APPEAL from a judgment of the Superior Court of Riverside County, Larrie R. Brainard, Judge. (Super. Ct. No. SWF025954)
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
Reversed in part with directions; affirmed in part.
A jury convicted Gabriel Anthony Cardwell of burglary of a Best Buy store by use of an acetylene torch (Pen. Code,*fn1 § 464, count 1), grand theft (§ 487, subd. (a), count 2) and attempting to deter an officer by threat or violence (§ 69, count 3). Cardwell subsequently admitted a strike prior (§ 667, subds. (c), (e)(1)) and a prison prior (§ 667.5, subd. (b)). The trial court sentenced Cardwell to state prison for 16 years four months.
On appeal, Cardwell claims: (1) there was insufficient evidence to support his burglary conviction on count 1 because he did not open or attempt to open, within the meaning of section 464, a "vault, safe, or other secure place" (italics added) using an acetylene torch; (2) the trial court erred in failing sua sponte to instruct on the meaning of the words "other secure place" in section 464; (3) the trial court erred in failing to stay his concurrent sentence on count 2, grand theft, pursuant to section 654 because the grand theft and burglary convictions constituted a single course of conduct; and (4) he should have been awarded six additional days of conduct credit pursuant to section 4019.
As we explain, Cardwell's burglary conviction must be reversed because section 464 unambiguously requires a defendant first be inside "any building" before using an acetylene torch (or similar device, as provided in the statute) to open or attempt to open a "vault, safe, or other secure place" as provided in section 464.
In light of our conclusion on count 1 and the People's agreement with Cardwell that counts 1 and 2 constituted a single course of conduct, if, on remand, Cardwell is convicted for breaking into the Best Buy store, then the trial court should determine which count provides the "longest potential term of imprisonment" under section 654 and sentence Cardwell accordingly. In (re)calculating Cardwell's sentence, the trial court should award Cardwell six additional days of conduct credit pursuant to section 4019, amend Cardwell's abstract of judgment to reflect the proper number of credits and forward the amended abstract to the California Department of Corrections and Rehabilitation.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning of June 3, 2008, police responded to an alarm at a Best Buy store in Murrieta. Police found a large hole cut in a side steel door leading into the store that appeared to have been made by a torch. While investigating, Murrieta Police Officer Sean Waterman testified he heard some faint noises coming from a dirt wash area next to the store. Waterman saw a man nearby dressed in dark clothing and wearing a hooded sweatshirt pushing a shopping cart. After notifying his partner, Waterman approached the man.
As he approached, the man pushing the cart began walking faster. At that point, Waterman announced he was a police officer and ordered the man to stop. Instead, the man pushed the cart over the edge of the cement flood control channel and followed the cart down. A few seconds later, Waterman heard a crashing sound. Waterman looked down the steep walls of the flood control channel, saw the cart on its side with the contents spilled out onto the concrete floor and saw the man running towards the nearby I-15 freeway overpass.
Waterman testified he went down the steep walls of the channel and ordered the man to stop a second time, after again identifying himself as a police officer. As the man ran, Waterman clearly heard him yell, "I have a gun. I'll fucking shoot." Waterman stopped, drew his service revolver and shined a flashlight on the suspect who was about 50 yards away. Waterman also used his hand-held police radio to notify dispatch of the situation and what the suspect had yelled.
Waterman and his partner followed the fleeing suspect. Waterman's partner also heard the suspect threaten Waterman. The two officers methodically searched for the suspect, making sure to proceed slowly out of fear the suspect may try and shoot and kill them.
After searching the flood control channel, the officers came to an open field area where they saw a U-Haul van parked about 100 yards away. Waterman investigated and found the grill area of the van, near the hood, warm to the touch. Waterman surmised the van had been driven within the last hour.
At sunrise, Deputy Sheriff Daniel Tyler found an individual later identified as Cardwell on private property near the freeway. He was behind a fence looking through a pair of binoculars in the direction of the crime scene. When questioned, Cardwell told Deputy Tyler that he was looking at vehicles driving on the freeway. Cardwell also told Deputy ...