Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Ronn M. Couillard, Judge. Super. Ct. No. VCF156050
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J.; Levy, J.; and Gomes, J.
INTRODUCTION AND FACTS
Appellant Alfred Guillermo Villa was convicted after jury trial of commercial burglary (count 1) and petty theft with a prior conviction for theft (count 2); the jury found true a prior strike allegation and a prior prison term allegation. (Pen. Code, §§ 459, 666, 1170.1, subd. (c), and 667.5, subd. (b).) The court dismissed the prior strike in the interest of justice and sentenced appellant to the upper term of three years on count 1 plus a consecutive term of eight months on count 2 plus a consecutive term of one year for the prison prior. The court subsequently recalculated appellant’s conduct credits and resentenced him to the same terms for counts 1 and 2 and the prison prior, plus a consecutive term of eight months in an unrelated case.
Unless otherwise specified all statutory references are to the Penal Code.
Appellant argues that term imposed for count 2 must be stayed pursuant to section 654 and complains that imposition of the upper term on count 1 constitutes Blakely/Crawford error. Respondent concedes the section 654 error but argues that appellant’s recidivism justifies imposition of the upper term. We agree with respondent; the judgment will be modified to stay the term imposed on count 2 and, as modified, affirmed.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).
DISCUSSION
I. The term imposed for count 2 must be stayed pursuant to section 654.
A. Facts
Wal-Mart loss prevention officer John Martin testified that “double shopping” is a problem at Wal-Mart. When one double shops, he or she purchases an expensive item from the store. Either this person or an accomplice returns to the store, takes another of the same item, bypasses the register and uses the first item’s receipt to show to the greeter at the exit.
On December 4, 2005, Martin observed appellant exit the Wal-Mart with an air mattress and walk to his car. Appellant reentered the store and purchased a car stereo kit. He exited the store again. Martin observed appellant return to the store, take an identical car stereo kit and exit the store through the garden department. At the exit door, appellant showed a receipt to the door greeter. Martin detained appellant and seized the car stereo kit. Appellant possessed a receipt for one air mattress and a receipt for one car stereo kit.
Appellant gave Visalia Police Officer Randy Fasani and an assisting officer permission to search his vehicle. An air mattress was found in the back seat. Another air mattress and a car stereo kit that was identical to the one Martin seized from appellant were found in the trunk.
Appellant testified that he previously purchased the second air mattress and the second car stereo kit.
At sentencing, the trial court declined to apply section 654 to count 2 because “it is a separate and distinct criminal event.”
B. The term imposed for count 2 must be stayed pursuant to section 654.
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) Whether a course of criminal conduct is divisible depends on the intent and objective of the defendant. If all of the offenses were incident to one objective, the defendant may be punished for any one of the offenses but not for more than one of them. (People v. Hicks (1993) 6 Cal.4th 784, 789.)
Appellant argues that section 654 applies to count 2 because he possessed a single criminal objective; respondent concedes. We accept this concession as properly made because the record cannot support a finding of multiple criminal objectives. The evidence clearly demonstrates that appellant possessed a single objective when he committed the burglary and the petty theft -- to steal from Wal-Mart. This conclusion is supported by numerous cases holding that when a defendant is convicted of both burglary and theft arising from the same criminal event, the defendant may be punished for only one of the offenses because he possessed a single objective, theft. (People v. McFarland (1962) 58 Cal.2d 748, 762; People v. Cline (1998) 60 Cal.App.4th 1327, 1336; People v. Bernal (1994) 22 Cal.App.4th 1455, 1458.)
II. Imposition of the upper term did not infringe appellant’s constitutional rights.
A. Facts
During appellant’s cross-examination, he did not deny that he was convicted of felony petty theft from a Wal-Mart store in 1997 and he did not deny that he suffered additional felony convictions in 1982, 1985, 1986 and 1991.
The jury found true a prior strike allegation arising from a 1990 conviction for violating section 192, subdivision (c)(2)(a), and it found true a prior prison term allegation arising from the 1997 felony theft conviction.
The court selected the upper term for count 1 based on two aggravating factors: (1) appellant’s criminal record is lengthy and includes many felony theft-related offenses; and (2) the crime involved planning and sophistication.
When resentencing appellant, the court again selected the upper term for count 1; it cited two aggravating factors: (1) appellant’s criminal record is lengthy and includes more than two prior felony convictions; and (2) poor prior performance on probation and parole. The court did not find any mitigating factors.
B. Appellant’s recidivism justifies imposition of the upper term.
It is established that defendants do not have a right to jury trial for a sentence that is based on the fact of a prior conviction. (Almendarez-Torres v. United States (1998) 523 U.S. 224, 243, 246.) The recidivism exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 819 (Black II).) In Black II, our Supreme Court recently held that the presence of one aggravating factor that is established in a manner satisfying Sixth Amendment requirements renders a defendant eligible for an upper term sentence:
“… [A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.)
The recidivism exception applies in this case. Not only can appellant’s lengthy criminal history be established by examining the records of his prior convictions, but during appellant’s testimony he did not deny that he suffered numerous prior felony convictions. Also, the jury found true a prior strike and a prior prison term allegation. Thus, an aggravating circumstance was established in a constitutionally permissible manner. (Black II, supra, 41 Cal.4th at pp. 816-817.) As a result, the statutory maximum sentence to which defendant was exposed was the upper term. (Ibid.) Therefore, imposition of the upper term did not infringe any of appellant’s constitutional rights and protections.
The presence of additional aggravating circumstances cited by the trial court (planning and sophistication of the crime & poor performance on probation and parole) does not compel a different result. Black II explains:
“… [S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
To preserve the issue for federal review, appellant contends that Black II’s application of the prior conviction exception contained in Almendarez-Torres v. United States (1998) 523 U.S. 224 is unconstitutionally broad. We are bound to follow the decisions of the California Supreme Court and reject this contention on that basis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is modified to stay the term imposed for count 2. The clerk of the Tulare County Superior Court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the amended abstract to the Department of Corrections. As modified, the judgment is affirmed.
Defendant’s failure to object on Blakely grounds at sentencing did not result in forfeiture of this claim because defendant was sentenced after our Supreme Court decided People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that a jury trial is not required on aggravating factors that justify imposition of the upper term, and before the United States Supreme Court decided Cunningham, which abrogated Black I. The change in the law excused trial counsel’s failure to object on this ground. (Cf. Black II, supra, 41 Cal.4th at pp. 810-812.)