Filed 2/4/15 P. v. Richard CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE



THE PEOPLE,                                                              B251125

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. BA402793)
         v.

TRAVON DION RICHARD,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Leslie A. Swain, Judge. Affirmed in part and reversed in part with directions.
         Law Office of Eileen M. Rice and Eileen M. Rice, under appointment by the Court
of Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       Defendant and appellant, Travon Dion Richard, appeals his conviction for
burglary (2 counts), kidnapping (2 counts), stalking, battery and violation of a protective
order (Pen. Code, §§ 459, 207, 646.9, 243, 273.6).1 He was sentenced to state prison for
a term of five years four months.
       The judgment is affirmed in part and reversed in part.
                                    BACKGROUND
       Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       1. Prosecution evidence.
       Defendant Richard and Catalina R. had a boyfriend-girlfriend relationship for
about 18 months. Near the end of 2011, Catalina unilaterally ended the relationship.
Although she told Richard to stop contacting her, he persisted in calling her on the phone,
showing up at her home, and pursuing her in public.
       In January 2012, Catalina and her infant son were living in a gated apartment
complex near Echo Park. Because Richard continued to harass Catalina, she obtained a
restraining order on January 30, and then a second restraining order in February. Despite
the restraining orders, Richard kept bothering Catalina by calling her on the phone,
knocking on her door and throwing pebbles at her window. One time, he followed her on
the street and into a store. Another time, he harassed her on a public bus and then tried to
grab her purse after they disembarked.
       Despite this harassment, Catalina occasionally relented and allowed Richard inside
her apartment to eat and shower. She felt she had no choice because he seemed to be
homeless. But the building manager told Catalina she couldn’t live there unless Richard
stayed away.
       On September 7, 2012, Catalina was home with her son when Richard appeared at
her door and demanded to be let in. Surreptitiously, Catalina called 911. She did not
want Richard to know she was making the call because she wanted the police to find him

1
       All further references are to the Penal Code unless otherwise specified.

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there and arrest him. Richard manipulated the door knob until he managed to force the
door open and enter the apartment.2 When he gained entry, Richard punched Catalina in
the back of the head, knocking her to the floor. Then he started grabbing some of her
possessions. When she asked him what he was doing, Richard said he needed money.
He took a laptop computer, a house phone and a digital camera, and then walked out of
Catalina’s apartment.
       Catalina was still on the floor when Richard left. She got up and grabbed her son,
who had been crawling around the apartment. Then, about 15 seconds after he left,
Richard came running back into the apartment again, still holding Catalina’s possessions.
He grabbed Catalina and said, “You’re coming with me.” When she refused, he said:
“No. You’re coming with me. You called the cops. You’re coming with me.” When
Catalina pointed out she was barefoot, Richard “grab[bed her] sandals from . . . under the
bed” and said, “Come on. I have your sandals. Let’s go.” Richard pulled Catalina out
the apartment door and forced her down a hallway to the top of a staircase, and then
down a flight of stairs. Catalina, who was still holding her child in her arms, stopped
resisting because she was concerned for her son’s safety. Richard walked them out of the
apartment building. When they reached the back entrance to the apartment complex, they
could hear police sirens. At that point, Richard released Catalina, handed back her laptop
and phone, and ran off with her camera.
       2. Defense evidence.
       Richard’s aunt and cousin testified about his relationship with Catalina.




2
       Catalina testified, “He starts to . . . wiggle the doorknob from side to side coming
in. The door was locked. I had a couple of locks on there. He just was trying to force
the door to come in. I was still on the phone with the cops at the time.” She also testified
Richard “ended up pushing the door in or busting it open, kicking it open. I’m not sure
how . . . he did it, but he got in.”

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                                      CONTENTIONS
       1. Richard’s two entries into Catalina’s apartment constituted only one burglary.
       2. The trial court violated section 654, the prohibition on multiple punishment,
when it sentenced Richard to concurrent prison terms on some counts.
       3. The trial court erred by imposing a consecutive sentence on one of the burglary
convictions.
                                       DISCUSSION
       1. Richard’s two entries constituted two burglaries.
       Richard contends his two entries into Catalina’s apartment constituted only a
single burglary. This claim is meritless.
               a. Legal principles.
       “The crime of burglary consists of an act – unlawful entry – accompanied by the
‘intent to commit grand or petit larceny or any felony.’ (§ 459.) One may be liable for
burglary upon entry with the requisite intent to commit a felony or a theft (whether felony
or misdemeanor), regardless of whether the felony or theft committed is different from
that contemplated at the time of entry, or whether any felony or theft actually is
committed.” (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042, fn. omitted.)
Hence, “the gist of [burglary] is entry with the proscribed intent, and . . . such an entry
constitutes the completed crime of burglary ‘regardless of whether . . . any felony or theft
actually is committed.’ [Citation.]” (People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18.)
       “Commonly, [the burglar’s intent] must be inferred from the circumstances of the
charged offense or offenses. [Citation.] ‘ “While the existence of the specific intent
charged at the time of entering a building is necessary to constitute burglary in order to
sustain a conviction, this element is rarely susceptible of direct proof and must usually be
inferred from all of the facts and circumstances disclosed by the evidence.” [Citation.]’ ”
(People v. Holt (1997) 15 Cal.4th 619, 669.) “ ‘ “When the evidence justifies a
reasonable inference of felonious intent, the verdict may not be disturbed on appeal.
[Citations.]” ’ [Citation.]” (People v. Cain (1995) 10 Cal.4th 1, 47.) A burglar’s
culpable specific intent can include a wide variety of felonies that do not involve

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removing property from the building. (See, e.g., People v. Mason (1960) 54 Cal.2d 164
[entry with intent to commit felonious assault]; People v. Martinez (2002) 95 Cal.App.4th
581 [entry with intent to take a shower using victim’s soap, shampoo and water]; People
v. Rehmeyer (1993) 19 Cal.App.4th 1758 [entry with intent to commit indecent
exposure]; People v. Salemme (1992) 2 Cal.App.4th 775 [entry with intent to sell
fraudulent securities].)
       “Multiple entries into the same residence may constitute multiple burglaries if the
defendant has the requisite intent on each entry.” (2 Witkin, Cal. Crim. Law (4th
ed. (2012) Crimes – Property, § 142, p. 205.) “Under section 459, burglary consists of an
unlawful entry with the intent to commit a felony. Thus, the crime is complete, i.e., one
may be prosecuted and held liable for burglary, upon entry with the requisite intent.
[Citation.] It follows, therefore, that every entry with the requisite intent supports a
separate conviction.” (People v. Washington (1996) 50 Cal.App.4th 568, 578-579
[defendant, who entered apartment twice in one day over course of several hours,
committed two burglaries].)
              b. Discussion.
       Citing In re William S. (1989) 208 Cal.App.3d 313, Richard contends he
committed only a single burglary, despite having entered Catalina’s apartment two times,
because “there was no appreciable amount of time or opportunity for reflection between
the two entries into the apartment. [Catalina] testified that appellant left the apartment,
and he returned through the open door within mere seconds.” William S. held that two
entries into the same house, separated by several hours, constituted two burglaries
because there had been “plenty of time to reflect.” (Id. at p. 317.) This result was based
on People v. Hammon (1987) 191 Cal.App.3d 1084, which had posited a “reasonable
opportunity to reflect” test: “[W]hen there is a pause . . . sufficient to give defendant a
reasonable opportunity to reflect upon his conduct, and the [action by defendant] is
nevertheless renewed, a new and separate crime is committed.” (Id. at p. 1099.) But, as
Richard acknowledges, Hammon was subsequently disapproved in People v. Harrison
(1989) 48 Cal.3d 321, 333, a case in which the defendant was convicted for three counts

                                              5
of violating section 289 (forcible sexual penetration) on the same victim over a seven-to-
ten-minute time span.
       People v. Washington, supra, 50 Cal.App.4th at p. 578, explained how the
Harrison analysis of multiple sexual offenses would apply to the multiple burglary
situation: “[T]he court in Harrison concluded that since crimes of sexual penetration are
complete upon penetration, however slight, multiple penetrations supported multiple
convictions. We point out that the court’s analysis was not based on the sexual nature of
the offenses or the fact that the offenses involved physical acts against people. Rather,
the analysis was dictated solely by the statutory language and the temporal threshold for
establishing guilt, i.e., when the offense is complete for purposes of prosecution.
[Citation.] Thus, we do not find . . . Harrison’s analysis inherently limited to sexual
offenses and consider it proper and appropriate to apply it here.” (Washington, at p. 578.)
       Washington concluded the “concern about absurd results is better resolved under
section 654, which limits the punishment for separate offenses committed during a single
transaction, than by a rule that, in effect, creates the new crime of continuous burglary.”
(People v. Washington, supra, 50 Cal.App.4th at p. 578.) As Washington explained,
William S. “felt obligated to fashion a special test for multiple-entry burglary cases. The
court reasoned that under certain circumstances, allowing separate convictions for every
entry could produce ‘absurd results.’ [Citation.] For example, where ‘a thief reaches into
a window twice attempting, unsuccessfully, to steal the same potted geranium, he could
potentially be convicted of two separate counts.’ [Citation.]” (Id. at p. 575.)
       In the case at bar, there was no danger of an absurd result. As the Attorney
General points out, the trial evidence established that “[t]he first time [Richard] entered
with the intent to steal the victim’s property, and the second time with the intent to
kidnap the victim. Thus, appellant committed separate burglaries because each time he
entered the victim’s apartment, he did so with separate and distinguishable intents and
objectives.” Richard argues the extremely short time between his two entries into
Catalina’s apartment means he did not have time to contemplate committing a different
crime the second time. This argument would have been more convincing if Richard had

                                              6
done something—such as stashing the stolen items right outside Catalina’s door before
going back into her apartment—tending to indicate his initial plan had been to carry out
both a burglary and the kidnappings. To the contrary, however, the evidence shows that
after initially entering Catalina’s apartment to commit theft, he left with the loot but then
had a new idea and re-entered the apartment, still carrying the loot under his arm, in order
to commit the kidnappings. Indeed, Richard acknowledges as much when he states, in a
different connection: “Indeed, appellant’s actions suggested that forcing [Catalina] and
her son to leave the apartment with him was an afterthought.” (Italics added.) We agree.
       We conclude Richard was properly convicted of having committed two burglaries.
       2. Section 654 claims.
       Richard contends the trial court erred by failing to stay the sentences it imposed
for the second burglary, the second kidnapping, the battery, and the violation of a
restraining order because these crimes were all committed with a single intent and
objective. We disagree, except as to the concurrent term imposed on the second burglary
conviction.
              a. Legal principles.
       Section 654, the prohibition against multiple punishment, provides in pertinent
part: “(a) 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.” “ ‘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. If all of the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more than one.’ [Citation.]”
(People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
       “The question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them. [Citations.] ‘We must “view the evidence in a

                                              7
light most favorable to the respondent and presume in support of the [sentencing] order
the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]” ’ ” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.) A trial
court’s finding, even if only implicit, that a series of crimes involved more than one
objective “must be sustained on appeal if supported by substantial evidence.” (People v.
Osband (1996) 13 Cal.4th 622, 730.)
              b. The sentencing hearing.
       At the sentencing hearing the trial court chose the first kidnapping conviction as
the principal term, on which it imposed a mitigated three-year term. The court rejected
the prosecution’s request for an aggravated term, saying California Rules of Court,
rule 4.421(a)(1) (aggravating factor for threat of bodily injury/callousness) was
inapplicable because this had not been a standard kidnapping. Noting that Richard had
waited for Catalina to put her shoes on, the trial court said “there was really very little
violence or serious danger involved,” and it appeared Catalina was not “terribly afraid” of
Richard.
       The trial court then imposed a consecutive term on the first burglary conviction
(1/3 the midterm sentence for an additional term of one year four months), and a
consecutive term on the stalking conviction (1/3 the midterm sentence for an additional
term of one year). This amounted to a total actual sentence of five years four months.
The court then imposed concurrent prison terms for the second burglary, the second
kidnapping, the battery and the violation of a restraining order. It is the imposition of
these concurrent terms that Richard is now challenging.
              c. Discussion.
       Richard contends section 654 applied to all the concurrent sentences because he
had only a single intent and objective in committing these offenses. He argues his “two
entries into [Catalina’s] apartment within a 15-second time period, the act of hitting her
on the head, grabbing her and her young son – all within the context of violating his
restraining order – reflected a continuous course of conduct and intent. Moreover, the


                                               8
battery and violation of protective order were means to an end of effectuating the purpose
of the burglary.”
       However, we agree with the Attorney General that the two kidnappings were
separately punishable because they were crimes of violence against separate victims.
“ ‘[T]he limitations of section 654 do not apply to crimes of violence against multiple
victims.’ ” (People v. Oates (2004) 32 Cal.4th 1048, 1063.) “The multiple victim
exception, simply stated, permits one unstayed sentence per victim of all the violent
crimes the defendant commits incidental to a single criminal intent.” (People v. Garcia
(1995) 32 Cal.App.4th 1756, 1784.)
       We also agree with the Attorney General that the trial court’s implied finding that
the battery and violation of the restraining order convictions were not part of the same
course of conduct as the initial burglary conviction is supported by substantial evidence.
As the prosecutor argued to the jury, Richard’s violation of the restraining order had been
going on ever since February and was not restricted to his conduct on the day of the
kidnappings. And there was evidence Richard punched Catalina for the independent
reason that he was mad at her for calling the police: Catalina testified that when Richard
initially broke into the apartment, he said, “Why did you call the cops on me? I thought
you loved me. Why did you call the cops?” And then he punched her in the head.
       However, we do not agree with the Attorney General regarding the concurrent
sentence for the second burglary conviction. It is apparent Richard committed the second
burglary solely in order to commit the kidnappings. The Attorney General argues it was
proper to sentence Richard for both the second burglary and the kidnappings under the
multiple victim rule. But Richard had already been sentenced for a violent crime against
each victim (Catalina and her son) arising out of the second burglary because the trial
court imposed two kidnapping sentences. Sentencing Richard a second time as to one of
those victims to account for the second burglary constituted double punishment under
section 654. (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 886, disapproved on other
grounds in People v. Oates, supra, 32 Cal.4th at pp. 167-168, fn. 8 [although defendant
could be sentenced for both burglary and robbery because there were two store

                                             9
employees, he could not be additionally sentenced for assaulting the burglary victim:
“Section 654 does . . . preclude the imposition of sentence as to the assault conviction.
That crime was committed during the same course of conduct and against the same
victim as in the case of the aggravated burglary conviction and defendant cannot be
punished for both of those convictions.”].)
       The four-year concurrent term imposed on the count 2 burglary conviction will be
vacated and that sentence will be ordered stayed. (See People v. Sloan (2007) 42 Cal.4th
110, 116 [when section 654 prohibits multiple sentencing for permissible multiple
convictions, “ ‘trial court must stay execution of sentence on the convictions for which
multiple punishment is prohibited’ ”].)
       3. Consecutive terms on kidnapping and burglary were proper.
       Richard contends the trial court erred when it imposed a consecutive term on the
first burglary conviction “because all of appellant’s actions during the incident were part
of one continuous course of conduct.” This claim is meritless.
       California Rules of Court, rule 4.425(a) provides that the relevant criteria affecting
the decision to impose consecutive rather than concurrent sentences includes “[f]acts
relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives
were predominantly independent of each other.” As discussed, ante, there was
substantial evidence showing the first burglary had been carried out in order to commit
the theft of Catalina’s belongings, and was independent of the kidnappings which arose
out of the second burglary.




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                                     DISPOSITION
       The judgment is affirmed in part and reversed in part. The concurrent four-year
sentence imposed on the count 2 burglary conviction is vacated and that sentence is
hereby ordered stayed. In all other respects the judgment is affirmed. The trial court is
directed to prepare and forward to the Department of Corrections and Rehabilitation an
amended abstract of judgment.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EDMON, P. J.

We concur:




       KITCHING, J.




       ALDRICH, J.




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