Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD217014 David J. Danielsen, Judge.
McCONNELL, P. J.
Knowing he could receive up to 39 years in state prison, Arlo Rene Elizarraraz pleaded guilty to 51 felony counts alleged against him in a third amended complaint (hereafter complaint), including accessory after the fact to murder, accessory after the fact to grand theft, and a variety of financial crimes. The court imposed an aggregate nine-year sentence, based on the lack of a prior record and Elizarraraz's age. Elizarraraz appeals, contending the court violated the prohibition against multiple punishments for the same act (§ 654, subd. (a)) by imposing unstayed sentences for being an accessory to grand theft (count 3) and receiving stolen property (count 11). We find no error and affirm the judgment.
All statutory references are to the Penal Code. The complaint included the following counts: accessory after the fact to murder (count 2; § 32); accessory after the fact to grand theft (count 3; § 32); conspiracy to commit grand theft, burglary and forgery (counts 4–7; § 182, subd. (a)(1)); possession of a forged driver's license (count 8; § 470, subd. (b)); possession of a blank check with intent to defraud (count 9; § 475, subd. (b)); forgery of negotiable instruments (counts 10, 55–58, 72-73; § 470, subd. (d)); receiving stolen property (count 11; § 496, subd. (a)); burglary (counts 12, 19-28, 60-69, 71, 75-80; § 459); making or passing a check with intent to defraud (count 13; § 476); and theft from an elder or dependent adult (counts 14, 15, 17, 18, 59, 74; § 368, subd. (d)).
Elizarraraz pleaded guilty at the commencement of the preliminary hearing. Thus, we take the facts from the probation report. (People v. Rubics (2006) 136 Cal.App.4th 452, 454, fn. 2.)
On May 31, 2008, 80-year-old Edward Andrews disappeared from his mobile home in Hemet, California. That morning, Jeffrey Brooks, Elizarraraz's codefendant, was seen being dropped off at Andrews's home. Andrews and Brooks "carried on a romantic relationship." They met after Andrews responded to a personal ad Brooks placed from federal prison.
Brooks and Elizararraz met the previous January when Brooks responded to an ad Elizarraraz placed on Craig's List, an Internet bulletin board, that stated he needed cash. The two formed a relationship described as "loving" and "almost like brothers." Brooks, who did not drive, paid Elizarraraz to provide transportation. In February 2008 Brooks rented a studio apartment in San Diego from Benjamin Mason, and at some point Elizararraz moved in with Brooks.
During an investigation of Andrews's disappearance, authorities learned that in early June 2008 fraudulent activity began appearing on his financial accounts. Authorities inspected his computer and learned of his association with Brooks, who was a fugitive on a federal warrant. Further, Brooks, Elizarraraz, and Elizarraraz's car, appeared together on ATM surveillance videotapes.
Shortly after Andrews disappeared, Brooks offered to do landscaping work at Mason's residence, including the construction of a rock wall. Mason "saw Brooks building a concrete orb over a period of several days during the month of June."
In August 2008 authorities found Brooks and Elizarraraz together in Elizarraraz's car in San Diego. After Brooks was arrested, he admitted losing his temper and killing Andrews. He said Andrews died "probably from a lack of air." Brooks said he gave Andrews "a proper burial, " but he would not reveal the location. Elizarraraz was detained, but he denied knowing Andrews or being involved in the murder. He refused to discuss fraudulent activities, and he was released.
When Mason learned of Brooks's arrest, he and his housemate cracked open the concrete orb in their yard, which was made from chicken wire and concrete. They believed the orb may contain valuables, but they discovered a human foot. They called authorities, who found Andrews's body encased in the orb. A leather belt was taut around his neck, and an autopsy revealed he died from asphyxiation.
Elizarraraz was arrested in March 2009. He admitted that after Andrews's death, and at Brooks's direction, he purchased a shovel, large plastic container, chicken wire and concrete. Also, he helped Brooks place the plastic container in Elizarraraz's car, and he drove his car to Mason's residence. A former girlfriend of Elizarraraz advised that in the spring of 2008, before Andrews disappeared, she saw incriminating evidence at the apartment he shared with Brooks, including check-making equipment, checks in various amounts and fake identification cards. The former girlfriend accompanied Elizarraraz when he drove Brooks around to steal from various businesses and ATMs.
DISCUSSION
I
Section 654/Standard of Review
"Section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. [Citations.] '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.' [Citations.] On the other hand, if the defendant entertained multiple criminal objectives that were dependent and not incidental to each other, he or she 'may be punished for each statutory violation committed in pursuit of each objective' even though the violations were otherwise part of an indivisible course of conduct. [Citation.] ' "The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple." [Citation.] "A defendant's criminal objective is 'determined from all the circumstances....' " ' " (People v. Sok (2010) 181 Cal.App.4th 88, 99, fn. omitted.)
" 'The question whether... section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.' " (People v. Tarris (2009) 180 Cal.App.4th 612, 626.) The court's decision on section 654 issues is ordinarily based on evidence adduced at trial. When a guilty plea is entered, however, as here, the court may conduct an evidentiary hearing on section 654 issues or rely on the probation report to supply necessary information. (People v. Rosenberg (1963) 212 Cal.App.2d 773, 776-777; People v. Ross (1988) 201 Cal.App.3d 1232, 1239-1240.)
Here, neither party requested a postplea evidentiary hearing.
"The court's findings may be either express or implied from the court's ruling." (People v. Tarris, supra, 180 Cal.App.4th at p. 626.) " ' "We must 'view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier of fact could reasonably deduce from the evidence.' " ' " (Id. at p. 627.)
II
Count 3
Elizarraraz contends the court violated section 654 by not staying the eight-month consecutive sentence for being an accessory after the fact to grand theft (count 3), because that conduct encompasses the same conduct as thefts for which he was separately sentenced. He claims that his "convictions considered in their totality show that he was a principal in the same crimes to which he was an accessory."
The court did stay sentences under section 654 on several of Elizarraraz's crimes.
"A conviction under section 32 requires proof that a principal committed a specified felony, the defendant knew that the principal had committed a felony, the defendant did something to help the principal get away with the crime, and that as a result of this action the defendant intended to help the principal get away with the crime." (People v. Nguyen (1993) 21 Cal.App.4th 518, 536.) "Guilt as a principal and being an accessory after the fact have been said to be mutually exclusive." (Ibid.)
We conclude Elizarraraz's contention lacks merit. Count 3 alleges that between January 1 and August 8, 2008, Elizarraraz, with knowledge Brooks had committed grand theft, "unlawfully harbor[ed], conceal[ed] and aid[ed]" Brooks "with the intent that [Brooks] might avoid and escape from arrest, trial, conviction and punishment." The complaint includes four counts against Brooks alone for theft from an elderly person, occurring on June 4, 5, 6, and 9, 2008 (counts 29, 37, 47, 81). The counts for theft from an elderly person against both Brooks and Elizarraraz occurred on May 31, and June 1, 2, 3, 7 and 8, 2008 (counts 14, 15, 17, 18, 59, 74).
The judicial opinions on which Elizarraraz relied in his opening brief pertaining to his count 3 argument are not citable authority, which he concedes in his reply brief.
As the probation report states in its discussion of section 654, the accessory charge in count 3 "involved the defendant having knowledge that... Brooks committed a [g]rand [t]heft and did nothing to cooperate with the criminal process." The probation report shows Elizarraraz was Brooks's only mode of transportation and he drove Brooks everywhere, including the scenes of his crimes. Elizarraraz admitted to committing the overt acts alleged in count 4, for conspiracy, including the provision of transportation of Brooks to various businesses and ATM machines for the purpose of fraudulently using Andrews's accounts.
At the sentencing hearing, Elizarraraz's attorney stated he "quickly became a part of [Brooks's] criminal lifestyle and aided and abetted willingly in that lifestyle and became involved in the financial frauds... Brooks had planned." The attorney did not indicate Elizarraraz's participation only pertained to the crimes in which he was a principal. From the evidence, the court could reasonably find Elizarraraz was not a principal in the thefts on which the accessory to theft count was based. The mere fact that Elizarraraz was also a principal in some of the thefts is unavailing.
Elizarraraz also cursorily contends the sentence on count 3 must be stayed because he was also sentenced on count 2 for being an accessory after the fact to murder. He claims he had "a motive to escape prosecution for the thefts, " which gives rise to an inference that his "objective in aiding Brooks to conceal the murder was to conceal his own involvement in the thefts and to allow them to continue." (Italics added.) Elizarraraz neither elaborates on his position nor cites any supporting legal authority. "A legal contention stated as a bare assertion without supporting authority is forfeited." (People v. Watkins (2009) 170 Cal.App.4th 1403, 1410.) In any event, there is no question that Elizarraraz's conduct in helping Brooks avoid capture and punishment for murder and for grand theft is not an indivisible course of conduct. The objective at issue in both accessory counts is Elizarraraz's objective of assisting Brooks, not Elizarraraz's objective of avoiding consequences for his own financial crimes.
III
Count 11
Additionally, Elizarraraz contends the court erred by not staying the two-year concurrent sentence on count 11 for receipt of stolen property. He complains he is being punished for stealing and receiving the same property.
The elements of receiving stolen property are "(1) stolen property; (2) knowledge that the property was stolen; and (3) possession of the stolen property." (People v. King (2000) 81 Cal.App.4th 472, 476; § 492, subd. (a).) "The requisite possession of the stolen property may be either actual or constructive, and need not be exclusive. In fact, physical possession is not required, as it is sufficient if the defendant acquires a measure of control or dominion over the stolen property. However, mere presence near the stolen property in and of itself is insufficient evidence of possession to sustain a conviction for receiving stolen property." (In re Anthony J. (2004) 117 Cal.App.4th 718, 728.)
A rule against dual convictions for theft and receiving stolen property has "evolved from the premise that 'a thief cannot receive from himself.' " (People v. Ceja (2010) 49 Cal.4th 1, 6.) "[J]uries should be instructed to reach a verdict on the theft charge first when the defendant is also charged with receiving the stolen property. A guilty verdict on the theft charge makes it unnecessary to consider the receiving charge." (Id. at p. 10.) A section 654 issue would not ordinarily arise after a trial of counts for theft and receiving the same property, since a double conviction is prohibited. Here, however, the section 654 issue arises in the context of a guilty plea, and we review the court's express finding on the stay issue for substantial evidence.
Count 11 of the complaint alleges that between January 1 and August 8, 2008, Elizarraraz received unspecified stolen property. The complaint included numerous counts for theft and burglary by both Brooks and Elizarraraz, and even more counts for theft and burglary by Brooks alone, all of which occurred in the time frame alleged in count 11. Since Elizarraraz cannot be convicted of receiving property he stole himself, his guilty plea on count 11 is essentially an admission he received property Brooks stole.
The complaint alleges Brooks and Elizararraz went on a joint spending spree on June 3, 2008, for clothes, shoes and other items at 10 stores (counts 19-28); on June 4, 5 and 6, 2008, Brooks shopped alone at a total of 20 stores (counts 30-34, 38-44, 48-54); on June 7 and 8, 2008, Brooks and Elizararraz together shopped at a total of 17 stores (counts 60 69, 71, 75-80); and on June 9, 10, 14 and 16, 2008, Brooks shopped alone at a total of seven stores (counts 82-88).
Further, Brooks provided Elizarraraz with two checks totaling $1,050, which he cashed. At the sentencing hearing, the People argued that "as soon as [Elizarraraz] met [Brooks] he instantly profited by cashing two fraudulent checks; that conduct continued from January through May 31st, ... when [Elizarraraz] drives [Brooks] to an Orange County Citibank and $500 was withdrawn from [Andrews's] account." Additionally, Elizarraraz lived with Brooks during the period of Brooks's financial crimes and he was well aware of the crimes. His sentencing memorandum concedes "he was fed, clothed and housed... by virtue of the proceeds of the fraud." Elizarraraz's former girlfriend was shown photos of his and Brooks's apartment before and after Andrews's murder, and she reported that the " 'before' photos had much less furnishings than the 'after' photos — such as plants and a flat screen television and an aquarium." Also, Elizarraraz accepted money from Brooks to purchase supplies used to encase Andrews's body in concrete. The record amply supports the court's refusal to stay the sentence on count 11, in contravention of the probation officer's recommendation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., O'ROURKE, J.