolen property charge. As was the case in Allen, the offenses occurred in close temporal proximity. (See People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10 [temporal proximity, while not determinative of whether there was a single objective, is a relevant consideration].) Thus, Guerass intent in committing the burglary was to obtain the stolen property, one and the same objective.

The Attorney General, without the benefit of any supporting case authority, suggests that because Gueras intended to conceal various items and withheld property by hiding from police, he harbored multiple criminal objectives. As correctly noted by Gueras, his action of hiding from police was covered by his conviction for resisting arrest (count 4). We conclude Guerass concealment of the stolen property he had just stolen was conduct merely incidental to the burglary. Guerass objectives in taking and keeping the property for himself were indivisible, and section 654 precludes double punishment.

III

Disposition

The four year concurrent sentence on count 3 is stayed. The trial court is directed to prepare a modified abstract of judgment staying the sentence on count 3, and to send a certified copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgment is affirmed.

OLEARY, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

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