Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 03F10833 & 05F10511
SCOTLAND, P.J.
Defendant Marlon Dean Becker was arrested when he attempted to cash a stolen check and was wearing a ring stolen from the same victim. A jury convicted defendant of receiving stolen property (count one), second degree burglary for entering the check cashing establishment with intent to commit a felony (count two), and possessing a forged check with intent to defraud (count three).
Finding that defendant had served a prior prison term, the trial court sentenced him to state prison for an aggregate unstayed term of four years and eight months--the upper term of three years for receiving stolen property; a consecutive term of eight months (one-third of the middle term) for burglary; a consecutive term of one year for the prison term enhancement; a term of two years, stayed, for possessing a forged check; and a concurrent term of eight months (one-third of the middle term) for a burglary conviction in another case--and imposed other orders not challenged on appeal.
Defendant contends that the imposition of consecutive sentences for receiving stolen property and second degree burglary violated Penal Code section 654 (further section references are to this code), and that the court improperly imposed the upper term based on factors not found true by the jury. We disagree and shall affirm the judgment.
FACTS
The victim awoke in the middle of the night when she heard her car alarm in the garage. She went outside and saw that the garage door was up and that a man was inside the car. When she confronted him, he walked away. After she returned to her house, the victim noticed that her purse, checkbook, and several items of costume jewelry were missing.
The following morning, defendant went to the Money Mart store on Del Paso Boulevard, where he attempted to cash a check stolen from the victim; the check was made out to defendant in the amount of $75. When contacted by a store employee, the victim confirmed that she did not know defendant and the check was not authorized. The store notified police, and defendant was arrested. At the time of his arrest, defendant wore a costume jewelry ring belonging to the victim.
Asked whether she could identify defendant as the man whom she had seen and to whom she had spoken, she responded: “I’m not sure; he’s about the same size.”
At trial, the defense was that defendant did not know the ring and the check were stolen. When he was arrested, defendant told the police he bought the ring that morning for $10 from a man near the K Street Mall, and that he received the $75 check from another man in exchange for helping move some furniture.
DISCUSSION
I
Defendant’s attempt to negotiate the stolen check was the basis of the charges in both count two (commercial burglary of Money Mart) and count three (possessing a forged check with intent to defraud). Therefore, the trial court stayed the sentence on count three. However, it ordered the sentence on count two to run consecutively to the sentence on count one (receiving stolen property).
Defendant contends that the trial court “unlawfully imposed a consecutive sentence [for the burglary] where the record does not show with certainty that the jury’s verdicts permitted consecutive sentences rather than a section 654 stay.”
His argument is as follows: (1) the “record is ambiguous as to whether the jury convicted [him] in Count [one] for receiving the stolen ring or for receiving the stolen check” taken from the victim’s home; (2) even if the conviction were based solely on the ring, “receiving multiple items of stolen property can only result in one conviction and defendant cannot be given separate convictions for each item”; (3) his attempt to pass the stolen check “was merely a means to the end of trying to get value out of the property that was otherwise worthless”; thus (4) the commercial burglary was part of an indivisible course of conduct, incident to one objective, such that the consecutive term for burglary violated section 654, which states 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.”
The information charging defendant in count one with receiving stolen property did not specify the stolen property on which the charge was based; the jury instructions did not specify whether the charge was based on the ring or the check; and the verdict forms did not distinguish between them. Although the prosecutor in his opening statement told the jury defendant was “charged with receiving stolen property, the ring,” he emphasized in his closing argument that the elements of receiving stolen property had been met by both defendant’s possession of the ring and the check. (The People claim “defense counsel acknowledged in closing argument that the stolen item in this case was ‘an item of costume jewelry with a low value.’” Not so. That statement made was at sentencing, not in closing argument, and that reference to both the ring and the check was made simply in an effort to convince the court that the low values of both items warranted misdemeanor punishment on all convictions.) A unanimity instruction was not required because the ring and that check were stolen from the same victim and, therefore, were so closely connected that they were part of one transaction for purposes of the receiving stolen property charge. (See People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Haynes (1998) 61 Cal.App.4th 1282, 1295.)
Even were we to agree with defendant that his possession of the stolen check and his entry into the check cashing establishment with an intent to commit forgery were part of a single plan to “get value out of” the stolen property, his contention fails.
“Under section 654, ‘a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. . . . This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. . . .” (People v. Gaio (2000) 81 Cal.App.4th 919, 935, citations omitted; see also People v. Andra (2007) 156 Cal.App.4th 638, 640.)
Here, the crime of receiving the stolen check taken from the victim’s home was completed prior to defendant’s decision to enter the check cashing establishment with the intent to negotiate the stolen and forged check. Accordingly, the trial court was entitled to conclude that the separation in time between the crimes afforded defendant ample opportunity to “reflect” upon his first crime and then “renew” his criminal behavior. (People v. Gaio, supra, 81 Cal.App.4th at p. 935; People v. Andra, supra, 156 Cal.App.4th at pp. 640-641 [defendant’s intent and objective presented factual questions for the trial court, and its findings will be upheld if supported by substantial evidence; we review the evidence in the light most favorable to the judgment, and presume in support of the trial court’s conclusion the existence of every fact it could reasonably deduce from the evidence].) Thus, consecutive terms for receiving stolen property and the ensuing burglary were not barred by section 654. Indeed, the imposition of separate punishment for the two crimes was commensurate with defendant’s culpability (see People v. Gaio, supra, at p. 935) because a defendant who attempts to defraud a business establishment by passing property stolen from a residence is more culpable than a person who simply receives and retains the stolen property.
Defendant’s reliance on People v. Coelho (2001) 89 Cal.App.4th 861 (hereafter Coelho) is misplaced. The appellant in that case was convicted of multiple sex crimes as to which the trial court could have imposed concurrent sentences or discretionary consecutive sentences (§ 667.6, subd. (c)) or mandatory consecutive sentences (§ 667.6, subd. (d)), depending upon which one of the multiple acts the convictions were based. In this circumstance, Coelho held that “if the jury could have based its verdicts upon a number of unlawful acts and the court cannot determine beyond a reasonable doubt the particular acts the jury selected, the court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms.” (Id. at p. 865.) Coelho did not involve section 654. With section 654, the issue is whether multiple punishment is proper at all. Moreover, “Section 654 . . . is a discretionary benefit provided by the Legislature to apply in those limited situations where one’s culpability is less than the statutory penalty for one’s crimes.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1022.) Since the Legislature is not obligated to provide this benefit at all, it is not unfair to require only that the court’s findings on a section 654 determination be supported by substantial evidence, and not additionally require the court to fathom, beyond a reasonable doubt, the act upon which the jury relied to convict.
II
The probation department recommended imposition of the middle term for receiving stolen property. Imposing the upper term instead, the trial court explained to defendant: “The problem is you have got an impressive [criminal] history, sir. This is not your first time down this road. That’s the problem, and I’m sure you can appreciate that.”
After noting that the manner in which the crime was carried out indicated a degree of planning and sophistication, and that the prosecutor elected not to charge defendant with burglary of the victim’s home, the trial court returned to the issue of defendant’s recidivism, stating: “[M]ore impressive to the Court, under [California Rules of Court,] Rule 4.421(b)(2), the Defendant’s prior[] convictions as an adult are numerous. That is being generous. Between 1987 and ‘89, the Defendant was convicted of brandishing, battery, petty theft, petty theft with a prior and resisting arrest. In 1989 he was convicted of three separate counts of sales of cocaine. In 1990 he was convicted of petty theft with a prior. [In] 1992 another Health and Safety Code 11352, sales of cocaine base. [¶] For some reason, it was not until 1998 when he suffered a state prison commitment for violations of 11350 and 666, petty theft with a prior. Then, . . . in 2003 he suffers another hand-to-hand sale and yet goes for 180 days in county jail. . . . Then further in 2003 he suffers a separate conviction for burglary in the second degree and is placed on probation after he’d already been to prison for these offenses. . . . [¶] His record is extensive. He shows no indication from 1987 to the present of any ability to resist or to deny or to fail to commit criminal offenses either of a drug variety or of a theft variety. That factor alone weighs heavily in the Court’s ultimate disposition.”
Defendant contends that the trial court violated defendant’s Sixth Amendment right to a jury trial by imposing the “upper term sentence based on aggravating factors [other than defendant’s prior criminal convictions] not found true by the jury.” (Citing Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham.)
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (hereafter Blakely), the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by the jury’s verdict or admitted by the defendant. Thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-444].)
In Cunningham, the Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 864]; overruling People v. Black (2005) 35 Cal.4th 1238 on this point, a decision vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)
Interpreting Cunningham, the California Supreme Court held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (hereafter Black II).) This is so because “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 863]).” (Black II, supra, 41 Cal.4th at p. 812.)
“Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, 41 Cal.4th at p. 813.)
Consequently, “[t]he issue to be determined in each case is whether the trial court’s fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Black II, supra, 41 Cal.4th at p. 815; orig. italics.) “As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
Here, the trial court found that defendant’s history of prior criminal convictions warranted imposition of the upper term, a determination that did not violate the rule of Apprendi/Blakely/ Cunningham, which does not apply to an aggravated sentence based on a defendant’s prior convictions.
That the trial court also considered additional aggravating factors unrelated to recidivism does not undermine its decision to impose the upper term. “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that a consecutive unstayed term of eight months (not two years) was imposed for the burglary conviction alleged in count two; a consecutive term of one year was imposed for the prior prison term enhancement; and a concurrent unstayed term of eight months (not two years) was imposed for the burglary conviction alleged in count one B of case No. 03F10833. The trial court is further directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.