Opinion
F073370
09-15-2017
THE PEOPLE, Plaintiff and Respondent, v. FELICIANO APOLINAR JIMENEZ, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Jennifer L. Oleksa, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F14909100)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Jennifer L. Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
A jury convicted appellant Feliciano Apolinar Jimenez of second degree robbery (Pen. Code, § 211/count 1), possession of a firearm by a felon (§ 29800, subd. (a)/count 2), possession of ammunition by a person prohibited from possessing a firearm (§ 30305, subd. (a)(1)/count 3), two counts of receiving stolen property (§ 496, subd. (a)/counts 5 & 7), and resisting arrest (§ 148, subd. (a)(1))/count 8). The jury also found true a personal use of a firearm enhancement (§ 12022.53, subd. (b)) and a serious felony enhancement (§ 667, subd. (a)) in count 1, a prior prison term enhancement (§ 667.5, subd. (b)), and allegations that Jimenez had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code, unless otherwise indicated. --------
On March 11, 2016, the court sentenced Jimenez to an aggregate term of 20 years four months calculated as follows: an aggregate 19-year term on count 1, a consecutive 16-month term on count 2, a concurrent four-year term on count 3, and credit for time served on his misdemeanor convictions in counts 5, 7, and 8.
On appeal, Jimenez contends the court violated section 654 when it imposed a concurrent term on his conviction in count 3 for possession of ammunition. We find merit to this contention and modify the judgment accordingly. In all other respects, we affirm.
FACTS
On September 25, 2014, at approximately 9:00 a.m., Jimenez and another man rode up to Jose Montes on bicycles as Montes walked to Fresno City College and asked him if he was a gang member. After Montes replied that he was not, one of the men lifted his shirt to reveal a handgun tucked at his waist and told Montes to hand them everything. The men took a cellular phone, headphones, a chain, a bag of coins, and Montes's wallet. The man with the handgun punched Montes and both men left.
On September 26, 2014 at approximately 8:00 p.m., Fresno Police Officer Christopher Aranas saw Jimenez ride his bicycle through a four-way stop without stopping. Aranas got behind Jimenez and activated his emergency lights and siren. Jimenez pedaled faster attempting to evade the officer but his bike slid and he fell off. Jimenez got up and ran into a dirt field. Aranas saw Jimenez reach toward his waistband with his hands and a second or two later he fell down. Jimenez got up and ran 30 to 50 feet until he fell again where the field bordered a street. Jimenez took off a backpack he was wearing and continued running. Aranas saw Jimenez run through a breezeway between a house and a garage and then lost sight of him. However, one of the officers who arrived on the scene eventually located Jimenez hiding underneath a porch behind some bushes. The officers searched Jimenez and found Montes's cellphone. They searched the area and found a .9 millimeter Ruger handgun without a magazine hidden behind a piece of wood, inches away from the breezeway Jimenez had run through.
Aranas used his flashlight to retrace the path Jimenez had run. At the location where Jimenez first fell down in the field, Aranas found a handgun magazine that contained seven live .9-millimeter rounds and had the insignia for Ruger inscribed on it. The magazine fit the handgun found by the breezeway.
The backpack Jimenez had been carrying contained various stolen items, including Montes's coin purse. A check of the handgun revealed that it was also stolen.
DISCUSSION
Jimenez cites People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez) to contend that because the evidence showed he possessed the Ruger handgun and the ammunition simultaneously, the court violated section 654 when it imposed a concurrent term on his possession of ammunition conviction. We agree.
Section 654, subdivision (a) provides, in relevant 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." Thus, under the plain language of the statute, multiple punishment may not be imposed for a single "act or omission." (§ 654, subd. (a).) In addition, however, section 654 prohibits multiple punishment for multiple acts which comprise an "indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.)
A course of conduct is "indivisible" if the defendant acts with "a single intent and objective." (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) "If, on the other hand, [the] 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.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal." (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) The trial court "is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Our review of the trial court's determination is made "in the light most favorable to the respondent and [we] presume the existence of every fact the trial court could reasonably deduce from the evidence." (Ibid.) The court's findings may be either express or implied from the court's ruling. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.) The purpose of section 654 "is ... to ensure that punishment is commensurate with a defendant's criminal culpability." (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) Additionally, " '... imposition of concurrent sentences is precluded by section 654 [citations] because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.' " (People v. Jones (2012) 54 Cal.4th 350, 353.)
In Lopez, supra, 119 Cal.App.4th 132, police found a loaded firearm in the defendant's pocket; the defendant was convicted of unlawful possession of a firearm and unlawful possession of ammunition; and the trial court imposed concurrent sentences on the two offenses. The defendant argued that execution of the sentence for unlawful possession of ammunition should be stayed under section 654 because possession of the firearm and the ammunition with which it was loaded "was an 'indivisible course of conduct.' " (Lopez, at p. 137.) The appellate court agreed: "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, 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." (Id. at p. 138, italics added.)
Here, the magazine was found at the location where Jimenez first fell in the field, it had the Ruger insignia on it, and it fit the Ruger handgun found by the breezeway. Additionally, the ammunition in the magazine was the same caliber as the handgun and the handgun did not have a magazine. The most reasonable conclusion from these circumstances is that the magazine had been loaded into the Ruger handgun prior to Jimenez falling the first time in the field and that it came out of the gun where Jimenez fell. Thus, the record shows that Jimenez possessed the ammunition and the Ruger handgun simultaneously while the magazine containing the ammunition was loaded in the Ruger handgun. Moreover, once the magazine separated from the handgun, Jimenez ran only a short distance while being pursued by police officers before he discarded the gun. This left him little time to form a separate intent and objective from the one he had when he possessed the gun and the magazine simultaneously. Nor was there any evidence he was aware that he dropped the magazine, or that his intent and objective changed once he possessed only the gun.
Respondent contends that guns and ammunition that are possessed separately can serve different purposes—an unloaded gun can be used to threaten or harm someone and ammunition can be used to resupply a gun or to give to someone who might need it. He further asserts that section 654 does not prohibit multiple punishment when a defendant simultaneously possesses two items of contraband and the possession of one is not essential to the possession of the other. Thus, according to respondent, because Jimenez possessed the ammunition while it was outside of the gun, the court did not violate section 654 when it imposed a concurrent term on count 3. However, as discussed above, there is no evidence Jimenez possessed the magazine while it was outside of the gun, that he was aware he dropped the magazine, or that he had time to form a separate intent while he possessed the gun alone. Thus, we conclude that section 654 prohibited the imposition of separate punishment on Jimenez's possession of ammunition conviction and we will stay the concurrent term the court imposed on that count.
DISPOSITION
The judgment is modified to stay the four-year term imposed on Jimenez's possession of ammunition conviction count 3. The trial court is directed to issue an amended abstract of judgment that incorporates this modification and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.