Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. PA057130. Robert J. Schuit, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director and Ann Krausz for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant Frank Minks (defendant) admitted that over a four month period, he drove an accomplice to multiple residential locations that the accomplice burglarized. Defendant claimed he acted under coercion or duress, i.e., death threats by the accomplice. The jury convicted defendant on one count of first degree burglary and one count of receiving stolen property. The trial court sentenced defendant to two years in state prison.
Defendant makes two contentions on appeal: (i) The trial court erred when it denied defendant’s request for probation; and (ii) the trial court erred when it imposed both a two-year sentence on the burglary conviction and a concurrent two-year sentence on the receiving stolen property conviction, instead of staying the latter sentence pursuant to Penal Code section 654.
All statutory references are to the Penal Code.
We hold that the trial court did not abuse its discretion in denying defendant’s request for probation and that section 654 does not apply in this case. We therefore affirm the judgment.
Defendant was charged with four residential burglaries but convicted of only one—the August 21, 2006, burglary at Annie Martinez’s house on Lahey Street (Martinez burglary). We therefore omit the testimony of the victims of and witnesses to the other charged burglaries.
On August 21, 2006, Annie Martinez lived at 15916 Lahey Street, Granada Hills, California. She left home that morning at 7:30 a.m. after locking and securing the house. When she returned home, she noticed that the side door to the house was open. She went around the back of the house and noticed her window was broken. She entered the house and found “a mess in [her] room.” There was an open, empty jewelry box on her bed, and all of her drawers had been opened. Her daughter’s room was also in disarray.
In addition to the jewelry that had been in her jewelry box, Martinez discovered that her laptop computer, digital camera, and MP3 player were missing. Her daughter’s “boom box” radio was also missing.
Martinez identified pictures of the following eight items of jewelry that were taken in the burglary, recovered by the police, and returned to her: her daughter’s two “pinkie” rings; two of her necklaces and one of her daughter’s necklaces; her engagement ring; her father’s watch; and her roommate’s watch.
On August 22, 2006, at 9:00 a.m., Los Angeles Police Officer Cesar Contreras was on duty with his partner, assigned to the “motel task force.” Officer Contreras and his partner went to the Panorama Inn located at 8209 Sepulveda Boulevard to check motel registrations. They were conducting a “follow-up subsequent to an arrest.” Officer Contreras discovered that room nine was registered to James Taylor, with a second registration for that room under defendant’s name. Officer Contreras and his partner went to room nine and knocked on the door. When no one answered, the officers entered the room with a key provided by the motel manager. As they entered the room, Officer Contreras saw Taylor lying on the bed, speaking on a cell phone. He noticed items of personal property “all over the room.” He saw jewelry on the bed and identification cards, social security cards, and credit cards on a dresser. They recovered jewelry, electronics, social security cards, a driver’s license, and five pawn shop receipts. The officers arrested Taylor at 9:00 a.m. that morning and transported him to jail.
The task force was a specialized unit that worked all the motels throughout the Valley. Members of the unit conducted inspections, spoke to management, and spoke to guests.
The witnesses referred to this motel as both the Panorama Motel and the Panorama Inn. For consistency, we refer to it as the Panorama Inn.
When a guest registers at a motel, he or she is required to provide the clerk with identification.
After transporting Taylor to jail, the officers proceeded to the Hometown Motel to interview defendant. They contacted the clerk at that motel and reviewed the registration card for defendant’s room. When the officers went to defendant’s room, he invited them in and was very cooperative. The officers informed him that they were conducting a burglary investigation and defendant responded that “he knew very well what [they] were talking about.” Defendant admitted to Officer Contreras that on the prior day, he drove Taylor to a residence on Lahey Street where defendant parked and Taylor went into the residence and committed a burglary. He further admitted that a “stereo” in his room had been taken from the Lahey Street location. The officers recovered the radio and approximately 200 pieces of jewelry from defendant’s room.
The witnesses referred to defendant’s residential motel as both the Hometown Motel and the Hometown Inn. For consistency, we refer to it as the Hometown Motel.
The officers arrested defendant, but before they took him to the police station, they drove to certain locations where defendant indicated burglaries had been committed. The officers attempted to contact the occupants of three or four of the houses defendant pointed out to them that night, leaving other locations that defendant had mentioned for the detectives in the morning. After the officers took defendant to the station. Officer Contreras watched defendant prepare a written statement detailing defendant’s involvement in burglaries committed by Taylor.
At trial, defendant read his statement to the police into the record.
On August 23, 2006, Los Angeles Police Detective Martin Gonzales was assigned as a burglary investigator at the Mission Division of the Los Angeles Police Department. He interviewed defendant that day about the particulars of the case. Defendant told Detective Gonzales that he first met Taylor about a year prior to the interview. Defendant asked Taylor to help him pick up a refrigerator at a house in the area of “Sepulveda and Nordhoff.” After the two men picked up the refrigerator, defendant saw Taylor “disappear” behind the house. Taylor returned with “a lot of jewelry in his hands.” Defendant asked Taylor what had happened and Taylor told defendant that he had “just gone into the house and gotten the jewelry from the house.” Defendant decided not to say anything about the incident and not to report it.
Defendant told Detective Gonzales that several days later, Taylor approached defendant and asked defendant to drive him someplace. Taylor said something to the effect of “Let’s go to work.” When defendant told Taylor he did not want to get involved, Taylor reminded defendant that defendant had no choice because his involvement with Taylor in the incident at the house several days prior made defendant “just as guilty [as Taylor] for that burglary.” Taylor then put a screwdriver to defendant’s neck and threatened to hurt defendant if he did not do as he was instructed. Defendant decided to drive Taylor to the location Taylor specified.
Defendant described for Detective Gonzales how, after Taylor threatened him, he would drive Taylor to houses Taylor specified, park while Taylor exited the vehicle and “disappeared,” and then see Taylor return 20 to 30 minutes later. Taylor sold the items he took during the burglaries to pawn shops or persons on the street.
After interviewing defendant, Detective Gonzales drove him to various locations defendant identified as houses that Taylor had burglarized while defendant waited. Defendant also told the detective that Taylor would sometimes commit burglaries on his own or with Taylor’s wife.
Defendant admitted to Detective Gonzales that on one occasion, Taylor directed defendant to drive him to the vicinity of Lahey Street and Haskell Avenue. Defendant parked his truck a short distance from a house Taylor had pointed out and Taylor exited the truck and was out of sight for 20 minutes or so. Taylor returned to the truck and directed defendant to an alley behind the house on Lahey. As defendant drove Taylor down the alley behind the house, they came to a wall that had items of property placed on top: a laptop computer, a DVD player, and a radio. Taylor later told defendant that he sold the laptop computer to an Hispanic male near Sepulveda Boulevard.
Detective Gonzales asked defendant how Taylor picked certain houses to burglarize. Defendant explained that Taylor would usually pick houses without vehicles in the driveway. Taylor preferred streets that did not have many cars driving or parked on them. Taylor avoided houses on main streets or on cul-de-sacs. Once Taylor selected a house, he would knock on the front door. If someone answered, Taylor would pretend to be looking for a fictitious person and then leave. If no one answered, Taylor would move to the rear of the house and knock on the back door to confirm no one was home. Taylor would then break a back window with his hands, enter the home, and remove property.
Taylor targeted items such as money, jewelry, and electronic equipment—items he could easily sell at pawn shops or on the street. Taylor preferred to break into houses during the day when the occupants were at work, usually between 10:00 a.m. and 3:00 p.m. During the time defendant was driving Taylor to the locations Taylor would burglarize, Taylor was burglarizing a minimum of three houses a day. Defendant told Detective Gonzales that he drove Taylor to approximately 14 to 18 burglaries.
In addition to the incident with the screwdriver, defendant also reported to Detective Gonzales that Taylor had pulled a gun on him on two other occasions. As for the jewelry that was recovered from his room, defendant acknowledged that it had been stolen, but stated that he intended to try to return it to its owners.
Defendant testified on his own behalf and related the following details concerning his involvement with Taylor and the string of burglaries: At the time of trial, defendant had lived for about two years with his wife at the Hometown Motel located at 9401 Sepulveda Boulevard. In April or May 2006, defendant was not working, having retired from his job with the movie studios due to health problems. He was 50 years old at the time of trial and living on social security income because of his disabilities.
Defendant met Taylor in 2006, “just in passing,” at the Hometown Motel. The manager of the motel asked defendant if he was interested in helping a woman move a king size bed. Defendant could not move the bed by himself so, as Taylor was passing by, he asked if Taylor would help, offering to split the $50 fee for moving the bed. That evening defendant and Taylor met the woman and her husband at a storage facility and loaded three beds on to defendant’s blue Ford Ranger XLT pickup truck, and followed them to their new apartment. Defendant and Taylor unloaded the mattresses and helped the man and woman move them into the new apartment. The couple then asked the men to help them move a refrigerator the next morning. The men agreed.
The next morning, defendant and Taylor followed the woman to a house where the refrigerator was located. The two men loaded the refrigerator and a barbecue on to defendant’s pickup, and the woman left the location. As defendant was strapping the refrigerator and barbecue down, he saw Taylor go behind the house. Just as defendant finished securing his load, he saw Taylor emerge from behind the house “carrying a bunch of stuff.” Defendant asked where Taylor had obtained the items he was carrying, and Taylor told him it was from inside the house. When defendant became upset, Taylor “grabbed a screwdriver, stuck it under [defendant’s] throat, and threatened to kill [defendant] if [defendant] said anything.” Defendant became “scared and didn’t say anything.” Defendant and Taylor proceeded to the woman’s apartment where they unloaded the refrigerator and barbecue.
Taylor was a large man, about five feet and 11 inches tall, weighing between 230 and 240 pounds, and about 35 years of age. Defendant, who was 50 years old, was five feet, eight or nine inches tall, and weighed between 185 and 190 pounds.
Defendant drove back to the Hometown Motel, dropped off Taylor, and went straight to defendant’s room. He did not mention the incident to his wife because she was ill and he did not want her to worry. Within a week after the first incident, Taylor approached defendant, told defendant he was an “accessory,” and demanded that defendant drive Taylor someplace. When defendant refused, Taylor pulled out a gun, cocked it, and put it to defendant’s head. He told defendant that he would kill defendant’s dog, then defendant’s wife as defendant watched, and then defendant. Defendant decided to do whatever Taylor asked him to do.
Taylor told defendant that he wanted to visit someone who owed him money. He directed defendant to drive to a location and park around the corner, where Taylor exited the truck, walked around the corner, disappeared, and came back with jewelry and a DVD player. Taylor was happy, and told defendant to drive him to a pawn shop where Taylor sold what he could of the jewelry.
Whatever jewelry defendant could not pawn or sell on the street, he would leave in defendant’s truck and tell defendant to throw it away. But defendant did not dispose of that jewelry. Instead, he put it in bags and kept it. Taylor kept leaving items he could not pawn in defendant’s truck and defendant put the items in plastic bags for return to the owners, because he knew he and Taylor would be apprehended.
On one occasion, Taylor forced defendant to go with him into the pawn shop and “put two things [a silver necklace and binoculars] in [defendant’s] name.” Taylor wanted to “have something on [defendant] so [defendant] wouldn’t say anything.” Taylor told defendant that if defendant “turned [Taylor] in,” Taylor would know from the police report that defendant had done so, and Taylor would have defendant’s dog and wife killed in front of defendant and then have defendant killed.
After the second incident in the first weeks of May, Taylor had defendant drive him to burglaries two or three times a week. After about a month, defendant went to Taylor’s room and told Taylor he, defendant, could not “do this anymore.” As defendant turned to leave Taylor’s room, Taylor put a pistol to the back of defendant’s head and cocked it. Taylor laughed and repeated the threats he had made previously.
In the June or July 2006 time frame, Taylor “disappeared for awhile.” Defendant was relieved because he thought Taylor had been caught and that “[i]t’s over with. It’s done.” But Taylor eventually returned to reside at the Hometown Motel, until he became involved in an argument with the manager and “got kicked out” of the motel.
Taylor left the Hometown Motel in August and defendant did not hear from him for a few days. Then Taylor called defendant to pick Taylor up at Taylor’s mother-in-law’s house. Taylor directed defendant to drive around the corner, proceed down the street a short distance, and park. Taylor exited the vehicle and went into a house. Taylor returned and directed defendant to drive down an alley behind the house. Taylor had property items “stacked” on a wall: a laptop, a “little stereo player,” some jewelry, and a DVD player. Taylor took those items to the pawn shop and then had defendant register Taylor at the Panorama Inn, because Taylor did not want his name on the registration card. But the manager required both men to fill out registration cards. They registered at the Panorama Inn the evening before defendant’s August 22 arrest. Between the first burglary in May and defendant’s arrest in August, Taylor called and told him “let’s go to work,” around 15 times.
After registering with Taylor at the Panorama Inn, defendant returned to the Hometown Motel. The next morning, defendant removed some items from his truck, including a “little stereo” Taylor had left in the truck, and returned to his room. He spent the rest of the day in his room with his wife. The police arrived and asked defendant if he had a laptop computer. When defendant asked why the police were inquiring, they told him they had arrested Taylor. Defendant was relieved and he told the police “everything that happened.” After speaking with the police, defendant took them to two of the houses that Taylor had burglarized. The police arrested defendant and had him provide a written statement about his involvement with Taylor. The next day, Detective Gonzales drove defendant to “the houses that [defendant] could recall and [remember] how to get there.”
During the crime spree, defendant did not call the police for help because he was scared and took Taylor’s threats seriously. Defendant did not move from the Hometown Motel because his wife was ill, and she liked the location because it was safe. Relocating would have alerted his wife that “something was up.”
PROCEDURAL BACKGROUND
In an information, the Los Angeles County District Attorney charged defendant in Counts 1, 2, 5, and 7 with first degree residential burglary in violation of section 459—each charge a felony; and in Count 4 with receiving stolen property in violation of section 496, subdivision (a)—a felony. Defendant pleaded not guilty.
The case proceeded to a jury trial, and the jury found defendant guilty on Count 1—first degree residential burglary—and on Count 4—receiving stolen property. But the jury acquitted defendant on the other three counts of first degree residential burglary—Counts 2, 5, and 7.
At the sentencing hearing, the trial court denied defendant’s request for probation. The trial court imposed a low term, two-year sentence on Count 1 and an additional middle term, two-year sentence on Count 4 to run concurrently to the sentence on Count 1. Defendant timely appealed from the judgment of conviction.
DISCUSSION
A. Section 462
Defendant challenges the trial court’s denial of his request for probation. According to defendant, the trial court abused its discretion in determining whether defendant was eligible for probation under section 462. Defendant contends that the determination of whether this case presented the “unusual circumstances” required for defendant to be eligible for probation under section 462 should be guided by all of the factors set forth in California Rules of Court, rule 4.413 (rule 4.413); that the trial court failed to consider all of those factors; and that such failure constituted an abuse of discretion. In particular, defendant argues that the trial court did not consider whether defendant’s participation in the crimes was the result of great provocation, coercion, and duress not amounting to a defense, pointing to his testimony about Taylor’s repeated death threats. Assuming, without deciding, that the trial court’s decision to grant or deny probation under section 462 must be guided by the factors enumerated in rule 4.413, the trial court did not abuse its discretion.
Section 462 provides: “(a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house or trailer coach as defined in Section 635 of the Vehicle Code, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or the inhabited portion of any other building. [¶] (b) If the court grants probation under subdivision (a), it shall specify the reason or reasons for that order on the court record.” (Italics added.)
Rule 4.413 provides: “(a) Consideration of eligibility The court must determine whether the defendant is eligible for probation. [¶] (b) Probation in unusual cases If the defendant comes under a statutory provision prohibiting probation ‘except in unusual cases where the interests of justice would best be served,’ or a substantially equivalent provision, the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation. (c) Facts showing unusual case The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) Facts relating to basis for limitation on probation A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: [¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. [¶] (2) Facts limiting defendant’s culpability A fact or circumstance not amounting to a defense, but reducing the defendant’s culpability for the offense, including: [¶] (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.” (Italics added.)
Our review of the trial court’s order denying probation is governed by an abuse of discretion standard of review. “Probation is an act of clemency that is granted only in the discretion of the judge. (People v. Towe (1984) 158 Cal.App.3d 368, 372 [204 Cal.Rptr. 733, citing People v. Phillips (1977) 76 Cal.App.3d 207, 213 [142 Cal.Rptr. 658].) An order denying probation may be reversed for failure to consider an application for probation on its merits, unfair hearing procedures, receipt of an ex parte communication, or a clear abuse of discretion. An arbitrary refusal of probation or a denial of probation based on a mistaken belief of ineligibility constitutes reversible error. (3 Witkin, Cal. Criminal Law (2d ed. 1989) §§ 1653-1654, p. 1967; see People v. Arredondo (1975) 52 Cal.App.3d 973, 981 [125 Cal.Rptr. 419].)” (People v. Read (1990) 221 Cal.App.3d 685, 689.)
In this case, the trial court noted that the jury rejected defendant’s coercion defense and, in doing so, implicitly rejected that contention as well. Based on the facts before the trial court, it was not unreasonable for the court to reject defendant’s assertion of coercion as it related to the issue of probation. This was not a case in which defendant committed or aided in the commission of a single offense while under great provocation, coercion, or duress not amounting to a defense. As defendant admitted, he knowingly drove Taylor to at least 14 different locations and waited while Taylor burglarized the residences. He also drove Taylor to pawn shops and other locations so that Taylor could sell the property taken in the burglaries. The crime spree spanned a period of several months from approximately early May to late August—with a two-month hiatus beginning around late June or early July. Thus, even if the trial court accepted defendant’s testimony that Taylor threatened his life on at least three occasions with either a screwdriver or a gun, it was reasonable to infer that defendant had the time and ability to extricate himself from his relationship with Taylor, but did not do so. Moreover, defendant was found to be in possession of over 200 pieces of jewelry from the burglaries which property he had ample opportunity to dispose of, but chose not to. Based on the evidence, it was not unreasonable for the trial court to conclude that defendant was more of a willing participant in the crime spree than he had admitted.
In addition, it is clear that the trial court also considered defendant’s age and the medical condition of both defendant and his wife. And, although the trial court found defendant to be a “sympathetic figure,” it also expressly found that none of the factors that made defendant sympathetic, including his financial and health problems, could “excuse the conduct that [defendant] himself admitted when he took the stand.” That the trial court did not make specific reference to rule 4.413 is not dispositive because the record reflects that the court was aware of the basic factors listed in that rule and considered them when making its probation determination. Therefore, its decision to deny probation was not arbitrary or capricious, but rather reasoned and well-considered.
B. Section 654
Defendant contends that the trial court erred when it imposed a second, two-year concurrent sentence on the receipt of stolen property conviction, in addition to the two-year sentence on the burglary conviction. According to defendant, section 654 prohibited the imposition of the second sentence because the course of conduct that gave rise to the burglary conviction was indivisible from the course of conduct that gave rise to his receipt of stolen property conviction.
Section 654 provides: “(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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. [¶] (b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.”
“Section 654 bars multiple punishment for a single ‘act or omission.’ ‘Although it “literally applies only where such punishment arises out of multiple statutory violations produced by the ‘same act or omission,’” we have extended its protection “to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.]” [Citation.]’ (People v. Oates (2004) 32 Cal.4th 1048, 1062 [12 Cal.Rptr.3d 325, 88 P.3d 56].)” (People v. Rameriz (2006) 39 Cal.4th 398, 478.) “The focus of this rule is whether defendant acted pursuant to a single intent and objective.” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)
In this case, the evidence showed that defendant participated in several burglaries with Taylor in the May and June 2006 timeframe. Defendant admitted that he kept jewelry from those burglaries that Taylor had either given to him or left in his car. The police recovered over 200 pieces of jewelry from defendant’s room that defendant admitted were taken during the burglaries. Although some of that jewelry may have been from the August 21, 2006, Martinez burglary, the majority of the jewelry recovered from defendant’s room could not have been from that crime because Martinez identified only eight pieces of jewelry that were taken from her residence.
That the prior burglaries in which defendant participated were separated in time from the Martinez burglary shows that he had a separate intent and objective concerning the property taken during those earlier crimes. By his own admission, defendant had two months prior to the Martinez burglary to reflect on his prior course of conduct with Taylor, and he was relieved when Taylor disappeared in late June, believing the crime spree was over. Nevertheless, when Taylor called him on August 21, he formed a new intent and objective in relation to the events at the Martinez residence, as evidenced by his voluntary participation in the burglary of that location.
Similarly, that over 190 pieces of jewelry from burglaries other than the Martinez burglary were recovered from defendant’s room further demonstrates that defendant’s intent and objective concerning that property were separate from his intent and objective in participating in the Martinez burglary. Defendant knew the items recovered from his room were stolen, yet he made no effort to return the items, notwithstanding his stated intent to do so. That evidence was sufficient to support a reasonable inference that the two crimes defendant committed did not arise from an indivisible course of conduct. Accordingly, section 654 did not prohibit the trial court from imposing separate punishments for both the burglary and the receipt of stolen property convictions. The trial court, therefore, did not err in imposing the second, concurrent two-year sentence.
DISPOSITION
The judgment of the trial court is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.