Opinion
C081631
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT THOMAS JONES II, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62141429)
A jury found defendant Robert Thomas Jones II guilty of attempted first degree burglary and misdemeanor vandalism. On appeal, he first contends insufficient evidence supports his conviction for attempted burglary because he never took a direct but ineffectual step toward burglarizing the house. He also contends punishment for his vandalism conviction must be stayed under Penal Code section 654. The People concede error as to the second contention. We agree with the people. We will stay execution of sentence for vandalism and otherwise affirm.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
After his home was burglarized, the victim installed a four-camera security system, which could be viewed remotely. That system recorded part of defendant's burglary attempt.
Defendant drove his car to the victim's house, parking just past the view of the front security camera. Six minutes later, he approached the front camera from behind and disabled it by pulling wires from it.
He then walked to the left side of the house. There, a gated fence surrounded the back deck. He touched the lock on the gate and placed a long bar near the gate and pulled on the bar, before stopping and turning around.
At that same time, the victim, who was at work, happened to check his phone and saw defendant touching the gate to his back deck. The victim called 911.
About five minutes later, an officer arrived. The officer found defendant standing next to the right side of the house. Defendant had tried to open a gate on that side too.
At trial, defendant maintained he had gone to the house to smoke, after dropping off his grandchildren at school. He saw a lawnmower off the side of the yard and decided to steal it. He disabled the security camera in order to steal the lawnmower. But he maintained he never attempted to get in the house, and after trying to open the gates to the back deck, he decided it was not worth it.
A jury found defendant guilty of attempted burglary and vandalism. The trial court imposed a two-year middle term for attempted burglary and a six-month term for misdemeanor vandalism, to run concurrently. The court declined to apply section 654 to the vandalism count. The court explained: "the elements for vandalism and the elements for attempted first degree burglary are not coextensive. The vandalism occurred to the outside of the property. The burglary addressed whether or not there was some possible intent to go into the inhabited residence. So the Court does not apply 654."
DISCUSSION
I
Substantial Evidence Supports The Conviction For Attempted Burglary
On appeal, defendant first contends insufficient evidence supports his conviction for attempted first degree burglary. He argues he never took a direct but ineffectual step toward accomplishing the burglary. He reasons exiting his car, disabling the security camera, and looking over the fence were no more than planning and preparation. At most, he was scouting or casing the property. We disagree.
Burglary requires entry into "any house . . . with intent to commit grand or petit larceny or any felony . . . ." (§ 459.) Attempt requires "a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21, subd. (a).)
The direct but ineffectual act "need not be the last proximate or ultimate step toward commission of the crime . . . , nor need it satisfy any element of the crime," but it must go beyond mere preparation. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.) Preparation is " 'devising or arranging the means or measures necessary for the commission of the offense." Attempt " 'is the direct movement toward the commission after the preparations are made.' " (Id. at p. 8.) " ' "[I]t is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made." ' " (Ibid.) And "[w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt." (Ibid.)
Where the sufficiency of evidence is challenged on appeal, we review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is evidence that is "reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Ibid.) If substantial evidence supports the verdict, we defer to the fact finding. (Ibid.) We will not set aside judgment for insufficient evidence unless it clearly appears, "that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury." (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Here, there is substantial evidence of direct but ineffectual acts toward the commission of burglary. Defendant disabled the front security camera by yanking wires from it. He then went to one side of the house and used a bar in an attempt to open the gate. He then went to the other side of the house and tried to open the other gate. And he was arrested only about five minutes after his attempt to open the first gate.
From these facts, a jury could reasonably conclude defendant had specific intent to burglarize the house and his actions went beyond mere preparation. We will therefore affirm defendant's conviction for attempted burglary.
II
Execution Of Punishment For The Vandalism
Count Must Be Stayed Under Section 654
Defendant next challenges the trial court's failure to apply section 654 to his vandalism conviction. The People concede error, and we agree.
Though a person may be convicted of more than one crime for the same act, section 654 proscribes multiple punishments for the same act. (§§ 654, 954; People v. Correa (2012) 54 Cal.4th 331, 337.) An "act" can include a " ' "course of conduct." ' " (Id. at p. 335.) When a course of conduct causes multiple offenses--each capable of being independently committed--section 654's application turns on whether each conviction was based on a separate, divisible transaction. (Id. at pp. 335-336.) Whether a course of conduct is divisible turns on the defendant's intent and objective. (Id. at p. 336.) "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." (Ibid.)
Here, defendant disabled the camera as part of his attempt to burglarize the house. As such, the vandalism and attempted burglary were incident to one objective, and the trial court erred in concluding section 654 did not apply. We will therefore order execution of the six-month sentence stayed, pursuant to section 654. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1466 ["[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence"].)
DISPOSITION
The judgment is modified to stay execution of punishment for count two, vandalism, pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment. The trial court is further directed to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Hoch, J.