Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BLF004017, James S. Hawkins, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant Martinez.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant Aguirre.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Barry Carlton, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendants Isaac Paul Aguirre and Gilberto Martinez burglarized two residences in the Wind River Resort on the Colorado River, approximately 17 miles upriver from Blythe. Defendants also stole vehicles that were located on the two properties.
Defendants appeal from judgments entered after both were convicted by jury of first degree residential burglary (Pen. Code, § 459; counts 1 and 2); unlawful taking or driving a vehicle, a Honda quad, owned by Gary Riley (Veh. Code, § 10851, subd. (a); count 3); unlawful taking or driving a vehicle, a red Jeep, owned by Michael Keenan (Veh. Code, § 10851, subd. (a); count 4); unlawful taking or driving a vehicle, a boat trailer, owned by Kim Connole (Veh. Code, § 10851, subd. (a); count 5); grand theft of a Craftsman air compressor, owned by Riley (§ 487, subd. (a); count 6); and grand theft of a firearm, owned by Keenan (§ 487, subd. (d)(2); count 7). In a bifurcated trial, the court found true the prior prison term allegation as to Martinez. (§ 667.5, subd. (b).)
Unless otherwise noted, all statutory references are to the Penal Code.
The trial court sentenced Aguirre to an aggregate prison term of nine years four months. Martinez was sentenced to 10 years four months.
Both defendants contend there was insufficient evidence tying them to the burglary and theft offenses. Defendants also argue there was insufficient evidence the theft of the air compressor was grand theft. Defendants assert their sentences on counts 3, 4, and 5, for unlawful taking or driving a vehicle in violation of Vehicle Code section 10851, subdivision (a) must be stayed under section 654, prohibiting multiple punishment. Defendants further assert the trial court erred, under Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856 (Cunningham), in sentencing them to upper prison terms and consecutive sentences.
In addition, Aguirre challenges the reasonable doubt instruction, Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 220, on the ground it does not allow the jury to consider a lack of evidence as a basis for finding reasonable doubt. Aguirre also joins in Martinez’s contentions where applicable to Aguirre.
Martinez complains in his appellant’s opening brief that the trial court erred in imposing a one-year prison prior enhancement without finding the allegation true. We do not address this issue since Martinez has withdrawn his objection in his appellant’s reply brief.
We reject defendants contentions with the exception of their objection to the grand theft conviction for theft of the air compressor (count 6) and defendants’ section 654 objection to their separate sentences on count 5 (Veh. Code, § 10851, subd. (a)) for the taking or driving the boat trailer. As to the theft of the air compressor, there is no evidence the value of the air compressor exceeded $400 and thus must be reduced to petty theft. As to sentencing defendants for both burglary and the unlawful taking or driving the boat trailer, there is no evidence supporting a reasonable inference that the burglary of Keenan’s home and the Vehicle Code section 10851, subdivision (a) boat trailer offense were separate offenses.
We also conclude the trial court erred in imposing upper term sentences for the burglary convictions and therefore reverse the sentences and remand for resentencing on counts 1 and 2.
We reject the remainder of defendants’ contentions.
1. Facts
Thursday morning, May 11, 2006, Gary Riley’s gardener discovered that Riley’s mobile home in the Wind River trailer park (Wind River Resort) had been burglarized. After the gardener notified Riley by phone that morning, Riley asked him and a neighbor, Patricia Miranda, to investigate. They found Riley’s home (lot 20) ransacked and the front door of another house nearby (lot 17), owned by Michael Keenan, forced open. Miranda called the police.
There is some confusion as to whether Riley’s home was on lot 20 or 18. The trailer park residences are identified by lot numbers. Patricia Miranda, a resident at Wind River Resort, testified Riley lived in the last of 18 units. She therefore believed he lived at lot 18. This apparently was incorrect. According to sheriff’s investigator Jon Miles, there were 20 residences at Wind River Resort and Riley’s home was on lot 20.
The burglaries occurred between 7:00 a.m., on May 10, and 7:00 a.m. on May 11, when Riley’s gardener made his discovery. Miranda had seen the homes the morning of May 10, while on a walk, and the homes did not appear to have been broken into at that time.
Sheriff’s deputies reported to the scene. Riley arrived four hours later. He found his home ransacked and the padlock on his detached metal storage shed cut with bolt cutters. The shed door was forced open and many items were missing, including a Honda quad off-road vehicle (quad), a red utility trailer, an air compressor, and tools.
Riley followed tracks from his quad and utility trailer out behind his house into the desert brush. The tracks led through the brush toward Highway 95, along Highway 95 to Power Line Road, and up Power Line Road for about a mile and a half. At that point, Riley saw what he thought were truck tire tracks, along with tracks from the trailer and quad. It appeared from the tracks that the trailer had been placed in the truck.
Riley followed the quad tracks another half mile into the desert brush and found his quad, as well as a ski boat trailer and boat belonging to Kim Connole, Keenan’s neighbor. At the time of the burglaries, Keenan had been storing the boat and boat trailer in his garage for Connole. Connole’s boat sustained $10,000 in damage from being dragged on the boat trailer through a rocky gully in the desert brush. The boat had holes in its hull and a broken jet. The boat trailer tires were both flat and the rims were bent.
Sheriff’s deputies found two sets of shoeprints around Riley and Keenan’s burglarized homes. One pair of shoeprints was from an Etnies brand shoe. The shoeprint was 10 and a half inches. The other shoeprints were a little larger and were from a different shoe brand.
The deputies followed the shoeprints about 100 yards, from Keenan and Riley’s homes into the desert scrub, and found two golf carts, an Easy Go and a Polaris Ranger, in the brush.
The deputies also followed tire tracks from a large, off-road vehicle, which may have been Keenan’s stolen Jeep. The tracks went from Keenan’s garage into the brush and appeared to meander through the 10- to 15-foot tall brush. There also were tire tracks from a car that appeared to have been towing a trailer. The car may have been Martinez’s Camry pulling Riley’s red utility trailer. The tire tracks did not appear to lead to Highway 95.
While following the tire tracks, the deputies discovered places where it appeared the vehicles got stuck and the occupants got out and walked around. The shoeprints at those locations matched the prints at Keenan and Riley’s homes.
Friday, May 12, at 9:00 p.m., deputies went to Silsby Garden apartments in Blythe, where Aguirre lived. They saw Rickie Barbosa in the parking lot, about to put gas from a gas can into Keenan’s stolen Jeep. Barbosa said something was going on in Aguirre’s apartment.
In the parking lot, the deputies also found Riley’s red utility trailer and Martinez’s Camry, which were parked across from the Jeep. The vehicles and utility trailer all were very dirty and had scratches that appeared to be from driving through the desert brush. The tire tread pattern from the tires of the vehicles and trailer matched those found at the crime scene and in the desert brush. There were two sets of bolt cutters and a cut padlock in the Camry trunk.
The deputies went to Aguirre’s apartment and eventually Louwanda Stiffler answered the door. Deputies looked in and noticed property that was from the Wind River burglaries. The deputies entered the apartment and found Aguirre hiding, fully clothed in a shower, and Martinez lying on a bed in the master bedroom. The shoes Martinez was wearing when arrested were not the same ones that made the prints at the crime scene but there was another pair of Etnies on the floor in the room that did match the shoeprints. The shoes on the floor had gravel stuck on the soles, and inside the shoes were sand and foliage bits similar to that found at the crime scene.
In the apartment, the deputies found items stolen from Keenan and Riley’s homes, including Riley’s air compressor, a key to Keenan’s other Jeep which was inoperable, and keys on Aguirre’s key ring to the two golf carts found in the brush near the burglarized homes.
Martinez told the deputies no one else drove the Camry and that the scratches on the Camry were from a tree by his house. After the deputies told him the scratches appeared to be from Colorado River foliage, Martinez changed his story and said the scratches were from when he went camping and scratched the car while looking for a campsite.
Aguirre told the deputies that he was in the process of moving out of the apartment. He said other people were continually bringing by property, which he sometimes purchased. He claimed he did not know the property was stolen. Aguirre said he did not know who owned the Jeep and had never driven it. His mother owned the Camry.
Sheriff’s investigator Les Carnes interviewed Louwanda Stiffler during the early morning on May 13, after discovery of the stolen property at the apartment. She said Aguirre lived at the apartment and let her stay there. Martinez did not live there but was always with Aguirre. The two would leave the apartment together for a couple days and returned together. Stiffler saw defendants and a third person unloading property from the trailer next to the jeep and Aguirre carried in property. She also overheard defendants make various statements implicating them in the charged burglaries and thefts.
2. Sufficiency of Evidence of Theft and Burglary Offenses
Defendants contend there was insufficient evidence supporting their convictions for the burglaries of the Riley and Keenan residences, and related thefts.
Upon a challenge to the sufficiency of the evidence, we examine the whole record in the light most favorable to the judgment below and determine whether or not the record discloses substantial evidence upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Ceja (1993) 4 Cal.4th 1134, 1138 (Ceja).) “In making this determination, we ‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’” (People v. Rayford (1994) 9 Cal.4th 1, 23 (Rayford.)
In applying the same standard to a conviction based primarily on circumstantial evidence, we uphold the jury’s verdict if reasonably justified by the circumstances, even if a contrary finding might also reasonably be reconciled with the circumstances. (Ceja, supra, 4 Cal.4th at p. 1138; People v. Bean (1988) 46 Cal.3d 919, 932.) Reversal is unwarranted “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hill (1998) 17 Cal.4th 800, 848-849.)
Here, there was ample evidence supporting defendants’ convictions for the burglaries and related thefts. Stiffler told sheriff’s investigator Les Carnes during her recorded police interview on May 13, 2006, that defendants were always together and they often left together and were gone for a couple days, and then returned together. Stiffler saw Aguirre bring in property and saw defendants and a third person unloading things from the trailer that was parked next to the Jeep. Defendants told her they had been going on “missions” and were getting property from “up river.” A third person went with them. Stiffler heard defendants saying a boat had been lost out in the desert and heard defendants talking about quads. She also heard Martinez say he and Aguirre were going to make “a smooth fifteen hundred a piece.”
At trial, Stiffler’s testimony was more vague and less incriminating. Stiffler said she did not know how the items the police seized from the apartment got there. Although she believed the items were stolen, she never saw anyone bring them into the apartment. Stiffler denied telling investigator Carnes she had overheard defendants talking about committing burglaries up river. She claimed she told Carnes that any of the seven people who had access to the apartment could have been involved in the burglaries. Stiffler also testified that the Jeep showed up a couple nights before the police arrived and she had seen two young Hispanic males driving it but had never seen Aguirre driving the Jeep.
Despite Stiffler’s somewhat inconsistent trial testimony, Stiffler’s recorded statement provides overwhelming evidence that both defendants were involved in the charged offenses.
In addition to Stiffler’s recorded statement, there was additional evidence supporting defendants’ convictions, including shoeprint evidence. Sheriff’s investigators found shoeprints from Etnies shoes around both burglarized homes. The Etnies shoeprints matched the shoes found in Aguirre’s apartment. In addition, there was gravel, sand, and foliage stuck in the soles, which was similar to that found in the vehicles and at the crime scene. Carnes stated he determined the Etnies found at the apartment belonged to Aguirre but were not the identical shoes worn at the crime scene. The shoeprints at the burglarized homes led to the two golf carts found in the desert scrub about 100 yards from the homes. Also, the keys to golf carts were found on Aguirre’s key ring found in his apartment.
Further evidence implicating defendants included the discovery on May 12, 2006, of Keenan’s stolen red Jeep and Riley’s stolen red utility trailer in the parking lot of Aguirre’s apartment. Both the Jeep and trailer were beat up, scratched and dirty. Martinez’s green Camry was parked near the Jeep and trailer. It also was scratched and its tires were extremely dirty, consistent with having been driven off-road through the brush near the burglary site. Tire tracks leading from the burglarized homes into and through the desert brush matched the Camry tire tread. In addition, sheriff’s investigator Jon Miles found two bolt cutters and a padlock that had been cut with bolt cutters in the Camry trunk. Investigators also found property in Aguirre’s apartment stolen from the burglarized homes.
Martinez’s mother was the registered owner of the Camry but Carnes had seen Martinez driving it on numerous occasions.
Defendants argue that, since the Camry did not have a hitch, it could not have towed the utility trailer. But Carnes testified that he had seen trailers tied to cars with chains, ropes, and bungee cords. He saw evidence the Camry was towing the trailer. There was a dent and scratch underneath the Camry bumper that could have been made by the hitch on the trailer bumping into the bottom of the car. There also were “several gouge mashes about the width of a trailer hitch” on the top of the bumper, just below the license plate, and there was “some red paint transfer on the scratches,” which looked the same color as the red trailer. Carnes said that the scratches on the Camry looked like marks or scratches a trailer hitch would make on the back of a car when the hitch came loose or hit the back of the car.
The totality of this evidence was sufficient to support defendants’ burglary convictions and related theft offenses. Even if, as defendants argue, the jury could have made reasonable inferences from the evidence of non-guilt, we nevertheless must affirm defendants’ convictions since we “‘“must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’” (Rayford, supra, 9 Cal.4th at p. 23.) In doing so, we affirm the convictions.
3. CALCRIM No. 220
Aguirre contends jury instruction CALCRIM No. 220 violates his constitutional due process rights because the reasonable doubt instruction prevented the jury from considering a lack of evidence as a basis for concluding a reasonable doubt existed as to Aguirre’s guilt.
CALCRIM No. 220 provides: “The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.”
Aguirre complains the jury could have found the lack of evidence raised a reasonable doubt as to his guilt. There was no eyewitness identification of the burglars and no fingerprints implicating defendants. Also, Aguirre argues, the shoe evidence was insufficient to connect Aguirre to the crimes because the Etnies shoes he was wearing when the deputies arrived at his apartment did not match the shoeprints at the crime scene. Aguirre also argues that the fact he resided in the apartment containing the stolen items did not necessarily implicate him in the burglaries because there were others who had been at the apartment.
Aguirre asserts that CALCRIM No. 220 is defective because it fails to tell the jury reasonable doubt can be based on a lack of evidence. Aguirre acknowledges in his reply brief that similar contentions have been rejected in People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093 (Flores); People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1505-1510 (Westbrooks); People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Rios (2007) 151 Cal.App.4th 1154, 1157; and People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268. Aguirre nevertheless argues that those cases failed to recognize the significance of the following objectionable language in the instruction: “you must impartially compare and consider all the evidence that was received throughout the entire trial.” There is no statement that reasonable doubt can arise from a lack of evidence.
Since case law to date has universally rejected similar claims that CALCRIM No. 220 is an unconstitutional instruction, we also do so. In Westbrooks, supra, 151 Cal.App.4th 1500 , the defendant objected on the same ground and to the same language Aguirre challenges. The defendant claimed there was “a reasonable likelihood that the jurors interpreted CALCRIM No. 220 as prohibiting them from considering the lack of physical evidence implicating him in the crime, in determining his guilt.” (Id. at p. 1509.)
The court in Westbrooks rejected the defendant’s contention,explaining that the sentence in question “merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt.” (Westbrooks, supra, 151 Cal.App.4th at p. 1509.)
Similarly, in Flores, in which the court analyzed the language at issue in CALCRIM No. 220, together with CALCRIM No. 222, the court said that “[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial.” (Flores, supra, 153 Cal.App.4th at p. 1093.)
It thus would not have been reasonable for the jury to construe CALCRIM No. 220 as stating the jury was precluded from considering any perceived lack of evidence in determining Aguirre’s guilt. (Westbrooks, supra, 151 Cal.App.4th at p. 1510; Flores, supra, 153 Cal.App.4th at p. 1093.) As in Westbrooks, Flores, and other similarly decided cases, we reject Aguirre’s constitutional challenged to CALCRIM No. 220.
4. Lack of Evidence Riley’s Compressor Exceeded $400 in Value
Defendants contend there was insufficient evidence to support their grand theft convictions on count 6 (§ 487) for stealing Riley’s air compressor. During a search of Aguirre’s apartment, deputies found the stolen air compressor outside on the apartment porch.
Defendants argue the prosecution failed to present any evidence that the compressor exceeded $400 in value. Section 487, subdivision (a) requires that in order to be convicted of grand theft, the value of the stolen property must exceed $400.
The People concede there was insufficient evidence to support defendants’ count 6 grand theft convictions since there was no evidence of the compressor’s value. We agree. Because there was no evidence upon which the jury reasonably could have concluded the compressor’s value exceeded $400, defendants’ count 6 convictions for attempted grand theft must be reduced to petty theft. (People v. Simpson (1938) 26 Cal.App.2d 223, 229-230; §§ 487, subd. (a), 490, 1260.)
5. Consecutive Sentencing on Counts 3, 4, and 5
Defendants contend the trial court violated section 654 by improperly imposing consecutive sentences for the vehicle theft offenses (counts 3, 4, and 5) separate from the burglary sentences. Defendants argue the burglary offenses (counts 1 and 2) were the means of obtaining possession of the vehicles and were part of the same objective and course of conduct. Therefore separate sentencing for the vehicle thefts was improper. The trial court stated it was imposing consecutive sentences on counts 3, 4, and 5 because defendants had independent motives and the thefts were committed in different locations than the burglaries. Defendants request this court to stay their sentences on counts 3, 4, and 5 under section 654.
“‘Section 654 provides that even though an act violates more than one statute and thus constitutes more than one crime, a defendant may not be punished multiple times for that single act. [Citations.] The “act” which invokes section 654 may be a continuous “‘course of conduct’ . . . comprising an indivisible transaction . . . .” [Citation.]’” (People v. Centers (1999) 73 Cal.App.4th 84, 98, quoting People v. Akins (1997) 56 Cal.App.4th 331, 338-339, quoting People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
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. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers, supra, 73 Cal.App.4th at p. 98; In re Adams (1975) 14 Cal.3d 629, 634.)
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. (People v. Perez (1979) 23 Cal.3d 545, 551; People v. Beamon (1973) 8 Cal.3d 625, 630-639.) The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court and its findings on this question will be upheld on appeal if there is any substantial evidence to support them. (People v. Coleman (1989) 48 Cal.3d 112, 162; see also People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
Citing In re Maurice H. (1980) 107 Cal.App.3d 305 (Maurice), defendants contend their sentences for the Vehicle Code section 10851, subdivision (a) vehicle theft offenses (counts 3, 4, and 5) should have been stayed under section 654 because they arose out of the burglaries and occurred at the same time and from the same course of conduct as the burglaries. The vehicle thefts included the theft of a quad from Riley’s shed (count 3); a Jeep from Keenan’s garage (count 4); and a boat trailer from Keenan’s garage (count 5).
In Maurice, Maurice was committed to consecutive terms at the California Youth Authority (CYA) for second degree burglary (§ 461, subd. 2) and automobile theft (Veh. Code, § 10851). Maurice stole a pickup truck off a fenced-in commercial lot. He also broke into two shops on the lot and stole tools and equipment. Four days later the police found the truck abandoned about two blocks away. A couple days later the police found the stolen property.
On appeal the court in Maurice explained: “Section 654 prevents double punishment for a single act or where there is a course of conduct that violates more than one statute and comprises an indivisible transaction [citation]. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the actor may be punished for any one of them but not for more than one [citation]. The course of conduct here was to effect entering Ledbetter’s lot to take a truck and equipment, an indivisible transaction with one objective, theft. Punishment for the auto theft must be stayed pending service of time on the burglary offense.” (Maurice, supra, 107 Cal.App.3dat p. 312.)
Defendants argue that, as in Maurice, the evidence showed they had the single objective of stealing anything of value found at Keenan and Riley’s residences. Therefore defendants could not be punished for the burglaries and also separately for the vehicle thefts. Maurice is factually distinguishable in that Maurice involved theft from a fenced-in commercial lot.
Relying on People v. Picaroni (1955) 131 Cal.App.2d 612 and People v. Garza (2005) 35 Cal.4th 866 (Garza), the People argue defendants’ intent and objective to burglarize Riley and Keenan’s homes was separate from the unlawful taking or driving offenses. Picaroni is inapposite because it does not address sentencing or multiple punishment under section 654. Picaroni concerns the issue of whether a defendant can be separately convicted for both first degree burglary of a home and second degree burglary of a detached garage. (Picaroni, supra, at p. 618.)
Garza, supra, 35 Cal.4th 866 also does not discuss the application of section 654. Garza concerns the issue of whether the defendant could be convicted of both a violation of Vehicle Code section 10851, subdivision (a) and receiving the same stolen property in violation of section 496, subdivision (a). The Garza court noted, however, that “a defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of [Vehicle Code] section 10851[, subdivision] (a). In [People v.] Strong [(1994)] 30 Cal.App.4th 366, the Court of Appeal appeared to suggest that a taking is complete when the driving is no longer part of a ‘“continuous journey away from the locus of the theft.”’ [Citation.] One might also suggest that the taking is complete when the taker reaches a place of temporary safety. [Citation.] Whatever the precise demarcation point may be (an issue we need not decide here), once a person who has stolen a car has passed that point, further driving of the vehicle is a separate violation of [Vehicle Code] section 10851[, subdivision] (a) that is properly regarded as a non theft offense for purposes of the dual conviction prohibition of section 496(a).” (Garza, supra, 35 Cal.4th at pp. 880-881.)
Where, here, the defendants’ sentences for violating Vehicle Code section 10851, subdivision (a) and for committing burglary concern the same stolen vehicles, the crucial issue is whether the Vehicle Code section 10851, subdivision (a) conviction is for an unlawful taking or post-theft driving separate from the burglary.
A. The Jeep
Keenan’s Jeep was stolen from the garage attached to his residence and thus it is unrefuted that the Jeep was taken in the course of burglarizing Keenan’s home. Nevertheless, the People argue defendants committed the separate offense of unlawfully taking and driving the Jeep separate and apart from the theft of the Jeep from the garage. The People argue a reasonable inference can be made that, after defendants stole the Jeep during the burglary, they went joyriding in the Jeep in the desert and thus defendants could be sentenced separately for unlawfully driving the Jeep in violation Vehicle Code section 10851, subdivision (a).
We agree. Even though the evidence may support a finding that defendants were not joyriding but, rather, got lost while driving through the desert in an attempt to avoid detection, the evidence also supports a reasonable finding that defendants drove the Jeep into the desert for the purpose of joyriding. Evidence supporting such a finding includes testimony that the Jeep tire tracks meandered through the desert brush with no discernable destination. Deputies followed the tracks in their Tahoe four-wheel drive for an hour and finally gave up trying to determine the Jeep’s destination. The tracks did not lead to the highway or anywhere else. The deputies thus assumed defendants eventually backtracked and left the desert the way they came.
It can be inferred from such evidence that defendants’ Jeep ride through the desert was for an intent and objective separate from that of driving from the scene of the burglary to a place of temporary safety. The jury could reasonably find defendants were taking the Jeep out into the desert for a joyride before heading back to Aguirre’s apartment. Under such circumstances, sentencing defendants for both the burglary of Keenan’s home and the Vehicle Code section 10851, subdivision (a) offense (count 4) was proper as to the Jeep.
B. Boat Trailer
As to Keenan’s boat trailer, the only possible basis for avoiding a section 654 finding would be if there was evidence defendants were joyriding with the trailer after completion of the burglary offense. The boat trailer was stolen from the attached garage of Keenan’s residence and thus, as with the Jeep, it was taken in the course of burglarizing Keenan’s home. The tire track evidence indicates the boat trailer was hitched up to the Jeep, Camry or quad and hauled through the desert. Along the way, defendants lost or abandoned the boat trailer and boat after towing it through a rocky gully. Deputies found the badly damaged boat trailer, boat and Riley’s quad abandoned in the desert brush about a half mile from Riley and Keenan’s homes.
A reasonable inference cannot be made from the evidence that defendants were taking the boat trailer and boat joyriding through dense, tall desert brush. We find this highly improbable. Such an inference from the evidence is not reasonable, particularly in light of Stiffler’s testimony that defendants were quite upset about losing the boat. Section 654 thus bars separate sentencing for the burglary of Keenan’s residence and the Vehicle Code section 10851, subdivision (a) taking or driving of the boat trailer.
C. The Quad
Section 654 does not apply to the theft of the quad since there is sufficient evidence the theft arose from an intent and objective independent from that of the burglary of Riley’s residence. Defendants stole the quad from a metal shed that was a structure separate from Riley’s residence.
D. Concurrent Sentences on Counts 3, 4, and 5
Aguirre alternatively contends that, even if section 654 does not apply, the trial court abused its discretion in imposing consecutive sentences for counts 4, 5 and 6, rather than concurrent sentences. We disagree.
During sentencing, the trial court explained that it imposed consecutive sentences on these offenses because defendants had independent objectives and the offenses occurred in “separate places.”
Whether to run these terms concurrently or consecutively is a decision for the sentencing court that will not be disturbed on appeal absent a clear showing of abuse of discretion. (§ 669; People v. Bradford (1976) 17 Cal.3d 8, 20; People v. Lepe (1987) 195 Cal.App.3d 1347, 1350.) It is well established that a trial court has wide discretion in determining the sentence of a criminal defendant. (People v. Jordan (1986) 42 Cal.3d 308, 316.) Our function is to determine if the trial court abused its discretion in selecting consecutive sentencing.
California Rules of Court, rule 4.425 lists factors the trial court may consider in determining whether to impose consecutive rather than concurrent sentences. These factors include whether: “(a) . . . [¶] . . . [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) . . . Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.” (Cal. Rules of Court, rule 4.425; see also People v. Deloza (1998) 18 Cal.4th 585, 596.)
Here, defendant argues the concurrent terms were mandated because counts 3, 4, and 5 were not independent offenses. This court has already rejected that argument as to counts 3 and 4. As discussed above as to defendants’ section 654 contention, there was sufficient evidence that the burglaries were committed separately and at different times than the Vehicle Code section 10851, subdivision (a) offenses relating to the quad and Jeep. There was thus no abuse of discretion in imposing consecutive sentences on counts 3 and 4. As to count 5, this court is reversing the sentence, as discussed above, under section 654.
6. Imposition of Upper Terms for Burglary and Theft
Defendants contend the trial court improperly imposed upper term sentences for the burglary convictions (counts 1 and 2) because the trial court improperly relied on facts not found by the jury. Defendants assert that this court must reduce their sentences on counts 1 and 2 to the middle terms rather than remand for resentencing. The People agree in their respondent’s brief that the trial court erred in imposing the upper terms under Cunningham, supra, 127 S.Ct. 856 but argue that the error was harmless. The People further claim that if there was prejudicial error, remand for resentencing is required.
The trial court imposed upper terms for the burglary offenses based on finding that the burglaries showed planning and sophistication, and involved takings and attempted takings of great value. The People concede that none of these facts were found by the jury nor were they implied in any of the jury’s findings. The court thus could not rely on them in imposing upper terms under Cunningham.
The People argue the error was harmless because, had the factors relied on by the court in imposing the upper term been submitted to the jury, the jury would have at least found that the takings were of great value. Among many other things, defendants stole several vehicles and a ski boat.
In Sandoval, supra, 41 Cal.4th 825,the court explained that in determining whether Cunningham error was harmless, “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Sandoval, supra, at p. 838.) The Sandoval court further stated that,“ if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
We are unable to conclude, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true the aggravating factor that the takings were of great value, had the factor been submitted to the jury. Such is also the case with the other aggravating factors. Because none of the factors relied on by the court in imposing the upper terms were charged in the information, submitted to the jury, or found true by the jury, we are required under Cunningham to reverse defendants’ sentences on counts 1 and 2 and remand the case back to the trial court for resentencing. (Sandoval, supra, 41 Cal.4th at pp. 838-839, 841, 843.)
7. Imposition of Consecutive Sentences
Martinez contends that the trial court’s imposition of consecutive sentences violated his right to a jury trial under the Sixth Amendment to the United States Constitution.
Our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 821 (Black II), rejected the contention that the imposition of consecutive terms violates Blakely v. Washington (2004) 542 U.S. 296 and Cunningham, supra. The court in Black II explained that Cunningham did not undermine the previous conclusion in People v. Black (2005) 35 Cal.4th 1238 (Black I) that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights. (Black II, supra, at p. 821.) Blakely’s underlying rationale is inapplicable to the decision to impose consecutive or concurrent sentences. (Black II, supra, at p. 821.) Blakely “treats the crime together with a fact that is a prerequisite to eligibility for a greater punishment as the functional equivalent of a greater crime.” (Black II, supra, at p. 821.)
Overruled in part by Cunningham, supra, 127 S.Ct. at pages 868-871, vacated sub nom. Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210, 167 L.Ed.2d 36].
In deciding whether to impose consecutive or concurrent terms, a trial court may consider aggravating and mitigating factors, but is not required to justify the imposition of consecutive terms by making a finding an aggravating circumstance exists. (Black II, supra, 41 Cal.4th at p. 822.) “The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.]” (Id. at p. 823.)
We are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we conclude imposition of consecutive sentences did not violate Martinez’s jury trial or due process rights.
8. Disposition
Defendants’ convictions for grand theft of the air compressor (count 6) are reduced to convictions for petty theft (§ 490), and the trial court is thus instructed to resentence defendants accordingly. All other convictions are affirmed.
As to defendants’ sentencing challenges, defendants’ consecutive sentences on count 5 (unlawful taking or driving the boat trailer) are reversed under section 654, with directions the trial court order defendants’ sentences on count 5 stayed. Defendants’ upper term sentences for the burglary convictions (counts 1 and 2) are reversed under Cunningham and remanded for resentencing on counts 1 and 2.
In all other regards the judgment is affirmed.
We concur: McKinster, Acting P. J., King, J.