Opinion
B203365
9-4-2008
THE PEOPLE, Plaintiff and Respondent, v. DANNY DELAPAZ RIVERA, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant and appellant Danny Delapaz Rivera appeals from the judgment entered following a jury trial that resulted in his convictions for possession of a firearm by a felon and unlawful possession of ammunition. The trial court sentenced Rivera to a term of four years in prison.
Riveras sole contention on appeal is that Penal Code section 654 bars imposition of sentence on one of the convictions. We disagree, and affirm the convictions and sentence.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On the morning of December 20, 2006, police officers executed a search warrant at the Cudahy home occupied by appellant Rivera. Rivera and his family were detained outside the residence while the officers searched the premises. In Riveras bedroom, officers observed an unloaded AK74 semiautomatic assault rifle standing inside an open closet. The bolt and firing pin were detached from and sitting next to the rifle. The rifle could not be fired until the bolt was inserted, but was operable when assembled and loaded.
Eight bullets, of a variety of calibers, were found inside a plastic bag on a hallway table. Six bullets, all of the same caliber and manufacturer, were found in the bottom of an entertainment console in the family room.
The parties stipulated that Rivera had suffered a prior felony conviction.
2. Procedure.
Trial was by jury. Rivera was convicted of possession of a firearm by a felon (§ 12021, subd. (a)(1)), and possession of ammunition by a person prohibited from possessing a firearm (§12316, subd. (b)(1)). The jury was unable to reach a verdict on count 2, possession of an assault weapon, and the charge was dismissed in the interest of justice (§1385). In a bifurcated proceeding, the trial court found Rivera had suffered a prior "strike" conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). It sentenced Rivera to a term of four years in prison. It imposed a restitution fine, a suspended parole restitution fine, and a court security assessment. Rivera appeals.
DISCUSSION
As noted, Rivera was convicted of possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 1) and possession of ammunition by a person prohibited from possessing a firearm (§ 12316, subd. (b)(1)) (count 3). The trial court imposed the midterm of two years on the possession of a firearm count, doubled pursuant to the Three Strikes law. On count 3, the court imposed a concurrent sentence of two years, also doubled.
Section 12021, subdivision (a)(1) provides: "Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony."
Section 12316, subdivision (b)(1) provides: "No person prohibited from owning or possessing a firearm under Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition." Ammunition includes, but is not limited to, "any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence." (§ 12316, subd. (b)(2).)
Rivera urges that section 654 precludes imposition of sentence on one of the counts, because his intent and objective was the same in both crimes, i.e., to have access to a firearm which could be readily loaded should he need to defend his home. Therefore, he posits, the trial court should have stayed sentence on one of the counts rather than imposing concurrent sentences. We disagree.
Section 654, subdivision (a), provides in pertinent part, "[a]n 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 therefore `"precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. `Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor. [Citations.] `[I]f all 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.]" [Citation.] " (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Lewis (2008) 43 Cal.4th 415, 519; People v. Martin (2005) 133 Cal.App.4th 776, 781.) However, if the defendant harbored multiple or simultaneous objectives, independent of and not merely incidental to each other, he or she " `may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] [Citations.]" (Martin, supra, at p. 781.) The statutes purpose is to ensure the defendants punishment will be commensurate with his or her liability. (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044.)
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. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.) "A trial courts implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]" (People v. Blake (1998) 68 Cal.App.4th 509, 512.) We review the trial courts 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. Jones, supra, at p. 1143; People v. Akins (1997) 56 Cal.App.4th 331, 339.)
Rivera relies upon People v. Lopez (2004) 119 Cal.App.4th 132, in support of his contention. In Lopez, the court held section 654 barred multiple punishment for the defendants convictions for unlawful possession of a firearm and possession of ammunition where the ammunition was loaded into the firearm. There, police discovered a loaded firearm in the defendants pocket. The court reasoned that possession of an unloaded firearm can, by itself, assist a person in committing another crime, because the gun can be used to frighten or club the victim. Ammunition, however, cannot be used alone to commit another crime. Appellants single intent was therefore to possess a loaded firearm. (Id. at p. 138.) Lopez explained, "In resolving section 654 issues, our California Supreme Court has recently stated that the appellate courts should not `parse[ ] the objectives too finely. [Citation.] To allow multiple punishment for possessing ammunition in a firearm would . . . parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an `indivisible course of conduct is present and section 654 precludes multiple punishment." (Id. at p. 138.)
The People contend Lopez is distinguishable. We agree. In the instant case, unlike in Lopez, the ammunition was not found inside the gun; instead, it was discovered in two different locations in the residence. Possession of the ammunition was a separate act from possession of the gun. Moreover, the ammunition was of a variety of calibers. Each variety of ammunition could serve a different purpose or be used with a different firearm. Therefore, at least some of the ammunition was usable in a gun other than the rifle. Under these circumstances, Riveras argument that he had the sole intent to possess a weapon and ammunition suitable for quick assembly should he need to defend his home is not persuasive. Because he had ammunition to fit one or more firearms in addition to the rifle, Rivera necessarily harbored more than the intent to possess a single loaded firearm. The trial court could reasonably infer Rivera possessed the ammunition with the intent of obtaining additional firearm(s) from which the ammunition could be fired, or with the intent to use it in some other fashion unrelated to the rifle in which it did not fit.
The People additionally rely on People v. Correa (2008) 161 Cal.App.4th 980, in support of their argument that concurrent sentences were proper. However, after the parties completed briefing, the Supreme Court granted review in Correa on July 9, 2008, S163273 . As Correa is no longer citable authority, we do not address the parties arguments regarding the case.
Riveras argument that the jury did not decide, under the instructions given, that the ammunition was usable in the rifle does not assist him. Whether a defendant harbored multiple objectives is a question of fact for the trial court, not the jury. (See People v. Jones, supra, 103 Cal.App.4th at p. 1143.)
Moreover, imposing sentence on both counts is commensurate with Riveras culpability. A felon who possesses multiple types of ammunition, which can be used in a more than one firearm, is more culpable than a felon who possesses only one type of ammunition. (Cf. People v. Jones, supra, 103 Cal.App.4th at p. 1148 [purpose of section 654 is to ensure punishment is commensurate with a defendants culpability].) Rivera argues that allowing imposition of sentence on both counts in the instant case would result in an anomalous result: that a felon who has a loaded firearm is subject to less punishment than a felon who has the same firearm, unloaded and disassembled. Riveras argument might well be persuasive if he had possessed only one type of ammunition, that fitting the rifle he possessed. However, here he possessed a variety of ammunition, allowing the inference that he intended to use the different varieties in different firearms and for different purposes.
DISPOSITION
The judgment is affirmed.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.