P. v. Mandarino

Filed 1/5/07 P. v. Mandarino CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,
v.
AIRTON MANDARINO,
Defendant and Appellant.
B188473
(Los Angeles County
Super. Ct. No. GA058400)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Jacqueline H. Nguyen, Judge. Affirmed as Modified.
Patricia A. Andreoni, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D.
Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and
Respondent.

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Airton Mandarino appeals from judgment entered following a jury trial in
which he was convicted of one count of grand theft by fraudulent use of access
cards or account information, count 1, (Pen. Code, § 484g, subd. (a)) and one
count of grand theft of personal property, count 3, (Pen. Code, § 487, subd. (a)).
Following a court trial, he was found to have suffered three prior felony
convictions within the meaning of Penal Code section 667.5, subdivision (b). He
was sentenced to prison for a total of four years, consisting of the upper term of
three years for count 1, plus one year for one prior prison term, and a concurrent
middle term of two years for count 3. He contends imposition of an upper term
sentence violated his federal constitutional rights to a jury trial and proof beyond
a reasonable doubt under the Sixth and Fourteenth Amendments and Blakely v.
Washington (2004) 542 U.S. 296. He also contends the trial court violated Penal
Code section 654 by imposing sentence on both counts. For reasons stated in the
opinion, we stay the sentence on count 3 and in all other respects affirm the
judgment.
FACTUAL AND PROCEDURAL HISTORY
In March 2004, appellant signed a contract to purchase a 2003 Jeep Liberty
automobile from Dodge of Alhambra. Appellant paid one dollar in cash and
charged $2,000 on a credit card belonging to Lee Bass. Appellant paid the
remaining down payment of $3,801 with a post-dated check and was allowed to
drive the vehicle away from the dealership. The check was drawn on the account
of Alvaro and Iracema Mandarino and was later returned with a notation that the
checking account had been closed.
Previously, Lee Bass had purchased an air conditioner from appellant using
her Discover credit card. The credit card number and expiration date were listed

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on the contract for the air conditioner. Ms. Bass had never authorized appellant
to use her credit card to purchase a vehicle. She discovered the unauthorized
charge of $2,000 when she received her credit card statement.
At sentencing, the court indicated it had reviewed the probation report.
The court stated the upper term in count 1 was appropriate based on the fact that
appellant’s prior convictions, most of which were theft related, were numerous
and ever increasing in seriousness. Appellant had served a prior prison term,
which had not deterred him from committing a similar offense; the present
offense involved prior and extensive planning and appellant took advantage of an
elderly victim, who because of her age was a vulnerable victim. For count 3,
grand theft of personal property, the court sentenced appellant to the middle term
of two years concurrent to the sentence in count 1. For the prior prison term
enhancement, the court sentenced appellant to a consecutive one year.
DISCUSSION
I
Appellant contends imposition of an upper term sentence violated his
federal Constitutional rights to a jury trial and proof beyond a reasonable doubt
under the Sixth and Fourteenth Amendments and Blakely v. Washington (2004)
542 U.S. 296. He acknowledges People v. Black (2005) 35 Cal.4th 1238 but
argues it may not be the final word on the issue based on Cunningham v.
California (2005) ___ U.S. ___ [126 S.Ct. 1329]. In People v. Black, supra, 35
Cal.4th at p. 1254, the California Supreme Court held that Blakely does not
invalidate California’s upper-term sentencing procedure. Appellant’s argument

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raises no issues not resolved in Black.1 We are bound to follow decisions of our
Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
II
Appellant contends and respondent agrees the trial court erred by imposing
sentences for both counts 1 and 3 in violation of Penal Code section 654.2
We
agree.
The crime in count 1 was appellant’s fraudulent use of the credit card
information of Lee Bass to make a $2,000 down payment on the Jeep vehicle.
The crime in count 3 was the taking of personal property of Lee Bass, obtaining
physical possession and control of the $2,000.
At sentencing, the prosecution argued that appellant should be sentenced to
the upper term on either count 1 or 3 and that Penal Code section 654 applied.
The court did not disagree with the assessment that Penal Code section 654
applied but sentenced appellant in count 3 to a concurrent term.
“[Penal Code] section 654 prohibits ‘[p]unishment for two offenses arising
from the same act . . . .’ [Citation.] ‘Insofar as only a single act is charged as the
basis for the conviction . . . , the defendant can be punished only once.’
1
The United States Supreme Court has granted certiorari in People v. Cunningham
(Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nom. Cunningham v.
California (Feb. 21, 2006, No. 05-6551) ___ U.S. ___ [126 S.Ct. 1329], on the issue
whether Blakely applies to California’s determinate sentencing law. Oral argument was
held on October 11, 2006.
2
Penal Code section 654, subdivision (a) provides: “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. . . .”

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[Citation.]” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Penal Code section
654 “‘“has been applied not only where there was but one ‘act’ in the ordinary
sense . . . but also where a course of conduct violated more than one statute and
the problem was whether it comprised a divisible transaction which could be
punished under more than one statute within the meaning of section 654.”
[Citation.]’ [Citation.]” (People v. Latimer, supra, 5 Cal.4th at p. 1208.)
“‘Whether a course of criminal conduct is divisible and therefore gives rise
to more than one act within the meaning of section 654 depends on the intent and
objective of the actor. 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.’ [Citation.]” (People v. Latimer, supra, 5 Cal.4th at p. 1208.) “The
determination of whether there was more than one objective is a factual
determination, which will not be reversed on appeal unless unsupported by the
evidence presented at trial. [Citation.] The factual finding that there was more
than one objective must be supported by substantial evidence. [Citation.]”
(People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
Here, there was no substantial evidence that there was more than one
objective; and it appears the trial court did not disagree with the parties that Penal
Code section 654 applied. Rather than staying the sentence for count 3, however,
the court imposed a concurrent sentence. Imposition of concurrent sentences is
precluded by Penal Code section 654, and the sentence in count 3 must, therefore,
be stayed. (People v. Miller (1977) 18 Cal.3d 873, 885.)
DISPOSITION
The sentence imposed on count 3 is ordered stayed pending completion of
the sentence on count 1, at which time the stay shall become permanent. As

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modified, the judgment is affirmed. The trial court is directed to prepare a new
abstract of judgment incorporating the modification and to send a certified copy
to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.

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