Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F00574
CANTIL-SAKAUYE, J.
A jury found defendant Michael Anthony Carter guilty of second degree robbery (Pen. Code, § 211) and possessing a short-barreled shotgun (§ 12020, subd. (a)(1)). The jury also found true an allegation he personally used a short-barreled shotgun in the commission of the robbery (§ 12022.53, subd. (b)). The trial court sentenced defendant to an aggregate term of 13 years in state prison, consisting of the middle term of three years for the robbery, a concurrent middle term of two years for possessing a short-barreled shotgun, and an additional 10 years for the use enhancement. The court awarded defendant 404 days of presentence custody credit (352 actual days and 52 good conduct). (§§ 4019, 2933.1.)
Hereafter, undesignated statutory references are to the Penal Code.
Defendant appeals, contending the trial court erred in (1) denying his motion for mistrial based on Doyle error (Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91]), (2) failing to stay his sentence for possessing a short-barreled shotgun under section 654, and (3) calculating his presentence custody credit. We shall modify the judgment to include one additional day of custody credit and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On January 17 and 18, 2006, Rocio Bravo was working the graveyard shift (9:00 p.m. to 5:00 a.m.) at a Jack in the Box restaurant in Sacramento. At approximately 1:10 a.m., a man came to the front of the restaurant and signaled he wanted to come inside. The dining room area was closed, so Bravo directed him to the drive-thru window. About five minutes later, the man walked up to the drive-thru window and ordered two tacos and a Jumbo Jack. The man told Bravo he was going to get some money, and Bravo closed the drive-thru window and went to the rear of the restaurant. The man returned 10 or 15 minutes later and knocked on the window. Another restaurant employee responded, found the window had been pushed in, and saw the man had a gun. Upon seeing the gun, the employee ran, locked herself in the office, and called the police. The police arrived shortly thereafter.
When Bravo returned to the drive-thru area later that morning, the drawer to the cash register “was on the outside of the window” and $172 was missing. Bravo later identified defendant as the robber.
Michele Fasciola and her boyfriend visited the restaurant’s drive-thru window at approximately 1:30 a.m. that same morning. As they waited for their food, they saw a man run from the back of the restaurant toward where they were waiting, then turn around and go back behind the restaurant. A few minutes later, they saw the man standing behind them at the drive-thru. As they pulled away, the man walked toward the window. As they drove toward the exit, they saw a red sedan with its lights on and its engine running behind the restaurant. Someone was sitting in the passenger seat. Fasciola found the situation “strange” and told her boyfriend to write down the red sedan’s license plate number, which he did. As they drove home, they saw two police cars with their lights activated heading toward the restaurant. They returned and gave the police the piece of paper with the license plate number written on it. The license plate number belonged to a BMW in Los Angeles. The license plate belonging to a red Mazda registered to defendant was one character off.
At approximately 2:00 a.m., the restaurant manager arrived at the restaurant and found a Social Security card bearing defendant’s name near the drive-thru window.
At the time of the robbery, defendant was living with his aunt. At 11:50 p.m. on January 17, 2006 (an hour or so before the robbery), Eric Donald, a codefendant in the underlying case, telephoned the aunt’s home and spoke to defendant. Shortly thereafter, defendant left in his red car. The aunt did not hear from defendant again until approximately 7:30 a.m. the following morning.
On the night of January 17, 2006, Donald’s live-in girlfriend, Armine Agabekyan, overheard a telephone conversation between Donald and defendant during which Donald said “that they were going to rob somebody.” Donald left later that night. He returned the following morning with defendant in defendant’s car. Agabekyan did not see either man carry anything into the apartment. Early the next morning, she saw a short-barreled shotgun underneath the couch in the apartment. She did not recall seeing a firearm inside the apartment prior to that time. Later that morning, police came to the apartment to speak to Donald. While Donald was speaking to the police outside, Agabekyan put the shotgun between her mattress and box spring.
According to defendant’s mother, defendant arrived at her home in San Francisco at approximately 4:00 a.m. on January 18, 2006.
Steve Glen, a detective with the Sacramento Police Department, interviewed defendant on January 18, 2006. Defendant denied any involvement in the robbery and said he was at his mother’s house in San Francisco when it occurred.
DISCUSSION
I.
Defendant contends his due process rights were violated during the People’s direct examination of Detective Glen when Glen indicated that he ceased questioning defendant when defendant “started talking about would he have a lawyer.” We disagree.
Detective Glen testified to the following on direct examination: he questioned defendant at the police station following defendant’s arrest and after advising defendant of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). He told defendant that defendant had been arrested in connection with a robbery. Defendant denied involvement in the robbery and said he was at his mother’s house in San Francisco at the time the robbery occurred. In an attempt to “get [defendant] to perhaps provide information saying that he was involved in the robbery,” Glen suggested that perhaps the restaurant employee who took his order misunderstood him. Defendant responded, “Let’s say it’s a misunderstanding[.]” Glen also told defendant that defendant was “here for a reason and we just didn’t pick him out of a hat,” and defendant replied, “I know.” When Glen was asked whether “at some point did you conclude your conversation with [defendant],” he responded, “[y]es. [Defendant] started talking about would he have a lawyer.” Defense counsel objected, the jury was excused, and defense counsel moved for a mistrial, arguing, “This witness just testified that my client . . . invoked his right to a lawyer. I believe that’s tantamount to a post-arrest silence and would be Doyle error . . . there’s the potential this jury can take a prejudiced view towards my client for that indication.” The court ruled Glen’s testimony was “not an express and clear Doyle error” because “the statement itself was not that [defendant] asserted his right to counsel,” but rather “that he was inquiring . . . about whether or not he would be able to get counsel, which would be . . . more along the lines of ‘What are my rights?’” The court further ruled that any error was harmless because[] “there [was] only a brief and mild reference to the fact that . . . defendant asked for an attorney . . . .”
“It is established that a person’s invocation of his . . . right to remain silent cannot be used as evidence of guilt. Official advice pursuant to Miranda of a person’s right to remain silent carries with it an implicit assurance that ‘silence will carry no penalty.’ [Citation.] Doyle held specifically that ‘it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.’ [Citations.] Doyle stands for the more general principle that a person’s silence in apparent reliance on Miranda advice cannot be used against him . . . in a criminal trial. By extension, the prosecution also cannot use a person’s refusal to answer questions or his or her invocation of the right to remain silent or the right to counsel. [Citations.]” (People v. Lopez (2005) 129 Cal.App.4th 1508, 1525.)
Here, even assuming defendant’s statement to Detective Glen constituted an invocation of his right to counsel, his invocation was not used against him at trial. Rather, its brief mention explained why Detective Glen’s questioning of defendant ceased. (People v. Huggins (2006) 38 Cal.4th 175, 199 [no Doyle error where “[t]he prosecutor referred to the fact that defendant asked for an attorney only to show that the interview ended after defendant denied any involvement in the victim’s death”].)
“In any event, this brief and mild reference to the fact that defendant asked [about] an attorney did not prejudice defendant. [Citations.]” (People v. Huggins, supra, 38 Cal.4th at p. 199.)
II.
Defendant next contends his “sentence [o]n count two [possession of a short-barreled shotgun] must be stayed because punishment for this count is barred by section 654.” Again, we disagree.
Section 654, subdivision (a) provides in pertinent 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.” The purpose of section 654 is to ensure that a defendant’s punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) “[I]f all of 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.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Whether a defendant held multiple criminal objectives is an issue of fact, and if supported by substantial evidence, the trial court’s determination will be upheld on appeal. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466; People v. Braz (1997) 57 Cal.App.4th 1, 10.)
Defendant argues “the crimes committed in counts 1 [robbery] and 2 [possession of a short-barreled shotgun] were incident to one goal, namely, to commit the robbery . . . .”
As a general rule, “a defendant may not be punished both for possession of a weapon and for another offense in which the weapon is used, where the evidence does not show possession for any other purpose.” (People v. Jurado (1972) 25 Cal.App.3d 1027, 1033.) If, however, there is evidence the defendant possessed the weapon for some purpose other than committing the offense in which it was used, section 654, subdivision (a), does not apply. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Indeed, “section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (Id. at p. 1145, emphasis in original.)
Here, the trial court reasonably could infer defendant possessed the shotgun prior to forming the intent to commit the robbery. Defendant appeared at the drive-thru window armed with the shotgun. Based on Agabekyan’s testimony that she did not recall seeing a firearm in the apartment she shared with Donald prior to the robbery, the court could conclude that defendant brought the shotgun to the robbery.
This is not a case “where the evidence shows that the firearm came into . . . defendant’s possession fortuitously ‘at the instant of committing another offense . . . .’” (People v. Jones, supra, 103 Cal.App.4th at p. 1145, quoting People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) Defendant’s assertion that “[t]he evidence . . . shows that [he] formulated the intent to commit a robbery and then secured a gun in order to effectuate this goal” appears to be based, at least in part, on an incorrect reading of the record, namely that the gun was hidden under Donald’s couch before the robbery. As previously discussed, the record indicates just the opposite -- that the shotgun appeared under Donald’s couch only after the robbery was completed.
The trial court did not err in failing to stay defendant’s sentence for possessing a short-barreled shotgun.
III.
Finally, defendant asserts, and the People concede, he is entitled to one additional day of presentence custody credit. We agree.
Defendant was in custody from January 18, 2006, until his sentencing on January 5, 2007, for a total of 353, not 352, days. This does not affect defendant’s conduct credits, which were correctly computed based on the 15-percent limitation of section 2933.1.
DISPOSITION
The judgment is modified to award defendant custody credits of 353 days and conduct credits of 52 days, for a total credit of 405 days. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur BLEASE, Acting P.J., MORRISON, J.