Opinion
G045736 Super. Ct. No. 08HF1560
01-24-2012
In re KARIM TAMBOUSIE KIDD on Habeas Corpus.
Karim Tambousie Kidd, in pro. per., for Petitioner. Kamala D. Harris, Attorney General, and Deputy Attorney General Kevin Vienna for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Richard F. Toohey, Judge. Petition granted.
Karim Tambousie Kidd, in pro. per., for Petitioner.
Kamala D. Harris, Attorney General, and Deputy Attorney General Kevin Vienna for Respondent. THE COURT:
Before Rylaarsdam, Acting, P.J., O'Leary, J., and Fybel, J.
Following a jury trial, petitioner, Karim Tambousie Kidd, was convicted of second degree commercial burglary, second degree robbery, and petty theft with a prior theft related conviction. Prior prison term enhancements were also found true and Kidd was sentenced to six years. Although Kidd raises a number of issues which we find are without merit, we find that he is entitled to relief with respect to his claim that his sentence is improper because it represents multiple punishment.
We summarily deny all other claims raised in the petition on the basis that Kidd has failed to plead sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)
FACTS
Ten days before the offense in this case, a store employee saw Karim Tambousie Kidd walk out of the store rolling a suitcase full of the store's merchandise.When the same employee saw Kidd enter the store ten days later, this time the employee and her manager watched Kidd walk to the luggage department, fill luggage with store merchandise, and then proceed to the store exit. This second time however, Kidd was met with resistance as the store manager and other employees physically attempted to stop Kidd from leaving the store. It was during the physical confrontation with store employees that Kidd bit the manager's arm.
We take judicial notice of the record in the direct appeal in case number G042974. (Evid. Code §§ 452, subd. (d), 459.)
A jury convicted Kidd of second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)), second degree robbery (§§ 211, 212.5, subd. (c)), and petty theft with a prior theft related conviction (§§ 666, 488, 484 subd. (a)) all arising from the events on August 15, 2008. In a bifurcated proceeding, the trial court found true Kidd's six theft-related convictions and the fact that he had served three prior prison terms.
All further references are to the Penal Code unless otherwise noted.
--------
According to the abstract of judgment, Kidd was sentenced to three years for second degree burglary, plus three concurrent years for his convictions for second degree robbery and petty theft with a prior theft related conviction. The trial court added three consecutive years to Kidd's sentence because of his prior prison terms pursuant to subdivision (b) of section 667.5, for a total of six years in prison. Kidd contends his sentence represents multiple punishment and we agree. Respondent was invited to file an informal response solely on the issue of Kidd's improper sentence and respondent concedes Kidd is entitled to relief.
DISCUSSION
"[S]ection 654 prohibits punishment for two crimes arising from a single indivisible course of conduct" (People v. Perry (2007) 154 Cal.App.4th 1521, 1525) when the defendant had only one objective. Subdivision (a) of section 654 states in part that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provisions 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."
In this case, the store employee testified that when Kidd entered the store, she watched as he once again went to the luggage department and filled luggage with store merchandise. During his unsuccessful effort to leave the store without paying for the cache of merchandise stashed inside the luggage, Kidd bit the manager when the store's employees tried to prevent him from leaving the store. Courts have repeatedly held that section 654 prohibits punishment for both burglary and robbery when the defendant harbors the same intent for both offenses. (People v. Smith (1985) 163 Cal.App.3d 908, 912.) Because the burglary and robbery were incident to one objective, Kidd's intent to steal merchandise from the store on August 15, 2008, it cannot be said that Kidd acted with multiple independent objectives, and thus Kidd may be punished for either the burglary or the robbery, but not for both.
Respondent respectfully concedes that Kidd's sentence for both burglary and robbery are barred by operation of section 654 and the trial court should have either stayed the sentence for the burglary or the robbery conviction. Respondent also concedes that Kidd's claim is not barred by any procedural rule when a trial court has acted in excess of its jurisdiction. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
We accept respondent's concession as consent to grant relief without the issuance of an order to show cause (People v. Romero (1994) 8 Cal.4th 728) and agree "the court acts 'in excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654." (People v. Scott, (supra) 9 Cal.4th at 354, fn. 17.)
DISPOSITION
For the forgoing reasons, the petition is granted in part. The Orange County Superior Court is ordered to prepare a new abstract of judgment and sentencing minute order staying the robbery sentence in count two pursuant to section 654, and to forward the new abstract of judgment and corrected sentencing minute order to the appropriate agencies.