Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. KA074086, Robert M. Martinez, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, Acting P. J.
Jorge Zaragoza appeals from a judgment entered after a jury convicted him of unlawfully driving or taking a vehicle and grand theft of personal property. He contends the trial court erred by imposing multiple punishments in violation of Penal Code section 654. We agree and modify his sentence accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Charges
Zaragoza was charged by second amended information with one count of unlawfully driving or taking a vehicle (count 1) and one count of grand theft of personal property (money) (count 2). As to both counts, the information specially alleged Zaragoza had committed the offenses while released from custody or on his own recognizance, had suffered a prior theft-related conviction involving a vehicle (grand theft commercial cargo), and had served a separate prison term for a felony.
Vehicle Code section 10851, subdivision (a); Penal Code section 487, subdivision (a).
Penal Code sections 12022.1, 666.5 (487h), and 667.5, subdivision (b).
2. The Trial
Prosecution Evidence
On the night of February 14, 2006, Bianca Campos was having dinner when her Chevy Tahoe was taken from the restaurant parking lot at a shopping mall in Los Angeles. Also taken was her purse, containing $4,000, which Campos had left in the Tahoe during her meal. While Campos was dining, Zaragoza was under police surveillance. Officers followed him to the restaurant, where he parked in front of Campos’s Tahoe. Zaragoza emerged from his vehicle, walked beside Campos’s Tahoe and glanced around. Within a minute, Campos’s Tahoe was backing out of the parking space with Zaragoza behind the wheel. He drove through the parking lot, followed by someone now driving Zaragoza’s vehicle. Zaragoza and the unknown driver pulled up next to each other and spoke briefly. They resumed driving in tandem through the mall and parked two spaces apart. Zaragoza left Campos’s Tahoe to talk with the unknown driver. After a while, Zaragoza and the unknown driver traded vehicles. Zaragoza returned to his own vehicle, carrying Campos’s purse with him.
Zaragoza’s codefendant, Hector Orlando Melendes, is not a party to this appeal.
Officers followed Zaragoza onto the freeway, but they lost sight of him. Police eventually found his vehicle on a surface street; Zaragoza was gone. Officers also followed the unknown driver as he drove Campos’s Tahoe onto the freeway and pulled him over. When Campos’s Tahoe was recovered, the lock on the driver’s side door was missing and the ignition had been “punched.” Campos’s purse and cash were never found. Campos did not give anyone permission to take her Tahoe or personal property.
Defense Evidence
Zaragoza neither testified nor presented other evidence in his defense.
3. Verdict and Sentence
The jury convicted Zaragoza on both counts. In a bifurcated proceeding, the trial court found true the special allegations.
The sentencing hearing on this case was conducted on August 9, 2006. The trial court determined the four-year state prison sentence imposed about three months earlier in Los Angeles Superior Court case No. VA093694 would constitute the base term to which the sentence in this case would be served consecutively. The trial court then chose to impose a three-year eight-month consecutive sentence calculated as follows: One year (one-third the middle term of three years) for unlawfully driving or taking a vehicle, enhanced by two years for committing the offenses while released on bail or on his own recognizance, plus eight months (one-third the middle term of two years) for grand theft of personal property. The court struck the remaining enhancements. Zaragoza’s aggregated state prison sentence was seven years eight months.
This court has disposed of Zaragoza’s appeal from the judgment entered in Los Angeles Superior Court case No. VA093694 by separate opinion in Court of Appeal case No. B193393.
DISCUSSION
Zaragoza’s sole contention on appeal is under Penal Code section 654 he should not have been sentenced to consecutive terms for the unlawful driving and grand theft offenses. The statute precludes multiple punishments for multiple offenses arising from a single act or indivisible course of conduct. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of Penal Code section 654 depends on the “intent and objective” of the actor. If all of the offenses are incident to one criminal objective, the court may punish the defendant for any one of the offenses, but not more than one. 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. A trial court’s express or implicit finding the crimes at issue were divisible is a factual determination, and should be upheld on appeal if supported by substantial evidence.
Penal Code section 654 provides in pertinent part: “(a) 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.”
Neal v. State of California (1960) 55 Cal.2d 11, 19.
People v. Perez (1979) 23 Cal.3d 545, 551.
People v. Beamon (1973) 8 Cal.3d 625, 639.
People v. Osband (1996) 13 Cal.4th 622, 730; People v. Nelson (1989) 211 Cal.App.3d 634, 638.
At sentencing, the trial court found Zaragoza harbored “separate and different objectives” in committing unlawful driving and grand theft. “What supports that is the fact that the defendant at least temporarily abandoned the vehicle he had just taken and removed a single item from that vehicle and left the location. The item . . . taken was not an item typically a part of a motor vehicle but a purse left by the victim that had an amount of cash.”
Zaragoza argues the unlawful driving and grand theft offenses were based on an indivisible course of conduct and therefore may not be separately punished at all, much less consecutively. We agree there was insufficient evidence to support the trial court’s conclusion. It is clear the convictions for unlawful driving and grand theft arose from the same course of conduct, against the same victim, and were incident to the same objective. Zaragoza’s criminal enterprise began when he took Campos’s Tahoe; it ended when he drove off with Campos’s purse and cash. In taking the Tahoe, Zaragoza took its contents (the purse and cash) at the same time, in one continuous transaction, with the same underlying objective of stealing Campos’s property.
In People v. McFarland (1962) 58 Cal.2d 748, 758, the defendant burglarized a hospital and stole an air compressor. He was convicted and sentenced for both burglary and grand theft. The Supreme Court held he could not be punished for both. “The inference which the jury was permitted to draw . . . was that defendant entered the hospital with intent to steal and that the taking of the air compressor was the culmination of that intent. The record contains nothing indicating that he entered the hospital with intent to commit some crime other than theft. In these circumstances the only reasonable conclusion is that the entry of the hospital and the taking of the air compressor were parts of a continuous course of conduct and were motivated by one objective, theft; the burglary, although complete before the theft was committed, was incident to and a means of perpetrating the theft.”
People v. McFarland, supra, at page 762; In re Romano (1966) 64 Cal.2d 826, 828 [burglary and theft].
In People v. Bauer (1969) 1 Cal.3d 368, the defendant entered a home lived in by three women, robbed them each of personal property kept in the house, then stole one of the victims’ cars. The Supreme Court held the defendant could not be separately punished for robbery and auto theft. “[W]here 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. [¶] The Attorney General urges that the separate sentences for robbery and car theft may be upheld on the theory that the robbery was complete before the theft of the car began and that the theft of the automobile was an afterthought to the original transaction. 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.] . . . Moreover, the evidence in the instant case does not show that the theft of the car was an afterthought but indicates to the contrary that the robbers, who while ransacking the house were carrying the stolen property to the garage, formed the intent to steal the car during the robbery if not before it.”
People v. Bauer, supra, at page 377.
In People v. Beamon, supra, 8 Cal.3d 625, the defendant accosted a truck driver, took the keys, and drove away, holding the truck driver as a hostage passenger. In the course of concluding the defendant could not be punished for both robbery and kidnapping for the purpose of robbery, the court commented, “We are compelled to the conclusion as a matter of law that on the record here both crimes were committed pursuant to a single intent and objective, i.e., to rob [the driver] of the truck or its contents.”
People v. Beamon, supra, 8 Cal.3d at page 639.
In People v. Allen (1999) 21 Cal.4th 846, the defendant burglarized three homes, stealing jewelry from each. He was convicted of three counts of burglary and two counts of receiving stolen property involving the jewelry taken in two of the burglaries. The Supreme Court held the defendant was properly convicted of both burglary and receiving stolen property, but commented with approval on the trial court’s stay of execution of sentence for receiving stolen property. “This disposition was correct, satisfying both [Penal Code] section 954 (allowing multiple convictions) and [Penal Code] section 654 (barring multiple punishment).”
People v. Allen, supra, 21 Cal.4th at pages 866-867.
In the present case, the trial court apparently reasoned Zaragoza entered the Tahoe with the intent to take it, but upon discovering the purse and cash, he then formed an intent to steal those items, independently of taking the Tahoe, as indicated by having retrieved the purse and cash so he could take them with him even as he left the Tahoe with a confederate.
However, in light of the above Supreme Court authorities, it is not reasonable to so finely compartmentalize Zaragoza’s intent to steal. Absent specific evidence to the contrary, a criminal who steals a vehicle probably intends to take both the vehicle and anything of value in the vehicle. There is no specific evidence in this case of a limited initial intent followed later by formulation of a new and qualitatively different intent. The record does not support the conclusion the intent involved in the unlawful driving and grand theft offenses involved “multiple criminal objectives which were independent of and not merely incidental to each other.” The trial court should have stayed execution of sentence on count 2, grand theft. We shall modify the judgment accordingly by specifying the middle term and staying execution of that sentence pursuant to Penal Code section 654.
Although the offense of unlawful driving does not require the intent to steal the vehicle, the undisputed evidence shows Zaragoza intended to permanently deprive Campos of possession of her Tahoe when he gave it to a confederate after breaking the driver’s side lock, punching the ignition and they then both left the area.
People v. McFarland, supra, 58 Cal.2d at page 762; People v. Bauer, supra, 1 Cal.3d at page 377.
People v. Beamon, supra, 8 Cal.3d at page 639; People v. Nguyen (1988) 204 Cal.App.3d, 181 upon which the People rely is inapposite. In that case the defendant agreed to commit a robbery. While he was attempting to remove money from the cash register, his confederate took the victim into the back room, robbed him of his money, forced him to the floor and shot him. (Nguyen, supra, 204 Cal.App.3d at page 185.) The jury convicted the defendant of attempted murder under the “natural and probable consequences” doctrine. The trial court imposed consecutive terms for the attempted murder and robbery. (Nguyen, supra, at pages 184, 189.) In affirming the sentence, the appellate court concluded a separate act of violence against a helpless or unresisting victim whether gratuitous or to facilitate escape or to avoid prosecution is not incidental to robbery for purposes of Penal Code section 654. (Nguyen, supra, at pages 190, 193.)
DISPOSITION
The judgment is modified to provide on count 2 (grand theft of personal property), Zaragoza is sentenced to the middle term of two years, with execution of sentence stayed under Penal Code section 654, the stay to become permanent upon service of sentence on count 1 (unlawful driving or taking of a vehicle). As so modified, the judgment is affirmed. The clerk of the superior court is directed to send a corrected abstract of judgment to the Department of Corrections.
We concur: WOODS, J. ZELON, J.