People v. See

109 Cal. App. 3d 76, 167 Cal. Rptr. 128, 1980 Cal. App. LEXIS 2143

• Court: California Court of Appeal
• Decided: August 11, 1980
• Docket: Crim. 11190
• Status: Published

Opinions

Opinion

COLOGNE, Acting P. J.

Charles Vernon See appeals his sentence after pleading guilty to second degree burglary (Pen. Code, §§ 459, 460) and unlawful driving or taking an automobile (Veh. Code, § 10851). See was sentenced to prison for consecutive terms, the middle term of two years for the burglary and eight months for the auto theft.

See and another person broke into a business office and stole several thousand dollars worth of office equipment. They removed the stolen items in a friend’s car. They “hot-wired” a truck and returned to the office building to remove a safe they had seen but could not remove by car. When they later opened the safe and found only papers, they abandoned the truck and safe.

The probation report said items found in the apartment where See had been staying “seemed to tie in with” another burglary of the same office and businesses adjacent to it which had been burglarized the same month.

At sentencing the judge said, “And then we have here, essentially, four burglaries plus the stolen car.... Counsel, in my view we have four burglaries. With that record, the man has earned himself time in state prison.”

See had originally been charged with five counts of burglary: the one he pleaded to and four at various dates of the same and other businesses. In an amended complaint, the only burglary count charged was the one he pleaded to plus the auto theft and a count of receiving stolen property which was dismissed as part of the plea bargain.

See contends the judge improperly relied upon the four burglaries no longer charged and unrelated to the current crimes in denying probation. The record shows, however, immediately after the judge made the statement concerning the four burglaries, defense counsel pointed out to him the burglaries were no longer charged. These burglaries were not mentioned again by the judge who gave his reason for denying probation to be the likelihood of See being a danger to others (Cal. Rules of Court, rule 414(b)) based on his long record as a thief. The judge did not base his decision upon any improper considerations.

See contends the court violated Penal Code section 654 by imposing consecutive sentences for the burglary and the auto theft. He contends the auto theft was merely incidental to the single objective of committing the burglary and was involved in a single course of conduct.

“The proscription against double punishment in section 654 is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. [Citations.]” (People v. Bauer (1969) 1 Cal.3d 368, 376 [82 Cal.Rptr. 357, 461 P.2d 637, 37 A.L.R.3d 1398]).

“On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct. [Citations.]” (People v. Perez, 23 Cal.3d 545, 551 [153 Cal.Rptr. 40, 591 P.2d 63].)

Whether there is an indivisible course of conduct is generally a question of fact which will not be overturned if supported by substantial evidence (People v. Ferguson (1969) 1 Cal.App.3d 68, 74-75 [81 Cal.Rptr. 418]).

There are two burglaries involved in this case, one before the truck theft and one after. Although only one burglary was charged, the judge and See recognized this as two distinct offenses and their colloquy at the time of receiving the plea bears this out. We do not have to assume the plea applied to the burglary when the car and the safe were taken, rather, in support of the judge’s finding, we may assume the burglary applied to the first entering which antedated the car theft. Since the first burglary was completed before the truck was taken to effect the second burglary, it was a separate crime and incident to a separate course of conduct.

In Bauer, the Supreme Court so held. “The fact that one crime is technically complete before the other commenced does not permit multiple punishment where there is a course of conduct comprising an indivisible transaction. [Citations.]” (People v. Bauer, supra, 1 Cal.3d 368, 377 [82 Cal.Rptr. 357, 461 P.2d 637, 37 A.L.R.3d 1398].) In Bauer, however, all the acts center around the robbery of certain victims, the burglary, robbery and car theft were at the same time and of the same victims.

Compare Bauer with People v. James (1977) 19 Cal.3d 99 [137 Cal.Rptr. 447, 561 P.2d 1135], where the defendant entered a single office building and burglarized three separate offices. The court held separate punishment for each offense was not proscribed by Penal Code section 654 since the victims had no common interest. The same is true here. After the first burglary was complete, See launched a separate objective to take more property (the safe) from the victim and stole the truck to accomplish this second objective. The owner of the car here had nothing in common with the burglarized premises. Comparing the facts of James with those before us, it makes no sense to hold the taking from two separate offices is more culpable than a taking from an office and the street.

The intent to take the truck is a separate intent obviously formed after See burglarized the office building and discovered the safe. The first burglary and the later car theft were separated in time, place and victim. Had the second burglary occurred a day later, it would be more easily discernible but it is nonetheless a separate course of conduct. The evidence supports the judge’s decision.

This interpretation is also consistent with the purpose of section 654 “to insure that the defendant’s punishment will be commensurate with his criminal liability.” (Neal v. State of California (1960) 55 Cal.2d 11, 20 [9 Cal.Rptr. 607, 357 P.2d 839].) A criminal who uses a stolen truck in committing a burglary is certainly more culpable than one who uses a legally obtained vehicle.

See next contends the court erred in failing to state reasons for imposing consecutive sentences. During the hearing, the judge said he believed See was in a position of leadership in committing the crimes. This is an appropriate factor to consider in aggravating a sentencing (Cal. Rules of Court, rule 421(a)(5)). Factors in aggravation may be considered in imposing consecutive sentences (id., rule 425(b)). No aggravated sentence was imposed, so no impermissible double use of the fact is involved. The reasons for imposing consecutive sentences were adequately stated.

Judgment affirmed.

Wiener, J., concurred.