Opinion
F074501
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. JACKIE RAY HUNTER, Defendant and Appellant.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F15907425)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
A jury convicted Jackie Ray Hunter of attempted criminal threats, a lesser included offense of criminal threats as charged in count 1 (Pen. Code, §§ 664, 422), possession of a firearm by a prohibited person (§ 29800, subd. (a)/count 2), and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)/count 3). The jury also found true a personal use of a firearm enhancement (§ 12022.5, subd. (a)) in count 1.
All statutory references are to the Penal Code.
On October 7, 2016, the court sentenced Hunter to an aggregate five-year prison term: the middle term of one year on Hunter's attempted criminal threats conviction, a four-year arming enhancement in that count, and a concurrent, two-year middle term on each of his two other convictions.
On appeal, Hunter contends: (1) his sentence violates section 654's proscription against multiple punishment; and (2) pursuant to a recent change in the law, the matter must be remanded to the trial court for it to exercise its discretion whether to strike his firearm enhancement. We affirm.
FACTS
On November 30, 2015, Hunter's sister, Mary Goode, lived in a house in Fresno that had a trailer behind it where Hunter lived. At around 3:00 p.m. that day, Goode was in the house talking with her coworkers, Eleanor Phillips and Donna Bullard, when Hunter arrived at the property. At Goode's request, Phillips told Hunter to move his car. Hunter then went into his trailer. Approximately 10 minutes later, Phillips said that Hunter had a gun. Goode looked outside and saw that Hunter had a shotgun and that he looked "crazy and angry."
Goode went to a screen door and yelled at Hunter that they wanted to talk to him. Hunter replied, "Well, come on out here because I got a gun and I'm going to shoot you. I'm going to kill everybody in this house." Goode replied, "Well, you better make sure that if you shoot me, you better not miss because I'm going to have to call the cops on you." (RT: 842.)! She then called 911 and Hunter left the property.
At around 4:15 p.m., a sheriff's helicopter spotted Hunter's car heading back to Goode's house. Fresno County Sheriff's Sergeant Greg Collins stopped Hunter before he arrived there and determined that Hunter did not have any weapons on him.
After Collins and another deputy took Hunter to Goode's house, Hunter told them he did not threaten anybody and that he took the shotgun to a friend's house because he had a felony conviction. While being interviewed by Deputy Javier Puente, Hunter stated that at about 7:00 a.m. that morning, after arguing with Goode, he left the property. Afterwards, recalling he had a felony conviction, he decided to remove a shotgun he owned from his trailer because he believed deputies would search there. Hunter retrieved the shotgun from his trailer and was walking with it when Goode began talking to him. Although he was holding the shotgun, he did not threaten Goode or point it at her prior to leaving again.
Sheriff's Detective Michael Wynn went to the property where Hunter said he took the shotgun and found it in a blue nylon bag located in some tree trimmings. During a search of Hunter's trailer, Puente found a bag containing three live shotgun shells and four live bullets that could not be fired from the shotgun.
DISCUSSION
The Section 654 Issue
Introduction
Hunter contends that the single act of attempting to threaten Goode with a weapon encompassed the personal use of a firearm enhancement, the unlawful possession of a firearm offense, and the unlawful possession of ammunition offense. Thus, according to Hunter, pursuant to section 654, the court should have stayed the terms it imposed on his possession of a firearm and possession of ammunition convictions and on the firearm enhancement that attached to his attempted criminal threats conviction. We disagree.
"Section 654, subdivision (a) provides in part: 'An 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.' '[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. . . . If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.] Whether offenses are 'indivisible' for these purposes is determined by the 'defendant's intent and objective, not the temporal proximity of his offenses.' [Citation.] 'If [a] defendant harbored "multiple criminal objectives," which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." ' [Citation.] The application of section 654, thus, 'turns on the defendant's objective in violating' multiple statutory provisions. [Citation.] Where the commission of one offense is merely ' "a means toward the objective of the commission of the other," ' section 654 prohibits separate punishments for the two offenses. [Citation.]The Firearm Enhancement
"We apply a substantial evidence standard of review. 'The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial.' [Citations.] '[T]he law gives the trial court broad latitude in making this determination.' " (People v. Wynn (2010) 184 Cal.App.4th 1210, 1214-1215.)
Section 654 does not bar the imposition of an enhancement even if it is based on the same act as the substantive offense. As we explained in People v. Reyes-Tornero (2016) 4 Cal.App.5th 368 (Reyes-Tornero):
" '[E]nhancements are different from substantive crimes' in that they often 'focus on aspects of the criminal act that are not always present and
warrant additional punishment.' [Citation.] This difference 'affects how section 654 applies to enhancements.' [Citation.]
"Consider the example of a defendant who commits the single act of shooting someone, resulting in great bodily injury. [Citation.] The defendant has committed assault with a firearm, and is also subject to sentence for enhancements for personally using a firearm (§ 12022.53, subd. (a)) and personally inflicting great bodily injury (§ 12022.7). In that situation, the assault and each of the sentence enhancements are based on the same act: the shooting. Which of the three may be punished under section 654?
"The law is clear that punishment for the assault and one of the enhancements is permitted even though they are both based on the same act. [Citation.] 'If section 654 barred any additional punishment for a single criminal act, then no enhancement at all would be permitted, a result obviously inconsistent with the function of sentence enhancements.[]" (Reyes-Tornero, supra, 4 Cal.App.5th at pp. 376-377, additional italics added, citing People v. Ahmed (2011) 53 Cal.4th 156.)
"However, both enhancements can only be simultaneously punished under section 654 if they concern different 'aspects' of the criminal act of shooting. [Citation.] Because personal firearm use and infliction of great bodily injury are different 'aspects' of the criminal act of assault with a firearm, section 654 would presumably permit punishment for both enhancements." (Reyes-Tornero, supra, 4 Cal.App.5th at p. 377.)
Thus, even though Hunter's firearm use enhancement was based on his possession of a shotgun when he committed the attempted criminal threats offense, the court did not violate section 654 when it imposed an unstayed four-year term on Hunter's firearm use enhancement. The Possession of a Firearm Offense
"Case law establishes the guidelines for applying section 654 in the context of a conviction for possession of a prohibited weapon. ' "[W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the [weapon] has been held to be improper where it is the lesser offense." ' " (People v. Wynn, supra, 184 Cal.App.4th at p. 1217.)
The evidence showed that Hunter possessed the shotgun when it was in his trailer prior to retrieving it to threaten Goode, when he carried it prior to threatening Goode, and afterwards when he transported it to his friend's house to hide it. Further, Hunter was in constructive possession of the shotgun after he hid it in the tree trimmings because he continued to exercise dominion and control over it. (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 ["To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.].) Since Hunter's possession of the shotgun preceded his commission of the attempted criminal threats offense and continued afterwards, the court did not violate section 654 when it imposed an unstayed term on Hunter's unlawful possession of a firearm offense. The Possession of Ammunition Offense
In People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), a handgun loaded with ammunition was found on the defendant after a confrontation with police officers. The defendant was convicted of both unlawful possession of a firearm and unlawful possession of ammunition and sentenced to a six-year prison term for his firearm possession conviction and a concurrent six-year term for his ammunition possession conviction. Citing section 654, the defendant 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, stating:
"To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives [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, 119 Cal.App.4th at p. 138, italics added.)
Lopez is distinguishable from the instant case because, here, the ammunition was found in a bag in Hunter's trailer. In fact, it is unclear from the record whether the shotgun was loaded with ammunition. Further, some of the ammunition was for a different type of firearm and could not be used with a shotgun. Hunter's possession of the shotgun shells clearly demonstrates his intent to not only use the ammunition in the firearm, if any, but also the separate intent to reload if he so desired. His possession of the ammunition that could not be fired by the shotgun demonstrates his intent to possess other firearms and to load them. Hunter's conduct was, thus, more culpable than possession of only the shotgun. As a result, we agree with the trial court's implied finding that possession of the ammunition and possession of the firearm were divisible acts. Accordingly, we conclude that the court did not violate section 654 when it imposed an unstayed term on Hunter's conviction for unlawful possession of ammunition. The Recent Change in the Law Applies to Hunter's Firearm Enhancement , but Does Not Require Remand
On October 11, 2017, the Governor signed Senate Bill 620 (Stats. 2017, ch. 682, § 2) (SB 620). This bill amends section 12022.5, effective January 1, 2018, to allow the trial court discretion to dismiss a firearm enhancement imposed pursuant to this section. (§ 12022.5, subd. (c).)
Prior to the passage of SB 620, the trial court did not have discretion to strike a personal use of a firearm enhancement. (People v. Thomas (1992) 4 Cal.4th 206, 213-214.)
Pursuant to section 12022.5, subdivision (a), the trial court imposed a four-year term on Hunter's firearm-use enhancement. Hunter contends the amendment to section 12022.5 applies retroactively to his case and that the matter must be remanded for resentencing. Respondent concedes that the amendment of section 12022.5 applies retroactively to Hunter's case. Respondent, however, contends remand is not appropriate because the record shows that the trial court would not have exercised discretion to strike the enhancement. We agree with the parties that SB 620 applies to Hunter's case and with respondent that remand is not appropriate in the instant case.
Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication that the recent amendments to section 12022.5 were intended to operate prospectively only, SB 620 applies retroactively to Hunter's case.
In People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez), the court held that remand is not required where the trial court's comments at sentencing and the sentence itself clearly indicated that the court would not have exercised its discretion to strike allegations, and thus "no purpose would be served" by a remand. (Ibid.)
After the pronouncement of judgment, defense counsel advised the court that earlier he erroneously stated the court did not have discretion to grant probation and that, pursuant to section 1203.06, that was true only if the defendant used a firearm to commit certain specified offenses that did not include attempted criminal threats. The court responded, in pertinent part:
Section 1203.06, subd. (a), in pertinent part provides: "Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within this section be stricken pursuant to Section 1385, any of the following persons: [¶] (1) Any person who personally used a firearm during the commission or attempted commission of any of [certain enumerated crimes] ...." Attempted criminal threats is not one of the crimes enumerated in subdivision (a) of that section. --------
"... the Court has considered all the appropriate code sections, including the code section regarding the grant of probation, and the Court is not changing its ruling regarding the denial of a grant of probation. The Court -- even if the Court were to find that the defendant was eligible for a grant of probation, the Court would deny that request. Even if the Court were -- had the discretion to stay the 12022.5(a), the Court, in this case, would not find that to be appropriate given the circumstances involved in this case and including the defendant's criminal history. The Court would not exercise its discretion in that regard and the Court ultimately finds that the Court's sentence in this case is appropriate and supported by the evidence and supported by the law." (Italics added.)
"Imposing a stayed sentence results in the receipt of a sentence, albeit one that is not executed absent some subsequent reason to lift the stay." (People v. Jones (2015) 236 Cal.App.4th 1411, 1416.) Staying a term imposed on Hunter's arming enhancement would, in essence, have had the same effect as striking it because in either case he would not have served any time in custody on the enhancement. Thus, we find that, as in Gutierrez, the court's comments during the sentencing hearing indicate it would not have stricken the firearm-use enhancement even if it had the discretion to do so.
Hunter, however, contends Gutierrez is not controlling because his conduct is not as egregious as that of the defendant in Gutierrez and the court's comments in Gutierrez indicated an intent to impose the harshest penalty possible. He further contends the case should be remanded because: (1) defense counsel did not have the opportunity to argue Hunter's "position" under the beneficial change in the law; and (2) a post-conviction probation report, which the court would be required to obtain if the matter were remanded, might disclose facts that would cause the court to consider striking the enhancement. We reject these contentions.
Although the court did not impose the harshest sentence it could impose, its comments unequivocally indicate that even if it had had the discretion to strike the firearm enhancement, it would not have done so. Further, Hunter does not explain how the amended statute would have allowed defense counsel to present a more persuasive argument that the court should strike the enhancement and his claim that a new probation report might disclose circumstances that might cause the court to consider striking the enhancement is pure speculation. Thus, we conclude that remand is inappropriate in the instant case. (Cf. People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 ["[t]he petition [for resentencing] may ... be summarily denied if the record reflects that the sentencing court clearly indicated that it would not have exercised discretion to sentence under [the more lenient statute] even if it had been aware that it had such discretion"].)
DISPOSITION
The judgment is affirmed.