People v. Jimenez CA3 ( 2016 )

Filed 2/24/16 P. v. Jimenez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
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THE PEOPLE, C078167
Plaintiff and Respondent, (Super. Ct. No. CRF142681)
v.
CHRISTOPHER LEE JIMENEZ,
Defendant and Appellant.
A jury convicted defendant Christopher Lee Jimenez of second degree burglary
(Pen. Code, § 459; count 3),1 possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a); count 4), and vandalism, a misdemeanor (§ 594, subd. (a); count 5).
The jury acquitted defendant of two counts of making criminal threats (§ 422; counts 1 &
1 Undesignated section references are to the Penal Code.
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2). In bifurcated proceedings, the court found a strike prior (§§ 667, subds. (b)-(i),
1170.12) and four prior prison term allegations (§ 667.5, subd. (b)) to be true.
At sentencing, the court imposed an aggregate state prison sentence of six years:
four years for burglary (the midterm of two years doubled for the strike prior); two years
for the prior prison terms (one-year each for two terms and the court struck the other
two); a six-month concurrent term for the drug possession offense (the court reduced the
offense to a misdemeanor pursuant to Proposition 47 [Prop. 47, as approved by voters,
Gen. Elec. (Nov. 4, 2014)]); and a six-month concurrent term for misdemeanor
vandalism.
Defendant appeals. He contends section 654 bars multiple punishment for
misdemeanor vandalism. The People concede. We agree and will modify the judgment,
staying the six-month concurrent term imposed for vandalism pursuant to section 654.
FACTS
About 11:00 p.m. on June 7, 2014, Wayne Ross was headed towards his locked
pickup truck parked in the lot of the home improvement store where he worked when he
noticed defendant inside of it. Ross and his coworker Osbaldo Ochoa started to run
towards the truck and defendant ran away with Ross and Ochoa in pursuit. After
defendant threatened them, defendant ran into a dark field with trees. Ross and Ochoa
decided not to follow. Officer Mark Flatley arrived and released his canine Bolo to
search for defendant. Bolo located defendant, hiding under a tree. Defendant held in his
hand a plastic bindle containing methamphetamine.
Ross returned to his truck and found that the driver’s side window had been
broken. The damage did not exist when Ross parked the truck earlier that day. Ross paid
$130 to have the window replaced.
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DISCUSSION
Defendant contends the imposition of a concurrent sentence for misdemeanor
vandalism violates section 654, which bars multiple punishment. The People state that
they are “forced to agree.” We agree.
Section 654, subdivision (a) provides in relevant part: “An 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.”
“ ‘The proscription against double punishment in section 654 is applicable where
there is a course of conduct which . . . comprises an indivisible transaction punishable
under more than one statute . . . . 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.’
[Citation.] ‘The defendant’s intent and objective are factual questions for the trial court;
[to permit multiple punishments,] there must be evidence to support a finding the
defendant formed a separate intent and objective for each offense for which he was
sentenced. [Citation.]’ [Citation.]” (People v. Coleman (1989) 48 Cal.3d 112, 162; see
People v. Capistrano (2014) 59 Cal.4th 830, 885-886.)
As defendant contends and the People concede, there was not any evidence
presented at trial which showed that defendant vandalized Ross’s truck (broke the
window) for any purpose other than to gain entry into the truck. Thus, we conclude that
the six-month concurrent sentence for misdemeanor vandalism should have been stayed
pursuant to section 654.
DISPOSITION
The judgment is modified by staying the sentence on count 5 (misdemeanor
vandalism) pursuant to section 654. The trial court is directed to prepare an amended
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abstract of judgment and to forward a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
/s/
Blease, J.
We concur:
/s/
Raye, P. J.
/s/
Duarte, J.
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