Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 01F05331
HULL, J.Defendant Richard Lee Karelas was convicted of stalking following issuance of a court order, residential burglary and vandalism. Although defendant was initially placed on probation, the trial court found defendant violated probation by stalking another victim, making criminal threats, and vandalizing her property as well. The trial court sentenced defendant to the mid-term of four years for the burglary and concurrent mid-terms for the stalking and vandalism. On appeal, defendant claims the terms for stalking and vandalism must be stayed pursuant to Penal Code section 654 (undesignated statutory references that follow are to the Penal Code) both because his actions were part of an indivisible course of conduct and because the stay is required by Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We affirm the judgment.
Facts and Proceedngs
We take the facts surrounding the underlying offenses from our previous unpublished opinion filed in case No. C046764, the appellate record of which we have taken judicial notice of in accordance with defendant’s request.
After meeting in 1990, defendant and the victim, J.Z., commenced an intimate relationship. In June 1999, they moved to property they jointly purchased in Wilton (Wilton property). They lived in a recreational vehicle at first before moving into a manufactured home (Wilton residence) in December 1999. The couple stored some of their personal belongings in a barn on the Wilton property.
In February 2000, the victim told defendant she “couldn’t be with him” and that she was moving out. When the victim brought up the issue of selling the Wilton residence, defendant threatened to smash the walls with a sledgehammer and to “blow the [victim]” away if she called the police and he was jailed.
The victim continued to live with defendant at the Wilton residence, but hastened her plans for departure when, after the victim brought up the sale of the Wilton property in August 2000, defendant engaged in a violent outburst. At that time, defendant responded to the victim’s suggestion by punching a hole in the wall, throwing the victim’s cellular phone outside, threatening to break her golf clubs, and dumping hot spaghetti on her.
In September 2000, the victim leased a house in Sacramento. The night the victim moved out, defendant called her and threatened to “come after” her, anyone with her, or her children. This call commenced a pattern of harassment and stalking that continued until the criminal action was commenced in July 2001.
After moving from the Wilton residence, the victim filed for a restraining order against defendant. Defendant was served on September 18, and that evening he called the victim’s sister in New Mexico to vent his anger and frustration. The sister had accepted numerous calls of a similar nature from defendant, in the hope that allowing him to express himself would help him put the relationship behind him. Even though she listened to him for an hour that evening, defendant remained agitated. At 2:00 a.m. the following morning, defendant called the sister again and admitted he had burned down the barn on the Wilton property.
On September 25, 2000, the court issued a restraining order prohibiting defendant from contacting the victim. Soon thereafter, the victim started receiving several hang-up telephone calls per day on her cellular phone, until December 2000, when she changed the number. Within a week, defendant called the victim’s new number, even though she had not given it to him. During this period, defendant maintained his regular telephone contact with the victim’s sister, who was growing weary of his repetitive tirades. During one call, defendant boasted that he knew where the victim lived even though she had tried to keep her new address a secret.
On January 4, 2001, defendant confronted the victim and a work supervisor, with whom she was having an affair, in the parking lot of The Stock market, a restaurant and bar she and the supervisor frequented. Defendant told them that he knew about their affair, shouted obscenities, and threatened to call the supervisor’s wife. The two men wrestled briefly before the confrontation ended. The supervisor telephoned the victim after they left to console her, while defendant left a message about the affair with the supervisor’s wife. When the supervisor finished his call to the victim, he received a call from his wife. The affair ended that evening, although the supervisor and the victim remained friends.
A few days later defendant appeared at the workplace of the supervisor’s wife to discuss her husband’s affair with the victim, and to imply that her husband was a suspect in the barn fire at the Wilton property. The supervisor’s wife said that they had been married 39 years; he would not do such a thing; and she did not want to speak to defendant again.
In mid-January 2001, defendant called the victim at work and called her a whore. At the end of January 2001, the victim traveled to a work retreat. When she returned from the retreat, she discovered that a burglar had broken into her house and stolen $3,000 to $5,000 worth of jewelry, her golf clubs, a handgun, a videocassette recorder, and other items.
The burglar also made off with a number of documents having no apparent value, including papers related to the victim’s legal dispute with defendant over the Wilton property, a copy of the restraining order against defendant, a log file of her contacts with defendant both before and after issuance of the restraining order, her personal phone book, and a phone bill that identified the victim’s new, unlisted cellular telephone number.
The burglar also damaged some of the victim’s personal property. The victim’s sofa and coats were slashed, chemicals or bleach was poured over her clothes, shoes and a valuable decorative saddle, and other items of personal property were destroyed.
The burglar also had plugged the bathtub and turned on the water, causing the house to flood. The refrigerator and freezer doors were open, and the heater was turned all the way up.
In late February 2001, the victim again saw defendant tailing her as she drove to an appointment. The victim returned to the Wilton property and observed that the Wilton residence was covered with graffiti.
In April 2001, defendant followed the victim to her attorney’s office.
In June 2001, defendant accosted the victim while she was loading groceries into her car.
In July 2001, while the victim was stuck in a golf course parking lot trying to start her vehicle, she saw defendant parked nearby. One week later, after the victim concluded a meeting with her attorney, defendant again appeared as she left her attorney’s office.
The defense was premised principally on denial. Defendant testified that he did not burn the barn down or admit what he did to the victim’s sister, nor did he make hang-up calls to the victim, break into or vandalize the victim’s house, or spray graffiti on the Wilton residence. With respect to the confrontation between himself and the supervisor in the parking lot of The Stock market, defendant testified that he observed the victim and supervisor intermittently kissing and disappearing from view while they were sitting in the cab of the supervisor’s truck. When defendant appeared at the side of the truck, he saw the victim’s pantyhose on the dashboard and the supervisor was “smiling like crazy.” When the supervisor saw defendant, he jumped out of the cab and tackled defendant, leaving a short while later.
Defendant was charged by information with stalking following issuance of a court order, residential burglary, vandalism, and misdemeanor violation of a protective order.
The jury returned a guilty verdict on all counts. On April 23, 2004, the court suspended imposition of sentence and placed defendant on probation for five years on condition, among others, that he serve concurrent one-year jail terms on all convictions. He was also ordered to obey all laws.
Instead, defendant found a new victim. From October 21, 2005 to January 15, 2006, he harassed his former girlfriend, M.J., whom he had dated for 10 months. He repeatedly telephoned and left notes calling her names, vandalized her vehicles, threatened her, and on one occasion, grabbed and shoved her. During this time, M.J. had obtained a restraining order against defendant.
A petition for violation of probation was filed, alleging defendant had violated his probation by stalking M.J., making criminal threats, and vandalizing her property. After a hearing, the trial court found defendant in violation of his probation.
On September 13, 2006, the trial court denied reinstatement of probation and sentenced defendant to the mid-term of four years for first degree burglary, a concurrent three years for stalking while a restraining order was in effect, and a concurrent two years for vandalism.
Discussion
I
The Section 654 Claim
Defendant contends the trial court erred by failing to stay his terms for stalking and vandalism pursuant to section 654. He claims his actions were all part of an indivisible course of conduct.
Section 654 provides, in relevant 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.” “‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’” (People v. Latimer (1993) 5 Cal.4th 1203, 1208, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19, italics omitted.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
The question whether a defendant entertained multiple criminal objectives is one of fact for the trial court. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Here, there is substantial evidence that defendant harbored three separate criminal objectives when committing the stalking, burglary and vandalism crimes. As admitted by defendant, he committed the stalking offense to cause his victim, J.Z., to suffer emotional distress by harassing and scaring her. Indeed, he did so for a year.
During that time, however, he also vandalized her property and committed a burglary during which he stole several items from her home. The evidence supports a finding that he committed those crimes with separate criminal objectives.
The evidence supports the finding that defendant’s objective in committing the burglary was to obtain valuable property and steal evidence of his stalking crime. Among other items, he stole a handgun and jewelry valued at $3,000-$6,000. He also stole the victim’s logs of his repeated telephone calls. This objective is separate from his ongoing objective of scaring the victim.
Defendant also did over $30,000 worth of property damage during his burglary. Such property damage was not merely incidental to his theft. Defendant slashed the victim’s sofa and coats, poured chemicals on her clothes, shoes and a $3,500 decorative saddle, destroyed art, spoiled food, and flooded the house. The evidence supports the finding that defendant harbored a separate objective of vengefully and maliciously damaging as much of his victim’s property as possible and causing her monetary loss.
To the extent defendant’s vandalism was also for the purpose of causing the victim emotional stress, we emphasize that a defendant may not invoke some broad, amorphous intent or objective to invoke the section 654 protection. (See People v. Perez (1979) 23 Cal.3d 545, 552-553.) And, in any event, defendant committed the vandalism not only to intimidate the victim, but also, no doubt, to cause her the expense of repairing the damage. The ultimate aim of section 654 is to align punishment with culpability. (Id. at pp. 550-551.) A defendant who attempts to achieve his goal of terrorizing his victim by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act. (See id. at p. 553.)
In sum, we reject the proposition that defendant may be punished for only one offense because all his crimes were part of the year-long campaign of terror he waged upon his victim. The evidence supports the trial court’s implicit finding that defendant harbored separate criminal objectives and, therefore, could be sentenced for each offense.
II
The Factual Findings Supporting the Concurrent Sentences
Defendant also contends that his concurrent and unstayed sentences cannot stand because the jury, rather than the trial court, was required to determine whether he entertained a single objective or multiple objectives in the commission of his offenses within the meaning of section 654. His contention lacks merit.
As noted above, whether a course of conduct is indivisible depends on the intent and objective of the defendant. (People v. Perez, supra, 23 Cal.3d at p. 551.) The factual question of whether a defendant entertained multiple criminal objectives has been considered one for the trial court. (Ibid.)
Defendant contends a jury determination of whether he harbored multiple criminal objectives is compelled by the United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), which held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum for the crime must be submitted to a jury and proved beyond a reasonable doubt. Defendant’s argument, however, was explicitly rejected by the court in People v. Solis (2001) 90 Cal.App.4th 1002 (Solis) and by the majority opinion in People v. Cleveland (2001) 87 Cal.App.4th 263 (Cleveland). We need not discuss Apprendi, Solis and Cleveland at length; it will suffice simply to quote the pertinent portions of the Cleveland decision (with the appropriate bracketed insertions):
“Unlike . . . the ‘hate crime’ provision in Apprendi, section 654 is not a sentencing ‘enhancement.’ On the contrary, it is a sentencing ‘reduction’ statute. Section 654 is not a mandate of constitutional law. Instead, it 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. Thus, when section 654 is found to apply, it effectively ‘reduces’ the total sentence otherwise authorized by the jury’s verdict. The rule of Apprendi, however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jury’s verdict. In Apprendi, the factual determination (i.e., the element of intent for the hate crime) which increased his sentence was not determined by the trier of fact under the reasonable doubt standard. Here, however, every factual element of the [three counts] was submitted to the jury, and the jury found [defendant] guilty beyond a reasonable doubt of [all three] crimes. Thus, the jury’s verdict authorized the sentences [defendant] received for each crime. Indeed, in finding section 654 did not apply, [defendant] received the same sentence as he was [otherwise] exposed to by the jury’s verdict. Where, as here, the nonjury factual determination allows for a sentence within the range already authorized by the verdict, Apprendi has no effect.”
“[Defendant] also argues that the rationale of Apprendi applies to the determination of ‘intent and objective’ because section 654 sets the ‘maximum penalty’ for his conduct. He asserts, the ‘maximum penalty’ under section 654 is punishment under . . . one statutory provision, not more than one. [Defendant] claims that to determine whether the defendant should receive a sentence greater than the maximum penalty under section 654 (i.e., whether he should be sentenced under more than one provision), the trier of fact must make a factual determination of the defendant’s ‘intent and objective.’ Thus, under Apprendi, argues [defendant], the jury rather than the court must make the appropriate factual determination of ‘intent and objective.’ This argument fails. Section 654 does not contain the ‘maximum penalty’ for any particular crime. The ‘maximum penalty’ discussed in Apprendi pertains to the specific offenses at issue; Apprendi is relevant only where a judge-made factual determination increases the maximum statutory penalty for the particular crime or crimes. Here, [defendant] was convicted of [three separate violations of the Penal Code--vandalism, punishable by a prison term of 16 months, two years or three years; stalking, punishable by a prison term of two, three or four years; and burglary, punishable by a prison term of two, four or six years]. . . . Thus, [defendant’s] sentence of [four years for burglary, a concurrent three-year term for stalking and a concurrent two-year term for vandalism] does not exceed the statutory maximum for [any] of the individual offenses.” (Cleveland, supra, 87 Cal.App.4th at pp. 270-271.)
Defendant argues that Cleveland and Solis were wrongly decided and we should not follow them. We find the reasoning of Cleveland sound and shall apply it here. Nothing in Blakely or Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] undermines the conclusions reached in Solis and Cleveland, regarding the trial court’s decision whether to stay sentences under section 654. Indeed, the California Supreme Court expressly approved of Cleveland and Solis,stating, “[f]or purposes of the right to a jury trial, the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently. Both are sentencing decisions 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 neither implicates the defendant’s right to a jury trial . . . .” (People v. Black (2005) 35 Cal.4th 1238 at page 1264 (Black I), later vacated sub nom. Black v. California (2007) 549 U.S. ___ [167 L.Ed.2d 36]. Although the United States Supreme Court overruled Black I on other grounds in Cunningham, Cunningham did not address either the decision to sentence consecutively or concurrently or whether to stay sentences under section 654.
Hence, we reject defendant’s constitutional challenge to the trial court’s section 654 determination.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.