Opinion
F041051.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. JOEL OCHOA, Defendant and Appellant.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
Appellant, Joel Ochoa, Jr., pled guilty to possession of stolen property (count five/Pen. Code, § 496, subd. (a)), three counts of second degree burglary (counts one, three and six/§ 459), and two counts each of forgery of a check (counts two and four/§ 470), and petty theft (counts seven and eight/§ 666). Ochoa also admitted two prior prison term enhancements (§ 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). On June 6, 2002, the court struck the two prior prison term enhancements, reduced counts one through seven to misdemeanors, and sentenced Ochoa to a four-year term on count eight and concurrent terms of time served on each misdemeanor count.
Ochoas appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071.) Ochoa has not responded to this courts invitation to submit additional briefing.
However, after reviewing the record we find that Ochoas sentence violates section 654s prohibition against multiple punishment. Section 654, in pertinent part, provides:
"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 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the "intent and objective" of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
Ochoas second degree burglary conviction in count one and his forgery conviction in count two were based on Ochoas actions in forging a check stolen from Richard Lugo and cashing it on May 19, 2001, at Toriis Market in Selma. Thus, it appears that: 1) appellant committed the second degree burglary and forgery offenses alleged in counts one and two as part of an indivisible course of conduct whose objective was to fraudulently cash a check stolen from victim Lugo; and 2) section 654 required the court to stay the sentence imposed on one of these two counts.
Ochoas second degree burglary conviction in count three, his forgery conviction in count four and his conviction for possession of stolen property in count five were based on Ochoa forging another check belonging to victim Lugo and cashing it at Toriis Market on May 20, 2001. Thus, it appears that: 1) the offenses alleged in these three counts were part of an indivisible course of conduct whose objective was to fraudulently cash a check stolen from victim Lugo; and 2) section 654 required the court to stay the sentence it imposed in two of these counts.
Ochoas second degree burglary conviction in count six and his petty theft conviction in count seven were based on Ochoas actions in entering the Town and Country Market in Selma and stealing several items of merchandise. Thus, it appears that: 1) the offenses in these counts were part of an indivisible course of conduct whose objective was to steal merchandise from the market; and 2) section 654 required the court to stay the sentence it imposed on one of these counts. In view of the foregoing, we find that the court erred in imposing concurrent terms on counts two, four, five, and seven and we will stay the terms imposed on these counts.
DISPOSITION
The judgment is modified to stay the concurrent terms the court imposed on counts two, four, five, and seven. The trial court is directed to correct its paper work accordingly and to notify the appropriate authorities. As modified, the judgment is affirmed. --------------- Notes: All further statutory references are to the Penal Code.