Filed 4/21/15 P. v. Witt CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049414

         v.                                                            (Super. Ct. No. 05CF2664)

JAMES DARRYL WITT,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Thomas
M. Goethals, Judge. Affirmed as modified.
                   David R. Greifinger, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Charles Ragland, Scott C. Taylor, Meredith S. White, and Teresa Torreblanca,
Deputy Attorneys General, for Plaintiff and Respondent.
              James Darryl Witt appeals from a judgment after he pleaded guilty to
conspiracy to commit burglary and grand theft, second degree burglary, grand theft, petty
theft with a prior, assault with a deadly weapon, and battery causing serious bodily
injury, and admitted he inflicted great bodily injury and suffered two prior prison terms.
Witt argues the trial court should have stayed the sentences on four of his convictions and
struck the sentence on a dismissed conviction. The Attorney General agrees with all but
one of Witt’s contentions. We accept the Attorney General’s concessions. We agree
with all but one of Witt’s claims and affirm the judgment as modified.
                                          FACTS
              Because Witt pleaded guilty, we take the facts from the preliminary hearing
transcript. In March 2004, Kevin Okerstrom worked undercover as a loss prevention
officer at Home Depot in Tustin. While in the store, Okerstrom saw Witt take two
expensive faucets, place them in a shopping cart, and cover them with a rug. Okerstrom
thought this was suspicious behavior and followed Witt. Witt gave the cart to another
man, his accomplice, and they separated. Okerstrom followed the accomplice. The
accomplice pushed the cart past the open cash registers and into the parking lot, where
Okerstrom confronted him about the stolen merchandise.
              Okerstrom escorted the accomplice back towards the store as he pushed the
cart. The accomplice spun away from Okerstrom and fled. Okerstrom initially chased
him but stopped pursuant to store policy. Okerstrom returned to the store and called the
police. Okerstrom took the shopping cart to the returns department and secured it so he
could inventory the merchandise later. Okerstrom looked for Witt. He found Witt
leaving the store through the garden department and confronted him just outside the exit.
A witness saw Witt arguing with Okerstrom and watched as Witt threw Okerstrom to the
ground and pounded his head into cement blocks twice before running away.
              When police arrived, they found Okerstrom lying on the ground bleeding
profusely from his head. Okerstrom was transported to a hospital where he received

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11 staples to close a 10-centimeter laceration to his head. It was later determined the
shopping cart contained two expensive faucets, two garbage disposals, an area rug, and
two tool sets. The total value of the stolen items was $1,499.28.
              In May 2009, Witt entered a plea, pursuant to People v. West (1970)
3 Cal.3d 595 (West), and People v. Cruz (1988) 44 Cal.3d 1247 (Cruz), to the following:
conspiracy to commit burglary and grand theft (Pen. Code, §§ 182, subd. (a)(1), 459, 460,
subd. (b), 487, subd. (a); count 1; all further statutory references are to the Pen. Code);
second degree burglary (§§ 459, 460, subd. (b); count 2); grand theft (§ 487, subd. (a);
count 3); petty theft with a prior conviction (§§ 666, 484, subd. (a), 488; count 4); assault
with a deadly weapon (§ 245, subd. (a)(1); count 5); and battery causing serious bodily
injury (§ 243, subd. (d); count 6). Witt admitted he inflicted great bodily injury as to
count 5 (§ 12022.7, subd. (a)). Witt also admitted he suffered two prior prison terms, one
in 1986 and one in 1994. Witt pleaded no contest pursuant to West in exchange for an
agreed upon sentence of four years. The trial court continued his sentencing to allow him
to take care of some medical issues. Witt understood the Cruz waiver meant the trial
court could sentence him to more than four years in prison if he failed to appear at his
sentencing hearing.
              Witt failed to appear at his sentencing hearing. A warrant was issued for
his arrest, but he was not apprehended for almost four years.
              In December 2013, the trial court sentenced Witt to the following:
count 5-the upper term of four years—the court struck the sentence on the
section 12022.7 enhancement; count 1-a concurrent term of two years; count 2-a
concurrent term of two years; count 3-a concurrent term of two years; count 4-a
concurrent term of two years; and count 6-a concurrent term of three years; 1994 prior
prison term-a consecutive one-year term; and 1986 prior prison term-struck. The trial
court explained it deviated from the agreed upon four-year sentence and imposed five
years because Witt absconded for almost four years.

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              In July 2014, Witt’s appellate counsel filed a motion to strike the petty theft
conviction in count 4 because it was a lesser included offense of the grand theft
conviction in count 3. The same month, the trial court granted the motion and ordered
the sentence on count 4 stayed pursuant to section 654.
                                      DISCUSSION
              Relying on section 654, Witt argues the trial court erred because it should
have stayed the sentences on counts 1, 2, 3, and 6 rather than run them concurrent to
count 5. He also argues the court should have struck his sentence on count 4 and not
stayed it because the court dismissed that count. The Attorney General agrees with all
Witt’s contentions except with respect to count 1. We will discuss each contention
below.
Counts 1, 2, and 3
              Witt raises the following arguments: (1) he may not be punished for
count 1, conspiracy to commit burglary and grand theft and the underlying offenses,
count 2, second degree burglary, and count 3, grand theft; (2) he may not be punished for
count 2, second degree burglary, and count 3, grand theft; and (3) he may not be punished
on counts 1, 2, or 3, the theft related offenses, and count 5, assault with a deadly weapon.
The Attorney General agrees with Witt’s first two assertions but not his last. We agree
with the Attorney General that Witt’s first two claims have merit but not his third.
              Section 654, subdivision (a), provides: “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 . . . .” “[S]ection
654 prohibits punishment for two crimes arising from a single indivisible course of
conduct. [Citation.] 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.
[Citation.] If, however, a defendant had several independent criminal objectives, he may

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be punished for each crime committed in pursuit of each objective, even though the
crimes shared common acts or were parts of an otherwise indivisible course of conduct.
[Citation.] 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.
[Citation.]” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
              A trial court violates section 654 when it sentences a defendant for the
conspiracy to commit the crimes and for each of the crimes (In re Cruz (1966) 64 Cal.2d
178, 180-181), unless “the conspiracy has broader or different objectives from the
specific substantive offenses” (People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616).
The Attorney General concedes the only objective of the conspiracy was the burglary and
the grand theft, and thus Witt “may be punished for either the conspiracy or the
underlying offenses, but not both.”
              Additionally, “section 654 has been held to preclude punishment for both
burglary and theft where . . . the burglary is based on an entry with intent to commit that
theft.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) The Attorney General
admits that when Witt entered the store his intent was to commit a theft, and thus he
could not be punished for both burglary and theft. We accept the Attorney General’s
concessions and conclude Witt can be punished for only one of the three counts. Because
counts 1, 2, and 3 all carry a two-year term, we accept the Attorney General’s invitation
to stay the sentences on counts 2 and 3.
Count 5
              That leaves us with the issue of whether Witt could be punished for
count 5, assault with a deadly weapon, and count 1, conspiracy to commit burglary and
grand theft. The parties disagree on this issue.
              People v. Wynn (2010) 184 Cal.App.4th 1210, is instructive. In Wynn, a
loss prevention officer confronted defendant in the parking lot after he left the store
without paying for cigarettes. (Id. at p. 1213.) Defendant threw the cigarettes on the

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ground and claimed he had not taken anything. He took a nunchaku from his pants and
assaulted the officer. (Ibid.) Defendant was convicted of, inter alia, burglary and assault.
(Id. at p. 1214.) The Wynn court rejected defendant’s claim the trial court erred in failing
to stay the sentence on the burglary conviction, stating the evidence supported the trial
court’s finding defendant had “a different objective in committing the burglary than in
committing the assault.” (Id. at p. 1216.) The court explained, “during the assault
[defendant] no longer had the objective to obtain possession of the cigarettes, as shown
by the fact that [defendant] threw the carton of cigarettes on the ground before the assault
and, according to eyewitness testimony, did not attempt to retrieve it.” (Ibid.)
              Like Wynn, Witt had a different objective in committing count 5 than he did
in committing count 1. The evidence demonstrated Witt and his accomplice conspired to
commit burglary and grand theft when they entered the store and stole the merchandise.
The theft was complete when Witt’s accomplice pushed the shopping cart outside the
store. It was not until later, after Okerstrom failed to apprehend the accomplice and
secured the merchandise, that he found Witt leaving Home Depot. When Witt assaulted
Okerstrom, he did not have the merchandise; he was attempting to escape. This evidence
supports the trial court’s implied finding count 1 and count 5 were committed pursuant to
distinct criminal objectives, and a concurrent sentence on count 1 was proper.
              Witt’s reliance on People v. Wiley (1994) 25 Cal.App.4th 159 (Wiley), and
People v. Green (1979) 95 Cal.App.3d 991 (Green), is misplaced because in both cases
defendants had only one objective—to obtain the victims’ money. (Wiley, supra,
25 Cal.App.4th at pp. 162-163; Green, supra, 95 Cal.App.3d at p. 1008.) Here, Witt’s
objective was not to steal the merchandise, he had already passed it off to his accomplice.
In assaulting Okerstrom, his objective was to escape.




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Count 6
              Witt contends the trial court erred in sentencing him to a concurrent
two-year term on count 6 because it occurred during the same course of criminal conduct
as count 5 and the term should be stayed. The Attorney General agrees. Section 654
prohibits multiple punishments when a single act violates multiple statutes. (People v.
Jones (2012) 54 Cal.4th 350, 358.) The Attorney General concedes Witt’s act of bashing
Okerstrom’s head into cement blocks constituted both count 5, assault with a deadly
weapon (§ 245, subd. (a)(1)), and count 6, battery causing serious bodily injury (§ 243,
subd. (d); citing People v. Sloan (2007) 42 Cal.4th 110, 115 [implicitly approving stay of
sentences on §§ 245, subd. (a)(1) & 243, subd. (d), where defendant sentenced of § 273.5,
subd. (e)(1)].) We accept the Attorney General’s concession and order the two-year
sentence on count 6 stayed.
Count 4
              Witt argues the trial court erred in staying and not striking the sentence on
count 4 after the trial court granted his posttrial motion to dismiss count 4 as a lesser
included offense of count 3. The Attorney General agrees.
              “[A] sentence is generally ‘unauthorized’ where it could not lawfully be
imposed under any circumstance in the particular case. Appellate courts are willing to
intervene in the first instance because such error is ‘clear and correctable’ independent of
any factual issues presented by the record at sentencing.” (People v. Scott (1994)
9 Cal.4th 331, 354.)
              Posttrial, Witt moved to dismiss count 4 because it was a lesser included
offense of count 3. Witt also requested the trial court strike the sentence. The trial court
granted Witt’s motion and dismissed count 4, but the court stayed the sentence. That was
error as the court could not impose and stay a sentence on a count the court dismissed.
We must strike the two-year concurrent sentence on count 4.



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                                     DISPOSITION
             We modify Witt’s sentence as follows: (1) The two-year concurrent
sentences on counts 2 and 3, and the three-year concurrent sentence on count 6 are stayed
pursuant to section 654; and (2) the two-year concurrent sentence on count 4 is struck.
              The clerk of the superior court is directed to prepare an amended abstract
of judgment reflecting the modified sentence and to forward a copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation, Division of
Adult Operations. As modified, the judgment is affirmed.




                                                O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




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