Opinion
A152216
09-05-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND DEVON JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR201685711)
In March of 2016, defendant Raymond Jones and his girlfriend were staying with Arthur Peters at his home in Willits. Peters asked Jones and his girlfriend to leave, and then left the house himself for a few hours. When he returned, Peters found Jones gone and multiple items missing from his bedroom, including an antique .32-caliber firearm. Several weeks later, Jones was stopped by police and a search found the missing firearm in his vehicle and a single bullet in his pants pocket. Jones was charged with first degree burglary, receiving stolen property, possession of a firearm by a felon, and possession of ammunition by a felon. The information also alleged that Jones had two prior convictions for burglary and robbery. Jones waived his right to a jury trial on the prior convictions, and a jury found him not guilty of first degree burglary but guilty of the other charged offenses. Jones contends that his waiver of a jury trial on his prior convictions was not knowing and intelligent, that his separate sentences for possession of the firearm and the ammunition violated Penal Code section 654, and that the trial court erred in imposing a consecutive sentence for possession of the ammunition. We affirm.
Subsequent statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February of 2016, Peters permitted Jones and his girlfriend to live with him in his three-bedroom home in Willits. In March, he asked them to leave after Jones got into a fight with a neighbor. On March 9, Peters left Jones at the house around 4:00 p.m. and returned about two hours later. When Peters returned, Jones was gone and Peters's bedroom door, which he had left locked, appeared to have been forced open. Several items were missing from Peters's bedroom, including a .9-millimeter Glock 9, an antique .32-caliber firearm, 30 pounds of marijuana, $2,500 in cash, and a small safe containing various personal documents. Peters contacted law enforcement and reported the burglary.
On April 21, Mendocino County Sherriff's Deputy Christian Denton located a 1990's silver Chevrolet truck that police were looking for in an unrelated case. The truck was parked at a storage facility on Brush Street in Ukiah. Officer Denton saw Jones and another man near the truck. The passenger-side door of the truck was open, and Denton saw Jones appear to place something in the vehicle. Officer Denton contacted Jones, who stated that he had owned the truck for four days and consented to a search of the vehicle. A small revolver was located in the cup holder of the truck. The firearm, which held five rounds, had two .32-caliber bullets in its cylinder. Jones was also searched and a .32-caliber bullet was found in his right pants pocket. All three bullets had the same head stamp, indicating that they were the same type of bullet made by the same manufacturer. Jones told Officer Denton that he found the bullet in the truck, and that he "didn't know [the firearm] was in there." Peters was subsequently shown a photograph of the gun and identified it as the .32-caliber firearm taken from his bedroom.
On June 29, the Mendocino County District Attorney filed an information charging Jones with first degree burglary (§§ 459 & 460) (count 1); receiving stolen property (§ 496, subd. (a)) (count 2); possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3); and possession of ammunition by a felon (§ 30305, subd. (a)(1)) (count 4). It was further alleged that Jones had two prior convictions: a 1994 conviction for first degree robbery (§ 211), and a 1996 conviction for burglary (§ 459, subd. (a)). Trial on the prior convictions was bifurcated, and a jury trial on the charged offenses was held on April 25 and 26, 2017. While the jury was deliberating, Jones personally waived his right to a jury trial on the prior convictions.
On the prosecution's motion, the receiving stolen property charge was reduced to a misdemeanor.
The information was amended at the close of trial to allege that the 1996 conviction was for first degree burglary.
The jury found Jones not guilty of first degree burglary and guilty of the other three offenses. A bench trial was then held on the prior convictions, and the trial court found both allegations to be true. Jones was sentenced to the midterm of four years for possession of a firearm (two years, doubled pursuant to the prior strike convictions); and 16 months for the possession of ammunition (one-third of the midterm, doubled pursuant to the prior strike convictions) for a total term of five years, four months. This appeal followed.
DISCUSSION
Jones argues that he did not knowingly and voluntarily waive his right to a jury trial on his prior convictions, that he was improperly sentenced separately for both possessing the firearm and possessing the ammunition in violation of section 654, and that the trial court abused its discretion in imposing a consecutive sentence for possession of the ammunition. I. Jones's Jury Trial Waiver Was Knowing and Intelligent A. Additional Background
On April 25, 2017, the first day of trial, Jones was not present in court. The trial court made a finding that he was voluntarily absent, and the trial proceeded without him. That afternoon, he returned to court and the trial court asked defense counsel:
"[The Court]: Now that your client is here, Mr. Rennert, I'd like to address the question whether or not he's going to waive jury in the event of a conviction on the priors.
"[Mr. Rennert]: If I may have a moment?
"[The Court]: Yes.
"[(Discussion off the record with client.)]"
The discussion between counsel and the court then moved on without further addressing the waiver of a jury trial.
Later that afternoon, Jones did not return from a break. While Jones was not present, the trial court indicated that "we did have a conversation off the record where I asked [defense counsel] to discuss with his client whether he wanted to waive a jury and have a court trial on the strike priors alleged in the information." Defense counsel responded that "Mr. Jones stated to me he was prepared to waive either a bench warrant or a jury trial." However, because Jones was not present, the trial court declined to accept the waiver.
The next morning, Jones was again present in court, and the following colloquy took place:
"[The Court]: [¶] . . . [¶] We have bifurcated on the priors. Mr. Jones is not going to waive jury on the priors.
"[Defense counsel]: Just to be clear, Your Honor, I asked Mr. Jones if he was willing to either stipulate to the strike priors, to waive the jury or—and he refused to answer."
Following the close of evidence, the trial court went on to instruct the jury, counsel made closing arguments, and jury deliberations began. While deliberations were ongoing, defense counsel informed the trial court that Jones was prepared to waive his right to a jury trial on the prior convictions. This colloquy followed:
"[The Court]: Mr. Jones, you have—depending on the outcome of the jury deliberations that the jury has just now begun, if you're convicted of counts one, three, or four, there will be a second phase of the case where evidence has to be presented to establish with proof beyond a reasonable doubt that you have suffered one or both of these prior convictions that are alleged as the first and second strike allegations in the information. [¶] Do you understand that?
"[The Defendant:] Yes.
"[The Court:] And the People have to prove one or both of those allegations and that you are the person named in the allegations with proof beyond a reasonable doubt. Do you understand?
"[The Defendant:] Yes.
"[The Court:] You have the right to have this jury that's been listening to the evidence thus far, you have the right to have that same jury hear the evidence in this second phase of the trial, should there be one. There won't be one unless you're convicted of count one, three, or four. [¶] You have the right to have that same jury hear the evidence in the second phase of the trial. [¶] Do you understand that?
"[The Defendant:] Yes.
"[The Court:] And are you giving up your right to have the jury hear that evidence?
"[The Defendant:] Yes.
"[The Court:] Okay. And are you doing so willingly and voluntarily?
"[The Defendant:] Yes.
"[The Court:] So we'll have a court trial." B. Analysis
Jones argues that his waiver of his right to a jury trial on the alleged prior offenses was not " ' "voluntary and intelligent under the totality of the circumstances." ' " (People v. Daniels (2017) 3 Cal.5th 961, 991 (lead opn. of Cuellar, J.).) He notes that his colloquy with the trial court did not mention that the court alone would decide whether he had suffered the prior convictions, that one juror out of twelve could prevent a true finding, or the consequences of a deadlocked jury. He also argues that the record does not demonstrate that defense counsel explained the nature of the jury trial right to him, because court was in session and on the record from the time that defense counsel stated that Jones had refused to indicate whether he would waive his jury trial right and the time later that day when defense counsel told the court that Jones had in fact decided to waive that right. We are not persuaded.
Jones's argument that his colloquy with the trial court failed to inform him of specific aspects of a jury trial fails because our Supreme Court has "persistently declined to mandate any specific admonitions describing aspects of the jury trial right." (People v. Daniels, supra, 3 Cal.5th at p. 992; see People v. Sivongxxay (2017) 3 Cal.5th 151, 167 ["Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the totality of the circumstances."].) Jones's waiver also came immediately after a jury trial on the charged offenses, during which Jones was present for jury selection and heard the jury instructed as to the prosecution's burden of proof beyond a reasonable doubt, and the requirement that the jury's verdict be unanimous. Jones has numerous previous convictions, including for first degree robbery in 1994 and first degree burglary in 1996, further indicating that he was aware of the nature of a jury trial. (See People v. Sivongxxay, supra, at p. 167 ["prior experience with the criminal justice system" can help demonstrate that waiver of jury trial right was knowing and intelligent].)
In addition, Jones was at all times represented by counsel. (See People v. Daniels, supra, 3 Cal.5th at p. 991 ["In our prior cases, we have assessed whether a knowing and intelligent waiver was given by examining factors such as . . . the presence of counsel and references to discussions between the defendant and counsel regarding the jury right."].) Contrary to Jones's suggestion, the record does reflect that he and his counsel discussed his waiver of his right to a jury trial. As discussed above, the record indicates that defense counsel had a discussion with Jones regarding his jury trial right on the afternoon of April 25, and apparently a second discussion later that afternoon, at which point Jones indicated he "was prepared" to waive his jury trial right. By the next morning, a third conversation had evidently taken place, during which defense counsel represented to the court that he had asked Jones about the waiver and Jones had refused to answer. By that afternoon, a fourth conversation had taken place in which Jones had agreed to the waiver, which he then personally entered on the record. In short, the record indicates that Jones had multiple conversations with his counsel regarding his jury trial right, before personally entering a waiver of that right. We conclude that his waiver was voluntary and intelligent under the totality of the circumstances. II. Separate Sentences for Possession of the Firearm and Possession of the Ammunition Are Not Barred by Section 654
Jones next argues that his separate sentences for possessing a firearm and possessing ammunition violated section 654, subdivision (a), which provides: "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." Jones argues that his possession of the firearm and the ammunition were an indivisible course of conduct and thus that his sentence for possession of ammunition should be imposed and stayed pursuant to section 654. (See People v. Duff (2010) 50 Cal.4th 787, 796.)
Jones did not object to his sentence on this basis below. However, "[e]rrors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal." (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.)
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives. [Citations.]" (People v. Corpening (2016) 2 Cal.5th 307, 311-312.)
A course of conduct divisible in time, even if directed to one objective, may also give rise to multiple punishments. (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1289.) " 'This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' " (People v. Kurtenbach, supra, at p. 1289; see People v. Clair (2011) 197 Cal.App.4th 949, 960.)
"A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.) This court recently noted that trial courts enjoy broad latitude in making these determinations, and the record is viewed most favorably in support of them. (People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4.)
The parties do not dispute that Jones's possession of the firearm and possession of the ammunition were separate physical acts. (See People v. Jones (2012) 54 Cal.4th 350, 358 [Supreme Court did "not intend to cast doubt" on cases holding that " 'simultaneous possession of different items of contraband' " are separate acts for purposes of section 654].) Instead, Jones argues that section 654 bars multiple punishment for the two possession counts because he had the same intent and objective in possessing the ammunition and the firearm itself, i.e., to possess a loaded firearm. We disagree.
There was no direct evidence of Jones's intent, apart from his statements to Officer Denton that he found the bullet in the truck and that he had no knowledge of the firearm in the truck's cup holder. However, the fact that Jones possessed a separate round in a separate location supports an inference that he possessed that round for a separate purpose. The firearm held five rounds but was loaded with only two, meaning that the third round could have been loaded into the firearm, but was not. This further supports an inference that Jones possessed the third round on his person for a separate purpose and is not consistent with his argument that his only objective was to possess a single loaded firearm. In addition, the firearm had been missing from Peters's house for approximately six weeks, and according to Jones's own statements had been in his possession for four days since he purchased the truck, whereas the bullet in his pocket was presumably put there at some point after he got dressed on April 21, 2016. Thus, "the evidence was sufficient to allow the inference that Jones's possession of the firearm was antecedent to and separate from" his possession of the ammunition, so that the two offenses were divisible in time and multiple punishment is not precluded by section 654. (People v. Jones (2002) 103 Cal.App.4th 1139, 1147.) Viewing the record in support of the trial court's determination, we conclude that substantial evidence supports the trial court's implied finding that the two possession crimes were separate.
Jones relies on People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), in support of his contention that his possession of the firearm and possession of the ammunition were an indivisible course of conduct for the purposes of section 654. In Lopez, police discovered a loaded firearm in the defendant's pocket, and he was ultimately sentenced for both possession of a firearm and possession of the ammunition loaded inside. (Id. at pp. 134-135.) The court held section 654 barred multiple punishment for the two possession convictions because defendant's "obvious intent was to possess a loaded firearm" and "[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." (Lopez, at p. 138.)
Lopez is distinguishable. There, as noted, all of the ammunition was loaded into the firearm, making it impossible to possess one without possessing the other. (See People v. Jones, supra, 54 Cal.4th at p. 358 [acts of possession are separate for purposes of section 654 where " 'the possession of one item is not essential to the possession of another separate item' "].) Here, Jones possessed the two items separately, and the record supports an inference that he did so with separate purposes. III. The Trial Court Did Not Abuse Its Discretion in Imposing a Consecutive Sentence on Count 4
"[A] trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial court's discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20.)
California Rules of Court, rule 4.425 sets out criteria "affecting the decision to impose consecutive rather than concurrent sentences," which include whether the "crimes and their objectives were predominantly independent of each other," whether they "involved separate acts of violence or threats of violence" and whether the "crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(1)-(3).)
Jones argues that the trial court abused its discretion in imposing a consecutive sentence on the possession of ammunition count because the two possession crimes had the same objective, were dependent on one another, and occurred at the same time and place. For much the same reasons given above in connection with the discussion of section 654, we disagree. As noted, there was substantial evidence in the record from which the trial court could permissibly conclude that the two possession crimes were separate. The trial court's decision did not "exceed the bounds of reason." (People v. Bradford, supra, 17 Cal.3d at p. 20.)
DISPOSITION
The judgment is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.