P. v. Vaught

Filed 3/12/07 P. v. Vaught CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Gary J. Ferrari, Judge. Affirmed in part and modified in part.

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General of the State of California, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant Thomas Vaught was convicted, following a jury trial of one count of second degree robbery in violation of Penal Code section 211, one count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) and one count of second degree commercial burglary in violation of section 459. The jury found true the allegations that appellant personally used a firearm in the commission of the robbery within the meaning of section 12022.53, subdivision (b) and that a principal was armed in the commission of the burglary within the meaning of section 12022, subdivision (a)(1). The trial court found true the allegations that appellant had previously suffered a serious felony conviction within the meaning of section 667, subdivision (a), and three prior felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 ("the "three strikes" law) and had served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a term of 25 years to life in state prison for the robbery conviction pursuant to the three strikes law, plus a consecutive 10-year term for the section 12022.53 firearm enhancement and a 5-year term for the section 667, subdivision (a) enhancement. The trial court sentenced the remaining two counts concurrently.

Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to stay the sentence on the count 3 burglary conviction pursuant to section 654. Appellant also contends that the abstract of judgment should be corrected to reflect the correct statutory basis for the firearm enhancement to count 3. Respondent agrees with these contentions. We order the count 3 sentence stayed and the abstract of judgment corrected to reflect that the one-year enhancement for count 3 was imposed pursuant to section 12022, as set forth in more detail in our disposition. We affirm the judgment of conviction in all other respects.

Facts

Between 1:00 a.m. and 1:30 a.m. on September 12, 2005, appellant entered Eddie's Liquor Store in Long Beach, looked around and left. About two minutes later, appellant again entered the store, looked around and left. Both times, there were customers in the store.

Appellant entered the store a third time. No other customers were present. Appellant got an 18-pack of beer and brought it to the cashier, Carlos Lopez. Lopez told appellant the price of the beer. Appellant pulled out a gun and put it through an opening in the bulletproof glass enclosing the cash register. Appellant pointed the gun at Lopez and demanded "all the money." Lopez was afraid and fainted. Appellant left with the beer, but no money. Lopez called the police.

Long Beach Police Detective Leonard Washington went to the store, got a video surveillance tape, printed a photograph of the robber and circulated it to other police officers in the area.

About two months after the robbery, Lopez identified appellant from a six-pack photographic line-up prepared by Detective Washington.

In his defense, appellant presented the testimony of Long Beach Police Officer Josh Castro, who interviewed Lopez shortly after the robbery. Lopez described the robber as a male Hispanic in his mid-20's, with a moustache, wearing a white hat, white jacket with blue sleeves and blue jeans. Lopez said that he was not sure that he would be able to identify the person who robbed him.

Discussion

1. Section 654

Appellant contends that the trial court's imposition of a concurrent term for the burglary conviction violated section 654. Respondent agrees, and we agree as well.

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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

Section 654 applies when there is a single act which violates multiple criminal statutes and where an indivisible course of conduct violates more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, 1215; Neal v. State of California (1960) 55 Cal.2d 11, 19.)

Here, the trial court stated that counts 1 and 3 "arose from the same transaction." We agree. The burglary and robbery arose from the same indivisible course of conduct at the liquor store. There is no evidence that appellant entered the liquor store for any other reason than to take property from the store. The only person in the store was the cashier, so there was only one victim.

"It is settled law that section 654 bars punishment for both burglary and robbery where the sole purpose of the burglary was to effectuate the robbery." (People v. Smith (1985) 163 Cal.App.3d 908, 912; see also People v. Le (2006) 136 Cal.App.4th 925, 931 [section 654 barred multiple punishment where burglary and robbery were committed with the single intent of stealing whiskey and diapers from a drugstore]; People v. Guzman (1996) 45 Cal.App.4th 1023, 1027-1028 [where defendant was convicted of burglary and robbery for stealing and trying to escape with a motorcycle, robbery sentence had to be stayed pursuant to section 654].)

When the base term of a sentence is stayed pursuant to section 654, any attendant enhancement terms must also be stayed. (See People v. Bracamonte (2003) 106 Cal.App.4th 704, 709.) Thus, the one-year firearm enhancement to count 3 must be stayed as well as the burglary sentence.

2. Abstract of judgment

Appellant contends that the abstract of judgment should be corrected to reflect the proper statutory basis for the one-year firearm enhancement to count 3. Respondent agrees. We agree as well.

The trial court correctly imposed a one-year enhancement pursuant to section 12022, subdivision (a)(1) for count 3. The abstract of judgment erroneously shows that the one-year enhancement for count 3 was imposed pursuant to section 12022.53. Thus, the abstract of judgment must be amended to show the correct enhancement. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-187.)

Disposition

The sentence on count 3 is ordered stayed pursuant to section 654. The abstract of judgment is ordered corrected to show that the one-year enhancement for count 3 is imposed pursuant to section 12022, subdivision (a)(1). The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting these changes and to deliver a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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