Opinion
D072963
05-04-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MARTIN GARRETT, Defendant and Appellant.
Law Offices of Kent D. Young and Kent D. Young, 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, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD272355) APPEAL from a judgment of the Superior Court of San Diego County, Laura H. Parsky, Judge. Affirmed as modified. Law Offices of Kent D. Young and Kent D. Young, 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, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Michael Martin Garrett of residential burglary of the inhabited portion of a building (Pen. Code, §§ 459, 460, subd. (a); count 1), evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 2), unlawfully taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 3), resisting an officer (§ 148, subd. (a)(1); count 5), and hit and run driving (Veh. Code, § 20002, subd. (a); count 6). The trial court sentenced Garrett to a determinate sentence of four years eight months that consisted of the following individual sentences: four years on count 1; eight months on count 2, to run consecutively with count 1; three years on count 3, to run concurrently with count 1; and 180 days each for counts 5 and 6, both to run concurrently with count 1.
Undesignated statutory references are to the Penal Code.
Garrett appeals, contending the trial court erred by failing to stay his sentence on count 3 under section 654 because the unlawful taking or driving of the vehicle was the felony underlying the residential burglary in count 1. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
From January through April 2017, Garrett lived with Robert R., a former boyfriend of Garrett's mother. On June 4, 2017, Garrett broke into Robert's home through a locked sliding door. Garrett entered Robert's garage, where Robert kept a key to his car on a pool table. Garrett took only the car key from the home and drove off with the car, which Robert kept parked on the street in front of the house.
Four days later on June 8, 2017, a San Diego police officer on patrol in Ocean Beach spotted the stolen car in a beach parking lot. When the officer exited his vehicle and approached the car, Garrett drove off. Garrett led the officer and additional San Diego police units on a high-speed chase through residential streets across several controlled intersections without stopping. The car chase ended when Garrett collided with a parked vehicle and fled on foot into a nearby canyon. With the assistance of a police helicopter, the police located and arrested Garrett.
DISCUSSION
A. Additional Background
During closing argument, the People instructed the jury to consider the following circumstantial evidence for residential burglary of the inhabited portion of a building:
"Does anybody randomly just know how to open this door, or is it someone that lives there that maybe had to get in before when they left their keys out or talked to [Robert] about knowing how to get in this door? [¶] And when they go in there, know exactly where the keys are. You go in there to get a car—and there's the confusion between me and [Robert] while I was doing the direct where I couldn't understand. We talked about when people know their keys are there. I didn't understand the pool table was in the garage. But whoever went there, whoever went in that house went straight there. They knew exactly what they were going for. Remember, the car wasn't in the garage; so it wasn't just like, oh, let's go into the garage and you happen to see a car. The car was out on the street. So whoever went in there knew exactly where to go and knew exactly what they were looking for; specifically, somebody else that used to live there."
The People further argued the circumstantial evidence showed Garrett's intent to commit burglary by stating the following:
"Nothing else from any other room was missing. So somebody is going to go through all of the effort and all of the danger and all whatever to break into a house and they didn't take anything. They
didn't go look for jewelry, they didn't go look for cash, they didn't grab the T.V[.], didn't grab the iPad, didn't go get a computer. They set off the alarm from a back door going in, and they set off the garage sensor because they knew exactly where they were going. They didn't take anything else. And they knew the car keys were in the garage. That's why they went straight there. [¶] What other random burglar is going to pick this house, go into this place, not take anything else, not even look for anything else, but happen to go find car keys in the garage? I don't know about you, but that's not where I keep my car keys. It had to be someone going in to steal a car that knows those car keys are sitting on that pool table. Who would do that? Somebody who has lived there before."
During the People's closing argument for unlawfully taking or driving a vehicle, the People advised the jury that it could find Garrett guilty for either taking the vehicle on June 4 or driving a stolen vehicle "on or about" June 8 because Garrett was still driving the car on June 8. The People informed the jury that "even if you don't find that [Garrett took the vehicle from Robert's home], driving a vehicle that was stolen can count as well. We know he did this because we just went through the entire chase of a car that we know was stolen. So, again, I would argue that he took that vehicle. But even if you somehow don't agree with that, he surely drove it. There's no question about that." The People argued the remaining elements necessary for unlawfully taking or driving a vehicle by stating that Garrett "took or drove someone's vehicle without consent" because he never had permission to drive the vehicle and that he "intended to deprive the owner of possession for any period of time, move it any distance, however small."
In response to the People's arguments, defense counsel asserted that the People failed to prove beyond a reasonable doubt that Garrett committed the burglary because the only evidence connecting him to the burglary was Garrett driving the stolen car on June 8. Additionally, defense counsel maintained that the police erred by failing to investigate or entertain the possibility of other burglary suspects, especially given Robert's inherent bias against Garrett from their troubled past.
In recognition of the rule that a defendant cannot be convicted of stealing and receiving the same property (People v. Jaramillo (1976) 16 Cal.3d 752, 757), the trial court instructed the jury with its version of CALCRIM No. 3516 for handling the unlawful taking or driving of a vehicle and receiving a stolen vehicle charges (§ 496d; count 4):
"The defendant is charged in Count 3 with unlawfully taking or driving a vehicle and in Count 4 with receiving a stolen vehicle. You must first decide whether the defendant is guilty of unlawfully taking a vehicle. If you find the defendant guilty of unlawfully taking a vehicle, you must return the verdict form for receiving a stolen vehicle unsigned. If you find the defendant not guilty of unlawfully taking a vehicle you must then decide whether the defendant is guilty of receiving a stolen vehicle."
During deliberation, the jury requested a clarification on the charge description on the verdict form for count 3, which initially stated, "UNLAWFUL TAKE AND DRIVE A VEHICLE." In response, the court amended the description to "UNLAWFUL TAKE AND/OR DRIVE A VEHICLE." The jury subsequently convicted Garrett of counts 1 through 3, 5 and 6. Because the jury relied on the court's instruction and returned the verdict form for count 4 unsigned, the trial court dismissed count 4, receiving a stolen vehicle, "based on the prohibition against dual conviction."
At sentencing, the trial court noted it had reviewed the probation officer's report, which recommended a determinate term of six years eight months and the running of counts 1 and 2 consecutively and count 3 concurrently. After considering the amount of time Garrett kept the vehicle, his criminal history, and his recent completion of parole, the trial court imposed the upper term sentence of three years on count 3 to run concurrently with counts 1 and 2. Garrett's counsel never raised any sentencing issues under section 654 and the trial court likewise did not note any concerns regarding section 654's applicability.
B. Analysis
Garrett contends the trial court violated section 654, subdivision (a) when it failed to stay his sentence on count 3 for unlawfully taking or driving a vehicle because the taking of the vehicle in count 3 was the felony underlying the residential burglary in count 1. More specifically, Garrett argues the court treated the unlawful taking or driving count as a theft offense under Vehicle Code section 10851, subdivision (a), and the theft was complete when he drove off with the car. The People argue the court properly imposed the sentence for count 3 because substantial evidence showed that Garrett's post-theft driving of the vehicle "was informed by a different criminal objective from the theft underlying the burglary."
Section 654, subdivision (a) provides in part: "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 punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza).) Ultimately, the purpose of section 654 "is to insure that a defendant's punishment will be commensurate with his culpability." (People v. Perez (1979) 23 Cal.3d 545, 550-551 (Perez).)
" '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.' " (People v. Rodriguez (2009) 47 Cal.4th 501, 507 (Rodriguez); Neal v. State of California (1960) 55 Cal.2d 11, 19.) However, "if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (Perez, supra, 23 Cal.3d at pp. 551-552.)
"Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson (2016) 1 Cal.5th 269, 354.) Because the trial court's determination on " '[w]hether the defendant held "multiple criminal objectives is primarily a question of fact for the trial court, [that] finding will be upheld on appeal if there is any substantial evidence to support it." ' " (People v. McGuire (1993) 14 Cal.App.4th 687, 698.) Where a defendant suffers two convictions, one of which is precluded, section 654 requires the sentence for the conviction with the longest potential term of imprisonment "to be imposed, and the other imposed and then stayed." (Deloza, supra, 18 Cal.4th at p. 592, italics added.)
Although Garrett failed to object during sentencing to the imposition of the sentence for count 3, section 654 errors "are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal." (Perez, supra, 23 Cal.3d at p. 549, fn. 3.)
Here, the jury found Garrett guilty of residential burglary (count 1) and "unlawful tak[ing] and/or driv[ing] a vehicle (count 3). To find Garrett guilty of count 1, the jury needed to conclude that he entered an inhabited building with the intent to commit theft. (CALCRIM Nos. 1700, 1701.) To find Garrett guilty of count 3, the jury had to find that he "took or drove someone else's vehicle without the owner's consent" and, when he did so, he "intended to deprive the owner of possession or ownership of the vehicle for any period of time." (CALCRIM No. 1820.) Thus, the ultimate question on appeal is whether the substantial evidence compelled a finding that Garrett's intent and objective in committing the residential burglary in count 1 was independent of and not merely incidental to the unlawful taking or driving of Robert's car in count 3.
Citing People v. Centers (1999) 73 Cal.App.4th 84, People v. Islas (2012) 210 Cal.App.4th 116, and People v. Bernal (1994) 22 Cal.App.4th 1455, Garrett contends that section 654 generally prohibits multiple punishment for both burglary and the underlying intended felony. Although the People concede this point, the People maintain that substantial evidence supports the proposition that Garrett had multiple criminal objectives that extended beyond the theft. More specifically, the People argue that although the taking of the car under Vehicle Code section 10851 was the felony underlying the burglary on June 4, Garrett entertained a separate criminal objective when he violated Vehicle Code section 10851 by driving the car through and on June 8. We disagree.
The substantial evidence shows that both offenses—the burglary and the taking of the vehicle—were the product of a limited intent and objective; i.e., to steal Robert's car. Garrett broke into Robert's home and, once inside, entered only the garage to steal the key to Robert's car. Garrett then left the home without taking any other items and drove off with the car. Thus, substantial evidence demonstrates a continuous course of conduct in which Garrett burglarized Robert's home for the specific purpose of taking the car key and stealing the vehicle.
To prove that Garrett committed the burglary, the People's closing argument stressed the absence of any evidence of the burglar possessing some alternative intent or objective other than to steal the car. The People specifically argued Garrett "knew exactly where [he was going]," "didn't take anything else," and went straight into the garage for the car keys. The People further argued the locations of both the key—on a pool table in the garage—and the car—on the street in the front of the house and not in the garage—were not easily discerned and proved that Garrett committed the burglary. Likewise, that argument further shows Garrett's singular intent and objective to enter the house solely to access the garage to steal the key to the car parked out front.
By returning the unsigned verdict form for count 4 for receiving stolen property, the jury indicated that it found Garrett guilty of unlawfully taking the vehicle. Thus, the People's argument and supporting evidence convinced the jury that the vehicle theft was the object of the burglary. In People v. McKinzie (2012) 54 Cal.4th 1302 (McKinzie), the Attorney General conceded on appeal the "defendant could not be punished for both carjacking and kidnapping for robbery because the prosecutor argued to the jury that the victim's car was the object of the robbery." (Id. at p. 1369.) Accordingly, the California Supreme Court held that under section 654, the trial court should have stayed the sentence for the carjacking count. (McKinzie, at p. 1369.)
Conversely, in the present case the People refuse to concede there was a singular objective and instead assert that substantial evidence demonstrates the existence of multiple criminal objectives. Nevertheless, the People are unable to cite any evidence from trial of a separate post-theft driving intent or objective. The only evidence of intent or objective the People cite is from the probation report, which noted that Garrett's mother told Robert that Garrett "was acting erratically and was asking everyone he knew for money or a vehicle so he could leave the state and got [sic] to Iowa or Georgia." The People then claim that Garrett "developed a new, separate criminal objective to drive the car west, to the Ocean Beach area of San Diego County." However, driving to Iowa, Georgia, or Ocean Beach does not represent a separate criminal intent. To the contrary, driving to those destinations is incidental to Garrett's original criminal intent and objective to steal and use Robert's vehicle.
To be sure, the car chase did provide overwhelming evidence of Garrett's violation of Vehicle Code section 10851 by driving the vehicle four days after the vehicle theft. Nonetheless, " '[i]f 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.' " (Rodriguez, supra, 47 Cal.4th at 507.) There was no evidence in the record to show that Garrett harbored multiple criminal intents or objectives, independent of each other, when he broke into Robert's home to steal Robert's vehicle. Accordingly, to punish Garrett separately for both the theft and the use of the stolen vehicle would defeat the purpose of section 654 "to insure that a defendant's punishment will be commensurate with his culpability." (Perez, supra, 23 Cal.3d at 550-551.)
DISPOSITION
The judgment is modified to stay the sentence for count 3 pursuant to section 654. As modified, the judgment is affirmed. The trial court is to prepare an amended abstract of judgment reflecting this modification and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.