Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge. Super. Ct. No. BF117355A
Derek K. Kowata, 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, Senior Assistant Attorney General, Harry Joseph Colombo and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
OPINION
A jury convicted appellant Larry Paul Fitzgerald of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)), a felony, and possession of burglary tools (§ 466), a misdemeanor. The court imposed the two-year lower term on the felony and a concurrent 120-day jail sentence on the misdemeanor.
All further statutory references are to the Penal Code.
On appeal, appellant’s sole contention is that the trial court improperly sentenced him twice for the same “act,” in violation of section 654, when it imposed a sentence for both possession of burglary tools and burglary. We will affirm.
Section 654 provides, in relevant 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.”
FACTS
At approximately 1:40 a.m. on December 20, 2006 (December 20th), Kern County (KC) Deputy Sheriff Michael Barker was on patrol when he noticed a Nissan Xterra automobile parked in the parking lot of Olive Elementary School. Deputy Barker made contact with the occupant of the car, Adrian Correa, who told the deputy the following. He had arrived with appellant, and the two had stopped so that appellant could go “see a girl.” Thereafter, appellant got out of the car and “walked down Jayme Avenue,” and Correa “did not see him again.”
Inside the Xterra, which was registered to appellant, sheriff’s deputies at the scene found a set of bolt cutters, a pair of binoculars, and a police scanner. KC Deputy Sheriff Kevin Brewer, who later arrived on the scene, testified that these items are “commonly” used by burglars. Correa told Deputy Barker that the scanner, bolt cutters, and binoculars belonged to appellant.
On the evening of December 20th, during an inventory search of the Xterra, a “brass pipe that was wrapped in a balloon” was found in the glove compartment. Such an item is “used to smash windows”; the balloon “muzzles the sound.”
Deputy Brewer testified that he saw, on Jayme Avenue, “[d]irectly in front of the [Xterra],” a house with its garage door open, a light on in the garage, and several items stacked near the front of the garage.
Jack Turner testified to the following. He lives on Jayme Avenue. At approximately 2:00 a.m. on December 20th, KC sheriff’s deputies rang his door bell, wakened him, and asked him to come outside. When he did so, Turner saw that his garage door, which had been closed when he went to bed, was open; tools and air compressors belonging to him were laid out in an orderly fashion in his driveway; and four to five fishing rods and other pieces of fishing tackle were on his neighbor’s lawn. All these items had been inside Turner’s garage when he went to bed earlier that evening. Turner did not know appellant and had not given appellant permission to be in his garage or take his property.
KC Deputy Sheriff Mitchell Adams testified to the following. During the early morning hours of December 20th, he went to a location on Jayme Avenue, accompanied by a police dog. Shortly after arriving, the dog located appellant hiding in a garbage can located on the street behind Turner’s house.
Thereafter, appellant told Deputy Barker the following. Appellant had brought Correa to the area. Correa got out of the car and walked westbound on Jayme. He had not returned when Deputy Barker drove into the parking lot, at which point appellant ran off. The binoculars and scanner belonged to appellant, but the bolt cutters belonged to Correa.
KC Deputy Sheriff Joel Swanson testified that appellant and Correa were placed in a patrol car, the two conversed and their conversation was tape recorded.
The tape recording was played for the jury, and a transcript of the tape indicates the following exchange:
“(Inaudible Whispering)
“Fitzgerald: Inaudible…It was in that fuckin’ garage.
“Correa: You didn’t go in there did you?
“Fitzgerald: I fuckin’, I ran…(inaudible)
“Correa: You ran from where?
“Fitzgerald: The fuckin’ garage.”
Appellant testified to the following. He had nothing to do with “[what] might have happened” at Turner’s house on December 20th. He had stopped to buy marijuana from Tonia Jackson. After making the purchase, he was walking back to his car when he saw Deputy Barker, at which point appellant ran, discarded the marijuana, and hid in the garbage can. He had the scanner because “I like to know what’s going on in the community.” The bolt cutters belonged to Correa; appellant had borrowed them to “cut cable,” and he had returned them to Correa who was taking them home. The binoculars were his; he found them useful in his work as a heavy equipment operator.
When asked if he remembered saying, as indicated on the tape, that he ran from “the … garage,” appellant answered, “I remember the F-ing garage. I said, ‘We should have never left my F-ing garage,’ because that’s where we [were].”
DISCUSSION
“The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment. [Citation.] The ‘act’ necessary to invoke section 654 need not be an act in the ordinary sense of a separate, identifiable, physical incident, but may instead be a ‘course of conduct’ or series of acts violating more than one statute and comprising an indivisible transaction punishable under more than one statute.
“The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135, fn. omitted.)
“The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.] ‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
Appellant contends both of the instant offenses were committed with the same intent and objective: to steal property from the garage on Jayme Avenue. The People counter that substantial evidence supports the conclusion that appellant harbored multiple criminal intents. Specifically, the People argue that the court could reasonably infer that appellant committed the burglary with the objective of stealing property from Turner’s garage, and that he possessed burglary tools for the purpose of committing other burglaries. We conclude the People’s position is correct.
From the presence of the brass pipe and the bolt cutters in appellant’s car, the court reasonably could have concluded that these items were not used in the instant burglary. And this inference, considered in conjunction with the evidence that appellant committed at least one burglary -- that of Turner’s garage -- supports the further inference that appellant possessed the burglary tools found in his car for the purpose of committing other burglaries.
Appellant contends “The reasonable interpretation was that appellant possessed the burglary tools to gain access to the garage in order to steal property from it.” (Italics added.) And certainly this is one reasonable interpretation. The trial court could have decided the matter either way. However, as indicated above, the question of section 654’s applicability is primarily a question of fact for the trial court (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312), and “‘[w]e must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’” (Id. at pp. 1312-1313.) Therefore, the question before us is whether there is enough evidence to support the trial court’s determination on this point. We conclude there was.
DISPOSITION
The judgment is affirmed.