Opinion
C079716
02-08-2017
THE PEOPLE, Plaintiff and Respondent, v. KENNETH DESHAWN BAILEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF130496A)
Officers saw defendant Kenneth Deshawn Bailey driving a stolen car and arrested him. Inside the car on the right front passenger-side floorboard was a bag of ammunition in the same place as a McDonald's takeout bag belonging to defendant. A jury found defendant guilty of driving or taking a vehicle without the owner's consent, receiving stolen property (the vehicle), and possession of ammunition by a felon. The trial court found true enhancements, including two strikes and a prior prison term, sentencing defendant to nine years in prison.
Defendant appeals, raising three contentions: (1) there was insufficient evidence he possessed the ammunition because he did not know the ammunition was in the car; (2) the court should have stayed the punishment for ammunition in light of his punishment for receiving stolen property because the court specifically found one objective for both crimes; and (3) there was insufficient evidence of the prior prison term enhancement. Agreeing only that defendant's sentence for possessing ammunition should have been stayed, we modify defendant's sentence and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Around 10:30 a.m. on January 8, 2015, in Stockton, officers saw defendant driving a silver Toyota Avalon with Alabama license plates that had been reported stolen a couple of days earlier from a La Quinta Inn parking lot also in Stockton. Inside the car on the right front passenger-side floorboard was a bag containing 71 rounds of nine-millimeter ammunition and a magazine fully loaded with nine-millimeter ammunition. The ammunition was located in the same place as a McDonald's takeout bag with a receipt showing the purchase took place in Stockton. The owner of the stolen car did not put the ammunition there. It was "[h]ighly likely" he packed it in the trunk, although it was "remotely possible" he put it in the back seat with his dog.
Officers obtained surveillance video from the drive-through lane of the Stockton McDonald's from the same time and date noted on the receipt that showed defendant going through the drive-through.
DISCUSSION
I
There Was Substantial Evidence Defendant
Knowingly Possessed The Ammunition
Defendant contends there was insufficient evidence he possessed the ammunition because he did not know the ammunition was in the car. Not so, because viewing the record in the light most favorable to the judgment, there was evidence from which the jury could find defendant knew the ammunition was there. (People v. Clark (2011) 52 Cal.4th 856, 942-943 [standard of review for insufficiency of evidence claim]; People v. Rubalcava (2000) 23 Cal.4th 322, 331-332 [element of illegal weapon possession offenses includes knowledge of the weapon's presence]; People v. Meza (1995) 38 Cal.App.4th 1741, 1745-1746 [knowledge can be proved by circumstantial evidence and any reasonable inferences drawn from that evidence].)
Police found the ammunition inside the car on the right front passenger-side floorboard of the car. That was the same location as the McDonald's takeout bag belonging to defendant. The owner of the stolen car testified that he did not put the ammunition there. From this evidence, the jury could have reasonably found defendant knew about the ammunition in the car he stole.
II
The Trial Court Erred In Imposing A Concurrent Sentence Instead Of A Stayed Sentence
For Possession Of Ammunition, In Light Of Its Factual Findings
Penal Code "[s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) "[M]ultiple sentences forbidden by section 654, whether consecutive or concurrent, impose excessive punishment beyond the power of the sentencing court." (In re Wright (1967) 65 Cal.2d 650, 655.) Here, despite making a factual finding that the possession of ammunition "arose out of the same conduct" as the receiving stolen property (the vehicle), the court ran the six-year sentence it imposed for possession of ammunition "concurrent . . . pursuant to Penal Code section 654." The proper course of action was to stay execution of that sentence, not run it concurrent. (In re Wright, at p. 655.)
Undesignated statutory references are to the Penal Code. --------
III
There Was Sufficient Evidence Of Defendant's
Prior Prison Term Enhancement
The trial court imposed a one-year prior prison term enhancement stemming from defendant's 1999 conviction for possession of a controlled substance. Defendant contends there was insufficient evidence of that prior prison term because he was free from prison custody for more than five years after his 2000 release from prison. The evidence proves otherwise.
A one-year prior prison term enhancement must be imposed when defendant, for a period of five years, has not "remained free of both the commission of an offense which results in a felony conviction, and prison custody . . . ." (§ 667.5, subd. (b).) "For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody, including any period of mandatory supervision, or until release on parole or postrelease community supervision, whichever first occurs, including any time during which the defendant remains subject to reimprisonment or custody in county jail for escape from custody or is reimprisoned on revocation of parole or postrelease community supervision." (§ 667.5, subd. (d), italics added.)
For defendant's 1999 conviction, he was sentenced to 16 months in prison and was release on parole on December 14, 2000. However, he was arrested and a parole hold placed on him in July 21, 2004. He then served the statutory maximum period of parole and was discharged on February 2, 2005. But by August 2007, he was back in prison after being convicted of first degree residential burglary and second degree robbery. Thus, defendant did not "remain[] free of both the commission of an offense which results in a felony conviction, and prison custody . . ." (§ 667.5, subd. (b)) for the five-year washout period to apply.
DISPOSITION
Execution of defendant's sentence for possession of ammunition is stayed. As modified the judgment is affirmed. The trial court is ordered to modify the abstract of judgment accordingly and transmit a modified copy of the abstract to the Department of Corrections and Rehabilitation.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.