Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge, Los Angeles County Super. Ct. No. PA053541
David D. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Renny Calderon appeals from the judgment entered following a jury trial that resulted in his convictions for possession of a firearm by a felon, possession of ammunition by a felon, possession of a controlled substance for sale, and possession of a controlled substance with a firearm. The trial court sentenced Calderon to a term of 12 years, 4 months in prison.
Calderon’s sole contention on appeal is that sentence on his convictions for possession of a firearm by a felon must be stayed pursuant to Penal Code section 654, because the court imposed a section 12022 firearm enhancement. We discern no error, and affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s evidence.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the relevant evidence established the following. In the fall of 2005, Calderon, and possibly other persons, were living without permission in his father Renato Calderon’s Arleta home. After Renato became suspicious that he had become the victim of identity theft, he gave police permission to search the house.
On November 28, 2005, Los Angeles Police Department officers entered and searched the home. Calderon was lying on a bed in a back bedroom. A glass pipe filled with crystal methamphetamine was discovered on the bed’s headboard. Nearly $600 in cash, a knife, and a loaded .357 revolver were hidden underneath the mattress. Subsequent searches revealed a 12-gauge shotgun and two .22-caliber rifles in an office closet; additional methamphetamine in a backpack and in a toolbox located in the bedroom; a small amount of marijuana in the backpack; more methamphetamine in a baggie in an office room; and a large green metal box filled with .22 caliber, 12-gauge, and .357 caliber ammunition in the living room. The house was equipped with surveillance cameras facing the front porch area.
During the search, Calderon’s cellular telephone rang. One of the searching officers, Jason Compton, answered it. The caller queried whether he “still wanted the stuff [he] wanted.”
The parties stipulated that Calderon had been previously convicted of a felony. An officer opined that the methamphetamine was possessed for sale.
b. Defense evidence.
Lisa Acosta had been staying with Calderon at the Arleta home on a regular basis for two years. The home was inhabited by seven persons, all of whom were methamphetamine addicts. Acosta testified that any methamphetamine left unattended at the house “would be gone” when the drug’s owner returned.
2. Procedure.
Trial was by jury. Calderon was convicted of four counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)) for his possession of the handgun, the rifles, and the shotgun; possession of ammunition by a felon (§ 12316, subd. (b)(1)); possession of a controlled substance for sale (Health & Saf. Code, § 11378); and possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). The jury further found Calderon was personally armed with a firearm during commission of the possession for sale offense (§ 12022, subd. (c)). After the jury’s verdict, Calderon admitted suffering a prior conviction for a drug-related offense (Health & Saf. Code, § 11370.2, subd. (c)). The trial court sentenced Calderon to a total term of 12 years, 4 months in prison. It imposed a restitution fine, a suspended parole revocation fine, a laboratory fee, a penalty assessment, and a court security fee. Calderon appeals.
DISCUSSION
1. Section 654 does not bar imposition of sentence on the possession of a firearm by a felon offenses.
At sentencing, the trial court imposed the high term of three years on the possession for sale conviction, plus five years for the section 12022, subdivision (c) personal arming enhancement. It imposed a consecutive eight-month sentence on one of the convictions for possession of a firearm by a felon, and concurrent sentences on the other three felon-in-possession counts. Sentence on count 7, possession of a controlled substance with a firearm, was stayed pursuant to section 654.
Calderon contends that all of the sentences for the possession of a firearm by a felon should have been stayed pursuant to section 654. He claims he may not be punished for possessing the firearms in addition to having his sentence enhanced by five years for being armed with a firearm in the commission of the offense of possessing methamphetamine for sale, because the offenses and the enhancement were based on the same criminal act and were part of an indivisible transaction carried out with a single objective. We disagree.
Whether section 654 generally applies to sentence enhancements has not yet been resolved by the California Supreme Court, and the appellate courts are split on the issue. (See People v. Coronado (1995) 12 Cal.4th 145, 157, and cases cited therein; People v. Oates (2004) 32 Cal.4th 1048, 1066, fn. 7; People v. Palacios (2007) 41 Cal.4th 720, 728 [expressly declining to reach the question of whether section 654 generally applies to enhancements, leaving that question “for another day”]; People v. Myers (1997) 59 Cal.App.4th 1523, 1529-1530.) Some decisions have held section 654 is inapplicable to enhancements, because enhancements do not define an offense but relate to the penalty to be imposed under certain circumstances. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394-395 [citing cases]; People v. Palmore (2000) 79 Cal.App.4th 1290, 1298; People v. Warinner (1988) 200 Cal.App.3d 1352, 1355.) Other courts have concluded section 654 applies to enhancements because it prohibits multiple punishment for the same act, regardless of whether the act results in a conviction or an enhancement. (People v. Arndt, supra, at pp. 394-396; People v. Reeves (2001) 91 Cal.App.4th 14, 55-56; cf. People v. Price (1992) 4 Cal.App.4th 1272, 1277.)
The California Supreme Court has declined to impose a blanket rule regarding the applicability of section 654 to enhancements, but instead has resolved the issue by analyzing the specific language of the enhancement statute (People v. Palacios, supra, 41 Cal.4th 720) or by examining the nature of the particular enhancement (People v. Coronado, supra, 12 Cal.4th 145). In the recent case of People v. Palacios, the defendant fired a single shot at a single victim during commission of three crimes, i.e., attempted murder, kidnap for carjacking, and kidnap for robbery. Palacios held three section 12022.53 enhancements should be imposed, despite section 654’s single intent and objective rule. (Palacios, supra, at p. 723.) In so holding, the court looked to the plain language of section 12022.53, which expressly states that section 12022.53 enhancements shall be applied notwithstanding any other provision of law, as an additional and consecutive term of imprisonment. (Id. at pp. 726-728.) This language, the court reasoned, demonstrated an unequivocal legislative intent to override section 654. (Id. at pp. 728-730.)
People v. Coronado held that section 654 did not bar the use of a single prior felony drunk-driving conviction and resulting prison term to both elevate the defendant’s current drunk-driving conviction to a felony under Vehicle Code, former section 23175, and to enhance his sentence under section 667.5. (People v. Coronado, supra, 12 Cal.4that pp. 149, 158; People v. Arndt, supra, 76 Cal.App.4th at p. 395.) Coronado drew a distinction between status enhancements that pertain to the nature of the offender, and conduct enhancements that pertain to the nature of the offense. (People v. Coronado, supra, at pp. 156-158.) The court concluded that a prior prison term enhancement, which related to the defendant’s status as a repeat offender, did not implicate multiple punishment of an act or omission, making section 654 inapplicable. (Id. at p. 158; People v. Martinez (2005) 132 Cal.App.4th 531, 536; People v. Arndt, supra, at p. 395.)
Unlike the statute at issue in People v. Palacios, section 12022 does not contain language suggesting the Legislature intended to override section 654. Therefore, contrary to the People’s contention, Palacios does not directly answer the question before us. Moreover, unlike in People v. Coronado, here the enhancement was based on Calderon’s conduct of possessing a gun in the commission of a drug offense, not on his status. Thus, Coronado is not dispositive.
We need not reach the issue of whether section 654 is generally applicable to enhancements, however. Even assuming arguendo section 654 applies, there was substantial evidence that possession of the guns was not merely simultaneous with possession of the drugs, and the guns were possessed pursuant to independent objectives.
Section 654, subdivision (a), provides in pertinent part, “[a]n 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 therefore ‘ “precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all 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.]” [Citation.]’ ” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) However, if the defendant harbored multiple or simultaneous objectives, independent of and not merely incidental to each other, he or she “ ‘may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (Ibid.) The statute’s purpose is to insure the defendant’s punishment will be commensurate with his liability. (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044.)
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” (People v. Jones, supra, 103 Cal.App.4th at p. 1143; People v. Akins (1997) 56 Cal.App.4th 331, 339.)
“ ‘ “Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.” ’ [Citations.]” (People v. Jones, supra, 103 Cal.App.4th at pp. 1143-1144, fn. omitted; People v. Bradford (1976) 17 Cal.3d 8, 22-23.)
In People v. Ratcliff (1990) 223 Cal.App.3d 1401, the defendant used a handgun to commit two robberies an hour and one-half apart. When he was apprehended approximately one half hour after the second robbery, the handgun was still in his possession. Ratcliff rejected the defendant’s argument that section 654 precluded punishment for both the ex-felon in possession of a firearm conviction and the firearm use enhancement. The court explained: “the defendant already had the handgun in his possession when he arrived at the scene of the first robbery. A justifiable inference from this evidence is that defendant’s possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes. Section 654 therefore does not prohibit separate punishments. [Citation.] [¶] . . . [¶] Commission of a crime under section 12021 is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon. [Citations.] In other words, in the case here, defendant’s intent to possess the weapon did not import or include the intent to commit the robberies.” (People v. Ratcliff, supra, at pp. 1413-1414.)
Ratcliff relied in part upon our decision in People v. Hudgins (1967) 252 Cal.App.2d 174. There, the defendant, an ex-felon, broke into his wife’s house, shot and killed a male guest, and threatened to kill his wife. On appeal, he argued that section 654 barred punishment for both the murder and his violation of section 12021. We rejected this contention. We acknowledged that section 654 bars multiple punishment where the offenses are committed “by one act or in a series of acts having but a single purpose . . . .” (Id. at p. 185.) We concluded, however, “such was not the case. The acts constituting the offenses were separable. Possession of the gun constituted one offense, and this was an act separate and apart from any use that was made of the gun, and would have been a completed offense even if no use had been made of it. Appellant was properly sentenced for both offenses.” (Ibid.)
In People v. Jones, supra, 103 Cal.App.4th 1139, the defendant, a felon, drove past his former girlfriend’s home and fired shots at the house. A jury convicted him of shooting at an inhabited dwelling and being a felon in possession of a firearm. The trial court imposed sentence on both crimes. Jones contended that, because his possession of the gun was incidental to and simultaneous with the primary offense of shooting at an inhabited dwelling, section 654 precluded the imposition of sentence on both offenses. (Id. at p. 1142.)
We concluded substantial evidence supported the trial court’s implied finding that the “possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling. It strains reason to assume that Jones did not have possession for some period of time before firing shots at the [victim’s] home. Any other interpretation would be patently absurd. Jones committed two separate acts: arming himself with a firearm, and shooting at an inhabited dwelling.” (People v. Jones, supra, 103 Cal.App.4th at p. 1147.) Further, the crimes were divisible. “Jones’s violation of section 12021 was complete the instant [he] had the firearm within his control prior to the shooting.” (Ibid.) “The evidence likewise supported an inference that Jones harbored separate intents in the two crimes. Jones necessarily intended to possess the firearm when he first obtained it, which . . . necessarily occurred antecedent to the shooting. That he used the gun to shoot at [the victim’s] house required a second intent in addition to his original goal of possessing the weapon.” (Ibid.) That Jones did not possess the weapon for a lengthy period before commission of the primary crime was not determinative. (Id. at pp. 1147-1148.)
As in the foregoing authorities, here the evidence was sufficient to support the trial court’s conclusion that section 654 did not bar sentence on the enhancement as well as the offenses. The trial court stated that “the crimes and their objectives on those cases I have imposed the consecutive sentences were independent of each other.” While the court did not further articulate the factual basis for its conclusion, its findings will be upheld on appeal if supported by substantial evidence. (People v. Jones, supra, 103 Cal.App.4th at p. 1143; People v. Akins, supra, 56 Cal.App.4th at p. 339; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
The nature of the contraband at issue provides sufficient circumstantial evidence that possession of the guns was more than incidental to, and simultaneous with, possession of the methamphetamine for sale. Calderon committed two separate acts: arming himself with a firearm, and possessing methamphetamine for sale. Illegal drugs are, by their very nature, likely to be possessed for only a brief time before they are either consumed or sold. Here, defense witness Acosta testified that it would not have been wise for any of the residents at the Arleta home to leave their methamphetamine “lying around the house,” because “It would be gone.” Guns, unlike drugs, are not consumable, nor is a drug seller likely to dispose of them as soon as his supply of methamphetamine runs out. The notion that Calderon obtained the guns at the same moment he obtained the drugs, and that he would have disposed of the guns as soon as the drugs were sold or used, is fanciful. Moreover, in this case four firearms and considerable ammunition were found in the house. As a practical matter, it is highly unlikely that Calderon obtained possession of a revolver, a shotgun, and two rifles at the same moment he obtained the particular methamphetamine at issue in the case. Indeed, Acosta testified that a man named Rodney Green dropped off the revolver at the house, and Officer Compton testified Calderon told him he had gotten the revolver from a man named Rodney. There was no suggestion the drugs were also obtained from Rodney at the same time.
Certainly the evidence did not suggest that “ ‘fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense[.]’ ” (People v. Jones, supra, 103 Cal.App.4th at p. 1144; see generally People v. Bradford, supra, 17 Cal.3d at p. 13 [defendant wrested away an officer’s revolver when stopped for speeding, and shot at the officer with it]; People v. Venegas (1970) 10 Cal.App.3d 814, 820-821 [evidence suggested defendant obtained gun in a struggle shortly before shooting with it].) In short, the trial court could reasonably infer that the defendant’s possession of the weapons was not merely simultaneous with the drug offense. Given the number of firearms found, and the transitory nature of the drugs in question, the trial court could reasonably infer that the guns were possessed with more than one objective. (See generally People v. Ratcliff, supra, 223 Cal.App.3d at p. 1414; People v. Hudgins, supra, 252 Cal.App.2d at p. 185; People v. Jones, supra, 103 Cal.App.4th at pp. 1147-1148.)
Moreover, as we observed in Jones, “prohibiting multiple punishment under the circumstances presented here would not further the policies underlying sections 654 and 12021. Section 654’s purpose is to ensure that punishment is commensurate with a defendant’s culpability. [Citations.] This concept ‘works both ways. It is just as undesirable to apply the statute to lighten a just punishment as it is to ignore the statute and impose an oppressive sentence.’ [Citation.] Section 12021 uniquely targets the threat posed by felons who possess firearms. [Citation.] We see no reason why a felon who chooses to arm himself or herself in violation of section 12021 should escape punishment for that offense because he or she uses the firearm to commit a second offense. A felon who, for example, uses a gun to commit a burglary is more culpable than a felon who commits the same burglary without a gun, or than a felon who arms himself but does not commit any additional crimes.” (People v. Jones, supra, 103 Cal.App.4th at p. 1148.) Likewise, here, a felon who is personally armed with a firearm during commission of a possession for sale offense is more culpable than a felon who is simply in possession of a gun, but not selling drugs. Therefore punishment both for the possession of the firearm by a felon convictions, and the enhancement for being personally armed during the drug offense, is commensurate with Calderon’s culpability and furthers the legislative goal of discouraging firearm possession by felons.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P.J., KITCHING, J.