Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Nos. 30102A & 29897, John D. Kirihara, Judge.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, J.
STATEMENT OF THE CASE
On June 8, 2006, the Merced County District Attorney filed an information in superior court charging appellant Vincente Martinez and codefendant Pablo Macias Sandoval as follows:
Count I — first degree robbery (Pen. Code, §§ 212.5, subd. (a), 213, subd. (a)(1)(A);
All further statutory references are to the Penal Code unless otherwise indicated.
Count II — first degree burglary (§ 459);
Count III — felony vandalism (§ 594, subd. (b)(1));
Count IV — attempted taking of an automobile (Veh. Code, § 10851; Pen. Code, § 664); and
Count V — receiving stolen property (§ 496, subd. (a)) while on bail or recognizance (§ 12022.1, subd (b)) while armed with a dangerous weapon (§ 12022, subd. (a)(1)) (appellant only).
As to counts I through IV, the district attorney specially alleged appellant was released from custody on bail or on his own recognizance at the time of the offense (§ 12022.1, subd. (b)), and both appellant and codefendant Sandoval were armed with a dangerous weapon (§ 12022, subd. (a)(1)).
On June 9, 2006, appellant was arraigned, pleaded not guilty to the substantive counts and denied the truth of the special allegations.
On August 15, 2006, the matter came on for jury trial as to appellant only. On that same date, appellant admitted the truth of the bail enhancement allegation (§ 12022.1, subd. (b)). On that same day, the court dismissed count IV and the related enhancements on motion of the prosecutor and further granted the prosecutor’s motion to file an amended information.
On August 16, 2006, the district attorney filed a first amended information charging appellant as follows:
Count I — first degree robbery (§§ 212.5, subd. (a), 213, subd. (a)(1)(A));
Count II — first degree burglary (§ 459);
Count III — felony vandalism (§ 594, subd. (b)(1)); and
Count IV — receiving stolen property (§ 496, subd. (a)).
As to each count, the district attorney specially alleged appellant was armed with a firearm (§ 12022, subd. (a)(1)) and personally used a metal pole as a deadly or dangerous weapon (§ 12022, subd. (b)(1)).
On August 18, 2006, the court granted appellant’s motion to strike the section 12022, subdivision (b)(1) special allegation, but denied his motion to strike the section 12022, subdivision (a)(1) special allegation.
On August 21, 2006, the fifth day of jury trial, the jury returned verdicts finding appellant guilty of counts I through IV and finding the special allegation under section 12022, subdivision (a)(1) to be not true as to all counts.
On October 10, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of eight years in state prison. The court imposed the middle term of six years on count I, a consecutive term of 16 months (one-third of the middle term) on count II, and a consecutive term of eight months (one-third of the middle term) on count IV. The court imposed a concurrent term of two years on count III, and dismissed the bail enhancement that appellant had previously admitted.
On October 18, 2006, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Early on March 28, 2006, Rosendo Vega was at his Livingston home with his wife, one of his sons, and the son’s girlfriend, Vanessa. Vanessa parked her white car in front of the Vegas’ home. A short time after midnight, some men came to the front door of the Vega home and knocked. Vega opened his bedroom window and asked what they wanted. The men asked for “the girl who had that car.” According to Vega, the group consisted of more than three men. They said they “wanted some money that was owed on that car.” Vega told the men he did not know anything and the men left in a blue pickup truck.
The men eventually returned to the Vega home and entered the residence through a sliding glass door in the back. Mr. Vega called the police and took the telephone into the bathroom. One of the men entered the bathroom and smashed the sink with a metal object. That same man told Vega to sit on the toilet and threatened to “‘finish you off here’” if Vega called the police again. The man took the telephone from Vega. Vega’s wife was locked in the bedroom while all of this was taking place.
After the men had been in the residence for several minutes, one of them said, “[h]ey, the police.” The men departed, taking the keys to Mr. Vega’s car. The keys had been on a kitchen counter. According to Vega, the men entered his home to get money that had been owed to them on a car. Vega testified he saw a pistol in the hand of one of the men. Vega testified it would cost him $600 in supplies and labor to replace the parts on his broken sink. Vega also testified the intruders damaged one of his bedroom doors. At trial, Vega did not recognize appellant as the man who was in his bathroom.
Appellant’s original codefendant, Pablo Macias Sandoval, was 19 years old at the time of appellant’s trial. Sandoval testified he had been charged with the same offenses alleged against appellant and had entered a plea to first degree burglary shortly before appellant’s trial. As a condition of his plea, Sandoval agreed to testify truthfully at appellant’s trial in exchange for probation with credit for time served.
According to Sandoval, he met with appellant near the Merced Mall in late March 2006. Appellant indicated he had an unspecified job for Sandoval and the pay would be $200. Sandoval later talked with Rogelio Covarruvias, who explained the nature of the job. Covarruvias drove a blue pickup truck to the vicinity of the Merced bus station, picked up Sandoval, and proceeded to Livingston. The occupants of the pickup truck were Covarruvias, appellant, and a gang member named Salvador whose nickname was “Lunatic.” Sandoval said he attended school with “Lunatic.” Covarruvias told Sandoval the latter was going to serve as a “lookout.” They drove to a home in Livingston. Covarruvias and Salvador got out of the pickup truck, went to the front door and knocked on it. The person who answered the door told Covarruvias that the person they were looking for did not live there; Covarruvias and Salvador returned to the pickup truck and left. Appellant placed a telephone call and Covarruvias spoke with someone on the phone. Covarruvias then told the others they had gone to the correct house. They returned to the same home and Covarruvias dropped off appellant, Salvador, and Sandoval behind the residence.
Appellant, Sandoval and Salvador jumped the fence and went into the backyard of the Vega home. There they met Covarruvias, who came from the front of the house and who opened an unlocked sliding glass door. When Covarruvias entered the backyard, he had a metal pipe in his hands. Sandoval testified he did not have anything in his hands and did not see appellant or Salvador remove anything from the pickup truck.
According to Sandoval, Covarruvias told Salvador to look for some keys. Covarruvias also said if he did not get the money that was owed to him, he was going to take one of the cars. The house was dark except for one bathroom that had a light on. Covarruvias went straight to the bathroom and began arguing with a man inside. Sandoval then saw Covarruvias come out of the bathroom and force one of the bedroom doors open. Covarruvias announced that someone had jumped outside the house through a bedroom window. He exclaimed, “[l]ets go.” The group of men ran out of the back of the house and through the backyard. At that point, Sandoval saw a police patrol car pull up and he was subsequently placed under arrest.
Livingston Police Officer Aaron Beatty was the first officer to respond to Mr. Vega’s 911 call at 1:00 a.m. on March 28, 2006. When Officer Beatty arrived, he saw a blue pickup truck and a white automobile parked in front of the Vega home. The doors of the pickup truck were open. Mr. Vega was very upset when Officer Beatty contacted him. Vega told Beatty that six men, one with a firearm, had entered his home and that one of the men had thrown him to the bathroom floor. Vega told Beatty the men had arrived at his house in a blue pickup truck, they left the house, and then they returned about 30 minutes later. Vega explained he called the police because the men were pulling on the front door, shaking the handle and trying to get inside the home.
Officer Beatty looked inside the bathroom and saw the sink was damaged and several pieces of the porcelain were on the floor. He also observed a hole in the middle of one of the bedroom doors. Beatty went outside and saw two fence boards at the back of the house had been pushed down. He also saw muddy foot prints that went from the backyard into the house. Livingston Police Officer Allen Cadiente found a metal bar in the backyard. The bar was about three feet long and had a rubber handle at one end.
Officer Beatty ran a registration check on the blue pickup truck and learned it was registered to one Rogelio Covarruvias. Beatty later showed Mr. Vega a photographic lineup that included appellant’s picture. After examining the photographic lineup, Vega identified two of the men who had entered his home. However, appellant was not one of the two men he identified. Vega identified Covarruvias as the person who broke his bathroom sink and Covarruvias was arrested later that evening.
Ten hours after the incident at the Vega home, appellant and Sandoval were placed under arrest and Officer Cadiente interviewed them. Cadiente interviewed them in Spanish with the assistance of an interpreter. Appellant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, and agreed to talk with Cadiente. Cadiente asked appellant if he had gone inside the Vega home. Appellant said he had entered the home with Salvador, Covarruvias, and Sandoval. Appellant explained he found an unlocked patio door in the back of the house and they used that unlocked door to get inside. When they entered the home a woman was screaming and Covarruvias entered the bathroom. Appellant heard Covarruvias ask Mr. Vega for some money that was owed to him. Covarruvias ultimately took a set of car keys from Vega, gave the keys to appellant, and appellant had those keys on his person at the time of his arrest.
Appellant told Officer Cadiente that Covarruvias had picked him up at a friend’s house in Atwater. Appellant also said that Sandoval and Salvador were already in the blue pickup truck at that time. They drove to the Vega home to collect some money and knocked on the front door. The man inside the house would not let them inside. After being denied admittance, they got back into the truck, drove to the back of the house, and then got out of the truck again. Covarruvias told the others he was going to try to get the money and, if he was unable to do so, they were going to take the car. Appellant told Cadiente that Sandoval had a knife. However, he did not see anyone else with weapons and did not see anyone with a firearm. Appellant told Cadiente he did not know who had damaged the bathroom. However, appellant did see Covarruvias damage one of the bedroom doors. Appellant told Cadiente he ran out the back door and jumped over a fence when the police arrived at the Vega home. Appellant explained he ran toward a field where new homes were being constructed.
At trial, appellant’s counsel had the court interpreter read a letter appellant had written in the Spanish language. The letter stated in English: “I want you to forgive me for having scared you. I did not know about what they were going to do about beating you and scaring you.” Appellant signed the letter on March 28, 2006, and the interpreter read the letter on August 18, 2006.
DISCUSSION
I.
THE COUNT III CONVICTION
Appellant contends the judgment of conviction on count III (vandalism) was not supported by substantial evidence. Appellant specifically contends:
“[T]he prosecution failed to present proof beyond a reasonable doubt that he was guilty of vandalism as either an aider and abettor or a conspirator. There was no evidence from which a rational trier of fact could have concluded beyond a reasonable doubt either (1) that Mr. Martinez (a) knew that Rogelio Covarruvias intended to commit the crime of vandalism, (b) intended to aid and abet Covarruvias in committing vandalism, and (c) by words or conduct actually helped Covarruvias commit vandalism, or (2) that the acts of vandalism committed by Covarruvias were natural and probable consequences of the conspiracy among the four men who entered Mr. Vega’s home to commit theft. Therefore, Mr. Martinez’s conviction of vandalism in count 3 must be reversed.” (Fn. omitted.)
Section 594, as charged in count III states in relevant part:
“(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism:
“(1) Defaces with graffiti or other inscribe material.
“(2) Damages.
“(3) Destroys. [¶]…[¶]
“(b)(1) If the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment in the state prison or in the county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or if the amount of defacement, damage, or destruction is ten thousand dollars ($10,000) or more, by a fine of not more than fifty thousand dollars ($50,000), or by both that fine and imprisonment.”
To commit vandalism within the meaning of section 594, an individual must maliciously damage or destroy any real or personal property not his or her own. (In re Leanna W. (2004) 120 Cal.App.4th 735, 743.) In the instant case, both appellant and respondent acknowledge that Rogelio Covarruvias, not appellant, was the individual who smashed Mr. Vega’s sink and kicked in the bedroom door. The prosecutor’s theory as to count III was that appellant was an aider and abettor and also a member of conspiracy to commit the crime of theft in Mr. Vega’s home. The court instructed the jury on the elements of aiding and abetting and the elements of conspiracy. A person aids and abets the commission of a crime when he or she (1) with knowledge of the unlawful purpose of the perpetrator, (2) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (3) by act or advice, aids, promotes, encourages, or instigates the commission of a crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, are principals in any crime so committed. (§ 31.) A person who aids and abets a confederate in the commission of a criminal act is liable for any other offense (non-target crime) committed by the confederate as a natural and probable consequence of the crime originally aided and abetted. The test of natural and probable consequences is an objective one. The issue does not turn on the defendant’s subjective state of mind, but depends upon whether, under all the circumstances presented, a reasonable person in the defendant’s position would have known the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. In applying the natural and probable consequences doctrine, the jury must consider the aider and abettor’s actual circumstances. The aider and abettor may intend or expect the perpetrator to commit the crime in the form of a single, well-defined criminal act. On the other hand, the aider and abettor may have only the vaguest idea of the precise act by which the perpetrator will commit the crime. (People v. Culuko (2000) 78 Cal.App.4th 307, 324-327.)
The record in the instant case shows that Rogelio Covarruvias smashed Mr. Vega’s bathroom sink and countertop with a metal stick, causing damages in excess of $600. The record also shows that Covarruvias knocked a hole in a bedroom door. Pablo Macias Sandoval testified he met with appellant near the Merced Mall in late March 2006. Appellant told Sandoval he had a job that would pay $200 but did not explain the duties. When Sandoval accepted the job offer, appellant told him where he would be picked up. Sandoval eventually met up with appellant, Covarruvias, and Salvador. When the four men were together, Covarruvias explained Sandoval’s duties during the job. Covarruvias instructed Sandoval to “watch that the police didn’t arrive or anything.” Covarruvias instructed Salvador to grab some keys. Sandoval believed Covarruvias instructed appellant to act as a lookout. Covarruvias drove the four men in a pickup to a specific residence in Livingston. Covarruvias also explained he was going to talk with the owner of the house about a problem. Upon arrival in Livingston, Covarruvias and Salvador went to the front door and asked whether someone name “Jesse” lived there. They returned to the pickup truck and expressed uncertainty as to whether “Jesse” lived in that house. After appellant made some telephone calls, Covarruvias determined they had stopped at the correct house. The four men returned to the house and Covarruvias dropped off appellant, Sandoval, and Salvador behind the house. The three men jumped the fence and entered the backyard of the Vega residence. There they met Covarruvias, who had come from the front of the house and who opened an unlocked sliding glass door. Covarruvias had a pipe in his hands. Officer Cadiente testified he found a metal bar about three feet long, with a rubber handle on one end, in the backyard of the Vega residence.
According to Sandoval, the four men entered the residence and Covarruvias instructed Salvador to look for some keys. After the four men gained entry to the house, Covarruvias again told Salvador to look for some keys. Covarruvias explained “the man owed him money.” Covarruvias also said “if he didn’t get it he was going to take one of the cars.” Covarruvias turned on the kitchen lights and then proceeded to the bathroom because that was the only lit area of the house at the time they entered the residence. Covarruvias argued with an older man in the bathroom. Meanwhile, Sandoval held unto a door to a bedroom occupied by a woman. The woman was saying, “what’s going on?” At the same time, appellant was holding onto the door of another room. Appellant eventually stepped to one side and Covarruvias forced the door open.
In view of these facts and circumstances, the jury could reasonably conclude that appellant aided and abetted Covarruvias’s acts of vandalism in breaking the bedroom door, the bathroom sink, and the bathroom countertop.
As to a conspiracy theory underlying the vandalism, in contemplation of law the act of one conspirator is the act of all. Each is responsible for everything done by his or her confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences. (People v. Lee (2006) 136 Cal.App.4th 522, 528-529.) In the instant case, the jury could reasonably conclude that Covarruvias’s vandalism of the bathroom, fixtures, and the bedroom door followed incidentally in the execution of the common design of the quartet. In other words, the jury could reasonably infer that vandalism was one of the probable and natural consequences of entering a residence and attempting to secure possession of a vehicle or payment of an obligation on a vehicle.
Substantial evidence supported the judgment of conviction on count III and reversal is not required.
II.
THE COUNT IV CONVICTION
Appellant contends the conviction of receiving stolen property (count IV) must be reversed because it was predicated on the same theft which formed the basis of the robbery conviction (count I).
Count I of the first amended information alleged in relevant part:
“ON OR ABOUT MARCH 28, 2006, DEFENDANT VINCENTE MARTINEZ DID COMMIT A FELONY, NAMELY, A VIOLATION OF SECTION 212.5(A)/213(A)(1)(A) OF THE CALIFORNIA PENAL CODE, ROBBERY IN THE FIRST DEGREE, IN THAT SAID DEFENDANT(S) DID WILLFULLY AND UNLAWFULLY AND IN CONCERT WITH TWO OR MORE OTHER PERSONS TAKE PERSONAL PROPERTY OF ANOTHER, TO WIT, ROSENDO VEGA, FROM HIS PERSON OR IMMEDIATE PRESENCE, AGAINST HIS WILL BY FORCE OR FEAR AND WHICH ROBBERY WAS PERPETRATED IN AN INHABITED DWELLING HOUSE.”
Count IV of the first amended information alleged in relevant part:
“ON OR ABOUT MARCH 28, 2006, DEFENDANT(S) VINCENTE MARTINEZ DID COMMIT A FELONY, NAMELY, A VIOLATION OF SECTION 496(A) OF THE CALIFORNIA PENAL CODE, RECEIVING STOLEN PROPERTY, IN THAT SAID DEFENDANT(S) DID WILLFULLY AND UNLAWFULLY BUY, RECEIVE, CONCEAL, SELL, WITHHOLD, OR AID IN CONCEALING, SELLING, AND/OR WITHHOLDING PROPERTY, TO WIT: CAR KEYS WHICH HAD BEEN STOLEN OR OBTAINED BY EXTORTION KNOWING THAT SAID PROPERTY HAD BEEN STOLEN.”
Here, the record showed the men entered the Vega home through the sliding glass door in the back of the residence. Rosendo Vega called the police and took his telephone into the bathroom. The bathroom was the only lighted room in the residence when the intruders entered. Rogelio Covarruvias entered the bathroom and smashed the sink with a metal object. He told Vega to sit on the toilet and threatened to “‘finish [him] off here’” if Vega called the police again. At that point, Covarruvias seized the telephone from Vega. After several minutes, one of the intruders noted the arrival of police and the men departed, taking the keys to Vega’s car.
Robbery is the felonious taking of personal property in the possession of another, from his or her person or immediate presence, and against their will, accomplished by means of force or fear. (§ 211.) The crime is essentially a theft with two aggravating factors: (1) a taking from the victim’s person or immediate presence and (2) a taking accomplished by the use of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. The term “immediate presence” is spatially, not temporally descriptive and refers to the area from which the property is taken, not how far it is taken or for what duration. A thing is in the “immediate presence” of a person, in respect to robbery, which is within his or her reach, inspection, observation or control, such that he or she could retain possession of it if not overcome by violence or prevented by fear. The “immediate presence” component of robbery focuses on whether the stolen property was located in an area in which the victim could have expected to take effective steps to retain control over his or her property. To support a robbery charge, the taking must also be accomplished by force or fear. Circumstances otherwise constituting a mere theft will establish a robbery where the perpetrator peacefully acquires the victim’s property, but than uses force to retain or escape with it. (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221-222.)
Theft is a lesser included offense of robbery. Robbery comprises elements embracing the use of force or fear to effect a taking from the victim and also an intent to steal, accompanying the use of such means. Theft comprises the same elements, including intent to steal, with the pertinent exception of the use of force or fear. (People v. Waidla (2000) 22 Cal.4th 690, 737.) Section 496, subdivision (a) defines the crime of receiving stolen property. This statute also provides that a person who has been convicted of the theft of property may not also be convicted of receiving the same property. This provision codifies a common law rule prohibiting separate convictions of the same person for stealing and receiving the same property. (People v. Garza (2005) 35 Cal.4th 866, 871, 874-875.)
In California, there are two limited exceptions to the common law rule: (1) when the acts of receiving or concealment are completely divorced from the theft, as where the thief disposes of the property and then, in a separate transaction, receives it again, and (2) when the thief is a co-conspirator of the receiver. (People v. Smith (2007) 40 Cal.4th 483, 522, fn. 10.)
Respondent concedes a person may not be convicted of stealing or receiving the same property. However, respondent correctly points out that the evidence showed and the prosecutor argued the robbery and receiving stolen property counts were not predicated on the same theft or the same stolen item. The evidence showed that Rogelio Covarruvias forcibly seized the telephone from Mr. Vega. The evidence further shows that appellant received a set of car keys from Covarruvias. Thus, the jury could reasonably render verdicts finding appellant guilty of robbery of Mr. Vega based on the taking of the telephone and receiving stolen property for accepting the keys to the automobile. Under these circumstances, the judgment of conviction on count IV need not be reversed.
III.
THE COUNT IV SENTENCE
Assuming arguendo a proper judgment of conviction on count IV (receiving stolen property), appellant contends the ultimate eight month sentence imposed on that count should have been stayed under section 654.
Appellant specifically argues:
“Even if … Mr. Martinez was properly convicted of both robbery in count 1 and receiving stolen property in count 4, this court should reverse the eight-month consecutive sentence which the trial court imposed for Mr. Martinez’s conviction on count 4. If the conviction in count 4 was proper, which Mr. Martinez contends was not the case, imposition of punishment should have been stayed pursuant to section 654.
“The trial court stated that Mr. Martinez’s possession of stolen property was ‘part and parcel apparently of the robbery and burglary,’ which Mr. Martinez agrees was the case. Yet, because the possession of stolen property conviction was ‘a separate offense,’ in which Mr. Martinez was ‘personally involved,’ the court stated ‘that [count 4] should run consecutive.’ The trial court erred when it imposed a consecutive sentence as to count 4.
“If, indeed, Mr. Martinez’s conviction for possession of stolen property was ‘part and parcel’ of not only the robbery, as the court found …, but also of the burglary, as the court also found, that finding is tantamount to finding that all three offenses constituted an indivisible transaction, for which punishment should have been imposed on only one count. (People v. Beamon (1973) 8 Cal.3d 625, 637-638.) The trial court should, therefore, have stayed imposition of sentence for Mr. Martinez’s conviction in count 4, pursuant to section 654. [Citations.]”
Multiple crimes that arise from a single course of criminal conduct may be punished separately, notwithstanding section 654, if the acts constituting the various crimes serve separate criminal objectives. Once again, whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends upon 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. (People v. Davey (2005) 133 Cal.App.4th 384, 390, 393.) As a general rule, the sentencing court determines the defendant’s intent and objective under section 654. (People v. Norrell (1996) 13 Cal.4th 1, 6.) An appellate court reviews the trial court’s determination of “separate intents” for sufficient evidence in a light most favorable to the judgment. The reviewing court presumes in support of the trial court’s conclusion the existence of every fact that the trier of fact could reasonably deduce from the evidence. (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.) In the instant case, the trial court stated at sentencing:
“[H]e [appellant] is clearly in possession of stolen property. This is part and parcel apparently the robbery and burglary, so I think there is … should return consecutive because this is [a] separate offense. I think the Defendant was personally involved in that.”
Thus, although the trial court described count IV as a “separate offense” (because appellant was personally involved with the conduct underlying that offense), the court still deemed that offense “part and parcel” of the robbery and burglary charged in counts I and II, respectively. As appellant points out in his opening brief, the trial court’s statement was tantamount to finding that all three offenses (counts I, II, and IV) constituted an indivisible transaction, for which punishment should have been confined to only one count. Since the intent and objective of the actors was to secure possession of an automobile or the monetary equivalent of an automobile, the eight-month consecutive sentence on count IV must be stayed pursuant to section 654.
IV.
THE COUNT II SENTENCE
Appellant contends the trial court erroneously imposed a consecutive sentence on count II (burglary) because both count I (robbery) and count II were committed with the same intent and objective, pursuant to an indivisible course of conduct.
The court conducted a sentencing hearing on October 10, 2006. The prosecutor initially asked the court to impose the upper term on count I, run count II concurrent and run count III consecutive. Defense counsel noted a problem under section 654 because “these crimes occurred … at the exact same time with the exact same mental state, and you can’t punish one course of conduct just because they fall … within different statutes. [¶] They fall in the same conduct, falls under different statutes, that’s the purpose behind 654.” The court ultimately imposed the middle term of six years for the robbery conviction in count I. The court deemed the burglary conviction on count II to be “really a separate offense” and consecutively imposed one-third of the middle term on count II. As to the vandalism conviction on count III, the court saw no “particular reason” why it should result in a consecutive sentence because it was “part and parcel of the sequence of events.” The court imposed a two-year concurrent term as to that count. With respect to count IV, the court found appellant was “clearly in possession of stolen property,” deemed it a separate offense in which appellant was personally involved, and consecutively imposed one-third of the middle term of two years on that count.
Appellant contends substantial evidence does not support the trial court’s finding that appellant acted with different objectives when he committed the robbery charged in count I and the burglary charged in count II. He submits both offenses were committed with the same intent to take property and he may not be separately punished for both the burglary and the robbery. He specifically argues:
“[T]he burglary of Mr. Vega’s home and the robbery of Mr. Vega were committed with the same intent and objective; i.e., to permanently deprive Mr. Vega of his property, be it either money, keys or the car. Mr. Martinez contends that section 654 precludes separate punishment for both the robbery in count 1 and the burglary in count 2, under the principle that a burglar cannot be separately punished for both the burglary and the felony which he intends to commit when he enters the building. (People v. James (1997) 19 Cal.3d 99, 119-120 .…)
“The evidence presented at trial demonstrates that Mr. Martinez unlawfully entered Mr. Vega’s home, in violation of section 459, with the sole intent and objective to take Mr. Vega’s property, by either theft or robbery, and to permanently deprive Mr. Vega of that property. Because both the burglary and the resulting robbery ‘were incident to one objective, [Mr. Martinez] may be punished for any one of such offenses but not for more than one.’ (People v. Perez [(1979)] 23 Cal.3d [545,] 551.)
“The 16-month prison sentence which Mr. Martinez received for his conviction of burglary in count 2 should be reversed, and imposition of punishment on that count should be stayed pursuant to section 654. [Citations.]”
Section 654, subdivision (a) provides in pertinent part:
“An 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 purpose of section 654 is to ensure that punishment is commensurate with a defendant’s culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) The proscription applies to a course of conduct violating more than one statute, where the offenses were incident to one objective. (People v. Martinez (2005) 132 Cal.App.4th 531, 535.)
Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. Under California law, it is the defendant’s intent and objective that determines whether the course of conduct is indivisible. Thus, if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. (People v. Le (2006) 136 Cal.App.4th 925, 931.) Moreover, section 654 prohibits multiple punishments, not multiple convictions. Thus, the section’s proscription extends to include both concurrent and consecutive sentences, since even concurrent sentences may work a disadvantage to petitioner in the fixing of his term and parole date by the Board of Parole Hearings. (In re Adams (1975) 14 Cal.3d 629, 636 [referring to predecessor entity].)
Section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) Once again, the divisibility of a course of conduct depends upon the intent and objective of the defendant. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
The question of whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts. (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) We review the trial court’s findings in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.) We uphold the trial court’s findings when supported by substantial evidence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-1253.)
Where the trial court does not make an express finding, an implied finding that the crimes were divisible must be upheld if supported by the evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) If section 654, subdivision (a) requires that a sentence be stayed, then concurrent terms pursuant to section 669 may not be imposed. (People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239.) Where multiple punishment has been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248.)
Thus, section 654 precludes multiple punishment for a single act or omission or an indivisible course of conduct. Under California law, it is the defendant’s intent and objective that determines whether the course of conduct is indivisible. If all the offenses were merely incidental to, over the means of accomplishing or facilitating one objective, a defendant may be found to have harbored a single intent and therefore may be punished only once. (People v. Le, supra, 136 Cal.App.4th at p. 931.) On the record before us, appellant’s offenses of robbery and burglary were the means of accomplishing or fulfilling a single intent—the intent to take Mr. Vega’s property (either money, an automobile, or both) and to permanently deprive him of that property. Because both the burglary and the resulting robbery were incident to that one objective, appellant may be punished for either of such offenses but for not more than one. (People v. Perez (1979)23 Cal.3d 545, 551.)
Thus, the trial court improperly imposed multiple punishment and the proper procedure for this court is to modify the sentence to stay imposition of the lesser term, i.e., the term of one year four months imposed on count II. (People v. Butler, supra, 43 Cal.App.4th at p. 1248.)
DISPOSITION
The sentence imposed on counts II and IV are ordered stayed pursuant to Penal Code section 654. In all other respects the judgment of conviction and sentence is affirmed. The trial court is directed to prepare and serve as appropriate an amended abstract of judgment.
WE CONCUR: VARTABEDIAN, Acting P.J. WISEMAN, J.