Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F09392
ROBIE, J.
Defendant Bryan E. Mallonee appeals his conviction after a jury found him guilty of one felony count of unlawful taking of a vehicle, one misdemeanor count of possession of burglary tools, and one misdemeanor count of resisting a peace officer. The court sentenced him to an aggregate prison term of 10 years. The court also ordered him to pay $2,100 in restitution fines.
On appeal, defendant contends: (1) there was no substantial evidence of possession of burglary tools; (2) the trial court erred in sentencing him to a concurrent term for possession of burglary tools; (3) the trial court erred in imposing separate restitution fines on the felony and misdemeanor convictions; and (4) the trial court erred in imposing probation and drug testing costs. We find no merit in the first three arguments, but will modify the sentence to remove the probation and drug testing costs.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006, Sacramento County Sheriff’s deputies observed a Honda driving at 3:00 a.m. without headlights on. The patrol car turned to follow the car, at which point the car entered a mobile home park. The deputies followed the car into the mobile home park. After reaching a dead end, defendant exited the driver’s side door and ran away from the car. After pursuing defendant on foot, the officers restrained him using a Taser.
Deputy Jason Abbott searched the Honda, finding a shaved key in the ignition. Deputy Greg Saunders found another shaved key in defendant’s pocket. After checking the license plate number of the car, Deputy Abbott learned the car had been reported stolen.
Defendant was charged with unlawful taking of a vehicle, receiving stolen property, possession of burglary tools, and resisting arrest. The jury found him guilty of unlawful taking of a vehicle, possession of burglary tools, and resisting arrest. The trial court sentenced him to 10 years in prison and ordered him to pay $2,100 in restitution fines. The fines were split between $2,000 for the unlawful taking of a vehicle conviction and $100 for the possession of burglary tools and resisting arrest convictions. The court also imposed monthly probation costs and drug testing costs.
DISCUSSION
I
There Was Sufficient Evidence To Support Defendant’s Conviction Of Possession Of Burglary Tools
Defendant contends there was no substantial evidence for a reasonable jury to convict him of possession of burglary tools.
“The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘“[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’ [Citation.] ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’” (People v. Snow (2003) 30 Cal.4th 43, 66.)
Penal Code section 466 provides, “Every person having upon him or her in his or her possession a . . . master key . . . or other instrument or tool with intent feloniously to break or enter into any building . . . or vehicle as defined in the Vehicle Code, or who shall knowingly make or alter, or shall attempt to make or alter, any key or other instrument named above so that the same will fit or open the lock of a building . . . or vehicle as defined in the Vehicle Code, without being requested to do so by some person having the right to open the same, or who shall make, alter, or repair any instrument or thing, knowing or having reason to believe that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor.”
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant argues that his conviction for possession of burglary tools must be reversed because there was insufficient evidence of the intent to use the tools, i.e., the shaved keys, to break and enter a vehicle. While fully acknowledging one of the shaved keys could be, and was, used in the ignition of the stolen vehicle, defendant argues there was no substantial evidence there was intent to use the shaved keys to “‘break and enter’” the car.
The People acknowledge they were required to show defendant intended to use one or both of the shaved keys as a burglary tool. However, intent is “‘rarely susceptible of direct proof’” and instead “‘must usually be inferred from all the facts and circumstances disclosed by the evidence.’” (People v. Falck (1997) 52 Cal.App.4th 287, 299.) The People note that defendant was operating the stolen car with a shaved key, had another shaved key in his pocket, and had previously been involved in an incident while in a stolen car and in possession of another shaved key.
Defendant states that neither of the shaved keys he possessed would allow a jury to find the requisite intent. He argues that because the key in the ignition did not unlock the doors to the car, and because the deputies did not test the other key, there was insufficient evidence for the jury to convict him of possession of burglary tools.
While there is no direct proof of intent, there is enough circumstantial evidence to infer the requisite intent. “An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Defendant was found with the shaved keys while operating a stolen car. Shaved keys are altered by smoothing the key’s teeth and the end of the key, and by making the key thinner. This is done so that the key will fit in the locks and ignition and bypass any locking mechanisms.
Officer Abbott and Officer Patricia Varozza testified about the creation and use of shaved keys. Officer Abbott stated a shaved key is one where “[t]he teeth of the key are filed down so they’re smooth and they file the sides down smoother so the key will fit in there to bypass the tumblers and the other mechanisms that the locks will use.” Officer Varozza testified “[t]he nubs or teeth, if you will, of the keys have been manipulated to make flat or flatter than normal. And minor adjustments are made to that key to where they’ll fit any vehicle and start that vehicle. So they don’t have to be for the make or model.”
Defendant points to Officer Abbott’s testimony that the “key found in the ignition did not open the Honda’s doors; Abbott testified that he tried this key and it did not unlock the doors.” Section 466 does not require that the burglary tools be used in this particular burglary, instead it merely requires the defendant possess the tool with the intent to feloniously “break or enter into any building . . . or vehicle.” (Italics added.) Therefore the jury could reasonably find that defendant possessed the shaved keys with the intent to break and enter any vehicle, not just the one in his possession when caught.
While neither officer explicitly testified that shaved keys are designed to bypass door locks, each testified in such a way that the jury could reasonably infer their use for that purpose. Officer Abbott stated shaved keys are created “so the key will fit in there to bypass the tumblers and the other mechanisms that the locks will use.” When asked, “What is the purpose of bypassing the tumblers that the locks will use or the ignition will use?” he responded, “So the car will start without the key that was actually designed for it.” Officer Varozza testified that “minor adjustments are made to that [shaved] key to where they’ll fit any vehicle and start that vehicle.”
Neither officer distinguished between the locking mechanisms on the doors and the locking mechanisms in the ignition. Nevertheless, a jury could have reasonably concluded that the testimony referred to the doors and the ignition. “While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence.” (People v. Boyer (2006) 38 Cal.4th 412, 480.)
The offense of possession of burglary tools does not require that the prosecution show the defendant had the intent to use the burglary tools to break into a particular structure or vehicle. (People v. Southard (2007) 152 Cal.App.4th 1079, 1087-1088.) Instead, it is a general intent crime where the tools are obtained for the purpose of breaking and entering. (Ibid.) Evidence that shows defendant knew what shaved keys were and how they could be used can help establish the requisite intent.
The jury was presented with evidence that defendant had been previously involved in another incident involving a stolen car. Defendant was a passenger in the stolen car, but had a shaved key on his person when the officers pulled the car over. The trial court limited the use of this testimony to establishing “whether or not the Defendant acted with the intent to deprive the owner of the car in this case or the Defendant knew the car was stolen and the keys were shaved when he allegedly acted in this case.” Using the knowledge that the keys were shaved and the officers’ testimony regarding the potential uses of shaved keys, the jury could have reasonably inferred that defendant, at the time of obtaining the keys, intended to use them to break and enter cars.
Defendant also attempted to run away from the deputies. He was later convicted of resisting a peace officer after attempting to flee. Where a defendant attempts to flee from law enforcement, especially if he is later convicted of evading a peace officer, the flight is “suggestive of defendant’s consciousness of guilt . . . [and] . . . supports a finding of felonious intent.” (People v. Southard, supra, 152 Cal.App.4th at p. 1091.)
In sum, defendant’s possession of two shaved keys at the time of arrest, the officers’ testimony regarding the potential uses for shaved keys, defendant’s conviction for stealing the vehicle, the fact that one shaved key was still in the ignition at the time of arrest, defendant’s attempted flight from law enforcement, and his involvement in a previous similar crime constitute substantial evidence of defendant’s felonious intent supporting the jury verdict.
II
The Court Did Not Err In Imposing A Concurrent Sentence
Defendant argues the trial court erred by sentencing him to a concurrent term for possession of burglary tools, and the sentence should have been stayed to prevent multiple punishment for a single act. Defendant contends section 654 mandates that the sentence on the possession of burglary tools be stayed. Section 654 provides that “[a]n 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.” Defendant argues that since there is no evidence the key linked to the possession of burglary tools charge is tied to any other criminal conduct, section 654 precludes imposing separate terms for the unlawful taking of a vehicle charge and the possession of burglary tools charge.
Defendant did not object to the concurrent sentence at trial; however, “the waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.” (People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3.) “This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.” (People v. Hester (2000) 22 Cal.4th 290, 295.)
To determine if section 654 applies, a trial court must determine “[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654[, which] 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.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) This applies to sentencing both for crimes flowing from a single act and for crimes resulting from an indivisible course of conduct which violates more than one statute. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a defendant held multiple criminal objectives is an issue of fact, and if supported by substantial evidence, the trial court’s determination will be upheld on appeal. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466; People v. Braz (1997) 57 Cal.App.4th 1, 10.)
The People compare the current case to a line of cases involving charges of possession of a firearm by a convicted felon combined with other crimes and argue these cases are illustrative of the interaction between possession of burglary tools and other crimes. The People point to People v. Venegas (1970) 10 Cal.App.3d 814, People v. Ratcliff (1990) 223 Cal.App.3d 1401, and People v. Jones (2002) 103 Cal.App.4th 1139.
In Venegas, the defendant was convicted of possession of a firearm by a felon and of assault with a deadly weapon with intent to commit murder. (People v. Venegas, supra, 10 Cal.App.3d at p. 817.) The trial court imposed multiple punishments and the appellate court reversed. In that case, the evidence showed possession of the firearm only at the time the defendant shot the other man. (Id. at pp. 814, 821.) There was no evidence showing the defendant possessed the gun prior to the shooting, and the defense offered evidence suggesting he obtained it during a struggle moments before the shooting. (Id. at pp. 817-820.) The physical possession was both simultaneous and incidental to only one objective: shooting the other man. (Ibid.) Therefore, the court found that sentencing the defendant on both counts was multiple punishment proscribed by section 654. (Id. at pp. 814, 822.)
In Ratcliff, the defendant was convicted of possession of a firearm by a convicted felon and robbery with use of a firearm. (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1405.) The appellate court affirmed the sentences for both charges, distinguishing Venegas as follows: “[W]e distill the principle that if the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense, section 654 will bar a separate punishment for the possession of the weapon by an ex-felon.” (Ratcliff, at p. 1412.) Applying that principle to the facts before it, the Ratcliff court held “the evidence showed that defendant used a handgun to perpetrate two robberies separated in time by about an hour and a half. He still had the gun in his possession when he was arrested half an hour later. Unlike . . . Venegas, the defendant already had the handgun in his possession when he arrived at the scene of the first robbery. A justifiable inference from this evidence is that defendant’s possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes.” (Id. at p. 1413.) The court held that under those facts, section 654 did not prohibit separate sentences for the charges. (Ibid.)
In Jones, the defendant was convicted of possession of a firearm by a convicted felon and for shooting at an inhabited dwelling. (People v. Jones, supra, 103 Cal.App.4th at p. 1141.) The appellate court affirmed the sentences for both charges, holding that “when an ex-felon commits a crime using a firearm, and arrives at the crime scene already in possession of the firearm, it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime.” (Ibid., italics added.)
The People contend Ratcliff and Jones allow an inference that defendant “possessed the shaved keys with the intent to break and enter into cars prior to taking and driving this [car].” They further argue defendant’s possession of two different shaved keys at the time of his arrest “creates a strong inference that [he] possessed the shaved keys before he ever stole the [car].” Distinguishing Venegas, the People note there is no evidence suggesting the shaved keys came into defendant’s possession “only at the instant he took the car.”
Defendant argues that there is insufficient evidence to show that he possessed the requisite intent before he stole the car. Defendant further argues that there is no evidence that he possessed the shaved keys prior to stealing the car. Even if prior possession of the keys can be inferred, defendant contends the possession is not enough to convict, as opposed to the gun cases detailed above.
Defendant correctly states that mere possession of the keys is not a crime. Defendant argues that People v. Valenzuela (2001) 92 Cal.App.4th 768, 778 states that the key becomes a burglary tool only “when the [item] is used as a burglary tool under section 466, i.e., it is used [with the requisite specific intent].” Defendant contends “there is no evidence that [he] intended to use the shaved keys in any other criminal endeavors,” and therefore the possession cannot constitute “a separate crime warranting separate punishment.”
Defendant’s interpretation reads both the case and the statute too narrowly. Section 466 prohibits possession of burglary tools “with intent feloniously to break into any building . . . or vehicle.” The statute is not violated at the time of the commission of the breaking and entering, but instead at the moment when a person both possesses the instrument and intends to use it to commit any breaking and entering. (§ 466.)
This leads us to the nature of the tool itself. Many of the objects listed in section 466 have both legitimate and illegitimate uses. For example, screwdrivers and vise grip pliers are used as tools for a variety of work, but are also specifically listed as burglary tools in section 466. Other listed tools are significantly more likely to be used only for illegitimate purposes: shaved keys and master keys are among them. Section 466.6 requires any person who makes a car key other than by duplicating the existing key to maintain information about both the car and the intended driver for the police. Deputy Abbott testified during the trial that while a person could use a shaved key to legitimately operate a vehicle, the chances of that were “[r]elatively low.”
To order concurrent sentences, the trial court would need to find that the crimes were separable. (Neal v. State of California, supra, 55 Cal.2d at p. 19.) Unlike the gun possession cases, section 466 requires intent. However, it is “not necessary to allege or prove an intent to use [the burglary tools] in a particular place, or for a special purpose, or in any definite manner.” (People v. Southard, supra, 152 Cal.App.4th at p. 1088.) “‘“The offense is complete when tools or other implements are procured with intent to use them for a burglarious purpose.”’” (Ibid.)
Defendant argues that there was no evidence presented to show that he intended to use the shaved keys in any other criminal endeavors. As the gun possession cases illustrate, however, while proof of a separate intent would be dispositive, the lack of such evidence is not. (See People v. Jones, supra, 103 Cal.App.4th at pp. 1144-1149.)
Defendant possessed two shaved keys at the time of arrest. One was in the ignition operating the car. The jury was allowed to use defendant’s prior bad act to determine if he knew the keys were shaved. Deputy Abbott testified that the odds of a person legitimately using a shaved key were “[r]elatively low.” All of these facts together support an inference that defendant possessed the keys with the requisite intent to break and enter a vehicle at the time he acquired the keys, rather than at the time he committed the unlawful taking of a vehicle. That inference supports the multiple punishments.
III
The Court Did Not Err In Imposing Separate Restitution Fines
Defendant contends the trial court erred in imposing separate restitution fines on the misdemeanor and felony convictions, as they were both part of a single case. The trial court imposed restitution fines totaling $2,100 against defendant. The court imposed a $2,000 restitution fine under section 1202.4 for the unlawful taking of a vehicle charge. The court also imposed a $2,000 suspended parole revocation fine under section 1202.45 for the unlawful taking of a vehicle charge. The court imposed a separate $100 restitution fine for the misdemeanor charges.
The trial court mistakenly referenced section 1202.5 when pronouncing judgment, but corrected the error on the written order.
Defendant argues that the trial court erred by imposing a separate restitution fine on the misdemeanor convictions. Pointing to section 1202.4, subdivision (b), defendant argues that the language “every case where a person is convicted of a crime” limits the court to imposing only one total fine. The People contend the court was within its discretion to give the separate fines since the total fine was well within the statutory limit. We reject both arguments; however, the trial court did not abuse its discretion in separating the fines.
In People v. Holmes (2007) 153 Cal.App.4th 539, this court was presented with a similar situation. The defendant in that case was convicted of misdemeanor battery on a spouse and of felony false imprisonment by violence or menace. (Id. at p. 541.) The trial court imposed a $400 restitution fine and $400 parole revocation restitution fine for the felony conviction and a $100 restitution fine and a $100 probation revocation restitution fine for the misdemeanor conviction. (Id. at p. 546.) On appeal, this court found the fines were proper.
This court first noted “a restitution fine is not imposed on ‘each count’ but instead one fine is imposed taking into account all the offenses in the proceeding.” (People v. Holmes, supra, 153 Cal.App.4th at p. 547.) However, it then pointed to the inherent conflict between that principle and the requirements set forth in section 1202.45. (Holmes, at p. 547.)
Section 1202.45 provides: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (Italics added.) The trial court in Holmes could not impose a restitution fine in the total amount of $500 to cover both the felony and the misdemeanor because the parole or probation revocation restitution fine was required by statute to be the same amount. (People v. Holmes, supra, 153 Cal.App.4th at pp. 547-548.)
We find that analysis to be compelling in this case. As the restitution fine was split between the unlawful taking of a vehicle charge (and its reciprocal parole revocation restitution fine) and the other charges, which did not require a reciprocal probation revocation restitution fine, the trial court did not err in imposing the restitution fines separately for the felony and the misdemeanors.
IV
The Trial Court Erred In Imposing Monthly Costs For Probation And Urinalysis Testing
Defendant contends the trial court erred in imposing monthly probation costs and drug testing costs. He argues that there is no authority to impose the costs, as he was not granted probation, nor was he convicted of a drug offense. The People concede the argument. We agree with both parties and modify the sentence to remove the requirements for monthly probation costs and drug testing costs.
DISPOSITION
The judgment is modified to remove the monthly probation costs and drug testing costs. As modified, the judgment is affirmed.
We concur: DAVIS, Acting P.J., BUTZ, J.