Opinion
D070550
04-19-2017
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS RAY COWAN, Defendant and Appellant.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE357629) APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed as modified with directions. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Douglas Ray Cowan of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a); count 1), vandalism causing damage over $400 (§ 594, subds. (a), (b)(1); count 2), obtaining personal identifying information with intent to defraud (§ 530.5, subd. (c)(1); counts 3-8), and obtaining personal identifying information of ten or more individuals with intent to defraud (§ 530.5, subd. (c)(3); count 9). The trial court found true allegations that Cowan had a prior identity theft conviction within the meaning of section 530.5, subdivision (c)(2) as to counts 3 through 8, and suffered a prior prison term (§§ 667.5, subd. (b), 668) as well as six probation denial prior convictions (§ 1203, subd. (e)(4)). The court sentenced Cowan to a total prison term of six years and four months, consisting of the four-year midterm for the count 1 robbery conviction, two consecutive eight-month terms for the count 2 vandalism and count 3 identity theft convictions, concurrent two-year terms on the counts 4 through 9 identity theft convictions, and a consecutive one-year term for the prior prison term.
Statutory references are to the Penal Code.
Cowan contends the trial court lessened the People's burden of proof and violated his constitutional rights by instructing the jury that it could consider his flight from the crime scene as consciousness of guilt, where the record assertedly lacked evidence of flight. He further contends the court should have stayed the sentence on the count 2 vandalism under section 654 because it was part of an indivisible course of conduct with the robbery, or, alternatively, it should have run his sentence concurrently with the robbery. We agree with Cowan that section 654 required the court to stay the eight- month sentence on his vandalism conviction, but reject Cowan's claim of instructional error. We therefore modify the judgment and affirm it as modified.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the background facts of Cowan's offenses only to the extent relevant to his limited appellate challenges.
In the early morning of January 16, 2016, taxi driver Abdi Ikar picked Cowan up in San Diego at the direction of his cab company's dispatcher. Cowan, who identified himself to the dispatcher as Donald, loaded 10 to 13 bags into the car and told Ikar to drive to an address about 45 minutes away, where Cowan said his parents lived. While en route, Cowan twice instructed Ikar to change directions, the second time telling Ikar that the address was wrong and they needed to drive down another road: a dark country road with no nearby homes or streetlights. He also asked Ikar questions, including whether his vehicle had surveillance cameras, and told Ikar he was a border patrol officer. Cowan also asked Ikar how much money he had made that night. While driving down the dark road, Ikar became scared and started watching Cowan. He noticed that Cowan had reached down to his suitcase to put on gloves and was holding a red wire in his hands. Ikar tried to call 911, but found there was no cell phone reception. He stopped the car, took his keys and ran away scared for his life. Cowan, holding a very bright flashlight that switched to stun gun mode, initially chased Ikar and at some point demanded Ikar's car keys, but Cowan then returned to the car. After traveling about nine car lengths away from his cab, Ikar stopped running and watched for several minutes as Cowan started damaging the vehicle's interior. He said to Cowan, "You go jail and I go police [sic]." Ikar then ran to the top of a hill where he was able to call 911.
San Diego County Deputy Sheriff Dane Weisner arrived to the location at approximately 4:45 that morning to find Ikar scared and shaking. The deputy called Border Patrol to assist in finding Cowan. Deputy Weisner and Ikar returned to Ikar's vehicle, where the deputy found it had been ransacked and its ignition and steering column damaged. There was no other damage to the vehicle. Two of Ikar's phones kept within a cabinet between the two front seats and his dispatch tablet were missing. Ikar saw "broken plastic and strewn paper and some blood." Deputy Weisner followed a set of footprints to a chain link fence approximately 20 or 30 yards away from Ikar's car. He saw a break in the fence and bags and luggage placed on the other side. The deputy began to search the luggage and found a tablet, which Ikar identified as his property. Ikar told the deputy that after he took his keys and ran away from his car, he told Cowan to "just take your things and leave" and to "never mind about the cab fare."
Deputy Weisner arrested Cowan after border patrol agents using a police dog found him about 30 minutes after they began searching. The agents found Cowan lying on the ground on his back with his hands across his chest and eyes closed, approximately 250 to 275 yards from the car in an area of heavy brush. Deputy Weiser did not need to use force in making the arrest. Cowan did not run from him, and officers did not need to send the police dog after Cowan when they located him. Cowan gave the deputy his name and date of birth when asked. He told the deputy he was homeless.
At trial, the People presented an expert who testified that the damage to Ikar's vehicle's ignition was consistent with an individual attempting to overcome the ignition by force, meaning the person was trying to break it but make the ignition operable to turn and start the vehicle. However, the ignition of Ikar's vehicle ended up destroyed, so the person was not successful in his efforts.
In closing arguments, the prosecutor argued there was both direct and circumstantial evidence of Cowan's intent to steal Ikar's cab and all of the property in it, including the tablet and phones. She argued that Cowan's demand for the keys to Ikar's car also showed his intent to steal the car and all the property inside it, but when Ikar refused to give him the keys, he "tries to take matters into his own hands, using force to first of all try to defeat the ignition, then trying to hot wire it." She argued the damage to the ignition showed Cowan's intent to "force start and then hot wire that vehicle" so as to steal it, not to simply damage the vehicle in anger over being left in the middle of nowhere. The prosecutor argued that the vandalism was shown by Cowan's actions in damaging the vehicle's ignition and wiring, "trying to steal that cab."
More fully, the prosecutor argued: "Moving on to the vandalism count. So in order to prove vandalism, there are two separate elements. First we must prove that the defendant damaged property not his own. First, showing the damage of the property. Once again, it's that ignition. It's those wires, making that vehicle undrivable. While the defendant damages that property, he must do it maliciously. And someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. And I think that's exactly what the defense will tell you in this case. Even if you believe the facts that the defense will tell you, they are going to say, 'he was trying to get back at Mr. Ikar, he wasn't going to steal that cab. There you go, he's intending to annoy Mr. Ikar.' But even if you believe our version of the facts, he's doing a wrongful act. He's trying to steal that cab. No matter which side you believe in this case, no matter which interpretation you believe in this case, he damaged that property maliciously."
In sentencing Cowan, the trial court found without elaboration that the count 2 vandalism was "an independent crime distinct from the robbery in count 1."
DISCUSSION
I. Claim of Instructional Error
Cowan contends the trial court erred when, over his objection and in view of the "complete absence" of evidence of his flight, it instructed the jury with CALCRIM No. 372 that the jury could consider flight as awareness of his guilt. According to Cowan, the evidence merely shows he moved because he was homeless, had been left in the middle of nowhere, and had been told by Ikar to leave. Cowan argues the instruction therefore lessened the prosecution's burden of proof and violated his due process rights under the Fifth, Sixth and Fourteenth Amendments; that the permissive inference created by CALCRIM No. 372—asking the jury to infer from his departure from the disabled cab that he fled the scene, showing consciousness of guilt—violated his due process rights because there was " 'no rational way' the trier of fact could make the 'connection permitted by the inference.' " According to Cowan, the instruction unconstitutionally shifts the burden of proof as "it cannot be said with 'substantial assurance' that guilt is more likely than not to flow from flight." He maintains the error was prejudicial to him and the robbery conviction must be reversed because it cannot be shown beyond a reasonable doubt the jury would have convicted him in the absence of the erroneous instruction. Cowan points to what he asserts is the "highly circumstantial" nature of the case against him and the jury's difficulty in convicting him of robbery, rendering it a close case on the issue of his intent.
The court read CALCRIM No. 372 as follows: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct; however, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
We reject Cowan's claim of instructional error on its premise, namely, that there was a "complete absence" of evidence at trial of his flight, making it "utterly inappropriate" to draw the permissive inference contained in CALCRIM No. 372. A flight instruction is generally proper " ' "where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." [Citations.] " '[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.' " ' " (People v. Cage (2015) 62 Cal.4th 256, 285; People v. Richardson (2008) 43 Cal.4th 959, 1020; § 1127c.) The facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt. (People v. Mason (1991) 52 Cal.3d 909, 941.)
Section 1127c provides: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
Here, the evidence amply warranted a conclusion that Cowan's action in leaving the scene of his crimes evidenced an awareness of guilt. After Ikar had threatened to call police and immediately after Cowan completed his crimes, Cowan took his bags from Ikar's car to the fence, then continued 250 to 275 yards away from the vehicle and got on his back in an area with very rocky mountainous terrain and heavy brush head-high or higher. It took officers with a police dog 30 minutes to find him. That Cowan abandoned his bags to travel to a more remote location where heavy brush would conceal him constitutes ample reason to conclude his departure was under circumstances suggesting the movement was motivated by a consciousness of guilt. (Accord, People v. Cage, supra, 62 Cal.4th at p. 185 [evidence that defendant ran from the scene of his crimes only when an alarm sounded, though he then returned to his apartment where he was later arrested, was sufficient evidence of flight; CALJIC No. 2.52, the predecessor instruction, did not impermissibly reduce the prosecution's burden of proof or violate defendant's constitutional rights].) Cowan's characterization of the evidence is overly narrow, and it ignores the evidence of his crimes against Ikar as well as the reasonable conclusions to be drawn from Cowan's subsequent actions.
Thus, the circumstances here are entirely unlike those in the cases Cowan relies upon in which the high court found insufficient evidence to give a flight instruction. (See People v. Crandell (1988) 46 Cal.3d 833, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Clem (1980) 104 Cal.App.3d 337; People v. Watson (1977) 75 Cal.App.3d 384.) For example, in Crandell, the uncontradicted evidence established that the defendant left the scene of his two murders to accomplish specific tasks, intended to return to dispose of the bodies, and was arrested as he drove back to the scene of the crime. (Crandell, 46 Cal.3d at pp. 869-870.) The evidence showed the defendant did not expect the crimes to become known before his intended return. (Id. at p. 869.) The court concluded a flight instruction was unwarranted absent evidence from which the jury could reasonably infer the defendant left to avoid being observed or arrested. (Ibid.) In Clem, the rape victim fled from the scene, not the defendant. (Clem, 104 Cal.App.3d at pp. 344-345.) In Watson, the defendant was arrested two days after his murder victim was found and miles away from the scene; without more evidence, mere time and distance was not enough to warrant the flight instruction. (Watson, 75 Cal.App.3d at p. 403.) These cases are inapposite.
Cowan concedes that the CALCRIM No. 372 flight instruction is appropriate when there is "actual evidence the defendant fled the scene after the crime was committed." Because there is actual evidence of flight here, the premise of Cowan's challenge to CALCRIM No. 372 fails.
To the extent Cowan maintains that the very nature of the instruction lessened the People's burden of proof or violated his due process rights because one cannot generally conclude guilt is more likely than not to flow from flight, we reject the argument on the same grounds other courts have rejected it. (See People v. Price (2017) 8 Cal.App.5th 409; People v. Paysinger (2009) 174 Cal.App.4th 26; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154.) As both Price and Hernandez Rios point out, the California Supreme Court rejected an analogous challenge to CALCRIM No. 372's predecessor, CALJIC No. 2.52, when the defendant argued the instruction created an unconstitutional permissive inference because it could not be said with substantial assurance the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. (Price, at pp. 455-456; Hernandez Rios, at p. 1159, citing People v. Mendoza (2000) 24 Cal.4th 130, 179-180.) According to Mendoza, " '[a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.' " (People v. Mendoza, at p. 180.) Under that standard, permitting a jury to infer, if it chooses, that a defendant's flight immediately after commission of a crime indicates a consciousness of guilt, does not violate due process. (Ibid.; Hernandez Rios, at p. 1158; Price, at p. 456.)
II. Sentencing Issues
A. Section 654
Cowan contends the trial court erred by imposing the consecutive eight-month term (one-third the midterm) on his count 2 vandalism conviction rather than staying it under section 654. He maintains the evidence shows that within the same brief period of time, he damaged Ikar's car ignition while attempting to steal the car and its contents, and thus the vandalism was part of an indivisible course of conduct with the robbery. Pointing to the People's closing argument theory that he intended to frighten Ikar in order to take his cab and its contents, as well as their expert testimony that the damage to the car's ignition was consistent with an individual seeking to overcome the ignition by force, Cowan argues there is no evidence to show he harbored a separate intent in damaging the ignition, but even if there were, the jury rejected any such interpretation by finding him guilty of robbery.
1. Legal Principles
Section 654 provides in part: "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."
Section 654 precludes multiple punishments where the defendant engages in a single "discrete physical act" and also where he or she engages in a "course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311; see People v. Newman (2015) 238 Cal.App.4th 103, 111-112.) Where a defendant has engaged in a course of conduct encompassing several acts, section 654 will not bar multiple punishment if he or she "entertained multiple criminal objectives which were independent of and not merely incidental to each other." (People v. Beamon (1973) 8 Cal.3d 625, 639; see also Corpening, at p. 311 [only if the court concludes the case involves more than a single act—i.e., a course of conduct—does it consider whether the course of conduct reflects a single intent and objective or multiple intents and objectives]; Newman, at p. 112; People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1288.) " ' " '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.' " ' " (People v. Jackson (2016) 1 Cal.5th 269, 354.) But a course of conduct divisible in time, even if directed to one objective, may give rise to multiple punishments. (Beamon, at p. 639, fn. 11; Kurtenbach, at p. 1289.) " 'This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' " (Kurtenbach, at p. 1289; see also People v. Clair (2011) 197 Cal.App.4th 949, 960.)
"Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson, supra, 1 Cal.5th at p. 354; People v. Capistrano (2014) 59 Cal.4th 830, 886 [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 was sentenced].) We review for substantial evidence the court's implied or express factual finding of whether there was a single criminal act or a course of conduct with a single criminal objective. (See People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113; People v. Coleman (1989) 48 Cal.3d 112, 162.) We view the evidence in the light most favorable to the People and presume in support of the court's order the existence of every fact the trier could reasonably deduce from the evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 627.) Where the relevant facts are undisputed, our review of the court's section 654 ruling is de novo. (People v. Corpening, supra, 2 Cal.5th at p. 312.)
2. Analysis
Here, we conclude imposition of consecutive sentences for the vandalism and robbery lacks evidentiary support. The evidence showed that, having chased Ikar away from his vehicle by instilling fear and threatening him with a stun gun, but failing to obtain Ikar's car keys, Cowan returned to the car and began damaging its ignition. The People's expert testified that the damage indicated Cowan was attempting to overcome the ignition by force so as to steal the car and its contents. When Cowan did not succeed in that endeavor, he took Ikar's phones and dispatch tablet and left with his own bags. There was no other damage to the vehicle. The jury convicted Cowan of robbery for his taking of Ikar's property, on the prosecutor's argument that the required intent "is that when the defendant used force or fear, he intended to deprive the owner of the property or to remove it from the owner's possession for an extended period of time so the owner would be deprived enjoyment of that property."
" 'Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' [Citation.] A robbery conviction also requires that the defendant 'intend to deprive the victim of the property permanently.' " (People v. Corpening, supra, 2 Cal.5th at p. 314, fn. 3.) Felony vandalism is committed when a person maliciously damages or destroys property of another and causes $400 or more in damage. (§ 594, subds. (a)(2) & (3), (b); see People v. Kurtenbach, supra, 204 Cal.App.4th at p. 1282.) The prosecutor argued that Cowan damaged the vehicle maliciously because he did so with the wrongful purpose of stealing it. We conclude that the only reasonable inference to be drawn from the evidence, and the temporal proximity of the damaging of Ikar's ignition and the taking of the property, is that Cowan damaged the car's ignition solely to accomplish the robbery of Ikar's car and its contents. Thus, the vandalism was " 'incident to one objective' " (People v. Kurtenbach, at p. 1288) or " ' "a means toward the objective of the commission of the [robbery]" ' " (ibid.) so as to preclude multiple punishments for the offenses under section 654.
The People maintain that Cowan's separate sentences for vandalism and robbery did not violate section 654 because the crimes were both committed in pursuit of separate objectives and were divisible in time, each an independent basis to uphold the separate sentences. They seek to separate Cowan's act of damaging the car's ignition from his taking of Ikar's phones and dispatch tablet, arguing that Cowan's alternate objective was to destroy the steering column and ignition in frustration having been left without transportation, or simply in exasperation at having failed to bypass the ignition. They argue that "after damaging the cab, [Cowan's] next objective was to deprive Ikar of specific belongings within the cab." They continue: "Thus, even if [Cowan] first sought to damage the cab in order to steal the vehicle, he then intended to steal a tablet and two cell phones. Because [Cowan] had different objectives in accomplishing each of the distinct crimes of vandalism and robbery, the court properly sentenced him for each independent crime." As for their argument about the timing of the offenses, the People argue that even if Cowan acted with one objective, his course of conduct was divisible in that he "first destroyed the ignition, then ransacked the cab, and subsequently left the scene with Ikar's possessions in tow," giving him an opportunity to reflect and renew his intent before committing the next crime, and committing a new and separate crime.
If Cowan had dual independent intents and objectives in damaging Ikar's vehicle and taking the property, the trial court did not articulate them, and we cannot ascertain them from the evidence. Cowan expressed his intent to commit robbery when he exhibited his show of force and application of fear—chasing Ikar with a stun gun and demanding his keys—so as to take Ikar's vehicle and its contents. (See People v. Anderson (2011) 51 Cal.4th 989, 994 [intent required for robbery is the specific intent to deprive the victim of the property permanently, and thus the act of force or intimidation by which the taking is accomplished must be motivated by the intent to steal].) When that effort was unsuccessful, he then returned to the vehicle and sought to disable the ignition in an effort to accomplish the taking, damaging it in the process. The vandalism was committed during an uninterrupted course of conduct for the single purpose of robbing Ikar of his vehicle and its contents, and "[t]he fact that one of the crimes may have been an afterthought does not permit multiple punishment where there is an indivisible transaction." (People v. Bauer (1969) 1 Cal.3d 368, 377; People v. Mitchell (2016) 4 Cal.App.5th 349, 353.) "It has long been recognized that where a defendant is convicted of robbery and other crimes incidental to the robbery such as assault, section 654 precludes punishment for both crimes." (Mitchell, at p. 354, citing in part People v. Medina (1972) 26 Cal.App.3d 809, 824 [assault was means of committing the robbery and incidental to the robbery].) The circumstances here are similar to People v. Guzman (1996) 45 Cal.App.4th 1023, in which a burglary victim gave chase to perpetrators after they stole a motorcycle from his garage and the victim was physically beaten when he tried to get the motorcycle back. (Id. at pp. 1025-1026.) The Court of Appeal held imposition of separate sentences for burglary and robbery was improper as the robbery occurred while the burglary was still in progress. (Id. at p. 1028.) There, preventing the victim from reclaiming his property was part of the same transaction as the original burglary, and the crimes involved the same property. Here, the vandalism was part of the robbery of Ikar's vehicle and possessions and done to facilitate it, similar to the defendants' single objective of motorcycle theft in Guzman. We cannot ascribe a new, separate, intent to commit robbery merely because Cowan was unable to drive the vehicle and so took only the personal property within it.
Nor do we find evidence demonstrating that Cowan's offenses were "temporally separated in such a way as to afford [him the] opportunity to reflect and to renew [his] intent before committing the next [crime] . . ." (People v. Kurtenbach, supra, 204 Cal.App.4th at p. 1289.) This court explained in Kurtenbach that this exception will apply when offenses are separated by days or months. (Ibid.) It may occur when offenses are separated by several hours or even minutes. (See In re William S. (1989) 208 Cal.App.3d 313 [where defendant entered a home, took several items of property and departed through the front door, which he left unlocked, then returned several hours later through the unlocked door and took more items, the appellate court held section 654 did not apply because the crimes "were committed by means of two distinct and different entries, separated both in time and place, and with the intent to steal entirely different property"]; People v. Trotter (1992) 7 Cal.App.4th 363, 367-368 [section 654 not applicable where defendant while driving "turned back, pointed, and shot his weapon" then "resumed driving, paused for about a minute, turned back, and shot again" and "[a]fter another few seconds" fired a third shot, giving him time to reflect and consider his next action and making them three separate acts requiring a separate trigger pull for purposes of section 654]; People v. Louie (2012) 203 Cal.App.4th 388, 399 [15-minute interval between offenses gave defendants sufficient time to reflect and renew their intent].)
Cowan had already formed the intent to rob Ikar of his vehicle and its contents by the time he returned to the vehicle; we cannot reasonably infer that his taking of the same personal items pursuant to that same intent was made after an "opportunity to reflect and to renew his . . . intent . . . ." (Kurtenbach, at p. 1289.) And there is no evidence demonstrating an appreciable separation of time or place in Cowan's act in damaging the ignition and taking the stolen items from within the same interior space. Ikar testified only that when he stopped running, he watched Cowan for several minutes and saw "[Cowan] open two doors back and passenger side[] and start smash my window switch the key started broken everything [sic]." Ikar told Cowan that he was going to call police then ran up the hill to do so. The People point out that Cowan did not need to damage the vehicle to steal the tablet and cell phone; but, as stated, Cowan had already formed the intent to steal those items, as well as the vehicle, when he began damaging the ignition so as to disable it and start the car. B. Consecutive Term on the Count 2 Vandalism
Cowan contends in the alternative to his section 654 argument that because the vandalism and robbery were not independent and distinct offenses but constituted a "single period of aberrant behavior," the court should have run the term for that count concurrently. We need not address the contention, having found merit in his section 654 argument.
DISPOSITION
The judgment is modified to reflect that Cowan's eight-month sentence on the count 2 vandalism conviction is stayed under section 654. The trial court is directed to amend the abstract of judgment accordingly and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. BENKE, J.