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People v. Taylor

California Court of Appeals, Second District, Seventh Division
Sep 9, 2008
No. B203184 (Cal. Ct. App. Sep. 9, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. NA074374, Arthur Jean, Jr., Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.


WOODS, J.

A jury convicted defendant Lynn Taylor of second degree commercial burglary (Pen. Code, § 459) (count 1), and petty theft with prior theft-related convictions (§§ 484, 666) (count 2) and found he had suffered two prior felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Taylor’s sole contention on appeal is the trial court erred in failing to stay his sentence on count 2 under section 654. We affirm the judgment of conviction as modified.

Statutory references are to the Penal Code unless otherwise indicate.

FACTUAL BACKGROUND AND PROCEDURAL BACKGROUND

1. Prosecution Case

On May 16, 2007, Allen Whitfield was working as a loss prevention specialist for the Target Store in Long Beach. That afternoon, as he was monitoring the Electronics Department through the store’s camera system, Whitfield saw Taylor take a Windows XP computer program from a store shelf without checking the price and immediately leave. Whitfield ran to the Electronics Department and discovered Taylor about 20 yards away in the Toys and Games Department. As Whitfield continued to watch, Taylor opened the computer program box, removed the program disc and placed the disc in his waistband. Taylor left the empty box on the shelf and headed for the store exit without attempting to pay for the disc.

Whitfield followed Taylor and apprehended him outside the store. Taylor denied having any stolen store merchandise in his possession and offered to show Whitfield where in the store he had supposedly left the merchandise. Taylor led Whitfield to the computer program box inside the store, and Whitfield told Taylor he knew the box was empty. Taylor then led Whitfield to another department and surrendered the stolen disc, saying he intended to sell it. Whitfield telephoned police.

Long Beach Police Officer Keith Mortensen responded to the Target Store, spoke to Whitfield and advised Taylor of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), which Taylor waived. Taylor explained he had only $5 and had entered the store to steal something, but he had no idea what he was going to steal until he saw the computer program and realized it could be sold for $50.

For purposes of the prior conviction allegations, certified copies of section 969b packets and court documents were presented. A forensic print specialist compared and matched Taylor’s known fingerprints to two fingerprint exemplars included in the section 969b packets.

2. Defense Case

Taylor testified in his own defense and admitted he stole the program disc. However, he denied entering the Target Store with the intent to steal, insisting he formed this intent only after he was inside the store. Taylor also testified he never admitted guilt to either Whitfield or to Officer Mortensen at the time of his arrest.

On cross-examination, Taylor admitted having suffered two prior convictions for residential burglary (1986 and 1987), but could not recall a 1993 conviction for second degree commercial burglary and petty theft with a prior theft-related conviction.

3. Verdict and Sentencing

The jury convicted Taylor as charged and found true the prior conviction allegations. The trial court granted Taylor’s Romero motion as to one of the prior convictions and imposed an aggregated six-year state prison sentence, consisting of the three-year upper term on count 1 (doubled under the Three Strikes law), and a concurrent three-year term doubled on count 2.

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) the Supreme Court held section 1385, subdivision (a), vests a trial court with discretion to dismiss a prior conviction, including a qualifying Three Strikes conviction, “in furtherance of justice.” (Id. at pp. 529-530.)

DISCUSSION

“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38 Cal.4th 1224, 1226.) Section 654 states: “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.

“‘If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.] If, on the other hand, ‘[the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Martin (2005) 133 Cal.App.4th 776, 781.)

Taylor contends his sentence violates section 654 because he committed both charged offenses in a single act – entering the Target store – with a single criminal intent – to steal merchandise. The burglary was incidental to or the means of accomplishing the petty theft. The People concede this point, and asks us to stay the sentence on count 2, (petty theft with a prior theft-related conviction). We agree the record contains no evidence that Taylor harbored any objective aside from stealing Target store merchandise, and therefore the sentence on count 2 should have been stayed.

DISPOSITION

The judgment is modified to stay sentencing on count 2 (petty theft with prior theft related convictions) pursuant to section 654. The clerk of the superior court is ordered to prepare an amended abstract of judgment and to send it to the Department of Corrections. As modified, the judgment is affirmed.

We concur: PERLUSS, P.J., ZELON, J.


Summaries of

People v. Taylor

California Court of Appeals, Second District, Seventh Division
Sep 9, 2008
No. B203184 (Cal. Ct. App. Sep. 9, 2008)
Case details for

People v. Taylor

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LYNN TAYLOR, JR., Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Sep 9, 2008

Citations

No. B203184 (Cal. Ct. App. Sep. 9, 2008)