Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF129904, Elisabeth Sichel, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
A jury convicted defendant and appellant Mark Aaron Vaughn of burglary (Pen. Code, § 459), driving a stolen vehicle (Veh. Code, § 10851, subd. (a)), and attempted vehicle theft (Pen. Code, § 664, Veh. Code, § 10851, subd. (a)). The jury also found that a person other than an accomplice was present during the burglary so that the burglary was in the first degree (Pen. Code, § 460, subd. (a)) and constituted a violent felony under Penal Code section 667.5, subdivision (c)(21). The trial court found that defendant had five prison priors. (Pen. Code, § 667.5, subd. (b).) The trial court imposed a total prison term of 10 years consisting of the midterm of four years for the burglary, a consecutive one-third midterm of one year for driving a stolen vehicle, one year concurrent for the attempted vehicle theft, and an additional consecutive year for each of the prison priors. Defendant contends the concurrent sentence for the attempted vehicle theft should have been stayed pursuant to Penal Code section 654.
BACKGROUND
On April 19, 2006, the victim saw defendant “go up to one of our trailers that was in our back yard and start[] rolling up the hitch as if [he was] going to hook it to something, and then I witnessed [him] walking over to the other trailer in our back yard, and [he] opened the door and looked inside.”
The victim owned a dune buggy that was usually hauled in the trailer the defendant had just opened. However, the vehicle was in the garage, and seeing defendant open the trailer made the victim think the dune buggy was a target for theft. The victim got dressed, ran through her house, and went through the door leading from her house into the garage. When she opened the door, the double door on the garage was already opened, the cover had been partially taken off of the dune buggy, and defendant was sitting in the victim’s golf cart holding the garage door opener in his hand while looking toward the dune buggy. The garage door had been closed. The victim grabbed a phone and called 911. Defendant stood up and tried to calm the victim down; she responded with bad words, walked up to him, and grabbed the garage door opener out of his hand. Defendant ran down the driveway and left in a previously stolen truck. The victim then noticed that the two double gates on the side of the house were open.
The victim described the incident slightly differently to a responding officer. She said she initially saw defendant out her bedroom window, went outside, could not locate defendant, walked toward the front of the house, noticed the side gate was wide open, and then after reaching the front of the house, turned and saw the defendant in the garage lifting up the cover on the dune buggy.
The parties stipulated, as to both the driving a stolen vehicle and attempted vehicle theft counts, that “the suspect intended to deprive the owner of possession or ownership of the vehicle for any period of time as stated in element 2 of CALCRIM jury instruction 1820.”
After the parties rested, defendant moved to dismiss as to all counts but contended, in particular, that there was no evidence of a direct but ineffective step toward committing the attempted vehicle theft. The People responded by referring to the “jacking up” of one of the trailers, opening the doors of the second trailer, opening “the gates wide open, ” uncovering the dune buggy, and opening the garage door. The trial court denied the motion and stated: “He went through the property. He entered into the property. He looked at the trailer. He jacked up the trailer in the yard. He was found inside the garage with the cover off the [dune buggy]. The testimony was a little wishy-washy about whether the [dune buggy] was covered. The witness said she assumed so because the cover was folded forward with the garage door opener.”
The People’s closing argument asserted that defendant went into the backyard with the purpose of taking one of the trailers, and noted that he had “started to crank up one of the trailers.” The People also asserted that, with the gates wide open and the garage door open, defendant was “totally prepared to take out [the victim’s] two trailers in the backyard, hook them up to the stolen dually truck that he was driving that tows trailers, and take the [dune buggy] out of the garage.” However, the closing also asserted that “just the attempt to take any one of those three vehicles that we went over, one of the two trailers or the [dune buggy] in the garage” was sufficient for the attempted vehicle theft count.
At sentencing, the trial court offered a tentative sentence in which it stated: “With respect to... the attempted [vehicle theft], the Court would sentence the defendant to one year. And the Court is somewhat on the fence about this. In thinking about it, it seemed appropriate to make that term concurrent to [the burglary] rather than consecutive because it’s not wholly independent of [the burglary]. I mean, they were separate crimes. They had separate aims. And there was time for the defendant to pause and reflect between committing the crimes. So again, it’s not a [Penal Code section] 654 issue but neither is it a wholly independent crime.” When it imposed sentence the trial court stated, with respect to the attempted vehicle theft, “the Court sentences the defendant to one year concurrent with [the burglary count] because the crime is not wholly independent of the burglary. They were part of the same sort of—same general criminal conduct. [¶] The Court notes—the Court believes it would not be appropriate to use Penal Code [section] 654 or that it wouldn’t apply to this count. The crimes were separated in time sufficiently for the defendant to have time to pause and reflect, and they had separate criminal objectives. So the Court does feel since they’re not wholly independent that it would be appropriate to run that count concurrent.”
DISCUSSION
Defendant contends the concurrent sentence for the attempted vehicle theft should have been stayed pursuant to Penal Code section 654. We disagree because substantial evidence supports the trial court’s determination that defendant had separate intents and objectives when he committed the burglary and the attempted vehicle theft.
Penal Code “[s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) In determining whether the facts call for the application of Penal Code section 654, the threshold inquiry is to determine the defendant’s objective and intent. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Accordingly, a defendant cannot be punished for “both burglary and theft where... the burglary is based on an entry with intent to commit that theft.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.)
When a court sentences a defendant to separate terms, it makes an implicit determination that the defendant held more than one criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) “The defendant’s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence.” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.) “Thus, ‘[w]e review the trial court’s findings “in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” ’ [Citation.]” (People v. Lopez (2011) 198 Cal.App.4th 698, 717.)
Defendant left the gates to the backyard “wide open” and rolled up the hitch on the first trailer. He then opened the doors of the second trailer, looked in, and then went into the victim’s garage, opened the garage door and partially uncovered the dune buggy before being interrupted by the victim. The trial court could reasonably conclude that the attempted theft was based upon opening the gate and rolling up the hitch on the first trailer, and the burglary occurred after defendant noticed the second trailer was empty and entered the garage with the intent of locating and stealing the item the second trailer was used to haul. Thus, the burglary was not based upon an entry to commit theft of an item covered by the attempted theft count. As indicated by the trial court, defendant had the opportunity to pause and reflect, and could have chosen to proceed with taking a trailer rather than escalating his criminal conduct by entering the garage in pursuit of additional property. Thus, substantial evidence supports the trial court’s finding that the attempted theft and the burglary were conducted with separate intents and objectives, even if both were part of a single goal of stealing property.
Underlying defendant’s contention is his assertion that if he had “succeeded in stealing the [dune buggy] or a trailer, only one theft would have occurred, and [defendant] could not be punished for both burglary and theft.” However, defendant could have attempted to steal one or both trailers without entering the garage; thus, he could have attempted theft without committing the burglary. (See Pen. Code, §§ 459-460.)
Defendant further contends that he must have had the singular goal of stealing the dune buggy because he could have taken the trailer but instead went into the garage in search of the dune buggy. However, there is nothing in the record to indicate that defendant’s initial entry onto the victim’s property was in pursuit of the concealed dune buggy rather than the trailers openly stored in the victim’s backyard. Accordingly, the trial court was entitled to conclude that defendant sought to steal one or both of the trailers, and that after the emptiness of the trailers alerted him to the possibility that a more valuable item might be in the garage, he then entered the garage with the intent to steal such an additional item.
DISPOSITION
The judgment is affirmed.
We concur: MILLER, J., CODRINGTON, J.