Opinion
A167802
08-30-2024
THE PEOPLE, Plaintiff and Respondent, v. JOHN BARRETT, Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. Nos. SCN211106/CT 2397988
BROWN, P. J.
Defendant John Barrett appeals from the trial court's order recalling his sentence and resentencing him under Penal Codesection 1172.1. The main dispute in this appeal is whether any portion of Barrett's sentence violates section 654's prohibition on multiple punishment. We conclude that section 654 requires a stay on the concurrent sentences imposed by the trial court on counts 4, 5, and 13. We also modify the abstract of judgment to reflect the imposition of certain fines and fees.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
In 2010, Barrett was charged by information with felony violations of section 422 (criminal threats, counts 1, 11 &12); section 245, subdivision (a)(2) (assault with a firearm, counts 2, 4, 5 &13); section 459 (residential burglary, count 3); section 246.3, subdivision (a) (grossly negligent discharge of a firearm, count 6); former section 12021, subdivision (a)(1) (felon in possession of a firearm, count 7); former section 12316, subdivision (b)(1) (felon in possession of ammunition, count 8); and section 236 (false imprisonment, counts 9 &10). Allegations of personal use of a firearm (§ 12022.5, subd. (a)) attached to counts 1, 3, and 9 through 12, and the information included section 667, subdivision (a)(1) allegations for prior violent felony convictions in 1979 and 1984.
Barrett entered a plea open to the court over the objection of the People, pleaded guilty to all counts, and admitted all allegations against him. The court indicated that it would sentence Barrett to an aggregate sentence of 34 years in prison.
The court sentenced Barrett as a second strike offender and imposed an aggregate prison term of 34 years, comprising an 8-year middle term on count 3, plus a 4-year consecutive term for the firearm use enhancement; a 16-month consecutive term on count 1, plus a 16-month consecutive term for the firearm use enhancement; 16-month consecutive terms for counts 6 through 8; 16-month consecutive terms per count, plus 16-month consecutive terms for the firearm use enhancements, for counts 9 and 10; and 5-year consecutive terms for the prior felony enhancements.
For counts 2, 4, 5, and 13, the court initially imposed two-year terms (one-third the middle term), and, at some point, the sentence was corrected to reflect a six-year concurrent term sentence for each of these counts. The court also initially indicated a 16-month concurrent sentence for counts 11 and 12, as well as for their firearm use enhancements, stayed under section 654, and the subsequent abstract of judgment reflects stayed sentences on these counts and enhancements.
On April 20, 2021, the Secretary of the Department of Corrections and Rehabilitation (CDCR) recommended that the trial court recall Barrett's sentence and resentence him under former section 1170, subdivision (d) in light of recent reforms in sentencing laws. The CDCR pointed out that the trial court was empowered with discretion to strike or dismiss firearms enhancements at resentencing in the interest of justice.
On August 30, 2021, the trial court recalled and resentenced Barrett by striking both of his five-year prior felony enhancements, but the court declined to strike any of the firearm use enhancements. Barrett appealed that order, and this court reversed the order and remanded for a further resentencing hearing under section 1172.1 in light of clarifying legislative enactments during Barrett's appeal. (People v. Barrett (Sept. 19, 2022, A163803), [nonpub. opn.].)
Effective January 1, 2022, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) moved the recall and resentencing provisions of former section 1170, subdivision (d)(1) to newly created section 1170.03. (Stats. 2021, ch. 719, § 3.) Effective June 30, 2022, section 1170.03 was renumbered section 1172.1, with no change in text. (Stats. 2022, ch. 58, § 9.)
On remand, the trial court held an initial resentencing hearing. Therein, Barrett asked that the court strike his firearm use enhancements, noting his virtually "flawless" conduct record throughout his years in prison and the fact that multiple enhancements had been imposed. The People argued that Barrett had already been resentenced and asked the court to deny further discretionary relief. The court indicated that it was inclined to grant further relief and said, "The question would be whether to exercise discretion under [section 1385, subdivision (c)] mainly regarding the consecutive terms for the gun charges." The court also allowed Barrett to file a Romero motion, and the People opposed the motion he filed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
At a resumed resentencing hearing on April 3, 2023, the court heard argument. It denied the Romero motion and then observed that recidivism risk rates drop at Barrett's age, Barrett's disciplinary history in prison had been relatively mild, and the CDCR had recommended revisiting the sentences on the firearm use enhancements. The court continued, "I think given Mr. [Barrett's] continued positive programming, I think he deserves additional consideration, although I'm not willing to completely strike all of the gun use enhancements given the number of victims who were the subject of his gun use[; I'm] balancing that against the fact that it's a single incident. It's not multiple incidents." The court struck the firearm use enhancements on counts 1, 9, and 10 and announced Barrett was resentenced to a "total unstayed sentence" of 20 years in prison.
Barrett timely appealed, and his appellate counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. Barrett filed a supplemental brief raising the following issues: (1) whether his sentence as to count 7 and the firearm use enhancement on count 3 violated section 654; and (2) whether his sentence as to counts 4 and 13, which were charged in the information as assault with a firearm (§ 245, subd. (a)(2)) on victim Tisha Watkins, violated section 654.
This court thereafter undertook an independent review of the record and requested supplemental briefing from the Attorney General and Barrett's counsel. Specifically, this court asked for briefing on whether: (1) Barrett's sentence as to counts 1 and 2, counts 4, 6, 10, and 13, or counts 5 and 9 violates section 654; (2) the trial court imposed fines under sections 1202.4 and 1202.45, and, if so, whether the abstract of judgment should be amended to reflect those fines; and (3) the trial court imposed court operations assessments (§ 1465.8) and criminal conviction assessments (Gov. Code, § 70373), and, if so, whether the abstract of judgment should be amended to reflect those fees. The parties briefed those issues, with Barrett additionally arguing that the abstract of judgment failed to reflect that the trial court struck the underlying sentences on counts 1, 9, and 10, and his convictions on counts 4 and 13 violated section 954.
DISCUSSION
I. The Court Did Not Strike the Base Terms on Counts 1, 9, and 10
We first address, and reject, Barrett's argument that the court struck not only the consecutive sentences for the firearm use enhancements on counts 1, 9, and 10, but also the base terms on those counts.
After the 2021 resentencing hearing, Barrett faced an aggregate term of 24 years in prison, consisting of the 8-year middle term on count 3, plus a 4-year consecutive term for its firearm use enhancement; a 16-month consecutive sentence on count 1, plus a 16-month consecutive sentence for its firearm use enhancement; 16-month consecutive sentences on counts 6 through 8; 16-month consecutive sentences on counts 9 and 10, plus 16-month consecutive sentences for their firearm use enhancements; concurrent terms for counts 2, 4, 5, and 13; and stayed sentences on counts 11 and 12 and their firearm use enhancements.
At the initial 2023 resentencing hearing, the court said, "The question would be whether to exercise discretion under [section 1385, subdivision (c)] mainly regarding the consecutive terms for the gun charges." Barrett told the court that he believed section 1385, subdivision (c) required the court to strike all but one of the firearm use enhancements because this was a single case, and the court replied, "Except it's up to the Court's discretion depending on the Court's finding as to whether or not you represent a danger to the public. So it's discretionary, but it certainly applies to you."
Given that the trial court was expressly considering whether to strike the firearm use enhancements under section 1385, its subsequent statement in the April 3, 2023 sentencing hearing about this being "a single incident" seems to stem from this discussion with Barrett. (See § 1385, subd. (c)(2)(B).)
At the continued resentencing hearing, the court framed the issue before it as "determining whether or not the Court wants to take further steps to strike the gun enhancements that Mr. Barrett pled guilty to at the time of his sentencing." In ruling on the matter, the court stated:
"I think given Mr. [Barrett's] continued positive programming, I think he deserves additional consideration, although I'm not willing to completely strike all of the gun use enhancements given the number of victims who were the subject of his gun use[; I'm] balancing that against the fact that it's a single incident. It's not multiple incidents.
"So with all that, the Court's going to resentence as follows: "The Court's going to strike the consecutive sentence in Count 1, that is the 12022.5(a)(1).
"There's also a one-third the midterm, 15-month consecutive sentence. The Court's going to strike that.
"The Court's going to make the same order as to Count 9, striking the 16-month consecutive sentence.
"The Court's going to do the same thing for Count 10, striking the 16-month consecutive sentence.
"Everything else is to remain the same.
"The total unstayed sentence is 20 years in state prison...."
The minute order states, "Motion - PC 1172.1 petition is Granted in part. [¶] The Court orders the PC 12022.5(a)(1) enhancements stricken as to counts 1, 9 and 10." The abstract of judgment does not reflect the imposition of firearm use enhancements for those counts.
Here, the court's oral pronouncement, minute order, and abstract of judgment can be harmonized and show the court struck only the sentences on firearm use enhancements. (People v. Smith (1983) 33 Cal.3d 596, 599 [a conflicting record will be harmonized if possible].) The court clearly announced the issue it was considering and its intent - it would strike some, but not all, of Barrett's "gun use enhancements." It then struck "the consecutive sentence in Count 1, that is the 12022.5(a)(1)." At this point, the court said it was "also" striking the "one-third the midterm" consecutive sentence. But the "also" appears to be an inadvertent statement or a typographical error, as the court went on to strike only one 16-month consecutive term for each of counts 9 and 10, and it stated those orders were the "same" as it made for count 1. Taken together, the court's statements show that it struck only the three 16-month consecutive terms for the firearm use enhancements on counts 1, 9, and 10 (a total sentence reduction of 4 years). This conclusion is supported by simple math, as the 24-year aggregate sentence Barrett faced became the 20-year aggregate sentence the court orally pronounced.
II. Section 654
Turning to the section 654 issues, that statute provides: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)
Section 654 precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) Whether a course of conduct is divisible depends on the defendant's intent and objective. (Ibid.) If all the offenses were incidental to one objective, the defendant may be punished only once, but if the defendant harbored multiple or simultaneous objectives, he or she may be punished for each objective. (Ibid.)
"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. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's 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." (Jones, supra, 103 Cal.App.4th at p. 1143.) When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicate sentence. (People v. Duff (2010) 50 Cal.4th 787, 796.)
A. Additional Factual Background
These facts are taken from the reporter's transcript of the preliminary hearing. We notified the parties of our intent to take judicial notice of certain documents from Barrett's prior appeal (A163803), and we now take judicial notice of the following documents: (1) the reporter's transcript of the preliminary hearing held on December 15, 2009; (2) the reporter's transcript of the sentencing hearing held on December 1, 2010; and (3) the reporter's transcript from the trial court's August 30, 2021, recall and resentencing hearing.
On December 11, 2008, at approximately 8:50 a.m., Debera Barrett exited her fourth floor apartment. As she entered the hallway, she saw Barrett, who was her husband at the time, emerging from the stairwell in front of her apartment. Debera and Barrett had recently separated after five years of marriage, and Barrett was living at the time in a third floor apartment in the same building.
Barrett held a gun as he exited the stairwell. He told Debera that "it was over that morning." He pointed the gun at her chest and told her to go back into her apartment. When she refused, he replied, "Okay. Then we [are] going to die out here in the hallway." Debera pleaded with him to spare her life, and she described Barrett as looking hesitant and confused. As she spoke with him, she kept backing down the hallway toward the elevator. Barrett followed. Meanwhile, Barrett said that Debera "ruined his life," that "he was going to kill" her, and that they "were both going to die there today."
When Barrett realized he was halfway down the hallway, he turned around and ran into Debera's unlocked apartment. Debera took the elevator to the first floor, where she told her daughter who was working at the front desk to call 911 because Barrett had a gun and was in the apartment with Debera's other daughter.
Tisha Watkins testified that, on December 11, 2008, at approximately 8:50 a.m., she and her boyfriend, Demetrius Hawkins, were sleeping in Watkins's bedroom in the apartment she shared with her mother. She had lived there previously with her mother and Barrett. Watkins awoke to the sound of Barrett coughing or clearing his throat. She looked at Barrett, who was standing outside her bedroom. He said, "Come into the living room," and, "It was time." Watkins asked, "Time for what?" Barrett responded, "It is time to die." She asked, "What are you talking about?" He responded, "Just get in the living room." According to Hawkins, he woke to see Barrett, whom he did not know, standing over the bed holding a gun, and Barrett said, "He [Barrett] was going to kill them and they were going to die." Hawkins feared for his life.
As Watkins got out of bed, she saw for the first time that Barrett was holding a gun, but she did not think it was real and was not initially scared. Barrett motioned with the gun to direct Watkins and Hawkins into the living room. Watkins got up and went toward the living room; she did not see her mother, so she decided to go upstairs to look for her. Barrett told her to come back downstairs, then he fired his gun.
Hawkins told officers that Watkins and he went from the bedroom to the couch in the living room, Barrett pointed the gun at them when they sat on the couch, and he threatened to kill them and to kill himself. Hawkins testified that Watkins got up from the couch, went up the stairs, and Barrett pointed his gun at her and shot. He told police in an interview that Barrett shot the gun towards the lower steps on the staircase, and he thought that Watkins was three or four steps above the step at which Barrett fired.
After the shot, Barrett told Watkins to sit, and Watkins returned to the living room and sat down. At that point, Watkins testified that she was afraid. Watkins asked Barrett why he was doing this, and the two talked for a couple of minutes. He replied that Watkins had told her mother to divorce him. At some point during the discussion, Barrett shut the blinds. Watkins said she asked Barrett: "Why [are you] going to kill me; I didn't do anything. And then from there, he put the gun from me to him." She approached him and hugged him, and she remembered him handing the gun to Hawkins. She testified that he did not threaten her verbally when she sat on the couch talking to him.
Hawkins testified that, after Watkins sat back on the couch after the shooting, Barrett pointed a gun at them, but he did not say anything else at that point. Hawkins said he received the gun after they heard a knock on the door, Barrett put the gun to his [Barrett's] head, Watkins went to Barrett, hugged him, said she loved him, and Barrett handed the gun to Hawkins.
Hawkins went to the front door and gave the gun to police officers who had arrived in the interim and were waiting in the hallway. Shortly thereafter, the officers entered the apartment. Once inside, one officer reported seeing "a black male laying on the floor with his arms spread out and a black female on top of him screaming and yelling." Officers found live ammunition rounds in Barrett's pocket when he was arrested.
B. Analysis
1. Counts 1 and 2 (Victim Debera Barrett)
With respect to the sentences on counts 1 and 2, the evidence supports the court's implied finding that Barrett had dual criminal intents. (In re Raymundo M. (2020) 52 Cal.App.5th 78, 94 [absence of stay on a sentence is generally implicit finding of a separate objective reviewed for substantial evidence].) On December 11, 2008, Barrett and his wife had recently separated. He pointed a gun at her from an arm's length distance and said, "[I]t was over that morning." When she refused to go into her apartment, Barrett said they were both going to die in the hallway, and he told her she had ruined his life. Given this evidence, the trial court could reasonably have found that Barrett committed the assault with the objective of inflicting physical harm on his ex-wife, whereas he criminally threatened her with the separate objective of inflicting mental or emotional harm.
2. Counts 4, 6, 10, and 13 (Victim Watkins) and Counts 5 and 9 (Victim Hawkins)
Barrett argues that the assaults with a firearm (counts 4 and 13), negligent discharge of a firearm (count 6), and false imprisonment (count 10) naming Watkins as a victim were part of an indivisible course of conduct, hence the court should have stayed sentence on three of those counts. He argues the same for the assault with a firearm and false imprisonment counts naming Hawkins as a victim (counts 5 and 9). The Attorney General concedes that punishment on counts 4, 5, and 13 should have been stayed, but contends that the separate punishments for counts 6, 9, and 10 can stand. We conclude that section 654 permits separate punishment on counts 3, 6, 9, and 10.
Here, the court properly imposed consecutive sentences on count 3 (burglary) and count 6 (negligent discharge of a firearm). After Barrett's exchange with his ex-wife in the hallway, he ran into the apartment he had shared with Watkins and his ex-wife. Once inside, Barrett went to Watkins's room; he then pointed his gun at, and threatened the lives of, Watkins and Hawkins. He later said that he was doing this because Watkins had told her mother to divorce him. The court thus could have reasonably concluded that Barrett entered the apartment with the intent of physically harming Watkins and committing assault with the firearm. The court could also have reasonably concluded from the evidence that Barrett harbored the dual intent to inflict mental or emotional harm upon Watkins - a conclusion that is further supported by Hawkins's statement that, when Barrett shot at the stairs that morning, he did not shoot directly at Watkins but instead shot at the stair three or four steps below where she stood. The trial court stayed sentence on the criminal threat count naming Watkins as a victim (count 12), so section 654 permitted imposition of a consecutive sentence on the negligent discharge with a firearm count (count 6).
Section 654 also permitted consecutive sentences for counts 9 and 10 (felony false imprisonment) against multiple victims. (People v. Newman (2015) 238 Cal.App.4th 103, 121-122 [false imprisonment by menace where defendant had a firearm was a violent crime and consecutive sentences for two convictions with two victims was permissible]; People v. Garcia (1995) 32 Cal.App.4th 1756, 1784 [the law "permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent"].) After Barrett shot at the stairs, Watkins sat down and asked why he was "doing this." He said she told her mother to divorce him, but the two then talked for a couple of minutes. At some point, Barrett closed the blinds. Barrett did not verbally threaten Watkins or Hawkins while he spoke to Watkins, although he still held the gun and pointed it in their direction at least once. Watkins testified that, at the end of their discussion, Barrett turned the gun on himself. A reasonable fact finder could infer from this evidence that, as the incident progressed, Barrett harbored a separate criminal intent and objective to confine Watkins and Hawkins and to keep them from escaping as he prepared to shoot himself.
The court stayed the sentence on the criminal threat count naming Hawkins as a victim (count 11). The court could reasonably have inferred that Barrett, who did not know Hawkins, committed the crime of making criminal threats to facilitate the false imprisonment and keep Hawkins confined.
Finally, we accept the Attorney General's concession that section 654 required a stay on the remaining concurrent sentences for assault with a firearm (counts 4, 5, and 13). There does not appear to be evidence of a distinct criminal intent and objective allowing for separate punishment on counts 4, 5, and 13, and the Attorney General does not contend otherwise.
3. Count 7 and the Firearm Use Enhancement on Count 3
Barrett additionally argues that section 654 barred multiple punishment for count 7 - felon in possession of a firearm - and the firearm use enhancement on count 3. We join courts that have rejected similar claims. (See People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412 (Ratcliff); Jones, supra, 103 Cal.App.4th at pp. 1145-1147.)
Section 654 will bar a separate punishment for the possession of the weapon by a felon if the evidence shows "at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense." (Ratcliff, supra, 223 Cal.App.3d at p. 1412; Jones, supra, 103 Cal.App.4th at pp. 1148-1149.) However, "[W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved." (People v. Bradford (1976) 17 Cal.3d 8, 22; Ratcliff, at p. 1408.) We agree with the reasoning in Ratcliff and Jones that multiple punishments are "proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent." (Jones, at p. 1144.)
Here, Barrett arrived at the scene already in possession of the firearm, and there is no evidence that he fortuitously came into possession of the firearm at the time he entered the hallway to the apartment. Section 654 thus does not bar separate punishments for count 7 and the firearm use enhancement on count 3.
III. Section 954
We next dispose of Barrett's contention that his conviction on counts 4 or 13 (assault with a firearm) must be reversed because there was a single assault improperly fragmented into two convictions. Barrett did not challenge his 2010 convictions on counts 4 and 13 in a direct appeal, the convictions are long final, and he does not provide any authority permitting a challenge to allegedly unwarranted, but bargained for, convictions long after they have become final. (Cf. People v. Senior (1995) 33 Cal.App.4th 531, 535 [when appellate court affirms judgment of conviction in prior appeal and remands only for resentencing, defendant cannot attack his convictions in appeal from resentencing order].) And Barrett's claim would fail substantively in any event given that the evidence shows at least one completed assault after Barrett fired at Watkins and one subsequent assault when he pointed the gun at her in the living room while she sat on the couch. (Cf. People v. Johnson (2007) 150 Cal.App.4th 1467, 1474 [whether defendant may receive multiple convictions for violation of section 273.5 involves a determination of when charged crime is completed].)
IV. Fines and Fees
The parties agree that the abstract of judgment fails to include certain fines and fees the court imposed in its oral pronouncement of judgment.
First, the parties agree that the court imposed a restitution fine (§ 1202.4) of $200, as well as a $200 suspended parole revocation restitution fine (§ 1202.45) in its oral pronouncement of judgment. The abstract of judgment fails to reflect these fines, and we resolve this discrepancy in favor of the court's oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Second, the parties agree that the court imposed a $30 court facilities assessment (Gov. Code, § 70373) and a $40 court security fee (§ 1465.8) per conviction in its oral pronouncement of judgment. The abstract of judgment fails to reflect these fees, and we again resolve this discrepancy in favor of the court's oral pronouncement. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
Barrett requests remand so that he may ask for an ability to pay hearing with respect to the fees, but he forfeited any claims based on inability to pay by failing to raise the issue below.
Therefore, we modify the abstract of judgment to impose the following: (1) a $200 restitution fine under section 1202.4, and a $200 suspended parole revocation restitution fine under section 1202.45; and (2) a $40 court security fee under section 1465.8, and a $30 court facilities assessment under Government Code section 70373, per conviction.
DISPOSITION
The judgment is modified to reflect that the concurrent sentences on counts 4, 5, and 13 are stayed under section 654. The judgment is modified to reflect the imposition of a $200 restitution fine under section 1202.4 and a $200 suspended parole revocation restitution fine under section 1202.45. The judgment is also modified to impose an $40 court security fee (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373) per conviction. As modified, the judgment is affirmed. We direct the trial court to amend the abstract of judgment to reflect the modifications, and to forward copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: STREETER, J., GOLDMAN, J.