Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Robert George Spitzer, Judge. Super. Ct. Nos. RIF123592, RIF126263
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Following a jury trial, defendant was found guilty of two counts of possessing methamphetamine for sale (Health & Saf. Code, § 11378) (counts 1 and 3); one count of possessing cocaine for sale (Health & Saf. Code, § 11351.5) (count 2); one count of possessing methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1) (count 4); one count of possessing a short-barrel shotgun (Pen. Code, § 12020, subd. (a)(1)) (count 5); and four counts of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (counts 7, 8, 9, and 10). The jury also found true that defendant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)) in the commission of count 3. In connection with count 3, defendant admitted that he had previously suffered a prior conviction for violating Health and Safety Code section 11378 within the meaning of Health and Safety Code section 11370.2. Defendant was sentenced to a total term of 11 years in state prison as follows: the midterm of two years on count 3, plus a consecutive midterm of four years for the firearm enhancement attached to that count; a consecutive midterm of 16 months on count 2; a consecutive midterm of eight months on count 5; a consecutive three years for the prior drug conviction enhancement attached to count 3; and concurrent sentences of two years each on counts 1, 8, 9, and 10. The sentences on counts 4 and 7 were stayed pursuant to Penal Code section 654.
The jury found defendant not guilty of receiving stolen property (§ 496) as alleged in count 6.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) the sentence on count 5 should have been stayed pursuant to section 654, and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed a consecutive eight-month term on count 5. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
A. Counts 1 and 2
In May 2005, defendant lived in an apartment complex on Spring Street in Highgrove. About 8:00 p.m., on May 12, 2005, a Riverside County sheriff’s deputy was dispatched to the carport alleyway at the complex in response to reports of drug-dealing activity. The reporting party had provided a carport location and partial clothing description of the person selling drugs.
When the deputy arrived at the location, he found defendant and codefendant Carlos Garcia standing in the carport next to a truck. A desk and chairs had also been set up in the carport. The deputy searched Garcia and found a wad of loose cash totaling $1,570 and a dollar bill used as a bindle for 2.5 grams of methamphetamine. A digital scale was also found in a trash can in the back of the carport, where defendant had been standing, underneath a storage locker marked “E.” Under this storage locker, another deputy found a plastic bag containing 16.8 grams of methamphetamine and a plastic bag containing 27.2 grams of cocaine base.
Codefendant Garcia is not a party to this appeal.
Codefendant Garcia was arrested. Defendant and another man were not arrested at that time.
B. Counts 3 through 10
On September 30, 2005, Riverside County sheriff’s deputies were conducting another narcotics investigation in the same carport alleyway. About 9:30 p.m., they saw 11 people standing in or around the carport, as well as at least two “drive-by” drug sales and other hand-to-hand drug transactions. As the deputies approached the carport area, they saw defendant sitting in the driver’s seat of a red Ford. A bindle containing 0.5 grams of methamphetamine was found right next to where defendant had been sitting.
On defendant’s person, the deputies found keys to storage lockers “B” and “E.” Defendant consented to a search of the lockers and admitted that he had used storage locker “E” and that it contained guns.
In storage locker “E” the deputies found a .22-caliber semiautomatic handgun, a sawed-off 12-gauge shotgun with a barrel measuring 14.5 inches, a .22-caliber rifle, and a loaded nine-millimeter handgun. Loose ammunition for various guns was also found in the storage locker. A search of the locker further disclosed one bindle containing 3.5 grams of methamphetamine, two egg-sized bindles containing 28.5 and 28.8 grams of methamphetamine respectively, and a bindle containing 10.5 grams of marijuana.
Defendant was thereafter arrested, and a search of his person revealed $499 in cash. He was later also charged with possession of cocaine and methamphetamine in the May 2005 incident.
II
DISCUSSION
A. Section 654 as to Count 5
Defendant contends that the trial court erred in imposing a consecutive term of eight months on count 5 (possession of a short-barreled sawed-off shotgun), because the same sawed-off shotgun was designated as the prohibited firearm for the gun enhancement attached to count 3. He therefore claims the consecutive term on count 5 should have been stayed pursuant to section 654.
As defendant and the People point out, we note that there is a split of authority as to whether section 654 applies to enhancements in the first instance. (See People v. Coronado (1995) 12 Cal.4th 145, 157 (Coronado) and cases cited therein.) The issue is currently before the California Supreme Court. (See People v. Carter (2005) 36 Cal.4th 1215, 1269, fn. 36 [“[t]he question whether section 654 applies to enhancements is before us in People v. Palacios (review granted May 11, 2005, S132144)”]; see also People v. Manila (review granted Sept. 20, 2006, S144885).)
Defendant argues that an enhancement or a substantive offense based on a defendant’s criminal conduct is subject to the Penal Code section 654 prohibition against multiple punishment when the same conduct underlies both the enhancement and an offense for which the defendant has been separately sentenced. He relies upon Coronado to urge that the possession of the sawed-off shotgun (count 5), which was based on defendant’s conduct, is subject to Penal Code section 654, as he committed one act in connection with the shotgun. Coronado draw a distinction between enhancements related to the defendant’s status, such as recidivist enhancements, versus enhancements related to the defendant’s conduct. (Coronado, supra, 12 Cal.4th at p. 157.) However, that case does not address the question of whether Penal Code section 654 bars imposition of a conduct-related enhancement where the same conduct underlies both the enhancement and an offense for which the defendant was separately punished. Coronado held only that a single prior conviction and resulting prison term may be used both to elevate a violation of Vehicle Code section 23152 to a felony under Vehicle Code section 23175 and to enhance the sentence for such conviction under Penal Code section 667.5, subdivision (b) without violating Penal Code section 654. (Coronado, at p. 159.)
Nonetheless, until our high court provides otherwise, we will apply section 654 to enhancements as done in the past by our court and the majority of other courts. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1392-1393; see also People v. Reeves (2001) 91 Cal.App.4th 14, 55-56.)
Assuming section 654 applies to sentence enhancements, imposition of the firearm enhancement (personally being armed with the shotgun within the meaning of section 12022, subdivision (a)) in commission of count 3 (possession of methamphetamine for sale) and the substantive offense of possession of the shotgun (count 5) was proper.
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.” Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) “The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives “‘“independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct.” [Citations.]’ [Citations.]” (People v. Centers, supra, 73 Cal.App.4th at p. 98.) The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple. (People v. Beamon (1973) 8 Cal.3d 625, 636-639.) “[T]he question of whether the acts of which a defendant has been convicted constituted an indivisible course of conduct is primarily a factual determination, made by the trial court, on the basis of its findings concerning the defendant’s intent and objective in committing the acts. [Citations.] This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.” (People v. Ferguson (1969) 1 Cal.App.3d 68, 74-75; see also People v. Nichols (1994) 29 Cal.App.4th 1651, 1657; People v. Coleman (1989) 48 Cal.3d 112, 162.) “We review the trial court’s findings ‘in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
Here, the trial court implicitly found that defendant harbored more than one criminal act or objective in committing the gun enhancement and count 5. Defendant errs in assuming the only act supporting the gun enhancement in commission of counts 3 and 5 was his placing the shotgun in the storage locker. However, it is reasonable to infer that defendant possessed the loaded shotgun before the drug possession offense began and had it for other purposes.
In People v. Ratcliff (1990) 223 Cal.App.3d 1401 (Ratcliff), the defendant used a gun to commit two robberies an hour and a half apart. The Court of Appeal rejected his argument that imposing sentences for being armed during the robberies and being a felon in possession of a firearm violated section 654. Ratcliff explained: “Unlike in Bradford and Venegas, 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. [Citation.] 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.” (Ratcliff, at pp. 1413-1414, italics added.)
Similarly, in People v. Jones (2002) 103 Cal.App.4th 1139 (Jones), the Court of Appeal rejected defendant’s claim his possession of a firearm was incidental to and simultaneous with the primary offense of shooting at an inhabited dwelling. There, defendant’s accomplice attempted to speak to defendant’s former girlfriend while defendant remained in a parked car. Defendant and his companion departed after being told she was unavailable. Approximately 15 minutes later, defendant and his cohort returned. Defendant fired several shots at the residence and fled the scene. Investigators searched defendant’s residence about one week later but failed to recover the gun or ammunition.
The Jones court concluded substantial evidence supported the trial court’s implied findings the defendant’s 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.” (Jones, supra, 103 Cal.App.4th at p. 1147.) As to whether defendant’s possession formed part of an indivisible transaction, the court observed: “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. Jones’s use of the weapon . . . 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.’ [Citation.] That Jones did not possess the weapon for a lengthy period before commission of the primary crime is not determinative.” (Id. at pp. 1147-1148.)
Though the evidence here is not as clear as in Ratcliff and Jones, the trial court impliedly found defendant possessed the shotgun before personally being armed with the shotgun in commission of the possession of methamphetamine for sale. “A justifiable inference from this evidence is that defendant’s possession of the weapon was not merely simultaneous with” the drug sale, “but continued before, during and after” that crime. (Ratcliff, supra, 223 Cal.App.3d at p. 1413.) Defendant’s act of concealing the shotgun in the storage locker, along with several other weapons and ammunition, suggests an intent to prevent anyone thwarting his prohibited possession, an intent separate and distinct from personally being armed with the firearm in the commission of the drug sale. Substantial evidence thus supports the trial court’s conclusion, and we cannot say the trial court drew unreasonable inferences from the evidence. The trial court is vested with broad discretion in making its factual determination, and we presume the existence of every fact reasonably deduced from the evidence. (People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.) As the Supreme Court has noted, if the defendant’s objectives were “consecutive even if similar,” courts have found separate punishment to be justified. (People v. Britt (2004) 32 Cal.4th 944, 952.) In People v. Latimer, supra, 5 Cal.4th 1203, the court expressly stated, “[W]e do not intend to question the validity of decisions finding consecutive, and therefore separate, intents . . . .” (Id. at p. 1216.)
Accordingly, the trial court did not err by failing to stay the sentence imposed on count 5 pursuant to section 654.
B. Consecutive Term on Count 5
Defendant was sentenced to a total term of 11 years in state prison, which included a consecutive sentence of 16 months on count 2 and a consecutive sentence of eight months on count 5. After the trial court noted it was designating count 2 as a subordinate term, the court stated, “Consecutive term is imposed in this case, because it involves the defendant’s activity on another date and time, also advancing the criminal end of selling and distributing narcotics.”
Assuming that the court’s above-noted comments for imposing consecutive terms did not apply to count 5, defendant initially argues the court erred in failing to state its reasons for imposing a consecutive sentence on count 5. The People contend that because defendant failed to raise this issue at the trial level, he has waived this claim. We agree. The waiver doctrine applies to claims regarding a trial court’s failure to properly make or articulate discretionary sentencing choices including cases in which the court failed to state reasons or give a sufficient number of valid reasons. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Bautista (1998) 63 Cal.App.4th 865, 868.) Defendant does not address the question of waiver. By failing to raise his objection at sentencing, defendant has waived his right to claim it here. (People v. De Soto (1997) 54 Cal.App.4th 1, 8.)
Defendant next asserts that imposition of the consecutive term without jury findings on circumstances in aggravation to support a consecutive sentence violated the federal constitutional guarantees of jury trial and proof beyond a reasonable doubt pursuant to Blakely, supra,542 U.S. 296 and Apprendi, supra,530 U.S. 466.
Defendant’s attempted analogy of California’s consecutive/concurrent sentencing framework to the upper term/middle term framework struck down in Cunningham v. California (2007) ___ U.S. ___, ___ [127 S.Ct. 856, 868] (Cunningham) is unavailing because under the concurrent/consecutive sentencing system established by section 669, there is no mandatory statutory presumption. (§ 669 [when a defendant is convicted of multiple offenses, the trial court “shall direct whether the terms of imprisonment . . . to which he or she is sentenced shall run concurrently or consecutively”].) Rather, the trial court is granted full discretion to sentence consecutively or concurrently -- discretion that is not conditioned, as it is in selecting an upper term, upon any additional factual findings. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) Thus, the jury’s guilty verdict on multiple counts alone authorizes the imposition of consecutive sentences, and consequently no Cunningham error occurs when the trial court imposes consecutive sentences. (People v. Brown (2007) 148 Cal.App.4th 911, 917 [“[a]llowing a judge to decide whether terms should be served consecutively or concurrently . . . is constitutionally proper”].)
Cunningham did not address consecutive sentences and did not expressly overrule People v. Black (2005) 35 Cal.4th 1238 at page 1262, which held that consecutive sentencing decisions are not affected by the United States Supreme Court decisions in Apprendi, supra, 530 U.S. 466 and Blakely, supra, 542 U.S. 296.
We note that our Supreme Court is currently considering whether Cunningham affects the aspect of Black which held that a judge’s discretionary imposition of consecutive sentences does not implicate a defendant’s Sixth Amendment rights. (See People v. Black, supra, 35 Cal.4th 1238, cert. granted, judg. vacated and cause remanded sub nom. Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210, 167 L.Ed.2d 36]; see also People v. Hernandez (2007) 147 Cal.App.4th 1266, review granted May 9, 2007, S151549.) In the interim, we are guided by Black’s holding on the issue of consecutive term sentences and conclude that entrusting to the trial courts the decision whether to impose concurrent or consecutive sentencing under California’s sentencing laws is not precluded by the decisions in Apprendi, Blakely, and Cunningham.
II
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P.J., McKINSTER J.