Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. JJD054862-02. Valeriano Saucedo, Judge.
Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
OPINION
Appellant Christian G., a minor, admitted allegations contained in a juvenile wardship petition (Welf. & Inst. Code, § 602), filed in October 2006, that he committed violations of Penal Code sections 12101, subdivision (a)(1) (minor in possession of a firearm) and 148, subdivision (a)(1) (resisting a peace officer). At a January 2007 disposition hearing, the court ordered Christian committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority (CYA), and declared his maximum period of physical confinement (MPPC) to be nine years four months, which was calculated by aggregating the terms on previously sustained petitions.
One of the previously sustained petitions was filed on January 31, 2006. As to that petition, Christian pled no contest to (1) felony possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1) (count one)), with a street terrorism enhancement (Pen. Code, § 186.22, subd. (b)(1)), (2) misdemeanor possession of live ammunition by a minor (Pen. Code, § 12101, subd. (b)(1) (count two)), and (3) misdemeanor possession of a smoking device (Health & Saf. Code, § 11364 (count three)). When the juvenile court computed the MPPC in January 2007, the MPPC included a three year term for count one, a consecutive four year term for the enhancement, a consecutive four month term for count two, and a consecutive two month term for count three.
On appeal, Christian contends the juvenile court erred in setting his MPPC as nine years four months, as the four month term imposed for count two of the January 2006 petition must be stayed pursuant to Penal Code section 654. As we shall explain, we agree with Christian and will order the four month sentence stayed.
FACTUAL AND PROCEDURAL BACKGROUND
The January 2006 petition alleged in count one that on January 27, 2006, “the crime of possession of a firearm by a minor, in violation of Penal Code Section PC12101(A), a felony, was committed by Christian [], who being a minor, did unlawfully possess a pistol, revolver and firearm capable of being concealed upon the person.” The petition alleged in count two that on that same date, “the crime of possession of live ammunition by a minor, in violation of Penal Code Section PC12101(B)(1), a felony, was committed by Christian [], who being a minor, did unlawfully possess live ammunition.” Attached to counts one and two were special allegations that those offenses were committed for the benefit of a criminal street gang. The petition alleged in count three that on the same date, Christian committed the crime of possession of a smoking device, when he “unlawfully possess[ed] a device, contrivance, instrument, and paraphernalia used for smoking a controlled substance.”
At the February 8, 2006, pretrial hearing, the People agreed to amend the petition to drop the street terrorism enhancement in count two, making that count a misdemeanor, in exchange for Christian’s admission to the remainder of the allegations. The court informed Christian that his total term would be eight years, four months, and advised him of other possible terms of his disposition. The court explained that it was not promising Christian anything in terms of his disposition, and that after Christian’s admission, the case would be referred to probation, who would make a recommendation to the court as to the proper disposition.
Christian’s counsel explained, “for the record” that the admission would be pursuant to People v. West. Pursuant to the court’s request, the prosecutor recited the factual basis for the plea: “On January 27th of 2006, the minor’s mother called Probation stating the minor had a gun. The minor was contacted at a neighbor’s house and was searched, and a firearm with ammunition was found on the minor, as well as a glass pipe used to smoke contraband.” The court then found a factual basis for the charges and Christian pled no contest to count one, the special allegation of street terrorism attached to count one, count two, and count three. The court found the charges true, sustained the petition, and referred the matter to the probation department for a disposition report and recommendation. At the February 2006 disposition, the court imposed a three year term for count one, a consecutive four year term for the street terrorism allegation, a consecutive four month term for count two, and a consecutive two month term for count three.
People v. West (1970) 3 Cal.3d 595.
The probation officer’s report stemming from the petition, which was filed after Christian entered his plea, related the facts of the offenses, which it obtained from a police report, as follows: “[O]n January 27, 2006, at approximately 4:44 p.m., an officer responded to a disturbance regarding a man with a gun. Upon arrival, the officer contacted the minor’s mother, Irma B[], who stated her son was in possession of a handgun. Officer[]s went to a nearby apartment, as directed by the minor’s mother, and contacted the minor. The minor was taken into custody and a search of his person revealed the minor was in possession of a loaded handgun. [¶] While searching the minor’s bedroom, officers located two live rounds of ammunition, and officers also located a glass smoking pipe on the minor’s person. When interviewed, the minor stated he was a ‘local park gang’ member for quite a few months and was jumped into the gang approximately one month prior to this incident. The minor stated he was jumped in by three people for 22 seconds, and 22 seconds is significant because the ‘local park gang’ was formed in Los Angeles on 22nd Street. The minor had written on his hand in ink “1 SUR 3” as well as “LPG.” The minor stated the LPG stood for ‘Local Park Gang.’ The minor stated his moniker was ‘Shadow’ because when he was jumped in, it occurred at night time.”
DISCUSSION
Christian contends the factual basis for the plea, which the prosecutor recited to the court, does not support the imposition of consecutive terms for counts one and two of the January 2006 petition. Christian points out that the prosecutor’s factual recitation shows only that he was contacted and searched, and police found “a firearm with ammunition” on him. Relying on People v. Lopez (2004) 119 Cal.App.4th 132, he maintains that because the plea was based on the fact that he was found with a firearm that contained ammunition, the imposition of separate consecutive terms for possession of the firearm and possession of the ammunition in the firearm violated section 654.
Section 654 precludes multiple punishment for possession of a firearm and possession of ammunition when the ammunition is loaded into the firearm. (People v. Lopez, supra, 119 Cal.App.4th at pp. 138-139.) As the Lopez court 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, in our judgment, 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 pp. 138-139.)
The People do not dispute that a defendant cannot be punished for both possession of a weapon and possession of the ammunition in the weapon. Instead, the People argue that multiple punishment is permissible in this case because a “reading of the entire record” shows the ammunition Christian was charged with was located in his bedroom, separate from the loaded weapon. In making this argument, the People point to the probation report, which relates the facts from the police report stating that Christian had a loaded weapon on his person as well as live ammunition in his bedroom. From this, the People assert that “if the trial court determined that the ammunition allegation consisted of the ammunition in the bedroom, it could have determined that section 654 did not preclude a separate sentence for that count.” While the People recognize the record does not indicate the court made such a determination, they ask us to infer the court did so, as it is unlikely Christian would be charged with possession of a loaded handgun and possession of the bullets in the gun, and since there was ammunition found in the bedroom, the court and parties were aware the ammunition charge stemmed from that ammunition.
We would probably agree with the People if the probation report had served as the factual basis for the plea. As Christian points out, however, the factual basis was not the probation report, but instead was the prosecutor’s recitation of the facts, which contained only the reference to the “firearm with ammunition” found on his person. No mention was made about the ammunition found in the bedroom. By accepting the recitation as the factual basis for his plea, Christian conceded the truth of those facts, which make clear that it was the ammunition found in the firearm which formed the basis for his no contest plea to count two. To the extent the juvenile court relied on the probation report in determining whether section 654 applied, it erred in doing so, since Christian did not agree to have the probation report serve as the factual basis for the plea or otherwise concede the truth of the facts set forth in the report. The application of section 654 is a fact-based determination, to be affirmed if there is substantial evidence. (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 815-816.) In this case, where there is no evidence in the record that the facts contained in the probation report were accurate or reliable, and the parties did not stipulate to reliance on the probation report as a basis for Christian’s plea, the court could not rely on the probation report to supply the facts necessary to determine whether section 654 applied. (See People v. Harvest (2000) 84 Cal.App.4th 641, 653 [statements in probation report cannot take the place of evidence to support restitution award]; People v. Romero (1977) 68 Cal.App.3d 543, 549 [noting there must be some basis for believing information in probation report is accurate and reliable].)
In sum, since the only facts to which Christian agreed when entering his plea show that the true findings on the charges of possession of a firearm and possession of ammunition were based on his possession of a loaded firearm, the court should have stayed the four month term for count two of the January 2006 petition.
DISPOSITION
The trial court is ordered to modify Christian’s sentence to stay the four month term imposed for the misdemeanor Penal Code section 12101, subdivision (b), count from the petition filed on January 31, 2006, and reduce Christian’s maximum period of physical confinement to nine years. In all other respects, the judgment is affirmed.