Super. Ct. Nos. SF108337A, SF110810A
The opinion of the court was delivered by: Raye , P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The trial court granted a prosecution motion to consolidate case number SF108337A (alleging receiving a stolen checkbook in April 2008) and case number SF110810A (alleging receiving a stolen Home Depot credit card, the use of the credit card, and the commercial burglary of a Home Depot on January 25, 2009). A jury acquitted defendant Kristopher Aaron Furgison of the 2008 offense and convicted him of the three 2009 offenses. The trial court subsequently sustained allegations that defendant had a prior "serious" felony conviction for first degree burglary, for which defendant had served a prior prison term. In pertinent part, the trial court sentenced defendant to the upper term for the burglary with a concurrent term for receiving the stolen credit card; it stayed execution of sentence on the use of the stolen credit card because this occurred in the course of the burglary. (Pen. Code, § 654.)*fn1 It also imposed a $1,000 restitution fine. The minute order and abstract of judgment reflect the imposition of a 10 percent administrative surcharge for the collection of the restitution fine (§ 1202.4, subd. (l)), which was not part of the trial court's oral rendition of judgment.
On appeal, defendant contends imposition of sentence for his receiving the stolen credit card should be stayed under section 654 as well because it was part of an indivisible course of conduct with the burglary. He also contends (and the People concede) that his conviction for use of the credit card must be reduced to a misdemeanor because neither the information nor the verdict made any reference to the total value of the purchases defendant made with the card. Finally, he argues we must strike the administrative surcharge on the restitution fine in the order and abstract because it was not part of the trial court's oral rendition of judgment. We shall modify the judgment and remand for resentencing.
The pertinent facts are few. The authorized user of a Home Depot credit card found that it was missing on January 17, 2009. Defendant and his then girlfriend (who later married him) alternately used it at a Home Depot on January 19, 21, 22, and 24 to buy gift cards and merchandise. On January 25 (the date on which the prosecution elected to base the three charges involved in this appeal), defendant attempted to buy over $462 in Home Depot merchandise shortly after 2:00 p.m. (while his then girlfriend was elsewhere in the store using a different credit card to buy gift cards). He twice swiped the stolen card in the machine. The register required authorization for the transaction. Defendant offered a different credit card, resulting in the cancellation of the transaction on the Home Depot card. The other credit card was declined. A loss-prevention employee, who had been keeping defendant under observation, called the police, who arrived during the transaction and arrested defendant.
Defendant testified he had first seen the card during a transaction on January 21 where he was present while his then girlfriend used it. He claimed she gave it to him to use on January 25.
Section 654 precludes multiple punishment where an act or course of conduct violates more than one criminal statute but a defendant has only a single intent and objective; on the other hand, if the evidence discloses multiple independent criminal objectives that were not incidental to each other, each of the objectives may incur punishment even if they share common acts or formed part of an indivisible course of conduct. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) On this issue, we review the trial court's explicit or implicit factual resolutions for substantial evidence. (Id. at pp. 1135-1136; People v. Coleman (1989) 48 Cal.3d 112, 162.) The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
Here, the trial court made the somewhat obscure ruling that receiving the stolen credit card and the burglary "are different matters. The card was from some prior occasion," and then cited People v. Landis (1996) 51 Cal.App.4th 1247 and People v. Bernal (1994) 22 Cal.App.4th 1455 in saying "it is not a 654 problem." The pertinence of the cases is unclear, as both uphold multiple convictions for burglary and theft (or the receipt of stolen property) where the object of the burglary was the theft, noting multiple punishments would not be possible; this is not the factual context of the present case.
Both parties proffer inapt analogies. Defendant relies on People v. Rosenberg (1963) 212 Cal.App.2d 773, 775-776, which held that multiple punishments were not permissible for the use of a forged check and the theft of merchandise obtained with it. While this is the principle that precluded the trial court from imposing sentence for both the burglary and the use of the Home Depot credit card, it does not have any bearing on whether there was a receipt of the stolen credit card independent of the burglary. The People are similarly misfocused. They cite People v. Deloza (1998) 18 Cal.4th 585, 592 and assert the existence of multiple victims allowed multiple punishments. They need to read their authority more closely: this principle applies only to violent offenses. They also assert the undisputed proposition that the offenses of receiving stolen property and burglary have independent objectives in the abstract, the former of which was accomplished ...