Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06SCR03502, 06NCR04490.
NICHOLSON, Acting P.J.
In this appeal, defendant Kevin Paul Warnock challenges the trial court’s sentencing him to concurrent prison terms for unlawfully taking a vehicle and for evading a peace officer. He asserts Penal Code section 654 required the court to stay the evasion count instead of running it concurrently to the theft count. We disagree and affirm the judgment.
As there was no trial, the facts are taken from defendant’s probation report.
While on patrol on December 3, 2006, Glenn County Deputy Sheriff D. Dicharry stopped to investigate a vehicle parked in an orchard with its engine running. Defendant was asleep in the car. Deputy Dicharry awoke defendant and asked him if he owned the car. Defendant said he did not. He was resting while on his way to Redding. Deputy Dicharry asked defendant for his driver’s license. Defendant said he had lost it, but then he placed the vehicle in drive and sped away. Deputy Dicharry gave chase until defendant drove his car into a ditch. Deputy Dicharry arrested him at gunpoint.
Deputy Dicharry found drugs and drug paraphernalia on defendant’s person and a weapon in his car. Defendant was carrying 11 individually wrapped plastic baggies containing what was later determined to be heroin, and a baggie with what was later determined to be methamphetamine. Defendant also had on his person a silver kitchen spoon and two syringes. He stated the heroin was for his personal use and that he did not sell it. Officers also located in defendant’s car a shotgun and a full box of .45 caliber handgun ammunition.
Defendant pled guilty to, among other counts, willfully and unlawfully driving and taking a vehicle without the owner’s consent (Veh. Code, § 10851), and evading a peace officer (Veh. Code, § 2800.2, subd. (a).)
These facts pertain to case No. 06SCR03502. A second complaint, case No. 06NCR04490, charged defendant with theft and drug charges stemming from a separate incident. Those charges were resolved, and defendant was sentenced on them together with the charges in 06SCR03502. Although defendant’s appeal is from both cases, he addresses only the concurrent sentence imposed on the evasion count in 06SCR03502. We thus do not address any of the other facts or issues in either case.
At sentencing, the trial court misspoke. It sentenced defendant to a prison term of three years, the upper term, on the vehicle theft count. However, when it imposed sentence on the evasion count, the court stated: “For the violation of 2800.2(a) I’m going to find that 654 applies on that case, so that will be a concurrent 3 year term.”
Documents prepared by the court do not indicate the sentence on the evasion count was stayed under Penal Code section 654 (hereafter section 654). The court’s minute order lists the sentence as concurrent. The abstract of judgment also lists the sentence as concurrent, and it does not indicate the sentence was stayed under section 654.
DISCUSSION
Before us, defendant contends the concurrent sentence on the evasion count should have been stayed under section 654. Relying on the trial court’s misstatement, he asserts that because the court found the vehicle theft count and the evasion count fell under the purview of section 654, the sentence on the evasion count should be stayed. We disagree.
Section 654 prohibits punishment for two offenses arising from the same act or a non-divisible transaction. (Neal v. State of California (1960) 55 Cal.2d 11, 18 (Neal).) The statute applies not only when there is one act, “‘but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.’ [Citation.]” (Neal, supra, 55 Cal.2d at p. 19.)
Section 654, subdivision (b) reads: “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.”
“‘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.’ (Neal, supra, 55 Cal.2d at p. 19, italics added.)” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
“‘The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.’ [Citation.]” (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
Substantial evidence in the record demonstrates defendant’s crimes in this matter were not incident to one objective. Defendant had two separate objectives. First, he sought to take the vehicle. He accomplished this objective the moment he removed the vehicle from its owner’s possession and moved it for any distance, no matter how small. (People v. Frye (1994) 28 Cal.App.4th 1080, 1088.) Obviously, defendant satisfied this objective long before he stopped the vehicle in the orchard to rest.
Second, and separately, defendant sought to evade the police. This act was not incidental to taking the vehicle, nor was it the means of accomplishing or facilitating that crime. Defendant’s intent to evade was to get away from the officer; an intent separate from his earlier intent to take the car from its owner. Because he committed the crimes with two distinct criminal objectives, section 654 did not bar separate sentences for each of the crimes.
The trial court’s statement that section 654 applied was inadvertent. Otherwise, the court would not have gone to the effort of imposing a concurrent sentence term, as reflected in the court minutes and the abstract of judgment. Substantial evidence supports the court’s judgment that section 654 did not apply in this instance.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.