*1 Dist., Aug. No. 11190. Fourth Div. One. [Crim. 1980.] PEOPLE, THE Plaintiff and v. Respondent, SEE, CHARLES VERNON Defendant and Appellant.
Counsel Appeal, the Court of Defenders, Inc., appointment by under Appellate Appellant. Defendant and Ann Redisch for Philibosian, Chief General, Robert H. Attorney George Deukmejian, Kremer, General, Assistant Gen- Attorney J. Daniel Attorney Assistant General, Petersen, eral, Deputy Attorneys Wells M. Bloom and A. Jay Respondent. for Plaintiff and
Opinion COLOGNE, P. J. Charles Vernon See his sentence Acting appeals (Pen. Code, after second pleading guilty to degree burglary §§ 460) (Veh. Code, or and unlawful an automobile driving taking 10851). terms, was prison See sentenced to for consecutive the middle § term of for eight two for the months the auto theft. years several a office and stole person
See and another broke into business removed the stolen of office equipment. They thousand dollars worth to the of- “hot-wired” a truck and returned items a friend’s car. They *4 safe had seen but could not remove by fice to remove a building they aban- papers, they car. later the safe and found they opened only When doned the truck and safe. said items found in the where See probation report apartment of the same
had been to tie in with” another staying burglary “seemed been the office and to it which had adjacent burglarized businesses same month. said, here,
At the “And then we have sentencing essentially, judge Counsel, we four stolen in view have plus my the car.... burglaries record, time four With that the man has earned himself in burglaries. state prison.”
See
with five
of
the one
charged
had
been
counts
originally
burglary:
and
business-
he
dates of the same
other
pleaded to
four at various
was the
charged
es. In an amended
the
count
complaint,
only burglary
of
he
to
the auto theft and a count
stolen
plus
receiving
one
pleaded
the
bargain.
which was
as
of
property
part
plea
dismissed
burglar-
the four
upon
relied
improperly
the judge
See contends
in denying
the current crimes
unrelated to
no
charged
ies
longer
however,
the
shows,
judge
after
immediately
The record
probation.
counsel
defense
the four
concerning
burglaries,
made the statement
These bur-
charged.
no
were
longer
him the burglaries
out to
pointed
who
his reason for
gave
the judge
again by
were not mentioned
glaries
a
others
danger
of See being
the likelihood
to be
denying probation
as a
record
thief.
414(b))
long
on his
Court,
based
(Cal.
rule
Rules of
considerations.
upon
improper
his decision
any
did not base
The judge
See contends the court violated Penal Code section 654
im-
by
consecutive sentences for the
and the auto theft. He
posing
contends the auto theft was
incidental
to the
merely
single objective
and was involved in a
course of conduct.
committing
single
in
double
section 654 is
proscription against
punishment
where there is a
of conduct which violates more than
applicable
course
one
indivisible
under
punishable
statute and
an
transaction
comprises
654. The divisibil-
more than one statute within the
of section
meaning
intent and
of the
objective
of a course of conduct
ity
depends upon
actor,
the defendant
and if all the offenses are incident to one objective,
more than one.
be
for
one of them but not for
may
punished
any
[Cita-
(1969) 1
v. Bauer
Cal.3d
(People
tions.]”
Whether there is an substantial supported by if will not be overturned tion of fact which 68, 74-75 Cal. (1969) 1 Cal.App.3d v. Ferguson [81 evidence (People 418]). Rptr. case, the one before in this involved are two burglaries
There the was charged, one burglary Although only and one after. truck theft their collo- offenses and distinct this as two recognized and See judge have to We do not this out. the bears plea receiving at the time of quy the safe were the car and when to the burglary the plea applied assume bur- the we assume may rather, finding, of the taken, judge’s in support theft. Since the car which antedated entering to the first glary applied effect taken to truck was before completed was the first burglary separate to a and incident crime was a separate it burglary, the second conduct. course of is one crime fact that so held. Bauer, Court Supreme
In mul- not permit does commenced the other before technically complete an comprising conduct course of there is a where punishment tiple 81 Bauer, 1 v. (People supra, transaction. Cal.3d indivisible [Citations.]” In 1398].) 37 A.L.R.3d 377 [82 certain vic- Bauer, however, robbery the acts center around all at the same time and of tims, and car theft were the burglary, robbery the same victims. (1977) Cal.3d 99 Cal. Bauer with v. James People
Compare office single the defendant entered a 447, 561 where 1135], P.2d Rptr. The court held separate three offices. separate and building burglarized Penal Code section was not proscribed by for each offense punishment The same is true here. the victims had no common interest. 654 since a separate objective was See launched complete, After the first burglary truck to (the safe) from the victim and stole the to take more property the car here had nothing this second The owner of accomplish objective. the facts of Comparing in common with the burglarized premises. us, it makes no sense to hold the from taking James with those before from an office and two offices is more than a separate culpable taking the street.
The intent truck is intent formed obviously to take the a separate and discovered the safe. The after See the office burglarized building time, first car theft were separated place the later later, it victim. Had the second occurred a would be more day discernible but it is nonetheless a course of conduct. easily separate evidence decision. supports judge’s
This is also consistent with the of section interpretation purpose *6 “to insure that the defendant’s will be commensurate with punishment (Neal (1960) 55 his criminal v. State Cal.2d liability.” of California A a 20 criminal who uses stolen 839].) truck who in a is more than one committing burglary certainly culpable a uses obtained vehicle. legally
See next contends the court erred in to state reasons for failing he consecutive sentences. said imposing During hearing, judge believed See was in a of in the crimes. position leadership committing This is an in a aggravating sentencing factor consider appropriate (Cal. Court, 421(a)(5)). Rules of rule Factors in aggravation may (id., 425(b)). in sentences rule No ag- considered consecutive imposing sentence was so no double use of the gravated imposed, impermissible fact is involved. The reasons for consecutive sentences imposing were adequately stated.
Judgment affirmed.
Wiener, J., concurred.
STANIFORTH, J. I respectfully dissent. See with one count of complaint amended charged (truck) count of auto theft
committed on and a second September of plea on the same The evidence taken at occurring day. change entries into the commercial separate burgled discloses two hearing premises.
In the facts of the admitting and auto theft this charges, took Let’s colloquoy place: proceed. well. All Very right. “The Court: See, Mr. wish to enter a to counts 1 and you plea guilty which is 10851; violation of Penal Code 459 and Vehicle Code is that correct? See: Yes. “Defendant fact, Are of those two you, guilty charges? Court: Yes, ma’am.
“Defendant See: And what did do that believe makes are you you you “The Court: of those guilty two charges? I entered a and took articles and took a building
“Defendant See: vehicle without the owner’s consent. Tell me what at the Okay. happened time.
“The Court: *7 Oh, at the time? “Defendant See: location; at the Yes. Both counts occurred same is that
“The Court: correct? No, ma’am. See:
“Defendant happened. Tell me what Okay.
“The Court: took office and went to the lady’s I See: Okay. “Defendant typewriters. Honeywell Corporation? This is the
“The Court: Yes, ma’am. See: “Defendant into the building? did you get And how
“The Court: the roof. Through “Defendant See: in to be right You had no the roof. Okay. Through
“The Court: there; is that correct? No, ma’am.
“Defendant: intend to did you the building, when entered And you “The Court: commit theft? Yes, ma’am. See:
“Defendant fact, place; from something took And then you, Court: “The is that correct? Yes. See:
“Defendant that? What was the automobile? What about Okay. Court: “The to pick that place taken was automobile See: “Defendant up. stuff an steal Did you theft. auto an 3 is Count Okay. Court:
“The automobile? Yes, ma’am. See:
“Defendant that one. about me Tell Where? Court: *8 I stole the automobile in El to See: Okay. Cajon go “Defendant back there to the office up pick up equipment. Oh, I see. Okay.
“The Court: Mulvaney: show, Honor, I believe the record will that your “Mr. ‘63, the was a was hot-wired in the El area. Dodge pickup Cajon Mr. See made a full statement the that police he drove that vehicle to the and loaded of Honeywell Corporation up items office equip- ment and them back to the El area. transported Cajon correct, Is that Mr. See? Court: Yes, it ma’am.” From this is clear that both the exchange,
“Mr. See: district deputy and the court a to one attorney accepted plea that consisted of two entries. See left the where a was premises automobile,” in process to “steal an “to back there go pick up office equipment.”
From See’s it is plea, impossible to ascertain whether items were any removed before See left to steal the vehicle to the loot. The transport however, officer’s probation report, recites such a sequence of events. itself, But from the plea the theft of the truck and the burglary charged and pled to are woven into a inextricably transaction. From the single court, face of See’s confession in the truck was stolen for ex- open this press “to the office purpose: pick up equipment.” General contends there Attorney were two separate burglaries However, on 30. this Honeywell September assertion is not borne out either by nor the made pleadings plea or admitted facts. untenable,
Not
is the
only
General’s
but
Attorney
procedural position
the consecutive
cannot be sustained as a matter of
Peo-
sentencing
law.
(1969)
v. Bauer
A.L.R.3d held 1398], separate sentences for and car theft robbery vio- lated Penal Code section at 377: “The stating page Attorney General that the urges separate sentences for and car theft robbery may on the upheld that the was before the theft theory robbery complete of the car began that the theft of the automobile was an after- to the thought original transaction. The fact that one crime is complete before the other commenced technically does not mul- permit
85 an comprising course of conduct is a where there tiple punishment the crimes that one of And the fact transaction. indivisible [Citations.] multiple punishment does not permit afterthought have been an may The case People transaction. is an indivisible where there [Citation.] 393, P.2d 705], 393 551, 556 Cal.Rptr. 61 Cal.2d v. Quinn, supra, [39 car There the is distinguishable. General Attorney the upon by relied conduct and the criminal robbery, the the night occurred before theft was not instant Moreover, in the the evidence an indivisible transaction. in- an but afterthought of the car was show that the theft case does not robbers, the who while ransacking the to the that contrary dicates the in- to the garage, the stolen carrying property house were formed (Italics added.) it.” not during robbery tent to steal the car before if the crimes in Bauer were this case parallel except The facts of Bauer However, midstream to of a interruption robbery car theft. robbery, an exact parallel; the loot and robbers forms carry away steal a car to Bauer court stated at page more emphasize point vividly, to but is a theft is not a crime of violence 378: “The crime of automobile interests, and we are satisfied that the proscription violation of property this offense in the double for punishment precludes punishment against Churchill, case. v. 255 present Cal.App.2d circumstances of the People involved and auto- 312],.. 452 .which [63 it is to the views contrary mobile theft is insofar as disapproved herein.” expressed transaction” weaker on “indivisible case is
The overruled Churchill used it car and Campos’ the case at bench. Churchill stole facts than store department to the Broadway for transportation the following day (credit card) The court theft. entered with intent to commit where he should that his conviction for burglary “Churchill’s argument reasoned: theft of the automobile Campos with a for grand conviction merged merit. Regardless the Penal Code is without section 654 of pursuant of a course of part single the automobile was a of whether the theft of 654 does not pre- in a section burglary, conduct intended to culminate theft because the and the auto of both the burglary vent punishment victims, Mrs. Campos different were committed against offenses 183....) (In (1967) Cal.2d Ford 66 re the Broadway, respectively. counts.” (People of those two sentenced on each Churchill was properly Cal.Rptr. 312].) 452 at (1967) Cal.App.2d p. v. Churchill and car for both the sentence and Churchill’s This reasoning Bauer, v. 1 Cal.3d as a theft were disapproved People supra, Penal Code section 654 violation. *10 (1977) Cal.Rptr.
Nor does
v. James
However, in 19 Cal. 3d is and con point v. People supra, when the Court stated at Supreme to the trary majority reasoning defendant’s conten 119 “A closer is question presented by to 120: pages for his of tion that he cannot be separately punished (count I) and his of Mrs. Kirk robbery Hawkins’ office Congressman (count IV). for multiple punishment inside that Section 654 bars office statute, which violates more than one an indivisible course of conduct defendant’s intent: if all his of in turn on the divisibility depends be punished to one the defendant may fenses were ‘incident objective,’ record we conclude present From the facts once. only [Citations.] Hawkins’ office Mrs. Kirk into pursued Congressman that defendant into silence and her. robbing of her purpose terrorizing for [Fn. with felonious Hawkins’ office His into entry Congressman omitted.] to and which was an ‘incident merely intent thus constituted a burglary It is settled the intended robbery. a means of perpetrating’ [Citation.] for both punished that in circumstances the defendant cannot such ” offenses.... means of per- to and a an incident theft of the car was “merely See’s Sales, (Auto Equity The Auto Equity doctrine the burglary. petrating” 321, 369 (1962) Inc. v. Court 57 Cal.2d Superior for sentence the consecutive eight-month 937]) requires striking P.2d auto theft. 2, 1980, appel- was denied September
A for a petition rehearing denied October Court was the Supreme lant’s for a petition hearing by should be that Bird, J., petition was of the opinion 1980. C. granted.