Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 1086911. Loretta Murphy Begen, Judge.
William J. Capriola, 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, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
Appellant Richard Salazar, Jr., was convicted after jury trial of first degree burglary (count I) and grand theft of a firearm (count II). (Pen. Code, §§ 459, 487, subd. (d)(2).) In a bifurcated bench trial, the court found true allegations that Salazar had a prior serious felony conviction that was also a strike, and previously had served two prison terms. (§§ 667, subds. (a) & (d), 667.5, subd. (b).) The court sentenced Salazar to a total prison term of 18 years, calculated as follows: the upper term of six years doubled to 12 years on count I, five years for the serious felony enhancement, and one year for the prior prison term. On count II, the court sentenced Salazar to a concurrent four year term.
All subsequent statutory references are to the Penal Code unless otherwise noted.
Salazar argues the term imposed for count II must be stayed pursuant to section 654 and complains that imposition of the upper term on count I constitutes Blakely/Cunningham error. The Attorney General concedes the section 654 error but argues Salazar’s recidivism justifies imposition of the upper term. We agree with the Attorney General. The judgment will be modified to stay the term imposed on count II and, as modified, affirmed.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
FACTS
At about 6:30 a.m. on January 21, 2005, Rodney Mowery left his house to go to work. At about 11 a.m., one of Mowery’s neighbors, Robert Bingham, saw a man with a gray suitcase walking across Mowery’s front yard. The man was wearing a beanie and a heavy coat. After the man walked off with the suitcase, Bingham went across the street to check on Mowery’s house. Bingham noticed the screen on the back window had been pulled off and the window was propped open with a metal bar. Bingham went home and called the police, to whom he gave a description of the person he saw.
Modesto Police Officer Randy Bolinger was dispatched to the area of Mowery’s home. About eight minutes after being dispatched and about four-tenths of a mile from Mowery’s home, he saw Salazar walking down a street carrying a gray suitcase. Salazar was wearing a black beanie, jeans, and a gray jacket – attire consistent with that of the suspect described in the dispatch Officer Bolinger had received. As Bolinger turned onto the street Salazar was on, Salazar looked over his shoulder and threw the suitcase onto the side of the street. Bolinger detained Salazar and checked the suitcase. Inside it were some clothes, a baseball, a toy guitar, and a pillowcase containing coins, jewelry, bags of candy, and a portable CD player. Bolinger also found a gray flashlight, a small jewelry box, and a pair of binoculars with a case on Salazar’s person.
Bingham was transported to the scene of the detention for a field identification. Bingham stated Salazar looked very much like the man he had seen leaving the residence across the street. Salazar was arrested.
Bingham identified Salazar in court as the person he identified at the field identification.
Modesto Police Officer Don Wolfe went to Mowery’s house to investigate. He entered the house through the unlocked back door. Parts of the home appeared to have been searched through: there were things left lying in the middle of the living room, and dresser drawers and closet doors were open. One of the pillows was missing a pillow case, and the pattern on the bedding in the house appeared to match the pattern on the pillowcase that was found in the suitcase. Officer Wolfe also determined the lot numbers on the candy boxes found in the house matched the lot numbers on the candy packages found in the suitcase.
Around noon, Mowery received a telephone call at work from the police and came home. He noticed the back window, which was always locked, propped open with a metal bar. Inside, the house was a mess and things were not as they had been when he left for work that morning. Mowery also noticed his rifle was missing from the bedroom closet. Police searched the area and found the rifle outside, sitting under a board near the garage.
The police showed Mowery the property they recovered. Mowery identified the flashlight, binoculars, suitcase, and all but two items inside it, as his own.
DISCUSSION
I. Section 654
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) Whether a course of criminal conduct is divisible depends on the intent and objective of the defendant. If all of the offenses were incident to one objective, the defendant may be punished for any one of the offenses but not for more than one of them. (People v. Hicks (1993) 6 Cal.4th 784, 789.)
Salazar argues that section 654 applies to count II because he possessed a single criminal objective. The Attorney General concedes. We accept this concession as properly made because the record cannot support a finding of multiple criminal objectives. The evidence clearly demonstrates that Salazar possessed a single objective when he committed the burglary of Mowery’s home and grand theft of the property taken from his home. This conclusion is supported by numerous cases holding that when a defendant is convicted of both burglary and theft arising from the same criminal event, the defendant may be punished for only one of the offenses because he possessed a single objective, theft. (People v. McFarland (1962) 58 Cal.2d 748, 762; People v. Cline (1998) 60 Cal.App.4th 1327, 1336; People v. Bernal (1994) 22 Cal.App.4th 1455, 1458.) We will order the abstract of judgment to be corrected accordingly.
II. Imposition of the Upper Term
Salazar argues the imposition of the aggravated term of six years on the Count I burglary conviction violated his federal constitutional rights to trial by jury and proof beyond a reasonable doubt.
At the sentencing hearing, the court explained it selected the aggravated term for the following reasons: “You have previously served a term at California Youth Authority. You have two or more felony convictions. You were on parole for a felony at the time the offense was committed. You also stole a firearm, an item you could not possess as a felon, during the commission of this offense. [¶] Your criminal history is numerous and lengthy. It is almost all related to theft-related offenses. [¶] And in this Court’s view, although I have taken your age and any health complications into consideration, your circumstances in mitigation are so far outweighed by your prior criminal history and the factors I have enumerated that I am satisfied that the aggravated term is appropriate in this case.”
The probation officer reported that Salazar, who was 57 at the time of sentencing, said he was in bad physical health, as he had an enlarged heart, as well as kidney and liver problems.
In making its findings in aggravation, the trial court applied three of the five offender-related aggravating factors set forth in California Rules of Court, rule 4.421: “[t]he defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness” (rule 4.421(b)(2)); “[t]he defendant served a prior prison term” (rule 4.421(b)(3)); and “[t]he defendant’s prior performance on probation or parole was unsatisfactory” (rule 4.421(b)(5)).
“Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 873; 127 S.Ct. at p. 868], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) (italics added).) “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, [549] U.S. at p. __, [166 L.Ed.2d at p. 873] 127 S.Ct. at p. 868; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 [] (Almendarez-Torres).” (People v. Black (2007) 41 Cal.4th 799, 818 (Black II).) “‘[R]ecidivism … is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, at p. 243.)” (Black II, supra, 41 Cal.4th at p. 818.)
Several of the court’s findings presupposed prior convictions: his prior convictions as an adult were numerous; his performance on probation and parole was unsatisfactory; and he served a prior prison term. At least one of these – “the defendant’s prior convictions as an adult … are numerous” – cannot meaningfully be distinguished from Blakely’s formulation, approving the use of “‘the fact of a prior conviction’” (Blakely, supra, 542 U.S. at p. 301) to increase sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several. Moreover, the court specifically found that Salazar’s prior felony convictions supported imposition of the aggravated term.
The California Supreme Court has concluded that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816; italics added.) The court further held in Black II that a finding that the defendant’s prior convictions are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)) is a legally sufficient aggravating circumstance. (Black II, supra, 41 Cal.4th at pp. 819-820.) Salazar’s criminal history as stated in the probation report amply supports this finding: between 1968 and 1999, Salazar was convicted of 13 misdemeanors, including petty theft (§§ 484, 488), hit and run (Veh. Code, § 20002, subd. (a)), resisting arrest (§ 148), disorderly conduct (§ 647, subd. (b)), petty theft with a prior (§ 666), theft (§ 484, subd. (a)), and trespassing (§ 602, subd. (l), and five felonies – a 1970 felony hit and run conviction (Veh. Code, § 20001), a 1985 conviction on two counts of receiving stolen property (§ 496.1), a 1992 conviction for burglary (§ 459) and a 1999 conviction for possession of methamphetamine (Health & Saf. Code, § 11377.)
Salazar also had three juvenile adjudications: (1) a 1963 adjudication for burglary (§ 459); (2) a 1966 adjudication for possession of marijuana; and (3) a 1967 adjudication for burglary (§ 459), which resulted in confinement to the California Youth Authority.
In short, Salazar’s record of prior convictions justified the court’s imposition of the aggravated term. Error, if any, in the court’s use of pre-Cunningham verbiage from the rules of court that he previously served a term at the California Youth Authority, he was on parole when the offense was committed, and that he stole a firearm that he was not allowed to possess, rather than post-Cunningham verbiage specifically about his record of prior convictions, was harmless beyond a reasonable doubt. (See People v. Sandoval (2007) 41 Cal.4th 825, 838-839.)
We need not decide whether Salazar’s juvenile record falls within the exception for prior convictions. His adult record does, and nothing else is needed to support affirmance of the upper terms.
DISPOSITION
The judgment is modified to stay the four-year concurrent term for Salazar’s conviction of grand theft under count II pursuant to Penal Code section 654. The superior court is directed to prepare an amended abstract of judgment reflecting this modification and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.