Opinion
A148821
06-28-2017
THE PEOPLE, Plaintiff and Respondent, v. ALVIN JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-150445-5)
INTRODUCTION
This is an appeal by defendant from the sentence imposed by the trial court. The Attorney General concedes the sentence was incorrect and needs modification. We agree.
STATEMENT OF THE CASE
Defendant was charged in an information filed April 27, 2016, with first degree burglary in count 1 (Pen. Code, § 459), car theft in count 2 (Veh. Code, § 10851, subd. (a)), and receiving stolen property in count 3 (§ 496d, subd. (a)).
Unless otherwise stated all references herein are to the Penal Code. --------
On June 10, 2016, the information was amended to add a charge of second degree burglary (§ 459/460, subd. (a)) and to dismiss the receiving stolen property charge. On the same day, after a negotiated disposition, defendant entered a no contest plea to first degree burglary, car theft, and second degree burglary (§ 459, subd. (b)). The court then sentenced defendant to a concurrent sentence of two years in state prison with credits.
On June 16, 2016, defendant filed his notice of appeal.
STATEMENT OF FACTS
The recitation of the facts is derived from the preliminary hearing transcript. On March 5, 2015, around 9:15 a.m., Kayla Olmstead arrived at her home located in Contra Costa County. Olmstead observed an older white car backed up into her driveway. Seconds later, she noticed the front door of her home was opened. A few minutes later, two or three men exited the home quickly, got in the car parked in the driveway, and drove away from the Olmstead home. When Olmstead entered her home, she determined it was ransacked and her laptop and iPad were taken.
Later that morning, members of the California Highway Patrol and Antioch Police Department chased a stolen car, described as a white Nissan Maxima, on Highway 4 in Contra Costa County. During the chase, the car drove in excess of 100 miles per hour. Eventually the car crashed alongside the highway at the intersection of Interstate 680 and Treat Boulevard. Items possibly belonging to Olmstead were found in the car. Later, Olmstead identified the property as hers. Defendant was one of two people taken from the car and delivered to the hospital.
In an interview with Antioch Police Officer Patrick Mayer, defendant stated he had stolen the Maxima approximately one week before the chase and used the car to transport items he took in burglaries. He acknowledged the Maxima was used in the theft at the Olmstead home.
During the search of the car's interior, police found the MacBook and iPad belonging to Olmstead. Inscribed on the iPad was the name of the victim of the burglary. Furthermore, the owner of the Maxima, Denise Bugara-Castaneda, did not know defendant and did not consent to his use of her vehicle.
DISCUSSION
The trial court in this case sentenced defendant for the crimes of first degree burglary and second degree burglary. This was erroneous because each sentence involved the same burglary at the Olmstead residence. This was a violation of section 654, as argued by counsel for defendant in his brief and agreed upon by respondent.
On June 10, 2016, the court permitted the district attorney to dismiss count 3, the charge of receiving stolen property, and then add a count of second degree burglary. The problem was the new burglary involved the same date and site as alleged in count 1. The district attorney then proposed a plea bargain in which defendant would enter a no contest plea to first degree burglary, vehicle theft, and second degree burglary. Under the terms of the bargain, if defendant completed parole successfully, the first degree burglary would be dismissed and replaced by the second degree burglary so defendant would not have a strike conviction. Defendant agreed to the plea bargain and entered no contest pleas to first degree burglary, vehicle theft, and second degree burglary as charged. The trial court sentenced defendant to the low term of two years for first degree burglary and imposed concurrent sentences of two years each for the vehicle theft and second degree burglary offenses.
It is clear the imposition of even concurrent sentences for first degree burglary and second degree burglary for an alleged offense happening on the same day and at the same location is a violation of section 654, subdivision (a). That section states: "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." (Italics added.) Since the burglary charged as first degree and as second degree was located at the same place and at the same time, it could not be imposed concurrently. The second degree burglary conviction should have been stayed. (People v. Leloza (1988) 18 Cal.4th 585, 591-592.)
DISPOSITION
We conclude the sentence for second degree burglary in this matter is stayed pursuant to section 654. We otherwise affirm the judgment as modified.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.