Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 03F5818, 06F5678
ROBIE, J.
Defendant Richard Allen Kenyon appeals his sentences in two cases, one for grand theft and possession of burglary tools and the other for evading a peace officer and misdemeanor reckless driving. Defendant contends that his sentences for possession of burglary tools and reckless driving should be stayed pursuant to Penal Code section 654. We agree.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from sentencing in three cases at one hearing on December 8, 2006. The background of the two cases at issue here is as follows:
Case No. 03F5818
On April 7, 2003, a Shasta County Sheriff’s Deputy attempted to conduct a traffic stop of defendant, who was riding a motorcycle without a helmet. After the officer activated his overhead lights and siren, defendant fled through a residential neighborhood and past a school, failing to stop at four stop signs and driving in excess of 75 miles per hour. After defendant’s motorcycle stalled, he fled on foot into a canyon area. When a California Highway Patrol canine located defendant in thick brush, defendant kicked and punched the dog several times before being taken into custody.
On December 2, 2003, defendant was charged with willful evading of a police officer, willfully harming a peace officer’s dog, reckless driving, and resisting a police officer. It was further alleged that defendant had served five prior prison terms.
The court dismissed two of the prior prison term allegations and on May 31, 2006, defendant pled no contest to all four counts and admitted the three remaining prior prison term allegations. Before sentencing, defendant was returned to prison for a parole violation, and sentencing did not take place until December 8, 2006.
Case No. 06F5678
On July 18, 2006, around 3:11 a.m., Redding Police Officers conducted a traffic stop of a Jeep towing a trailer driven by defendant. The trailer was filled with large wooden spools of wire and cable. The wire belonged to North Valley Distributing. A search of the vehicle turned up a pair of men’s ski gloves under the driver’s seat, a pair of 18-inch bolt cutters, a pair of welding gloves, and a canvas bag containing miscellaneous tools in the cargo portion of the vehicle. North Valley Distributing had a large opening cut into the chain link fence where the missing cable and wire had been stored.
On August 9, 2006, defendant was charged by a three-count information with grand theft of personal property, unlawful taking of a vehicle, and possession of burglary tools. As to the first two counts, it was further alleged that defendant had served four prior prison terms.
On October 18, 2006, defendant was convicted as charged on all three counts. The court dismissed two of the prior prison term allegations, defendant waived his right to a jury trial as to his prior convictions, and admitted the two remaining prior prison term allegations. Sentencing took place on December 8, 2006.
DISCUSSION
Case No. 03F5818
Defendant contends the trial erred by failing to stay the sentence for his misdemeanor reckless driving conviction pursuant to section 654. The People respond that defendant waived the point by failing to assert it at sentencing. We conclude defendant did not forfeit his section 654 argument on appeal, and the concurrent sentence on the reckless driving charge should have been stayed.
Ordinarily, a section 654 claim is not forfeited by failing to object in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295.) However, this rule is subject to an exception recognized in decisional law and California Rules of Court, rule 4.412(b). Rule 4.412(b) states that “[b]y agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.” (Italics added.)
All further references to rules are to the California Rules of Court unless otherwise indicated.
Hester applied former rule 412(b) (which contained this same wording as present rule 4.412(b)) where a defendant agreed to a four-year sentence, and then, on appeal, sought to challenge imposition of a term concurrent to his four-year sentence. (People v. Hester, supra, 22 Cal.4th at p. 296.) The court explained that “[t]he rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (Id. at p. 295.)
Here, unlike in Hester, defendant’s plea bargain agreement did not include a specified prison term in exchange for entry of his plea. On defendant’s plea form, under “PLEA AGREEMENT,” defendant pled no contest to all counts. Under “PUNISHMENT,” defendant initialed where the form reads as follows: “I understand the maximum possible imprisonment is 6 yrs. in state prison.” The six years was the statutory maximum sentence and was not a sentencing “lid” negotiated by the parties as part of the plea and did not represent something less than that which the court could have otherwise imposed. Rather, the specification of this maximum sentence was included simply to advise defendant of the information necessary to enter a voluntary and intelligent plea. (See People v. Lytle (1992) 10 Cal.App.4th 1, 4.)
On this point, the probation report specifically notes that “[t]he defendant pled Guilty with no promises at sentencing. (Italics added.)
Because defendant did not agree to a specified term as part of his plea bargain, his failure to raise the section 654 issue at the time he entered his plea or at his sentencing does not preclude his raising the issue on appeal under rule 4.412. We, therefore, reject the People’s argument and reach the merits of the section 654 claim.
Section 654, subdivision (a), provides in relevant part: “[a]n 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.”
“The ‘act’ necessary to invoke section 654 need not be an act in the ordinary sense of a separate, identifiable, physical incident, but may instead be a ‘course of conduct’ or series of acts violating more than one statute and comprising an indivisible transaction punishable under more than one statute. [¶] The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) “The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple. Each case must be determined on its own facts.” (Ibid.)
Defendant contends that the “reckless driving charge in count 3 was incidental to the evading [the peace officer] charge in count 1, and both crimes were committed with the same criminal intent and objective--to evade the police.” Defendant argues that his “single intent and objective in committing both crimes was [to] evade the police during a short pursuit.” The People do not respond to the merits of defendant’s argument.
The record supports defendant’s argument. The probation report states that defendant was riding a motorcycle without a helmet. Only when the police attempted to conduct a traffic stop did defendant flee at a high speed through a residential area, past a school, and through four stop signs. Therefore, the undisputed facts support the conclusion that the reckless driving and evading the police officer constituted one continuous course of conduct with the same criminal objective, that is, to evade the police. Accordingly, it was error for the trial court to impose the concurrent sentence of 180 days on the reckless driving count and that sentence is stayed pursuant to section 654. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420 [proper procedure when section 654 applies is to impose a stay].)
Case No. 06F5678
The trial court imposed a concurrent sentence of 180 days for defendant’s misdemeanor possession of burglary tools conviction. In defendant's view, this violated section 654’s proscription of multiple punishment because “possession of burglary tools in count 3 was incidental to the grand theft in count 1, and both crimes were committed with the same criminal intent and objective--to steal property . . . .” We agree.
The People do not dispute the applicable legal standard, incorporated from discussion of case No. 03F5818 above, but contend that the evidence did, in fact, show two separate criminal objectives. The People argue that “possession of burglary tools is not the same act as grand theft” as one can be committed without the other. Furthermore, “the fact that [defendant] retained the burglary tools, i.e., the bolt cutters and other tools found in his vehicle, establishes that he intended to use them again and not just for the single transaction that made up the grand theft charge.”
We believe the People’s contention parses the objectives too finely. (See People v. Britt (2004)32 Cal.4th 944, 953; People v. Lopez (2004) 119 Cal.App.4th 132, 138 [holding that section 654 precluded separate punishments for unlawful possession of ammunition and unlawful possession of a firearm where evidence showed single intent to possess a loaded firearm].) There was substantial evidence to support the jury’s implicit conclusion that defendant used the bolt cutters (and perhaps some of the other tools) found in his vehicle to cut the opening in the chain link fence at North Valley Distributing in order to steal the cable and wire that was stored there. It would be sheer speculation, however, to conclude from the fact that defendant did not immediately cast away the bolt cutters and other tools upon committing the theft that he intended to use them to commit further crimes. This is particularly the case where, as here, the items that constituted the “burglary tools” had legitimate, noncriminal uses that would lead even a person with no intent to commit further burglaries to refrain from discarding them.
Consequently, we conclude that the evidence shows, at most, a single criminal objective -- the theft of the cable and wiring from North Valley Distributing -- underlying the counts of grand theft and possession of burglary tools, and thus two separate punishments are precluded by section 654.
DISPOSITION
The sentences for count three (reckless driving) in case No. 03F5818 and count three (possession of burglary tools) in case No. 06F5678 are stayed. As so modified, the judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment showing this modification and send it to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P.J., MORRISON, J.