P. v. Canete CA2/4

Filed 3/25/13 P. v. Canete CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B234197

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA071133) v.

RALPH NICHOLAS CANETE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryn A. Solorzano, Judge. Affirmed in part, reversed in part, and remanded. Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Ralph Nicholas Canete appeals from a jury verdict finding him guilty of robbery and access card theft in violation of Penal Code sections 211 and 484e, 1 subdivision (d), respectively. Appellant contends the trial court erred in finding that section 667, subdivision (c)(6) mandated consecutive sentencing for the felony convictions because the two acts were committed on the same occasion and arose from the same set of operative facts. We vacated submission and requested supplemental letter briefing on whether sentencing for the charge under section 484e, subdivision (d), was precluded by section 654, regardless of whether it is imposed concurrently or consecutively. We conclude sentencing on both charges is precluded by section 654. We reverse as to sentencing and otherwise affirm. FACTUAL AND PROCEDURAL SUMMARY On May 2, 2009, at about 9:45 p.m., Caroline Buermann was walking to her car when appellant approached her. Appellant grabbed her, punched her in the face, then continued to strike her after she fell to the ground. Appellant seized Buermann’s purse, which contained a wallet, a vintage camera, and the key to her car. Appellant then fled on foot. Police arrived and took a report from Buermann before she was transported to a hospital. While at the hospital, Buermann called the issuers of a credit card and debit card that were inside the wallet stolen from her. She discovered that charges already had been made on the cards and notified police. Surveillance video from a fast food restaurant near the scene of the crime showed appellant using the card to purchase food approximately 20 minutes after the robbery occurred. After recognizing appellant in the video footage, police stopped appellant’s car and found Buermann’s key, wallet, and purse inside. The police searched appellant’s home and found Buermann’s camera. A jury convicted appellant of second degree robbery (§ 211) and grand theft for acquiring or retaining the account information of an access card without the cardholder’s consent and with the intent to use it fraudulently (§ 484e, subd. (d)). He was sentenced to