No. E066709.

THE PEOPLE, Plaintiff and Respondent, v. ROGER DALE COOK, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Two.

Attorney(s) appearing for the Case

Jeanine G. Strong , under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen A. Kenealy , Acting Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Charles C. Ragland , Scott C. Taylor , and Adrian R. Contreras , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Defendant and appellant Roger Dale Cook was charged by information with residential burglary (Pen. Code,1 § 459, count 1) and the unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a), count 2). The information also alleged that he served three prior prison sentences (Pen. Code, § 667.5, subd. (b)), he had one prior serious felony conviction (Pen. Code, § 667, subd. (a)), and he had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). A jury found defendant guilty of both counts, and he admitted all the prior conviction allegations. Defendant filed a Romero2 motion to dismiss his prior strike conviction, which the court denied. The court sentenced him to the midterm of four years on count 1, doubled pursuant to the strike, one year four months on count 2, plus one year on each of the two prison priors and five years on the prior serious felony conviction, for a total of 16 years four months in state prison.

On appeal, defendant contends that: (1) the trial court abused its discretion in denying his Romero motion; and (2) his sentence on count 2 should have been stayed pursuant to section 654. We agree with defendant that his sentence on count 2 should be stayed pursuant to section 654. In all other respects, we affirm.


B.S. (the victim), his wife, and four children went to bed in their home on the night of May 17, 2015. The next morning, the victim woke up and went downstairs to make coffee, when he saw that his home had been burglarized. He first noticed that the television was missing, and then that a utensil drawer had been pulled open. The sliding glass door in the guest bedroom was open, even though it was closed the night before when the victim went to sleep. He walked outside to the front of his home and noticed that the garage door was open, and the family's minivan was missing. The victim called the police. He then took an inventory of the items that were missing, which included power tools, battery packs, and battery chargers that were taken from the garage. The victim also noticed that his wife's purse, containing her wallet and car keys, was missing from the hook in the front door area of the home where she usually hung it. In addition, some gardening tools were taken from a storage shed outside, as well as two bicycles and a laptop computer.

The police officer who responded to the call inspected the residence and opined that the sliding glass door in the guest bedroom was the point of entry. He noticed a fingerprint on the frame of the sliding glass door and used a fingerprint kit to lift the print. The fingerprint matched defendant.

The next day, another police officer was on patrol. He was aware of the burglary and the victim's stolen van. About 1:20 a.m., he passed a minivan that matched the description of the victim's missing vehicle. The driver looked away, and it appeared to the officer that he was trying to conceal his identity. The officer made a U-turn and tried to catch up to the minivan, but it pulled away from him. The driver of the minivan sped up to 60 to 70 miles an hour, drove over a curb, and crashed into a chain-link fence. When the officer pulled up to the minivan, the driver's side door was open, but he did not see anybody in or near the van. He found a cell phone on the ground, next to the driver's side door.

The officer obtained a warrant to search the contents of the cell phone. The cell phone contained a picture of defendant and a picture of his female friend. The cell phone also contained text messages that referred to a weed eater and a television—both items that had been stolen in the burglary.


I. The Trial Court Properly Denied Defendant's Romero Motion

Defendant argues that the court abused its discretion in denying his Romero motion. He contends the court's finding that he was a career criminal was not supported by the record since he only had one prior strike offense, which was over 14 years old at the time of sentencing. His other offenses indicated he had a drug addiction problem. Defendant further argues that the court improperly relied upon his claim of innocence. He adds that his sentence was not in proportion to his offense and thus violates the Eighth Amendment. We conclude there was no abuse of discretion.

A. Relevant Background

Defendant filed a motion to dismiss his prior strike conviction for first degree residential burglary. (§ 459.) He alleged that he fell outside the spirit of the three strikes law because his current offense was nonviolent, his prior offense was related to his drug addiction, he was willing to undergo psychotherapy and drug counseling, his strike conviction occurred 14 years prior, and he was only 20 years old at the time of that offense.

The People filed an opposition, arguing that defendant had a significant criminal history dating back 20 years, his current offense and prior strike offense were both serious, he had not gone any appreciable time without committing another crime, and his record of probation and parole was atrocious.

The court held a hearing on defendant's Romero motion and stated that it had reviewed the motion and the probation report. The court commented on defendant's extensive criminal history, which dated back to 1997, and noted that he had been either continuously committing crimes or been incarcerated, up until the present time. The court stated that it had never seen so many violations of probation or parole. Additionally, the court noted that defendant had been given numerous chances to change, including drugs programs, but he always made excuses for his actions. In the current case, defendant initially denied ever being on the street where the victim's house was located. He only admitted being there after his fingerprints were found there, but then said his friend did everything. The court stated that his current crime may not have been physically violent, but it was "psychologically violent," in that defendant entered an occupied dwelling in the middle of the night, when the victim and his family were sleeping. The court concluded that defendant was a "classic example of a person who fits squarely in the analysis behind the three-strikes law." The court described him as "lawless," someone who "does what he wants, when he wants, and has no concern about how it impacts others," and "an absolute danger to the community." The court denied the motion.

B. The Court Properly Exercised Its Discretion

In Romero, the Supreme Court held that a trial court has discretion to dismiss prior strike conviction allegations under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) In People v. Williams (1998) 17 Cal.4th 148 (Williams), the court identified a number of specific factors a trial court should consider when exercising its discretion. "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, `in furtherance of justice' pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Id. at p. 161.)

"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 375.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) "Because the circumstances must be `extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Id. at p. 378.)

The circumstances here were far from extraordinary, and the trial court properly applied the Williams factors to this case in denying defendant's motion. His recidivist criminal history brings him squarely within the spirit, as well as the letter of the three strikes law. Defendant's criminal history dates back 20 years. He has numerous convictions, including those for vandalism (Pen. Code, § 594), petty theft (Pen. Code, § 490.5), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), use of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), driving under the influence (Veh. Code, § 23152), driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), possession of marijuana (Health & Saf. Code, § 11357, subd. (a)), as well as prior convictions for burglary (Pen. Code, § 459) and the unlawful taking or driving of a vehicle (Veh. Code § 10851, subd. (a)). Defendant's criminal history shows that he was placed on probation numerous times, violated probation or parole at least 22 times, absconded on parole at least six times, and was sentenced to state prison three times. It is clear from the record that prior rehabilitative efforts have been unsuccessful. The court noted that defendant had been committing crimes since 1997, and that it was "an unending, pretty much uninterrupted pattern of criminal behavior that impact[ed] the lives of many people." The court further opined that defendant did whatever he wanted, with no concern about how it impacted others, and that he blamed his drug use for his conduct, yet did nothing to try to get himself off of drugs. He also blamed others for his first conviction of residential burglary, as well as the current one. The court concluded that defendant fit squarely within the three strikes law, and it did not find any basis for granting a Romero motion.

Defendant argues that his strike conviction offense occurred over 14 years ago, when he was 20 years old. He admits that he entered a home during the day, but he did not take anything, and he was under the influence of methamphetamine at the time. Defendant further admits he violated parole numerous times, but blames his drug addiction. He similarly asserts that his offenses indicated that he was suffering from a drug addiction, not that he was a violent career criminal or a danger to society. Defendant also claims the court improperly relied on his denial of responsibility and minimization of his involvement in the offense as a factor in its decision. However, the court properly considered that defendant was not learning his lesson or taking responsibility for his actions. It further noted its experience dealing with people who used drugs and its observation that they tend to give excuses or deny their actions. Moreover, the court pointed out that defendant's response to getting caught was always to deflect responsibility. It also remarked that defendant had participated in drug programs before and simply "[blew] them off," and that the number of chances he had been given to change was "profound."

In light of the court's extensive explanation of its reasons for declining to dismiss defendant's prior strike conviction, we do not find the decision to be arbitrary or irrational. The record clearly shows that the court was aware of its discretion and the applicable factors a court must consider in dismissing a prior strike, and that it appropriately applied the factors. Thus, we cannot say the court abused its discretion in declining to dismiss defendant's prior strike conviction.

We note defendant's additional claim that, because the court's denial of his Romero motion was based on impermissible factors, it violated his constitutional rights under the Eighth and Fourteenth Amendments. In light of our conclusion that the court properly denied his motion, we find no constitutional violations. To the extent he is arguing that his sentence violates the Eighth Amendment because it is not in proportion to the current offense, we disagree. Under the prevailing view, the Eighth Amendment of the federal Constitution is violated when a sentence is "`grossly disproportionate'" to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) Similarly, the California Constitution is violated when the punishment "`is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' [Citation.]" (People v. Meeks (2004) 123 Cal.App.4th 695, 709.) The court here imposed a term of 16 years, not a life sentence. Moreover, defendant is not subject to his sentence merely on the basis of his current offense, but on the basis of his recidivist behavior. "`Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses. [Citations.]'" (People v. Stone (1999) 75 Cal.App.4th 707, 715.) In light of defendant's record, his punishment does not shock the conscience or offend fundamental notions of human dignity. The court properly denied his Romero motion.

II. Section 654 Precluded Punishment on Count 2

Defendant argues that his sentence on count 2 should be stayed pursuant to section 654 because the residential burglary in count 1 and the unlawful taking of the vehicle in count 2 were committed with the same criminal intent—to steal the victim's property. The People argue that the court properly imposed consecutive sentences on counts 1 and 2 because defendant entertained multiple criminal objectives. Defendant did not object to the imposition of multiple sentences at trial. However, a section 654 claim is not waived by failing to raise it in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).) We conclude relief is warranted under section 654.

Section 654 "precludes multiple punishments for a single act or indivisible course of conduct." (Hester, supra, 22 Cal.4th at p. 294.) "It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that 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. [Citation.] [¶] If, on the other hand, defendant harbored `multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, `even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.) In other words, "[d]ifferent criminal acts `may be divisible even though "closely connected in time and a part of the same criminal venture."' [Citations.] The question is to be resolved upon the facts of each case. [Citation.]" (People v. Deloach (1989) 207 Cal.App.3d 323, 338.)

B. The Court Should Have Stayed the Sentence on Count 2

Defendant was found guilty of first degree residential burglary (count 1) and unlawfully taking a vehicle (count 2). In finding defendant guilty of count 1, the jury had to find that he entered a building with the intent to commit theft. In finding him guilty of count 2, the jury had to find that he took or drove someone's vehicle without the owner's consent and, when he did so, he "intended to deprive the owner of possession or ownership of the vehicle for any period of time." The question is whether the unlawful taking of the victim's car in count 2 and the residential burglary in count 1 were divisible or indivisible transactions.

Defendant argues that the taking of the vehicle was incidental to the burglary and was committed with the same criminal intent and objective—taking the victim's property. We agree. The evidence showed that he entered the victim's home, and once inside, stole a laptop computer, a television, and the victim's wife's purse, which contained her wallet and car keys. He also took two bicycles, gardening tools, power tools, battery packs, and battery chargers from the garage. He then used the car keys to steal the victim's minivan. The victim's minivan was stolen from the garage attached to his residence. In other words, the minivan was taken in the course of defendant burglarizing the victim's home. There was no evidence to show that defendant harbored multiple criminal intents, independent of each other, when he committed counts 1 and 2. Both offenses were part of a continuous course of conduct.

We note that in deciding whether to sentence defendant consecutively or concurrently, the court stated the following: "[T]he crimes were absolutely independent of each other. Going into the home, stealing the items from the home is a separate event, and then going out and stealing the car. So transporting the things that you just stole, to me, are two completely separate and distinct crimes and independent of each other." Although we must give due deference to the trial court's finding that each of the offenses demonstrated a separate intent, there is no evidence to support the finding that defendant entered the victim's residence for any other reason than to steal the victim's property. Moreover, as explained ante, defendant took the minivan in the course of burglarizing the home.

The People argue there was no evidence that defendant's original plan was that the minivan would be the object of the burglary, or that his original plan was to use the victim's minivan to drive away with the loot. Rather, the record supports a finding that defendant's taking or driving the vehicle "was an afterthought or an act committed in response to unforeseen developments." In People v. Bauer (1969) 1 Cal.3d 368, the defendant entered a home lived in by three women, robbed them each of personal property kept in the house, then stole one of the victims' car. Bauer held the defendant could not be separately punished for robbery and auto theft. "[W]here a defendant robs his victim in one continuous transaction of several items of property, punishment for robbery on the basis of the taking of one of the items and other crimes on the basis of the taking of the other items is not permissible. [¶] The Attorney General urges that the separate sentences for robbery and car theft may be upheld on the theory that the robbery was complete before the theft of the car began and that the theft of the automobile was an afterthought to the original transaction. The fact that one crime is technically complete before the other commenced does not permit multiple punishment where there is a course of conduct comprising an indivisible transaction. [Citation.] And the fact that one of the crimes may have been an afterthought does not permit multiple punishment where there is an indivisible transaction. . . . Moreover, the evidence in the instant case does not show that the theft of the car was an afterthought but indicates to the contrary that the robbers, who while ransacking the house were carrying the stolen property to the garage, formed the intent to steal the car during the robbery if not before it." (Id. at p. 377.)

Similarly, here, there was no evidence of a limited initial intent, followed by the subsequent formulation of a new and different intent to steal the minivan. Rather, the vehicle theft stemmed from the taking of the keys during the burglary. The entry of the house and the taking of all the victim's property were parts of a continuous course of conduct and were motivated by one objective, theft.

The People next contend that "[i]f the minivan's doors were locked at the time of the [] burglary and [defendant] broke into the minivan and drove away, [defendant] could have been convicted separately of burglarizing the minivan." The People claim that his "two criminal acts, entering the house and unlawfully driving or taking the minivan out of the garage, should be separately punishable because they constituted multiple break-ins, each with a separate criminal intent." This claim is based on pure speculation. There was no evidence that the minivan's doors were locked or that defendant had to break into it to drive it away. Thus, even though the People claim he "could have been convicted separately of burglarizing the minivan," that was not the case here, since there was no evidence of multiple break-ins.

The People further argue that neither of defendant's two offenses "can be viewed as a means toward the other. [He] did not have to enter the house to enter the garage, take the keys, and take the minivan, and he did not have to enter the garage, take the keys, and take the minivan to enter the house." However, the evidence showed that defendant took the keys from inside the house; therefore, he did have to enter the house to take the keys, in order to steal the minivan.

In the alternative, the People argue this court should conclude that the record supported a finding that defendant unlawfully drove the minivan the night after the burglary; thus, the offenses were temporally separated, so as to afford defendant an opportunity to reflect before committing the next offense.

However, the evidence was uncontroverted that the minivan was taken at the same time as the burglary. Moreover, the information charged defendant with committing the burglary and unlawful driving or taking of a vehicle "[o]n or about May 18, 2015." Thus, the jury found defendant guilty of committing the unlawful driving or taking of the car on the same day he committed the burglary—not the day after.

We conclude that the residential burglary and unlawful taking and driving of the victim's car was an indivisible course of conduct. Thus, section 654 precludes multiple punishment on counts 1 and 2. The sentence on count 2 should have been stayed.


The judgment is modified to stay the sentence on count 2 pursuant to section 654. The trial court is directed to modify the abstract of judgment and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. Otherwise, the judgment is affirmed.

RAMIREZ, P. J. and MILLER, J., concurs.


1. All further statutory references will be to the Penal Code, unless otherwise noted.
2. People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).


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