Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H35609
Marchiano, P.J.
Defendant Anthony M. Rodriguez was convicted by a jury of the first degree murder of Samuel Williams (Pen. Code, § 187, subd. (a)), with personal use of a firearm (§ 12022.53, subd. (b)), and of possession of a firearm by a felon (§ 12021, subd. (a)(1)); defendant admitted service of a prior prison term (§ 667.5, subd. (b)). He was sentenced to 39 years to life in prison, consisting of 25 years to life for the murder, plus 10 years for the firearm enhancement, the upper term of three years for the firearm possession offense, and one year for the prison prior.
All further statutory references are to the Penal Code.
The issues on appeal are whether the sentence for the firearm possession offense should have been stayed pursuant to section 654, and whether imposition of the upper term on that count was error under Cunningham (Cunningham v. California (2007) 549 U.S. 270) and Blakely (Blakely v. Washington (2004) 542 U.S. 296). We conclude that separate punishment for firearm possession was permissible under the particular circumstances presented here, and that there was no Cunningham/Blakely error. We therefore affirm the judgment.
I. BACKGROUND
Defendant shot and killed Williams on the night of December 22-23, 2002, when they were riding as passengers in a car being driven by Jessica Paulite. Defendant had two children with Paulite, and was jealous of her relationship with Williams.
Defendant and Paulite had an incident one evening in early December 2002, when she was visiting her grandmother. Paulite had pulled her car into the grandmother’s driveway when defendant drove up, got out of his car, argued with her, and flattened two of her car’s tires with gunshots.
They had another incident on December 16, 2002, at Paulite’s residence in Tracy. They were fighting and the police were called. Before the police came, defendant threatened to shoot her if she told them he was there. He was right by the door with his .22 caliber handgun when the police arrived. Paulite answered the door and told them that defendant had left.
Beginning midday on Friday, December 20, 2002, defendant was beating Paulite up, dragging her around town, basically holding her hostage. Defendant had said in the past that he wanted to kill Williams, and repeated those threats throughout the weekend. Defendant demanded that Paulite arrange for him to meet Williams, threatened to kill her if she did not, and choked her when she resisted.
Paulite gave in and called Williams on Sunday night, December 22, 2002, and invited him over to her house. Defendant and Robert Ortega were at her house that night. Paulite drove to Williams’s residence in Stockton sometime between 8:30 p.m. and 9:00 p.m., picked him up, and drove him back to her place. She said that she warned Williams along the way that defendant would be there and that defendant was threatening to kill him. Williams said that he knew Ortega, and that he was not afraid of defendant.
Paulite gave somewhat conflicting accounts in her statement to the police, her preliminary hearing testimony, and her trial testimony of what unfolded that evening.
Paulite testified at trial that, when she and Williams got to her house, Ortega asked if she would drive him to his baby’s mother’s home in the Bay Area. Her preliminary hearing testimony was that defendant wanted to be taken to the home of Melissa Stymans, one of his girlfriends at the time. She agreed to the request(s), and she, Williams, Ortega, and defendant got into the car. During the drive they smoked marijuana and the men used methamphetamine.
When they got to Stymans’s residence in Hayward, defendant went inside while the other three waited in the car. Defendant came back maybe 10 minutes later with Joey Sandoval, who also got into the car. In her statement, Paulite said they then drove to a house in San Leandro, determined that no one was there, and headed back to Tracy. At trial, she testified that they first went to Ortega’s friend’s house, then to Stymans’s place, then to a gas station, and then to a liquor store before heading back to Tracy.
On the way to Tracy, defendant was in the front passenger seat, and Williams was in the back seat between Ortega and Sandoval. They were all smoking marijuana, and the men were smoking methamphetamine and drinking cognac. The shooting occurred as they were passing through Dublin heading east on Highway 580. In her statement, Paulite said that defendant asked Williams if he was dating her, defendant and Williams began arguing, and a fistfight broke out between Williams, Ortega, and Sandoval in the back seat. At that point she saw defendant holding a firearm; he pointed the gun at Williams and fired three shots. At trial Paulite said that she saw a lot of movement in the back seat, and then heard three shots. She did not see who fired the shots, but they seemed to come from her right side, where defendant was sitting.
Williams slumped forward into Paulite’s lap, she lost control of the car, and the car came to a stop at the center divider of the road. Ortega and Sandoval jumped out and fled in one direction, defendant and Paulite got out and headed in the other direction. Defendant and Paulite were detained around 12:40 a.m. on December 23, walking about one-half mile away from the car. Defendant agreed to take a gunshot residue test that morning, and the test was positive. The gun used in the shooting, a nine millimeter Smith and Wesson pistol, was recovered from a ditch 70 to 100 yards away from the car later that day.
II. DISCUSSION
A. Section 654
Defendant contends that the court erred in failing to stay his sentence for the section 12021 firearm possession offense pursuant to section 654 because he had already been punished for use of a firearm with the section 12022.53, subdivision (b) enhancement. There is a split of authority as to whether section 654 applies to sentence enhancements. (People v. Arndt (2007) 76 Cal.App.4th 387, 394.) We will assume for purposes of this opinion that it does. The People note that People v. Palacios (2007) 41 Cal.4th 720, 729-730 (Palacios), held that section 12022.53, subdivision (b) enhancements are not subject to section 654; defendant counters that Palacios does not bar section 654’s application to the section 12021 offense at issue in this case. We will assume without deciding that section 654 applies notwithstanding Palacios.
“Section 654 precludes multiple punishments for a single act or indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) In deciding whether the defendant had multiple objectives, the trial court makes “a factual determination that must be sustained on appeal if supported by substantial evidence.” (People v. Osband (1996) 13 Cal.4th 622, 730.)
Possession of a firearm may be separately punished from use of the firearm “where the evidence shows a possession distinctly antecedent and separate from” the offense in which the firearm was used. (People v. Bradford (1976) 17 Cal.3d 8, 22.) No antecedent and separate possession occurred in Bradford, where the defendant wrestled a firearm from a highway patrol officer and used it to shoot at the officer. (Id. at pp. 13, 22.) On the other hand, such possession was shown in People v. Jones (2002) 103 Cal.App.4th 1139 (Jones), where the defendant was convicted of shooting at an inhabited dwelling and possessing a firearm. In that case, defendant Jones drove with another man to the home of Jones’s former girlfriend, Kyshanna Walter. The other man went to the door, asked for Walter, and was told by Walter’s brother that she was not available. Jones and the other man left in their car, but drove back 15 minutes later, whereupon Jones fired several shots at the home. Jones’s section 654 argument was rejected as follows:
“[T]he evidence was sufficient to allow the inference that Jones’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 Walter 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 necessarily had the firearm in his possession before he shot at Kyshanna’s house, when he and his companion came to the house 15 minutes before the shooting, or, at the very least, when they began driving toward the house the second time. It was therefore a reasonable inference that Jones’s possession of the firearm was antecedent to the primary crime. [Citation.] Section 12021 is violated whenever a felon intentionally has the weapon in constructive or actual possession. [Citation.] Jones necessarily must have had either actual or constructive possession of the gun while riding in the car, as evidenced by his control over and use of the gun during the shooting. Jones’s violation of section 12021 was complete the instant Jones had the firearm within his control prior to the shooting.” (Jones, supra, 103 Cal.App.4th at p. 1147.)
The foregoing reasoning applies equally here. Defendant likely had possession of the firearm he used to shoot Williams when they got in the car at Paulite’s house in Tracy to go to the Bay Area, or, at the least, when he returned to the car after stopping at his girlfriend’s home in Hayward, before they left to go back to Tracy. Either way, he “must have had either actual or constructive possession of the gun while riding in the car” for a period of time before the shooting, and his “violation of section 12021 was complete” before the murder transpired. (Jones, supra, 103 Cal.App.4th at p. 1147.) Moreover, as the People observe, the inference that defendant was armed in advance of the shooting was strengthened by the evidence of his gun possession on other occasions in December 2003, his threats to kill Williams, and his demands to see Williams immediately before the fatal car trip.
Defendant could not have been convicted of unlawful possession based solely on the previous incidents at Paulite’s house or her grandmother’s house because the information charged, and the verdict found, that the offense occurred “on or about December 23, 2002.”
Accordingly, as the People state, “there was substantial evidence to support the trial court’s imposition of separate terms for appellant’s possession and use of the firearm because possession of the gun was more than incidental to, and simultaneous with, its use in the murder; it was separate conduct deserving of separate punishment.”
B. Cunningham/Blakely
Defendant maintains that the court could not impose the upper term for the firearm possession offense consistent with Cunningham and Blakely.
The court received a probation report setting forth defendant’s criminal history, and citing various recidivism-related factors in aggravation, including his: numerous prior convictions and sustained juvenile petitions; three prior prison terms; parolee status when committing the current offense; and three parole violations. (Cal. Rules of Court, rule 4.421(b)(2)-(5).) Before pronouncing sentence, the court stated: “I find that Mr. Rodriguez is utterly without any socially redeeming qualities based upon past conduct, and he is truly a malignancy in this community. . . . [¶] . . . [¶] The defendant, in the past and through this case, shows himself incapable or worthy of living in a civilized society.” The court then imposed the upper term for the section 12021 violation “based upon all of the factors that I’ve already cited.”
Defendant does not dispute that the upper term was imposed in part in reliance on recidivism-related factors that were excepted from Blakely, and were sufficient to justify the upper term under People v. Black (2007) 41 Cal.4th 799, 812-813, 818 (Black II); see also People v. Towne (June 26, 2008, S125677) ___ Cal.4th ___ [2008 WL 2521718]. Defendant indicates that he is raising the Cunningham/Blakely issue to preserve it for federal review, but acknowledges that we are bound to follow Black II (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and must thus reject his argument.
III. DISPOSITION
The judgment is affirmed.
We concur: Swager, J., Margulies, J.