Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCS208604, SCS206060 & SCS212948, William Hays McAdam, Jr., Judge.
O'ROURKE, J.
In superior court case No. SCS208604, a jury found James Donald Baldwin guilty of burglary (Pen. Code, § 459) (count one), forgery of a check (§ 470, subd. (d)) (count two), and forgery of financial institution paper (§ 476) (count three). Baldwin waived jury and admitted he had served a prior prison term. In case No. SCS206060, he entered a negotiated guilty plea to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In case No. SCS212948, he entered a negotiated guilty plea to forgery of a check (§ 470, subd. (d)). The court dismissed the prison prior and sentenced Baldwin to concurrent 16-month lower prison terms on all five counts. Baldwin appeals, contending the sentences on counts two and three must be stayed pursuant to section 654 because all three counts in case No. SCS208604 were part of an indivisible course of conduct with a single purpose. We agree.
Statutory references are to the Penal Code unless otherwise specified.
The court initially placed him on three years' probation, then revoked probation.
FACTUAL BACKGROUND FOR CASE NO. SCS208604
On February 16, 2007, Baldwin presented a $500 Visa traveler's check to pay for approximately $105 worth of merchandise at Kohl's Department Store (Kohl's). The check did not have a watermark and appeared suspicious. A Kohl's manager called Visa and provided the check's serial number. According to Visa, the serial number was for a $50 check and the check was counterfeit. Visa asked the manager to have Baldwin sign the check. At the manager's request, Baldwin signed the check. Visa then asked the manager to call the police. When the police arrived, Baldwin told them he did not know the check was fraudulent. He said his girlfriend had picked it up from the bank earlier that day and had given it to him. The police arrested Baldwin.
DISCUSSION
Section 654 bars concurrent sentences for a course of conduct constituting one indivisible transaction with one criminal objective. (§ 654, subd. (a); Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Latimer (1993) 5 Cal.4th 1203; People v. Miller (1977) 18 Cal.3d 873, 887, overruled on another ground as stated in People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 8.) Whether the defendant had one objective or multiple independent objectives is a factual question for the trial court. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) We review the decision to impose concurrent sentences for substantial evidence, viewing the record in the light most favorable to the trial court's implied conclusion that section 654 did not apply here. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) "[C]ases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted." (People v. Britt (2004) 32 Cal.4th 944, 952.)
The court did not mention 654 or say why it chose concurrent terms.
Counts two and three were based on Baldwin's actions with respect to the same traveler's check. It is impossible to determine from the record which of those actions pertained to count two and which pertained to count three. In any case, it is clear that counts two and three were part of an indivisible transaction with a single criminal objective—to obtain merchandise and cash from Kohl's in exchange for the counterfeit check. Count one was also part of that indivisible transaction and committed with the same criminal objective; Baldwin entered Kohl's solely to obtain merchandise and cash in exchange for the check. Because these three counts constituted an indivisible transaction with one simultaneous criminal objective, the sentences on counts two and three must be stayed.
Count two alleged Baldwin "did unlawfully, with the intent to defraud, falsely make, alter, forge and counterfeit, utter, publish, pass and attempt and offer to pass, as true and genuine" the traveler's check. Count three alleged he "did unlawfully make, pass, utter, and publish, and attempt to do so, with intent to defraud a person, and possess, with like intent, to utter, pass and publish" the traveler's check. The actions that formed the bases for counts two and three were Baldwin's offering of the check to pay for the merchandise and his signing of the check at the manager's request.
DISPOSITION
The judgment is modified by staying the sentences on counts two (§ 470, subd. (d)) and three (§ 476) in case No. SCS208604. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.
Respondent argues the three counts were based on three distinct criminal acts at three distinct times: Baldwin created the counterfeit check, then forged the necessary signatures to make the check appear genuine, then entered Kohl's. The record, however, contains no evidence Baldwin created the counterfeit check and no evidence he signed it before going to Kohl's.