Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF122504, Gary T. Friedman, Judge.
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Hill, J. and Kane, J.
INTRODUCTION
Appellant, Larry Edward Fleisher, was charged on May 30, 2008, in an information with possession of ammunition by an ex-felon (Pen. Code, § 12316, subd. (b)(1), count one), possession of a firearm by an ex-felon (§ 12021, subd. (a)(1), count two), possession of narcotics paraphernalia (Health & Saf. Code, § 11364, subd. (a), count three), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count four). The information alleged a prior prison term enhancement (§ 667.5, subd. (b)).
Unless otherwise designated, all statutory references are to the Penal Code.
On August 14, 2008, a jury found appellant guilty of counts one and two. In a bifurcated proceeding, the appellant waived his rights and pled no contest to counts three and four and the trial court found the prior prison term enhancement to be true. On January 30, 2009, the trial court sentenced appellant on count one to a prison term of two years. The court imposed a concurrent term of two years on count two. The court added a consecutive term of one year for the enhancement for a total prison term of three years.
On appeal, appellant contends that count two should have been stayed pursuant to section 654 because the gun and the ammunition were possessed for the same criminal objective. We agree with respondent, however, that there were separate criminal objectives and that section 654 does not bar a concurrent sentence on count two.
FACTS
On the afternoon of February 6, 2008, Bakersfield Police officers and a Kern County probation officer went to appellant’s home to conduct a probation search. While searching a garage, Kara Kundinger, a probation officer, found a handgun and ammunition. The ammunition was located directly next to the handgun in a toolbox. Officer Christina Abshire testified that there was a box of.22-caliber ammunition.
Appellant rode up on his motorcycle. He was advised of and waived his Miranda rights. Appellant admitted the gun and box of ammunition were his. Appellant walked into the garage, pointed out the toolbox, and indicated that was where the gun was located. Appellant said the gun had been given to him by a friend two days earlier. Appellant told the friend that he was not allowed to possess a firearm. Appellant told the friend he would only keep the gun for a couple of days.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Appellant testified that the gun and ammunition belonged to a friend named Jim who asked appellant to store the items for him. Appellant denied ever seeing or touching the gun or the ammunition. Appellant stated the gun was in the garage no more than 36 hours. Appellant asserted the toolbox containing the gun and ammunition was locked and he gave Jim the key.
SECTION 654 STAY
Appellant was convicted of being an ex-felon in unlawful possession of ammunition in count one and of being a felon in unlawful possession of a firearm in count two. The court imposed concurrent two-year terms on each count. Appellant contends that the term imposed for the possession of a firearm conviction must be stayed pursuant to section 654, citing People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez). We disagree.
Section 654 applies to concurrent sentences. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1564-1565; People v. Cruz (1995) 38 Cal.App.4th 427, 434.)
Section 654 applies not only to the same criminal act, but also to an indivisible course of conduct committed pursuant to the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209, citing Neal v. State of California (1960) 55 Cal.2d 11, 15, 18-19; see also People v. Perez (1979) 23 Cal.3d 545, 551.) Section 654, however, does not apply when the evidence discloses a defendant entertained multiple criminal objectives independent of each other. In such a case, the court may impose punishment for independent violations committed in pursuit of each objective even if those violations were parts of an indivisible course of conduct. (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
“The divisibility of a course of conduct depends upon the intent and objective of the defendant.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) If each criminal act is incidental to, or accomplished a single objective, the defendant may be found to harbor a single intent. If the defendant harbored multiple criminal objectives independent of one another, he or she may be punished for each statutory violation even if they were part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Whether section 654 applies is a question of fact for the trial court which is vested with broad latitude in making its determination. Its findings will not be reversed on appeal if there is any substantial evidence to support them. Appellate courts must view the evidence in the light most favorable to the trial court’s findings and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; also see People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; also see People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
In Lopez, a handgun loaded with ammunition was found on the defendant after a confrontation with officers. The defendant was convicted of both unlawful possession of a firearm and unlawful possession of ammunition. The trial court sentenced the defendant to a six-year term in state prison for the firearm possession and imposed a concurrent six-year term for the ammunition possession. The defendant, citing section 654, argued that the sentence for unlawful possession of ammunition should be stayed because possession of the firearm and ammunition constituted an indivisible course of conduct. (Lopez, supra, 119 Cal.App.4th at p. 137.) In addressing what the court noted was an issue of first impression in California, Lopez held that section 654 prohibited multiple punishment for both offenses, noting:
“To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objective [of section 654] 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.” (Lopez, supra, at p. 138, italics added.)
Lopez is distinguishable from the instant action. Here, not all of the ammunition found by the officers during the search of the appellant’s garage was loaded into the firearm. In fact, it is unclear from the record whether the gun was loaded with ammunition. Investigators discovered a box of.22-caliber ammunition in a toolbox that also contained the gun. This clearly demonstrates appellant’s intent to not only use the ammunition in the firearm, if any, but also the separate intent to reload if he so desired. Appellant’s conduct was more culpable than possession of only the gun. As a result, we agree with the trial court’s implied finding that possession of the ammunition and possession of the gun were divisible acts. Accordingly, we affirm the sentence imposed with respect to count two.
DISPOSITION
The judgment is affirmed.