Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Harry L. Jacobs, Commissioner., Super. Ct. No. CRL000992
Susan D. Christian, 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, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Cornell, J. and Franson, J.
Appellant Steven Anthony Mihalovic was convicted of two counts of felony forgery (Pen. Code, § 475, subd. (c)), and one count of unlawful display of vehicle registration, a misdemeanor (§ 4462.5). The court imposed consecutive sentences for the forgery counts: the three-year upper term for count 1, and one-third the midterm for count 2, for a total of three years and eight months. The court also imposed a concurrent six-month sentence on count 3. On appeal, appellant contends the trial court erred in failing to stay the second forgery sentence, in violation of section 654. We disagree and affirm the sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL SUMMARY
On July 22, 2009, appellant purchased a fuel pump for $178.13 from a Napa Auto Parts store using a check, bearing the name and signature of “Aaron Avila.” A store employee later that day discovered the check was fraudulent and called the police, who investigated the matter the next day. Later on July 23, 2009, appellant returned to the store to purchase more auto parts. The store employee again called the police, who arrived while appellant was still at the store. Appellant admitted to the police he had passed the check the day before, and produced from his pocket another check, with the same identifying information and signature as the previous day’s check, but in the amount of $400.40.
In his defense, appellant testified he received the checks from Aaron Avila, his friend, and had witnessed Mr. Avila write out and sign the checks. He claimed he was using the checks to buy parts for Mr. Avila’s vehicles. Appellant also testified he had two prior felony convictions for receiving stolen property and false impersonation.
Prior to sentencing, a police detective tracked down Mr. Avila in the Merced County Jail and performed a handwriting comparison of a sample of Mr. Avila’s handwriting against the checks. The handwriting on the checks failed to match Mr. Avila’s provided samples, or his signature at booking. Mr. Avila also denied writing the checks.
DISCUSSION
Appellant contends section 654 bars separate punishments for both counts of forgery because they constitute an indivisible course of conduct with a singular objective of obtaining auto parts from one store. Respondent contends appellant had a separate intent as to each offense, committing one offense with intent, and later forming an independent intent to commit the subsequent offense. We agree with respondent.
Section 654 prohibits punishment for multiple convictions arising out of either an act or omission, or a course of conduct deemed to be indivisible in time, where the accused had only a single principal objective. (People v. Beamon (1973) 8 Cal.3d 625, 639 and fn.11 (Beamon).) “[T]he applicability of the statute to conceded facts is a question of law. [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) “The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished 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.” (Beamon, supra, at p. 639.) Even where a defendant has similar but consecutive objectives, multiple punishments are permitted. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212 (Latimer).)
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.”
Furthermore, “[a] person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective.” (Latimer, supra, 5 Cal.4th at p. 1211.) “[N]o special treatment is to be afforded to a defendant under section 654 simply because he chose to repeat, rather than to diversify or alternate, his many crimes. [Citations.]” (Harrison, supra, 48 Cal.3d at p. 337.) A defendant “should also not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his [criminal] behavior.… Whether defendant ends a break in the activity by renewing the same [criminal] act (as here) or by switching to a new one … the result under section 654 is the same.” (Id. at p. 338.)
A defendant’s criminal acts toward one victim, even when separated by a few seconds, can encompass separate intents for purposes of rendering inapplicable section 654 to a course of conduct. (See Harrison, supra, 48 Cal.3d 321.) Here, appellant committed two factually distinct transactions on two different days, thus constituting two separate acts, divisible in time. The first day, he passed a fraudulent check in the amount of $178.13 with the intent to commit forgery and illegally obtain a fuel pump. The next day, after ample time to choose his course of action and stop himself from engaging in further criminal conduct, he intended to pass another fraudulent check for a significantly larger amount with a renewed intent to commit forgery. These were clearly two different acts with consecutive--albeit similar--objectives separated in time by a day, and therefore section 654 is inapplicable.
Even were we to consider the two acts of forgery to constitute a single course of conduct, with an overarching intent to commit forgery to deprive the store of its goods, the acts themselves are divisible in time and not incidental to one another. Appellant asserts that but for the commission of the first act of forgery, he would not have committed the second, and thus the second act was incidental to the first. In our view, however, appellant could have committed either act by itself. The sequence of the acts was not determinative of the commission of either act and is not determinative of the application of section 654. (See Harrison, supra, 48 Cal.3d at p. 337.) Appellant’s assertion he only attempted to pass the second check because the first check appeared to pass successfully reinforces the fact appellant formulated a separate, renewed, intent after completion of the first act.
The trial court properly imposed consecutive sentences for the two forgery convictions.
DISPOSITION
The judgment is affirmed.