Filed 5/14/14 P. v. Zimmerman CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059076

v.                                                                       (Super.Ct.No. FSB033212)

RAYMOND LEE ZIMMERMAN,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

         D. Inder Comar, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon,

Jr., Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
       A jury found defendant and appellant Raymond Lee Zimmerman guilty of five

counts of second degree burglary (Pen. Code, § 459; counts 1, 4, 5, 6, 7);1 two counts of

possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); counts 2 &

8); and one count of receiving stolen property (§ 496, subd. (a); count 3). The jury also

found true that defendant had committed counts 4, 5, 6, 7, and 8 while on bail or released

on his own recognizance (former § 12022.1). The jury further found true that defendant

had suffered two prior prison terms (§ 667.5, subd. (b)) and two prior serious or violent

felony strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). As a result,

defendant was sentenced to a total indeterminate term of 50 years to life, plus a

determinate term of four years in state prison.

       Subsequently, pursuant to the Three Strikes Reform Act (the Reform Act), the

trial court vacated defendant’s sentence, finding defendant satisfied the criteria of

section 1170.126, and resentenced defendant to a total determinate term of 18 years

eight months in state prison with a credit of 1,489 days for time served. On appeal,

defendant makes several claims relating to how the trial court imposed his sentence on

the various counts and the calculation of his custody credits. For the reasons explained

below, we will modify defendant’s sentence and direct the superior court clerk to amend

the abstract of judgment. In all other respects, we will affirm the judgment.




       1   All future statutory references are to the Penal Code unless otherwise stated.


                                              2
                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND2

       Between January and March 2002, defendant participated in a string of

commercial burglaries within the cities of Loma Linda, Grand Terrace, San Bernardino,

and Highland.

       A.      January 10, 2002 Incident – Counts 1, 2 and 3

       On January 10, 2002, officers were dispatched to an alarm that occurred at a

restaurant in Grand Terrace. Upon arrival, the business owner informed officers that a

cash register and a credit card swiping machine were stolen. Other officers at the scene

observed a vehicle leave the area of the business and conducted a traffic stop of the

vehicle. Officers noticed a cash register and a credit card swiping machine on the floor

of the vehicle. A search of the vehicle also revealed miscellaneous burglary tools and a

small baggie containing rock cocaine. Defendant, who was a passenger in the vehicle,

and the driver were arrested.

       Defendant was charged with and convicted of second degree burglary (§ 459;

count 1); possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a);

count 2); and receiving stolen property (§ 496, subd. (a); count 3).

       B.       March 3, 2002 Incident – Count 4

       On March 3, 2002, an unknown suspect forced entry into a Subway restaurant in

Loma Linda and stole an external CD-ROM drive from the business’s cash register.


       2   The factual background is taken from the probation officer’s report.


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Through videotape investigation, officers learned defendant was involved in the burglary.

Defendant was subsequently charged with, and convicted of second degree burglary

(§ 459; count 4).

       C.       March 6, 2002 – Count 5

       On March 6, 2002, officers were dispatched to a burglary of a Subway restaurant

in San Bernardino. Upon arrival, the store’s owner informed the officers that a cash

register had been stolen. The officers viewed the store’s videotape surveillance system,

and observed an individual burglarizing the business. Following a subsequent

investigation, the suspect was identified as defendant. Defendant was charged with and

convicted of second degree burglary (§ 459; count 5).

       D.       March 10, 2002 – Count 6

       According to the facts pled in the amended information, on March 10, 2002,

defendant entered a Subway restaurant in San Bernardino with the intent to commit

a larceny and felony.3 Defendant was convicted of second degree burglary (§ 459;

count 6).

       E.       March 21, 2002 – Count 7

       On March 21, 2002, officers were dispatched to a commercial burglary report of a

donut shop in Highland. Unknown suspects had broken in the glass door, entered the

building, and stolen property from therein. Further investigation revealed defendant was




       3    The probation report does not contain a factual background for this burglary.


                                               4
the perpetrator of the offense. Defendant was subsequently charged with and convicted

of second degree burglary (§ 459; count 7).

       F.       March 28, 2002 – Count 8

       On March 28, 2002, deputies conducted a traffic stop of a vehicle driven by

defendant. During a search of the vehicle, officers located large amounts of pry bars, pry

tools, bolt4 cutters, gloves, slim jims, and screwdrivers. Based on information from the

previously reported burglaries, defendant was arrested. Defendant also had in his

possession a controlled substance, to wit, cocaine. Defendant was subsequently charged

with and convicted of possession of a controlled substance (Health & Saf. Code, § 11350,

subd. (a); count 8).

       Additionally, at the time defendant committed counts 4, 5, 6, 7, and 8, defendant

was released from custody on bail or his own recognizance in case No. FSB033212.

       G.       Procedural Background

       On December 6, 2004, following defendant’s convictions and true findings on the

enhancement allegations, defendant was sentenced to a total term of 54 years to life in

state prison.

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act. Among other things, this ballot measure enacted section

1170.126, which permits persons currently serving an indeterminate life term under the

“Three Strikes” law to file a petition in the sentencing court, seeking to be resentenced to


       4    The probation officer’s report erroneously refers to “boat” cutters.


                                                5
a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court

determines, in its discretion, that the defendant meets the criteria of section 1170.126,

subdivision (e), the court may resentence the defendant. (§ 1170.126, subds. (f), (g).)

       Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is

eligible for resentencing if he or she is serving an indeterminate term of life

imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or

subdivision (c) of section 1170.12 “for a conviction of a felony or felonies that are not

defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or

subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).)

       On November 20, 2012, defendant filed a petition for resentencing under section

1170.126.

       The trial court granted the petition on May 10, 2013, finding defendant eligible for

resentencing under section 1170.126. The court resentenced defendant to a total term of

18 years eight months as follows: the upper term of six years on count 1 (January 10

burglary); a consecutive term of one year four months on count 2 (January 10 possession

of a controlled substance); a concurrent term of two years on count 3 (January 10

receiving stolen property); a consecutive term of one year four months on count 4 (March

3 burglary); a consecutive term of one year four months on count 5 (March 6 burglary); a

consecutive term of one year four months on count 6 (March 10 burglary); a consecutive

term of one year four months on count 7 (March 21 burglary); a concurrent term of four




                                              6
years on count 8 (March 285 possession of a controlled substance); two consecutive two-

year terms for the true finding he committed counts 4 and 7 while on bail or released on

his own recognizance; and two consecutive one-year terms for the two prior prison terms.

The court granted defendant a total of 1,489 days of presentence custody credits (993

days actual plus 496 conduct credits) as of February 2, 2005.

                                             II

                                      DISCUSSION

       A.     Sentence for Counts 1 and 3

       Defendant argues that when the trial court resentenced him it erred in failing to

stay execution of the concurrent sentence for the January 10 receiving stolen property

conviction (count 3) pursuant to section 654, because that count arose from the same act

as the January 10 burglary conviction (count 1). The People correctly concede the error.

       Section 654 prohibits multiple punishment for a single act or indivisible course of

conduct. (§ 654, subd. (a); People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza).)

When a defendant is convicted of two offenses that are part of an indivisible course of

conduct, the sentence for one of the offenses must be stayed. (Deloza at pp. 591-592.)

       Whether a course of criminal conduct is divisible allowing multiple punishment

under section 654 depends on whether the defendant had a separate objective for each

offense. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “If all of the crimes were

merely incidental to, or were the means of accomplishing or facilitating one objective, a

       5
       The probation officer’s report shows this date as March 28, 2002. The first
amended information filed on April, 25, 2003, shows this date as March 29, 2002.


                                             7
defendant may be punished only once.” (People v. Perry (2007) 154 Cal.App.4th 1521,

1525.) In contrast, if the defendant “had several independent criminal objectives, he may

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.”

(Ibid.)

          When there is a temporal or spatial separation between offenses, giving the

defendant time to reflect and renew his or her intent, the defendant’s decision to continue

a course of criminal conduct supports a finding that the defendant entertained multiple

criminal objectives. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1257; People v.

Surdi (1995) 35 Cal.App.4th 685, 689.) This time-for-reflection principle may apply

even when multiple crimes share the same objective. (Kwok, supra, at pp. 1253-1257.)

          Whether a defendant harbored a single intent is a factual question for the trial

court. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The trial court’s determination

will be upheld on appeal if supported by substantial evidence. (People v. Osband (1996)

13 Cal.4th 622, 730-731.)

          With respect to the offenses of burglary and receiving stolen property, where the

charge of receiving stolen property is based on the same theft of property underlying the

burglary charge, both offenses are committed with a single intent and objective, and

punishment for the lesser offense must be stayed under section 654. (People v. Allen

(1999) 21 Cal.4th 846, 864-865; People v. Landis (1996) 51 Cal.App.4th 1247, 1253-

1254.)




                                                8
       Here, defendant was charged with, and convicted of, committing burglary and

receiving stolen property on January 10, 2002. Defendant was a passenger in a car that

police stopped as the car drove from the area of the burglarized business. Items taken

from the business were found in the car along with burglary tools.

       Although the record does not disclose the length of time between the burglary and

defendant’s arrest with the stolen items, a reasonable inference from the probation

officer’s report shows the offenses were separated by a short temporal or spatial time. In

addition, at the time defendant was sentenced in December 2004, the trial court found,

and the prosecutor and defense counsel agreed, that section 654 required that court to stay

the sentence on defendant’s conviction for receiving stolen property (count 3). As such,

we agree with the parties, that under the facts of this case, it appears defendant harbored a

single intent and objective in committing the January 10 burglary (count 1) and the

January 10 receiving stolen property offense (count 3).

       Thus, the execution of the sentence on the receiving stolen property (count 3)

conviction should have been stayed pursuant to section 654.

       B.     Sentence for the On-Bail Enhancement

       Defendant also contends that the trial court, when it resentenced him in May 2013,

erred in imposing two two-year on-bail enhancements, because he was on bail or released

on his own recognizance based on one case prior to committing his subsequent crimes.

He therefore asserts that one of his former section 12022.1 on-bail enhancements should

be stricken. The People correctly concede the error.




                                             9
       Former section 12022.1 provided, in pertinent part: “Any person arrested for a

secondary offense which was alleged to have been committed while that person was

released from custody on a primary offense shall be subject to a penalty enhancement of

an additional two years which shall be served consecutive to any other term imposed by

the court.” (Former § 12022.1, subd. (b).) A “[p]rimary offense” is defined as “a felony

offense for which a person has been released from custody on bail or on his or her own

recognizance prior to the judgment becoming final.” (Id., subd. (a)(1).) A “[s]econdary

offense” is defined as “a felony offense alleged to have been committed while the person

is released from custody for a primary offense.” (Id., subd. (a)(2).)

       The court in People v. Augborne (2002) 104 Cal.App.4th 362 explained that an

on-bail enhancement relates to the nature of the offender, not the nature of the offense,

and accordingly only one on-bail enhancement should be imposed under circumstances

where a defendant was released on bail in one case when he or she commits new

offenses. (Id. at pp. 376-377.) In Augborne, the defendant committed two secondary

offenses while released from custody on one primary offense. The trial court sentenced

the defendant to two former section 12022.1 enhancements for the secondary offenses.

The appellate court concluded that when only one primary offense has been committed

for which the defendant is released on bail, regardless of the number of secondary

offenses that are committed, only one on-bail enhancement can be imposed. (Augborne,

supra, at pp. 375-377.)




                                             10
       Former section 12022.1 has also been interpreted to allow the court to impose two

on-bail enhancements where the defendant commits two primary offenses and two

secondary offenses. (People v. Warinner (1988) 200 Cal.App.3d 1352, 1355-1356.)

Additionally, two on-bail enhancements may be imposed if the defendant commits a

secondary offense while released on a primary offense and then commits another

secondary offense while released on bail on the first secondary offense. (People v.

Mackabee (1989) 214 Cal.App.3d 1250, 1262.) However, a single primary offense will

not support two on-bail enhancements based on the defendant’s commission of two

secondary offenses. (Ibid.)

       Here, defendant was released on bail or on his own recognizance following his

January 10 offenses for burglary, receiving stolen property, and drug possession, which

were charged in case No. FSB033212. Former section 12022.1 enhancements were

alleged as to counts 4 through 8, and the jury found true the on-bail allegations as to each

of those counts. At the first December 6, 2004 sentencing hearing, the trial court struck

three of the five former section 12022.1 on-bail true findings, leaving the true findings as

to counts 4 and 7. At the May 10, 2013 resentencing hearing, the trial court imposed two,

two-year on-bail enhancements as to counts 4 and 7. This, however, was in error.

Defendant committed the underlying offenses (counts 4 and 7) (the secondary offenses)

while he was released for the primary offenses of burglary, receiving stolen property, and

drug possession in case No. FSB033212. Since the former section 12022.1

enhancements were based on bail or release in one case, the trial court was limited to




                                             11
enhancing defendant’s sentence once. We will therefore strike one of the on-bail

enhancements.

       C.     Recalculation of Presentence Custody Credits

       Defendant contends that the trial court erred in failing to recalculate his credits for

actual time served when he was resentenced and his sentence was modified following the

grant of his petition to recall his initial sentence under section 1170.126. Defendant relies

on People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter) to contend that this

modification required the court to calculate the days he spent in custody from December

7, 2004, through May 10, 2013, and to include these days in his abstract of judgment.

       The People respond that defendant is “wrong,” because he was in state prison

custody, accruing credits based on a different scheme, and that actual custody time

accrued while in state prison does not qualify as “presentence” actual time. The People

further argue that Buckhalter is inapposite, because defendant here was not resentenced

as the “‘result of an appellate sentence remand,’” rather “it was modified as a result of the

Reform Act.” The People are mistaken.

       Section 2900.1 provides: “Where a defendant has served any portion of his

sentence under a commitment based upon a judgment which judgment is subsequently

declared invalid or which is modified during the term of imprisonment, such time shall be

credited upon any subsequent sentence he may receive upon a new commitment for the

same criminal act or acts.” (Italics added.)




                                               12
          In explaining the application of section 2900.1, the Supreme Court in Buckhalter

held, “[W]hen a prison term already in progress is modified as the result of an appellate

sentence remand, the sentencing court must recalculate and credit against the modified

sentence all actual time the defendant has already served, whether in jail or prison, and

whether before or since he was originally committed and delivered to prison custody.”

(Buckhalter, supra, 26 Cal.4th at p. 29, italics omitted.) Credit for these days should be

awarded in the new abstract of judgment. (Id. at p. 41.)

          Recently, in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, the

appellate court noted that when a defendant is resentenced under the Reform Act, his or

her sentence is modified; not vacated for a new sentencing. (Id. at p. 1290, fn. 6.) As

such, citing Buckhalter, supra, 26 Cal.4th at p. 23, the court explained, “the trial court

should have recalculated [the defendant’s] actual time in custody, but not custody credits.

[The defendant] was in the custody of the Department of Corrections for the intervening

years; he was not entitled to additional presentence conduct credits.” (Kaulick at p. 1290,

fn. 6.)

          The People erroneously conclude that Buckhalter’s holding is limited to

recalculating actual time in custody only where a modification of sentence occurs as a

result of an appellate remand. The plain language of section 2900.1 requires time already

served to be credited where a judgment “is modified during the term of imprisonment.”

Furthermore, as defendant points out, the court in People v. Saibu (2011) 191

Cal.App.4th 1005 applied the same principles enunciated in Buckhalter “when a trial

court resentences a defendant pursuant to California Rules of Court, rule 4.452.” (Saibu,


                                              13
supra, at p. 1012.) The Saibu court, quoting Buckhalter, supra, 26 Cal.4th at page 41,

noted, “‘the trial court, having modified defendant’s sentence, should have determined all

actual days defendant had spent in custody, whether in jail or prison, and awarded such

credits in the new abstract of judgment.’” (Saibu, supra, at p. 1013.) The Saibu court

therefore directed the trial court to amend the abstract of judgment to include the number

of actual days that the defendant had served in the custody of the Director of the

Department of Corrections and Rehabilitation. (Ibid.)

       Based on the foregoing, we believe that Buckhalter’s reasoning similarly applies

to a modification of a sentence as a result of the Reform Act.

       The trial court here calculated defendant’s credits for time served from January 10,

2002, through December 6, 2004, the date defendant was initially sentenced to state

prison. The court awarded defendant 993 days for actual presentence custody time, plus

496 days presentence conduct credits pursuant to section 4019, for a total of 1,489

presentence credits. When defendant was resentenced on May 10, 2013, the court noted

that, on February 2, 2005, defendant had been granted a total of 1,489 days of

presentence custody credits, and restated the aggregate credits of 1,489. The court,

however, did not calculate defendant’s credits for actual days served in the custody of the

Director of the Department of Corrections and Rehabilitation from December 7, 2004,

through May 10, 2013.

       The trial court’s duty to calculate credits does not subsume this court’s authority to

modify the judgment, however. (§ 1260.) Rather than subject the trial court and the

parties to an unnecessary expense, we exercise our authority to amend the judgment to


                                             14
add the missing days of actual custody credit. (People v. Alford (2010) 180 Cal.App.4th

1463, 1473; § 1260.) Accordingly, defendant is entitled to 1,489 days of presentence

credits (993 actual days, 496 conduct days), plus 3,076 actual days he served in state

prison from December 7, 2004, through May 10, 2013, for a total of 4,565 days of credits

(4,069 actual days and 496 conduct days).6

       D.     Correction of Abstract of Judgment

       Defendant argues that if this court finds his first three contentions unmeritorious,

then his current abstract of judgment must be amended due to several errors. Because we

find the first three claims meritorious and direct the superior court clerk to amend the

abstract of judgment, we need not address defendant’s claims related to correcting the

abstract of judgment.

                                             III

                                      DISPOSITION

       The judgment is modified to (1) stay execution of the sentence imposed on the

receiving stolen property conviction (count 3), and (2) award 4,069 actual days for time

served and 496 conduct credits, for a total credit award of 4,565 days. The superior court

is also directed to strike one on-bail enhancement imposed under former section 12022.1.

In addition, the superior court clerk is directed to prepare an amended abstract of

judgment reflecting the modifications stated in this opinion, and forward a certified copy



       6We note defendant’s calculation is off by one day. Defendant calculated 3,077
days; however, the calculation should be 3,076 days.


                                             15
of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

As modified, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                            RAMIREZ
                                                                                   P. J.
We concur:



McKINSTER
                         J.



KING
                         J.




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