Filed 8/23/18 P. v. Demedio CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed as modified.

Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

This is defendant and appellant Ronald Ralph Demedio’s second appeal. A jury found defendant guilty of first degree residential burglary (Pen. Code, § 459; count 1);[1] receiving stolen property (§ 496, subd. (a); count 2); and grand theft of a firearm (§ 487, subd. (d)(2); count 3). Defendant subsequently admitted that he had suffered five prior prison terms (§ 667.5, subd. (b)), three prior serious felony convictions (§ 667, subd. (a)), and three prior strike convictions (§§ 667, subds. (c), (e)(2), 1170.12, subd. (c)(2)(A)). As a result, in 2015, defendant was sentenced to a total indeterminate term of 25 years to life and a total determinate term of 13 years in state prison.

In his first appeal, defendant argued that his sentence of 25 years to life on count 2 was unauthorized and that the trial court erred in staying, rather than striking, two of his prior prison term enhancements. In a nonpublished opinion, we held that the trial court’s finding that defendant’s conviction for receiving stolen property as alleged in count 2 was a dual conviction was legally erroneous because defendant’s convictions for theft and receipt are based on separate property. Therefore, the trial court was required to impose a sentence on count 2 and its failure to do so was unauthorized. (People v. Demedio (Oct. 21, 2016, E063425) [nonpub. opn.] pp. 7-8 (Demedio I).) We also concluded that defendant was entitled to a second strike double determinate sentence on count 2 pursuant to the Reform Act (Proposition 36) because receiving stolen property is neither a serious nor violent felony offense. Accordingly, we vacated the sentence and remanded the matter for a new sentencing hearing. (Ibid.)

On remand, the trial court imposed an indeterminate term of 25 years to life on count 1, a determinate term of six years on count 2, and a stayed indeterminate term of 25 years to life on count 3. The court also struck two of the previously stayed one-year prior prison terms, and imposed the same sentences on the remaining enhancement allegations as it had in the initial sentencing. In total, defendant was sentenced to a determinate term of 19 years plus an indeterminate term of 25 years to life.

In this appeal, defendant argues that the trial court erred in imposing a consecutive term on count 2 because he could not be punished for both the burglary offense and the receiving stolen property offense pursuant to section 654, and therefore his sentence on count 2 should have been stayed. Because defendant committed the burglary and receiving stolen property offenses during a continuous course of conduct with a single intent, we agree with the parties and stay defendant’s sentence on count 2 pursuant to section 654. The judgment is therefore modified accordingly.

II

FACTUAL BACKGROUND[2]

In August 2012, the Bessey family resided in a motel in Hemet, California. On August 21, 2012, Mrs. Bessey left for work around 8:30 or 8:45 a.m., and was the last person to leave their room, No. 120. Before she left, she closed the window to their room, locked the door to the adjoining room, and shut the outside door. When Mrs. Bessey returned home from work around 4:00 or 4:30 p.m., she found the room in disarray and noticed some of their property was missing. She then left and returned to the room with her husband. Upon examination, they discovered that many of their items were missing, including a briefcase which contained a handgun registered to Mr. Bessey, a pearl necklace, pearl earrings, two men’s rings, and important family documents. Also missing were two laptops, a bag containing Mr. Bessey’s drawing materials, a digital camera, a flash drive, clothing, and various other items.

The Besseys reported the loss to the motel manager and to the police. Reviewing the motel’s surveillance video, the manager saw a man exit room 120 and then enter room 119 carrying an item which looked like a laptop or briefcase. The manager recognized the man in the video to be defendant.

Investigating the incident, Hemet Police Department Officer Derick Spoelstra spoke with the motel manager and reviewed the motel’s video surveillance. After reviewing the video, the officer contacted defendant in room 119. The officer asked defendant if he could search the room, and defendant consented. Officer Spoelstra found an empty briefcase under defendant’s bed, and defendant had a ring, two crosses, and a necklace with a cross in his pocket. Mrs. Bessey identified the items as some of the items that were taken from her room. Defendant initially denied being in the Bessey’s room, but later admitted he took the briefcase from room 120 and dumped the paperwork from the briefcase into a nearby dumpster.

III

DISCUSSION

Defendant contends that his sentence on count 2 for receiving stolen property should be stayed under section 654 because the burglary and receiving stolen property offenses were committed during an indivisible course of conduct with a single intent and objective. The People agree defendant’s sentence on count 2 should be stayed. We also agree.

As relevant, section 654, subdivision (a), provides: “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.” “ ‘Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]’ ” (People v. Galvez (2011) 195 Cal.App.4th 1253, 1262.) When it applies, “the accepted ‘procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.’ [Citations.]” (People v. Jones (2012) 54 Cal.4th 350, 353.)

“ ‘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 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.’ [Citation.]” (People v. Correa (2012) 54 Cal.4th 331, 336.) However, a defendant may be punished for each offense, “[i]f he [or she] entertained multiple criminal objectives which were independent of and not merely incidental to each other, . . . even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) Additionally, punishment for each offense is not barred by section 654, if the facts support a finding of similar, but consecutively held objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)

A defendant’s intent and objective are factual questions for the trial court. (People v. Green (1988) 200 Cal.App.3d 538, 543-544.) “A trial court’s [express or] implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)

In People v. Allen (1999) 21 Cal.4th 846 (Allen), 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. (Id. at p. 850.) The Supreme Court held the defendant was properly convicted of both burglary and receiving stolen property, but also indicated it approved of the trial court’s 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, as in Allen, the property taken in the burglary was the same property that was the basis of the receiving stolen property charge. In addition, the burglary and receiving stolen property offenses occurred simultaneously or 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].) The circumstances in this case showed that defendant’s intent and objective in committing the burglary and the receiving stolen property was one and the same: to obtain the stolen property. Defendant’s intent in committing the burglary was to obtain the stolen property, one and the same objective. Thus, defendant’s sentence on count 2 for receiving stolen property must be stayed pursuant to section 654.

IV

DISPOSITION

The six-year consecutive sentence on count 2 is stayed. The trial court is directed to prepare an amended abstract of judgment and minute order of the sentencing hearing staying the sentence on count 2, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

SLOUGH

J.