Filed 6/13/16 P. v. Ames CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C078611

         v.                                                                      (Super. Ct. No. 14F05255)

LEYTH WOLFGANG AMES,

                   Defendant and Appellant.

         A jury found defendant Leyth Wolfgang Ames guilty of one count of first degree
residential burglary (Pen. Code, § 459),1 one count of receiving stolen property (§ 496,
subd. (a)), and one count of possession of burglary tools (§ 466). The trial court
sentenced defendant to prison for 2 years for first degree residential burglary, 2 years for
receiving stolen property, and 30 days in county jail for possession of burglary tools. The




1        Undesignated statutory references are to the Penal Code.


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trial court stayed execution of defendant’s sentence for receiving stolen property but
ordered his 30-day sentence for possession of burglary tools to run concurrently to the
sentences for the other counts.
         On appeal, defendant contends the trial court erred by not staying execution of his
sentence for possession of burglary tools pursuant to section 654. The People concede
the error. We agree and accept the People’s concession of error. Accordingly, we order
the judgment amended to stay execution of defendant’s sentence on count three --
possession of burglary tools. As amended, the judgment is affirmed.
                    FACTUAL AND PROCEDURAL BACKGROUND
                                              A.
                                    Factual Background
         In July 2014, Nathaniel Whaley and Volker Rademacher were living on
Whitewood Drive in Carmichael, California. Whaley lived in the converted garage while
Rademacher lived in the house. The converted garage and house are separated by a
breezeway. There is a side door within the breezeway that leads into the kitchen of the
house.
         On July 31, 2014, at approximately 1:20 p.m., Rademacher was at work and
Whaley was in his bedroom. At that time, Whaley heard a door in the house open. He
looked through his window and saw two men walk out the side door of the house into the
breezeway and towards the backyard.
         After about 30 seconds, Whaley went to a neighbor’s house to call 911. While
on the phone with the 911 operator, Whaley saw the two men walk out the front door
of the house. Whaley told the 911 operator both of the individuals, one on a bike and
the other on foot, fled down Whitewood Drive in the direction of Robertson Avenue,




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and after the two men reached Robertson Avenue, they turned right toward Garfield
Avenue.
       Sacramento County Deputy Sheriff Renny Rojo responded to the Whitewood
Drive residence. When he arrived, Deputy Rojo went inside and noticed dust rings on a
shelf containing collectible steins,2 which indicated to him some of the steins had been
removed from the collection. He then went into a bedroom and noticed the door had
been forcibly removed from its hinges. Deputy Rojo testified the closet door in the
bedroom was open and it appeared items had been pulled out of the closet and strewn
about on the floor.
       At approximately 1:23 p.m. on July 31, 2014, Fulton-El Camino Park Police
Officer James Brown received a dispatch call regarding the burglary, which was near his
location. As he approached the intersection of Whitney and Garfield Avenues, he saw a
sheriff’s canine unit with its lights and sirens on. Officer Brown followed the canine unit
on Garfield Avenue. As they approached Robertson Avenue, Officer Brown saw a
Caucasian male, later identified as defendant, walking. The canine unit radioed Officer
Brown and asked him to detain defendant.
       When Officer Brown approached defendant, he was walking at a very fast pace,
sweating profusely, and was out of breath. Defendant identified himself as Leyth Ames.
He was carrying a black backpack, and stated he was headed to a friend’s house in Del
Paso Heights, which Officer Brown found odd because Del Paso Heights was far away.
When Officer Brown told defendant he was going to search him, defendant began
looking back and forth across the street and leaning towards the direction of the street.




2    A stein is an ornamental beer mug that is usually sold as a souvenir or collectible.
Rademacher testified he had about half a dozen beer steins.


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Sensing defendant was about to flee, Officer Brown put defendant in a twist-lock control
hold.
        Whaley was driven to defendant’s location where he identified defendant as one of
the individuals who had broken into the Whitewood Drive residence. A search of the
backpack defendant was carrying revealed, among other things, a pair of bolt cutters,
gloves, a screwdriver, pliers, and steins. Rademacher identified the steins in the
backpack as the ones missing from his house.
                                                 B.
                                       Procedural History
        Defendant was charged with one count of first degree residential burglary (§ 459),
one count of receiving stolen property (§ 496, subd. (a)), and one count of possession of
burglary tools (§ 466). Following a jury trial, defendant was found guilty of all three
counts.3 The trial court sentenced defendant to serve the low term of two years in prison
for first degree residential burglary. The court “adopt[ed] the same sentence” for
receiving stolen property but stayed it pursuant to section 654. The court also imposed a
30-day term in county jail for possession of burglary tools. Without explanation, the
court ordered the sentence for this count to run concurrently to the sentence for the other
counts.
        Defendant filed a timely notice of appeal.




3      To find defendant guilty of possessing burglary tools, the jury was required to find
defendant had on his person or in his possession a screwdriver, vise grip pliers, or other
burglary instrument or tool, and had the felonious intent to use the burglary tools to break
or enter into a building. (See § 466.)


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                                      DISCUSSION
       Defendant contends the trial court erred by not staying execution of sentence
for count three -- possession of burglary tools. According to defendant, the execution
of sentence on count three should have been stayed pursuant to section 654 because
all of the offenses with which he was charged were part of an indivisible course of
conduct. The People concede the error. We agree and accept the People’s concession
of error.
       Section 654 prohibits punishment for two offenses arising from a single act or an
indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) It
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. An acquittal or conviction and sentence under any one bars a prosecution
for the same act or omission under any other.” (§ 654.) “[T]he purpose of section 654 ‘is
to insure that a defendant’s punishment will be commensurate with his [or her]
culpability.’ ” (Latimer, supra, 5 Cal.4th at p. 1211.)
       “ ‘ “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. Capistrano (2014) 59 Cal.4th 830, 885 (Capistrano).) “If, on the other hand, in
committing various criminal acts, the perpetrator acted with multiple criminal objectives
that were independent of and not merely incidental to each other, then he [or she] may be
punished for the independent violations committed in pursuit of each objective even




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though the violations were parts of an otherwise indivisible course of conduct.” (People
v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
       “ ‘It is [the] defendant’s intent and objective, not temporal proximity of his [or
her] offenses, which determine whether the transaction is indivisible.’ ” (Capistrano,
supra, 59 Cal.4th at p. 886.) “ ‘ “The defendant’s intent and objectives are factual
questions for the trial court; [to permit multiple punishments,] there must be evidence to
support [the] finding the defendant formed a separate intent and objective for each
offense for which he [or she] was sentenced.” ’ [Citation.]” (Ibid.) We review the trial
court’s determination regarding the applicability of section 654 for substantial evidence,
and presume in support of the court’s conclusion, the existence of every fact the court
could reasonably have deduced from the evidence. (People v. Jones (2002)
103 Cal.App.4th 1139, 1143; see also People v. Osband (1996) 13 Cal.4th 622, 730
[approving substantial evidence standard of review].)
       When section 654 prohibits multiple punishments, the trial court must stay
execution of sentence on the convictions that implicate multiple punishments. (People v.
Correa (2012) 54 Cal.4th 331, 337.) The imposition of concurrent sentences is precluded
by section 654 because under such a sentence, the defendant is deemed to be subjected to
the term of both sentences although they are served simultaneously. (People v. Duff
(2010) 50 Cal.4th 787, 796.)
       We conclude the trial court erred by not staying execution of defendant’s sentence
for possession of burglary tools.4 The trial court’s implicit determination defendant acted



4       As an initial matter, we note the lack of an objection by defendant to the trial
court’s imposition of a concurrent sentence on the possession of burglary tools count
does not constitute forfeiture of the section 654 issue. “It is well settled . . . that the court
acts ‘in excess of its jurisdiction’ and imposes an ‘unauthorized’ sentence when it
erroneously stays or fails to stay execution of a sentence under section 654.” (People v.


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with multiple, independent criminal objectives is not supported by substantial evidence.
The offenses committed by defendant were part of a single, indivisible course of conduct.
There is no evidence in the record to support a finding defendant acted with multiple,
independent criminal objectives in committing the burglary, receiving stolen property,
and possessing burglary tools. On the record before us, it is apparent all of the offenses
for which defendant was sentenced were incident to a single underlying objective -- theft
of items from the Whitewood Drive residence. The tools in the backpack defendant was
found carrying shortly after the burglary was reported to the police, including the bolt
cutters, screwdriver and pliers, were a means of accomplishing or facilitating that
objective. Accordingly, section 654 requires a stay of execution of defendant’s sentence
on count three -- possession of burglary tools. (See People v. Palmore (2000)
79 Cal.App.4th 1290, 1297 [“ ‘If all of the offenses were merely 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’ ”]; People v. Ratcliffe
(1981) 124 Cal.App.3d 808, 817 [“If an offense is committed as a means of committing
another offense, it is generally held that the defendant had one criminal intent or
objective or that his [or her] criminal intent or objective in regard to one of the offenses
was incidental to his [or her] intent in committing the other offense”].)




Scott (1994) 9 Cal.4th 331, 354, fn. 17.) Accordingly, a claim of error under section 654
is not subject to forfeiture principles.


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                                      DISPOSITION
      The judgment is amended to reflect the execution of sentence on count three --
possession of burglary tools -- is stayed pursuant to Penal Code section 654. As
amended, the judgment is affirmed.5



                                                            /s/
                                                HOCH, J.



We concur:



         /s/
BLEASE, Acting P. J.



        /s/
NICHOLSON, J.




5      Because defendant’s sentence on the misdemeanor possession of burglary tools
count is not reflected in the abstract of judgment, no amendment of the abstract is
necessary.


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