Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC615890
Mihara, J.
On November 16, 2006, defendant Elijah Blanton pleaded guilty to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), vandalism (Pen. Code, § 594, subds. (a), (b)(1)), and obstructing an officer (Pen. Code, § 148, subd. (a)(1)), a misdemeanor. He also admitted two prior offenses under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12) and a prior prison term (§ 667.5, subd. (b)). The trial court denied defendant’s presentence motion to strike one of the strike priors, and sentenced defendant to two concurrent terms of 25 years to life on the burglary and vandalism counts and to 68 days in county jail, deemed served, on the misdemeanor count. On appeal, defendant claims the trial court erred by failing to strike one of the prior convictions. We find no abuse of discretion in the trial court’s denial of the motion to strike, but conclude that the sentence imposed on the vandalism count should have been stayed pursuant to Penal Code section 654. We stay the sentence on that count and affirm the modified judgment.
All further statutory references are to the Penal Code unless otherwise noted.
I. Background
Because defendant pleaded guilty, the facts are taken from the preliminary hearing.
At 5:00 a.m. on January 1, 2006, a break-in at a Milpitas jewelry store activated the store’s silent alarm. The police responded and observed three men exiting the store wearing all-black clothing. The police ordered the suspects to stop, but they ignored the command and ran from the police, dropping a pillowcase and crowbar. After a short chase, the police took defendant and his two accomplices into custody. The police recovered two wristwatches with price tags from defendant’s pocket.
The police examined the store, and found the interior in “disarray, broken glass from the display cases, broken cases, and stuff like that.” The front door had been forced open and a crowbar was found 15 feet from the store. The police also found a backpack and pillowcase containing jewelry, watches, and other items taken from the store.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The information in this case alleged, and defendant admitted, two strike priors based on two 1997 robbery convictions. According to the police reports relating to the robbery convictions, defendant and an accomplice entered a Denny’s restaurant around 11:00 p.m. on August 16, 1996. Defendant yelled at the customers and employees in the restaurant to get on the ground. Defendant’s accomplice pulled out a firearm, accidentally discharging it. The accomplice then pointed the gun at two employees standing near the restaurant’s cash register. He ordered the employees to get on the ground and asked for the manager. While on the ground, one of the employees, Lisa Crowe, heard one of the robbers take money out of the cash register.
Meanwhile, defendant grabbed the manager, Catherine Esperanza, by the shirt and ordered her to take him to the safe. She led defendant to the safe, opened it, and handed him the cash inside. Defendant then asked, “Where is the real money bitch? Where is the deposit?” Esperanza informed him the deposit had already been taken and defendant advised her that he would kill her if he found out she was lying. He then had her get on the floor, and he exited the restaurant. According to Esperanza and other witnesses, defendant also was armed. At least 11 people were in the restaurant at the time of the robbery.
On February 24, 1997, defendant was sentenced to 10 years in state prison for the two robbery convictions. He was released on parole on April 24, 2005.
In defendant’s Romero motion to dismiss one of the strike priors, he argued, among other things, that the two priors came from the “same docket and course of conduct.” The trial court noted that it did not appear to be a case in which a single act resulted in two strikes, and explained that although the two strike priors “occurred during one period” they involved “multiple victims.” The trial court concluded that a denial of defendant’s motion would not be an abuse of discretion under People v. Benson (1998) 18 Cal.4th 24 (Benson). After reviewing other relevant facts, the trial court denied defendant’s motion. Defendant timely appealed.
II. Discussion
A. Romero Motion
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Because “the law creates a strong presumption” that the sentence required by the Three Strikes law “is both rational and proper[,] [¶] . . . a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances.” (Id.at p. 378.) The trial court abuses its discretion only if “its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) “Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id. at p. 378.)
Defendant, relying primarily on Benson, supra,18 Cal.4th 24 and People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos), argues that the trial court abused its discretion in failing to strike one of his prior convictions. He contends specifically that Benson requires the trial court, as a matter of law, to strike one the priors because both robbery convictions arose from a single robbery that involved multiple victims. We disagree.
In Benson, the California Supreme Court considered whether a conviction subject to a sentence stayed pursuant to section 654 can be considered a strike prior under the Three Strikes law. (Benson, supra, 18 Cal.4th at p. 26.) Section 654 prohibits multiple punishments for a single act or omission, or for multiple acts that comprise an indivisible course of conduct with a single intent and objective. (See generally People v. Pearson (1986) 42 Cal.3d 351, 359.) The Benson court, after analyzing the language of the Three Strikes law, its history, and its purpose, concluded that “each prior conviction” for a serious or violent felony qualifies as a separate strike: “[W]e believe that the statute properly must be interpreted to permit—but not necessarily require—a qualifying prior conviction to be treated as a strike even if the sentence on the conviction has been stayed pursuant to the provisions of section 654.” (Benson, at pp.31, 36, italics in original.) In a footnote, the Benson court observed that it “need not and do[es] not determine whether there are some circumstances in which two prior felony convictions are so closely connected—for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.” (Id. at p. 36, fn. 8, italics added.)
Seizing upon the Benson footnote, the defendant in Burgos argued that because both of his prior convictions arose from the same act, the trial court abused its discretion in failing to strike one of the convictions. (Burgos, supra, 117 Cal.App.4th at p. 1211.) The Burgos court considered the footnote in Benson and determined that it “strongly indicates that where the two priors were so closely connected as to have arisen from a single act, it would necessarily constitute an abuse of discretion to refuse to strike one of the priors.” (Id. at p. 1215.) The court found such circumstances present in the case before it; the record showed that the defendant’s “attempted carjacking and attempted robbery convictions arose from a single criminal act, where [the defendant] and two companions approached a man at a gas station and appellant demanded the victim’s car while one of the companions told the victim that he had a gun.” (Id. at pp. 1212, fn. 3, 1215-1216.) The court thus concluded that the trial court abused its discretion by failing to strike one of the convictions in the furtherance of justice, and it remanded the matter for resentencing. (Id. at p. 1217.)
The narrow exception left open in Benson and relied on in Burgos does not apply in this case. First, both Benson and Burgos distinguish between the two factual scenarios that trigger section 654—those cases involving multiple convictions based on a single act and those in which “multiple convictions resulted from multiple acts arising from an indivisible course of conduct.” (Burgos, supra, 117 Cal.App.4th at p. 1215; see also Benson, supra, 18 Cal.4th at p. 36, fn. 8.) Both courts refer to a potential abuse of discretion in failing to strike a prior only in regard to the former circumstance involving a single act. Here, defendant asserts that the trial court found that the convictions occurred during a “‘single period’” and that they arose from a “single robbery.” A single incident or course of conduct is not interchangeable with a “single act.” Two distinct criminal acts clearly can be identified as leading to the two robbery convictions. Defendant and his accomplice entered the store and ordered the occupants, including the waitress at the cash register (Crowe), to the ground at gunpoint. One of the robbers (presumably the accomplice) then stole money from the cash register. Separately, defendant took the manager, Esperanza, into the back room, forced her to open the safe, and took cash from the safe. The record thus describes two felonious acts—two separate robberies from two different victims.
Not only does this case not fit the “single act” paradigm contemplated in Benson and present in Burgos, but the other relevant factors support the trial court’s decision to deny the motion to strike. We note that in remanding for resentencing, the Burgos court did not rely solely on the fact that the priors arose from the same act. The court also considered the propriety of the punishment under the Three Strikes law in comparison to defendant’s criminal history and the current offenses. (See Burgos, supra, 117 Cal.App.4th at p. 1216.) This is consistent with the California Supreme Court’s admonition that the trial court consider a multitude of factors in determining whether the defendant falls within the spirit of the Three Strikes law. Our high court has held repeatedly that the trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Carmony, supra, 33 Cal.4th at p. 377, citing People v. Williams (1998) 17 Cal.4th 148.)
In this case, the trial court considered defendant’s criminal history, his criminal activity while on parole, his “poor” future prospects, and “the likelihood he may re-offend.” The trial court concluded “sadly[,] that this is a case that falls within the spirit of the Three Strikes law.” We find ample support for the trial court’s conclusion. Only four months after defendant’s release on parole from the robbery convictions, he was accused of raping his 16-year-old cousin; test results attached to police reports in the record indicate the presence of defendant’s semen in a vaginal swab taken from the alleged victim. Two months later, he was arrested for possession for sale of cocaine in Nevada. Two months after that, he committed the current offenses. Defendant also has four juvenile offenses, at least two additional adult convictions, and has been employed only four months in his adult life.
Defendant, in contrast, presented little which would suggest he fell outside the spirit of the Three Strike law. Although not violent crimes, the current offenses involved some planning, the use of a potential weapon (the crowbar), and flight from the police.
We find, on this record, that the court’s decision not to strike one of the prior robbery convictions was neither arbitrary nor irrational and was not an abuse of discretion. Based on defendant’s poor history, including his violent prior offenses, and his dim prospects, a reasonable person could conclude that defendant is within the spirit of the Three Strikes law.
B. Section 654
Defendant argues in the alternative that if the two strikes remain, then the concurrent sentence imposed for defendant’s vandalism conviction must be stayed pursuant to section 654. We agree.
Section 654, subdivision (a) provides, in relevant 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 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.” (People v. Beamon (1973) 8 Cal.3d 625, 639; see also People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison) [“[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent . . .”].) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (Harrison, at p. 335.)
Whether a defendant held multiple criminal objectives is a factual issue. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) The trial court’s finding, whether express or implied, will be upheld on appeal if it is supported by substantial evidence. (Ibid.)
The People argue that the intent elements for vandalism and burglary are different and, thus, defendant necessarily admitted he had two different intents. Accordingly, the trial court’s implied finding of two separate intents is supported. We disagree with this reasoning.
Burglary requires entry “with intent to commit grand or petit larceny or any felony[.]” (§ 459.) Vandalism requires the damage or destruction of property with malice. (§ 594, subd. (a).) Malice is defined in the Penal Code as “a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” (§ 7, par. 4, italics added.) There is no indication in the record that defendant, in breaking the display cases and causing the other property damage, intended “to vex, annoy, or injure another person[.]” The record instead supports only the conclusion that defendant’s intent in damaging the property was to steal from the jewelry store which is “an intent to do a wrongful act” and the same intent and objective behind his unlawful entry. In other words, although defendant’s burglary and vandalism constituted separate offenses, each was merely incident to the single objective of stealing from the store. The court thus erred in failing to stay the sentence on the vandalism count pursuant to section 654.
III. Disposition
The judgment is hereby modified to reflect that the concurrent term imposed for the vandalism count is stayed pursuant to Penal Code section 654. The trial court is ordered to file an amended abstract of judgment reflecting this modification and to forward a certified copy of the amended abstract to the Department of Corrections. The modified judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J, Duffy, J.