Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM0401, James LaPorte, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
INTRODUCTION
Appellant Rocky Lee Hatley was convicted of 13 offenses arising from a string of residential burglaries and car thefts committed in January 2007. He was arrested shortly after he drove away from the scene of a car burglary, and his van contained numerous items stolen during the other burglaries and car thefts. He was convicted of multiple counts of first and second degree burglary, receiving stolen property, and evading an officer, and he was sentenced to an aggregate term of 12 years four months in prison.
On appeal, appellant contends the court should have stayed the consecutive sentences imposed for the residential and vehicular burglaries, because the offenses were committed during an indivisible course of conduct and incident to the single objective of stealing from the particular victims. He also contends the court’s victim restitution order must be vacated because it constituted “punishment” which should have been decided upon by the jury pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We will affirm.
FACTS
The multiple convictions in this case were based upon a series of burglaries and thefts committed over a very short period of time. We will address each incident and the charges based upon those offenses.
Chrisman/Ens Burglary
The Segura family lived on East Moffat in Hanford. Sometime after 2:00 a.m. on January 17, 2007, Mrs. Segura was asleep on her living room couch when she heard sounds from her backyard. She looked through her sliding glass door, and saw the silhouette of a person who had entered the backyard and was trying to unlock the sliding glass door. She woke up her husband and called the police. Mr. Segura went outside and determined his house was secure. As he walked around his property, he heard two voices and the sound of a car take off.
After Mr. Segura checked his own property, he looked at the vacant house next door, which had been occupied by Charles Chrisman and Kim Ens, and noticed the garage door was fully open. Chrisman and his family had recently moved out, but they had locked and secured the residence and garage because their property was still inside.
Later that morning, Chrisman and Ens arrived at their former residence and did not find any evidence of a forced entry. However, numerous items had been stolen from the garage and living room, including various tools, a television, a stereo and speakers, and a 35-millimeter Canon camera and film.
Vargas/Estrella Burglary
Michelle Estrella lived on East Terrace in Hanford with her fiancé, Hugo Ramirez, and his brother, Jose Vargas. Their house was near East Moffat Street. On January 17, 2007, the family went to bed around 2:00 a.m.
Around 10:00 a.m. on January 17, 2007, Mr. Vargas could not find his truck keys in their regular spot in the kitchen. Mr. Vargas went outside to check on his Chevrolet Silverado truck, which he had locked and parked in front of the house. The truck was unlocked, the passenger door was ajar, and the truck’s interior had been stripped of four television monitors that had been installed in the headrests, an in-dash radio, speakers, and an iPod charger and connector. The stereo and monitor wires had been neatly cut. Mr. Vargas found a screwdriver on the driver’s side floorboard which did not belong to him.
Mr. Vargas determined someone got into the house by jumping over a locked backyard gate, and entering the garage and house through unlocked doors. Their property in the garage and living room had been disturbed and several things had been stolen, including Mr. Vargas’s white baseball cap, Mr. Vargas’s truck keys on a Dallas Cowboys lanyard, Ms. Estrella’s car keys, a blue “moccasin” key chain, a PlayStation 2, the remote controls and assorted games, and some DVDs.
Ms. Estrella had locked and parked her Cadillac DeVille in the garage. Her car was still in the garage, but the car was unlocked and the Panasonic stereo, amplifier, large JVC speaker box, and CDs were gone. The wires for the stereo and speakers had been neatly cut with a sharp instrument. Ms. Estrella’s purse was still in the car but her wallet, identification, Bank of America ATM card, and Mervyn’s credit card were gone.
Based on this incident, appellant was charged and convicted of count I, first degree burglary of the Estrella/Vargas residence (Pen. Code, § 459), with the special allegation found true that another person, other than an accomplice, was present in the residence during the commission of the offense (§ 667.5, subd. (c)); count II, second degree burglary of Mr. Vargas’s truck (§ 459); and count III, receiving stolen property (§ 496, subd. (a)), based on appellant’s possession of numerous items stolen from Mr. Vargas and Ms. Estrella.
All further statutory citations are to the Penal Code unless otherwise indicated.
As we will discuss in issue I, post, appellant received consecutive sentences for counts I and II, the residential and vehicular burglaries. He argues the term for count II should have been stayed under section 654 because the vehicular burglary was based on the single objective of stealing from the residents of the house.
Appellant’s parole violation
Around 5:30 p.m. on January 18, 2007, Officer Dale Williams was on patrol near Coe Park in Hanford, an area known for a high level of assaults, narcotics transactions, and stolen property sales. Appellant and a group of people were standing at the back of a white van. Appellant appeared to be showing them something. As Officer Williams approached, appellant closed the van’s doors and moved away from the vehicle, and the other people started to leave.
Officers Williams asked appellant if he was on probation or parole. Appellant said he was on parole. Williams asked if the van belonged to him and whether there was anything illegal in it. Appellant said the van belonged to his cousin, he did not have access to it, and he did not know what was inside.
Officer Williams searched appellant pursuant to his parole conditions, found the van’s keys, searched the vehicle, and found two marijuana pipes, a marijuana cigarette, and a marijuana grinder. The van also contained a television monitor, a Panasonic car stereo, an amplifier, a large speaker box, a Canon 35-millimeter camera, and miscellaneous tools. The wires for the Panasonic stereo and television monitor had been cut.
Officer Williams checked the serial numbers and determined none of the items had been reported stolen. Appellant was taken into custody on a parole violation for possession of marijuana and drug paraphernalia. During the booking search, he was found in possession of Ms. Estrella’s Mervyns credit card and her Bank of America ATM card.
Shortly after the burglary at Estrella’s house, someone used her Bank of America card at a gas station. The gas station’s surveillance cameras showed appellant getting out of a white Ford van and using the ATM card. Based on this incident, appellant was charged and convicted of count XIII, misdemeanor unlawful use of an ATM card (§ 484g, subd. (a)).
On January 26, 2007, the parole hold was dropped and appellant was released from custody.
Venturella Burglary
Cecil and Catherine Venturella lived with their children on Coolidge Circle in Hanford. On January 28, 2007, they went to bed around 12:30 a.m. Around 4:30 a.m. on January 28, 2007, their young son was crying and upset, and went into his parents’ bedroom. Mrs. Venturella thought it was very unusual for him to act that way. As she walked out of her bedroom to care for him, she kicked over some items which had been placed against the door. She thought it was strange, but she took her son back to his room, stayed with him for about 30 minutes, and then she went back to bed.
Mr. Venturella admitted he was convicted of felony receiving stolen property in 1990.
Later on the morning of January 28, 2007, the Venturellas were still asleep when their neighbor called and said that a purse and keys were on the driveway by the mailbox. Mr. Venturella pushed open the bedroom door and kicked over several jars and bottles which had been placed against the door.
Mrs. Venturella had locked and parked her Mitsubishi Montero in front of the house, left a black satchel in the car, and placed her keys in the house the previous night. Mrs. Venturella’s car was still there but her satchel, car keys, car ashtray, and loose change were scattered on the driveway. The car’s glove box and center console had been ransacked.
Mr. Venturella determined someone got into the house by entering a side gate and using a pry bar to open a locked door into the garage, which led into the house. They discovered their possessions had been moved around and disturbed in the house, and several items had been taken from the kitchen, living room, and master bedroom, including the X-Box game station, the PlayStation 2, game controllers and assorted games, a remote control model truck, a.17 caliber Marlin rifle with ammunition, a Samsung video camera, a portable Toshiba DVD player, assorted DVDs, a digital camera, a camera tripod, and two-way radios. Nothing had been taken from their children’s bedrooms.
Mr. Venturella could not find his 20-gauge shotgun, which he kept in the master bedroom, and thought it had been taken. Several days later, however, he found the rifle and determined someone moved it to a closet.
Mr. Venturella’s Ford F-250 truck had been locked and parked in front of the house. The truck keys had been taken from the house, the glove box ransacked, and a pocketknife and the Magellan GPS portable navigation system were stolen.
Based on this incident, appellant was charged and convicted of count IV, first degree burglary of the Venturellas’ residence, with the special allegation found true that another person, other than an accomplice, was present in the residence during the offense; count V, second degree burglary of Mrs. Venturella’s car; count VI, second degree burglary of Mr. Venturella’s truck; and count X, grand theft of Mr. Venturella’s Marlin rifle (§ 487, subd. (d)(2)), with all offenses occurring on January 28, 2007. He was also found in possession of some of the Venturellas’ stolen property and convicted of count III, receiving stolen property.
As we will discuss in issue I, post, appellant again contends consecutive sentences should not have been imposed for counts IV, V, and VI, the residential and vehicular burglaries, because the offenses were part of an indivisible course of conduct.
Appellant was charged with count XI, attempted grand theft of Mr. Venturella’s shotgun (§ § 664, 487, subd. (d)(2)), based on the movement of the gun within the house, but he was found not guilty of the offense.
The second burglary of Mr. Venturella’s truck
Mr. Venturella was concerned the culprits were going to return because they had his truck keys, but the police assured him that was highly unlikely. Mr. Venturella used his spare keys, parked his truck in front of the garage, and disconnected the battery. On the night after the burglary, he slept in the living room so he could hear any noise from the front of the house.
Around 12:45 a.m. on January 29, 2007, Mr. Venturella heard noise from the front driveway. He looked outside and saw a man walk away from his truck’s passenger door and get into the passenger door of a white Ford van. Mr. Venturella later identified this man as appellant. Someone else was driving the van but Mr. Venturella could not see that person’s face.
Mr. Venturella testified the van slowly drove to another house at the end of the street. Appellant got out of the van, and used a hanger or a “slim jim” and tried to break into a Ford Bronco parked in front of a neighbor’s house. Appellant realized Mr. Venturella was watching him, ran back to the van, and got into the driver’s seat. The van picked up speed and headed straight toward Mr. Venturella, then turned out of the neighborhood. Mr. Venturella told his wife to call the police.
Mr. Venturella’s truck was unlocked and it had been moved about three feet down his driveway. The truck’s CD holder, cassette tapes, a knife, a Diablo sports tuner, and the control switch for the truck’s winch were gone.
Based on this incident, appellant was charged and convicted of count VII, second degree burglary of Mr. Venturella’s truck on January 29, 2007. He was charged with count VIII, vehicle theft of Mr. Venturella’s truck on January 29, 2007 (Veh. Code, § 10851, subd. (a)), based on the movement of the truck on the driveway, but he was found not guilty of that offense.
Pursuit and arrest of appellant
At 12:46 a.m., several units from the Hanford Police Department responded to Mr. Venturella’s call, located a white Ford van driving in the neighborhood, and attempted to conduct a traffic stop. The white van failed to stop and led the officers on a chase through residential neighborhoods, as it crossed over center lines, ran through stop signs, turned at high rates of speed, and nearly skidded out of control. An officer used his squad car to block an intersection, but the van swerved around it and continued to travel at a high rate of speed. As the chase continued, the van slowed down, someone jumped out of the driver’s side, and the van crashed into a parked car.
The officers continued their pursuit on foot as the suspect, later identified as appellant, ran through yards and jumped fences, and ignored the officers’ orders to stop. Appellant was trying to jump a fence when the officers caught up with him. There was a brief struggle as they dragged him off the fence. Appellant continued to resist as the officers placed him in handcuffs. Appellant was wearing a white baseball cap similar to the one stolen from Vargas’s house.
Based on the pursuit, appellant was charged and convicted of count IX, felony evading a police officer (Veh. Code, § 2800.2, subd. (a)); count XIV, misdemeanor resisting arrest (§ 148, subd. (a)); and count XV, misdemeanor hit and run of the parked car (Veh. Code, § 20002(a)).
The recovery of some of the stolen property
The police searched the white Ford van and found a small flashlight and a pair of black knit gloves on the front seat. The van’s keys were attached to Mr. Vargas’s Dallas Cowboys lanyard, and Ms. Estrella’s keys and distinctive “moccasin” key chain were in the van.
Ms. Estrella’s Panasonic stereo and her large JVC speaker box, and the Venturellas’ portable DVD player and their GPS device were installed in the van. Appellant’s name was programmed into the GPS device, and showed that the van had traveled from Hanford to Visalia and the Santa Barbara area. Mr. Venturella’s.17 caliber Marlin rifle was not found, but there were two spent.17 caliber shells in the van.
The police also found the Canon 35-millimeter camera and film taken from Chrisman’s house. The developed photographs depicted Chrisman’s family, and also showed appellant and Shanice Joseph, his common-law wife, appellant and his friends drinking beer and throwing Sureno gang signs, and appellant wearing a white baseball cap, similar to the one stolen from Mr. Vargas.
The Venturellas’ video camera was in the van, and the videotape showed appellant and his friends driving to the coast, smoking marijuana, throwing Sureno gang signs, hanging out at Pismo Beach, and using the Venturellas’ GPS device and Ms. Estrella’s Panasonic stereo in the van.
Ms. Joseph testified appellant was not employed, but his friends frequently gave him various electronic items to sell for them. The police conducted a parole search of the residence where appellant lived with Ms. Joseph, and a recreational vehicle parked on the property which he regularly used, and found an ATM card for Jennifer Luis and Ms. Estrella’s DVDs. The police also recovered numerous electronic items stolen from the homes and vehicles of Ms. Estrella, Mr. Vargas, and the Venturellas, but many other stolen items were never recovered.
Appellant was charged and convicted of count III, receiving stolen property (§ 496, subd. (a)), based on his possession of the property stolen from Mr. Vargas, Ms. Estrella, and the Venturellas. Jennifer Luis testified her Union Bank debit card had been stolen from her vehicle. Appellant was charged and convicted of count XII, felony receiving stolen property, Luis’s bank card.
Appellant’s statement
Appellant was injured when he struggled with the officers as they pulled him off the fence. He was taken to the hospital for treatment. Investigator Brian Toppan interviewed appellant at the hospital, advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant agreed to answer questions.
Appellant said he evaded the officers because he was on parole and driving without a license. Toppan asked about the van and its contents. Appellant said he shared the van with his cousin. Appellant said his mother gave him the DVD player installed in the van, a relative gave him the PlayStation, and he bought the video camera from Wal-Mart and the 35-millimeter camera from someone on the street. Appellant said Miguel Segurs gave him the other items, and Segurs kept lots of things in the trunk of a purple Ford Galaxy that was parked at Segurs’ house.
Toppan advised appellant that most of the property in the van had been stolen. Appellant said that they would not find his fingerprints or footprints in any homes; no one saw him inside any homes; and he could not be charged with burglary. Appellant added that he had been in trouble before for receiving stolen property, “which is about to happen again.” Toppan replied that he never mentioned any houses. Appellant claimed “the fifth” and the interview ended.
When appellant was apprehended, he was climbing a fence which led into the backyard of a residence occupied by Miguel Segurs and his mother. After the interview with appellant, Investigator Toppan went back to Segurs’ house, searched the house and a purple car parked in front, and did not find any stolen property.
Appellant was convicted of 13 counts as described ante, he admitted two prior prison term enhancements (§ 667.5, subd. (b)), and he was sentenced to an aggregate term of 12 years four months in state prison.
DISCUSSION
I. Consecutive terms for first and second degree burglaries.
Appellant contends the court improperly imposed consecutive sentences for counts I and II, first and second degree burglaries of the Vargas/Estrella house and Mr. Vargas’s truck, and counts IV, V, and VI, the first and second degree burglaries of the Venturellas’ house and their two cars. Appellant contends the terms for the vehicular burglaries should have been stayed under section 654 because the offenses were committed during an indivisible course of conduct, on the same night, and with the single intent and objective of stealing from the residents.
A. Background.
The probation report stated appellant was subject to consecutive sentences for counts I and IV, the first degree burglaries of the Estrella/Vargas and Venturella residences, and counts II, V, and VI, the second degree burglaries of their vehicles, because the crimes and their objectives were independent of each other, and the crimes were committed at separate times and places. The probation report stated the terms imposed for count III, receiving stolen property of Ms. Estrella, Mr. Vargas, and the Venturellas, and count X, grand theft of Mr. Venturella’s rifle, should be stayed under section 654 because the offenses were not independent of, or comprised separate objectives, of the first degree burglaries of the Estrella/Vargas and Venturella residences. There were multiple aggravating circumstances and no mitigating circumstances.
At the sentencing hearing, appellant requested imposition of mitigated and concurrent terms, but he did not specifically address whether section 654 should be applied to any particular terms.
Appellant’s failure to raise a section 654 objection does not prevent this court from addressing this issue on appeal, since the failure to stay a sentence under section 654 may result in an unauthorized term. (See, e.g., People v. Le (2006) 136 Cal.App.4th 925, 931.)
The court followed the probation report’s recommendation and selected the aggravated terms because the burglaries were committed in homes “where there were young children and all the offenses here showed criminal sophistication, one of the thefts involved great monetary value, he’s personally engaged in violent conduct and his convictions are numerous and increasingly serious.”
The court imposed an aggregate term of 12 years four months as follows: count I, first degree burglary of the Estrella/Vargas residence, the upper term of six years, plus a consecutive one year term for the section 667.5, subdivision (b) enhancement; and count IV, first degree burglary of the Venturella residence, a consecutive term of 16 months (one-third the midterm).
The court imposed consecutive sentences of eight months (one-third the midterm) for count II, second degree burglary of Mr. Vargas’s truck; count V, second degree burglary of Mrs. Venturella’s car; count VI, second degree burglary of Mr. Venturella’s truck; count VII, second degree burglary of Mr. Venturella’s truck on the second night, count IX, evading an officer, and count XII, receiving stolen property, Jennifer Luis’s bank card.
The court stayed the terms imposed for count III, receiving stolen property, and count X, grand theft of Mr. Venturella’s rifle, pursuant to section 654; and imposed concurrent terms for the misdemeanor offenses of count XIV, resisting arrest, and count XV, misdemeanor hit and run.
B. Analysis.
Section 654, subdivision (a) states: “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.)
“Whether a course of 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. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Martin (2005) 133 Cal.App.4th 776, 781.)
In addition, “‘a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]’ [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) “Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted ‘one indivisible course of conduct’ for purposes of section 654. If the offenses were committed on different occasions, they may be punished separately.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.)
“Whether multiple convictions are part of an indivisible transaction is primarily a question of fact. [Citation.] We review such a finding under the substantial evidence test [citation]; we consider the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Martin, supra, 133 Cal.App.4th at p. 781.) Where, as in this case, the trial court imposes consecutive sentences, it impliedly finds the defendant entertained multiple criminal objectives and we must determined whether such a finding is supported by substantial evidence. (People v. Gaio, supra, 81 Cal.App.4th at p. 935.)
Appellant contends that consecutive sentences were improperly imposed for the Estrella/Vargas residential burglary (count I), and the burglary of Mr. Vargas’s truck (count II), since both offenses occurred on the same night, he entered the house with the intent to steal, he stole Mr. Vargas’s truck keys from the house, and he used the keys to burglarize the truck. He similarly contends consecutive sentences should not have been imposed for the Venturella residential burglary (count IV), and the vehicular burglaries of their vehicles on the same night (counts V and VI) because all the offenses were committed with the same intent to steal from the residents, he stole the keys from the house, and he used the keys to burglarize their vehicles.
Appellant does not challenge the consecutive term imposed for count VII, second degree burglary of Mr. Venturella’s truck committed on January 29, 2007, the night after the residential burglary, since appellant left and then returned the second night to break into the truck a second time.
Appellant’s section 654 argument is based on People v. Bauer (1969) 1 Cal.3d 368 (Bauer), where the defendant and his accomplice entered a residence shared by three victims, drew weapons, restrained the victims, ransacked the house, loaded the stolen goods into the car of one of the victims, and drove away. (Id. at p. 372.) The court imposed concurrent terms for the first degree robbery and auto theft convictions, but he was not sentenced on the burglary and grand theft convictions. (Id. at pp. 371-372, 375.)
Bauer held “the taking of several items during the course of a robbery may not be used to furnish the basis for separate sentences.” (Bauer, supra, 1 Cal.3d at pp. 376-377.) Section 654 prohibited separate sentences because “where a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible.” (Id. at p. 377.)
“The fact that one crime is technically complete before the other commenced does not permit multiple punishment where there is a course of conduct comprising an indivisible transaction. [Citations.] And the fact that one of the crimes may have been an afterthought does not permit multiple punishment where there is an indivisible transaction. [Citation.]” (Ibid.)
Bauer thus involved single counts of robbery and grand theft, with the items having been stolen from the three victims on the same occasion. “Bauer can be read to suggest that when the defendant forms the intent to take the property is irrelevant to the question of multiple punishment as long as the force or fear which is the central element of robbery [citation] continues uninterrupted.” (People v. Smith (1992) 18 Cal.App.4th 1192, 1198, italics in original.)
The instant case, however, does not involve the imposition of multiple punishment for taking several items during the course of a robbery. “[A] more useful test for determining the separateness of alleged multiple burglaries for purposes of section 654 is whether the defendant had the opportunity to reflect after the first entry, and nevertheless entered the premises again.” (People v. Kwok, supra, 63 Cal.App.4th at p. 1255.) “[S]everal cases have held that the statutory prohibition against multiple punishment is inapplicable to situations where multiple burglaries are committed at the same time and in the same building.” (People v. Williams (1992) 9 Cal.App.4th 1465. 1474.)
For example, in People v. James (1977) 19 Cal.3d 99, the defendant was convicted of three burglaries for breaking into three office suits in the same commercial building, and the defendant argued that Bauer and section 654 prohibited the imposition of separate sentences for the burglaries. (People v. James, supra, 19 Cal.3d at pp. 104-106, 119.) James held the multiple burglaries were distinguishable from the robbery in Bauer:
“Here defendant forcibly broke into three different rented premises occupied by tenants who had no common interest other than the fortuitous circumstance that they happened to lease office suites in the same commercial building. There is no doubt that if the premises had been located in three separate buildings defendant could have been punished for three separate burglaries; he is not entitled to two exempt burglaries merely because his victims chose the same landlord. If the rule were otherwise, a thief who broke into and ransacked every store in a shopping center under one roof, or every apartment in an apartment building, or every room or suite in a hotel, could claim immunity for all but one of the burglaries thus perpetrated. Nothing in the statute or case law on multiple punishment compels such an incongruous result.” (People v. James, supra, 19 Cal.3d at p. 119, fn. omitted.)
In People v. Bowman (1989) 210 Cal.App.3d 443, the defendant broke into a car dealership, stole supplies from the office, and broke into various motor homes and vehicles and stole electronic equipment and other things from the interiors. He received consecutive sentences for eight burglary convictions. (Id. at pp. 446, 448.) Bowman rejected the defendant’s argument that section 654 prohibited the consecutive sentences, even though the offenses were committed during a single course of conduct, because the defendant “entertained multiple criminal objectives.” (People v. Bowman, supra, 210 Cal.App.3d at p. 449.) “Here defendant did not commit a single break-in as contended, but rather committed multiple break-ins, each with a separate felonious intent. While the felonious intent in each instance was the same, this does not make the various violations incidental to each other or to one primary criminal objective. Thus, even though the violations were part of an otherwise indivisible course of conduct in that they occurred during one night, it was within the trial court's discretion to impose consecutive sentences.” (Id. at p. 448; see also People v. O’Keefe (1990) 222 Cal.App.3d 517, 522 [separate sentences proper for multiple burglaries of several dormitory rooms because each entry was “separate and divisible conduct”]; People v. Williams, supra, 9 Cal.App.4th at pp. 1473-1474 [separate sentences properly imposed for robbery and grand theft because defendant formed the separate felonious intent to steal the purses of the two women, he engaged in separate acts to accomplish his separate intents, and the thefts were not incidental to but independent of each other, although committed at the same time].)
Thus, separate entries, even if conducted in the course of the same crime spree at the same location, are separately punishable burglaries. As applicable to the instant case, appellant committed separate entries into the homes and vehicles, with separate intents even though the offenses were committed on the same nights. As to the Vargas/Estrella incident, the nature and circumstances of the burglaries strongly infer that appellant did not arrive at their residence to break into Mr. Vargas’s truck. The truck was parked in front of the residence, appellant arrived in the dark of night, and he could have broken into the truck and stripped out the electronic equipment as the first order of business. Moreover, he gained access to the house by entering the unlocked garage door, and walked past Ms. Estrella’s Cadillac without breaking into it. Again, if appellant arrived at the Estrella/Vargas house to perform vehicular burglaries, he passed on the opportunity to break into and strip Ms. Estrella’s Cadillac in the relative privacy of the garage.
Instead, appellant entered the house with the intent to steal, took his time going through their belongings in the house, stole various items, including the vehicle keys, and apparently loaded the stolen goods into his white van. He had completed the entry required for the burglary and he could have departed with the stolen property from the house. Instead, appellant went into the garage, unlocked Ms. Estrella’s Cadillac, and stripped out her stereo system. He went to the front of the house, unlocked Mr. Vargas’s truck and committed a separate entry, and stole the electronic equipment. Even though the two offenses shared common acts or seemed to be part of an otherwise indivisible course of conduct, the offenses were temporally separated as to afford appellant the opportunity to reflect and form the independent intent to commit two separate entries – the residential burglary and the vehicular burglary.
Appellant was not charged with vehicular burglary of Ms. Estrella’s Cadillac, but with receiving stolen property based on his possession of her key chain and the stereo system stolen from her car. Nevertheless, it is undisputed that Ms. Estrella’s keys were stolen and the Cadillac was stripped on the night of the residential burglary.
The same rationale applies to the Venturella burglaries. Appellant arrived at the Venturella residence in the early morning hours and walked past their two vehicles, which were parked in front of their house. He entered the side gate and used a pry bar to open a locked door into the garage, which led into the house. As with the Estrella/Vargas burglary, the record strongly infers that appellant took his time going through the Venturellas’ possessions. Such an inference is illustrated by the reaction of their young son, who woke up Mrs. Venturella around 4:30 a.m., crying and upset. As she took him back to his bedroom, she kicked over several cans and jars which had been placed in front of the master bedroom door. She thought it was unusual, but took care of her son and went back to bed. Several hours later, Mr. Venturella got up to check on his neighbor’s report of the purse and keys in the driveway. He opened the door to the master bedroom, and kicked over several cans and jars which had been replaced in the threshold. Such evidence strongly infers that appellant was already in the house, improvised a crude “alarm” system so he would know if someone got up in the middle of the night, and replaced the items after Mrs. Venturella returned to bed. In addition, the Venturellas reported that their possessions in the living room and kitchen had been disturbed, and several things had been taken from their master bedroom, leading to the inference that appellant took his time going through their property and took things out of the master bedroom as they slept.
Appellant’s burglary of the Venturella residence was complete upon entry and he could have left after he stole their property and loaded the items into his van. Instead, he used the vehicle keys to commit another entry, and unlocked Mrs. Venturella’s Mitsubishi and ransacked the vehicle. He committed a separate entry when he unlocked Mr. Venturella’s truck and removed the GPS device and other items. Even though the offenses shared common acts or seemed to be part of an otherwise indivisible course of conduct, the offenses were temporally separated as to afford appellant the opportunity to reflect and form the independent intent to commit the separate entries for the vehicular burglaries.
Thus, even if appellant committed both the residential and vehicular burglaries in furtherance of a generalized intent to steal, and his actions were part of a course of criminal conduct, the burglaries were separated by time, in which he formed separate felonious intents, separate entries were made, and the offenses were not incidental to each other. (People v. Bowman, supra, 210 Cal.App.3d at p. 448.) The court properly imposed consecutive sentences for the first and second degree burglary convictions.
II. Blakely and the victim restitution order.
Appellant contends the court’s victim restitution order must be vacated because it constituted punishment, and the court’s imposition of the order violated his Sixth Amendment right to a jury trial under Blakely. At the sentencing hearing, the court ordered appellant to pay victim restitution of $7,216.13 to the Venturellas, pursuant to their itemized statement of loss. The court also reserved making victim restitution orders as to Ms. Estrella, Mr. Vargas, and Jennifer Luis, and an additional order as to the Venturellas.
The United States Supreme Court has held that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (U.S. v. Booker (2005) 543 U.S. 220, 244 (Booker); Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi); Blakely, supra, 542 U.S. at pp. 303-304.)
While a restitution fine may be considered a form of punishment, a victim restitution order generally is not. (People v. Harvest (2000) 84 Cal.App.4th 641, 646-650; People v. Hanson (2000) 23 Cal.4th 355, 361-362; People v. Young (1995) 38 Cal.App.4th 560, 568-569.) Restitution has traditionally been considered to be nonpunitive, and it becomes operative as a form of punishment “only where, in a specific procedural context, its imposition produces severe consequences or a serious effect.” (People v. Young, supra, 38 Cal.App.4th at p. 569; cf. People v. Zito (1992) 8 Cal.App.4th 736, 741.)
Thus, a victim restitution order is not a “penalty for a crime” within the meaning of Apprendi and Blakely (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at pp. 303-304), and the order that was imposed herein did not rise to a level of severity such that it constituted punishment. (See, e.g., People v. McVickers (1992) 4 Cal.4th 81, 87, fn. 1.)
Moreover, even if we were to assume victim restitution is a criminal penalty, appellant cannot show any constitutional violation. Under Blakely, only facts that increase the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at pp. 303-304; Booker, supra, 543 U.S. at p. 232.) The California Constitution requires the payment of victim restitution and imposes no maximum on the amount that can be ordered. (Cal. Const., art. I, § 28, subd. (b)(13)(A)-(C); § 1202.4, subds. (a)(1) & (f).) In the absence of an upper limit on restitution, appellant’s reliance on Blakely and Apprendi is without merit and the court’s restitution order did not violate his right to a jury trial. (Cf. People v. Urbano (2005) 128 Cal.App.4th 396, 405-406 [imposition of restitution fine within statutory range does not require jury findings beyond a reasonable doubt].)
Furthermore, we question, as does respondent, whether appellant's claim survived the Legislature's recent reformation of California's sentencing procedure. In Cunningham v. California (2007) 549 U.S.270 (Cunningham), the United States Supreme Court abrogated the California Supreme Court's ruling in People v. Black (2005) 35 Cal.4th 1238 (vacated in Black v. California (2007) 549 U.S. 1190), that the upper term was the statutory maximum. Cunningham held that the statutory maximum was the middle term because under California's sentencing scheme, the trial court was required to select the middle term unless it found an aggravating fact that was not an element of the offense found by the jury. (Cunningham, supra, 548 U.S. at pp. 288, 293.)
In response to Cunningham, effective March 30, 2007, the California Legislature amended Penal Code section 1170, subdivision (b) to make the middle term a discretionary rather than presumptive term. (Stats.2007, ch. 3, § 2; see People v. Sandoval (2007) 41 Cal.4th 825, 845-847.) Appellant was convicted in March 2008 and sentenced in April 2008. Thus, under the new sentencing scheme where there is no longer a presumptive sentence; appellant would have no Sixth Amendment right to a jury trial on the issue of an appropriate amount of restitution as part of the penalty imposed.
While the California Supreme Court has declined to address whether Apprendi, Blakely, and Booker apply to victim restitution orders (People v. Giordano (2007) 42 Cal.4th 644, 662, fn. 6), federal circuits which have considered the issue have decided that Blakely does not apply to victim restitution orders for reasons similar to those set forth ante. (United States v. DeGeorge (9th Cir. 2004) 380 F.3d 1203, 1221; United States v. Carruth (8th Cir. 2005) 418 F.3d 900, 904; see also United States v. Sosebee (6th Cir. 2005) 419 F.3d 451, 461-462, and cases cited therein.)
Appellant recognizes that he did not raise a Blakely objection to the court’s victim restitution order, but asserts this point still may be raised to preserve the issue for further review since an objection “would have been futile under current California law.” We so note appellant’s preservation of the issue and reject his contentions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., KANE, J.