Filed 7/28/15 P. v. Jennings CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B254656

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA401298)
         v.

KYLE JENNINGS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Jose
Sandoval, Judge. Modified and affirmed with directions.
         Michael Allen, 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, Jason Tran, Supervising
Deputy Attorney General, and Jonathan M. Krauss, Deputy Attorney General, for Plaintiff
and Respondent.
                                 _________________________________
       Defendant Kyle Jennings appeals from the judgment entered following a jury trial
in which he was convicted of two counts of first degree burglary, one of which the court
later reduced to second degree burglary; three counts of second degree burglary of
vehicles; and one count of receiving stolen property. Defendant contends his sentence
violates Penal Code section 6541 and the trial court miscalculated his credits. We agree
in part with defendant’s section 654 contention and stay the sentence on one of the second
degree burglary convictions. Given the Attorney General’s concession regarding the
miscalculation of presentence credits, we further modify the judgment to reflect the
correct credits.
                                     BACKGROUND
Count 1: burglary of the garage
       About 4:30 a.m. on August 8, 2012, Joseph Augusta entered the gated parking
structure beneath his apartment building and noticed two men inside the apartment
manager’s van. Augusta made eye contact with them and told them to leave. Both men
ran out of the garage. As Augusta walked toward his own car, defendant emerged from
between Augusta’s car and the one next to it. Augusta told defendant to leave.
Defendant complied, but returned while Augusta was speaking with the 911 dispatcher.
Defendant had a towel wrapped around one hand and was extending that arm as if
pointing a gun at Augusta. Augusta drew his own gun and aimed at defendant, who
dropped to the ground, but subsequently fled.
       The lock and security panel for the garage gate had been broken. An unfamiliar
pickup truck had been left in the garage, parked directly behind Augusta’s car.
Counts 2, 3, and 4: burglary of vehicles in the garage
       Maxim Olevsky (count 2), the manager of the apartment building, testified his van
was parked in the garage beneath the apartment building and locked. After the burglary,



       1   Undesignated statutory references are to the Penal Code.


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he discovered the rear window in the van had been broken and several items were missing
from inside the van.
       Naomi Oullette (count 3) testified her car was parked in the garage beneath the
apartment building and locked. After the burglary, the rear window of her car was
broken, the glove box was open and had been ransacked, and items from inside her car
were missing, including the opener for the garage gate.
       Katharine Jacobs (count 4) testified her vehicle was parked in the garage beneath
the apartment building and locked. After the burglary, the sunroof on her vehicle was
pulled upward and identification documents were missing from her car.
Count 9: burglary of storage units in garage
       Pablo Mesminkin testified he used three storage lockers located in front of his
parking place in the garage beneath the apartment building. He always kept them locked.
After the burglary, he found the lockers were open and items from the lockers were
missing.
Recovery of property and count 8 (receiving stolen property)
       Police searched the pickup truck left in the apartment building garage and found
the property taken from Olevsky’s, Oullette’s, and Jacobs’s vehicles and Mesminkin’s
storage lockers. They found receipts in defendant’s name on the front passenger seat.
They also recovered a grey bag containing copper pipes that Gary Sitinsky testified went
missing from the bed of his truck sometime between the evening of August 7 and
morning of August 8, 2012. Sitinsky’s truck had been parked in a secure garage beneath
a different building.
Verdicts and sentencing
       The jury convicted defendant of two counts of first degree burglary (counts 1
and 9), three counts of second degree burglary of vehicles, and one count of receiving
stolen property. The trial court reduced count 9, which pertained to the storage lockers, to
second degree burglary. Defendant admitted allegations he had suffered a prior serious
felony conviction, alleged pursuant to both section 667, subdivision (a)(1) and the “Three


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Strikes” law, and served a prior prison term within the scope of section 667.5, subdivision
(b). It sentenced defendant to an aggregate second strike term of 20 years 8 months,
consisting of 8 years for the first degree burglary of the garage, 5 consecutive subordinate
terms of 16 months apiece for each second degree burglary and the receiving stolen
property count, plus 5 years for the prior serious felony enhancement and 1 year for the
prior prison term enhancement.
                                       DISCUSSION
1.     Application of section 654 to defendant’s burglary convictions
       a.     Proceedings in the trial court
       In her sentencing memorandum and at the sentencing hearing, defense counsel
argued section 654 barred sentencing defendant for both the garage burglary and the
vehicular and storage unit burglaries because they were all committed during a single
course of conduct and with a single intent, i.e., to steal from the cars and storage lockers.
Counsel argued, “[T]here’s no other purpose for him to go into this garage other than to
break into these vehicles and into the storage lockers that were inside the garage.”
       The trial court concluded section 654 was inapplicable due to “the separate nature
of the break-ins.” The court found the case analogous to People v. James (1977) 19
Cal.3d 99 (James)2 and stated, “He broke into the garage[;] inside the garage were the
private property either through vehicles or storage units of separate individuals who had. .
. the fortuitous circumstances that they happened to be parked in the same garage.” The
trial court therefore imposed unstayed consecutive terms for each burglary conviction.
       Defendant contends the trial court erred by failing to stay the terms for all of the
vehicular and storage locker burglaries.




       The court erroneously referred to James as “People v. Torres,” but corrected its
       2
misnomer by means of a nunc pro tunc minute order.


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       b.     Section 654’s limitation on sentencing for multiple offenses
       Section 654, subdivision (a) provides that “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 purpose of section 654 is “to
insure that a defendant’s punishment will be commensurate with his culpability.” (People
v. Perez (1979) 23 Cal.3d 545, 550–551.)
       The statute prohibits punishment for two crimes arising from an indivisible course
of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were
merely incidental to, or were the means of accomplishing or facilitating one objective, a
defendant may be punished only once. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
But if a defendant had separate objectives that “were either (1) consecutive even if similar
or (2) different even if simultaneous,” multiple punishment is permissible, even if the
crimes shared common acts or were parts of an otherwise indivisible course of conduct.
(People v. Britt (2004) 32 Cal.4th 944, 952; Harrison, at p. 335.) In applying section 654,
the defendant’s objectives must not be “parse[d] . . . too finely.” (Britt, at p. 953.)
       Offenses that were committed with a single intent and objective may be punished
separately if they were committed on different occasions. (People v. Kwok (1998)
63 Cal.App.4th 1236, 1253.) Factors often considered in determining the temporal
divisibility of offenses are whether the defendant had an opportunity to reflect upon and
renew his or her intent before committing the next offense and whether each offense
created a new risk of harm. (Id. at p. 1255.)
       The defendant’s intent and objective are factual questions for the trial court, and
we will uphold its ruling on these matters if it is supported by substantial evidence.
(People v. Coleman (1989) 48 Cal.3d 112, 162.)
       Where section 654 applies to several counts, the longest term provided by any of
those counts is the one imposed, while the shorter terms are stayed. (§ 654.)




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       c.     Section 654 requires staying the sentence for one of the second degree
burglary convictions
       As far as the record reveals, defendant’s only intent in breaking into the garage
was to commit theft. “When a defendant is convicted of burglary and the intended felony
underlying the burglary, section 654 prohibits punishment for both crimes.” (People v.
Islas (2012) 210 Cal.App.4th 116, 130 [apartment burglary committed with intent to
falsely imprison residents].) Thus, for example, where a defendant is convicted of both
burglary and theft, where the defendant’s intent upon entry was to commit theft, section
654 requires that punishment be stayed on either the burglary or the theft conviction.
(See, e.g., People v. Cline (1998) 60 Cal.App.4th 1327, 1336.)
       Section 654 does not bar multiple punishment, however, where there are “multiple
break-ins, each with a separate felonious intent,” even though the intent in each instance
is identical, e.g., theft. (People v. Bowman (1989) 210 Cal.App.3d 443, 448.) In
Bowman, the defendant burglarized several buildings and numerous vehicles at an auto
dealership. (Id. at pp. 445–446.) The trial court imposed unstayed sentences for eight
burglary convictions. The appellate court rejected the defendant’s claim that his sentence
violated section 654: “[D]efendant did not commit a single break-in as contended, but
rather committed multiple break-ins, each with a separate felonious intent. While the
felonious intent in each instance was the same, this does not make the various violations
incidental to each other or to one primary criminal objective. Thus, even though the
violations were part of an otherwise indivisible course of conduct in that they occurred
during one night, it was within the trial court’s discretion to impose consecutive
sentences.” (Id. at p. 448.)
       Similarly, in James, supra, 19 Cal.3d 99, the defendant entered three separately
leased offices in a small office building and was convicted of three counts of burglary
based upon his commission of theft in two offices and robbery in the third office. The
Supreme Court rejected James’s contention that he could not be sentenced separately for
the burglary of each office, explaining, “defendant forcibly broke into three different


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rented premises occupied by tenants who had no common interest other than the
fortuitous circumstance that they happened to lease office suites in the same commercial
building. There is no doubt that if the premises had been located in three separate
buildings defendant could have been punished for three separate burglaries; he is not
entitled to two exempt burglaries merely because his victims chose the same landlord. If
the rule were otherwise, a thief who broke into and ransacked every store in a shopping
center under one roof, or every apartment in an apartment building, or every room or suite
in a hotel, could claim immunity for all but one of the burglaries thus perpetrated.
Nothing in the statute or case law on multiple punishment compels such an incongruous
result.” (Id. at p. 119, fn. omitted.)
       Here, defendant’s separate break-ins into each of the three vehicles and the storage
units reflect separate intents to steal from each. Each such entry was separate, divisible
conduct. Defendant had an opportunity to reflect upon and cease his felonious conduct
between each break-in, but he repeatedly chose to break into the next vehicle or locker
until Augusta interrupted him. Defendant’s intent to commit theft from each car and
locker does not make the crimes either a single, indivisible course of conduct or
incidental to one another. Thus, the trial court did not err by failing to stay the sentences
on each second degree burglary conviction.
       The burglary of the garage itself, however, appears to have been committed only
with the intent to break into and steal from cars and storage units, and it was thus merely
the means of accomplishing the other burglaries. Accordingly, the general rule
prohibiting separate punishment of both the burglary and the intended felony underlying
the burglary applies to the burglary of the garage and one of the second degree burglaries.
Because the first degree burglary conviction carried a longer term than any of the second
degree burglary convictions, we modify the judgment by staying punishment on one of
the second degree burglary convictions.




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2.     Calculation of presentence credits
       The trial court calculated defendant’s presentence credits as 543 days for actual
custody and 542 days for conduct credits. Defendant contends, and the Attorney General
agrees, that defendant was in custody for 544 days and is entitled to an equal number of
days of conduct credits. Accordingly, we modify the judgment to reflect the corrected
presentence credits.
                                     DISPOSITION
       The judgment is modified by staying the sentence imposed for count 2, pursuant to
Penal Code section 654. It is further modified with respect to presentence credits:
defendant is entitled to a total of 1088 days, consisting of 544 days for actual custody and
544 days for conduct credits. As modified, the judgment is affirmed. The trial court is
directed to issue an amended abstract of judgment reflecting the stay of sentence for
count 2, the new aggregate sentence of 19 years 4 months, and the corrected credit award.
       NOT TO BE PUBLISHED.


                                                 MOOR, J.*
We concur:


       ROTHSCHILD, P. J.


       CHANEY, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



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