People v. Jacquez CA2/6

Filed 3/2/16 P. v. Jacquez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 SIX
THE PEOPLE, 2d Crim. No. B259772
(Super. Ct. No. SA087273-02)
Plaintiff and Respondent, (Los Angeles County)
v.
JAMES T. JACQUEZ,
Defendant and Appellant.
James T. Jacquez appeals his sentence following his conviction for grand
theft (Pen. Code, § 487, subd. (a)) and felony vandalism (§ 594, subd. (a)) after a jury
trial.1 In a bifurcated proceeding, the trial court found Jacquez had served a prior prison
term (§ 667.5, subd. (b)) and had a prior serious felony conviction (§§ 211, 1170.12, subd.
(b), 667, subd. (b)-(i)). It granted a "Romero motion" and found "there is significant and
substantial time available without the need to secure additional time with the prior serious
felony." It imposed a two-year sentence for the theft conviction and a consecutive eight-
month term on the vandalism count for an aggregate two-year eight-month sentence. We
conclude the trial court erred by not staying the eight-month term on the vandalism
conviction pursuant to section 654. We reverse and remand for resentencing.
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All statutory references are to the Penal Code.
FACTS
On the evening of May 4, 2015, Paul McCready heard the sound of someone
hitting a hammer on the lock of a gate to the Westside Tires store. He saw Jacquez
throwing tires from the store over a fence to a pickup truck parked outside the store.
Jacquez unsuccessfully tried to get the tires into the "truck bed," but "they were bouncing
everywhere." The tires landed in an alley outside the store. McCready called the police.
William Lopez, the store owner, received a call from the police about "a
possible burglary" at his store. He went to the store, opened the gate, and entered the
business. He saw "four wheels and tires outside [his] property" in the alley next to the
store. He said because the gates were locked there was no way "to wheel the tires off of
the property" into the alley. The tires and wheels were items he had been holding for a
customer inside the tire store. Lopez noticed a yellow ax on his property which did not
belong to him.
The tires were damaged. There were "scuffs" on the "lips" of the wheels.
The repairs cost $900. The lock to the gates of the store was damaged by "hit marks." The
cost to repair that damage was $350.
DISCUSSION
Section 654
Jacquez contends the trial court erred in sentencing by not staying the eight-
month term on his vandalism conviction pursuant to section 654. The People agree. They
are correct.
The trial court imposed an eight-month term on the vandalism count to run
consecutively to the two-year sentence on the theft conviction.
"[S]ection 654 protects against multiple punishment, not multiple
conviction." (People v. Harrison (1989) 48 Cal.3d 321, 335.) Where "there are several
offenses committed during 'a course of conduct deemed to be indivisible in time," section
654 applies to protect the defendant from multiple punishment. (Ibid.) We decide whether
a transaction is indivisible by considering the defendant's "intent and objective," not "the
temporal proximity of his [or her] offenses." (Ibid.) "[I]f all of the offenses were merely
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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."
(Ibid., italics added.)
Here the People's position at trial was that the vandalism occurred as the
means of accomplishing the theft offense. The prosecutor told jurors in her opening
statement, "[Jacques] is charged with stealing tires . . . and he's also charged with
vandalism. The vandalism occurred in the process of stealing the tires. The vandalism
was to the tires, which became damaged in the process of stealing them. And also
vandalism to the gate and the lock that surrounds this property."
In other words, the vandalism was "merely incidental" to the goal of
committing the theft. (People v. Harrison, supra, 48 Cal.3d at p. 335.) A section 654 stay
of the eight-month term on the vandalism count was required. (Ibid.)
DISPOSITION
We reverse and remand for resentencing.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Elden S. Fox, Judge
Superior Court County of Los Angeles
______________________________
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney
General, for Plaintiff and Respondent.
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