Opinion
D079440
02-21-2023
THE PEOPLE, Plaintiff and Respondent, v. KEVIN CAVE, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE379012 Patricia K. Cookson, Judge. Judgment affirmed, sentence vacated and remanded for resentencing.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
DO, J.
INTRODUCTION
A jury convicted Kevin Cave of several crimes after a failed robbery, including attempted robbery and unlawful possession of a firearm by a felon. He contends the trial court erred by failing to stay a consecutive sentence for his conviction for unlawful possession of a firearm by a felon, in violation of Penal Code section 654, because his possession of the firearm was part of an indivisible course of conduct with the single objective of committing a robbery. We reject this contention.
Undesignated statutory references are to the Penal Code.
Cave also asserts this matter should be remanded to allow the trial court to exercise its discretion under Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1) (Assembly Bill 518) to choose any eligible conviction as the principal count for sentencing purposes and stay any remaining counts under section 654. We agree with the People's concession that Cave is entitled to the benefit of the recent legislation and remand is required.
We requested and obtained supplemental briefing from the parties on three issues, whether: (1) the trial court erred in setting the amount of the restitution and parole revocation fines; (2) any unpaid portion of the now-repealed $154 criminal justice fee should be vacated; and (3) the trial court erred when calculating Cave's actual days in custody; and if the court erred, how the error impacts the calculation of credits under section 2933.1. In his supplemental briefing, Cave contends he is entitled to additional custody credits. On these additional issues, we conclude the trial court has corrected any error regarding the restitution and parole revocation fines; we vacate any unpaid portion of the $154 criminal justice fee; and we direct the trial court to address Cave's argument regarding additional custody credits on remand.
We vacate Cave's sentence and remand the matter for resentencing. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Cave's mother (Mother) lived in an apartment in El Cajon. She had an "up and down" relationship with Cave and, other than Christmas 2016, Cave had not been to her apartment for quite a while. Mother's neighbors saw Cave and a woman sitting on the steps outside Mother's apartment on a Tuesday in February 2017. The neighbor saw Cave and the woman go into and then leave Mother's apartment.
All unspecified date references are to 2017.
On Sunday February 26, Mother noticed her nine-millimeter 1911 Springfield semiautomatic handgun was missing. Cave knew about the gun, because he had previously seen it. Other items in plain sight, including cash, electronics, and prescription pain pills, were not taken. Mother reported the missing gun to the police the following day. She recalled that on the previous Tuesday, February 21, the door to her apartment had been unlocked when she came home from work, which was unusual because she always locked her door when she left the apartment.
In March, Cave told Victoria J. he wanted to commit a robbery and asked her multiple times to help him find someone to rob. He suggested a drug dealer would be the easiest person to rob because they always carry large amounts of cash. Around this time, Arthur B., who used to be Victoria's drug dealer, reached out to her to help him get a hotel room. Arthur picked up Victoria on March 17 and they went to a hotel. Victoria texted Cave to tell him where they were and that Arthur had drugs and money.
When Cave arrived at the hotel, he texted and called Victoria. She met Cave in the parking lot and tried to convince him that it was not a good idea to go through with the robbery because another person was there. Cave had a gun on his lap as he sat in his truck. He told Victoria it was late, he was tired, and just wanted "to get it over with."
After getting the hotel room key from Victoria, Cave went to the room wearing a mask over his face. When the door opened, Arthur saw a masked man pointing a gun at him who stated that this was a robbery and to "[g]ive [him] everything you got." Arthur told him, "No," so Cave fired the gun into the bed near Arthur. Arthur backed away and told Cave to take whatever he wanted. Cave put items into a bag, including laptops, electronics and a cell phone, and left the room.
When Arthur realized Cave had taken his car keys, he grabbed his knife and went looking for Cave. When Arthur found Cave just outside the room, Arthur stabbed him in the back. Arthur retrieved his belongings and left the scene. Victoria took Cave to a hospital where she hid the magazine of the gun in a bathroom. Police recovered the magazine and determined it was for a nine-millimeter 1911 style firearm.
A jury convicted Cave of attempted robbery (count 4) along with a personal use of a firearm enhancement, and unlawful possession of a firearm by a felon (count 5), among other charges. At sentencing, the trial court found the attempted robbery and felony possession of a firearm to be separate offenses that did not arise out of an indivisible course of conduct with the same objective. The trial court sentenced Cave to four years (the mid-term of two years doubled because of a strike) on the attempted robbery (count 4), and added a consecutive 10-year sentence for the firearm use enhancement under section 12022.53, subdivision (b). It imposed a consecutive sentence on the possession of a firearm by a felon (count 5), based on its finding that this count constituted "a separate, distinct offense."
DISCUSSION
I.
Section 654 Does Not Require Stay of Cave's Sentence for Unlawful Possession of a Firearm by a Felon
On appeal, Cave contends the trial court erred in failing to stay the sentence for being a felon in possession of a firearm under section 654 because he already received a 10-year enhancement for the use of the same firearm in the attempted robbery. Cave asserts his sole intent for possessing the firearm was to carry out the robbery. According to Cave, the act of possessing the firearm is indivisible from the attempted robbery committed using the firearm and cannot be separately punished under section 654. The People contend the evidence shows Cave possessed the gun before committing the attempted robbery and thus the firearm possession was a separate and antecedent offense entitled to separate punishment. We agree with the People.
Although Cave did not object to his sentence on the basis of section 654 in the trial court, the issue may be raised for the first time on appeal. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3.)
The purpose of section 654 is to ensure a defendant is punished" 'commensurate with his [or her] culpability.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant's intent and objective, not the temporal proximity of his or her offenses, determines whether multiple punishment is permissible. (Ibid.) When section 654 prohibits multiple punishments, the trial court must stay execution of sentence on the convictions that implicate multiple punishments. (People v. Correa (2012) 54 Cal.4th 331, 337.) We apply a two-step inquiry to determine whether a defendant may be subjected to multiple punishment under section 654. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).)
"We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude the case involves more than a single act-i.e., a course of conduct-do we then consider whether that course of conduct reflects a single' "intent and objective"' or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.] When those facts are undisputed . . . the application of section 654 raises a question of law we review de novo." (Corpening, supra, 2 Cal.5th at pp. 311-312.)" 'A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.'" (People v. Salazar (2022) 80 Cal.App.5th 453, 459.)
Here, Cave completed the crime of being a felon in possession of a firearm when he took the gun from Mother's home in February. (§ 29800, subd. (a)(1); People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410 (Ratcliff) ["Implicitly, the crime is committed the instant the felon in any way has a firearm within his control." (Italics omitted.)].) He then used the gun to attempt a robbery almost a month later on March 17. This case involves a course of conduct, rather than a single physical act.
We next "consider whether that course of conduct reflects a single' "intent and objective"' or multiple intents and objectives." (Corpening, supra, 2 Cal.5th at p. 311.) "Under section 654, a course of conduct divisible in time, though directed to one objective, may give rise to multiple convictions and multiple punishment 'where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.'" (People v. Lopez (2011) 198 Cal.App.4th 698, 717-718.)
Whether the possession of a firearm"' "constitutes a divisible transaction from the offense in which [defendant] employs the weapon depends upon the facts and evidence of each individual case." '" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) Section 654 does not preclude a court from imposing sentences for both possession of a firearm by a felon and an"' "offense in which [the defendant] employs" '" the firearm where "the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm." (Jones, at pp. 1143, 1145; People v. Venegas (2020) 44 Cal.App.5th 32, 37-38 [court properly imposed a concurrent term for possession of a firearm by a felon where defendant purposefully possessed gun before murder took place, nothing "suggested someone handed [defendant] the gun at the scene, or that [defendant] happened upon a loaded [gun] on the street"].) As another court explained, the purpose of criminalizing possession of a firearm by a felon is to minimize the danger to public safety posed by access to weapons that can be used in crimes of violence, and" '[t]he law presumes the danger is greater when the person possessing the concealable firearm has previously been convicted of felony[.]'" (Ratcliff, supra, 223 Cal.App.3d at p. 1409.)
In contrast, section 654 will bar multiple punishments where the evidence shows a felon fortuitously came into possession of a firearm when committing a separate crime. In People v. Bradford (1976) 17 Cal.3d 8 (Bradford), the Supreme Court held section 654 prohibited separate punishments for assault with a deadly weapon upon a peace officer and possession of a firearm by an ex-felon where the defendant wrested away the officer's gun and shot at the officer after the officer stopped defendant for speeding. (Id. at pp. 13, 22-23.) Unlike this case, there the defendant's possession of the officer's revolver was not" 'antecedent and separate'" from his use of the gun in assaulting the officer. (Id. at p. 22.)
The record reveals that Cave's possession of the gun was "distinctly antecedent and separate from the primary offense" of attempted robbery, so as to allow separate punishment. (Bradford, supra, 17 Cal.3d at p. 22.) Cave completed the crime of being a felon in possession of a firearm the moment he took the weapon from his mother. (Ratcliff, supra, 223 Cal.App.3d at p. 1410.) He maintained possession of the gun for nearly a month. He then used and fired it in an attempt to commit a robbery.
Cave "necessarily intended to possess the firearm when he first obtained it .... That he used the gun to [attempt a robbery] required a second intent in addition to his original goal of possessing the weapon. [Cave's] use of the weapon after completion of his first crime of possession of the firearm thus comprised a 'separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.'" (Jones, supra, 103 Cal.App.4th at p. 1147.) The evidence supports the trial court's conclusion that because Cave possessed the gun before the attempted robbery, he had a separate intent and objective for both offenses. Punishing Cave for possessing the gun as a felon and for using the gun to attempt a robbery was commensurate with his culpability, and consistent with section 654.
II.
The Recent Amendment to Section 654 Applies Retroactively to Cave
Cave asks us to remand the matter on the ground his sentence fails to comply with the ameliorative change to former section 654. The Attorney General concedes the new discretion afforded by Assembly Bill 518 applies and that a remand is required. The People's concession is proper.
At the time of Cave's sentencing in 2019, former section 654, subdivision (a), required a defendant who committed an act punishable by two or more provisions of law be punished under the provision that provided for the longest possible term. (Stats. 1997, ch. 410, § 1.) "As amended by Assembly Bill 518, . . . section 654 now provides the trial court with discretion to impose and execute the sentence of [any] term, which could result in the trial court imposing and executing [a] shorter sentence rather than the longe[st] sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 379.) These amendments apply retroactively to Cave's nonfinal sentence. (See ibid.)
The appropriate remedy is to remand for resentencing, unless the record clearly indicates the trial court would have imposed the same sentence" 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [remand required where trial court was "unaware of the scope of its discretionary powers"].) We see no such clear indication-nor have the parties identified any-so we will remand for resentencing. Cave's sentence is vacated and the matter remanded for resentencing where the trial court may reconsider all sentencing choices. (People v. Buycks (2018) 5 Cal.5th 857, 893 [under the" 'full resentencing rule,'" on remand for resentencing" 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of . . . changed circumstances' "].) We express no view on how the court should exercise its discretion in resentencing Cave.
III.
Supplemental Briefing Issues
A. The Trial Court Corrected the Restitution and Parole Revocation Fines
The maximum restitution fine is $10,000 (§ 1202.4, subd. (b))," 'regardless of the number of victims or counts involved.'" (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) A court has "no statutory authority to impose a restitution fund fine exceeding $10,000." (People v. Martinez (2014) 226 Cal.App.4th 1169, 1191, fn. 14.) Section 1202.45, subdivision (a), requires the trial court to set the parole revocation fine in the same amount as the restitution fine. Here, the trial court initially erred by setting the restitution and parole revocation fines at $12,000. It later corrected this error, nunc pro tunc, by setting the restitution and parole revocation fines at $8,000.
B. Any Unpaid Portion of Criminal Justice Fee Must Be Vacated
The court ordered Cave to pay a $154 criminal justice fee under Government Code section 29550. Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Stats. 2020, ch. 92, § 11.) "added Penal Code section 1465.9 and Government Code section 6111, which provide that on and after July 1, 2021, the unpaid balance of [the criminal justice fee] imposed by the court 'shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.' (Pen. Code, § 1465.9, subd. (a); see Gov. Code, § 6111, subd. (a).)" (People v. Pacheco (2022) 75 Cal.App.5th 207, 215.) The parties agree and we conclude, that on remand, the trial court must vacate any unpaid portion of the criminal justice fee.
C. The Trial Court Must Recalculate Cave's Custody Credits
Police arrested Cave on June 15, 2017. At that time, he was on probation for a 2015 robbery. On November 14, 2017, his probation for the 2015 robbery was revoked and he was sentenced to a two-year prison term.
The felony complaint in this current case is dated March 6, 2018. Cave started earning custody credits for this case on March 19, 2018. From July 5, 2018 to July 13, 2018, Cave did not earn credits because he was out of custody on bail. The court raised Cave's bail on July 13, 2018, which sent him back into custody.
On February 19, 2019, the court sentenced Cave consecutive to any "previous sentences that have been imposed." It credited Cave with 331 actual days of custody and 49 days of credits under section 2933.1. Cave's counsel questioned the court's calculations, stating that Cave had been in custody "an actual time of two years." The court ordered the probation department to recalculate the credits but the record does not indicate whether this was done, nor is there a record of any changes made to the court's credit calculation.
Neither party challenged the trial court's award of 331 actual days of custody and 49 days of conduct credit under section 2933.1, and we agree this calculation is correct. However, Cave contends he is entitled to 153 days additional presentence custody credits from the date of his initial arrest on June 15, 2017 to November 14, 2017, when he was sentenced to a two-year prison term on his probation revocation, claiming that his conduct in the instant case led to the revocation of his probation in the prior case. In turn, he claims an additional 23 days of credit under section 2933.1, for a total of 176 days. Because Cave is entitled to recalculation of his custody credits following resentencing, he may raise this issue in the trial court on remand.
Section 2900.1 provides that when a defendant has served a portion of a sentence imposed based upon a judgment which is subsequently modified during the term of imprisonment, the time served "shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." In People v. Buckhalter (2001) 26 Cal.4th 20, our Supreme Court held, "When . . . an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.' (§ 2900.1.)" (Buckhalter, at p. 23.) Thus, when a defendant is resentenced, all actual time spent in custody, whether in jail or prison, should be credited against the modified sentence, and such credit should be reflected in the amended abstract of judgment. (Id. at pp. 37, 41; People v. Sek (2022) 74 Cal.App.5th 657, 673.) Because we are remanding this matter for a full resentencing hearing based on the amendment of section 654 by Assembly Bill 518, the trial court is directed to recalculate defendant's custody credits after resentencing.
Section 2900.5, subdivision (d), assigns the task of calculating custody credits to the trial court. Where, as here, multiple cases are involved, a determination must be made "whether the defendant is entitled to credit in each of the multiple cases for the same period of time, or whether the defendant will be entitled to credit only once for any given period of custody." (Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2022) §15.12, p. 950.) A defendant is entitled to actual time for a probation revocation if probation was "revoked solely because of the current crime; if the revocation is due to any other cause, the defendant is not entitled to any credits against the new custody term." (Id. at §15.10, p. 945.)
At sentencing, the trial court requested the probation department recalculate Cave's credits but this apparently did not occur. We cannot ascertain from the record whether Cave's new offenses of which he was convicted in this case were the" 'but for' cause" of the presentence custody at issue. (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194 ["where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a 'but for' cause of the earlier restraint"].) Cave's argument that he is entitled to 153 days additional presentence custody credits and an additional 23 days of credit under section 2933.1 is more appropriately addressed in the trial court on remand.
Assuming, without deciding, that Cave is entitled to 153 days additional presentence custody credits, the 15 percent conduct credit under section 2933.1 is limited to the largest whole number that does not exceed the 15 percent limitation. (People v. Ramos (1996) 50 Cal.App.4th 810, 816-817.) Thus, his credit under section 2933.1 would be 22 days, not 23 days.
DISPOSITION
Cave's sentence is vacated and this matter is remanded for a full resentencing hearing consistent with current law and to strike the unpaid balance of the $154 criminal justice fee. On remand, the trial court is directed to recalculate Cave's actual custody credits as of the date of resentencing and Cave may raise his contention regarding his entitlement to additional custody credits. Following resentencing, the trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
WE CONCUR: McCONNELL, P. J. DATO, J.