Opinion
A154643
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. BRIAN SINTELL CARTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 177979) MEMORANDUM OPINION
This appeal is appropriate for disposition by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
In February 2015, defendant Brian Sintell Carter was arrested at a residence in Alameda for the murder of Dominque Parks. On the same day, Oakland police officers executed a search warrant for the Alameda residence. In the course of the search, officers found two guns—an unloaded .38-caliber Smith and Wesson special revolver and a loaded .40-caliber Springfield XD semiautomatic firearm. The unloaded gun was found in the master bathroom, on the top shelf inside the closet; the loaded gun was found in the master bedroom closet. The officers also found a wallet containing defendant's medical card and $1,093 near the loaded gun.
The district attorney filed an amended four-count information charging him with the murder of Parks and firearm offenses. As relevant here, defendant was charged with one count of possession of ammunition by a prohibited person (Pen. Code, § 30305, subd. (a)(1); count 3) and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4). A jury found defendant guilty of these counts, but could not reach a verdict as to the other counts and a mistrial was declared as to those counts.
All further statutory references are to the Penal Code unless otherwise indicated.
These counts charged defendant with the murder of Parks (§ 187, subd. (a); count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2).
The trial court sentenced defendant to an aggravated three-year term for possession of a firearm and a consecutive term of one-third the midterm for possession of ammunition, for a total sentence of three years eight months.
On appeal, defendant raises two issues pertaining to his sentencing—that the trial court violated section 654 by failing to stay the sentence for possession of ammunition and violated section 1170, subdivision (b) by using the same sentencing factors for imposing both an aggravated term and consecutive sentence.
Section 654Section 654 provides in part, "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." (§ 654, subd. (a).)
Plainly stated, section 654 prohibits multiple punishment for a single act or indivisible conduct. (People v. Reyes-Tornero (2016) 4 Cal.App.5th 368, 376.) " '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. [¶] . . . [¶] 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." ' " (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005.)
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.' " (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.)
Defendant relies on People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez) and People v. Sok (2010) 181 Cal.App.4th 88 (Sok) in support of his assertion that the trial court should have stayed the sentence for ammunition possession.
In Lopez, supra, 119 Cal.App.4th 132, the Court of Appeal held section 654 precluded multiple punishment for unlawful possession of a firearm and unlawful possession of ammunition. (Id. at pp. 138-139.) The court held that while "there may be instances when multiple punishment is lawful for possession of a firearm and ammunition," in the case before it there was an " 'indivisible course of conduct' . . . present" because the only ammunition involved was that found in the gun the defendant possessed. (Id. at p. 138.)
In Sok, supra, 181 Cal.App.4th 88, the defendant was charged with, among other things, two counts of unlawful possession of a firearm and two counts of unlawful possession of ammunition stemming from two separate incidents, however, all four counts involved the same gun. (Id. at pp. 91-92.) The Court of Appeal determined the trial court erred. (Id. at p. 100.) As the court explained, having sentenced the defendant for the unlawful possession of a firearm counts, section 654 precluded punishment for the unlawful possession of ammunition counts because "the ammunition at issue in those two counts was either loaded into [the defendant's] handgun or had been fired from that gun," and there was "no evidence in the record that would support the trial court's implied factual finding that [the defendant] had different or multiple objectives in possessing the loaded firearm and possessing the ammunition in the gun itself." (Ibid.)
In the present case, unlike in Sok and Lopez where the defendants possessed one gun with ammunition inside, here defendant possessed two guns—one unloaded and one loaded. Both guns were clearly at issue, as the prosecutor referenced multiple guns in his opening and closing statements and both guns were presented to the jury and admitted into evidence. Section 654 does not preclude multiple punishment for a defendant's " 'simultaneous possession of different items of contraband' " when " 'the possession of one item is not essential to the possession of another separate item.' " (People v. Jones (2012) 54 Cal.4th 350, 358.)
Accordingly, the trial court did not violate section 654 by imposing sentence for both possession of a firearm (i.e., the unloaded gun) and possession of ammunition (i.e., the bullet in the loaded gun).
Section 1170
After finding defendant ineligible for probation, the trial court sentenced defendant to the aggravated term of three years for count 4 (possession of a firearm) (the principal term) and eight months or one-third the midterm of two years for count 3 (possession of ammunition). The court cited defendant's prior record, which indicated a "pattern of regular and increasingly serious criminal behavior," and his history on probation, which included five previous revocations of probation, as the main reasons for imposing the aggravated term for count 4. As to count 3, the court stated it was imposing the sentence for the "reasons . . . that I stated earlier that are outlined in the probation report and that I previously articulated today."
Section 1170, subdivision (b), specifies the trial court "shall set the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (See Cal. Rules of Court, rule 4.420(c); People v. Scott (1994) 9 Cal.4th 331, 350.) Defendant maintains reversal is mandated because the trial court "erroneously relied on the same factors when it elected to impose consecutive terms." (Some uppercase omitted.)
As the Attorney General correctly points out, defendant never objected to the use of dual facts as improper, and this issue is therefore waived. (See People v. Scott, supra, 9 Cal.4th at pp. 354-355.)
Defendant maintains the issue is not waived because the waiver doctrine " 'does not apply to section 654 sentencing issues.' " Section 654 sentencing issues can be raised for the first time on appeal (see People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3 ["waiver doctrine does not apply to questions involving the applicability of section 654"]). However, defendant's claim of error is based on section 1170, not section 654. --------
In any event, even absent waiver, any error was harmless. Only a single aggravating factor is required either to impose an upper term (People v. Castellano (1983) 140 Cal.App.3d 608, 614-615) or a consecutive sentence (People v. Coulter (1989) 209 Cal.App.3d 506, 516). Here, "the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so." (People v. Osband (1996) 13 Cal.4th 622, 729; People v. Coleman (1989) 48 Cal.3d 112, 166 ["Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if '[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.' "].)
In sum, the trial court did not err or abuse its discretion in connection with sentencing.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Sanchez, J.