Opinion
C059208
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. YOMMALA SOUTHVILAY CRUZ, Defendant and Appellant.
Not to be Published
Defendant Yommala Southvilay Cruz stole $125.49 in merchandise from the Baby Gap store at the Galleria Mall in Roseville. The Gaps loss prevention agent, Justin Morek, confronted defendant outside the store and asked her to explain the clothing stowed away in her black tote bag. Defendant pushed Morek and attempted to exit the mall. As Morek grabbed defendant to detain her, she threw the bag at him and punched him in the shoulder. The struggle spilled out into the parking lot, where defendant was ultimately handcuffed by mall security.
A jury convicted defendant of second degree robbery (Pen. Code, § 211) and second degree commercial burglary (§ 459). The trial court sentenced defendant to two years in state prison (lower term of two years on the robbery, plus a concurrent term of one year four months on the burglary) and imposed other orders.
On appeal, defendant contends, and the Attorney General concedes, that the trial court erred in imposing a concurrent, rather than a stayed, sentence on her burglary conviction. As will be explained more fully below, we accept the concession and will modify the judgment to stay defendants sentence on the burglary conviction.
FACTS AND PROCEDURAL HISTORY
In May 2007, defendant and another woman, Pamela Xaymoung, entered the Baby Gap store at the Galleria Mall in Roseville with the intent to steal clothing from the store. According to defendant, Xaymoung told defendant it was it was "easy" to steal from that store. This particular heist proved to be anything but "easy."
The Gaps loss prevention agent, Justin Morek, watched from the security surveillance room as the two women roamed through the store, placing various articles of clothing into a black tote bag carried by defendant. When defendant and Xaymoung exited the store without paying for the items in the bag, Morek left the security room to apprehend the shoplifters. By the time Morek reached the women, they were in front of the Ashley & Avery store, two stores down from the Gap. He ran to block their escape, stopping in front of defendant and identifying himself as "`Gap security." Morek then asked her to explain the clothing stowed away in her black tote bag. Rather than offer an explanation, defendant pushed Morek and ran toward the mall exit. Xaymoung also ran. Morek grabbed for defendant in an effort to detain her; defendant responded by throwing the bag at him and punching him in the shoulder. Near the mall exit, Morek was able to grab defendant around the waist, pinning her arms to her sides. The struggle between Morek and the still-resisting defendant spilled out into the parking lot, where she was ultimately handcuffed by mall security.
Officer Eduardo Barranco of the Roseville Police Department responded to a call of shoplifting at the mall and arrived to find defendant sitting in the bed of a mall security truck in the parking lot. Following advisement of her rights under Miranda v. Arizona (1966) 384 U.S. 436 , and after waiving those rights, defendant admitted to Officer Barranco that she and Xaymoung entered the store with the intent to steal. She also admitted taking the items found in her tote bag and "swinging" at Morek as she resisted capture.
Defendant was charged with second degree commercial burglary (§ 459), second degree robbery (§ 211), and petty theft with priors (§ 484, subd. (a), § 666). Following jury trial, defendant was convicted of second degree robbery and second degree commercial burglary. The trial court sentenced defendant to two years in state prison (lower term of two years on the robbery, plus a concurrent term of one year four months on the burglary) and imposed other orders.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends, and the Attorney General concedes, that the trial court erred in imposing a concurrent, rather than a stayed, sentence on her burglary conviction. We accept the concession and will modify the judgment accordingly.
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. . . ." (§ 654, subd. (a).) "The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission—the offense carrying the highest punishment." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
As our Supreme Court has held: "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 v. State of California (1960) 55 Cal.2d 11, 19; accord, People v. Britt (2004) 32 Cal.4th 944, 951-952; see also People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; People v. Perez (1979) 23 Cal.3d 545, 551; People v. Beamon (1973) 8 Cal.3d 625, 637.) However, if "the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
People v. Perry (2007) 154 Cal.App.4th 1521 (Perry) is instructive. There, Perry was in the midst of burglarizing a car when the owner discovered the crime in progress. Perry jumped out, holding the car stereo in one hand and a screwdriver or ice pick in the other, and adopted a fighting stance for several seconds before running away. (Perry, supra, 154 Cal.App.4th at p. 1523.) The owner gave chase, eventually catching up to the fleeing burglar. Perry again adopted a fighting stance while still holding the screwdriver or ice pick before again running away. (Id. at p. 1524.) With the help of a passing motorist, the owner was eventually able to tackle Perry and detain him until police arrived. (Ibid.) Perry was convicted of second degree robbery and second degree vehicular burglary. (Id. at p. 1523.) The Court of Appeal held that section 654 required his sentence on the burglary to be stayed. (Id. at p. 1527.)
As the court explained its reasoning: "[I]f property is taken during a burglary and a robbery pertaining to the same property is committed during the escape, the objective is still essentially to steal the property. Admittedly, an additional objective of preventing the victim or another person from taking back the property generally will exist, but may be incidental to, rather than independent of, the objective of stealing the property. At some point, the degree of force or violence used or threatened may evince `a different and a more sinister goal than mere successful commission of the original crime, i.e., an independent objective warranting multiple punishments. [Citation.]" (Perry, supra, 154 Cal.App.4th at pp. 1526-1527.) The court concluded that the objective of both the burglary and the robbery was to steal the car stereo; while Perry also desired to escape capture, "escaping was merely incidental to, or the means of completing the accomplishment of the objective of taking the stereo." (Id. at p. 1527.)
Similarly, in People v. Le (2006) 136 Cal.App.4th 925, the Court of Appeal accepted the Peoples concession that section 654 required sentence on a burglary conviction to be stayed where defendant was also convicted and sentenced for the robbery of the same property taken in the burglary. (Le, supra, 136 Cal.App.4th at pp. 931-932.) There, Le waited in an SUV while his accomplices burglarized a Longs drugstore and loaded the stolen merchandise into the vehicle. (Id. at p. 929.) Two dedicated department managers confronted the burglars in the parking lot; one reached into the drivers side window and grabbed the keys out of the ignition. (Ibid.) Le struggled with the manager and ultimately regained possession of the keys. He then pulled the SUV forward with the managers upper body still in the vehicle, dragging the dangling man a short distance before the manager was able to extricate himself from the vehicle. (Ibid.) The court found it to be apparent that "Les offenses of robbery and burglary were the means of accomplishing the single intent of stealing bottles of whiskey and packages of diapers [from the store]. . . . [T]he robbery offense arose from defendants use of force to steal the Longs merchandise, which occurred when defendant struggled with the Longs department manager over the car keys and then drove off while the managers upper body was still in the vehicle, in an effort to depart with the goods obtained in the store burglary." (Id. at p. 931.)
In this case, we find it to be equally apparent that the objective of defendants robbery and burglary was to steal baby clothing from the Baby Gap store in the Galleria Mall. Although defendant undoubtedly also desired to escape capture, and threw the punch at Morek to that end, escaping was merely incidental to the overriding objective of stealing the baby clothing. While we agree that "[a]t some point, the degree of force or violence used or threatened may evince `a different and a more sinister goal than mere successful commission of the original crime, i.e., an independent objective warranting multiple punishment . . ." (Perry, supra, 154 Cal.App.4th at p. 1527), that point was not reached in this case.
DISPOSITION
The judgment is modified to reflect that the sentence on count one, second degree commercial burglary, is stayed pursuant to Penal Code section 654. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
BLEASE, Acting P. J.
HULL, J. --------------- Notes: Hereafter, undesignated section references are to the Penal Code.