People v. Luque CA5 ( 2022 )

Filed 10/25/22 P. v. Luque CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083762
Plaintiff and Respondent,
(Super. Ct. Nos. CRF67253,
v. CRF67307)
DAVID ROBERT LUQUE,
OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant
Appellant.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General,
Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Smith, J. and Snauffer, J.
Defendant David Robert Luque pled guilty to burglary and receiving stolen
property as part of a plea deal. The trial court imposed concurrent sentences. On appeal,
defendant argues his sentence for receiving stolen property should have been stayed
pursuant to Penal Code section 654. 1 We agree and affirm in all other respects.
PROCEDURAL BACKGROUND
The Tuolumne County District Attorney (district attorney) charged defendant with
multiple crimes in two separate matters. This appeal involves sentencing in the
second case (No. CRF67307).
On July 30, 2021, the district attorney filed a complaint (case No. CRF67253)
charging defendant with bringing heroin into a jail (§ 4573). It was further alleged
defendant had suffered one prior strike conviction within the meaning of the
“Three Strikes” law (§§ 667, subd. (b)–(i), 1170.12, subd. (a)–(d)) and six felony
convictions within the meaning of section 1203, subdivision (e)(4).
On August 6, 2021, the district attorney filed a separate complaint (case
No. CRF67307) charging defendant with second degree burglary (§ 459; count 1)
occurring on or about July 27, 2021, and receiving stolen property exceeding $950 in
value (§ 496, subd. (a); count 2) occurring on or about July 29, 2021. Consistent with the
first case, the complaint further alleged that defendant had suffered one prior strike
conviction (§§ 667, subd. (b)–(i), 1170.12, subd. (a)–(d)) and six felony convictions
(§ 1203, subd. (e)(4)).
On August 13, 2021, defendant pled guilty as charged in both cases and admitted
the prior strike in exchange for a referral to drug court. Defendant entered the plea in
hopes he would be accepted into the drug court program, but no promises were made
regarding sentencing or acceptance into the program. Defendant’s acceptance into the
program hinged on the court’s willingness to dismiss the prior strike pursuant to People
1 All further statutory references are to the Penal Code.
2.
v. Superior Court (Romero) (1996) 13 Cal.4th 497. Accordingly, he filed a Romero
motion, but it was denied.
On November 5, 2021, defendant was sentenced to a total aggregate term of
7 years 4 months in both cases. In the first case, he was sentenced to the middle term,
doubled to six years pursuant to the prior strike conviction. In the second case, he was
sentenced in count 1 to one-third the middle term, doubled to 16 months pursuant to the
prior strike conviction to be served consecutive to the term in the first case. In count 2,
he was sentenced to three years to be served concurrent with count 1.
On December 30, 2021, defendant filed a notice of appeal in the first case, which
this court construed to include the second case.
FACTUAL BACKGROUND 2
A. Stipulated Facts
The parties stipulated to the following facts:
On or about July 27, 2021, defendant entered an uninhabited home with the intent
to commit a theft.
On or about July 29, 2021, defendant did possess items that amounted to over
$950 that he knew had been stolen.
B. Additional Facts3
On July 28, 2021,4 a probation officer and sheriff’s deputy searched defendant’s
vehicle and found a weed trimmer, radio, digital camera, acoustic guitar, miter saw, air
compressor, and several ceramic plates with horse scenes on them. Defendant reported
he traded Dorthia Raven four grams of heroin for the stolen property. He said Raven had
2 Defendant’s appeal concerns sentencing in the second case only; therefore, we
restrict our facts to those bearing on that issue.
3 The additional facts are derived from the probation report.
4 The complaint and the stipulated facts indicate defendant was caught with the
property on July 29, 2021, but the probation report lists July 28 as the date.
3.
contacted him the previous day and told him she obtained the property from her aunt’s
house because her uncle had recently passed away and the house was vacant. According
to defendant, they made the exchange that same day.
DISCUSSION
Defendant contends the sentence for receiving stolen property (count 2) should
have been stayed pursuant to section 654 because the crime involved the same property
stolen during the burglary (count 1) and he harbored a single intent in committing the
crimes. We agree the sentence in count 2 should have been stayed.
A. Applicable Law
Section 654, subdivision (a) provides: “An act or omission that is punishable in
different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars a prosecution for
the same act or omission under any other.” When it applies, “the accepted ‘procedure is
to sentence defendant for each count and stay execution of sentence on certain of the
convictions to which section 654 is applicable.’ ” (People v. Jones (2012) 54 Cal.4th
350, 353.)
“Section 654 has long been interpreted to preclude multiple punishments not only
for a single act that violates more than one statute, but for an indivisible course of
conduct.” (People v. Mejia (2017) 9 Cal.App.5th 1036, 1042.) “Whether a course of
criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor.” (Id. at
pp. 1042–1043.) “[I]f all of the offenses were merely incidental to, or were the means of
accomplishing or facilitating one objective, defendant may be found to have harbored a
single intent and therefore may be punished only once.” (People v. Harrison (1989) 48
Cal.3d 321, 335.) “If, on the other hand, defendant harbored ‘multiple criminal
objectives,’ which were independent of and not merely incidental to each other, he may
4.
be punished for each statutory violation committed in pursuit of each objective, ‘even
though the violations shared common acts or were parts of an otherwise indivisible
course of conduct.’ ” (Ibid.)
“Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination.” (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.) Where, as here, the trial court makes no explicit
factual findings with respect to the application of section 654 and does not stay the
sentence, we must affirm the trial court’s determination that section 654 does not apply if
substantial evidence supports its implicit factual findings. (People v. Mejia, supra,
9 Cal.App.5th at p. 1045.) “We review the trial court’s determination in the light most
favorable to the respondent and presume the existence of every fact the trial court could
reasonably deduce from the evidence.” (Jones, at p. 1143.) Section 654’s prohibition
against multiple punishment applies to the execution of concurrent sentences because a
concurrent sentence is considered punishment. (People v. Duff (2010) 50 Cal.4th 787,
796.)
B. Discussion
In the instant case, the complaint in the second case alleged in count 1 that on or
about July 27, 2021, defendant entered an uninhabited house with the intent to commit
larceny or a felony. Defendant pled guilty and stipulated that he “did enter an
uninhabited home with the intent to commit a theft.” With respect to count 2, the
complaint alleged that on or about July 29, 2021, defendant received stolen property “that
had been obtained in a manner constituting theft and extortion, specifically, Echo Weed
Trimmer, air compressor, Dewalt drill, guitar, knowing the property to be so stolen and
obtained.” He pled guilty and stipulated that he “did possess items that amounted to over
$950 that he knew had been stolen.” When the probation officer and sheriff’s deputy
searched his vehicle they found “a new Echo weed trimmer, a Dewalt radio, a black
5.
Nikon digital camera, an acoustic guitar, a Ryobi miter saw, a porter cable air
compressor, and several ceramic plates with horse scenes on them.”
The circumstances here are similar to those in People v. Allen (1999) 21 Cal.4th
846 where the defendant burglarized three homes, stealing jewelry from each of the
homes. In one instance, one home was burglarized between noon and 1:30 p.m., and the
items taken were sold to a secondhand dealer by 1:45 p.m. the same day. In another
instance, adjacent homes were burglarized between 11:00 a.m. and 1:00 p.m., and the
items were sold to a secondhand dealer by 1:20 p.m. the same day. (Id. at p. 849.) The
defendant was convicted of three counts of burglary and two counts of receiving stolen
property involving the jewelry taken in the burglaries. (Id. at p. 850.) The Supreme
Court affirmed the defendant’s convictions of both burglary and receiving stolen
property, but also indicated it approved of the trial court’s stay of execution of sentence
for receiving stolen property. (Id. at pp. 866–867.)
Here, as in Allen, the property taken in the burglary was the same property that
was the basis of the receiving stolen property charge. However, whether defendant could
be punished for both acts depended on his intent in committing the acts. Defendant’s
intent in committing the burglary was to commit a theft. We find there is no evidence, let
alone substantial evidence, in the record supporting the trial court’s implied finding that
defendant had a separate objective when he received the stolen property.
The People argue the offenses were two independent acts because they did not
occur simultaneously or in close temporal proximity to one another; however, while
temporal proximity is a relevant consideration, it is not determinative of whether
defendant harbored a single objective. (People v. Evers (1992) 10 Cal.App.4th 588, 603,
fn. 10.; see People v. Ordonez (1991) 226 Cal.App.3d 1207, 1239 [“It is the defendant’s
intent and objective, not the ‘temporal proximity’ of his crimes, which we examine to
determine whether section 654 applies.”].)
6.
Because substantial evidence does not support the trial court’s implied finding that
defendant harbored a separate intent when he received the stolen property, we conclude
section 654 bars imposition of a concurrent sentence in count 2.
DISPOSITION
The judgment in case No. CRF67307 is modified to stay the sentence in count 2.
The trial court is directed to prepare an amended abstract of judgment and forward copies
to the appropriate entities. As so modified, the judgment is affirmed. The judgment in
case No. CFR67253 is affirmed.
7.