Opinion
E043761
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. RANDALL RAY STUART, Defendant and Appellant.
Diana M. Teran, 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, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
Defendant Randall Ray Stuart appeals his sentence of 150 years plus 27 years four months in state prison. He argues a remand is necessary because the trial court did not realize it could impose terms concurrently rather than consecutively and did not state any reasons for imposing consecutive terms as required by California Rules of Court, rule 4.406. He also contends a remand for resentencing is necessary because the sentence imposed on his offense of felon in possession of a firearm violates the Penal Code section 654 prohibition against multiple punishments.
FACTUAL AND PROCEDURAL BACKGROUND
According to testimony given at a preliminary hearing, defendant used a handgun to rob a restaurant in April 2004. During the robbery, defendant pointed the handgun at the host, customers, a food server, and the manager of the restaurant. One of the customers was a retired police officer who was carrying a revolver in his fanny pack. Fearing for his life, the officer pulled out his service revolver, shot defendant, and kept the revolver pointed at him until police arrived. As a result of the gunshot wound, defendant was treated and then released from the hospital.
Defendant pled guilty to two counts of second degree robbery (§ 211), as well as personal use of a firearm during the commission of the robberies (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)) (counts 1 & 2); two separate counts of assault with a firearm (§ 245, subd. (a)(2)), plus personal use of a firearm during the commission of these offenses (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) (counts 3 & 4); two counts of false imprisonment through violence (§ 236) (counts 5 & 6, as amended); and being a felon in possession of a firearm (§ 12021, subd. (a)(1)) (count 7). He also admitted two prior serious felony convictions within the meaning of section 667, subdivision (a), as well as two prior strike convictions for robbery within the meaning of sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2)(A).
At the time of his guilty plea, defendant was advised he faced a maximum sentence of 175 years to life in state prison. On August 2, 2005, the trial court dismissed one of defendants prior strike convictions and sentenced him to 54 years in state prison. However, in a prior appeal, we remanded for resentencing, because we concluded the trial court abused its discretion when it dismissed a prior strike conviction based on a factor extrinsic to the "Three Strikes" law. (People v. Stuart (Jan. 24, 2007, E039265) [nonpub. opn.] pp. 2-3.) We summarized the facts of the case in more detail in the prior appeal.
At a resentencing hearing held June 12, 2007, defendant indicated he had nothing further to add to the record in support of his request to dismiss one or more of his prior strikes. The trial court then denied the motion to dismiss and sentenced defendant to a total of 150 years in state prison plus 27 years four months. To reach the total sentence of 150 years in state prison plus 27 years four months, the trial court imposed consecutive 25-year-to-life terms as to all counts because of the presence of the prior strikes, but stayed the sentence on count 3 pursuant to section 654. Although the court did not indicate on the record during the sentencing hearing whether the sentence on count 5 should be served consecutively to the other counts, the abstract of judgment does show count 5 as a consecutive term. Pursuant to section 12022.53, subdivision (b), the trial court added a consecutive term of 10 years on count 1, plus three years four months on count 2. The court stayed the enhancement on count 3 but added one year four months each on counts 4, 5, and 6 pursuant to section 12022.5, subdivision (a). In addition, two 5-year terms were added under section 667, subdivision (a), for each of defendants two prior serious felonies.
DISCUSSION
A. Consecutive Versus Concurrent Terms
Defendant argues a remand for resentencing is necessary because the trial court imposed consecutive sentences to counts 1, 2, 3, 4, 6, and 7 without stating any reasons as required by California Rules of Court, rule 4.406, and there is nothing in the record to show the trial court was aware it had discretion to run these terms concurrently. The People agree a remand is necessary for the limited purpose of having the trial court determine whether the terms imposed should be served consecutively or concurrently. We agree.
If a defendant with a prior serious or violent felony offense is convicted of multiple felonies in a new case, and these new felonies were " `committed on the same occasion " or " `[arose] from the same set of operative facts, " the trial court must determine pursuant to sections 1170.12, subdivision (a)(6) and (7), and 667, subdivision (c)(6) and (7), whether to impose concurrent or consecutive sentences. (People v. Lawrence (2000) 24 Cal.4th 219, 222-223.) The term "committed on the `same occasion " means there was "a close temporal and spatial proximity between the acts underlying the current convictions." (People v. Deloza (1998) 18 Cal.4th 585, 595 (Deloza).) In Deloza, for example, our Supreme Court concluded robberies perpetrated simultaneously against the same group of victims over a brief period of time in one location were "committed on the same occasion" for purposes of sections 1170.12, subdivision (a)(6) and (7), and 667, subdivision (c)(6) and (7). (Deloza, at p. 596.) As a result, the trial court in Deloza had discretion to impose consecutive or concurrent terms based on the criteria and limitations set forth in rule 4.425 of the California Rules of Court. (Deloza, at pp. 596-600.)
Here, our review of the record confirms the trial court did not state whether the current offenses were "committed on the same occasion" or "[arose] from the same set of operative facts." Nor is there anything to indicate the trial court recognized it must make this determination as to all counts and then consider whether to impose consecutive rather than concurrent terms based on the criteria and limitations set forth in rule 4.425 of the California Rules of Court. A limited remand for this purpose is therefore appropriate.
B. Section 654
The trial court imposed a sentence of 25 years to life for the offense of being a felon in possession of a handgun in violation of section 12021, subdivision (a)(1) (count 7), to be served consecutively to the terms imposed on the other counts. Defendant contends the trial court should have stayed the sentence on this count pursuant to section 654, because his use of the firearm is indivisible from the other offenses. According to defendant, the evidence shows he possessed the firearm only for the purpose of committing the other offenses, so the court violated section 654 by imposing sentences for the felon in possession offense, as well as for the other offenses of robbery, assault, and false imprisonment.
Section 654, subdivision (a), provides as follows: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." Here, the trial court did not make any specific factual findings on the application of section 654 to count 7. However, we can assume the record reflects a determination by the trial court that section 654 did not preclude a separate sentence for the felon in possession offense based on the facts in the record. (See, e.g., People v. Blake (1998) 68 Cal.App.4th 509, 512.) On appeal, we will uphold such a determination if there is substantial evidence to support it. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
"The purpose of [section 654] 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. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission—the offense carrying the highest punishment. [Citations.]" (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.) However, if the acts were independent and none was merely incidental to another, the defendant may be punished separately for each offense even if the acts were committed closely in time and space. (People v. Hicks (1993) 6 Cal.4th 784, 789.)
Section 12021, subdivision (a), forbids convicted felons from possessing any firearm. "Whether a violation of section 12021 . . . constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. [Citation.] Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. [Citations.] On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense. [Citations.]" (People v. Venegas (1970) 10 Cal.App.3d 814, 821.)
For example, in People v. Ratcliff (1990) 223 Cal.App.3d 1401, the defendant was convicted of two counts of robbery with the use of a firearm and with being a felon in possession of a handgun. (Id. at p. 1404.) He argued these offenses were "part of a continuous transaction," and, as a result, the sentence on the felon in possession charge should have been stayed pursuant to section 654. (Ratcliff, at pp. 1407-1408.) We disagreed because the evidence showed the defendant used a handgun to commit the robberies about an hour and a half apart and possessed the handgun when he arrived at the scene of the first robbery. When he was arrested half an hour later, he still had the handgun in his possession. (Id. at p. 1413.) We concluded section 654 did not preclude separate punishments because "[a] justifiable inference from this evidence is that defendants possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes." (Ratcliff, at p. 1413.)
Here, there is substantial evidence in the record to support a finding defendants possession of the handgun was "distinctly antecedent and separate" from the other offenses he committed at the restaurant. The probation report states defendant told a police detective he purchased the handgun in Los Angeles for $300 about two weeks prior to robbing the restaurant. We therefore conclude the felon in possession offense is independent of and separable from the primary offenses defendant admitted to committing at the restaurant, and section 654 does not preclude a separate punishment for this offense.
Defendants reliance on People v. Garcia (1978) 86 Cal.App.3d 314 (Garcia) and People v. Mustafaa (1994) 22 Cal.App.4th 1305 (Mustafaa) is unpersuasive. Those cases are easily distinguishable. Unlike this case, there was no evidence in the record in those cases to support a finding of distinctly antecedent and separate possession of a firearm. In Garcia, a jury found the defendants guilty of assault with a deadly weapon, assault with a deadly weapon on a police officer, and possession of a sawed-off shotgun. (Garcia, at p. 316.) On appeal, defendants argued separate punishment for possession of the shotgun was precluded by section 654, and the appellate court agreed. Possession of the shotgun was not divisible from the assaults because the trial record did not show antecedent possession. Rather, it only showed the defendants possessed the shotgun during the commission of the assaults. (Garcia, at p. 317.)
The defendant in Mustafaa pled guilty to three counts of armed robbery committed at three different locations on three different dates, as well as three corresponding counts of being a felon in possession. (Mustafaa, supra, 22 Cal.App.4th at p. 1309.) The appellate court remanded the case for resentencing on an issue unrelated to the application of section 654. (Mustafaa, at p. 1312.) Citing section 654, the appellate court merely commented in dicta that the term imposed on one of the felon in possession offenses "appears to be based on the same conduct" as the term for one of the three personal gun use enhancements. According to the appellate court, the record before the trial court at the time of defendants guilty plea and sentencing showed "gun possession only as part of the [corresponding] robbery incident." (Mustafaa, at p. 1312.) In addition, as we read the opinion, it also appeared the prosecution had done nothing by stipulation or otherwise to ensure there were facts in the record supporting a separate term on this particular possession offense. As a result, the appellate court concluded there was a violation of section 654. (Mustafaa, at p. 1312.)
Citing Mustafaa, defendant also contends the trial court cannot rely on the probation report to make a finding of distinctly antecedent and separate possession of the handgun. According to defendant, this would be error because the information only alleged he possessed the handgun on the same date he committed the primary offenses, and he did not stipulate to the use of the probation report or any other document, such as a police report or a preliminary hearing transcript, as a factual basis for his guilty plea. In other words, defendant reads Mustafaa as limiting a trial courts use of factual information necessary to make a sentencing decision under section 654 to the face of the charging document when a defendant pleads guilty, unless the defendant stipulates to the use of additional facts in a police report, preliminary hearing transcript, or probation report.
In our view, defendant reads Mustafaa much too broadly. "The right to enter a plea of guilty or to waive trial by jury cannot be deemed to include the right to deprive the court of facts that must be known in order to make a correct sentencing decision. . . ." (People v. Ross (1988) 201 Cal.App.3d 1232, 1241.) Rather, "a trial court may appropriately pursue a section 654 inquiry beyond the record presented at the time of the plea." (Ross, at p. 1239.) In fact, a trial court may even conduct an evidentiary hearing if one is necessary to obtain enough factual information to make a determination pursuant to section 654. (Ross, at p. 1239.) Moreover, trial courts routinely rely on information contained in presentence reports to make sentencing decisions. (Cal. Rules of Court, rules 4.411, 4.420, 4.421, 4.423.)
Here, when defendant was sentenced on August 26, 2005, the trial court had before it the probation officers report that included enough facts for a determination under section 654. As noted above, the report states defendant told a police detective he purchased the handgun in Los Angeles for $300 about two weeks prior to robbing the restaurant. Because this constitutes substantial evidence of "distinctly antecedent and separate" possession of the handgun, we must uphold the trial courts implied finding section 654 did not preclude a separate sentence on the felon in possession offense.
DISPOSITION
The sentence is reversed in part and remanded for the limited purpose of allowing the Superior Court of Riverside County to exercise its discretion pursuant to sections 1170.12, subdivision (a)(6) and (7), and 667, subdivision (c)(6) and (7), to determine whether to impose concurrent or consecutive sentences on all counts based on the criteria and limitations set forth in rule 4.425 of the California Rules of Court. The judgment is affirmed in all other respects.
We concur:
KING, J.
MILLER, J. --------------- Notes: All further statutory references are to the Penal Code.