People v. Bennett CA6

Filed 7/28/15 P. v. Bennett CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042325 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1103796)

v.

DAVID BENNETT,

Defendant and Appellant.

STATEMENT OF THE CASE An information, filed on July 8, 2013, charged defendant David Bennett with three counts of second degree burglary (Pen. Code, §§ 459/460, subd. (b)1; counts 1-3) and one count of use of a stolen access card (§§ 484g, subd. (a)/488; count 4). The information alleged that defendant had one prior strike conviction (§§ 667, subds. (b)-(i)/1170.12) and had served two prior prison terms (§ 667.5, subd. (b)). Defendant waived his right to a jury trial and elected a bench trial. On July 11, 2013, the trial court found defendant guilty on all counts and found the prior strike allegation and prior prison term allegations to be true. On November 4, 2013, the trial court sentenced defendant to a total prison term of four years, calculated as follows: a 16-month term for the burglary in count 1, a consecutive 16-month term for the

1 Subsequent unspecified statutory references are to the Penal Code.

burglary in count 2, a consecutive 16-month term for the burglary in count 3, and a concurrent 90-day term for use of a stolen access card.2 The trial court struck the prior prison term allegations pursuant to section 1385. Defendant now appeals from the judgment of conviction. On appeal, defendant contends that the trial court erred in failing to stay portions of his sentence pursuant to section 654. As set forth below, we will modify the judgment to stay the 90-day term for use of a stolen access card, and we will affirm the judgment in all other respects. STATEMENT OF THE FACTS Someone stole Heather Klosterman’s wallet on February 23, 2011. Klosterman’s debit card and credit card were inside the wallet. On February 24, 2011, defendant used Klosterman’s credit card to purchase three gift cards at a Dairy Queen restaurant in Campbell. The first gift card’s value was $100, the second gift card’s value was $60, and the third gift card’s value was $56. Also on February 24, 2011, defendant used Klosterman’s debit card to purchase items at 420 Lifestyles, a store located in Campbell. Using Klosterman’s debit card, defendant purchased clothing, T-shirts, and other “random miscellaneous merchandise.” The items had a total value of over $350. Defendant returned to 420 Lifestyles on February 25, 2011. He attempted to return T-shirts for cash. The cashier informed defendant that the store would not give a cash reimbursement. Defendant left the store with the T-shirts. Klosterman testified that she did not give defendant permission to use her debit card or credit card. No one had permission to use Klosterman’s debit card or credit card on February 24, 2011.