Opinion
E071021
12-20-2019
THE PEOPLE, Plaintiff and Respondent, v. JARMAINE DUWON HARDY, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1703529) OPINION APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded with directions. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jarmaine Duwon Hardy of two counts of first degree robbery for taking one laptop and credit cards (Pen. Code, § 211; counts 1 and 2), one count of first degree burglary (§ 459; count 3), one count of petty theft for taking the laptop (§ 484; count 4), and one count of assault with a deadly weapon—to wit, a knife (§ 245, subd. (a)(1); count 5). He was sentenced to six years eight months in state prison.
All further statutory references are to the Penal Code.
On appeal, Hardy contends that (1) the trial court erred by failing to give a unanimity instruction for the robbery offenses, (2) there was insufficient evidence that the victims possessed one of the stolen items (the laptop) for the robbery offenses, (3) the petty theft offense is a necessarily included lesser offense of the robbery offenses, (4) the sentences for burglary and petty theft must be stayed because they violate section 654's prohibition against multiple punishment for the same act, (5) the order for Hardy to pay for presentence incarceration costs was unauthorized, (6) the postjudgment protective order was unauthorized, and (7) Hardy was not awarded all of the actual custody credit days to which he was entitled.
The People agree that: (1) the petty theft offense was a necessarily included lesser offense of the robbery offenses, (2) the trial court was not authorized to order Hardy to pay for presentence incarceration costs, (3) the trial court was not authorized to issue a postjudgment protective order, and (4) the actual custody credits were miscalculated. We agree with both parties on those points and remand accordingly. We further agree with the People that the issue of multiple punishments under section 654 for the petty theft conviction is rendered moot by our reversal of that conviction. We otherwise affirm.
BACKGROUND
A. Prosecution's Case
In September 2017, Yubitza C. and Julio C., a married couple, lived in a house in Riverside, California, with Yubitza's 19 year old daughter Evelyn Q. Elmer A., a friend of Julio's for more than 25 years, also lived in the house, where he had been renting a room for over one year.
On August 23, 2017, Elmer's car was stolen. It had been parked on the street outside of the house the previous night. Elmer reported the theft to the police that day. Various items that were inside of the car at the time were also taken, including a laptop of Elmer's (one of two he owned), CDs, and some tools. On the same day, a key chain carrying keys to the car, to the house, and to his room was also taken. Elmer thought that the key chain was located inside the house, hanging from his bedroom door lock when it was taken. He thought that he had left the key in the lock of the bedroom door when he unlocked it upon returning home. A couple of days later Elmer was given a replacement key for the front door but never received one for his room. Elmer did not give anyone permission to enter into his room.
Early in the afternoon on September 2, 2017, Yubitza and Evelyn were both home in their respective bedrooms with the doors closed when they each heard the front doorbell ring. Neither Yubitza nor Evelyn answered the door. The front door was locked. Yubitza testified that shortly thereafter Hardy opened Yubitza's bedroom door, said '"I'm sorry,"' and then closed the door. Yubitza was shocked because she did not know Hardy.
Yubitza got out of bed to follow Hardy and found him heading toward the front door. Hardy was carrying a laptop and a computer mouse that Yubitza recognized as being the laptop Elmer used for work. The laptop was black and did not have any stickers on it. Yubitza stood in front of the door to prevent Hardy from leaving and asked him what he was doing there. Pointing toward Elmer's room, Hardy responded that "he" asked Hardy to get the computer. Elmer was not at home. Yubitza told Hardy that she wanted to call Elmer for verification, but she did not have her cell phone on her. Yubitza screamed Evelyn's name.
Evelyn left her bedroom in response to her mother's yelling and saw Yubitza and Hardy standing near the front door. Yubitza appeared to be blocking Hardy from exiting. Evelyn noticed that Hardy was holding a laptop, which Evelyn recognized as belonging to Elmer. Yubitza asked Evelyn to call Elmer to find out if Elmer had sent Hardy to the house to get Elmer's laptop. Evelyn remembered calling Elmer at that point. Elmer told Evelyn that he did not send anyone to the house.
Yubitza said that Evelyn was not able to make the call then.
Hardy headed toward the back sliding glass door. Yubitza walked toward that door too and impeded Hardy's exit there. Unable to exit, Hardy moved toward the front door again, but Yubitza again stationed herself in front of that door.
Hardy screamed at the women to let him leave and called them "whores." Hardy pushed Yubitza against a mirror. The computer mouse that Hardy was holding fell to the ground. According to Yubitza, Hardy pulled a knife out of a pocket or his pants, and a blade that was approximately four inches long popped out. Hardy motioned with the knife, so Yubitza moved backward. Evelyn did not see the knife. Both Yubitza and Evelyn testified that Hardy threatened Yubitza and Evelyn by telling them, '"I'm going to stab you guys if you don't let me out."' Yubitza opened the door to allow Hardy to leave. Both women followed him outside. Evelyn took several photos and video of Hardy leaving.
Hardy immediately drove away in a car that Yubitza and Evelyn recognized as being the vehicle that had been stolen from Elmer previously. Evelyn called 911. Yubitza called Julio and told him that someone had broken into the house. Julio drove home immediately.
When Julio arrived home approximately 10 minutes later, police officers were already there. Yubitza appeared upset and visibly shaken. Julio provided a police officer with Elmer's contact information. That officer spoke with Elmer, who thought that his friend "Kimberly" might know the person who broke into Julio's house. Kimberly was someone Elmer had met at a coffee shop and befriended. Elmer was with Kimberly when the officer called. Kimberly spoke with the officer and explained that the intruder might be her ex-boyfriend. She provided the officer with Hardy's name, date of birth, and physical description.
Later that afternoon, Julio received two calls from credit card companies, inquiring about charges that had been made on his cards. Julio then realized that the credit cards that he kept in or on the desk in his office were missing. B. Hardy's Testimony
Hardy testified on his own behalf. On September 2, 2017, Hardy was dating Kimberly, whom Hardy believed was staying with Elmer. Approximately one week earlier, Kimberly told Hardy that she was purchasing a car from Elmer on September 1. She already had possession of the car but was waiting to receive a check so she could pay Elmer. Kimberly gave Hardy the car to drive at some point, so Hardy had it with him in Los Angeles, California, on September 2. On the morning of September 2, Kimberly called Hardy and told him that a laptop had been left in the car, and she needed him to return it to her.
At Kimberly's request, Hardy planned to meet Kimberly later that day on the corner down the street from Elmer's house. Kimberly told Hardy never to meet her at Elmer's house. She did not want Elmer to see Hardy driving the car.
When Hardy arrived at the corner, Kimberly was not there. Kimberly did not answer Hardy's calls, so Hardy drove to Elmer's house. Hardy called Kimberly again, and she did not answer. Hardy assumed someone was inside the house because there were cars parked outside. Hardy exited the car with the laptop, went to the front door, and rang the doorbell several times. The door was slightly ajar. Nobody answered. Hardy knocked, which caused the door to open further. He stuck his head inside the door and inquired, "Hello?" He heard music coming from the kitchen area, so he stepped inside and headed toward the music.
When inside the house, Hardy realized that the music was coming from a room near the front door, but the door to the room was closed. Hardy knocked on that door as he opened it. He saw a woman sitting in the room and said, "Oh, I'm sorry. Excuse me." He then closed the door and walked toward the front door. Hardy had never met Yubitza before.
Yubitza exited the room and asked Hardy who he was and whom he was there to see. He responded, but Yubitza did not appear to know Kimberly. Hardy mentioned Elmer's name, and Yubitza appeared to know him. Hardy explained that he was returning the laptop he was holding. Yubitza wanted to call Elmer for verification. Hardy responded that he could call Kimberly, but he left his phone in the car and needed to step outside to retrieve it.
Yubitza "jumped in front of the door" to prevent Hardy from exiting. Hardy pleaded with Yubitza to allow him to go outside to call Kimberly. Yubitza then attempted to call Elmer twice, but Elmer did not answer. Yubitza kept blocking the door. She called out to someone, and Evelyn appeared approximately one minute later. Yubitza and Evelyn had a quick conversation in Spanish, and Evelyn started making a phone call on her phone. Hardy assumed Evelyn was calling Elmer. She too appeared unsuccessful.
Yubitza insisted that Hardy give her the laptop and grabbed onto it. Hardy refused to give it to Yubitza because he thought it belonged to Kimberly or Elmer. They had a "tussle with it," and the mouse fell to the floor. Hardy picked the mouse up and tried to exit through the front door, but Yubitza continued to block him. He then attempted to exit through a sliding glass door, but Yubitza ran and blocked that exit too. He headed toward the front door again, and Yubitza pushed him.
Hardy somehow "slid" around Yubitza and exited the house. Evelyn ran after him. Evelyn told Hardy that she recognized the car as belonging to Elmer. Hardy explained his understanding of the car's ownership, but Evelyn insisted that he had stolen the car. Evelyn took out her phone, started taking photos and recording, and said she was going to call the police. Hardy left. He immediately called Kimberly. In a later conversation, Kimberly told Hardy that he was not supposed to go to Elmer's house.
Hardy claimed that he did not verbally threaten Yubitza or Evelyn or threaten them with a knife. He also did not go into Julio's office and did not take any credit cards.
DISCUSSION
A. Failure to Give Unanimity Instruction for the Robbery Offenses
Hardy argues that the trial court prejudicially erred by failing to give the jury a unanimity instruction for the robbery offenses (counts 1 & 2). We agree that it was error not to give the instruction, but we conclude that the error was harmless.
A criminal jury verdict must be unanimous. (Cal. Const., art. I, § 16.) "Additionally, the jury must agree unanimously the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) "[T]he unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.'" (Id. at p. 1135.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Id. at p. 1132.)
"In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Russo, supra, 25 Cal.4th at p. 1135.)
Hardy does not dispute that this case concerns the robbery of a single home that gave rise to a separate robbery charge for each of the residents in the home at the time of the robbery. However, Hardy offered two distinct defenses concerning the items stolen from the residence—Elmer's laptop and Julio's credit cards. On the one hand, Hardy did not deny that he was holding a laptop in the residence and took it with him when he left, as Yubitza and Evelyn described. However, he claimed that he did not wrongfully take the laptop from anyone but rather had brought the laptop into the house to return it. On the other hand, Hardy claimed that he did not take the credit cards at all. In closing argument, his attorney argued that there was no evidence that Hardy took the credit cards—for example, there were no receipts or security videos from the stores where the unauthorized purchases were made.
Given the different defenses concerning the property that was taken from the home, the jury could have reasonably concluded that (1) Hardy stole the credit cards from the residence but not the laptop, (2) Hardy stole the laptop but not the credit cards, or (3) Hardy stole both the laptop and the credit cards. Thus, although the robberies involved a single course of conduct—that is, the taking of personal property from a single residence—the jury could have convicted Hardy without reaching agreement as to which items he took. Some jurors could have believed that Hardy stole the laptop only, and some could have believed that he stole the credit cards only. Because of the possible lack of unanimity, we conclude that the jury should have been given a unanimity instruction. The trial court therefore erred.
The error does not warrant reversal, however, unless it was prejudicial. There is a split of authority among appellate courts on the appropriate standard for reviewing prejudice when the trial court fails to give a unanimity instruction. Some courts have applied the state law standard of People v. Watson (1956) 46 Cal.2d 818, and others have held that the federal standard of Chapman v. California (1967) 386 U.S. 18 (Chapman) applies. This court has applied the Chapman standard. (People v. Wolfe (2003) 114 Cal.App.4th 177, 186-188; People v. Hernandez (2013) 217 Cal.App.4th 559, 576-578.)
Under Chapman, supra, 386 U.S. 18, error is harmless if the record shows "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Id. at p. 24.) Reversal is required if there is "'a reasonable possibility'" that the error may have contributed to the verdict. (Ibid.)
In finding Hardy guilty of robbery, the jurors had several options to choose from: (1) They could have believed Hardy's testimony about the laptop and disbelieved him about the credit cards, (2) they could have disbelieved him about the laptop and believed him about the credit cards, or (3) they could have disbelieved him altogether and thus believed that he stole both the laptop and the credit cards. But the jury convicted Hardy of petty theft on count 4, which alleged only theft of the laptop. The record therefore demonstrates beyond a reasonable doubt that the jury unanimously agreed that Hardy stole the laptop from the house. It consequently does not matter whether the jurors disagreed about the credit cards. The record shows beyond a reasonable doubt that there was a unanimous basis for the robbery convictions, namely, the taking of the laptop.
Thus, although the jury should have been given a unanimity instruction to ensure that they did not reach a unanimous verdict on less than unanimous grounds, there is no reasonable possibility that the error contributed to the verdict, because the jury unanimously agreed that Hardy stole the laptop. We therefore conclude that the trial court's error by failing to give a unanimity instruction was harmless. B. Actual or Constructive Possession of Elmer's Laptop—Robbery Offenses
Hardy contends that the robbery convictions must be reversed because there was not sufficient evidence that either Yubitza or Evelyn actually or constructively possessed the laptop. We disagree.
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "[N]either ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute." (People v. Scott (2009) 45 Cal.4th 743, 749 (Scott).) A robbery victim can be "in either actual or constructive possession of the property taken." (People v. Nguyen (2000) 24 Cal.4th 756, 764.) Constructive possession is established if the victim shares "a 'special relationship' with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner." (Scott, supra, at p. 750.) In other words, in section 211 the Legislature has included "as victims those persons who, because of their relationship to the property or its owner, have the right to resist the taking, and has excluded as victims those bystanders who have no greater interest in the property than any other member of the general population." (Scott, at p. 758.) "Two or more persons may be in joint constructive possession of a single item of personal property, and multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken." (Id. at p. 750.)
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the People and ask whether "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "'The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value— such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Hutchinson (2018) 20 Cal.App.5th 539, 546.)
Hardy contends that neither Yubitza nor Evelyn exerted physical control over the laptop, so their possession of the laptop could have been established through constructive possession only, of which he contends there was not sufficient evidence. The initial premise is faulty as to Yubitza. According to Hardy's testimony, Yubitza at one point grabbed the laptop and attempted to wrestle it away from him. That is sufficient evidence to establish that Yubitza actually possessed the laptop for purposes of the robbery charge. (People v. Estes (1983) 147 Cal.App.3d 23, 27 ["By preventing the guard from regaining control over the merchandise, defendant is held to have taken the property as if the guard had actual possession of the goods in the first instance"].) Because Yubitza actually possessed the laptop, it is irrelevant whether Yubitza and Elmer shared a special relationship of the type needed to establish that she constructively possessed his laptop.
In any event, there is sufficient evidence that Yubitza and Evelyn constructively possessed the laptop based on the special relationship that each of them shared with Elmer. Elmer had lived in the same home as Yubitza and Evelyn for over one year. Although Elmer had his own bedroom in the home, he spent time with the entire family in the living room, which is how Evelyn recognized the laptop as belonging to Elmer. He would work on his laptop there because, as Yubitza described it, he was "like a friend." In addition, Evelyn was "very familiar" with Elmer's car because he drove her to school in it. From this evidence, it is reasonable to infer that Yubitza and Evelyn shared such a relationship with Elmer that they both would have the right to resist someone taking Elmer's laptop. Their interest in Elmer's property was certainly greater than that of a stranger or a member of the general population. Because of the relationship shared by Yubitza and Evelyn with Elmer, there is sufficient evidence that Yubitza and Evelyn constructively possessed Elmer's laptop to support the robbery conviction.
In support of Hardy's contention that Yubitza and Evelyn did not share a special relationship with Elmer based on their status as roommates, Hardy relies on People v. Ugalino (2009) 174 Cal.App.4th 1060 (Ugalino). That reliance is misplaced. In Ugalino, the court concluded that the roommate of the property's owner did not have constructive possession of the marijuana that the defendant attempted to steal because the roommate and the marijuana owner were "simply roommates" who did not share a special relationship obligating the roommate to protect the owner's marijuana. (Id. at p. 1065.) The marijuana was stored in a locked safe in the owner's bedroom, and there was no evidence that the roommate had access to the safe. (Ibid.) In addition, the roommate had only lived there three to four months and did not have his own key to the apartment. (Ibid.) The court further noted that the property owner was present during the robbery "to protect his own belongings and there was no evidence he expected [the roommate] to assist him in that regard." (Ibid.)
Ugalino is distinguishable. Elmer lived in the same home as Yubitza and Evelyn for a longer period of time—over one year. Elmer was not at home during the robbery and therefore could not protect his own belongings. There also was not any evidence presented about where in the house the laptop was located on the day of the robbery. There consequently is no evidence that Yubitza and Evelyn did not have access to the laptop because of how or where it was stored.
Hardy disputes this. He contends that the only reasonable inferences that can be drawn from the evidence are that the laptop was stored in Elmer's bedroom and that the bedroom door was locked. The evidence does not support that contention. On the contrary, the only reasonable inference that can be drawn from the evidence is that Elmer's bedroom door was actually unlocked at the time of the robbery. Although Elmer testified that he had locked the bedroom door the night before his car was stolen, he never received a replacement key to the bedroom after his keychain was stolen on that day. Therefore, the only reasonable inference that can be drawn from the evidence is that the bedroom door was unlocked at the time of the robbery—Elmer would not have kept the door locked when he had no key. There was no evidence that Elmer otherwise hid the laptop or kept it secure in a manner in which Yubitza or Evelyn would not have access to it. Thus, the only reasonable inference that can be drawn from the evidence is that Yubitza and Evelyn had access to the laptop wherever it was located in the home at the time that it was taken.
Moreover, given that the bedroom door was unlocked, it is inconsequential whether Elmer gave either Yubitza or Evelyn permission to go into his room. They had access to the room and the laptop, if it was stored in there, regardless of whether Elmer wanted them to.
For all of these reasons, we conclude that there was sufficient evidence that Yubitza and Evelyn possessed the laptop to support the robbery convictions. C. Lesser Included Offense of Robbery Offenses—Petty Theft
Hardy contends that his conviction for petty theft (count 4) must be reversed because it is a lesser included offense of robbery. The People agree, and we concur.
In general, a criminal "defendant may receive multiple convictions for offenses arising out of a single act or course of conduct." (People v. Villa (2007) 157 Cal.App.4th 1429, 1434 (Villa); § 954.) However, "multiple convictions may not be based on necessarily included offenses. The test for necessarily included offenses is whether an offense cannot be committed without necessarily committing another offense." (Villa, supra, at p. 1434.)
"[T]heft is a necessarily included offense of robbery." (People v. Ortega (1998) 19 Cal.4th 686, 694 (Ortega), overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) Robbery includes all of the elements of theft with the additional element of use of force. (Ortega, supra, at p. 694; Villa, supra, 157 Cal.App.4th at p. 1434.) A defendant, therefore, "cannot be convicted of both robbery and theft arising from the same course of conduct." (Villa, at p. 1434.)
As the parties acknowledge, the victims for the robbery offenses were Yubitza and Evelyn, but the victim for the theft offense was Elmer. Despite the different victims, the property taken—Elmer's laptop—was the same. Because the robbery offenses and the petty theft offense arose out of the same course of conduct (the taking of the laptop), the petty theft offense was a necessarily included lesser offense of the robbery offenses. Hardy therefore could not be convicted of both. (People v. La Stelley (1999) 72 Cal.App.4th 1396, 1402.)
We therefore reverse Hardy's conviction for petty theft (count 4). Because of this reversal, the trial court must recalculate the fees assessed for court operations under section 1465.8, subdivision (a)(1), and for court facilities under Government Code section 70373, subdivision (a)(1), because those fees are assessed per offense. D. Section 654—Double Punishment
Hardy contends that his consecutive sentences for the robbery of Yubitza and Evelyn (counts 1 & 2) and burglary (count 3) violate section 654's proscription against multiple punishment. We do not agree.
Because we reverse the petty theft conviction (count 4), Hardy's argument concerning an improper multiple punishment under section 654 for this count is moot. We therefore do not address it.
Section 654 "'prohibits multiple punishment for the same "act or omission."'" (People v. Correa (2012) 54 Cal.4th 331, 337.) "'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.'" (Id. at p. 336.) However, a defendant may be punished for each offense, "[i]f he [or she] entertained multiple criminal objectives which were independent of and not merely incidental to each other . . . 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.) Additionally, punishment for each offense is not barred by section 654 if the facts support a finding of similar but consecutively held objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
We will uphold the trial court's express or implied finding that a defendant harbored a separate intent and objective for each offense if the finding is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) "We review the trial court's determination in the light most favorable to the [People] and presume the existence of every fact the trial court could reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
The trial court rejected Hardy's request to stay his sentence for the burglary conviction under section 654.{2 RT 327-328.} The court expressly found that Hardy harbored distinct and independent intents in the separate offenses—namely, that "[h]e entered the residence, he stole some things, [and] he got caught."{2 RT 328.} And then he pulled the knife out to effectuate leaving the house because Yubitza and Evelyn were preventing him from leaving.{2 CT 328.}
Hardy contends that the trial court should have stayed the sentence for the burglary conviction because Hardy's "entry into the residence was merely 'incident to and a means of perpetrating' the theft."{AOB 38.} The contention is true but irrelevant. Even if Hardy's entry into the home was merely incidental to the theft, it does not follow that his intent to commit burglary, on the one hand, was merely incidental to his intent to commit the robberies of the two victims, on the other. On the contrary, substantial evidence supports the trial court's finding that it was not merely incidental.
There is no evidence that Hardy intended to use force to take property from anyone when he entered the home. Hardy did not enter the home wielding a weapon and was not wielding a knife when he opened Yubitza's bedroom door. Nor did he threaten her at their initial encounter. Rather, he closed the door and attempted to leave the residence. Given that Yubitza immediately pursued him, it is reasonable to infer that Hardy already possessed the stolen property—the laptop and the credit cards—when he opened the bedroom door. Hardy's threats, use of the knife, and grabbing of the laptop from Yubitza did not occur until after Yubitza attempted to prevent him from leaving. The trial court's finding that Hardy initially entered the residence with the intent to take property but without the intent to use force or fear is therefore supported by substantial evidence. (See People v. Green (1985) 166 Cal.App.3d 514, 518 [punishment for robbery and burglary convictions not violative of section 654 because the record clearly established that the defendant entered the residence with the sole intent of committing theft and the robbery was committed only after the defendants unexpectedly encountered the victim].)
Because there was substantial evidence supporting the trial court's express finding that the course of conduct comprising the robbery offenses and the burglary offense was divisible, we affirm the trial court's determination that there was no basis under section 654 to stay the consecutive sentence for the burglary conviction (count 3). E. Presentence Incarceration Payment Order
Section 1203.1c provides that a court may order a defendant to pay the cost of incarceration pending disposition of the case if the "defendant is convicted of an offense and is ordered to serve a period of confinement in a county jail, city jail, or other local detention facility as a term of probation or a conditional sentence." (§ 1203.1c, subd. (a).) Hardy was sentenced to state prison and ordered to pay $1,500 in presentence incarceration costs pursuant to section 1203.1c. As the parties correctly agree, the trial court was not authorized to order Hardy to pay for the cost of his presentence incarceration, because Hardy was not sentenced to serve a jail sentence as a condition of probation, which section 1203.1c requires for such an order. F. Postjudgment Stay Away Order
Based on the probation officer's sentencing recommendation, the trial court ordered that Hardy shall "not have any contact with [Yubitza] [Evelyn] or [Elmer]." The court made no findings in support of that order. Hardy argues that the trial court did not have authority to issue the postjudgment protective order. The People agree, and we again concur.
Section 136.2 authorizes the trial court in a criminal case to protect a victim or a witness by issuing a protective order if certain conditions exist. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.) Protective orders issued pursuant to that section are generally "operative only during the pendency of the criminal proceedings and as prejudgment orders." (People v. Selga (2008) 162 Cal.App.4th 113, 118-119.) Postjudgment protective orders are permissible in limited circumstances, such as when the defendant has been convicted of certain domestic violence offenses, certain offenses requiring sex offender registration, or a sexual offense involving a minor victim. (§§ 136.2, subd. (i), 1201.3, subd. (a).)
However, as the parties correctly agree, none of the circumstances permitting a postjudgment protective order is present here. We therefore conclude that the trial court was not authorized to issue the postjudgment protective order, so the order must be stricken. (People v. Robertson (2012) 208 Cal.App.4th 965, 996 [striking unauthorized postjudgment protective order].) G. Actual Custody Credit
A criminal defendant is entitled to actual custody credit for "all days of custody" spent in jail before sentencing (§ 2900.5, subd. (a)), "including partial days" (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48). "Calculation of custody credit begins on the day of arrest and continues through the day of sentencing." (Ibid.; People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Hardy was awarded 121 days of actual custody credits. As the parties correctly point out, Hardy was entitled to actual custody credit for 124 days to account for the total period of incarceration. Hardy was originally sentenced on July 27, 2018. However, a second sentencing hearing was held on July 30, 2018, to clarify and correct the sentence. Hardy was not given credit for those days. The abstract of judgment should be corrected to reflect 124 days of actual custody credit.
DISPOSITION
The conviction for petty theft (count 4) is reversed. As a result of that reversal, the trial court is directed to recalculate the fees assessed for court operations under section 1465.8, subdivision (a)(1), and for court facilities under Government Code section 70373, subdivision (a)(1). The trial court is further directed to: (1) strike the postjudgment protective order; (2) strike the $1,500 presentence incarceration costs; (3) prepare an amended abstract of judgment, indicating 124 days of actual custody credit; and (4) forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: RAMIREZ
P. J. MILLER
J.