Opinion
E052917 Super.Ct.No. SWF005981
11-03-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS DOMINGUEZ, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge. Affirmed.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
This is the third appeal by defendant Jose Luis Dominguez. Following the first and second appeals, we remanded the matter for resentencing. On the second remand, defendant was resentenced on counts 2, 5, 6, 7, 8, and 10 to an aggregate term of 23 years 8 months in prison.
We have taken judicial notice of the record in the second appeal in case No. E049951, which contains our opinion in the second appeal (People v. Dominguez (Aug. 16, 2010, E049951) [nonpub. opn.]) and a copy of our opinion in the first appeal (People v. Dominguez (July 15, 2009, E045944) [nonpub. opn.]).
On this appeal, defendant claims his concurrent four-year term on count 7 must be stayed because he cannot be separately punished on counts 7 and 8. (Pen. Code, § 654.)In count 7, he was convicted of possessing a firearm as a felon. (Pen. Code, § 12021, subd. (a)(1).) In count 8, he was convicted of possessing a loaded firearm while under the influence of a controlled substance. (Health & Saf. Code, § 11550, subd. (e).) On the second remand, he was resentenced to four years on count 7 and 16 months on count 8. Neither term was stayed.
All further statutory references are to the Penal Code unless otherwise indicated.
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We conclude that substantial evidence supports the trial court's implied finding that defendant had separate objectives in committing counts 7 and 8. In addition, separate punishment for each offense was commensurate with defendant's culpability, because each offense posed a unique danger to the public, and the offenses were committed on separate occasions. Accordingly, we reject defendant's claim of sentencing error and affirm the judgment in all respects.
II. BACKGROUND
As indicated in our opinion in the first appeal, the crimes charged in counts 7 and 8 occurred on different dates and arose out of separate incidents. (People v. Dominguez (July 15, 2009, E045944) [nonpub. opn.].) The felon-in-possession conviction in count 7 was based on an incident that occurred on October 25, 2003, outside a Perris restaurant. Defendant, then a convicted felon, was confronted outside the restaurant by Miguel Lara. Defendant pulled out a black gun and pointed it at Lara. When defendant tried to cock the gun, an unexpended bullet flew out of it, ricocheted off the ground, and struck the leg of a bystander, Sandra Gomz Ulloa, seriously injuring her. At that point, defendant left the area.
Defendant's conviction in count 8 arose from a separate incident that occurred on November 10, 2003. On that date, an officer was on his way to execute a search warrant at defendant's house in Moreno Valley when he saw defendant driving in the opposite direction. The officer stopped defendant. A black semiautomoatic handgun was found in defendant's car, and defendant appeared to be under the influence of methamphetamine. Defendant was later determined to be under the influence of methamphetamine, and methamphetamine was found on a plate in his house.
Based on the October 25 incident, defendant was charged with numerous offenses but was ultimately convicted of the attempted voluntary manslaughter of Lara in count 2, assaulting Sandra and Lara with an automatic firearm in counts 5 and 6, respectively, and possessing a firearm as a felon in count 7. The jury also found that defendant personally inflicted great bodily injury in count 5 and personally used a firearm in counts 5 and 6. Based on the November 10 incident, defendant was convicted of possessing a loaded firearm while under the influence of a controlled substance in count 8, and possessing methamphetamine in count 10. Defendant admitted a prior strike conviction and a prior serious felony conviction.
Defendant was originally sentenced to 24 years 4 months in prison. Following defendant's first appeal, we remanded the matter for the trial court to consider striking defendant's prior strike and imposing concurrent rather than consecutive terms on counts 5 and 6. On remand, the court imposed the same aggregate sentence of 24 years 4 months, but on different grounds. Defendant again appealed, and we again remanded the matter for resentencing, because on the first remand the court imposed a greater than allowable term on defendant's attempt conviction in count 2.
On the second remand, defendant was sentenced to an aggregate term of 23 years 8 months. On count 5, he was sentenced to 19 years, including 12 years for the conviction, four years for the personal use enhancement, and three years for the great bodily injury enhancement. On count 2, the court imposed a two-year consecutive term, plus 16 months for the great bodily injury enhancement, for a total consecutive term of three years four months. On count 8, the court imposed an additional consecutive term of 16 months, making defendant's total sentence 23 years 8 months on counts 2, 5, and 8. Concurrent terms were imposed on counts 6, 7, and 10, and on the personal use enhancement on count 6. No terms were stayed.
III. DISCUSSION
Defendant claims the court erroneously failed to stay his four-year concurrent term on count 7 because section 654 prohibits separate punishment on counts 7 and 8. (§ 654.) We disagree.
Section 654 prohibits multiple punishment when the same "act or omission" or an indivisible course of conduct violates two or more criminal statutes. (§ 654; People v. Deloza (1998) 18 Cal.4th 585, 591.) If two or more offenses are committed pursuant to a single intent and objective, the defendant can be punished for only one of the offenses. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) When section 654 applies, punishment for one offense must be imposed, and punishment for the other offense or offenses must be imposed and stayed, and cannot be imposed concurrently or consecutively. (People v. Deloza, supra, at p. 592.) This serves the purpose of section 654, which is to ensure that the defendant's punishment is "'commensurate with his culpability.'" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Whether the defendant harbored the same or a separate objective in committing two or more offenses is a question of fact for the trial court, and its finding, whether express or implied, will be upheld on appeal if supported by substantial evidence. (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.) We review the trial court's determination in the light most favorable to the respondent, and we presume the existence of every fact the trial court could have reasonably deduced from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Defendant argues he had the same objective in possessing a firearm in counts 7 and 8, namely, to arm himself for protection. He claims the evidence "indicated that [he] simply possessed the firearm [in count 8], apparently for protection, during a time that he was under the influence of methamphetamine and had a prior felony conviction, so both offenses were committed pursuant to the same intent and objective and multiple sentences were prohibited . . . ." We are not persuaded.
The imposition of separate punishment on counts 7 and 8 was commensurate with defendant's culpability, and served the distinct purposes of the two statutes. "[Penal Code] Section 12021 uniquely targets the threat posed by felons who possess firearms." (People v. Jones, supra, 103 Cal.App.4th 1148.) By contrast, Health and Safety Code section 11550, subdivision (e) is designed to "foster public safety and protect law enforcement officers by deterring drug users from possessing loaded, operable firearms while they are under the influence of street drugs." (People v. Pena (1999) 74 Cal.App.4th 1078, 1087.)
Given the distinct dangers targeted by the two statutes, defendant should not avoid separate punishment for violating both statutes merely because he apparently intended to "arm himself for protection" in possessing a firearm on two separate occasions. Nor should he escape separate punishment on counts 7 and 8 merely because both offenses included the element of possessing a firearm. As the People point out, defendant, as "a felon, chose not only to possess a firearm, but to possess a loaded firearm while under the influence of methamphetamine.'' Indeed, and defendant also chose to commit these acts on separate occasions, uniquely endangering the public on each occasion.
In sum, substantial evidence supports the court's implied finding that defendant harbored separate objectives in committing counts 7 and 8. In committing count 7, he intended to possess a firearm as a convicted felon. In count 8, he intended to possess a loaded firearm while under the influence of methamphetamine. And the offenses were committed on separate occasions. Separate punishment for each offense was therefore proper. (See, e.g., People v. Harrison (1969) 1 Cal.App.3d 115 [separate punishment properly imposed for being a felon in possession of a firearm and carrying a loaded firearm in a vehicle on a public street]; People v. Vang (2010) 184 Cal.App.4th 912 [separate punishment properly imposed for being a felon in possession of a firearm and possessing methamphetamine while armed].)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
McKinster
Acting P.J.
Richli
J.