P. v. Canete
Filed 3/25/13 P. v. Canete CA2/4
NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
RALPH NICHOLAS
CANETE,
Defendant and Appellant.
B234197
(Los Angeles County
Super. Ct. No. SA071133)
APPEAL
from a judgment of the Superior Court of
County, Kathryn A. Solorzano, Judge. Affirmed in part, reversed in part, and
remanded.
Elizabeth A. Missakian,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Louis
W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.
>
Appellant
Ralph Nicholas Canete appeals from a jury verdict finding him guilty of
violation of Penal Code sections 211 and 484e, subdivision (d), respectively.
finding that section 667, subdivision (c)(6) mandated consecutive sentencing
for the felony convictions because the two acts were committed on the same
occasion and arose from the same set of operative facts. We vacated submission and requested
supplemental letter briefing on whether sentencing for the charge under section
484e, subdivision (d), was precluded by section 654, regardless of whether it
is imposed concurrently or consecutively.
We conclude sentencing on both charges is precluded by section 654. We reverse as to sentencing and otherwise
affirm.
On
May 2, 2009, at about 9:45 p.m., Caroline Buermann was walking to
her car when appellant approached her.
Appellant grabbed her, punched her in the face, then continued to strike
her after she fell to the ground.
Appellant seized Buermann’s purse, which contained a wallet, a vintage
camera, and the key to her car. Appellant
then fled on foot. Police arrived and
took a report from Buermann before she was transported to a hospital. While at the hospital, Buermann called the
issuers of a credit card and debit card that were inside the wallet stolen from
her. She discovered that charges already
had been made on the cards and notified police.
Surveillance
video from a fast food restaurant near the scene of the crime showed appellant
using the card to purchase food approximately 20 minutes after the robbery
occurred. After recognizing appellant in
the video footage, police stopped appellant’s car and found Buermann’s key,
wallet, and purse inside. The police
searched appellant’s home and found Buermann’s camera.
A
jury convicted appellant of second degree
robbery (§ 211) and grand theft for acquiring or retaining the account
information of an access card without the cardholder’s consent and with the
intent to use it fraudulently (§ 484e, subd. (d)). He was sentenced to 18 years for robbery and
16 months for grand theft. The trial court found the allegation of a
prior serious felony strike to be true and concluded that it was mandatory that
the sentences for the two current convictions run consecutively. This appeal followed.
Appellant
contends the two charged offenses were committed on the same occasion and
argues the trial court erred in finding that consecutive sentencing was
mandatory under section 667. We vacated
submission and requested additional briefing on the application of section 654
to the two charges brought against appellant.
Because we conclude section 654 precludes sentencing for both charges,
we need not address appellant’s initial claim that consecutive sentencing was
not mandatory.
title="">[2]
Section
654 states that any “act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.†In determining whether section 654 applies,
the ultimate question is whether the defendant’s course of conduct is
divisible. (People v. Correa (2012) 54 Cal.4th 331, 335.) This necessarily involves a consideration of
the intent and objective of the defendant; if all of the chargeable offenses
were incident to a sole objective, then section 654 bars punishment for more
than one of the offenses charged. (
“The purpose of section 654 is to ensure that a defendant’s punishment
will be commensurate with his culpability.â€
(People v. Saffle (1992) 4
Cal.App.4th 434, 438.)
Appellant
was charged with robbery under section 211 and with access card theft under
section 484e. The question before the
jury on the access card count was whether it believed, beyond a reasonable
doubt, that appellant was guilty of “acquiring or retaining the account
information of an access card without the cardholder’s consent and with the
intent to use that information fraudulently,†as stated in section 484e,
subdivision (d).
title="">[3] The jury found appellant guilty of both
charges. During sentencing, the issue of
whether section 654 applied was never raised or discussed. Respondent argues the trial court’s sentencing
of appellant on both counts involved an implicit finding that defendant had
different objectives when committing the two offenses, thus allowing the trial
court to sentence appellant on both convictions. Our Supreme Court has found such a sentencing
determination indicates an implicit finding by the trial court that the accused
held more than one objective in committing the offenses punished. (People
v. Osband (1996) 13 Cal.4th 622, 730-731.) A trial court’s determination that there was
more than one objective in committing multiple offenses is a factual one;
however, this finding must be supported by substantial evidence in order to be
affirmed on appeal. (
Respondent
contends the access card theft occurred at some time after appellant fled from
the scene of the robbery. Respondent
argues appellant had ample opportunity to reflect upon whether to commit the
access card crime after completing the robbery offense and could only form the
requisite intent for the access card theft after locating the credit card in
Buermann’s purse. Therefore, respondent
contends there was a divisible course of conduct leading to the two offenses,
taking this case out of the purview of section 654.
The
record shows that appellant acquired
the access card when he grabbed the purse from Buermann during the
robbery. There is no evidence
distinguishing between the moment when Buermann was robbed and when appellant
acquired the access card, which was held in the wallet taken from Buermann and
later used by appellant. The jury
verdict does not resolve this issue. The
jury found appellant guilty of acquiring or
retaining the card. The prosecution’s
argument to the jury was based on the theory that appellant acquired the card
with the intent to later use it fraudulently.
The prosecutor stated in his opening statement that appellant “took [the
access card] with the intent to use it.â€
The prosecution again referenced the elements of the theft offense in
closing argument, arguing that the actus reus of the offense was satisfied when
appellant “acquired [Buermann’s] card.â€
It cannot be disputed that the necessary intent was formed before
appellant actually used the card
minutes later. (See People v. Smith (1998) 64 Cal.App.4th 1458, 1471 [the crime of
acquiring an access card with intent to use it is “necessarily completedâ€
before the attempt to use it].) We
believe the only reasonable inference to be drawn is that appellant took
Buermann’s purse intending to use whatever was in it, including the access card. Because this comprised one indivisible course
of conduct and the offenses were incident to one objective, section 654 bars
punishment for more than one of these offenses.
(People v. Correa,
Respondent
argues application of section 654 to the facts of this case would effectively
allow one who has committed robbery to then engage in other crimes using the
stolen items with impunity. Respondent
contends appellant would thus have been equally culpable had he thrown out the
access card rather than actually using it fraudulently. We disagree.
Section 484e, subdivision (d), does not require that the access card
information actually be used or that the account of the innocent consumer be charged
or billed. (People v. Molina (2004) 120 Cal.App.4th 507, 516.) Appellant’s actual use of the card to make a
purchase minutes after the robbery and access card theft may be punishable as a
separate offense incident to a distinct objective. (See People
v. Smith, supra, 64 Cal.App.4th
at p. 1471; § 484g.) However, appellant
was not charged with the access card crime for use (§ 484g)
name="_ftnref4" title="">[4] or any other crime regarding its use. Therefore, respondent cannot claim that
applying section 654 to preclude punishment for the offense of
appellant’s impunity for using
it. Respondent’s claim is without merit.
We
conclude there is not substantial
evidence to support the trial court’s implicit finding that appellant held
distinct objectives in committing the two offenses with which he was
charged. Appellant acquired Buermann’s
card with intent to use it when he robbed her of her purse and its contents,
and he was not charged with actual use of the card. Section 654 bars punishment for both
convictions.
The
judgment is reversed as to sentencing, and the case is remanded to the trial
court for resentencing. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EPSTEIN,
P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
name="_ftn1" title="">[1] All further statutory citations are to the Penal Code.
name="_ftn2" title="">[2]
stated in his opening brief that the issue being raised on appeal “is not
whether the consecutive term on [the access card count] was precluded by
section § 654.†However, we requested
additional briefing on that issue so as to avoid possible error upon remand.
