Opinion
NOT TO BE PUBLISHED
Superior Court No. 1252898 County of Santa Barbara, Rick Brown, Judge
Lisa M. J. Spillman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen, Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Bahram Jabarohgli was found guilty by a jury of robbery (count 1, Pen. Code, § 211), second degree burglary (count 2, § 459) and false imprisonment (count 3, § 236). The jury also found true, as to count 1, that he personally used a handgun (§§ 12022.5, subd. (a); 12022.53, subd (b)), and as to counts 2 and 3 that he personally used a firearm (§§ 1203.06, subd. (a)(1); 12022, subd. (a)(1)).
All statutory references are to the Penal Code.
The court sentenced Jabarohgli to two years on count 1 (robbery), plus ten years for the handgun enhancement. The court ordered the sentences and enhancements for counts 2 (burglary) and 3 (false imprisonment) to run concurrently with count 1.
We conclude the sentences and enhancements on counts 2 and 3 must be stayed under section 654. The abstract of judgment must also be corrected to describe the offense in count 1as second degree robbery.
FACTS
At 9:00 a.m., on August 20, 2007, Leah Carter arrived for work at a Sizzler Restaurant in Goleta. On her way to the office, she was stopped by another employee, Nabor Madrid. Madrid showed her a cord attached to one of the kitchen machines that had been cut.
Carter used a key to enter the office. The lights were on. She saw Jabarohgli, a former Sizzler manager, wearing a black "beanie" hat pulled down over his face with slits cut for his eyes and mouth. He was holding a gun. Jabaroghli pointed the gun at her and ordered her to open the office safe. She tried but could not remember the numbers. Jabarohgli became agitated and tried to open the safe himself a few times. He held a gun to Carter's head and told her he would not hurt her if she did not cry.
At one point, Madrid came to the door and asked if she was all right. Jabaroghli told her to say she was okay, and she did. Another employee, Jim Johnson, came to the door. Carter also told him she was okay.
After about 10 minutes, Carter was able to get the safe open. Jabaroghli demanded the cash and rolls of quarters. Carter put them in small boxes and gave them to him. Jabaroghli ordered Carter out of the office, so she left. Jabaroghli was still in the office.
Carter told all the restaurant employees to go outside. Once outside, she told them she had been robbed. The manager called the police. Jabaroghli was arrested at a Toyota dealership across the street from the restaurant. Police recovered money, Sizzler gift certificates, a handgun, a black beanie hat, gloves and a knife from the dealership bathroom.
The Sizzler manager reentered the restaurant. He noticed that the electrical cords to the meat slicer and food processor had been cut. He also noticed that the thermostat box in the walk-In refrigerator had been tampered with.
DISCUSSION
Jabaroghli contends the trial court erred in ordering the sentences and enhancements on counts 2 (burglary) and count 3 (false imprisonment) to run concurrently with the sentence and enhancement for count 1 (robbery). Instead, Jabaroghli argues the court should have stayed the sentences and enhancements for counts 2 and 3 under section 654.
Section 654 prohibits multiple punishment for a single act or a single course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a course of criminal conduct is single or divisible depends on the objective of the actor. (Ibid.) Where all the offenses were incident to a single objective, the defendant may be punished for any one offense but not for more than one. (Ibid.)
Jabaroghli argues he had a single objective: robbery. He claims the burglary and false imprisonment were committed solely to accomplish that objective. Thus he can only be punished for one such offense.
The Attorney General argues, however, that Jabaroghli had a dual objective in committing the burglary: robbery and vandalism. He claims cutting the power cords and tampering with the thermostat constitute felony vandalism.
But the Attorney General points to no evidence that the damages from the vandalism are sufficient to constitute a felony. (See § 594, subd. (b)(2)(A) [damage less than $400 is a misdemeanor].) Moreover, vandalism was neither charged nor even argued to the sentencing court. The probation report states that the burglary and false imprisonment constitute a single course of conduct, and recommends that the sentences for burglary and false imprisonment be stayed under section 654. The record is not sufficient to support the Attorney General's argument that Jabaroghli had more than one objective.
Finally, we must correct the abstract of judgment. The abstract correctly identifies the section violated in count 1 as section 211. But the abstract described the offense as "[r]esidential burglary 2nd deg[ree]." The abstract must be modified to describe the crime committed for count 1 as robbery.
The abstract is amended to describe the offense in count 1 as second degree robbery. The sentences and enhancements for counts 2 and 3 are stayed. The trial court shall forward a modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.