P. v. James



























Filed 1/28/13 P. v. James CA4/3

















>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. DELBERT RAY JAMES, Defendant and Appellant.

G046466 (Super. Ct. No. 10CF0521) O P I N I O N

Appeal from a judgment
of the Superior Court
of Orange County,
Gary S. Paer, Judge. Affirmed in part,
reversed in part and remanded.

William D. Farber, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, William M. Wood and Kathryn Kirschbaum,
Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury found defendant
Delbert James guilty of first degree burglary as charged in count one of the
information, possession of a firearm by a felon as charged in count four,
receiving stolen property (watches) as charged in count five, attempted first
degree burglary as charged in count six, six counts of grand theft (firearm) as
charged in counts seven through 12, and three counts of loitering as charged in
counts 14 through 16. The court
sentenced defendant to state prison for a term of 11 years and eight
months.

In sentencing defendant
on the six counts of grand theft (firearm), the court stayed imposition of
sentence on all six convictions pursuant to Penal Code section 654. (All statutory references are to the Penal
Code.) In his appeal, defendant contends
his six grand theft of firearms convictions constituted a single offense in
violation of section 487, subdivision (d)(2), and that five of the six counts
must be reversed. We note that, despite
the fact defendant was not punished for these six felonies, “grand theft
involving a firearm” is a serious felony under the “Three Strikes” law. (§ 667, subd. (a)(4); § 1192.7, subd.
(c)(26).)

We agree with defendant
that he should have been convicted of only one count of grand theft
(firearm). We reverse five of his six
convictions of grand theft (firearm).

I

FACTS

Mark Graham, an airline
pilot and a Reserve Colonel in the Marine Corps, lives on Silk
Tree Drive in Tustin. On March
4, 2010, he was in New Orleans
for a monthly drill. When he returned
home, many of his possessions were missing, including watches, a coin
collection of “various moneys from around the world,” “a couple thousand
dollars,” a pair of Bose headphones, and his lap top computer. He described six firearms which were also
missing: a Mossberg shotgun was under
his bed in a nylon case; a Ruger Redhawk, a .45-caliber gun and a Broomhandle
Mauser were in the armoire; an Astra Constable was in the drawer by his bed;
and a .357 Smith & Wesson was either in the armoire or bedside table.

Colton Kirwan is a
detective with Tustin Police Department.
After defendant was arrested on March
4, 2010, Kirwan went to a tow yard to examine and photograph the
white Taurus defendant was driving. In
the trunk of the car were the various possessions Graham described that were in
his home before he traveled to New Orleans.

II

DISCUSSION

Defendant contends he
was convicted of six counts of grand theft firearm as charged in counts seven
through 12, and that they constitute only a single offense and five of the six
convictions must be reversed. The Attorney
General concedes “there was no substantial evidence from which the jury could
infer multiple intents or objectives,” but argues the plain language of the
theft of a firearm statute indicates that each firearm theft should constitute
a separate offense.

In People v. Bailey (1961) 55 Cal.2d 514, the defendant was found
guilty of grand theft in unlawfully taking $3,064. The court considered “whether she was guilty
of grand theft or of a series of petty thefts since it appears that she obtained
a number of payments, each less than $200 . . . .” (Id. at
p. 518, fn. omitted.) The >Bailey court stated: “Whether a series of wrongful acts
constitutes a single offense or multiple offenses depends upon the facts of
each case, and a defendant may be properly convicted upon separate counts
charging grand theft from the same person if the evidence shows that the
offenses are separate and distinct and were not committed pursuant to one
intention, one general impulse, and one plan.
[Citation.]” (>Id. at p. 519.)

“Grand theft is theft committed in any of the following
cases: [¶]name=IAB4849E0C5B811DFA35AF969D57EDF33>name=IAB3FBE6BC5B811DFA35AF969D57EDF33>
. . . [¶] (d) When the property taken is any of the
following: [¶] name=IAB4870F0C5B811DFA35AF969D57EDF33>name=IAB3FBE6CC5B811DFA35AF969D57EDF33>name="SP;4be3000003be5">. . . [¶] (2) A firearm.” (§ 487.)
“[T]he singular number includes the plural, and the plural the
singular.” (§ 7, subd. 21.)

We
decline the Attorney General’s invitation to follow the Florida Supreme Court’s
decision in Grappin v. State (Fla. 1984) 450 So.2d 480 (Grappin
), and find defendant’s grand theft of six firearms during a single burglary
may form the basis of six separate grand theft convictions. In Grappin, the court found “the use
of the article ‘a’ [as opposed to “any”] in reference to ‘a firearm’ in [the
statute] clearly shows that the legislature intended to make each firearm a
separate unit of prosecution.” (Grappin, supra, 450 So.2d at p.
482.)

The
Attorney General also cites the Wisconsin Supreme Court in State v. Trawitzki (Wisc. 2001) 244 Wis.2d 523 [628 N.W.2d 801], a
case in which a defendant was charged with 10 theft charges for stealing 10
firearms. Faced with a statute
containing the same language as California’s grand theft statute and another
similar statute to California that the singular includes the plural, the
Wisconsin court held their “legislature’s use of the singular form of the word
‘firearm’ indicates that the legislature intended a separate charge for each
individual firearm.” (>Id. at p. 543, fn. omitted.)

We
also decline to follow the Wisconsin court.
Here the facts disclose a single burglary. We conclude the thefts were committed
pursuant to one general plan. Our
Supreme Court has set forth the rule in People
v. Bailey, supra,> 55 Cal.2d at page 519, and we are bound
to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) As defendant states in his
brief: “If the Legislature wishes to
discourage multiple firearm thefts, it can amend Penal Code section 487 to
state that the theft of each firearm represents a separate offense.”





III

DISPOSITION

The judgment is affirmed
in part, reversed in part and remanded with directions for the clerk of the
court to amend the abstract of judgment to reflect a conviction of only one
count of grand theft (firearm.) A copy
of the amended abstract shall be forwarded to the Department of Corrections and
Rehabilitation. In all other respects,
the judgment is affirmed.







MOORE,
ACTING P. J.



WE CONCUR:







FYBEL, J.







THOMPSON, J.