P. v. Hayes

Filed 5/17/06  P. v. Hayes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

                        Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge.  Affirmed.

                        Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

                        Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

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                        Defendant Karen Lanette Hayes argues she was improperly sentenced on a count that should have been stayed pursuant to Penal Code section 654.  (Subsequent statutory references are to the Penal Code.)  We find that because the acts for which defendant was sentenced were separate and divisible, there was no error, and we affirm.

I

FACTS

                        On the morning of April 1, 2003, defendant arrived at the home of her friend James Kane, Jr., as he was preparing to go to work.  Defendant said she had nowhere to go, and Kane agreed to let her stay in the house while he was at work.  He specifically told her to stay out of the bedroom.  When Kane returned from work later that day, defendant was gone.

                        Approximately a week later, Kane's bank notified him that certain checks had been written in excess of funds in his account.  Kane did not recognize the check numbers.  Upon checking his box of blank checks, which he kept in a drawer in the closet, he noticed that two books of checks were missing.

                        On April 10, 2003, defendant went to the apartment of Gary Kohler, with whom she had a past romantic relationship.  Defendant asked Kohler to cash three checks for her, totaling approximately $3500.  Kohler stated he would cash them at Kane's bank, but defendant refused, stating she wanted Kohler to deposit them in his account and withdraw money from the ATM.  Defendant also told Kohler that if he did not do as she asked, she would tell police he had raped her.  Kohler believed defendant because she had done similar things before, although he had never informed police about the threats. 

                        Kohler then agreed to cooperate, depositing the checks at his bank and then withdrawing $500 per day for seven days, giving the money to defendant.  After the checks bounced, Kohler went to police and made a report. 

                        According to defendant, it was Kohler who had stolen the checks while he was visiting defendant at Kane's home.  She denied taking the checks, giving them to Kohler, or receiving any cash from him. 

                        Following a jury trial, defendant was convicted of one count of petty theft with a prior (§ 666), and three counts of possession of an altered, completed check with the intent to defraud another.  (§ 475, subd. (c).)  Defendant admitted three prior prison terms under section 667.5, subdivision (b) and a strike prior under sections 667, subdivisions (b)-(i), and 1170.12. 

                        Defendant was sentenced to a total of eight years and four months.  For the petty theft charge, she was sentenced to four years, double the middle term of two years pursuant to section 667, subdivision (d)(e)(1) and section 1170.12, subdivisions (b) and (c)(1).  For the first of the section 475 counts, the court sentenced defendant consecutively to one-third the middle term of two years, doubled pursuant to section 667, subdivision (d)(e)(1) and section 1170.12, subdivisions (b) and (c)(1), for a total of 16 months.  Pursuant to section 654, the court stayed sentence on the two remaining counts of violating section 475.  Pursuant to section 667.5, subdivision (b), a total of three years was added for the one-year prior prison term enhancements.

II

DISCUSSION

                        The only error defendant asserts is that the court should have stayed sentence on count four, possession of an altered, completed check with the intent to defraud another.  (§ 475, subd. (c).)  Although the court did stay two of the three remaining counts of violating section 475 under section 654, defendant argues the remaining count should also have been stayed. 

                        The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his culpability.  (People v. Perez (1979) 23 Cal.3d 545, 550-556.)  It requires that an act or omission that is made punishable in different ways by different provisions of the Penal Code may be punished under either of such provisions, â€