Opinion
D040966.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. MARK MILLER, Defendant and Appellant.
In superior court case No. SCS166774, Mark Miller entered a negotiated guilty plea to taking or knowingly driving a stolen vehicle (Veh. Code, § 10851, subd. (a)), and possessing a stolen vehicle (Pen. Code, § 496d). He admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and serving two prior prison terms. (§ 667.5, subd. (b).) Before the court imposed sentence in case No. SCS166774, Miller entered a negotiated guilty plea in case No. SCD166542 to possessing a controlled substance in jail (§ 4573.6) and admitted a prior strike conviction. In case No. SCD166542 the court sentenced him to prison for a four-year term (double the two-year lower term) for possessing a controlled substance in jail with a strike prior. Thereafter, in case No. SCS166774 the court imposed a 32-month term (double the 16-month lower term) for taking or driving a stolen vehicle with a strike prior, dismissed the prior prison term enhancement allegation and imposed a concurrent 32-month term for possessing a stolen vehicle. Miller contends the trial court erred by imposing a full term in case No. SCS166774 rather than one-third the middle term for taking or driving a stolen vehicle and by not staying sentence on the receiving a stolen vehicle conviction pursuant to section 654.
FACTS
On January 19, 2002, Sharon Houseworths 1995 Chevrolet Corsica was stolen in Santa Ana. On March 1, the driver of a 1995 Chevrolet Corsica tried to cross the border at the San Ysidrio Port of Entry. Miller was a passenger in the car when it was stopped at the border. After Miller entered guilty pleas to taking or driving the vehicle and possessing a stolen vehicle, but before he was sentenced on these offenses, he was sentenced in a different court for possessing a controlled substance in jail.
DISCUSSION
I
The People concede that the trial court erred by imposing a full term doubled rather than one-third the middle term doubled in case No. SCS166774. (See § 1170.1, subd. (a); People v. Nguyen (1999) 21 Cal.4th 197, 207.) The sentence in case No. SCS166774 is modified to provide a 16-month rather than a 32-month term for driving or taking a motor vehicle with a strike prior, consecutive to the sentence imposed in case No. SCD166542.
II
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."
Section 654 applies when "there are several offenses committed during `a course of conduct deemed to be indivisible in time. [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209.) "It is defendants intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. . . . [I]f 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. Harrison, supra, 48 Cal.3d at p. 335.)
Whether Miller had a single intent on January 19, 2002, when the car was taken, and on March 1, when he was riding in the car, is primarily a factual determination. We can reverse only if the trial courts determination is not supported by the evidence. (People v. Ferguson (1969) 1 Cal.App.3d 68, 74-75.) Here, the trial court did not expressly find that Miller took or drove the car on January 19, 2002, with an intent different from that when he was a passenger in the car on March 1. In support of the Peoples claim that the court implied a finding of separate intents, they refer only to a remark in the probation report that the car was suspected of being involved in a homicide near San Francisco and was seen in the Southern California area with two suspects who closely resembled Miller and the driver when Miller tried to cross the border. This suspicion does not support a finding that the car was stolen or driven on January 19 with an intent different from that when driven to the border on March 1. Absent evidence on Millers intent on January 19 and March 1, section 654 precludes imposition of separate sentences for taking or driving the stolen car and possessing the same stolen car.
DISPOSITION
The convictions are affirmed. The sentence in case No. SCS166774 for taking or driving a stolen vehicle is modified to 16 months (one-third the middle term) consecutive to the sentence in case No. SCD166542. Sentence in case No. SCS166774 for possessing a stolen vehicle is stayed. (§ 654.) The trial court shall modify the abstract of judgment and advise the Department of Corrections of the modification.
WE CONCUR: HUFFMAN, Acting P. J., and MCINTYRE, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise specified.