Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Kevin L. Brown, Judge. Affirmed with modifications and remanded with directions to the trial court., Los Angeles County, Super. Ct. No. BA273356.
William S. Pitman for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant Carlos A. Cevallos appeals from a judgment entered after a jury convicted him of grand theft by embezzlement (Pen. Code, § 487, subd. (a); counts 1, 3, 5, 9, 16, 18, 20, 22, 24, 28, 30, 32, 34, 36, 38, 40, 56, 59, 61, 63, 65) and found true that in the commission of the offense, a principal was armed with a handgun. (§ 12022, subd. (a)(1).) With respect to counts 1, 3, 5, 24, 30, 40, 56, 61, 63 and 65, the jury found true that appellant took property exceeding $50,000. (§ 12022.6, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
The jury also convicted appellant of second-degree commercial burglary. (§ 459; counts 2, 4, 6-8, 10-15, 17, 19, 21, 23, 25-27, 29, 31, 33, 35, 37, 39, 41-55, 57-58, 60, 62, 64 & 66-69.) As to those charges (with the exception of count 48, for which the allegation was not charged) the jury found true the allegation that a principal was armed with a handgun. (§ 12022, subd. (a)(1).) With respect to counts 2, 4, 7, 27, 31, 41, 58, and 64, the jury found true the allegation that appellant took property exceeding $50,000. (§ 12022.6, subd. (a).)
Appellant was sentenced to 43 years and four months in state prison.
The trial court selected four years, consisting of a midterm of two years as to the base term, count 2, plus one year for each of the special allegations found true pursuant to sections 12022.6, subdivision (a)(1) and 12022, subdivision (a)(1). On counts 4, 7, 27, 31, 57, and 58, appellant was sentenced to eight years, consisting of sentences on each of those six counts of 16 months, in turn consisting of eight months, one third of the midterm of two years, plus eight months, one third of the two years for both enhancements found true pursuant to sections 12022.6, subdivision (a)(1) and 12022, subdivision (a)(1). On counts 6, 8, 10-15, 17, 19, 21, 23, 25-26, 29, 33, 35, 37, 39, 41-52, appellant was sentenced to 31 years, consisting of sentences on each of 12 months, in turn consisting of eight months, one third of the midterm of two years, plus four months, one third of the two years for both enhancements found true pursuant to sections 12022.6, subdivision (a)(1) and 12022, subdivision (a)(1).
We affirm the judgment with modifications and remand the matter to the trial court with directions to exercise its discretion with respect to the principal armed enhancements.
CONTENTIONS
Appellant contends that: (1) the evidence was insufficient to establish the “facilitative nexus” necessary to support imposition of the armed principal enhancements; (2) the trial court failed to sua sponte instruct the jury on the meaning of “facilitative nexus;” (3) his trial counsel was ineffective for failing to request an explanatory instruction for the term “facilitative nexus” and failing to adequately challenge the enhancements at sentencing; (4) the trial court failed to recognize that it had the discretionary authority to strike the enhancements; (5) the evidence was insufficient to support appellant’s conviction for 21 individual counts of embezzling money from each of Brinks Corporation’s (Brinks) customers; and (6) the sentences for embezzlement as to counts 1, 5, 56, 59, and 63 should be stayed.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.
On October 3, 2004, Paul Carter (Carter), an armed driver for Brinks, was working with appellant, who was employed as a messenger for Brinks. The messenger is in charge of the truck, supervises the driver, and delivers money to, and picks up money from, the customers. The driver’s seat is separated by armor from the messenger compartment where the messenger sits. Brinks randomly assigns armed guards to protect the messengers. That morning, appellant had asked Victor Nieves (Nieves), a Brinks dispatcher, if he was going to be assigned a guard. When Nieves told him a guard would not be assigned to him, appellant said that was “good” because a guard would slow him down.
Carter kept a log of the names of the businesses and times at which the truck transacted business. At 2:00 p.m. that day, Carter stopped at Jay’s Market. Appellant left the messenger compartment and Carter noticed that somebody waved at appellant. Appellant walked into the market, came out with bags of money, and walked back to the truck. Carter buzzed appellant in through the side messenger door, and at the same time appellant used his key to open the door, a normal security measure. Carter noticed a man walk up to appellant and hand him a green shopping bag. When Carter asked appellant who the man was, appellant replied that it was his cousin giving him something for his daughter’s birthday.
About three hours later, after stopping for lunch and making their last stop of the day, appellant asked to drive. Appellant then said that he had left his keys somewhere and had to go back. Appellant backed the truck into a driveway. He said that he wanted to check the back of the truck for his keys, left the truck, and went around to the messenger door. Carter buzzed him in and appellant entered the truck, but left the messenger door open. Carter saw appellant looking through boxes and throwing bags out of the back of the truck into a black pickup truck. The driver of the pickup looked like the man Carter had seen at Jay’s Market. Appellant came back and said that they had just been “robbed” and that he had been handed a demand note by the man at Jay’s Market. Appellant did not show the note to Carter, but told him that the note threatened his wife and children, instructing him to drive to a certain location and put the money into the back of the pickup truck.
Appellant called Nieves to inform him of the “robbery.” Appellant was very calm when he spoke to Nieves. Carter, who was normally very quiet, called about 20 minutes later, and seemed very nervous and spoke very quickly.
Los Angeles Police Officer Jose Bonilla stopped when appellant and Carter waved him down. Officer Bonilla noticed that appellant was wearing a gun in his belt. Appellant told the officer that the Brinks truck had been “robbed” and he had been given a note threatening his family. Appellant did not appear nervous, and told the officer that he had not called his family because he was not concerned about their safety, since his wife and one child were at an amusement park, and his other child was being taken care of by his sister. Appellant also mentioned that he had observed his sister and his child in Jay’s Market’s parking lot and had waved to them. Appellant stated that he put the note inside one of the bags of money when he dropped them in the bed of the pickup truck. In contrast to appellant, Carter was sweating profusely and appeared to be very nervous.
Shellie Crandall (Crandall), regional vice-president of Brinks, interviewed appellant and Carter at the scene. Appellant did not have the defeated look of a person who had been robbed, but appeared very bright-eyed, jovial, and alert. He did not seem upset. His demeanor was consistent with that of a person who had taken part in a “robbery.” Carter was very upset, and began crying and shaking when Crandall asked him if he was okay. His behavior was consistent with someone who had just been “robbed.” Crandall looked in the back of the truck and found checks and food stamps, but no cash. She also found a loaded weapon that did not belong to Brinks, in a bag. Brinks’ employees were not supposed to bring their own weapons on the job. Appellant testified at trial that he brought a cell phone and backup firearm to his job that day, even though he knew it was against Brinks’ policy. The money, which was never recovered, amounted to $1,551,000.
On October 3, 2004, Karla Cevallos (Karla), appellant’s sister, was at Jay’s Market with appellant’s daughter. Karla distracted appellant’s daughter when she saw him, because appellant had previously told them not to approach him while he was on the job with Brinks. Karla saw appellant walk toward the store.
Raul Diaz, a master trainer for Brinks, conducts new employee orientation programs regarding the company, policies, procedures, and firearms. Employees also attend weekly safety meetings regarding how to act in different situations. Messengers are trained to be on the defensive. Messengers are instructed not to let anyone approach them or get close to them; not to stop at a location if something does not look right; to call the office for backup; to retreat to the truck or the store as a safe haven; and to use a panic button on the cab in the case of an emergency. Messengers are not supposed to allow people to walk up and hand them a bag.
DISCUSSION
I. Sufficient evidence supported the jury’s finding that the weapon was present for the purpose of assisting in the crime
Appellant contends that there was insufficient evidence to establish the “facilitative nexus” necessary to support the imposition of the armed principal enhancements. We disagree.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.)
Section 12022 imposes an additional prison term for “any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.” The distinction between being armed with a firearm in the commission of a felony and using a firearm in the commission of a felony is that by being armed, the defendant need not utilize a firearm or even carry one on his body. (People v. Bland (1995) 10 Cal.4th 991, 997-998 (Bland).) Rather, the defendant is armed if he has the weapon available for use, either offensively or defensively. “‘[I]t is the availability—the ready access—of the weapon that constitutes arming.’” (Ibid.; citing People v. Martinez (1984) 150 Cal.App.3d 579, 605 [defendant was armed with a deadly weapon when his partner left a screwdriver at the foot of the victim’s bed in view of the defendant; overruled on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10]; People v. Garcia (1986) 183 Cal.App.3d 335, 340 [defendant who left a loaded handgun on a wall outside the garage before entering the house, was armed in the commission of the burglary]; People v. Searle (1989) 213 Cal.App.3d 1091, 1099 [defendant who left loaded gun in an unlocked compartment of the back of his car while selling cocaine was armed].)
In enacting section 12022, the Legislature was concerned with the armed defendant’s potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime or effect an arrest. (Bland, supra, 10 Cal.4th at p. 997.) The use of a firearm, on the other hand, connotes “conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies.” (Ibid.) Thus, section 12022.5 subjects firearm users to more severe penalties than section 12022. (Bland, supra, at pp. 996-997.)
In Bland, our Supreme Court held that section 12022 has a temporal and a relationship component. That is, being armed “‘in the commission of a felony’” means being armed any time during and in furtherance of the felony. (Bland, supra, 10 Cal.4th at pp. 1001-1002, citing People v. Fierro (1991) 1 Cal.4th 173, 226-227 (Fierro), italics added.) As to the temporal requirement, the Bland court found that a defendant is armed with a firearm pursuant to section 12022 when the defendant has a weapon available for use at some point during the crime. In that case, the defendant possessed drugs and a gun, but was not present when the police seized them from the defendant’s house. The Bland court held that the defendant was armed because “at some point during the period of illegal drug possession, the defendant had the firearm close at hand and thus available for immediate use to aid in the drug offense.” (Bland, supra, at p. 995.)
As to the relationship requirement, the Bland court noted that there must be a link between the firearm and the crime. It indicated that the federal courts use the term “facilitative nexus” in interpreting the federal counterpart to California’s weapons enhancement law in drug trafficking cases. (Bland, supra, 10 Cal.4th at p. 1002.) The Bland court reiterated its holding in Fierro that a defendant is armed “‘in the commission’” of the underlying felony so long as the defendant had the firearm available for use in furtherance of the drug offense at some point during the defendant’s possession of the drugs. (Ibid., italics added.) Bland held that “by specifying that the added penalty applies only if the defendant is armed with a firearm ‘in the commission’ of the felony offense, section 12022 implicitly requires both that the ‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’ to that offense.” (Bland, supra, at p. 1002.) The courtstated that to satisfy the “facilitative nexus” requirement, “a firearm’s presence near a drug cache gives rise to the inference that the person in possession of the drugs kept the weapon close at hand for ‘ready access’ to aid in the drug offense.” (Ibid., italics added.)
Here, appellant was armed with the gun issued to him by Brinks and also had concealed a loaded weapon in a bag in the back of the truck. Appellant contends that there was no evidence of a “facilitative nexus” between appellant’s arming and the burglary or embezzlement offenses because appellant was wearing the gun in his gun belt for job-related purposes. He asserts that there was no possibility that appellant, the supervisor of the truck, would have had to brandish or use his Brinks’ firearm to facilitate the commission of the crimes because as far as the customers and other employees knew, he was wearing a uniform, carrying a legally authorized firearm, making routine stops along a familiar route, and working with a long time partner, in the course of his normal duties. Hence, he concludes, the presence of the firearm was coincidental to the fact of his employment and unnecessary to further or facilitate the commission of the underlying offenses.
In his reply brief, appellant argues that the burglaries were completed when he crossed the threshold of the businesses with their money. He claims that because at that point in time, he had access only to his Brinks-issued firearm, there was no facilitative nexus between the backup firearm, stored in the bottom of a bag, and the burglaries.
We disagree. Even if we were to agree with appellant’s contention that he carried the weapon issued by Brinks as part of his duty, rather than in the commission of the crimes, we conclude that the evidence supports the conclusion that appellant was armed in the commission of the crime because he had ready access to his personal weapon in the truck, which was available for his use, either offensively or defensively, in the furtherance of the crime. (Bland, supra, 10 Cal.4th at p. 1000.) It has long been established that a burglary is complete only when the defendant reaches a place of temporary safety. (People v. Thongvilay (1998) 62 Cal.App.4th 71, 90-91 [defendants had reached a place of temporary safety when they put stolen stereo in car, and drove away without being pursued].) Here, the burglaries were not complete until appellant returned to the truck where his gun was stowed, safely entered the truck, and drove away. Up to (and after) that point, the gun was available for appellant’s use. Appellant had been riding in the back of the truck most of the time, and had constant contact with the bag in which the gun was hidden. The evidence showed that it was against Brinks’ policy for employees to have personal guns on the job, yet appellant admitted that he had brought a gun to work that day. The jury could well infer that appellant brought the gun to facilitate the crimes. Thus, the gun was available for use, and substantial evidence supports the jury’s finding that a principal was armed with a gun during the commission of the crime.
II. The trial court did not err in failing to instruct the jury that it must find a “facilitative nexus” between the weapon and the crime
Appellant next contends that the trial court erred because it did not instruct the jury on the requirement of “facilitative nexus.” We disagree but note that the issue of whether CALJIC No. 17.15 adequately informs the jury of the requirement for a facilitative nexus between the gun and the crime is presently pending before our Supreme Court in People v. Pitto, review granted February 8, 2006, S139609.
As we have stated, the Bland court held that the general definition for arming is that a defendant is armed if he has the weapon available for use either offensively or defensively. (Bland, supra, 10 Cal.4th at p. 997.) In order to impose an enhanced sentence under section 12022, the arming must be in the commission of the underlying felony. (§ 12022.)
The Bland court analogized section 12022 to the federal counterpart to California’s weapons enhancement law, which specifies prison terms for using or carrying a firearm “during and in relation to” a crime of drug trafficking under 18 U.S.C. § 924 subd. (c)(1), and which has been interpreted to describe the link between the weapon and the drugs as a “facilitative nexus.” (Bland, supra, 10 Cal.4th at p. 1002.) The Bland court held that by specifying that the added penalty applies only if the defendant is armed with a firearm “in the commission” of the felony offense, section 12022 implicitly requires both that the “arming” take place during the underlying crime and that it have some “facilitative nexus” to that offense. (Bland, supra, 10 Cal.4th at p. 1002, italics added.) The Bland court stated: “Evidence that a firearm is kept in close proximity to illegal drugs satisfies this ‘facilitative nexus’ requirement: a firearm’s presence near a drug cache gives rise to the inference that the person in possession of the drugs kept the weapon close at hand for ‘ready access’ to aid in the drug offense.” (Ibid.)
Based on Bland, appellant urges that the trial court should have given its own instruction sua sponte regarding the necessity for a “facilitative nexus.” But, where an instruction repeats instructions already given, the trial court may refuse to give it. (People v. Garceau (1993) 6 Cal.4th 140, 192-193.)
Here, the jury was instructed with CALJIC No. 17.15 as follows: “It is alleged in all [c]ounts that in the commission of the felony therein described, a principal was armed with a firearm, namely a handgun. If you find a defendant guilty of the crimes thus charged, you must determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crimes. A principal in the commission of a felony is one who either directly and actively commits or attempts to commit the crime or one who aids and abets the commission or attempted commission of the crime. The term ‘armed with a firearm’ means knowingly to carry a firearm or have it available for offensive or defensive use. The word ‘firearm’ includes a pistol, revolver, shotgun, or rifle. The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. Include a special finding on that question using a form that will be supplied for that purpose.”
Like section 12022, CALJIC No. 17.15 instructs that in the commission of the felony, a principal allegedly was armed with a firearm. Therefore, CALJIC No. 17.15, also implies the “facilitative nexus” requirement that the Bland court found was implied in section 12022. Further, the instruction directs that the jury must determine whether the principal in the crime was armed with a firearm at the time of the commission of the crime, which we believe mandates a nexus between the firearm and the crime. And, as pointed out by the People, CALJIC No. 17.15 defines the term “‘armed with a firearm’” as “knowingly to carry a firearm or have it available [as a means of offense or defense].” The only logical inference to be drawn from this language is that the defendant must be armed with a firearm to aid or further the offense. Moreover, while the Bland court noted that the trial court erred in modifying the standard CALJIC No. 17.15 instruction by leaving out the word “‘knowingly,’” it implicitly approved the language of CALJIC No. 17.15 when it found that the jury would not have made a finding favorable to the defendant if the proper instruction had been given. (Bland, supra, 10 Cal.4th at pp.1005-1006.) In utilizing the term “facilitative nexus,” the Bland court was not imposing a new requirement or term, but was referring to the terminology used by the federal courts in describing the requirement that the firearm be available for use in furtherance of the drug offense.
We conclude that CALJIC No. 17.15, read as a whole, implies a nexus or connection between the firearm and the underlying crime and that the trial court did not err in failing to instruct the jury sua sponte on the requirement of a “facilitative nexus.”
III. Trial counsel was not ineffective
Appellant claims his trial counsel was ineffective because he failed to do the following: cite Bland; argue at sentencing that the armed principal enhancements were inapplicable; request a pinpoint instruction explaining to the jury the meaning and necessity of having to find a “facilitative nexus” between the arming and underlying felonies; and support these arguments with federal constitutional authority.
To demonstrate ineffective assistance of counsel, a defendant must show counsel’s performance was deficient because his representation fell below an objective standard of reasonableness, as well as prejudice flowing from counsel’s performance. (People v. Price (1991) 1 Cal.4th 324, 386-387 [superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165].) That is, counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile, as here. (People v. Price, supra, at p. 387.) The appellate court will reverse convictions on the ground of inadequate counsel only if the record affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Bradford (1997) 14 Cal.4th 1005, 1051.)
As we previously concluded, Bland did not indicate that CALJIC No. 17.15 was defective, but described it as a “standard” and “proper” jury instruction. (Bland, supra, 10 Cal.4th at p. 1005.) And, as we have noted, the issue of whether CALJIC No. 17.15 adequately informs the jury of the requirement for a facilitative nexus between the gun and the crime is presently pending before our Supreme Court in People v. Pitto, review granted February 8, 2006, S139609. That case was originally published by the appellate court in November 2005, long after sentencing in this case, and therefore ineffectiveness cannot be attributed to appellant’s trial counsel on the ground that he did not raise the issue that is currently pending in People v. Pitto.
Nor do we agree with appellant that his trial counsel was ineffective by failing to ask for an instruction explaining the term “facilitative nexus,” since that term is not part of section 12022 or contained in CALJIC No. 17.15. Appellant does not explain his next complaint that his trial counsel failed to federalize his claim. If he means to refer to his constitutional right to prove every element of the offense beyond a reasonable doubt, he has essentially restated the issue of whether the term “facilitative nexus” was necessary.
Appellant next urges that his counsel was ineffective by failing to preserve his claim for appeal. But, a claim that an instruction is not correct in the law is not the type that must be preserved by objection. (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Moreover, the issue that the trial court has a sua sponte duty to instruct on matters necessary for the jury’s instruction is preserved for appeal. (People v. Wickersham (1982) 32 Cal.3d 307, 323 [overruled on another point in People v. Barton (1995) 12 Cal.4th 186, 201].)
We conclude appellant’s trial counsel was not ineffective.
IV. The trial court has the discretion to strike the principal armed enhancements under section 1385
Appellant correctly asserts that the trial court did not understand that it had the discretion to strike or dismiss the armed principal enhancements pursuant to section 1385 and section 1170.1, subdivision (h).
Section 1170.1, subdivision (h) provides: “For any violation of an offense specified in Section 667.6, the number of enhancements that may be imposed shall not be limited . . . . Each of the enhancements shall be a full and separately served term.” Section 1385, subdivision (c)(1) provides: “If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).”
“[A]s a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to ‘strike the additional punishment for that enhancement in the furtherance of justice’” and retains its authority under section 1385 absent a clear legislative direction to the contrary. (People v. Meloney (2003) 30 Cal.4th 1145, 1155 (Meloney).)
In Meloney, our Supreme Court was confronted with the issue of whether the trial court had the discretion to strike a section 12022.1 bail enhancement. In 1997, the bail enhancement provision of section 12022.1 was listed in section 1170.1 as one of the enumerated enhancements that the trial court had the discretion to strike. Our Supreme Court held that the trial court retained its discretion to strike an enhancement even after section 1170.1 subdivision (h) was amended to delete the section 12022.1 as an enumerated enhancement. The court stated: “Indeed, the Legislature not only has failed to evince a clear intent that section 1385 should not apply to enhancements imposed under section 12022.1, it clearly has demonstrated the opposite intent. Until 1998, section 1170.1, subdivision (h), provided: ‘Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in subdivision (c) of Section 186.10 and Sections 667.15, 667.5, 667.8, 667.85, 12022, 12022.1, 12022.2, 12022.4, 12022.6, 12022.7, 12022.75, and 12022.9, or the enhancements provided in Section 11370.2, 11370.4, or 11379.8 of the Health and Safety Code, if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.’ (Stats. 1993, ch. 611, § 17.98, pp. 3544-3545, italics added.) [¶] The Legislature repealed this subdivision of the Penal Code effective January 1, 1998, stating at the time: ‘In repealing subdivision (h) of Section 1170.1, which permitted the court to strike the punishment for certain listed enhancements, it is not the intent of the Legislature to alter the existing authority and discretion of the court to strike those enhancements or to strike the additional punishment for those enhancements pursuant to Section 1385, except insofar as that authority is limited by other provisions of the law.’ (Stats. 1997, ch. 750, § 9.) From this history it is apparent that the Legislature views sentence enhancements under section 12022.1 as being subject to a trial court’s discretion to strike pursuant to section 1385.” (Meloney, supra, 30 Cal.4th at pp. 1155-1157.)
In accord with Meloney, we conclude that the trial court retains its discretion under section 1385 to strike enhancements pursuant to section 12022, subdivision (a), the principal armed enhancement statute. In the case at bar, the trial court indicated that it did not believe it had the discretion to strike the section 12022, subdivision (a) enhancements, but would be so inclined if it could exercise its discretion. The trial court stated: “I’m not inclined to impose the 12022 [enhancements]. I’m not at all convinced this is what the Legislature had in mind. And were it up to me, I don’t think I would impose them on each case. However, I looked at 12022(A)(1). It is absolutely mandatory. I have no discretion whatever.” Accordingly, the proper course is to remand the matter for the trial court to exercise its discretion with respect to the section 12022, subdivision (a) principal armed enhancements.
Nevertheless, the People cite People v. Thomas (1992) 4 Cal.4th 206, 212 to make the superficially appealing argument that where a version of section 1170.1, subdivision (h) eliminated the trial court’s ability to strike an enhancement under a particular enhancement statute, the Legislature intended to divest the trial courts of their statutory authority to strike firearm use enhancements, whether such power be exercised under section 1170.1, subdivision (h), or under section 1385. The People urge that since the publication of People v. Thomas, section 1170.1, subdivision (h) has been modified to eliminate the trial court’s discretion to strike any of the enumerated enhancements, including section 12022. Therefore, the People conclude, the Legislature intended to divest the trial court’s of discretion to strike the principal armed enhancements.
People v. Thomas, however, was directed specifically to the trial court’s ability to strike firearm use enhancements, not principal armed enhancements at issue here. (People v. Thomas, supra, 4 Cal.4th at p. 212.) As noted in People v. Thomas, until 1989, section 12022.5 was one of the sections listed in section 1170.1, subdivision (h). When it was deleted, the Legislative Counsel’s Digest explained that the bill would delete the authority of the trial court to strike the additional enhancement involving the personal use of a firearm in the commission of a felony. (People v. Thomas, supra, 4 Cal.4th at p. 209.) Our Supreme Court noted that the Legislative intent in the 1989 amendment of section 1170.1 was to expand criminal liability for unlawful firearm use or possession by restricting plea bargaining when a defendant personally used a firearm; elevating certain firearm use or possession offenses to felonies; and increasing the term of imprisonment for personal use. (People v. Thomas, supra, at pp. 212-213.) We note that the punishment for personal use rather than possession, was expanded. Therefore, while there is evidence that the Legislature intended to divest the trial court of authority to strike with respect to personal use, the same cannot be said of principal armed enhancements, and we conclude that People v. Thomas does not apply to the trial court’s ability to strike principal armed enhancements.
Nor are we convinced by the People’s argument that the Legislature intended to allow the operation of section 1385 to section 12022 subdivisions (c) and (d), but not to subdivision (a), because subdivision (f) specifically grants the trial court authority to strike enhancements imposed under subdivisions (c) and (d). Section 12022, subdivision (f) simply authorizes the trial court to strike subdivisions (c) and (d) which impose additional punishments for certain crimes where the principal was armed.
Section 12022, subdivision (f) provides that the trial court may “strike the additional punishment for the enhancements provided in subdivision (c) or (d) in an unusual case where the interests of justice would best be served.”
Accordingly, we remand the matter for the trial court to exercise its discretion with respect to the section 12022, subdivision (a) principal armed enhancements.
V. Appellant is guilty of multiple counts of embezzlement
Appellant argues that he only committed one act of embezzlement, from his principal and employer Brinks. He contends that because he was not working for the victim businesses as an agent, servant, or employee, but rather as an agent of Brinks, he can only be guilty of one count of embezzlement. We disagree.
In California, the various common law theories of theft, including embezzlement, have been consolidated. “‘[U]nder section 484, there is simply one consolidated crime of theft, which the jury may find upon either theory, if there is an “unlawful [taking]” . . . .’” (People v. Wooten (1996) 44 Cal.App.4th 1834, 1846.)
“‘The type of relationship essential to finding embezzlement has been variously characterized. The property or money must be received by the defendant as an agent or bailee of the true owner [citation]. There must be a fiduciary relationship between the parties [citation]. The statute names several common trust relationships, but the list is not exclusive. [Citation.]’ [Citation.]” (People v. Threestar (1985) 167 Cal.App.3d 747, 758.) “A fiduciary duty arises whenever trust and confidence are reposed by a person in the integrity and fidelity of another. [Citations.] (Ibid.) Further, “‘Under prevailing judicial opinion no presumption of a confidential relationship arises from the bare fact that parties to a contract are employer and employee; rather, additional ties must be brought out in order to create the presumption of a confidential relationship between the two.’ [Citations.]” (Id. at p. 759.)
While appellant urges that he was not an agent or employee of the individual businesses, and therefore cannot be convicted of multiple counts of embezzlement, there is no dispute that the individual businesses entrusted the money to appellant under the general definition of embezzlement. Section 508, which refers to an employment relationship in an embezzlement situation, is “merely illustrative of the types of relationships that may give rise to the relation of trust and confidence required to support an embezzlement charge.” (People v. Threestar, supra, 167 Cal.App.3d at p. 517.) Thus, appellant cannot rely on section 508 for the proposition that the defendant must be in an employment relationship to be guilty of embezzlement is misplaced. We also note that section 484 defines a thief as one who fraudulently appropriates property which has been entrusted to him or her. (§ 484, subd. (a), italics added.) Embezzlement also applies to the situation of individuals transporting property for hire as well as to trustees entrusted with property for the use of any other person.
Section 508 states: “Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement.”
Section 505 states: “Every carrier or other person having under his control personal property for the purpose of transportation for hire, who fraudulently appropriates it to any use or purpose inconsistent with the safekeeping of such property and its transportation according to his trust, is guilty of embezzlement . . . .” Section 506 states: “Every trustee . . . or person otherwise [e]ntrusted with or having in his control property for the use of any other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust . . . is guilty of embezzlement.”
We conclude that appellant was properly charged with, and convicted of, multiple counts of embezzlement.
VI. The concurrent sentences on counts 1, 5, 56, 59, and 63 shall be stayed
Section 654 bars punishment for two offenses arising out of the same course of conduct for which the actor entertained the same intent and objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The People concede, and we agree, that under section 654, the sentence on the lesser offenses of embezzlement in counts 1, 5, 56, 59 and 63 should be stayed because there was no evidence that appellant harbored a separate intent and objective for commercial burglary of the same establishments in counts 2, 6, 57, 60, and 64. The concurrent sentences on counts 1, 5, 56, 59, and 63 shall be stayed.
Section 654 provides: “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.”
DISPOSITION
The matter is remanded to the trial court for a new sentencing hearing at which the trial court shall exercise its discretion under section 1385 in deciding whether to strike the principal armed enhancements provided by section 12022, subdivision (a) or impose the term provided for those enhancements.
The judgment is modified to provide that execution of sentence for embezzlement on counts 1, 5, 56, 59, and 63 is stayed. The stay is to become permanent on completion of service of sentence on those counts. The trial court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.