Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. KA084074. Mike Camacho, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant Timothy Valentine.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Maurice White.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted appellants Timothy Valentine (Valentine) and Maurice White (White) of one count of conspiracy to commit a crime in violation of Penal Code section 182, subdivision (a)(1) (count 1) and 20 counts of commercial burglary in violation of section 459 (counts 2–21). The trial court sentenced both appellants to 15 years and eight months. The sentence was comprised of the upper term of three years in count 2 and consecutive sentences of eight months each for counts 3 through 21. A two-year sentence in count 1 was stayed pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellants appeal on the grounds that: (1) the evidence was insufficient as a matter of law to prove that the two burglaries charged in counts 15 and 16 occurred, and (2) the trial court abused its discretion in sentencing consecutively in counts 3 through 21.
We treat each issue as having been raised by both appellants, since appellants join in all beneficial arguments raised by their co-appellant, and each issue is applicable to both appellants. (Cal. Rules of Court, rule 8.200; People v. Caesar (2007) 153 Cal.App.4th 114, 122.)
FACTS
Prosecution Evidence
On February 12, 2008, Bryon Kasper (Kasper) went to the 24 Hour Fitness club in Pasadena. He put his gym bag and wallet in a locker and closed the locker with a padlock. His wallet contained $200 and four credit cards. When he returned to his locker after exercising, he saw that the padlock was gone. His gym bag and wallet were not inside the locker. Kasper called the police and filed a report the following day. He also called his wife immediately after noticing the theft and asked her to cancel the credit cards. Kasper’s wife told him that some of the issuers had already called to notify Kasper of suspicious charges at a Target store. Kasper’s credit cards were used to buy several gift cards ranging from $350 to $400 in value at two Pasadena Target stores. Kasper testified that he did not know Valentine, White, Ashley Bivens (Bivens), or Randy Ware (Ware), and he did not give them permission to use his credit cards.
On the same day, Felipe Garcia (Garcia) went to a 24 Hour Fitness center in San Dimas and placed his backpack into a locker. The backpack contained Garcia’s wallet, in which he carried two debit cards and a credit card. Garcia closed a padlock on the locker, but the padlock was missing when he returned, and the locker was empty. Garcia reported the incident to police. When Garcia called the credit card issuer to cancel his card, he was told that charges had been made at a Target store. Garcia did not know appellants, Bivens, or Ware and did not give them permission to use his cards.
Natalia Gonzalez (Gonzalez) was working the front desk of the San Dimas club. Around the time of the theft from Garcia, Gonzalez noticed two men, later identified as appellants, and another man entering the club. The three men were not regular members, and one of them asked where the locker rooms were located.
Eric Paulsen (Paulsen), a supervisor at Target in San Dimas, was working a cash register on February 12, 2008. White came to Paulsen’s register and wanted to buy two gift cards with a value of $300 each. White attempted to pay with a credit card. Paulsen’s practice was to ask for identification when a customer wished to charge a high amount, although it is not the store’s policy. When Paulsen asked White for identification, White said he had none. Paulsen told White he could not make the purchase. White left the store. Approximately 10 or 15 minutes later, Paulsen saw White leaving a register with two gift cards. White left the store, and Paulsen followed him. Paulsen saw White get into a blue Nissan. Paulsen obtained the Nissan’s license number. The Nissan was later found to be registered to Bivens. Paulsen saw two females get out of the Nissan and enter the store, heading for the electronics department. Paulsen called the electronics department and told an employee to exercise care because someone might try to use a gift card that was purchased with a stolen credit card. Paulsen later saw the two women from the Nissan leaving the store with a Playstation. They walked back to the blue Nissan. They got in the Nissan but soon left that car and got into another car. Paulsen asked a cart attendant to note the license plate number of the second vehicle.
Paulsen received a call from an employee in the electronics department, who told Paulsen that another person wanted to buy a Playstation with a gift card. Paulsen told the employee to send the person to the front so that Paulsen could help him. Paulsen told the male customer that something was wrong with the gift card, and Paulsen needed to check it with asset protection. The customer left the store. Paulsen later examined the area where the Nissan and the other car had been parked, and he found several credit cards on the ground.
Paulsen later identified Bivens in a photographic lineup (six pack) as one of the people who “walked out of the store and got in the car.” Paulsen identified Ware as the person who tried to buy the second Playstation. Gonzalez later identified appellants and Ware as the persons she had seen entering the fitness center.
Detective Allen Rich of the Los Angeles County Sheriff’s Department reviewed security footage taken from the 24 Hour Fitness center in San Dimas, and he saw Ware and appellants enter the gym and proceed to the locker room. The three men left the gym a short time later without exercising.
Similar locker thefts were committed at other 24 Hour Fitness Centers in February and March 2008. Roger Magdaleno (Magdaleno) was a victim on February 17, 2008, at the club in Glendora. Barbara Broome (Broome) was a victim in the same club on February 21, 2008. Lucrecia Saldana (Saldana) was a victim in the club on South Flower Street on March 1, 2008. Kwan Choi (Choi) was a victim at the Pasadena club on March 3, 2008. None of the victims knew appellants, Bivens, or Ware, and none of them gave anyone permission to use his or her credit cards.
Magdaleno’s credit cards were used to purchase multiple $400 gift cards and a Playstation at Target stores in Upland and Rancho Cucamonga. Broome’s credit card was used to buy a gift card at a Target store in Upland. Saldana’s card was used to purchase two $200 gift cards and two $300 gift cards at a Pasadena Target store. There were two $600 unauthorized charges made on Saldana’s debit cards at a Target store. Choi’s credit card was used to purchase gift cards at Target stores in Duarte and Baldwin park.
Broome described two women acting strangely in the Glendora club’s locker room at the time her belongings were stolen, and one of them was wearing a white T-shirt. Kathie Alegado (Alegado), who worked at the Glendora fitness center, reviewed security footage of people exiting the women’s locker room. A woman exiting the locker room in a white T-shirt was identified as Ashley Bivens, who had opened her 24 Hour Fitness account on February 11, 2008. Alegado ran a report on Bivens’s account and saw that she had entered the club 20 to 30 minutes before the break-in of Broome’s locker. Alegado also noticed that Bivens had gone to multiple 24 Hour Fitness clubs in a single day, which was unusual.
On March 4, 2008, Damon Mitchell (Mitchell) was checking in patrons at the 24 Hour Fitness Club in Glendale. Bivens entered the club with two males and gave her card to Mitchell. When Mitchell scanned the card, a note appeared on Mitchell’s screen, alerting him to call loss prevention and the police. The three individuals were allowed to enter the gym.
Officer Nelson Aguillon of the Glendale Police responded to the gym. Officer Aguillon parked on the street beside the gym and saw a light blue Nissan with the license number 4VUF583 parked across the street. The Nissan was occupied by one man, who was in the driver’s seat. Officer Aguillon made eye contact with the driver, later identified as White, who reclined his seat. White was on his cell phone at the time. Officer Aguillon believed White’s action was suspicious, and he contacted dispatch and advised them of the Nissan’s license plate number.
A man, later identified as Valentine, exited the club while talking on his cell phone. He walked within three feet of Officer Aguillon, who believed Valentine avoided eye contact with him. Valentine jaywalked across the street and walked toward the Nissan. Officer Aguillon whistled to Valentine and indicated he wanted to talk to him. Officer Aguillon told Valentine he had jaywalked and asked him for his identification. Valentine said his name was Tim Bernardo. Officer Aguillon asked Valentine to sit on the curb, and Valentine cooperated. Shortly thereafter, Bivens hurriedly left the gym after receiving a phone call. She was detained. Officer Aguillon noticed that White got out of the Nissan and began walking. He was not followed. Officer Aguillon noticed that Valentine and White made eye contact, and Officer Aguillon asked Valentine if he knew White. Valentine said he did not. When she was detained, Bivens was carrying a gym bag containing bolt cutters, a receipt from Target, a 24 Hour Fitness agreement in the name of Gary Dodge, and other items.
Police searched the Nissan and found duffel bags, a backpack, cut padlocks, receipts, Target gift cards, gaming consoles and a Lion University Center membership application in the name of Bertha Wilcox. Inside the backpack, police found a Target gift card, a broken lock, and a 24 Hour Fitness kids’ club agreement. One duffel bag contained Lion University Center membership paperwork in the name od Levy Nani. Another duffel bag contained several locks, a wallet with Valentine’s driver’s license, and red bolt cutters wrapped in clothing.
Officer Aguillon believed that White might come back to the scene of the crime, and he patrolled the area that day. Officer Aguillon saw a green Honda Accord coming out of a parking lot about a block away from the 24 Hour Fitness club. Officer Aguillon stopped the Honda and detained White, who was inside.
Officer Martin Barrett of the Glendora Police Department contacted Mark Jun, a regional loss prevention officer for 24 Hour Fitness on March 5, 2008. Officer Barrett requested video surveillance footage from the Glendora club for the time period in which Magdaleno’s property was stolen. Officer Barrett reviewed the video footage and made still photographs of two persons whom he considered suspects. One of the men was later identified as White.
Debbie Ho (Ho), an investigator of organized retail theft for Target, investigated the use of stolen credit cards to purchase gift cards and merchandise in February and March 2008. She tracked the purchase and redemption of the gift cards and checked receipts for their purchase. She also reviewed video of the transactions. Ho found that White had used Kasper’s credit card on February 12, 2008, to buy gift cards at Pasadena Target stores. These cards were later used by Ware and Bivens at a Duarte Target store to buy Playstations. Ho discovered that Garcia’s credit card was used to buy gift cards at a Target store in San Dimas on February 12, 2008. Bivens then used these gift cards to buy a Playstation at the San Dimas Target. Magdaleno’s credit card was used by White to purchase gift cards and a Playstation at an Upland Target store on February 17, 2008. White used Magdaleno’s credit card to purchase two $400 gift cards at the Rancho Cucamonga Target store and tried unsuccessfully to buy two more cards there on February 17, 2008.
Ho discovered that Broome’s credit card was used by Bivens to buy a gift card at the Upland Target on February 21, 2008. Bivens used Saldana’s credit card to buy two $200 gift cards at a Pasadena Target store on March 1, 2008. Two more $300 gift cards were purchased at the Pasadena store, but there was no video available from this transaction. Valentine used these gift cards to buy a television at a Burbank Target store.
Ho’s investigation revealed that White and Bivens used Choi’s credit cards at a Duarte Target store on March 3, 2008. They bought several $200 gift cards. A short time later, White used Choi’s credit card to buy several $400 gift cards at a Target store in Baldwin Park. Bivens used the gift cards to buy Playstations and Xboxes at a Target store in West Covina.
Defense Evidence
Appellants did not present any evidence on their behalf.
DISCUSSION
I. Counts 15 and 16 as Two Separate Crimes
A. Appellants’ Argument
Appellants contend that the charges in counts 15 and 16 represented transactions that were part of a single course of conduct committed close in time-in fact, one minute apart. Therefore, only one burglary was proved, not two. Appellants claim that their constitutional right to due process was violated because the evidence was insufficient as a matter of law, and count 16 charging a second burglary should be dismissed.
B. Proceedings Below
Count 15 charged Valentine and White with second degree commercial burglary of Target on March 3, 2008. Count 16 charged Valentine and White with second degree commercial burglary of Target on the same date. Valentine’s liability was based on his status as a coconspirator in these burglaries. White was also a coconspirator, but he was a direct participant in one of the burglaries as well.
Ho testified regarding People’s exhibit No. 18, which was a Target receipt from the Duarte Target store dated March 3, 2008 at 8:42 p.m. The receipt was for a $200 gift card, and it was paid for with a credit card belonging to Choi. The exit photograph of the transaction showed that it was made by an individual identified as White.
Ho testified regarding People’s exhibit No. 19, which was another receipt from the Duarte Target store. This receipt bore the date of March 3, 2008, and a time of 8:43 p.m. The receipt was for a $200 gift card and another item. The gift card was paid for with a credit card belonging to Choi. The exit photograph of this transaction revealed that the purchaser was Bivens.
The jury was instructed on conspiracy with CALCRIM No. 415. The jury was instructed on burglary and the requisite intent with CALCRIM No. 1700.
C. Relevant Authority
The standard of appellate review for sufficiency of the evidence was set out in People v. Johnson (1980) 26 Cal.3d 557. When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Id. at p. 576.) “[S]ubstantial evidence” is evidence that is “reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578.) The court does not limit its review to the evidence favorable to the respondent, but must resolve the issue in light of the whole record. (Id. at p. 577.)
D. Evidence Sufficient
Appellants argue that, in order to prove two separate burglaries, two discrete entries and acts of theft must be proved. They contend that proof that two coconspirators entered a Target store at or near the same time shows merely one act of burglary and not two. Because the purchasers of the gift cards were collaborators, their acts were part of a single plan committed close in time.
Appellants partly rely on the fact that Bivens and White both made purchases with Choi’s credit card, in the singular, as evidence that they entered the store together or very near in time. However, Choi testified that there were six credit cards in his wallet when it was stolen from the locker room. He also testified that three or four of his credit cards were used to make unauthorized purchases at Target.
Bivens and White made their purchases separately. Each purchase was accompanied by a separate intent to commit theft by each purchaser, who entered the Target store with this intent. Given these facts, we conclude that appellants’ arguments are without merit. (See People v. Washington (1996) 50 Cal.App.4th 568, 579 [every entry with the requisite intent supports a separate conviction].)
Appellants rely on several cases involving residential burglaries that are distinguishable. In People v. Montoya (1994) 7 Cal.4th 1027 (Montoya), the perpetrator, and perhaps the defendant, who was seen standing outside the burgled apartment, “made several entries and exits” of the residence “during the course of a single burglary.” (Id. at pp. 1045–1046.) Montoya was tried under theories of aiding and abetting or being a direct perpetrator. (Id. at p. 1038.) In dicta, the Montoya court stated that the evidence demonstrated that the multiple entries were committed pursuant to one intention, impulse, and plan, and there was therefore only one burglary. (Id. at p. 1046, fn. 10.)
In People v. Escobar (1992) 7 Cal.App.4th 1430 (Escobar), also cited by appellants, the issue was the time of formation of the intent of an aider and abettor to burglary in relation to the perpetrator’s entry. (Id. at p. 1435.) Escobar, who was charged as an aider and abettor, argued that, since the burglary was complete at the moment the perpetrator first entered the residence, and the perpetrator’s second entry to get more loot did not constitute a separate burglary, Escobar could only be convicted if he formed the intent before or at the time of the perpetrator’s first entry. (Id. at p. 1435.) The court held that the aider and abettor need only form the intent before or during any one of the perpetrator’s entries with the required specific intent. (Id. at p. 1437.)
In In re William S. (1989) 208 Cal.App.3d 313 (William S.), the issue was whether “a second entry into a burglarized home via a door unlocked during the initial visit several hours earlier constitute[d] a separate burglary.” (Id. at p. 315.) The court held that a separate burglary occurred. Analogizing to sex crimes, the court emphasized the passage of time between William’s two entries, giving him time to reflect. (Id. at p. 317.) The court also noted that William had reached a safe haven before returning to the residence and entering again. (Ibid.)
Unlike the circumstances of the first two cases cited ante, in this case, White and Bivens acted independently as perpetrators of their respective burglaries. Neither of them merely aided and abetted the other, as occurred in Montoya and Escobar. Valentine was a coconspirator in both of their crimes, and White was also a coconspirator. Unlike the case of William S., the two entries were not made by the same individual. Therefore, the amount of time between Bivens’s and White’s respective entries has no relevance. Thus, the two factors appellants glean from William S.-the lapse of time between entries, and whether the perpetrator reached a safe haven before a second entry-do not apply in this case. Moreover, the test in William S. dealing with the lapse of time has been cast into doubt for use in multiple-entry burglary cases, since it appears to alter the statutory definition of burglary. (See People v Washington, supra, 50 Cal.App.4th at p. 576.)
The instant case is more analogous to People v. Neder (1971) 16 Cal.App.3d 846, where multiple punishment was deemed to be proper for the crime of forging three credit card slips on a single visit to a store. (Id. at pp. 852–853.) The court stated that, although “it might be said that the offenses were incident to the fundamental objective of taking goods from Sears by use of the credit card and by forging the sales slips[]... this objective is too broad to tie the separate acts into one transaction.” (Id. at pp. 853–854.) In the instant case, moreover, there are two separate perpetrators making two separate transactions. There are also two potential sources of physical harm, and it is the risk of such harm that lies at the core of the crime of burglary. (See People v. Washington, supra, 50 Cal.App.4th at p. 577.)
We conclude there was sufficient evidence to support two counts of burglary based on the entries with the requisite intent that were made separately by Bivens and White in the Duarte Target store on March 3, 2008.
II. Imposition of Consecutive Sentences
A. Appellants’ Argument
Appellants claim that the trial court failed in its duty to state its reasons on the record for imposing consecutive sentences, and the trial court’s choice exceeded the bounds of reason and constituted an abuse of discretion. Had the trial court considered the proper criteria, i.e., the factors listed in California Rules of Court, rule 4.425 (a) and (b), it would have determined that concurrent sentences were appropriate.
B. Proceedings Below
After hearing argument from the prosecutor and the attorneys for White and Valentine, the trial court stated that it had taken into consideration White’s age (19) and his lack of a prior record. These factors were cancelled out by the fact that he was very active in the thefts. It had also considered the fact that Valentine, although a member of the conspiracy, did not personally participate in many of the thefts. This factor was counterbalanced by Valentine’s lengthy and significant criminal history. The court went on to say, “but the fact of the matter remains that these crimes involve multiple victims and, quite frankly, flagrant conduct on behalf of both defendants. It’s not like they were committing theft to obtain necessities of life; for example, clothing for their children or food or [sic] their children. They were stealing evidently these game systems for whatever reason. They weren’t satisfied with just one system obviously. They wanted multiple systems and that was their focus. What also suggests sophistication on their part is the fact that they chose a business of Target that has a tendency, by policy, not to check identifications for use of credit cards separate and apart from perhaps what other businesses would require. They chose to purchase gift cards in a sense to launder their criminal activity and make what appears to be legitimate purchases with gift cards. What also shows professionalism and sophistication is the fact they used the credit cards immediately after the thefts in hopes of draining those accounts before they were discovered by their victims and reported to the credit companies. So all of that shows significant and flagrant conduct, which warrants, quite frankly, high term on the base term. Their crimes involved attempted or actual taking of significant monetary value and loss to the victims. The defendants obviously participated with others and perhaps even induced others to commit the crimes. And, again, it was ongoing conduct. But for their apprehension at one 24-Hour Fitness, it may have continued. So the court will use count 2 as the base term and impose the high term state prison sentence of three years as to both defendants. Obviously probation is denied. In addition and consecutive to those terms, the court will impose one-third of the midterm on each of the remaining counts, that being counts 3 through 21, and order that those terms run consecutive for a total of 15 years 8 months in the state prison.”
Both White and Valentine addressed the court. White asked for mercy and explained that he had no parents present in his life, had felt lost, and was not a bad person. Valentine said that if he had done something in the case he would admit to it. The trial court responded that it understood that 15 years was a lot of time. It could not waver from the judgment because it found there was a continuing course of flagrant conduct on the part of appellants and others. The court stated, “You harmed a lot of people and even when your purchases were denied by certain personnel within Target, did you stop? No, you just went into the parking lot and gave the card to someone else who came in and made purchases with another register. That type of conduct simply doesn’t deserve any type of lenience.” The court stated that the sentence it imposed was appropriate as a matter of law and would stand.
C. Relevant Authority
Section 669 gives the trial court wide discretion to impose consecutive sentences when a person is convicted of two or more crimes, and California Rules of Court, rule 4.425 directs the sentencing court to consider several criteria in deciding whether to impose concurrent or consecutive sentences. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) “Generally, determination of the appropriate term is within the trial court’s broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]. ‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations]; [citations] and may balance them against each other in qualitative as well as quantitative terms.’ [Citation.]” (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) “‘A trial court’s discretionary act is accorded great weight on appeal: It “will not be disturbed unless it is abused, i.e., the appellate court will not substitute its own view as to the proper decision.” [Citation.] To warrant reversal the record must suggest “‘a manifest miscarriage of justice.’” [Citation.]’” (People v. Arviso (1988) 201 Cal.App.3d 1055, 1059.)
“[M]ultiple offenses committed against multiple individuals are distinctively worse than multiple offenses committed against a single individual.” (People v. Leung (1992) 5 Cal.App.4th 482, 504; see also People v. Calhoun (2007) 40 Cal.4th 398, 405, 408 [although the factor of multiple victims was deleted from Cal. Rules of Court, rule 4.425 in the 1991 revision, the trial court may “consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence”]; People v. Valenzuela (1995) 40 Cal.App.4th 358, 365 [same].)
D. No Abuse of Discretion
We believe the trial court’s words demonstrate that it gave sufficient reasons for imposing consecutive terms. The trial court’s discourse prior to selecting the high term was clearly a prelude to its entire sentencing choice. The trial court discussed the factors of multiple victims, flagrant conduct, and the obvious professionalism and sophistication shown by the acts of the conspiracy. The court also named the factors of significant victim losses, participation and possible inducement of others to participate in the crimes, and the ongoing conduct that was stopped only by appellants’ apprehension. The court then selected count 2 as the base term and imposed the high term and consecutive sentences on counts 3 through 21. A single valid factor is sufficient to justify a sentencing choice, whether it is an aggravated term of imprisonment or a consecutive sentence. (People v. Dancer (1996) 45 Cal.App.4th 1677, 1695–1696, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) “Moreover, the same factor can support numerous consecutive sentences and a single proper statement of reasons will support them.” (People v. Dancer, supra, at p. 1696.) The trial court’s discourse reveals numerous factors justifying consecutive sentences.
In any event, any failure by the trial court to parse its language into separate reasons for the high term and the imposition of consecutive sentences is harmless. As respondent points out, “[w]here sentencing error involves the failure to state reasons for making a particular sentencing choice, including the imposition of consecutive terms, reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence.” (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) In this case, the court could not have been clearer in explaining to appellants that it believed the 15-year, eight months sentences were deserved. As the trial court stated to White, “I understand, Mr. White. Mr. White, again, I cannot and will not waiver [sic] from the sentence I’ve imposed. I think you’ve earned it.” Remand would be pointless, and any error is harmless.
DISPOSITION
The judgments are affirmed.
We concur: DOI TODD, Acting P.J., CHAVEZ, J.