Filed 12/14/18 P. v. Gilson CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

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A jury found defendant Adam Walker Gilson IV guilty of conspiracy to commit second degree burglary along with attempted second degree burglary. On appeal, defendant contends the trial court erred in failing to stay execution of sentence for the attempted burglary count under Penal Code section 654.[1] The People agree, and so do we.

I. BACKGROUND

The victims, who live in the Bay Area, owned a ranch in Ione, California. The ranch had an airplane hangar and housed many collectables. When the victims visited in late July 2015, they noticed doors were open and deadbolt locks had been cut. Three unfueled motorcycles, however, remained in the barn.

That day and the next, the victims installed new locks and repaired the hangar. They then returned to the Bay Area, leaving everything secured.

When they came back the next day, the doors were again open, and various things were missing including a quad track. They called the police. The police put a GPS tracker in one of the motorcycles.

That evening, after installing better locks, the victims again left for the Bay Area. They had been driving for about 40 minutes when a neighbor called. The neighbor saw someone on the property and asked if anyone was supposed to be there. The victims drove back to the ranch.

When they arrived, the police were there. The police found a motorcycle helmet, gas cans, and jumper cables that did not belong to the victims. Also, a doorknob had been broken off the barn.

That evening, a responding officer spotted defendant and a coconspirator walking from the ranch. Later, items stolen from the ranch were found in defendant’s home.

A jury found defendant guilty of conspiracy to commit second degree burglary (§ 182, subd. (a)) and attempted second degree burglary (§ 664/459). The trial court imposed a three-year upper term for conspiracy to commit burglary and a concurrent 18-month term (one third the middle) for attempted burglary.[2]

II. DISCUSSION

On appeal, defendant contends the trial court erred in not staying execution of sentence for his attempted burglary count under section 654. He argues the attempted burglary conviction and the conspiracy conviction shared the same objective. The People concede error, and we agree.

Though a person may be convicted of more than one crime for the same act, section 654 proscribes multiple punishments for the same act. (§§ 654, 954; People v. Correa (2012) 54 Cal.4th 331, 337 (Correa).) An “act” can include a “course of conduct.” (Id. at p. 335.)

When a course of conduct causes multiple offenses—each capable of being independently committed—section 654’s application turns on whether each conviction was based on a separate and divisible transaction. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Whether a course of conduct is divisible turns on the defendant’s intent and objective. (Ibid.) “ ‘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.’ ” (Correa, supra, 54 Cal.4th at p. 336.)

Here, the two convictions shared the same objective. As the parties note, the amended information alleged three conspiratorial acts underlying the conspiracy count: (1) travelling to the ranch, (2) bringing motorcycle helmets, gas, and jumper cables, and (3) breaking the handle off the barn door. The overt objective of those acts was to burglarize the ranch. That was also the objective of the attempted burglary. Accordingly, execution of punishment on the attempted burglary count must be stayed under section 654.

III. DISPOSITION

The judgment is modified to impose a three-year upper term on count II, attempted second degree burglary (§ 664/459). Execution of that term is stayed under section 654. The trial court is directed to prepare an amended abstract of judgment reflecting that change. As modified, the judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

HULL, Acting P. J.

/S/

ROBIE, J.