Opinion
C077195
09-28-2015
THE PEOPLE, Plaintiff and Respondent, v. RANDY KEITH MCCORKLE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62110180)
Following a jury trial, defendant Randy Keith McCorkle was convicted of first degree residential burglary while a nonparticipant was present, taking or driving a motor vehicle without the owner's consent, evading an officer with willful disregard, and resisting an officer. The trial court found true allegations that defendant had two prior strike convictions, two prior serious felony convictions, and three prior prison terms, and sentenced defendant to an aggregate determinate term of 15 years eight months in state prison. On appeal, defendant contends: (1) there was insufficient evidence to support the burglary conviction; (2) the jury instructions on burglary impermissibly allowed the jury to infer guilt from defendant's possession of a stolen car; (3) the trial court abused its discretion in denying his Romero motion; (4) the trial court should have stayed the sentences on the convictions for evading an officer and resisting an officer; and (5) the trial court improperly made dual use of a prior burglary conviction to enhance defendant's sentence.
Defendant pleaded no contest to evading an officer immediately before trial.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We conclude the trial court erroneously used the prior burglary conviction to enhance defendant's sentence. We further conclude that defendant's sentence for resisting an officer should have been stayed pursuant to section 654. We reject defendant's remaining claims of error. Accordingly, we will modify the judgment to correct the above-described sentencing errors and affirm the judgment as modified.
BACKGROUND
Alice and Atancio Hernandez have lived in their home at 818 Elefa Street in Roseville for more than 40 years. On November 15, 2011, in the early morning hours, Alice was awakened by the sound of her back door closing. Half asleep, Alice got up, locked the door, and went back to bed.
Several hours later, Alice was awakened a second time when a police officer knocked on her door. The police officer asked Alice and Atancio to check their belongings to determine whether they had been the victims of a burglary. Alice looked around the house and discovered that her purse was missing. In the purse, Alice kept her credit cards, driver's license, and a small metallic container which held Alice's AAA insurance card. Atancio, for his part, was missing his wallet.
Andrew Larsen lived approximately 1.3 miles away from the Hernandez residence. He owned a Chevy Silverado pickup truck. In the early morning hours of November 15, 2011, Larsen was awakened by the sound of someone starting his truck. He looked out the window in time to see the truck slowly drive away.
Larsen borrowed his roommate's car and gave chase. While Larsen was following the stolen truck, he telephoned the Roseville Police Department, who joined the pursuit.
Roseville Police Department Detective Vince Dutto spotted the stolen truck near Adelante High School and took over the chase from Larsen. Dutto was joined by other police units, and the chase continued, sometimes at high speeds, into Citrus Heights. The chase ended when the truck collided with the guy wire of a telephone pole on Mariposa Avenue, near the intersection with Sycamore Road. As Dutto came to a stop behind the truck, he saw someone open the driver's side door and flee the scene. The driver was wearing a black sweatshirt with a white logo, black pants with a red marking, and a black beanie. The driver ran into the backyard of 7620 Mariposa Avenue, and then disappeared into the darkness.
Betty Cleghorn lives at 7620 Mariposa Avenue. In the early morning hours of November 15, 2011, Cleghorn heard police sirens and looked out her front window. She saw that a truck had collided with a telephone pole in front of her house. Standing inside her house, Cleghorn heard someone open the side gate, run through her backyard, and vault the rear fence. Cleghorn also noted that the motion-sensor lighting in her backyard was illuminated.
Police set up a perimeter and deployed canine units. Police found defendant hiding in the bushes of a nearby house. Defendant was wearing the same clothes as the person that Detective Dutto had seen fleeing from the stolen pickup truck. Police found a pair of gloves and a black beanie in the same bushes. Police searched defendant's person and found a cell phone, a screwdriver, and a small metallic container. Inside the container, police found a AAA insurance card bearing the name "Alice Hernandez." Later, Cleghorn found a backpack near the garbage cans in her backyard. She notified the Citrus Heights Police Department. A community service officer checked the backpack and found Atancio Hernandez's wallet, Alice Hernandez's purse, keys, a glass pipe, and a flashlight.
Defendant waived his constitutional rights and denied stealing Larsen's truck, or driving the truck during the police pursuit. Defendant claimed that he was out walking, saw police cars, "got scared," and then hid in the bushes. According to Detective Dutto, defendant said that he was not a car thief, "just a stupid burglar." Defendant did not offer any explanation for how he came to be in possession of Larsen's truck.
The Charges and Plea
Defendant was charged by amended complaint (subsequently deemed an information) with four counts as follows: first degree residential burglary while a nonparticipant was present (Pen. Code, §§ 459, 462, subd. (a)—count one); taking or driving a motor vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)—count two); evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)—count three); and resisting an officer (§ 148, subd. (a)(1)—count four). The information also alleged that defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)(1)), and five prior prison terms (§ 667.5, subd. (b)). Defendant pleaded not guilty and denied the allegations. Defendant subsequently changed his plea to no contest on count three (evading an officer).
Undesignated statutory references are to the Penal Code.
Jury Trial
The case was tried before a jury in May 2014. During the trial, Detective Dutto, the Hernandezes, Larsen, and Cleghorn testified to the facts described above. Detective Dutto also testified that flashlights and screwdrivers are frequently used as burglary tools. The Hernandezes and Larsen testified that they did not know defendant and did not give him permission to take their personal property.
Defense Evidence
Defendant also testified. Defendant explained that he was a drug addict who was struggling financially and so he began selling drugs. Defendant testified that he had previously sold drugs to Larsen, and had received the key to Larsen's truck as collateral in a drug deal.
On the night in question defendant said he first sold a gram of heroin to a friend in exchange for various articles of personal property, including a wallet, a woman's purse, a black backpack, a metal container, and a flashlight. Defendant explained that he was carrying the screwdriver for protection.
After completing the drug deal, defendant testified, he proceeded to Larsen's house, where he planned to retrieve the pickup truck. When he arrived, the lights in Larsen's home were on; he hid and waited for Larsen to go to sleep so he could "just jump in the truck and leave."
On cross-examination, defendant was impeached with five prior felony convictions, including three prior burglary convictions.
Jury Instructions
After the close of evidence, the trial court instructed the jury with CALCRIM No. 376 as follows: "If you conclude the defendant knew he possessed property and you conclude that the property had, in fact, been recently stolen, you may not convict the defendant of the residential burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove that he committed residential burglary. [¶] . . . [¶] The supporting evidence need only be slight and need not be enough evidence by itself to prove guilt. You may consider, however, where and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of residential burglary. [¶] Remember, that you may not convict the defendant of any crime unless you are convinced that each fact essential to that conclusion that the defendant is guilty of the crime has been proved beyond a reasonable doubt."
The jury was also instructed that, "[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one."
During closing argument, the prosecutor stated:
"So clearly a first-degree residential burglary occurred. The real issue for you to determine is whether or not you believe it was the defendant. This is where that circumstantial evidence comes into play. There is no direct evidence that the defendant was in [the Hernandez] house, so you look at the circumstantial evidence. Look at all the little facts we know. When we put all those little facts together, it shows and proves that the defendant was, in fact, the one that committed the burglary.
"Starting with the fact that [defendant] was in the neighborhood of Old Roseville that night. Given the fact that we know he was there because the officer saw him in Old Roseville about 1:30 when he started with the high-speed chase. He was at Mr. Larsen's house right before that.
"The defendant was wearing all black, trying not to be seen in the middle of the night, wearing his beanie, wearing gloves, classic burglar attire. Armed with burglary tools, perfect for going around breaking into things and breaking into places.
" And at the end actually has their property on his person when he's contacted a relatively short period of time later, that goes back to the jury instruction that possession of stolen property recently after it was stolen is evidence that the person committed the theft. You can consider that."
Later, the prosecutor reiterated: "We have the defendant out in the neighborhood that's not his own in the middle of the night. He's dressed like a burglar. He is armed with burglary tools, the screwdriver, and the flashlight. He's got a backpack for carrying the goods. He's running from the cops. He's hiding from the police officers after the crash. He's in possession of the victims' property very shortly after the burglary."
Verdict and Sentence
The jury found defendant guilty as charged. In a bifurcated proceeding, the trial court found true allegations that defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)(1)). The trial court reserved ruling on the prior prison term allegations until the time of sentencing.
In anticipation of sentencing, the probation department prepared a report summarizing defendant's criminal record. The report indicates that defendant has a criminal record spanning nearly two decades and including numerous convictions for attempted burglary, residential burglary, and vehicle burglary. The report also notes that defendant was on parole when the present offenses were committed, having been released from prison less than three months earlier. The report recommends an indeterminate sentence of 25 years to life and an aggregate determinate sentence of 12 years eight months.
At the sentencing hearing, the trial court found true allegations that defendant had served three prior prison terms. The trial court then heard argument on defendant's Romero motion. During oral argument, defense counsel emphasized defendant's ongoing struggle with drug addiction and the nonviolent nature of his offenses. The prosecutor countered that defendant's crimes posed a significant risk to his victims, the Hernandezes and Larsen. Furthermore, the prosecutor observed, defendant led police on a high-speed chase through Citrus Heights, thereby endangering the entire community.
Defendant's motion does not appear in the record.
The trial court then denied the motion, stating: "All right. So the Court is aware of my discretion under Romero and the 1385 to dismiss one or more of the strikes, and I am fully aware of my responsibility to determine if this is an unusual case where he would fall outside the spirit of the Three Strikes law; so I did spend quite a bit of time reviewing his background and also the facts of this case; and I just recited into the record his three prior commitments to prison."
The trial court continued: "I also note that on each one of the times he committed the previous offenses, he was on parole or probation and was on parole or probation when he committed this offense. It appears in the present offense that the defendant was out looking to commit a residential burglary by the manner of how he was dressed, the fact that he had burglar tools with him, [and was] completely dressed in black."
The trial court then considered defendant's criminal history, noting: "He's 36 years old and obviously previous attempts to rehabilitate him have failed. His record shows that he has a record as a juvenile. Even as a juvenile, he has an attempted burglary in 1996. He was convicted of driving under the influence. He was convicted of a misdemeanor carrying a concealed weapon in a vehicle in 1997. I noted that in the 1996 residential burglary conviction [it] was also found true that he was armed with a firearm, and I am aware apparently he might have found that gun during the burglary, but that wasn't an allegation that was sustained upon the conviction."
The trial court added: "He has had a history of drug abuse that appears to be ongoing. I also put weight in the fact that he testified falsely in front of the jury. I totally did not believe his story about not committing the burglary, also that he did not knowingly steal the victim's truck. I felt that was a mere attempt to avoid responsibility." "Given his history," the trial court concluded, "I feel he is a recidivist. He falls squarely within the wall of the Three Strikes statute and [poses] a risk to public safety. I will deny the defendant's motion to strike any of the prior convictions in this case."
The trial court then sentenced defendant to an indeterminate term of 25 years to life for the residential burglary conviction (count one) and a determinate term of 15 years eight months for unlawfully taking a vehicle and evading an officer. The determinate sentence was calculated as follows: the lower term of 16 months, doubled to two years eight months, for unlawfully taking a vehicle (count two); the midterm of two years, doubled to four years, concurrent, for the evading an officer (count three); 90 days in county jail, concurrent, for resisting an officer (count four); plus two consecutive five-year terms for the prior serious felony convictions; plus three consecutive one-year terms for the prior prison terms.
Defendant filed timely notices of appeal.
DISCUSSION
On appeal, defendant contends: (1) there was insufficient evidence to support the burglary conviction; (2) the jury instructions on burglary impermissibly allowed the jury to infer guilt from defendant's possession of a stolen car; (3) the trial court abused its discretion in denying his Romero motion; (4) the trial court should have stayed the sentences on the convictions for evading an officer and resisting an officer; and (5) the trial court improperly made dual use of a prior burglary conviction to enhance defendant's sentence. We address these contentions in turn.
I.
Sufficient Evidence Supports Defendant's Burglary Conviction
Defendant argues there is insufficient evidence to support his conviction for burglary. Specifically, defendant contends, "The record does not provide evidence from which a reasonable trier of fact could find beyond a reasonable doubt that [defendant] was the burglar." We disagree.
When considering a challenge to the sufficiency of evidence supporting a conviction, we must " 'review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.' " (People v. Jennings (1991) 53 Cal.3d 334, 364.) Even where the evidence of guilt is primarily circumstantial, the standard of appellate review is the same. (People v. Holt (1997) 15 Cal.4th 619, 668 [" ' " 'If the circumstances reasonably justify the [jury's] findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment' " ' "].) To succeed under a substantial evidence review, the defendant must establish that no rational jury could have concluded as it did—it does not matter that "the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime." (People v. Hill (1998) 17 Cal.4th 800, 849; see People v. Hovarter (2008) 44 Cal.4th 983, 1015 [" ' "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise" ' "].)
"When, as here, a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant's acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions." (People v. Mendoza (2000) 24 Cal.4th 130, 176.) "Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt." (People v. McFarland (1962) 58 Cal.2d 748, 754.) Corroborating circumstances "need not be sufficient to prove guilt by [themselves]" (People v. Moore (2011) 51 Cal.4th 1104, 1131 (Moore)) and may include "[f]light, false statements showing consciousness of guilt or as to how the property came into defendant's possession, assuming a false name, [or] inability to find the person from whom defendant claimed to have received the property . . . ." People v. Taylor (1935) 4 Cal.App.2d 214, 217 (Taylor), disapproved on other grounds in People v. Allen (1999) 21 Cal.4th 846, 863.) "And when defendant makes an explanation as to the manner in which he came into possession of such stolen property, the question as to whether he is telling the truth in that regard rests solely with the jury." (Taylor, supra, at pp. 217-218.)
With these guidelines in mind, we conclude the prosecution presented more than enough corroborating evidence to connect defendant to the burglary. The evidence shows that defendant led police on a high-speed chase originating approximately 1.3 miles from the Hernandez residence. He was found hiding in the bushes, wearing dark clothing, with a black beanie and gloves nearby. He was carrying a screwdriver. He discarded a backpack containing Atancio Hernandez's wallet, Alice Hernandez's purse, and a flashlight in Cleghorn's backyard. He told Detective Dutto that he was "just a stupid burglar." On this record, the jury could reasonably conclude beyond a reasonable doubt that defendant entered the Hernandez residence with intent to steal. The jury was free to reject defendant's explanation that he acquired the Hernandezes' personal property in a drug deal. We are not empowered to override the jury's reasonable conclusion. (People v. Stanley (1995) 10 Cal.4th 764, 793 [" ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " [Citations.]' "].) We therefore reject defendant's challenge to the sufficiency of the evidence.
II.
CALCRIM No. 376
Defendant contends the trial court erred in instructing the jury pursuant to CALCRIM No. 376. Specifically, defendant contends the instruction allowed the jury to infer guilt on the burglary charge from defendant's possession of Larsen's truck. We are not persuaded.
We review de novo whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) When reviewing a claim that the court's instructions were misleading or ambiguous, we inquire whether there is a reasonable likelihood the jury misunderstood and misapplied the instructions. (Moore, supra, 14 Cal.4th at p. 1140.) We consider the instructions as a whole and the entire record of trial, including the arguments of counsel. (People v. Lopez (2011) 198 Cal.App.4th 698, 708 (Lopez).) "We assume that the ' " 'jurors [were] intelligent persons and capable of understanding and correlating all jury instructions . . . given.' [Citation.]" [Citation.]' [Citation.] Instructions should be interpreted, if possible, to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. [Citation.]" (Ibid.)
We perceive no reasonable likelihood that the jury misunderstood or misapplied CALCRIM No. 376. The jury was separately instructed on the elements of burglary and unlawfully taking a vehicle. The jury was also instructed that, "[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." The prosecutor's closing arguments made clear that defendant's possession of recently stolen property from the Hernandez residence, coupled with other corroborating evidence, constituted circumstantial evidence of burglary.
There is nothing in the record to suggest that the jury viewed CALCRIM No. 376 as an invitation to "mix and match" the evidence, borrowing evidence of one crime to infer guilt of another. If anything, CALCRIM No. 376 reduces the risk of juror confusion. As the Lopez court observed, "CALCRIM No. 376 cautions the jury against inferring guilt based solely upon a defendant's conscious possession of recently stolen goods. It would be unreasonable and illogical for the jury to construe this instruction to also permit it to infer guilt on a burglary charge, because a defendant possessed property stolen during a completely different theft. ' "We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions. [Citations.]" [Citation.]' " (Lopez, supra, 198 Cal.App.4th at p. 710.) There is nothing in the record to suggest that the jury misunderstood or misapplied CALCRIM No. 376. We therefore reject defendant's claim of instructional error.
III.
Romero Motion
Next, defendant contends the trial court abused its discretion in denying his motion to strike one or more of his prior strike convictions. We disagree.
Section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, "and in furtherance of justice," to order an action dismissed. (§ 1385, subd. (a).) In Romero, the California Supreme Court held that a trial court may use section 1385 to strike or vacate a prior strike for purposes of sentencing under the "Three Strikes" law, "subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion." (Romero, supra, 13 Cal.4th at p. 504.) Thus, a trial court's "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
In ruling on a Romero motion, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
Dismissal of a strike is a departure from the sentencing norm. Therefore, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified where the trial court was unaware of its discretion to strike a prior strike or refused to do so for impermissible reasons. (Id. at p. 378.) But where the trial court, aware of its discretion, " 'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]." (Ibid.)
Defendant contends the trial court failed to give due consideration to the nonviolent nature of the current offenses. However, the fact that the current offenses were nonviolent does not mandate the granting of a Romero motion. (See People v. Strong (2001) 87 Cal.App.4th 328, 344 [reversing order granting Romero motion based on nonviolent nature of current offense because "the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law"]; see also People v. Poslof (2005) 126 Cal.App.4th 92, 108-109 [even though current crime of failing to register as sex offender was nonviolent, denial of the Romero motion was not an abuse of discretion]; People v. Gaston (1999) 74 Cal.App.4th 310, 321 (Gaston) [although current crime of car theft was "not as serious as many felonies," it was "far from trivial"].) Furthermore, defendant's current offenses, though nonviolent, were nonetheless quite serious. (Id. at p. 315; see also § 1192.7, subd. (c)(18).) Defendant broke into the Hernandez residence in the middle of the night, stole a truck, and led police on a high-speed chase through Citrus Heights. Though no one was hurt, defendant endangered his victims and an entire community. Thus, the fact that defendant's current offenses were nonviolent does not take him outside of the spirit of the Three Strikes law.
Defendant also argues that the trial court failed to give due consideration to the fact that his prior strike convictions "took place in 2000 and 1996, and are thus remote in time." However, defendant was in prison from 2000 through 2008. He was convicted of second degree burglary in 2009 and sent back to prison. He committed the current offenses within months of his release. As the trial court observed, "on each one of the times he committed the previous offenses, he was on parole or probation and was on parole or probation when he committed this offense." On this record, defendant can hardly be said to have been crime free, and his prior strike convictions cannot be considered "remote." (See Williams, supra, 17 Cal.4th at p. 163 [13 years between prior and current felony "not significant" because the defendant did not refrain from criminal activity]; People v. Philpot (2004) 122 Cal.App.4th 893, 906; People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Defendant also argues that the trial court failed to fully consider his drug addiction. "However, drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Here, the record indicates that defendant, age 36, has been abusing drugs since he was a teenager. Although defendant appears to have participated in some form of mandatory drug counseling as a juvenile, there is nothing in the record to suggest that he has ever sought treatment for drug addiction, despite his history of drug-related offenses. On this record, the trial court could reasonably conclude that defendant's prolonged drug abuse, and his failure to seek treatment for more than 20 years, suggest that his prospects for rehabilitation are bleak. (Gaston, supra, 74 Cal.App.4th at p. 322; Martinez, supra, at p. 1511; see also In re Handa (1985) 166 Cal.App.3d 966, 973-974 ["Drug use or drug addiction at the time of an offense is an example of a disputable factor in mitigation. The sentencing court may find that drug use did not significantly affect the defendant's capacity to exercise judgment or, in the case of an addiction of long standing, that the defendant was at fault for failing to take steps to break the addiction"].)
Relying on People v. Howard (1993) 17 Cal.App.4th 999 (Howard), defendant also argues that the trial court improperly considered "the fact that he testified falsely in front of the jury." In Howard, the Court of Appeal held that "when imposing an aggravated sentence on the ground the defendant committed perjury at trial, the sentencing court is constitutionally required to make on-the-record findings as to all the elements of a perjury violation." (Id. at p. 1001.) Howard found the trial court failed to make the required findings, but deemed the error harmless beyond a reasonable doubt because, given the conflicting testimony at trial, "the court' s own conclusion that there was perjury . . . could only have been based on a finding that Howard had been untruthful. There was no other basis for rejecting his testimony." (Id. at p. 1005.)
Unlike the present case, Howard involved a discretionary sentencing choice which required a statement of reasons and resulted in the imposition of an aggravated sentence. (Howard, supra, 17 Cal.App.4th at p. 1005.) By contrast, " 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclude[s] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." ' " (Carmony, supra, 33 Cal.4th at p. 377.) Moreover, "section 1385, subdivision (a), requires trial courts to state reasons for granting a motion to strike [citations], but not for declining to strike a strike." (People v. Zichwic (2001) 94 Cal.App.4th 944, 960.) Here, the court did not aggravate or enhance defendant's sentence when it decided that defendant did not fall outside the Three Strikes law. The court was not required to state its reasons for maintaining the status quo although, having chosen to do so, it was required to rely on legitimate reasons. Case law establishes that a trial court may legitimately rely on the defendant's perceived untruthfulness at trial as a basis for drawing negative inferences about his "character and prospects for rehabilitation." (People v. Redmond (1981) 29 Cal.3d 904, 913.) In light of these considerations, we conclude that the trial court was entitled to rely on defendant's perceived untruthfulness at trial, and was not required to make express findings on the elements of perjury.
Finally, defendant observes he "would still get a lengthy sentence if the court struck one of the priors and a determinate sentence for residential burglary were doubled." Defendant's observation, while arguably true, amounts to an invitation for us to second guess the trial court and substitute our own opinion as to leniency, which we cannot do. (Williams, supra, 17 Cal.4th at pp. 158-161.) There is no indication the trial court failed to consider any of the mitigating factors presented in connection with defendant's Romero motion. Accordingly, we conclude there was no abuse of discretion.
IV.
Section 654The trial court imposed a sentence of two years eight months for count two, unlawfully taking a vehicle; a concurrent term of four years for count three, evading an officer; and a concurrent term of 90 days in county jail for count four, resisting an officer. Defendant contends the trial court was required to stay the sentences on counts three and four pursuant to section 654. We conclude the trial court properly imposed a concurrent sentence for count three, evading an officer, but erred in imposing a concurrent sentence for count four, resisting an officer.
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.]" (People v. Deloza (1998) 18 Cal.4th 585, 591.) Imposition of concurrent sentences is incorrect if section 654 prohibits punishment for both crimes, even though there is no practical difference between the two approaches. (People v. Jones (2012) 54 Cal.4th 350, 353.) Instead, the correct approach is to stay the sentence on the count for which punishment is precluded. (Ibid.) Accordingly, we inquire whether defendant's convictions in counts two, three, and four were the result of a single act or omission, or an indivisible course of conduct.
" '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.' [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
" 'It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.]' [Citation.]" (People v. Hicks (1993) 6 Cal.4th 784, 789.) "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.]" (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
"The defendant's intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence. [Citation.]" (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
Defendant contends: "[E]vading an officer and delaying an officer were merely incidental to the primary objective of depriving the owner of the use of the vehicle. There was no other intent or objective behind the evading and delaying than to facilitate the taking of the vehicle." We disagree. Defendant's intent in unlawfully taking a vehicle was to gain possession of Larsen's pickup truck. The violation of Vehicle Code section 10851, subdivision (a) was complete when he took possession of the truck and drove away.
When defendant was observed by Detective Dutto driving a stolen vehicle, his intent changed. He was no longer simply taking possession of the vehicle; he was now seeking to avoid arrest. The attempt to escape was a separate act and had a separate intent. His conviction for violating Vehicle Code section 2800.2, subdivision (a) resulted from the new act and intent and therefore precludes application of section 654. We therefore conclude the trial court properly imposed a concurrent sentence for count three, evading an officer.
We next consider whether the trial court erred in imposing a concurrent sentence for count four, resisting an officer. Although defendant does not directly raise the issue, the People concede error, noting that defendant's "sole purpose and objective" in committing the offenses charged in counts three and four was "to escape or flee from the police and avoid arrest." According to the People: "The record shows that defendant initially fled from the deputies in the vehicle to avoid capture. Then, when he stopped the vehicle, defendant again fled from the deputies on foot, again to evade the police. There was no evidence that defendant had physically resisted or engaged in any other conduct than attempting to evade the police prior to his detention." We have reviewed the record and accept the People's concession. We therefore conclude that the concurrent term of 90 days in county jail for count four, resisting an officer, must be stayed pursuant to section 654.
V.
Duplicative Enhancement
Finally, defendant contends, and the People properly concede, that the trial court erred by imposing both a prior serious felony conviction enhancement (§ 667.5, subd. (a)) and a prior prison term enhancement (§ 667.5, subd. (b)) based on the same March 23, 2000, first degree burglary conviction. (See People v. Jones (1993) 5 Cal.4th 1142, 1153 [trial court cannot impose both prior serious felony conviction enhancement and prior prison term enhancement based on same underlying prior conviction]; accord People v. Perez (2011) 195 Cal.App.4th 801, 805 [trial court should have stricken the section 667.5 enhancement term].) We accept the People's concession and strike the one-year prior prison term enhancement.
DISPOSITION
We stay the sentence for resisting an officer (Pen. Code, § 148—count four) pursuant to Penal Code section 654, subdivision (a), and strike one of the three Penal Code section 667.5, subdivision (b) one-year prison enhancements. As so modified, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment reflecting these modifications and forward a certified copy to the Department of Corrections and Rehabilitation.
RENNER, J. We concur: BLEASE, Acting P. J. HOCH, J.