Opinion
C086848
04-15-2020
The PEOPLE, Plaintiff and Respondent, v. Jason BROADBENT, Defendant and Appellant.
Benjamin Owens, El Cettito, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Julie A. Hokans and Timothy L. O’Hair, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts A, B, C, E, and F and subpart D, 1 of the Discussion section (section II).
Benjamin Owens, El Cettito, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Julie A. Hokans and Timothy L. O’Hair, Deputy Attorneys General, for Plaintiff and Respondent.
RENNER, J. After a court trial, defendant Jason Broadbent was convicted of five counts of selling an assault weapon ( Pen. Code., § 30600, subd. (a) —counts 1, 5, 15-17), six counts of selling a large-capacity magazine (§ 32310—counts 2, 6, 13, 18-20), nine counts of possession of a firearm by a felon (§ 29900, subd. (a)—counts 3, 7, 11-12, 23-27), three counts of selling heroin ( Health & Saf. Code, § 11352, subd. (a) —counts 4, 8, 28), four counts of unlicensed sale of a firearm (§§ 27545/27590, subd. (c)(5)—counts 9-10, 21-22), and one count of selling methamphetamine ( Health & Saf. Code, § 11379, subd. (a) —count 14). The court also found true that defendant had suffered a prior strike conviction (§ 667) and three prior prison terms (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code.
After denying defendant’s Romero motion, the court sentenced defendant to a total term of 53 years eight months in prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero ).
On appeal, defendant contends: (1) his 2001 conviction may not be used as a prior strike or to enhance his sentence under section 667.5, subdivision (b); (2) the trial court abused its discretion by denying his Romero motion to strike his prior strike conviction; (3) all of his sentences for selling a large-capacity magazine and all but one of his sentences for possession of a firearm must be stayed pursuant to section 654; and (4) the court imposed unlawful terms for counts 9, 10, 14, 21, and 22. In supplemental briefing, defendant argues: (1) his convictions for selling large-capacity magazines under section 32310 must be reversed because the statute violates the Second Amendment to the United States Constitution; (2) his prior prison term enhancements must be stricken based on recent amendments to section 667.5; and (3) he is entitled to a hearing on his present ability to pay various fines and fees pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ). We agree the trial court miscalculated the sentence it imposed with respect to counts 9, 10, 14, 21, and 22. We conclude defendant’s sentences on counts 2, 3, 6, 7, 11-13, and 18-20, and all but one of his sentences on counts 23-27 should have been stayed pursuant to section 654. Further, his prior prison terms enhancements must be stricken. We remand for resentencing in accordance with this opinion, but otherwise affirm the judgment.
I. BACKGROUND
In July 2015, an undercover officer was assigned to purchase fully automatic weapons and narcotics from defendant. Because the facts pertaining to the drug purchases are not relevant to the issues raised by defendant on appeal, we omit them from our recitation of the facts.
On July 28, 2015, the officer texted defendant asking to purchase fully automatic rifles. Defendant said he could only get one and agreed to meet later that night. When they met, defendant handed the officer a short-barreled AR-15 fully automatic rifle in exchange for $1,500. A Magpul PMAG 40-round magazine was included with the rifle.
The next day, defendant sent the officer a text message with a picture of a short-barreled AR-15 rifle and letting the officer know defendant had another one for sale. They agreed to meet at the same location. Once there, the officer gave defendant a bag, and defendant returned it with a short-barreled AR-15 rifle inside. Again, the officer paid $1,500 for the rifle and a Magpul PMAG 40-round magazine was included with it.
On July 31, defendant texted the officer a picture of several guns. The officer responded that he was interested in buying "the Intratec TEC-9 and a .44 mag[num]." They met on August 4, and defendant gave the officer the firearms in exchange for cash. The TEC-9 had a magazine that held 32 rounds.
On August 18, defendant sent pictures of several pistols to the officer. They met the next day, and defendant handed the officer a fully automatic rifle that he referred to as his personal gun, two other short-barreled assault rifles, and two pistols. Each rifle had a 40-round magazine. The officer gave defendant $5,600.
II. DISCUSSION
See footnote*, ante .
D. Section 654
Defendant raises multiple challenges under section 654. He argues the trial court’s imposition of separate sentences for possession of firearms and selling a large-capacity magazine violated section 654 because the sale of the same firearms was also punished. We agree.
Section 654, subdivision (a) provides that "[a]n 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." The statute does not prohibit multiple convictions for the same conduct, only multiple punishments. ( People v. Monarrez (1998) 66 Cal.App.4th 710, 713, 78 Cal.Rptr.2d 247.) "In such a case, the proper procedure is to stay execution of sentence on one of the offenses." ( Ibid . )
"Section 654 precludes multiple punishments for a single act or indivisible course of conduct." ( People v. Hester (2000) 22 Cal.4th 290, 294, 92 Cal.Rptr.2d 641, 992 P.2d 569.) " ‘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.’ " ( People v. Correa (2012) 54 Cal.4th 331, 336, 142 Cal.Rptr.3d 546, 278 P.3d 809.) An implicit determination that there was more than one objective is a factual determination that must be sustained on appeal if it is supported by substantial evidence. ( People v. Osband (1996) 13 Cal.4th 622, 730, 55 Cal.Rptr.2d 26, 919 P.2d 640.)
1. Possession of A Firearm 2. Selling a Large-Capacity Magazine
See footnote*, ante .
Defendant argues the imposition of separate punishments for the sale of weapons and their attached magazines violated section 654. The People contend separate punishment is appropriate because assault rifles and large-capacity magazines are distinct items of contraband and not necessary to the sale of the other. "In some situations, physical acts might be simultaneous yet separate for purposes of section 654." ( Jones II, supra , 54 Cal.4th at p. 358, 142 Cal.Rptr.3d 561, 278 P.3d 821.) The court in Jones II gave as an example " ‘simultaneous possession of different items of contraband.’ " ( Ibid . ) It explained, " ‘the possession of one item is not essential to the possession of another separate item. One does not possess in the abstract; possession is meaningless unless something is possessed. The possession of each separate item is therefore a separate act of possession.’ [Citation.] We do not intend to cast doubt on the cases so holding." ( Ibid . ) A defendant found with a cache of guns may be punished separately for multiple counts of being a felon in possession of a firearm. ( People v. Correa, supra , 54 Cal.4th at pp. 334, 346, 142 Cal.Rptr.3d 546, 278 P.3d 809.) Our legislature has also made clear that an individual may be punished multiple times for selling several assault weapons. (See § 30600, subd. (c) ["Except in the case of a first violation involving not more than two firearms as provided in Sections 30605 and 30610, for purposes of this article, if more than one assault weapon or .50 BMG rifle is involved in any violation of this article, there shall be a distinct and separate offense for each"].) The Legislature has also made each violation of section 32310 "a distinct and separate offense." (§ 17800; see § 16590, subd. (l ).) The Legislature has not stated, nor are we aware of any case law which concludes, that any sale of an assault weapon in violation of section 30600 is a distinct and separate offense from any sale of a large-capacity magazine in violation of section 32310.
Courts have found section 654 prohibits punishing a defendant for both being a felon in possession of a firearm and unlawful possession of ammunition when all of the ammunition in question was loaded into the firearm or had been fired from it. "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, ... [w]here, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and section 654 precludes multiple punishment." ( People v. Lopez (2004) 119 Cal.App.4th 132, 138, 13 Cal.Rptr.3d 921, italics added; see People v. Sok (2010) 181 Cal.App.4th 88, 100, 104 Cal.Rptr.3d 310 [possession of firearm and ammunition not separately punishable because the ammunition was loaded into the gun or had been fired from it].) We conclude a similar rule applies here. No substantial evidence supports the conclusion that the weapons and the magazines included with them were separate items of contraband. The officer testified that he was offered and purchased specific firearms from defendant, and when he received them the high-capacity magazines were included. Defendant likewise testified that the magazines were attached to and inside the rifles. (See Kolbe v. Hogan, supra , 849 F.3d at p. 125 ["Large-capacity magazines are a feature common ... to the banned assault weapons"]; Duncan, supra, 366 F.Supp.3d at p. 1145 [AR-15 style rifles are typically sold with 30-round magazines].) On remand, the court may not impose separate punishments for the sale of weapons and their included magazines.
The People’s attempt to suggest that Jones II, supra , 54 Cal.4th 350, 142 Cal.Rptr.3d 561, 278 P.3d 821 cast some doubt on the continuing viability of People v. Lopez, supra , 119 Cal.App.4th 132, 13 Cal.Rptr.3d 921 is not well-taken. The court in Jones II overruled In re Hayes (1969) 70 Cal.2d 604, 75 Cal.Rptr. 790, 451 P.2d 430. (Jones II, supra , at p. 358, 142 Cal.Rptr.3d 561, 278 P.3d 821.) In so doing, it noted that Lopez "found a section 654 violation in a way that seems inconsistent with Hayes’s rationale." (Jones II, supra , at p. 357, 142 Cal.Rptr.3d 561, 278 P.3d 821.) Nothing about this observation undermines Lopez .
See footnote*, ante .
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III. DISPOSITION
The sentence is vacated. The matter is remanded to the trial court for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur:
RAYE, P. J.
BLEASE, J.