People v. Horton, E066649

• Decision Date: 10 August 2018
• Docket Number: E066649
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RONALD NELSON HORTON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. RONALD NELSON HORTON, Defendant and Appellant.

E066649

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

August 10, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. INF1600097)

OPINION

APPEAL from the Superior Court of Riverside County. Jeffrey L. Gunther, Judge. (Retired judge of the Sacramento Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified in part; reversed in part.

Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and N. Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On October 24, 2015, at about 1:00 a.m., an upstairs resident of a condominium unit heard a suspicious pounding noise from the unoccupied unit below, and called 911. Police arrived within five to 10 minutes. The lights were off and police found no evidence of forced entry at either of the two doors. However, a bedroom window had been pried open and there were fresh pry marks on the window frame. Police then saw defendant looking out one of the windows of the unit, and within seconds Ronald Horton (defendant) exited the front door carrying a backpack. In the backpack police found five screwdrivers, a glass cutter, pliers, wire cutters, and two flashlights. Defendant was arrested, and one of the flashlights in defendant's backpack was found to match the description of one reported missing from the unit after the incident. An investigation of the unit found it largely undisturbed, with no evidence that defendant had been squatting. Most of the furniture was still covered with sheets as the unit owner had left it, but the sheet was lifted off of a desk in the living room which had a laptop computer on it. The unit owner's socket wrench set had been taken out of a closet and was laid open on a chair near the desk.

On June 29, 2016, defendant was convicted by a jury of residential burglary (Penal Code,¹ § 459, count 1), misdemeanor receipt of stolen property, i.e., the flashlight (§ 496,subd. (a), count 2), and misdemeanor possession of burglary tools (§ 466, count 3). The sentencing court found true two prior prison term allegations pursuant to section 667.5, subdivision (b), and imposed a sentence of four years for count 1, with enhancements of one year each for two prison priors, to be served consecutively, for a total of six years in prison. Defendant was sentenced to 364 days each for counts 2 and 3, to be served concurrently. Before sentencing, one of the prison prior felonies had been reduced to a misdemeanor pursuant to Proposition 47.² The court also imposed victim restitution of $640 for the broken window, a felony restitution fine of $5,400 pursuant to section 1202.4, subdivision (b), and a parole revocation restitution fine of $5,400 as required by section 1202.45. The court ordered the restitution fine suspended and not collected, if at all possible.

II.

DISCUSSION

On appeal, defendant contends that: (1) the trial court should have stayed sentencing on counts 2 and 3 pursuant to section 654; (2) the court improperly enhanced defendant's sentence based on a prison prior for which the underlying felony conviction had been reduced to a misdemeanor by Proposition 47; and, (3) it was error for the courtto instruct the Department of Corrections and Rehabilitation not to collect a $5,400 restitution fine. We agree on all points.

A. Sentencing on Counts 2 and 3 was Improper Pursuant to Section 654

Defendant argues his concurrent sentences for possession of burglary tools and receipt of stolen property should be stayed pursuant to section 654 because the offenses were committed as part of a single act with the same intent and objective as the burglary charge. Section 654, subdivision (a), states: "[I]n no case shall [an] act or omission be punished under more than one provision." The imposition of concurrent sentences is considered a punishment for purposes of section 654. (People v. Jones (2012) 54 Cal.4th 350, 358.) Instead, when sentencing would result in multiple punishment prohibited by section 654, a trial court must stay execution of sentence on those counts. (People v. Correa (2012) 54 Cal.4th 331, 337.) Section 654 has been held to apply to separate criminal acts which are part of an indivisible course of conduct committed in furtherance of the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209 (Latimer), citing Neal v. State of California (1960) 55 Cal.2d 11.) Whether criminal acts are sufficiently indivisible to fall within the scope of section 654 " 'depends on the intent and objective of the actor.' " (Latimer, at p. 1208, italics omitted.) If the offenses were committed in furtherance of one objective, the defendant may be punished for only one of the offenses. (Ibid.) In making a determination that several criminal acts are indivisible, courts look at whether the defendant had time to reflect on one act beforecommitting the next one. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1254-1255 (Kwok).)

An indivisible course of conduct, as well as defendant's intent and objective, are findings of fact for the trial court. (Kwok, supra, 63 Cal.App.4th at pp. 1252-1253; People v. Green (1996) 50 Cal.App.4th 1076, 1085.) We review the trial court's findings for substantial evidence, and presume the existence of every fact reasonably deduced from the evidence in favor of the court's conclusion. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) For separate sentencing to be upheld, a court's finding must be based on evidence of a separate intent and objective for each sentenced offense. (People v. Jackson (2016) 1 Cal.5th 269, 354.) Thus, the question before us is whether the trial court's separate sentencing of defendant for burglary (§ 459), possession of burglary tools (§ 466) and receipt of stolen property (§ 496) is supported by substantial evidence of separate intent. We conclude it was not.

The court made no mention of section 654 at sentencing. However, the court ordered defendant to pay restitution for the broken bedroom window, which had been damaged when it was pried open. Police saw pry marks on the bedroom window of the victim's unit and defendant possessed screwdrivers which may be used to pry open a window. From these facts we infer that the court found defendant intended to use and did use the tools in his backpack to break into the victim's unit.

Moreover, the evidence in this case shows defendant burglarized the unit with the single intent to steal, and that he stole a flashlight during the burglary. Police arrivedsoon after the neighbor called about the pounding noise in the downstairs unit, and defendant was apparently in the process of stealing when he was caught. He looked out the window when the police arrived and then quickly exited the front door with the burglary tools and a stolen flashlight in his possession. In the living room, a desk with a laptop computer which the owner had covered with a sheet was uncovered. Also, a socket wrench set was removed from a closet and was sitting open on a chair near the desk. Although the flashlight was the only stolen item police found on defendant, it is reasonable to infer defendant took it to help him look for other items to steal in the dark unit. These facts reflect defendant's single intent to break into the unit for the purpose of stealing items from the unit.

Section 654 has been used to stay a sentence for section 466 possession of burglary tools under circumstances very similar to this case. In People v. Castillo (1990) 217 Cal.App.3d 1020, a defendant was caught in the act of burglary, and was found to possess the screwdriver used to forcibly enter the property. A jury convicted him of first degree burglary under section 459 and possession of a burglary tool under section 466, and he was sentenced for both offenses concurrently. (Id. at pp. 1022-1023.) On appeal, the People conceded the section 466 sentence should have been stayed pursuant to section 654, and the court agreed. (Id. at p. 1023.) The instant case is virtually indistinguishable on the relevant facts. As in Castillo, defendant was found in possession of the tools used to enter the victim's property for the purpose of committing burglary, and defendant was convicted of both the possession of those tools and burglary.

Case law also supports a stay of sentencing under section 654 for defendant's receipt of stolen property conviction. In People v. Allen (1999) 21 Cal.4th 846, the Supreme Court addressed whether a defendant may be convicted of both burglary and receipt of property stolen during the burglary (§ 496). (Id. at p. 867.) In concluding that the convictions were proper, the court noted that staying the sentence of the section 496 offenses satisfied the requirements of section 654. (Ibid.)

In addition, there are no facts to suggest defendant had any other criminal intent. Police found no evidence defendant was squatting in the unit or that he first entered the home two days earlier as he alleged, and the People's argument in reliance on those allegations is unpersuasive. There also was no division of time or the opportunity for defendant to reflect between offenses, because the acts were all committed within a span of about five to 10 minutes. Thus, the record does not contain substantial evidence to support the trial court's implied finding that defendant had more than one intent and objective in...