Opinion
B302387
03-11-2021
THE PEOPLE, Plaintiff and Respondent, v. MARSALIS SHELMON, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA476167) APPEAL from a judgment of the Superior Court of Los Angeles County, Ray G. Jurado, Judge. Affirmed as modified. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Marsalis Shelmon appeals from a judgment of conviction entered after a jury trial of two counts of first degree residential burglary. On appeal, Shelmon argues his prior federal conviction of bank robbery does not qualify as a serious felony under California law, and the trial court therefore erred in imposing enhancements under Penal Code section 667, subdivision (a)(1), and the three strikes law (§§ 667, subds. (b)-(j), 1170.12) based on his prior conviction. Shelmon also contends the trial court erred by failing to stay his sentence on count 2 because substantial evidence does not support the trial court's implied finding Shelmon formed a separate intent and objective for each burglary. Shelmon's contentions lack merit. However, we strike the five-year sentence enhancement the court imposed on count 2. We affirm the judgment as modified.
Unless otherwise indicated, all statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
Shelmon was charged in an amended information with two counts of first degree residential burglary (§ 459). Each count alleged that on or about March 11, 2019 Shelmon "enter[ed] an inhabited dwelling house . . . occupied by Antonisha Jones, with the intent to commit larceny and any felony." (Capitalization omitted.) The amended information alleged Shelmon suffered a February 5, 2007 conviction in the United States District Court of armed bank robbery. As to each count the amended information alleged Shelmon's prior federal conviction was a serious or violent felony under the three strikes law and a serious felony conviction within the meaning of section 667, subdivision (a)(1). It also alleged Shelmon had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Shelmon pleaded not guilty and denied the special allegations. B. Evidence at Trial
Lou Dunn lived in a second floor apartment in a multiple-unit apartment complex in Los Angeles. At approximately 4:00 p.m. on March 11, 2019 Dunn heard someone banging on his door. The person outside "was banging real hard like he was trying to bust the door open." When Dunn answered the door, Shelmon was outside and said he "was looking for a young lady." Dunn told Shelmon no woman lived there, and Dunn went back inside his unit. After "a minute or two," Dunn heard Shelmon banging on the door of the apartment next to Dunn's. Dunn stuck his head out and told Shelmon to leave. Dunn heard Shelmon go downstairs.
Latoya Jones (Jones) lived on the first floor of the apartment building. On the day of the burglary, she heard someone banging loudly at her door. It sounded like the person was kicking on her door. The person asked for a woman named "Tutu," and Jones responded that no one by that name lived in the apartment. Moments later Jones heard "a big bang, like a boom." She left her apartment to check the hallway and found the door to apartment 101 "was bust[ed] open." Inside, Shelmon was rifling through the contents of the apartment. "He was ripping things off the wall. He was dragging things from under. He was flipping the bed over. He pulled the TV down. He just literally tore the place apart."
Jones went up to the second floor and told Dunn someone had broken into the apartment downstairs. Dunn went downstairs and found Shelmon near the door at the back of the building holding a television and a black trash bag. Dunn told Shelmon to "drop it." Shelmon dropped the items. Dunn told him to leave, but Shelmon "act[ed] like he didn't want to leave, so [Dunn] pushed him out the back door." Dunn thought Shelmon "looked like he was going to try to fight me or move me out [of] the way so he can get the TV and stuff." Shelmon's bicycle was behind the building. Dunn pushed Shelmon further from the building and threw Shelmon's bicycle toward the back gate. Shelmon got on his bicycle and left out the back gate. Dunn believed Shelmon "was highly intoxicated on something. He wasn't in his right mind . . . ."
Jones and some neighbors returned the television and black trash bag to apartment 101. Jones returned to her unit. Within five minutes, she heard Shelmon again rifling through apartment 101 next door. She went into the hallway and saw Shelmon holding the television. Dunn heard Jones scream, "He's back. He's back. He's in the apartment again." Dunn went downstairs and saw Shelmon exiting out of the front door of the building with the television and black trash bag. Dunn ran upstairs to put on his shoes; when he returned downstairs, Shelmon was riding away on his bicycle. Dunn repeatedly yelled at Shelmon to "drop it." Shelmon dropped "the black bag, but he kept the television." Shelmon rode off on his bicycle, holding the television. Dunn estimated 15 minutes had passed between his initial and later confrontations with Shelmon. Dunn brought the black bag inside and placed it in apartment 101. The black bag had "electronic stuff in it." Dunn called the police and later identified Shelmon from a six-pack photographic lineup.
On the day of the burglary, Antonisha Jones lived in apartment 101 of the apartment building with her then-boyfriend. When she returned home at 8:00 or 9:00 that evening, she found her front door was broken open and her apartment was "completely trashed." Antonisha Jones's television, laptop, wireless charger, a chain, and some clothes and shoes were missing from her apartment. She found inside her apartment shoes and a plastic bag that did not belong to her or her boyfriend. The bag contained socks and a wallet with a California identification card for Shelmon, whom she did not know or recognize. C. The Verdict and Sentence
The jury convicted Shelmon on both counts. In a bifurcated proceeding, Shelmon waived his right to trial on the priors and admitted he suffered the prior convictions. With regard to the alleged prior federal conviction of armed bank robbery, the following exchange occurred:
"The Court: . . . [T]he February 5, 2007, prior conviction for armed bank robbery in the U.S. District Court in case CR600442. [¶] Do you admit that you have that prior conviction?
"The Defendant: Yes."
The trial court denied Shelmon's Romero motion to strike the prior federal armed robbery conviction. The trial court sentenced Shelmon to an aggregate state prison sentence of 13 years. As to count 1, the court imposed the middle term of four years, doubled under the three strikes law, plus five years for the prior serious felony enhancement. The court imposed the same sentence on count 2 to run concurrent with the sentence imposed on count 1. The court dismissed the three prior prison term enhancements.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court erroneously imposed the five-year sentence enhancement under section 667, subdivision (a)(1), on both counts 1 and 2, instead of applying it once to the aggregate determinate sentence. (See People v. Sasser (2015) 61 Cal.4th 1, 7 ["the prior serious felony enhancement may be added only once to multiple determinate terms imposed as part of a second strike sentence"]; People v. Tua (2018) 18 Cal.App.5th 1136, 1141 [same].) We strike the five-year enhancement imposed on count 2 and direct the court to prepare an amended abstract of judgment.
Shelmon timely appealed.
DISCUSSION
A. The Trial Court Did Not Err in Determining Shelmon's Prior Federal Conviction of Bank Robbery Qualified as a Serious Felony
Shelmon contends his prior federal conviction of armed bank robbery does not qualify as a serious felony for purposes of the three strikes law and section 667, subdivision (a)(1), because the federal crime of armed bank robbery does not include all the elements of bank robbery under California law, which is a serious felony under section 1192.7, subdivisions (c)(19) and (d). The People argue Shelmon forfeited his argument by admitting the prior conviction allegations, and, in any event, federal bank robbery qualifies as a serious felony. We find no forfeiture but agree with the People federal bank robbery qualifies as a serious felony under California law.
1. Standard of review
"We review questions of statutory construction de novo. Our primary task 'in interpreting a statute is to determine the Legislature's intent, giving effect to the law's purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent. [Citation.]' [Citation.] We construe the statute's words in context, harmonizing statutory provisions to avoid absurd results. [Citation.] If the statutory text is susceptible to more than one reasonable construction, we may consider extrinsic aids such as legislative history to facilitate our interpretative analysis." (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041; accord, United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082, 1089; People v. Keo (2019) 40 Cal.App.5th 169, 187.)
2. Shelmon did not forfeit his argument federal bank robbery is not a serious felony
Contrary to the People's contention, Shelmon admitted only that he was convicted of federal armed bank robbery, not that the prior conviction constituted a serious felony under California law. Shelmon therefore did not forfeit his contention the prior conviction is not a serious felony, nor did he invite error by his admission. (See People v. Golde (2008) 163 Cal.App.4th 101, 113 [defendant's admission of prior conviction did not forfeit argument on appeal that the prior conviction did not constitute a serious felony]; People v. Flood (2003) 108 Cal.App.4th 504, 508 ["Defense counsel did not waive this error by stipulating that there was a factual basis for the strike allegation. Defendant's admission and his counsel's stipulation took the place of a fact finder's determination that the prior conviction existed."].) Further, "the question whether a prior conviction is a serious felony for purposes of the three strikes law [is] for the court, not the jury." (People v. Epps (2001) 25 Cal.4th 19, 23; accord, Flood, at p. 508 ["It was the trial court's function to determine whether that prior conviction constituted a 'strike.' "].) We therefore consider the legal question whether the prior, as admitted, qualifies as a serious felony as a matter of law.
3. Federal bank robbery is a serious felony under California law
"Under our sentencing laws, foreign convictions may qualify as serious felonies, with all the attendant consequences for sentencing, if they satisfy certain conditions. For a prior felony conviction from another jurisdiction to support a serious-felony sentence enhancement, the out-of-state crime must 'include[ ] all of the elements of any serious felony' in California. [Citation.] For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law [citations], the foreign crime (1) must be such that, 'if committed in California, [it would be] punishable by imprisonment in the state prison' [citations], and (2) must 'include[ ] all of the elements of the particular felony as defined in' section 1192.7(c) [citation]." (People v. Warner (2006) 39 Cal.4th 548, 552-553 [evidence did not support imposition of sentence enhancement under § 667, subd. (a), where defendant's prior conviction of child sexual assault under Nebraska law did not require proof of specific lewd intent, which was required for a conviction of a serious felony under § 1192.7, subd. (c)]; accord, People v. Navarette (2016) 4 Cal.App.5th 829, 844 [reversing finding defendant's prior conviction of homicide under Mexican law was serious felony under three strikes law because Mexican homicide offense did not require proof of express or implied malice aforethought].)
It is undisputed Shelmon was convicted of armed bank robbery under 18 United States Code section 2113(a) (section 2113(a)), which in its first paragraph describes a person who "by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association." The second paragraph of section 2113(a) describes a person who "enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny."
Section 2113 "includes a group of bank-related offenses under the title 'Bank robbery and incidental crimes.' However, nowhere in the body of the statute are the terms 'robbery' or 'bank robbery' used to describe any of the offenses set forth therein." (People v. Miles (2008) 43 Cal.4th 1074, 1078.)
"Though there is no California convictable offense of bank robbery, . . . section 1192.7, subdivision (c) lists a crime of this name as a serious felony, a prior conviction for which may enhance the sentence for a subsequent offense." (People v. Miles (2008) 43 Cal.4th 1074, 1081 (Miles); see § 1192.7, subd. (c)(19).) Section 1192.7, subdivision (d), provides, "'[B]ank robbery' means to take or attempt to take, by force or violence, or by intimidation from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association." This definition "substantially coincides" with the forcible taking offense described in the first paragraph of section 2113(a). (Miles, at p. 1081; see id. at p. 1094 [federal bank robbery in violation of § 2113(a) "constitute[s] the California serious felony of bank robbery"].)
Shelmon contends that because section 2113(a) includes extortion and burglary, he could have been convicted of one of these crimes, and therefore there was not substantial evidence he was convicted of a forcible taking offense constituting armed robbery under California law. We reject this contention because Shelmon's admission of a conviction of armed bank robbery, as opposed to burglary or extortion, provides sufficient evidence from which the court could conclude Shelmon's offense was for conduct coming within the prohibition on bank robbery within first paragraph of section 2113(a). (See Miles, supra, 43 Cal.4th at p. 1084 [notation on federal judgment of "'armed bank robbery'" and "'kidnapping'" to describe the nature of defendant's prior federal conviction supported reasonable inference federal judgment described "the forcible taking form of offense set forth in section 2113(a), and thus delineated a California serious felony"].)
Shelmon contends his prior federal conviction of armed bank robbery does not qualify as the serious felony of "bank robbery" defined in section 1192.7, subdivision (d), because the latter requires proof of asportation, while the former does not. Shelmon relies on the United States Supreme Court's decision in Carter v. U.S. (2000) 530 U.S. 255, 272 (Carter), in which the Court held section 2113(a) did not require a showing of asportation. Thus, Shelmon argues, because federal bank robbery does not require asportation, it does not include all the elements of the serious felony of bank robbery under California law. Shelmon's contention lacks merit.
Asportation is the carrying away of property. (People v. Lopez (2003) 31 Cal.4th 1051, 1057.) "'A taking occurs when the offender secures dominion over the property, while a carrying away requires some slight movement away of the property.'" (Ibid.)
As Shelmon points out, "California courts, following common law, have long held that the 'taking' element of robbery [under section 211] requires that a defendant gain possession of the victim's property and asport or carry it away." (People v. Lopez (2003) 31 Cal.4th 1051, 1054 (Lopez); see id. at p. 1062 [holding Legislature's use of term "'felonious taking'" in carjacking statute evinced intent to give term same construction as in robbery statute and at common law, requiring proof of asportation]; accord, Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221 ["'The taking element of robbery [under section 211] itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot.'"].)
Section 211 provides, "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."
Shelmon cites no authority to support his argument the term "to take," as used in section 1192.7, subdivision (d), likewise requires proof of asportation. "When legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature intended the same construction, unless a contrary intent clearly appears." (Lopez, supra, 31 Cal.4th at p. 1060, italics added; accord, Yuba City Unified School Dist. v. State Teachers' Retirement System (2017) 18 Cal.App.5th 648, 658.) Shelmon's argument presumes the Legislature drew upon the statutory term "taking" as used in section 211's definition of robbery in defining "bank robbery" under section 1192.7, subdivision (d), to include the "tak[ing]" of property. But "[t]he plain meaning of 'taking' does not necessarily impute an asportation requirement." (Lopez, at p. 1057.) Thus, we consider the legislative history as an extrinsic aid. (California Building Industry Assn. v. State Water Resources Control Bd., supra, 4 Cal.5th at p. 1041; Lopez, at p. 1057.) The legislative history of the 1988 amendments to section 1192.7, which added bank robbery as a serious felony, demonstrates a clear intent to the contrary.
"Prior to 1989, Courts of Appeal held that a prior felony bank robbery conviction was not a serious felony for purposes of a section 667, subdivision (a) enhancement. Various Courts of Appeal noted that a violation of 18 United States Code section 2113(a) did not require a specific intent to permanently deprive the victim of the property taken in the bank robbery." (People v. Guerrero (1993) 19 Cal.App.4th 401, 405, disapproved on another ground by Miles, supra, 43 Cal.4th at p. 1094, fn. 14.) "[B]ecause the federal offense did not include the specific intent requirement, the [Courts of Appeal] reasoned it could not serve as a serious felony." (Guerrero, at p. 405.) In 1988 the Legislature amended section 1192.7, subdivision (d), to define "bank robbery" in "language that carefully tracks the words chosen by Congress in 18 United States Code section 2113(a)." (Guerrero, at p. 405.) "The obvious legislative intent was to make bank robbery a serious felony thereby avoiding the problems of proving specific intent which were the subject of discussion in the aforementioned cases which held that bank robbery was not a serious felony within the meaning of sections 667, subdivision (a), and 1192.7, subdivision (c)." (Ibid.)
In reaching its conclusion, the Guerrero court surveyed the legislative history of the 1988 amendment to section 1192.7, explaining, "A report prepared for the Assembly Committee on Public Safety hearing on May 23, 1988, stated, 'Purpose. According to the sponsor, several California appellate courts have held that bank robbery, which is a violation of federal law, is not a serious felony for purposes of sentence enhancement since the federal offense does not include all the elements of a California robbery. The inclusion of bank robbery is necessary in order for a sentence to be enhanced for a prior conviction for this offense.' (Rep. on Sen. Bill No. 1080 prepared for Assem. Com. on Public Safety (1987-1988 Reg. Sess.) p. 1; original italics.) The analysis prepared on June 20, 1988, for the Assembly Committee on Ways and Means stated: 'This bill would provide that a prior conviction of bank robbery, for which the defendant was convicted under federal law, could be used to enhance a defendant's sentence for conviction of a subsequent "serious felony".' (Analysis of Sen. Bill No. 1080 as amended June 16, 1988, prepared for Assem. Com. on Ways and Means (1987-1988 Reg. Sess.) p. 1.) Finally, the fiscal analysis prepared by the Legislative Analyst on June 21, 1988, stated: 'This bill defines bank robbery as a serious felony. [¶] Currently, bank robbery is both a federal and state offense, although federal and state definitions of bank robbery differ . . . . [¶] This bill specifies that bank robbery, as defined in federal statute[s], is a "serious felony." This designation . . . allows judges to use convictions for bank robbery to enhance the sentences of persons convicted of subsequent serious felony convictions.' (Legislative Analyst, Fiscal Analysis of Sen. Bill No. 1080 (1987-1988 Reg. Sess.) p. 1; original italics.)" (Guerrero, supra, 19 Cal.App.4th at p. 406.)
Shelmon acknowledges the history of the 1988 statutory amendment, but he contends the term "bank robbery" as used in 1192.7, subdivision (d), must be interpreted to require proof of asportation, as required under section 211 and at common law, because the Legislature could not have foreseen the United States Supreme Court's decision in Carter, supra, 530 U.S. at page 272, holding asportation is not an element of the taking requirement of section 2113(a). But the legislative history illustrates the Legislature did not seek to codify in section 1192.7, subdivision (d), a taking requirement with the same meaning as that used in section 211. Instead, the Legislature sought to ensure a defendant's prior conviction of bank robbery under federal law qualified as serious felony for purposes of the sentencing enhancement regardless of whether the federal offense included all the elements of a California robbery. To interpret the term "to take" as used in section 1192.7, subdivision (d), to require proof of asportation would defeat the clear legislative intent to allow trial courts to impose sentence enhancements based on prior convictions of bank robbery under federal law. B. Substantial Evidence Supports the Trial Court's Section 654 Determination on Count 2 for First Degree Residential Burglary
We reject the People's argument we should affirm the trial court's imposition of the serious felony sentence enhancement based on the factual description of Shelmon's prior offense in the 2006 presentence investigation report for his federal conviction. "[A] court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] . . . The court's role is, rather, limited to identifying those facts that were established by virtue of the conviction itself . . . ." (People v. Gallardo (2017) 4 Cal.5th 120, 136; accord, In re Brown (2020) 45 Cal.App.5th 699, 714 [the Sixth Amendment prohibits a trial court from looking beyond the defendant's record of conviction factually to determine a prior conviction qualified as a strike].) Consideration of the presentence investigation report would result in improper judicial factfinding to determine the nature of Shelmon's offense.
Shelmon contends the trial court erred in failing to stay his sentence under section 654 on count 2 for first degree residential burglary because his two burglaries constitute an indivisible course of conduct with a single intent and objective. The People argue the trial court properly imposed punishment on count 2 because Shelmon "had sufficient time to reflect after the first burglary was interrupted by Dunn and [Shelmon] left the scene." Substantial evidence supports the trial court's 654 determination.
Section 654 prohibits separate punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of criminal conduct. (People v. Williams (2013) 57 Cal.4th 776, 781; People v. Rodriguez (2009) 47 Cal.4th 501, 507.) "'Whether a course of criminal 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. 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.'" (Rodriguez, at p. 507, italics omitted; accord, In re Raymundo M. (2020) 52 Cal.App.5th 78, 94.) Where section 654 applies, "the trial court must impose a full term and stay execution of that term." (People v. Relkin (2016) 6 Cal.App.5th 1188, 1198.)
"'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.'" (People v. Capistrano (2014) 59 Cal.4th 830, 886, disapproved on another ground in People v. Hardy (2018) 5 Cal.5th 56, 103-104; see id. at p. 887 [evidence supported finding defendant had separate intents in committing robbery and carjacking where defendant first carjacked the victims then "elevat[ed] . . . the threat to the victims by forcing them into their homes where defendant committed additional crimes," including robbery and sexual assault].) "[A] course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment." (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; accord, People v. Goode (2015) 243 Cal.App.4th 484, 492 (Goode).) "Thus, a finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted 'one indivisible course of conduct' for purposes of section 654. If the offenses were committed on different occasions, they may be punished separately." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253 (Kwok); see id. at p. 1257 [§ 654 did not require a stay of punishment for multiple burglaries of same residence where defendant "entered the house on two separate occasions nine days apart"]; accord, In re William S. (1989) 208 Cal.App.3d 313, 317-318 (William S.) [§ 654 did not prohibit multiple punishment of defendant who burglarized residence and left with several items, then several hours later returned to same residence "inspired by a desire to purloin additional loot"]; but see Goode, at p. 493 [where defendant "tried to gain entry to [the victim's] house through the front door, then a few seconds later tried to gain entry through a nearby window[,] [t]he lapse of a few seconds between the two acts was not sufficient to make defendant's course of conduct divisible in time, such that he could be punished separately for each act"].)
"Factors to be considered include whether the acts are 'separated . . . by an appreciable passage of time, or [] by a reasonable opportunity for reflection.' [Citation.] It is also pertinent to consider whether the first act constituted a completed crime in the sense that it could no longer be said to be ongoing for any purpose . . . . In the case of burglary, the crime is considered ongoing until the perpetrator has reached a place of temporary safety with unchallenged possession of the loot." (William S., supra, 208 Cal.App.3d at p. 317.)
"'The question of whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination.' . . . [Citation.] This requires us to view the evidence in the light most favorable to the sentencing order and presume the existence of facts a trier of fact could reasonably deduce from the evidence." (People v. Kopp (2019) 38 Cal.App.5th 47, 91; accord, People v. Coleman (1989) 48 Cal.3d 112, 162 ["'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.'"]; People v. Phung (2018) 25 Cal.App.5th 741, 761 [in its review of whether § 654 applies, "[a]n appellate court views the evidence in a light most favorable to the respondent and presumes in support of the sentencing order the existence of every fact the trier could reasonably deduce from the evidence"].) We will not disturb the trial court's findings if they are supported by substantial evidence. (Kopp, at p. 91; People v. Cardenas (2015) 239 Cal.App.4th 220, 229.)
Shelmon contends he harbored the same intent and objective both times he entered Jones's apartment—"to take the victim's property." But it is a reasonable inference Shelmon had a separate intent and objective the second time he entered apartment 101, to look for additional items to take. On his first entry, Shelmon took the television and items he placed in a black trash bag. After Dunn demanded Shelmon drop the items, Shelmon complied. Jones returned the television and black trash bag to the apartment. When Shelmon returned, he did not simply pick up the same television and black trash bag. Instead, as Jones described it, she heard "boom, boom, just hearing stuff getting thrown everywhere, moved around." When Shelmon left the building the second time, he had the television (presumably the same one), but he again had a black trash bag. In light of Shelmon's rifling through the apartment the second time, it is a reasonable inference that Shelmon had, as in William S., returned not only to take the television, but additional items. (William S., supra, 208 Cal.App.3d at pp. 317-318.)
Although the five minutes between the two incidents was less than the several hours in William S., supra, 208 Cal.App.3d at page 317 and the nine days in Kwok, supra, 63 Cal.App.4th at pages 1253 and 1257, it was significantly longer than the "few seconds" between the two entries the Court of Appeal in Goode, supra, 243 Cal.App.4th at page 493 found constituted an indivisible course of conduct. Further, after Dunn pushed Shelmon out the back door the first time, Shelmon rode off on his bicycle out the back gate. Thus, Shelmon had "reached a place of temporary safety" before he returned a second time. (William S., at p. 317.) Further, "each entry into the residence created a separate and distinct risk of violent confrontation. Laws against burglary are primarily designed not to deter trespass or the supporting theft or felony intended by the burglar, but rather '". . . to forestall the germination of a situation dangerous to personal safety."'" (Kwok, at p. 1256; accord, William S., at p. 318 ["all the grave risks of violent confrontation engendered in the initial burglary were repeated in the second"].) Viewing the evidence in the light most favorable to the sentence imposed by the trial court, as we must (People v. Coleman, supra, 48 Cal.3d at p. 162; People v. Kopp, supra, 38 Cal.App.5th at p. 91), substantial evidence supports the trial court's finding Shelmon had two separate intents or objectives in committing the burglaries.
DISPOSITION
The judgment is affirmed as modified. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
FEUER, J.
We concur:
PERLUSS, P. J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.