Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA087351, Charles Horan, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Joseph Earl Steele appeals the judgment entered following his conviction by jury of first degree burglary, criminal threat, vandalism and attempt to burn property. (Pen. Code, §§ 459, 422, 594, subd. (a), 455.) Steele contends the evidence does not support the burglary conviction, the trial court improperly permitted the jury to examine evidence that was not introduced at trial, and the sentence imposed for burglary and vandalism violates Penal Code section 654. We reject these contentions but order the abstract of judgment modified to reflect the court security fees (Pen. Code, § 1465.8, subd. (a)(1)) and criminal conviction assessments (Gov. Code, § 70373) imposed by the trial court.
FACTS AND PROCEDURAL BACKGROUND
1. The prosecution’s evidence.
In February of 2009, Hector de Oca was the resident manager of an apartment complex in Pomona. Steele previously resided in the complex but was evicted in 2008. In the middle of February of 2009, Steele broke a window in de Oca’s kitchen door with a rock.
On February 28, 2009, at approximately 5:00 a.m., de Oca was awakened by the sound of breaking glass. De Oca looked out his bedroom window and saw Steele approximately 15 feet from him holding “something shiny, like a screwdriver or a knife.” Steele had broken the window of de Oca’s car which was parked in front of de Oca’s apartment. When de Oca and Steele made eye contact, de Oca called the police on his cell phone. Steele ran to the rear of de Oca’s apartment and reached through the broken kitchen door window, “trying to open the door.”
Steele told de Oca he was “tired” of de Oca, wanted to teach him a lesson and, if possible, kill him. De Oca was two feet from Steele and was still on the phone with the police. De Oca got a hammer in case he had to prevent Steele from entering the kitchen. When de Oca saw lights from police patrol vehicles, Steele fled.
As he walked out of the house, De Oca kicked a cell phone that was on the ground just outside the kitchen door. Steele’s picture was on the startup screen of the phone. De Oca took the cell phone with him and went to examine his car with the officers. The driver’s side front door of the car had been scratched, the window had been broken and someone had tried to force open the door to the gasoline cap. On the backseat of the car, de Oca found smoking newspaper and burnt matches. A screw driver found in the car did not belong to de Oca. De Oca gave the cell phone to the police officers. De Oca feared Steele and moved from the complex with his family the next day.
Pomona Police Officer Joseph Castillo testified he and his partner, Billy Dinh, went to de Oca’s residence at 5:19 a.m. on February 28, 2009. De Oca gave Castillo a cell phone which Castillo booked into evidence.
Pomona Police Detective John Birtcher examined the cell phone at trial and found a picture of Steele with other people on the startup screen, which he displayed to the jury. An outgoing call of five minutes and 50 seconds was made from the phone to “Nickie G” at a number in the 626 area code at 4:58 a.m. on February 28, 2009. There were missed calls from the same telephone number at 5:16 and 6:31 a.m. There were no other incoming or outgoing calls on the phone.
Nicole Garcia testified she has known Steele since approximately 2003 and they had an “on and off” dating relationship. Garcia identified herself as one of the people in the picture on the startup screen of the cell phone. Garcia also identified the 626 area code telephone number associated with Nickie G. on the cell phone as her phone number. Garcia did not recall receiving a call from Steele on February 28, 2009, at 4:58 a.m. or attempting to call him later that morning but indicated it was not unusual for Steele to call her early in the morning.
2. Defense case.
Pomona Police Officer Billy Dinh met de Oca outside his apartment. Dinh smelled smoke coming from de Oca’s vehicle. Dinh found burned newspaper and a burned book of matches inside the vehicle. De Oca told Dinh he was awakened on the morning of February 28, 2009, by Steele shaking his doorknob. De Oca looked through the miniblinds and saw Steele with a 10-inch knife. De Oca ran to get a hammer and, when he returned to the back door, Steele fled. De Oca went back to his bedroom, saw Steele shatter his car window and called the police.
Kelly Miller testified she spent the night of February 27, through the morning of February 28, 2009, at Steele’s residence in Pomona. Steele did not leave and he was in bed with Miller when she awoke. Also present were Steele’s brother, Robert Fleming, and their friend, David Keesee.
Robert Fleming testified he and another roommate lived with Steele in February of 2009. On the night of February 27, 2009, Steele and Miller came home at approximately 11:00 p.m. and went to Steele’s bedroom but left the door open. Fleming slept on the living room couch near the front door and woke at approximately 8:00 a.m. Steele did not leave the apartment that night.
David Keesee testified he spent the night of February 27, 2009, at Steele’s home and slept on the couch. On cross-examination, Keesee admitted he had no particular recollection of that night as opposed to any other night he spent with Steele.
3. Further proceedings related to the cell phone.
Over Steele’s objection, the trial court received into evidence the cell phone de Oca found outside his kitchen door. Steele objected to the cell phone’s call log being introduced as irrelevant.
In argument to the jury, Steele, who represented himself at trial, claimed the People’s evidence was “staged” and the testimony did not “add up.” Steele suggested that, during the 20 minutes de Oca had the cell phone, de Oca manipulated it to put the phone calls “where [he] wanted.” Steele noted all the evidence against him had been recovered by de Oca, not the police, and suggested the prior contentious relationship between himself and de Oca provided de Oca a motive to accuse Steele falsely.
During deliberations, the jury asked whether it could “view all contents of the cell phone or... only... the contents of the phone used as evidence?”
Outside the presence of the jury, the trial court asked whether the parties had examined the phone. The prosecutor stated he had looked only at the picture on the startup screen and the outgoing call log. Steele stated the phone contained only outgoing and incoming call information for the three telephone calls on February 28, 2009. “There are no other dates at all.” However, there were other pictures of Steele and his family on the phone.
The trial court asked whether there was “anything terribly prejudicial” on the phone. Steele indicated he had not had an opportunity to go through the contents of the phone and had only looked at the material that was relevant to the case. The prosecutor stated the jury should only view the material used at trial and Steele agreed. The trial court indicated the jury might wish to examine the phone to determine whether it belonged to Steele, noting Steele did not testify at trial. The trial court then indicated it would inquire of the jurors to determine whether they were able to operate the phone.
When the jury returned to the courtroom, one of the jurors indicated the jury wished to examine text messages on the phone. The foreperson asked whether the jury could consider messages and other material found on the phone. Another juror, who assertedly “live[d] by a cell phone, ” indicated no information would be erased during the examination of the phone.
After the jury returned to the jury room, Steele asked to look at the phone to see what else it contained. The prosecutor indicated he had changed his mind and now believed the jury was entitled to examine the material on the phone. The prosecutor and Steele then went through the contents of the phone in the presence of the bailiff. Thereafter, Steele objected to the jury’s consideration of anything on the phone other than what had been introduced at trial, noting the phone contained a prank video in which Steele and his friends put a piece of cotton between the toes of a sleeping individual and set it on fire, causing the individual to “wake up and start jumping up and we start laughing. It’s funny to me.” Steele indicated he feared the video might taint the jury’s opinion of him.
The trial court indicated it also found the video humorous and asked whether the phone contained pornography or evidence of criminal activity. Steele indicated in the negative but again objected to the jury’s consideration of anything other than the matters introduced into evidence.
The trial court noted that, in argument to the jury, Steele implied de Oca had tampered with the phone “or perhaps even put [Steele’s] image on the telephone.” The trial court indicated it would be important for the jury, in deciding whose phone it was, “to see whose pictures are on it.” Steele admitted there were only pictures of him on the phone but argued someone had deleted pictures from the phone. The trial court found that consideration irrelevant and indicated it would allow the jury to examine all the material on the phone over Steele’s objection.
The trial court instructed the jury: “I will allow you to go through the telephone one time. Do not alter the contents of the phone. Do not dwell on the images you will see on the phone. You may receive them for issues such as who is the owner of the phone and so forth. The images themselves and anything depicted in any videos are not relevant for any other purpose.” After the foreperson indicated he understood the trial court’s instruction, the trial court continued: “It’s kind of like letting you go through somebody’s wallet and if there’s something embarrassing in the wallet, don’t use it for a purpose that it’s not intended.” The trial court then directed the phone be given to the foreperson and advised: “Again, run through it one time. Then if you need more information, you may send another note out.”
The jury thereafter convicted Steele as charged.
CONTENTIONS
Steele contends the burglary conviction is not supported by substantial evidence, the trial court erroneously allowed the jury to examine all the information on the cell phone, and the terms imposed for burglary and vandalism must be stayed pursuant to Penal Code section 654.
The People contend the abstract of judgment must be amended to reflect the fees and assessments imposed by the trial court.
DISCUSSION
1. The evidence supports the conviction of burglary.
Steele notes the trial court instructed the jury that burglary requires entry of any residential building with the specific intent to commit assault with a deadly weapon or “assault by means of force likely to produce great bodily injury.” Thereafter, the prosecutor argued Steele entered de Oca’s residence with the intent to commit an assault. The prosecutor explained that, under the instruction on assault the trial court had given the jury, if someone swings at another with a screwdriver and misses, an assault had been committed.
Steele contends that, because he did not possess any object that might be considered a deadly weapon when he reached through de Oca’s kitchen door window, he cannot be convicted of burglary. Steele claims the only possible instrument he could have used as a deadly weapon was the screwdriver, which he left inside de Oca’s car before he approached the kitchen door. Thus, the People failed to demonstrate the use of force likelyto produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; Pen. Code, § 245, subd, (a)(1).)
This claim is not persuasive.
In determining the merits of a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible and of solid value such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Story (2009) 45 Cal.4th 1282, 1296.)
Under Penal Code section 459, a person is guilty of burglary if he or she “enters any house, room, apartment... or other building... with intent to commit grand or petit larceny or any felony....” (Pen. Code, § 459.) In People v. Valencia (2002) 28 Cal.4th 1, the California Supreme Court addressed the outer boundary of a building for purposes of burglary. Valencia adopted a “reasonable belief test” under which “a building’s outer boundary includes any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization.” (Id. at p. 11.) At issue in Valencia was whether “penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute when the window itself is closed and is not penetrated.” (Id. at pp. 3-4.) Valencia found the described area was not one into which a member of the general public could pass without authorization. (Id. at p. 13.) Thus, penetration of a hand into the area between a screen and a closed window with the requisite intent constituted burglary. (Id. at p. 13.)
Here, the evidence indicated Steele, a former tenant who recently had been evicted from the apartment complex de Oca managed, vandalized de Oca’s car in the early morning hours of February 28, 2009. When de Oca made eye contact with Steele, Steele went to the back door of de Oca’s apartment and reached through the window he previously had broken with a rock, attempted to open the kitchen door and threatened to kill de Oca. Based on this evidence, the jury reasonably could find Steele entered the apartment with the intent to act on his threats to harm de Oca. Although Steele did not at that time have in his hand a deadly weapon such as a screwdriver, entry with intent to commit assault by means of force likely to produce great bodily injury constitutes a burglary and possession of a deadly weapon is not an element of assault by means of force likely to produce great bodily injury. Indeed, Steele concedes the offense of assault with force likely to produce great bodily injury may be perpetrated by means of hands alone. (People v. Tallman (1945) 27 Cal.2d 209, 212; People v. Rupert (1971) 20 Cal.App.3d 961, 967-968.)
Thus, the jury reasonably could conclude Steele burglarized de Oca’s residence when he reached through the broken kitchen window with the intent to commit assault by means of force likely to produce great bodily injury. Consequently, Steele’s challenge to the sufficiency of the evidence to support the burglary conviction fails.
2. The trial court properly admitted into evidence the additional material on the cell phone; any assumed error was harmless.
Steele contends the jurors committed misconduct and violated his right to due process when they improperly investigated whether the cell phone contained text messages and other information that had not been introduced into evidence at trial. (Turner v. Louisiana (1965) 379 U.S. 466, 472-473 [13 L.Ed.2d 424]; People v. Nesler (1997) 16 Cal.4th 561, 579.) Further, according to Steele, prejudice is presumed and reversal of his conviction is required unless the People can show the error was harmless beyond a reasonable doubt. (People v. Marshall (1990) 50 Cal.3d 907, 951; Gibson v. Clanon (9th Cir. 1980) 633 F.2d 851, 853-854; United States v. Vasquez (9th Cir. 1979) 597 F.2d 192, 193.) Steele argues the People cannot sustain that burden because, other than the prank video referenced at trial, the record does not reflect what other evidence the cell phone contained. Thus, this court cannot evaluate the text messages the jury wished to examine or any other evidence that might have been on the phone. Steele notes he presented a substantial alibi defense and, given that the jury felt the need to “root through” the phone for additional evidence, the error cannot be considered harmless.
Alternatively, Steele contends the error requires reversal even if it is found to amount to ordinary error, rather than juror misconduct. (People v. Clair (1992) 2 Cal.4th 629, 668; People v. Cooper (1991) 53 Cal.3d 771, 836.)
The People concede the trial court erred in permitting the jury to consider evidence that was not admitted at trial. (People v. Gamache (2010) 48 Cal.4th 347, 396.) However, they argue Steele objected only to the prank video and any other claim has been forfeited. (See People v. Price (1991) 1 Cal.4th 324, 414; People v. Jennings (1991) 53 Cal.3d 334, 383-384.) The People further assert the error was harmless beyond a reasonable doubt. (People v. Gamache, at pp. 396-397.)
In our view, this case does not present an issue of juror misconduct or one of permitting the jury to consider evidence that was not admitted at trial. Rather, as discussed below, the trial court essentially permitted reopening of the case and received into evidence the material on the cell phone that previously had not been offered.
Addressing these points in turn, the jury did not commit misconduct because it requested permission to consider the additional material on the cell phone. Thus, this was not a case in which the jury independently investigated the facts (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 681-682 [juror investigated condition of turnstiles similar to the one at the scene of the accident]), engaged in an experiment that produced new evidence (Smoketree–Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1746 [juror performed a demonstration regarding the pouring of concrete for fellow jurors]), or received information from a source outside the courtroom (People v. Nesler, supra, 16 Cal.4th at p. 579 [juror shared extrajudicial information concerning the defendant with other jurors during sanity phase]). Even viewed as a case in which extraneous material inadvertently was placed at the disposal of the jury (e.g., People v. Gamache, supra, 48 Cal.4th at p. 395 [jury viewed a videotape of a police interview of the defendant and others that was not admitted into evidence]), the jury’s request for permission to view the additional material on the cell phone before it determined the case dispels any suggestion of misconduct. Thus, even if the jury “root[ed] through” the material on the phone as Steele contends, it sought and obtained the trial court’s permission to do so. Consequently, no juror misconduct appears.
Further, in response to the jury’s request for permission to consider the additional matter on the phone, the trial court conducted a hearing on the matter, considered argument from the parties, conferred with the jury and eventually ruled it would permit the jury to examine the additional material on the phone. In so doing, the trial court effectively reopened the case and ruled the additional material on the phone was admissible.
A trial court has broad discretion to order a case reopened for good cause and to allow the introduction of additional evidence. (People v. Ayala (2000) 23 Cal.4th 225, 282; People v. Marshall (1996) 13 Cal.4th 799, 836; People v. Rodriguez (1984) 152 Cal.App.3d 289, 295; Pen. Code, §§ 1093, 1094.) The trial court retains this discretion even after jury deliberations have begun. (People v. Green (1980) 27 Cal.3d 1, 42, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 241; People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; People v. Newton (1970) 8 Cal.App.3d 359, 383.) The factors to be considered in reviewing the exercise of trial court’s discretion in this regard include the stage of the proceedings, the diligence shown by the moving party, the prospect the jury would accord the evidence undue emphasis, and the significance of the evidence. (People v. Rodriguez, supra, 152 Cal.App.3d at p. 295.)
Here, the proceedings had reached the deliberation stage. However, given that the jury requested the additional evidence, this factor does not suggest an abuse of the trial court’s discretion. With respect to the second factor and considering the People to be the moving party, no lack of diligence appears. The cell phone was introduced into evidence at trial, although not all of the information on it, and it is clear the People did not withhold the additional information on the phone in order to gain a tactical advantage. (People v. Goss (1992) 7 Cal.App.4th 702, 708.) Next, given that some of the evidence present on the phone already had been received into evidence, the jury is not likely to have accorded the additional evidence undue emphasis. Finally, the additional evidence appears to have been significant, at least in the eyes of the jury, to establish ownership of the phone. Also, the additional evidence addressed Steele’s suggestion in argument that de Oca tampered with the cell phone after he found it and before the police officers arrived.
In sum, consideration of the relevant factors discloses no abuse of the trial court’s discretion in reopening the case for the purpose of admitting into evidence the additional material on the cell phone. We therefore consider Steele’s claim as one of ordinary error in the admission of the evidence.
In reviewing a ruling by a trial court on the admissibility of evidence, we apply the abuse of discretion standard. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) “Under this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (Ibid.)
Here, as previously noted, the additional evidence on the phone was relevant in that it was responsive to Steele’s suggestion in argument that de Oca tampered with the phone to make it appear to be incriminating. Also, the presence of text messages that predated the incident buttressed the People’s assertion the phone belonged to Steele.
Contrary to Steele’s assertion, our inability to determine the exact content of the text messages on the phone does not prevent review. At the hearing in the trial court, Steele was aware of the jury’s specific interest in the text messages on the phone. The trial court inquired of Steele to determine whether there was anything objectionable on the phone, specifically mentioning pornographic material or any evidence of criminal conduct. Steele objected only generally to the text messages. Thus, based on the record presented, we must presume the text messages were entirely innocuous.
With respect to the People’s claim Steele did not preserve an objection to admission of any of the additional evidence found on the cell phone other than the prank video, we note that, even after the trial court overruled Steele’s objection to the prank video, Steele reiterated his objection to anything on the phone other than the matters that had been introduced at trial. Thus, contrary to the People’s assertion, Steele preserved for review an objection to all the additional evidence contained on the phone.
Turning to the prank video, the record indicates the trial court engaged in an Evidence Code section 352 analysis before determining its presence on the cell phone did not render the jury’s consideration of the additional material on the phone unduly prejudicial to Steele. The determination as to whether the probative value of evidence is substantially outweighed by the possibility of undue prejudice is “entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.” (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues....’ ” (People v. Bolin (1998) 18 Cal.4th 297, 320.)
Here, the trial court found the prank video was not prejudicial and admonished the jury not to use the video for any purpose other than establishing ownership of the phone. Absent some affirmative indication in the record to the contrary, and here there is none, we presume the jury followed the trial court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.)
Finally, even if we were to conclude the trial court improperly permitted the jury to consider the additional material on the cell phone and applying the Chapman standard of review (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]), no different result would obtain. (See People v. Gamache, supra, 48 Cal.4th at p. 399, fn. 22.)
The evidence against Steele was nearly overwhelming. Although Steele presented an alibi defense, it was not particularly persuasive. One of Steele’s alibi witnesses conceded he had no particular recollection of the morning of February 28, 2008, and the other two were Steele’s brother and one of his girlfriends. More importantly, Steele’s alibi defense was contradicted by the call information on the cell phone which indicated someone in possession of the cell phone called Nicole Garcia at 4:58 a.m. and spoke to her for nearly six minutes. Shortly thereafter, de Oca saw Steele vandalizing his car and police officers were dispatched to de Oca’s residence at 5:19 a.m.
Steele does not dispute the admissibility of this call information evidence. Although Garcia testified she did not remember receiving this particular call from Steele, she admitted it was not unusual for Steele to call her in the early morning hours. This six-minute conversation between one of Steele’s girlfriends and someone in possession of the phone, presumably not de Oca, was strong evidence the phone belonged to Steele. Steele did not attempt to establish de Oca might have placed this call to Garcia. Rather, in argument, Steele suggested de Oca put the calls “where [he] wanted” in order to make it appear Steele had been present outside de Oca’s residence when de Oca called the police. Clearly, this was not a persuasive argument as it is unlikely de Oca had the ability to manipulate the cell phone in the manner suggested by Steele. Further, given the strong evidence that indicated the cell phone belonged to Steele, it is likely the jury looked to the additional information on the phone only to corroborate that conclusion.
Based on the record presented, we conclude there is no reasonable possibility Steele would have received a more favorable outcome had the jury been precluded from considering the additional material on the cell phone. Consequently, any error in permitting the jury to consider this evidence was harmless.
3. The terms imposed for burglary and vandalism did not violate Penal Code section 654.
The trial court selected count 2, criminal threat, as the principle term and imposed the middle term of two years. The trial court imposed a consecutive term of eight months (one-third the midterm) for vandalism in count 3, explaining “[i]t involved a separate intent and a separate act aimed at the victim’s property.” The trial court imposed a consecutive term of one year and four months for burglary in count 1, indicating it involved the intent “to enter [de Oca’s] home and to commit a felonious assault.... That is an injury to the person of the victim.... So those are three distinct offenses. None of those merge under 654 PC.”
The trial court noted the conviction of attempt to burn property in count 4 arguably also would support a consecutive term. However, the trial court stayed the term on count 4, finding the jury might have relied on the facts of that count in finding Steele guilty of vandalism.
Steele contends he committed burglary, vandalism and criminal threat as part of a single course of conduct and he harbored the same intent with respect to each offense. Thus, the terms imposed for burglary and vandalismmust be stayed. Steele claims he threatened to kill de Oca as he reached though the broken kitchen door window in an attempt to open the door. Thus, he committed burglary and criminal threat simultaneously. Further, because burglary consists of entry into a residence with the intent to commit a felony, Penal Code section 654 permits the trial court to punish him either for burglary or the intended felony but not both. (See People v. Lee (1980) 110 Cal.App.3d 774, 784-785.) Here, although the trial court instructed the jury the intended felony was assault with force likely to produce great bodily injury, the evidence shows the felony Steele actually committed was criminal threat. Thus, Steele cannot be punished for both offenses. Steele concludes the terms imposed for burglary and vandalism must be stayed.
We do not find Steele’s argument persuasive.
Penal Code section 654, subdivision (a), 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.” “The purpose of this legislative protection against punishment for more than one violation arising out of an ‘act or omission’ is to insure that a defendant’s punishment will be commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 550-551.)
Penal Code section 654 has been applied not only where there is one “act” but also where there is a course of conduct which violates more than one statute, but nevertheless constitutes an indivisible transaction. (People v. Perez, supra, 23 Cal.3d at p. 551.) Whether a course of conduct is divisible and thus gives rise to more than one act under section 654 depends on the defendant’s intent and objective. (Neal v. State of California (1960)55 Cal.2d 11, 19.) If all of a defendant’s offenses were incident to one objective, he or she may be punished for any one of the offenses, but not more than one. (Ibid.) However, if a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he or she may be punished for the independent violations committed in pursuit of each objective even though the violations were part of an otherwise indivisible course of conduct. (People v. Perez, supra, 23 Cal.3d at p. 551.)
Whether Penal Code section 654 applies is generally a question of fact. (People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5.) A trial court’s finding that a particular defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Here, the trial court found Steele harbored separate intents when he committed the offenses of criminal threat, burglary and vandalism. The record supports this finding.
Steele’s intent in making the criminal threat was to incite fear in de Oca. Steele was successful in this regard, given that de Oca and his family moved from the apartment complex the next day. Although Steele made this threat shortly before or simultaneously with the burglary, Steele’s intent in committing the burglary was not to make a criminal threat. Rather, the evidence showed, and the trial court found, Steele committed burglary in order to assault de Oca with force likely to cause great bodily injury. Indeed, Steele uttered the criminal threat from outside de Oca’s home. Thus, the burglary was not incidental to the criminal threat. Further, given that the felony underlying the burglary was not criminal threat, Steele’s case is not analogous to those in which a defendant is punished both for burglary and the intended felony. Thus, the trial court properly could sentence Steele for burglary and for criminal threat.
With respect to the conviction of vandalism, the trial court found Steele committed this offense with the intent to damage de Oca’s property. This intent was entirely separate from Steele’s intent to incite fear in de Oca, which informed the criminal threat, and the entry with the intent to assault de Oca, which was Steele’s intent in committing the burglary. Because each of these three offenses had separate intents and objectives, Steele’s claim under Penal Code section 654 fails.
4. The abstract of judgment must be modified to reflect the fees and assessments imposed by the trial court.
At sentencing, the trial court imposed “a $30 court security fee per count” pursuant to Penal Code section 1465.8, subdivision (a)(1), and a “$30 [criminal] conviction [assessment] per count” pursuant to Government Code section 70373. However, the minute order indicates the court security fee and the criminal conviction assessment imposed as to count 4 were stayed. The abstract of judgment reflects only imposition of a $30 criminal conviction assessment fee pursuant to Government Code section 70373 as to counts 1, 2 and 3, for a total of $90.
The People request correction of the minute order and the abstract of judgment to conform to the trial court’s oral pronouncement of judgment. Steele concedes the error and it appears his concession is well taken.
Both of the fees at issue are to be imposed as to each count of conviction, including stayed counts. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371; see People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3.) We shall order the abstract of judgment modified to impose these assessments on counts 1 through 4.
DISPOSITION
The judgment is modified to reflect the trial court’s imposition of a $30 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1), and a $30 criminal conviction assessment pursuant to Government Code section 70373, as to each of the four counts on which Steele was convicted. The clerk of the superior court is ordered to prepare an amended abstract of judgment reflecting the imposition of these fees and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.