Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F10953
SIMS, J.A jury convicted defendant Mark Robert Curtwright and codefendant Raymundo Andres Fabila of second degree burglary (Pen. Code, § 459), receiving stolen property (Pen. Code, § 496, subd. (a)), and possession of burglary tools (Pen. Code, § 466), and also convicted defendant Curtwright of possession of a dirk (Pen. Code, § 12020, subd. (a)). The trial court sustained a strike allegation against defendant Curtwright and sentenced him to six years in prison. For codefendant Fabila, the court imposed a three-year term.
On appeal, defendant Curtwright contends: (1) his upper term sentences violate the rule of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham); (2) the court’s decision not to stay sentences pursuant to Penal Code section 654 is contrary to Blakely and Cunningham; (3) California’s determinate sentencing scheme cannot be reformed in light of Cunningham; (4) due process and double jeopardy prevents resentencing for Blakely and Cunningham error; (5) the court erred in not staying his sentences for possession of a dirk and possession of burglary tools; and (6) there are errors in the abstract and minute order. Codefendant Fabila contends on appeal that his upper term sentences violate Blakely and Cunningham and he must be resentenced to the middle term. We stay defendant Curtwright’s sentence for possession of burglary tools, order the abstract modified, and otherwise affirm.
BACKGROUND
In the early morning of December 16, 2003, Sacramento Police Officer Christopher Shippen pulled over a Toyota Camry at the corner of 21st and J Street for driving without taillights. Curtwright was the driver and Fabila was the passenger. A search of the car discovered a ball peen hammer on the driver’s floor board and a screwdriver in the center console, and in the back, a bag containing a metal saw, two wrenches, a screwdriver, and a pry bar. One of the wrenches had been modified to break certain handles and locks on doors.
The officer found in the trunk a leather black bag containing a digital camera, a cigarette case, and a micro cassette recorder. Also in the trunk were a black leather briefcase and a wastebasket containing office supplies. The briefcase contained inkjet cartridges with an attached receipt from Costco, a cellular phone battery, two legal research CDs, a hand-labeled CD, two legal pads, and a rubber stamp with the name William Briggs, Attorney at Law, on the top of the case. Inside the wastebasket was a miniature University of Michigan football helmet, an ashtray, a pewter Bugs Bunny playing golf, a metal golf bag with a musical instrument, a small clock with a picture frame, a large Hershey’s Kiss, and a checkbook in the name of Stephen G. Wanderer.
Curtwright was frisked, and a concealed sheathed dagger was found in his left thigh pocket. The knife, which was concealed by Curtwright’s jacket, was six to eight inches long with a three-and-a-half to four inch blade. Both edges of the blade were narrowed, indicating it could be used as a stabbing instrument.
A search of Fabila found a brass padlock with a key inserted in the keyhole and a handwritten tag on the key. Fabila also had two blank checks for the account of John Murray.
Officers determined Briggs’ office was at 2431 Capitol Avenue. Sacramento Police Officer Intae Moon went to the address, a two story building with glass front doors and a metal side door leading to a parking lot. The glass front doors were undamaged, but looking through them Officer Moon noticed the metal side door leading to the parking lot appeared damaged and partially open. The side door was open inward about one inch, and the bolt was missing from the deadbolt.
Officer Moon and two other officers entered the building through the side door. The officers went upstairs and turned the lights on, where they noticed “the place pretty much had been ransacked.”
John Murray, an attorney and owner of the building, was contacted by the police and came to the crime scene. The first story of his building was a reception area and bathrooms, while the upper story contained office space which he used and rented out to five other attorneys. Stephen Wanderer was one of the attorneys renting office space from him.
Murray left the office on December 15, 2003, between 5:30 and 6:30 p.m., with the office in “normal condition.” The office was no longer in its ordinary condition when he met the police at his building. In the secretarial area a small safe had been overturned, a metal cart was broken, and a computer was missing from the secretary’s desk. The edges of the safe door were bent, and pry marks were present, but the safe was intact. Murray’s office was disturbed, with his desk drawers and credenza opened, and papers strewn over the floor.
Murray identified the football helmet, music box, clock, Hershey’s Kiss, and ashtray found in the car as his. He also identified as his the Union Bank checks and the padlock found on Fabila. The checks belonging to Wanderer were from an attorney who rents an office in his building.
William Briggs is an attorney who rents one of the offices at 2431 Capitol Avenue. He was at the office on December 16 and probably left around 5:30 or 6:00 p.m. Briggs identified the briefcase, inkjet cartridges, micro cassette recorder, floppy disk, and CD as his, and said the legal research CDs and cellular phone battery could have belonged to him.
DISCUSSION
I
Both defendants contend their upper term sentences were rendered in violation of Blakely and Cunningham. The claims are foreclosed by a recent decision of the California Supreme Court’s in People v. Black (2007) 41 Cal.4th 799 (Black II).
The trial court imposed defendant Curtwright’s upper term sentences based on the aggravating circumstances of the manner of the crime showing prior planning and sophistication, Curtwright’s “numerous prior convictions,” his prior prison terms, and his poor performance on parole. In sentencing Fabila to upper terms, the trial court relied on the number and increasing seriousness of Fabila’s prior convictions, his poor performance on probation, and having been on probation at the time of the offense.
“[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Such is the case here.
A defendant’s numerous prior convictions, which are of increasing seriousness, as well as his probationary status, and having served prior prison terms, are “based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816; United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820.) Because any one of those circumstances renders a defendant eligible for the upper term sentence, the “Sixth Amendment right to jury trial was not violated by imposition of the upper term” for either defendant (Black II, at p. 820.)
Defendant Curtwright also contends Black II was wrongly decided. As he recognizes, we are bound to follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II
Defendant Curtwright contends the trial court’s decision not to stay his sentences for possession of a dirk and possession of burglary tools pursuant to Penal Code section 654 violates Cunningham and Blakely. We disagree.
In Black II, supra, 41 Cal.4th 799, the California Supreme Court held for a second time that the determination whether two or more sentences should be served consecutively is a “‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823, quoting from People v. Black (2005) 35 Cal.4th 1238, 1264.)
Black II’s holding applies with equal force to a court’s decision under Penal Code section 654. Penal Code section 654 “is a discretionary benefit provided by the Legislature to apply in those limited situations where one’s culpability is less than the statutory penalty for one’s crimes.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 270.) The rule of the predecessor to Blakely’s predecessor, Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], does not apply to the Penal Code section 654 determination because this finding is not a factual determination made by a judge which increases the maximum statutory penalty for the particular crime or crimes. (Cleveland, supra, 87 Cal.App.4th at p. 271.)
Just as Cunningham left undisturbed prior holdings that consecutive sentencing does not fall within Blakely’s rule, neither did it overturn the rule announced in Cleveland which we shall follow.
III
Defendant Curtwright and codefendant Fabila also contend a court cannot resentence a defendant to an upper term once the sentence has been vacated for Blakely error. Since we find no Blakely error we shall not address their claims, which in any event are contrary to the California Supreme Court’s decision in People v. Sandoval (2007) 41 Cal.4th 825.
IV
Defendant Curtwright claims the court erred in failing to stay his sentences for possession of a dirk and possession of burglary tools pursuant to Penal Code section 654.
Penal Code section 654, subdivision (a), provides in pertinent 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.”
Penal Code section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216.) Whether a course of criminal conduct is divisible and 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 the offenses were incident to a single objective, the defendant may be punished for only one. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) However, if the defendant entertained multiple criminal objectives that were independent of one another, he may be punished for each offense committed in pursuit of each objective even though the offenses were otherwise part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
“The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.]” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
The People correctly concede the sentence for possession of burglary tools should have been stayed.
The evidence at trial strongly suggests the burglary tools, in particular the pry bar and the modified wrench, were used to gain entry to the building and to try to pry open the safe. The burglary took place some time after 6:30 p.m. on December 15, 2003, when the last person left the office. Defendant and codefendant were stopped at 1:53 a.m. the morning of December 16 with the burglary tools in the car. Pry marks were found on the safe, and the deadbolt had been removed from the door in a manner consistent with the use of the modified wrench found in the defendants’ car.
Since the tools were possessed to commit the burglary, sentence should have been stayed under Penal Code section 654. (People v. Castillo (1990) 217 Cal.App.3d 1020, 1023.) We shall modify the sentence accordingly.
The trial court already stayed codefendant Fabila’s sentence for possession of burglary tools pursuant to Penal Code section 654.
Defendant Curtwright argues his sentence for possession of a dirk should have been stayed by the trial court because there was no evidence of when defendant came into possession of the dirk or committed the burglary. We disagree.
“It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (Harrison, supra, 48 Cal.3d at p. 335.) There is no evidence defendant either used or intended to use the dirk in the burglary. The burglary took place at night in a small office building, thus minimizing the need for a weapon to successfully complete the crime. The trial court’s decision to impose a concurrent sentence for possession of a dirk was supported by substantial evidence.
V
Defendant Curtwright and the People identify errors in the abstract.
The trial court ordered defendant Curtwright to pay a $29.95 jail classification fee pursuant to Government Code section 29550.2 and ordered both defendants to reimburse the county for attorney costs of $2,440 subject to a determination of his ability to pay by the Department of Revenue and Recovery (DRR).
The abstract erroneously lists Curtwright being ordered to pay a $178.96 main jail booking fee pursuant to Penal Code section 29550.2. We order the abstract corrected to reflect the fee pronounced by the court.
The abstracts for both defendants list Curtwright and Fabila as having to pay $2,440 in attorney’s fees through the DRR, but omits the requirement that DRR determine the defendant’s ability to pay. We direct both abstracts be amended to state: “Defendant shall pay up to $2,440 in Attorney Fees, subject to a finding of an ability to pay, through DRR.”
The trial court ordered defendant Curtwright and codefendant Fabila to make restitution to the victim pursuant to Penal Code section 2085.5, subdivision (b). Neither abstract states the restitution order. We order both abstracts amended to reflect the restitution orders.
DISPOSITION
The six-month concurrent term imposed for defendant Curtwright’s conviction for possession of burglary tools is hereby ordered stayed pursuant to Penal Code section 654. As modified the judgment is affirmed. The superior court is directed to amend the abstracts of judgment in accordance with this opinion and to forward certified copies of said amended abstracts to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J., MORRISON, J.