1 Filed 5/14/14 P. v. Zimmerman CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. RAYMOND LEE ZIMMERMAN, Defendant and Appellant. E059076 (Super.Ct.No . FSB033212) OPINION

APPEAL from the Superior Court of Sa n 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 th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, An thony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.2 A jury found defendant and appellant Raymond Lee Zimmerman guilty of five counts of second degree burglary (Pen. C ode, § 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 st olen 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 furthe r 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, su bds. (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 Stri kes 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 cal culation of his custody credits . For the reasons explained below, we will modify defendant’s sentence a nd direct the superior court clerk to amend the abstract of judgment. In all othe r respects, we will affirm the judgment.

1 All future statutory references are to the Penal Code unless otherwise stated.3 I FACTUAL AND PROCEDURAL BACKGROUND 2 Between January and March 2002, defe ndant participated in a string of commercial burglaries within th e cities of Loma Linda, Gran d Terrace, San Bernardino, and Highland. A. January 10, 2002 Incident – Counts 1, 2 and 3 On January 10, 2002, officers were disp atched to an alarm that occurred at a restaurant in Grand Terrace. Upon arrival, the business owner info rmed 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 bu siness and conducted a traffic stop of the vehicle. Officers noticed a cash register a nd a credit card swiping machine on the floor of the vehicle. A search of the vehicle also revealed mi scellaneous burglary tools and a small baggie containing rock cocaine. Defe ndant, who was a passenger in the vehicle, and the driver were arrested. Defendant was charged with and conv icted of second degree burglary (§ 459; count 1); possession of a controlled substanc e (Health & Saf. Code, § 11350, subd. (a); count 2); and receiving stolen proper ty (§ 496, subd. (a); count 3). B. March 3, 2002 Incident – Count 4 On March 3, 2002, an unkn own 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.4 Through videotape investigation, officers lear ned defendant was involved in the burglary. Defendant was subsequently ch arged with, and convicted of second degree burglary (§ 459; count 4). C. March 6, 2002 – Count 5 On March 6, 2002, officers were dispatch ed 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 view ed 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 pl ed in the amended information, on March 10, 2002, defendant entered a Subway restaurant in San Bernardino with th e intent to commit a larceny and felony. 3 Defendant was convicted of se cond degree burglary (§ 459; count 6). E. March 21, 2002 – Count 7 On March 21, 2002, officers were dispat ched to a commercial burglary report of a donut shop in Hi ghland. Unknown suspects had brok en 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.5 the perpetrator of the offense. Defendant was subsequently charge d 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, bolt 4 cutters, gloves, slim jims, and screwd rivers. Based on information from the previously reported burglaries , defendant was arrested. Defendant also had in his possession a controlled substance, to wit, coca ine. Defendant was subsequently charged with and convicted of possessi on of a controlled substance (H ealth & 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 ba il or his own recognizance in case No. FSB033212. G. Procedural Background On December 6, 2004, follo wing defendant’s co nvictions 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 pa ssed Proposition 36, also known as the Three Strikes Reform Act. Among other things, this ba llot measure enacted section 1170.126, which permits persons currently se rving an indeterminate life term under the “Three Strikes” law to file a petition in the se ntencing court, seeking to be resentenced to

4 The probation officer’s report err oneously refers to “boat” cutters.6 a determinate term as a s econd striker. (§ 1170.126, subd. (f).) If the trial court determines, in its discretion, that the defe ndant meets the criteria of section 1170.126, subdivision (e), the court may resentence th e 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 fel ony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Sect ion 1192.7.” (§ 1170 .126, subd. (e)(1).) On November 20, 2012, de fendant 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 mont hs on count 4 (March 3 burglary); a consecutive term of one year fo ur months on count 5 (March 6 burglary); a consecutive term of one year four months on count 6 (March 10 burg lary); a consecutive term of one year four months on count 7 (Mar ch 21 burglary); a concurrent term of four7 years on count 8 (March 28 5 possession of a controlled substance); two consecutive twoyear terms for the true finding he committed counts 4 and 7 while on bail or released on his own recognizance; and two consecutive one-y ear 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 cred its) as of February 2, 2005. II DISCUSSION A. Sentence for Counts 1 and 3 Defendant argues that when the trial c ourt resentenced him it erred in failing to stay execution of the concurrent sentence fo r 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 correc tly 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 th e offenses must be stayed. ( Deloza at pp. 591-592.) Whether a course of criminal conduct is divisible allowing multiple punishment under section 654 depe nds on whether the defendant ha d 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 facilita ting one objective, a

5 The probation officer’s report shows th is date as March 28, 2002. The first amended information filed on April, 25, 20 03, shows this date as March 29, 2002.8 defendant may be puni shed only once.” ( People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) In contrast, if the de fendant “had several independent criminal objectives, he may be punished for each crime committed in pur suit 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 spatia l 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 fi nding that the defendan t entertained multiple criminal objectives. ( People v. Kwok (1998) 63 Cal.App.4t h 1236, 1253-1257; People v. Surdi (1995) 35 Cal.App.4th 6 85, 689.) This time-for-refl ection principle may apply even when multiple crimes sh are the same objective. ( Kwok , supra , at pp. 1253-1257.) Whether a defendant harbored a single in tent 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 base d 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.)9 Here, defendant was charged with, a nd 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 th e burglary and defendant’s arrest with the stolen items , a reasonable inference from the probation officer’s report shows the offens es 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 co unsel agreed, that section 654 required that court to stay the sentence on defendant’s conviction for recei ving stolen property (count 3). As such, we agree with the parties, that under the fact s of this case, it appear s defendant harbored a single intent and objective in committing th e January 10 burglary (count 1) and the January 10 receiving stolen prop erty offense (count 3). Thus, the execution of the sentence on th e 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 c ourt, when it resentenced him in May 2013, erred in imposing two two-year on-bail enhanc ements, because he was on bail or released on his own recognizance based on one case prior to committi ng his subsequent crimes. He therefore asserts that one of his former section 12022.1 on-bail enhancements should be stricken. The People co rrectly concede the error.10 Former section 12022.1 provided, in per tinent part: “Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primar y 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 ju dgment becoming final.” ( Id ., subd. (a)(1).) A “[s]econdary offense” is defined as “a fel ony offense alleged to have b een 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 th e nature of the offender, not the nature of the offense, and accordingly only one on-bail enhancemen t 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 on ly one primary offense has been committed for which the defendant is released on ba il, regardless of the number of secondary offenses that are committed, only one on -bail enhancement can be imposed. ( Augborne , supra , at pp. 375-377.)11 Former section 12022.1 has also been interpreted to a llow 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 pr imary offense and then commits another secondary offense while re leased on bail on the first secondary offense. ( People v. Mackabee (1989) 214 Cal.App.3d 1 250, 1262.) However, a single primary offense will not support two on-bail enhancements ba sed 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 burglar y, receiving stolen property, and drug possession, which were charged in case No. FS B033212. 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-b ail true findings, leaving the true findings as to counts 4 and 7. At the Ma y 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 underl ying 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 base d on bail or release in one case, the trial court was limited to12 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 a nd his sentence was modified following the grant of his petition to recall his initial senten ce 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 differe nt scheme, and that actual custody time accrued while in state prison does not qualif y as “presentence” actual time. The People further argue that Buckhalter is inapposite, because defenda nt 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 de fendant has served any portion of his sentence under a commitment based upon a ju dgment 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.)13 In explaining the application of s ection 2900.1, the Supreme Court in Buckhalter held, “[W]hen a prison term already in progre ss 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 alre ady served, whether in jail or prison, and whether before or since he was originally co mmitted 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 cour t explained, “the trial court should have recalculated [the defendant’s] actual time in cust ody, but not custody credits. [The defendant] was in the cu stody of the Department of Co rrections for the intervening years; he was not entitled to additiona l presentence conduct credits.” ( Kaulick at p. 1290, fn. 6.) The People erroneously conclude that Buckhalter ’s holding is limited to recalculating actual time in cust ody only where a modification of sentence occurs as a result of an appellate remand. The plain lang uage 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 Ca lifornia Rules of Court, rule 4.452.” ( Saibu ,14 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 th e 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 serv ed from January 10, 2002, through December 6, 2 004, the date defendant was initially sentenced to state prison. The court awarded defe ndant 993 days for actual presentence custody time, plus 496 days presentence conduct credits pursuan t to section 4019, for a total of 1,489 presentence credits. When defendant was re sentenced 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 defenda nt’s credits for actual days se rved 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 exerci se our authority to amend the judgment to15 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), pl us 3,076 actual days he served in state prison from December 7, 2004, th rough 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 ju dgment must be amended due to several errors. Because we find the first three claims meritorious and di rect the superior court clerk to amend the abstract of judgment, we need not address defendant’s clai ms related to correcting the abstract of judgment. III DISPOSITION The judgment is modified to (1) stay execution of the senten ce imposed on the receiving stolen property conv iction (count 3), and (2) awar d 4,069 actual days for time served and 496 conduct credits, for a total cred it award of 4,565 days. The superior court is also directed to strike one on-bail enha ncement imposed under fo rmer section 12022.1. In addition, the superior court clerk is di rected to prepare an amended abstract of judgment reflecting the modifications stated in this opinion, and forward a certified copy

6 We note defendant’s calculation is off by one day. Defendant calculated 3,077 days; however, the calculati on should be 3,076 days.16 of the amended abstract of judgment to the Department of Correctio ns and Rehabilitation. As modified, the judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J. We concur:

McKINSTER J.

KING J.