Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 07F09115, 05F05159
RAYE, J.
A jury found defendant Sidney Eugene Davis guilty of four counts of second degree robbery. (Pen. Code, § 211.) It also found he personally used a firearm in the commission of one robbery (§ 12022.53, subd. (b)) and was a principal armed with a firearm with respect to two other robberies (§ 12022, subd. (a)(1)). Finally, the jury convicted defendant of possession of a handgun by a convicted felon (§ 12021, subd. (a)(1)), receiving stolen property (§ 496, subd. (a)), and possessing a firearm with an obliterated serial number, a misdemeanor (§ 12094).
All further statutory references are to the Penal Code.
On appeal, defendant contends the trial court (1) erred in convicting him both for robbery in count four and for receiving property stolen from the victim in count eight and (2) violated section 654’s prohibition against multiple punishments for the same offense when it separately sentenced him for possession of a firearm by a convicted felon because he possessed the firearm with the same intent as was punished by his conviction of the “personal arming enhancement” under section 12022. The People concede that defendant’s first contention has merit. We shall reverse defendant’s conviction for receiving stolen property (count eight) and otherwise affirm the judgment.
BACKGROUND
We limit our recitation of the facts to those relevant to the issues on appeal. All events occurred in 2007.
September 5 Robbery of Antonio Gutierrez
Antonio Gutierrez and his cousins were taking a lunch break from their landscaping job when they were approached by two black men. One of the men aimed a gun at Gutierrez’s head and took his wallet.
Defendant was also charged with robbing one of Gutierrez’s cousins based on these events, but the trial court granted the People’s request to dismiss that count during trial.
A white cell phone found at the scene after the robbers fled later proved to belong to defendant’s girlfriend.
As the robbers drove away in a white Toyota Camry, Gutierrez noted the license plate number. He believed the man who had robbed him was the driver. The Toyota Camry used by the robbers later proved to belong to defendant’s girlfriend.
Gutierrez did not identify defendant as the robber in either a live lineup or in a photographic lineup, but he later identified photographs of the car and identified a gun recovered from the car as one he saw during the robbery.
September 24 Robbery of William Linton and Michael Perrone
William Linton and Michael Perrone, City of Sacramento Utility Department employees, were standing outside their parked truck when two black men ran up to them and demanded their wallets. Both robbers were armed, and their shirts were pulled up to cover their faces. Perrone gave them his wallet (count three), but Linton had no wallet, so they took his cell phone (count four).
September 24 Robbery of Felix Guerrero
Felix Guerrero worked as a gardener. Around 10:20 in the morning, he was working and supervising others when two black men walked up. Both beat him; one had a gun and the other took his wallet, which contained cash and a paycheck stub (count five).
Later that day, officers arrested defendant as he drove his girlfriend’s car. Next to the driver’s seat was a handgun; the serial number was scratched off. Linton’s cell phone and Guerrero’s paycheck stub were found in the car.
Defendant’s girlfriend testified at trial that she owned the car used in the robbery of Gutierrez; that she and defendant shared the cell phone later found by Gutierrez at the scene of his robbery; and that defendant was using her car on the morning of the Linton, Perrone, and Guerrero robberies.
Digital photographs of defendant holding a gun were found in his girlfriend’s camera. Police found nine-millimeter ammunition in the apartment defendant and his girlfriend shared.
Guerrero testified at trial that the gun found with defendant in the car looked like the gun that was used on him during the robbery, and identified defendant as “look[ing] a lot” like the robber wielding the gun.
The defense was mistaken identity.
The jury found defendant guilty of all charges: it found that he committed all four robberies, and found true allegations that he personally used a firearm while robbing Gutierrez and was a principal armed with a firearm during the robberies of Linton and Perrone, but it found not true the allegation that defendant personally used a firearm during the Guerrero robbery. The jury also convicted defendant of possession of a handgun by a convicted felon, receiving stolen property, and possessing a firearm with an obliterated serial number (a misdemeanor).
Additional facts appear as necessary in the Discussion.
DISCUSSION
I
Defendant contends that his conviction in count eight for receiving stolen property must be reversed because he was improperly convicted of both stealing and receiving William Linton’s cell phone. The People concede that the conviction must be reversed, and we accept the People’s concession.
In their respondent’s brief, the People note that defendant was also charged with robbing Felix Guerrero, from whom a wallet containing a paycheck stub was taken. At trial, the prosecutor argued that the stolen property referred to in count eight was Linton’s cell phone and Felix Guerrero’s paycheck stub, and that defendant was “the robber who’s involved in actually taking this property[.]”
Common law has long established that “‘a person may not be convicted of [both] stealing and receiving the same property.’” (People v. Smith (2007) 40 Cal.4th 483, 522 (Smith), quoting People v. Allen (1999) 21 Cal.4th 846, 852.) The Legislature later codified this principle. (§ 496, subd. (a) [“[N]o person may be convicted both pursuant to this section and of the theft of the same property”].) The trial court has a sua sponte duty to instruct the jury accordingly. (People v. Garza (2005) 35 Cal.4th 866, 881.)
“There are two limited exceptions to the common law rule: ‘(1) when the acts of receiving or concealment are completely divorced from the theft, as where the thief disposes of the property and then, in a separate transaction, receives it again, and (2) when the thief is a coconspirator of the receiver.’ [Citation.]” (Smith, supra, 40 Cal.4th at p. 522, fn. 10.) Neither exception applies here.
In this case, defendant was convicted both of stealing Linton’s cell phone and Guerrero’s pay stub, and of receiving those items as stolen property. The parties agree that the proper remedy is to reverse defendant’s receiving stolen property conviction, and they are correct. (See People v. Recio (2007) 156 Cal.App.4th 719, 723-726.)
The trial court stayed imposition of sentence on count eight pursuant to section 654.
II
Defendant also contends that the court erred in separately imposing a sentence for possession of a handgun by a convicted felon (eight months, or one-third the midterm -- count six) and for having been armed with a firearm during the Linton robbery (four months, or one-third the midterm -- count four) because both “arose from a single indivisible objective,” i.e., robbing Linton. He argues the trial court should have stayed imposition of sentence on both the gun possession and the firearm enhancement under section 654.
We are unpersuaded.
Section 654, subdivision (a) provides, in pertinent part, 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.” “Section 654 therefore ‘“precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” [Citation.]’ [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) “However, if the defendant harbored ‘multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]’ [Citations.]” (Ibid.) Determining whether section 654 precludes multiple punishments lies within the trial court’s broad discretion, and the court’s findings, explicit or implicit, on this point will not be reversed on appeal if there is any substantial evidence to support them. (Id. at p. 1147.)
First, the heading of defendant’s argument indicates he claims the court erred in separately punishing both the robbery and the arming enhancement. He is mistaken: it is well established that if a robbery “is committed by a robber who is either armed or uses a firearm in this commission, then an appropriate additional [arming] ‘enhancement’ is to be imposed. [Citation.]” (People v. Hays (1983) 147 Cal.App.3d 534, 551.)
Defendant’s assertion that he should not be punished both for the firearm possession and for being armed during the Linton robbery is likewise meritless. Whether a violation of section 12021, forbidding a convicted felon from possessing a firearm, constitutes a divisible transaction from another offense involving possession or use of the weapon depends upon the facts and evidence of each individual case, but the weight of authority establishes that “when an ex-felon [sic] commits a crime using a firearm, and arrives at the scene already in possession of the firearm, it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime[,]” such that “section 654 will not bar punishment for both firearm possession by a felon (§ 12021, subd. (a)(1)) and for the primary crime of which the defendant is convicted.” (Jones, supra, 103 Cal.App.4th at p. 1141; see also Jones, at p. 1143; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412-1414 (Ratcliff); People v. Garcia (2008) 167 Cal.App.4th 1550, 1565.)
For example, in Jones, supra, 103 Cal.App.4th 1139, the court held that section 654 did not preclude defendant’s separate punishment for shooting at an inhabited dwelling (§ 246) and possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)) because the defendant must have possessed the firearm before he drove to the victim’s house and fired into it. (Jones, at pp. 1144, 1147.)
In contrast, multiple punishment is improper where the evidence shows that, at most, “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), such as where the defendant shoots an officer with the gun he wrested away from the officer moments before (People v. Bradford (1976) 17 Cal.3d 8, 13, 22), or where the shooting follows a struggle with the victim over a gun produced by the victim (People v. Venegas (1970) 10 Cal.App.3d 814, 818-821; see Jones, supra, 103 Cal.App.4th at p. 1144).
Here, however, the court did not err in inferring from the fact that defendant brought the gun to Linton’s robbery that he must have possessed it before he used it to rob Linton. (C.f. Jones, supra, 103 Cal.App.4th at pp. 1144, 1147.) In addition, other evidence adduced at trial supports the court’s implicit determination that defendant’s unlawful possession of the firearm preceded the Linton robbery. Three weeks before Linton’s robbery, the gun was used to rob Antonio Gutierrez: Gutierrez testified he was robbed at gunpoint by the driver of a Toyota Camry later found to belong to defendant’s girlfriend; the gun the robber used was later recovered from that car while defendant was driving it. And defendant was arrested on the same day as Linton’s robbery while defendant’s girlfriend was at work: the digital photographs of him on her camera, holding the gun, must have been taken before the Linton robbery.
Separate punishment is consistent with the policies underlying section 654 and section 12021, prohibiting firearm possession by a convicted felon. (Jones, supra, 103 Cal.App.4th at p. 1148.) “We see no reason why a felon who chooses to arm himself or herself in violation of section 12021 should escape punishment for that offense because he or she uses the firearm to commit a second offense. A felon who, for example, uses a gun to commit a burglary is more culpable than a felon who commits the same burglary without a gun, or than a felon who arms himself but does not commit any additional crimes. Therefore punishment for both the possession of a firearm by a felon and for the crime committed using that firearm, i.e., shooting at an inhabited dwelling, is commensurate with [the defendant’s] culpability and furthers the legislative goal of discouraging firearm possession by felons.” (Jones, at p. 1148.)
Defendant relies on a single case to support his contrary argument. In People v. Mustafaa (1994) 22 Cal.App.4th 1305, the defendant pled guilty to three robbery counts, admitted that he was personally armed with a firearm on those occasions, and admitted that he was a felon in possession of a firearm in each of those instances. (Id. at p. 1309.) Because the prison term imposed for one count of possession of a firearm by a convicted felon “appear[ed] to be based on the same conduct as that on which the term for the personal gun-use enhancement... was based” (id. at p. 1312), at the change of plea hearing “the court referred to Mustafaa’s gun possession only as part of the robbery incident and not to his gun possession at the time of his arrest” (ibid.), and “there was no stipulation that the plea was based on the preliminary hearing or police reports” (ibid.), the court held that the sentence on the count of possession of a firearm by a convicted felon violated section 654.
In contrast, as we have explained, the evidence adduced at trial in the case before us amply supports the trial court’s inference that defendant possessed the gun before he used it to rob Linton. There was no error in punishing him separately for that crime.
DISPOSITION
Defendant’s conviction for receiving stolen property in count eight is reversed. In all other respects, the judgment is affirmed. The trial court shall amend the abstract of judgment accordingly and forward the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J., CANTIL-SAKAUYE, J.