Opinion
APPEAL from a judgment of the Superior Court of Los Angeles County, Jacqueline H. Nguyen and Clifford L. Klein, Judges, Los Angeles County Super. Ct. No. GA057842
Russell Fong, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Appellant was convicted of possession of a firearm by a felon, illegal possession of an assault weapon and unlawful possession of ammunition. He contends the trial court violated Penal Code section 654 by sentencing him to a term of imprisonment on all three counts, rather than staying the sentence on two of them. Appellant also contends the trial court impermissibly imposed the upper term under California’s determinate sentencing law, using factors condemned by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). Finally, appellant requests a review of the trial court’s in camera determination that none of the items produced pursuant to appellant’s Pitchess motion was discoverable. We review the sealed transcript of the in camera hearing, but otherwise reject appellant’s contentions and affirm the judgment.
See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-82; Pitchess v. Superior Court (1974) 11 Cal.3d 531; Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1045.
BACKGROUND
In a three-count information, appellant was charged in count 1 with possession of a firearm by a felon, based upon possession of two firearms -- a shotgun and a Cobray M-11 assault pistol -- in violation of Penal Code section 12021, subdivision (a)(1). In count 2, appellant was charged with possession of an assault weapon -- the Cobray M-11 -- in violation of Penal Code section 12280, subdivision (b). He was charged in count 3 with unlawful possession of ammunition, in violation of Penal Code section 12316, subdivision (b)(1).
Prior to trial, appellant brought a Pitchess motion to discover the disciplinary records of several officers. The motion was preliminarily granted as to two officers, Detective Greg Mallette and Lieutenant Lara. After an in camera review of the records, the trial court concluded that the records were not discoverable, and denied the motion.
Appellant was convicted on all three counts. On December 1, 2005, the trial court sentenced appellant to the upper term of three years as to count 1, and the middle term of two years each as to counts 2 and 3, with counts 2 and 3 to run concurrently with the term imposed as to count 1. Appellant timely filed a notice of appeal December 21, 2005.
FACTS
On June 23, 2004, at approximately 7:00 a.m., five San Gabriel Police Officers executed a search warrant for appellant’s home. The officers included Detectives George Cortez, Mallette, and Kenneth Butler, and Lieutenant Lara. One of the officers knocked and announced the San Gabriel Police Department. After hearing no response, another officer pried open the metal security door, and the search team entered the house. As the team entered, the officers encountered appellant and detained him in his bedroom during the search.
In appellant’s bedroom, the officers found guns and ammunition. From under the bed, they recovered a Mossberg 12-gauge shotgun with a live round, five loose shotgun rounds and an ammunition case with 91 live 12-gauge shotgun shells. They also recovered near the bed a duffel bag containing a loaded Cobray M-11 assault pistol, a bulletproof vest, a clear plastic bag containing gold and copper tipped bullets, a black bag containing approximately one hundred .223-caliber rifle bullets, an unopened box of Federal .380-caliber hydroshock bullets, a box with approximately 45 hollow point nine-millimeter Lugar rounds, a high capacity magazine for the pistol, a diver’s logbook with appellant’s name under “personal information” and photographs depicting appellant and family members. The prosecution submitted evidence of appellant’s 1985 conviction for violation of Health and Safety Code section 11350, subdivision (a), and a probation violation, as well as a certified copy of a record of the Department of Corrections, which was matched to appellant through his fingerprints.
Appellant testified in his own behalf. He admitted that he resided in the house where the guns and ammunition were found, and that the bedroom where they were found was his. He admitted that after his arrest, he told the officers that the shotgun belonged to him, that he did not know it was loaded, and that he knew nothing about the assault pistol. At trial, however, appellant testified that the assault pistol belonged to his roommate, and that appellant kept it in his room because his roommate’s wife did not like guns. Appellant admitted the bag in which the pistol was found belonged to him, but claimed his roommate had put his own padlock on it, and had sole access to it. Appellant denied all knowledge of the bag containing 100 rounds of high powered ammunition, but then claimed it belonged to his roommate.
Appellant admitted the dive book and family photographs were his, and he identified a photograph of himself holding the assault pistol, taken on April 16, 2004. He claimed to have borrowed the gun from his roommate for the photograph, which he intended to submit to Central Casting to obtain background work in films and television. Appellant admitted his 1985 conviction, and admitted he had carried a borrowed .22-caliber firearm to target practice and into a courthouse in 1991.
DISCUSSION
Appellant contends his sentence violated Penal Code section 654, subdivision (a), which 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. . . .” 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.)
Appellant contends his possession of a firearm and his possession of ammunition amounted to an indivisible course of conduct, committed pursuant to the same criminal objective -- to possess a loaded gun. He relies upon People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), where the defendant had been sentenced to six years for unlawful possession of a firearm, and a concurrent six-year term for unlawful possession of ammunition. The court of appeal reversed for resentencing under Penal Code section 654, holding that under the facts before it, possession of the firearm and the ammunition was an indivisible course of conduct, because all the recovered ammunition was inside the firearm. (Lopez, at p. 138.) The court observed: “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.” (Ibid.)
This case presents one of the “instances when multiple punishment is lawful for possession of a firearm and ammunition,” because most of the ammunition was not loaded into the firearm. (Lopez, supra, 119 Cal.App.4th at p. 138.) Appellant contends that his intent and objective are relevant to the issue. We agree. “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.) Of all the ammunition found in appellant’s bedroom, only two rounds were loaded into the shotgun and the assault pistol. Clearly, appellant’s intent was not merely to possess loaded guns. Moreover, Sergeant Butler, the prosecution’s gun expert, testified that although some of the recovered ammunition would fit into the two guns, much of it would not fit into either gun. The officers recovered a plastic bag with approximately one hundred .223-caliber high powered rifle bullets which would fit into neither of the recovered guns. They also recovered approximately twenty .380-caliber Federal hydroshock rounds that would fit into neither firearm.
By appellant’s own admission, he did not intend to possess loaded guns. He denied knowing the shotgun was loaded and claimed to have had no access to the loaded pistol.
The conclusion is inescapable that if, as appellant contends, he intended to load this ammunition into guns he possessed, that objective was independent of his intent to possess the particular guns he was convicted of possessing illegally. “[S]ection 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, ‘the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citations.]” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
We conclude that as appellant’s illegal possession of the ammunition that would not fit into the recovered guns was necessarily motivated by an independent criminal objective, it was subject to punishment separate from the punishment for possession of the guns, and there was no violation of Penal Code section 654.
2. Apprendi/Blakely Error
Appellant contends his sentence violates his federal constitutional right to due process and a jury trial, because in choosing to impose the upper term, the court relied on factors not found by a jury. (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely); Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) The trial court selected the upper term on the firearm possession charge for the following reasons: appellant was convicted in this case of three serious charges for which consecutive sentences could have been imposed; the ammunition which appellant possessed consisted of a large number and type of bullets; the firearms and ammunition were found with body armor; and the firearms were loaded, representing a serious danger to society. The court found no circumstances in mitigation.
The court also noted that appellant willfully and intentionally disobeyed the court’s order not to mention his age at the time of his prior conviction, and that he perjured himself when he testified that the firearm in the duffel bag did not belong to him, despite the fact that personal information linking him to the firearm was found in the bag with it. The court made clear, however, that if these two factors were disregarded, the remaining factors in aggravation were more than sufficient to support the upper term.
“[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, supra, 127 S.Ct. at p. 860.) In Cunningham, “the high court held that California’s determinate sentencing law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt.” (People v. Calhoun (2007) 40 Cal.4th 398, 406.)
The first factor cited by the trial court -- that consecutive sentences could have been imposed -- is not an issue of fact, but an issue of law. (See Pen. Code, § 669.) Although the imposition of consecutive sentences would have involved factfinding, the court did not base its sentencing choice on factual findings, but merely upon the legal conclusion that consecutive sentencing was an available option. (See Cal. Rules of Court, rule 4.406.) Thus, there were no facts for a jury to find, and it would have been inappropriate to submit legal conclusions to the jury. (Cf. People v. Schaefer (2004) 118 Cal.App.4th 893, 901-902 [reasoning of Apprendi does not require determination of legal question whether felony underlying felony-murder charge is inherently dangerous].)
We agree that the remaining factors involved factfinding -- there were several types of ammunition in large quantities, body armor was found with them and the firearms were loaded. These facts were not necessarily found by the jury, which was required only to find that appellant possessed one or both firearms, he was a convicted felon, one of the firearms was an assault weapon and appellant possessed ammunition of any quantity or type. (See Pen. Code, §§ 12021, subd. (a), 12280, subd. (b), 12316, subd. (b).) Thus, three of the four sentencing factors come within the rule of Blakely, supra,542 U.S. at page 303, and Apprendi, supra,530 U.S. at page 490. As the Sixth and Fourteenth Amendment required a jury finding on the cited facts, and such facts were not submitted to the jury, the court erred in relying upon them to impose the upper term. (See Cunningham, supra, 127 S.Ct. at p. 860; People v. Calhoun, supra, 40 Cal.4th at p. 406.)
Apprendi error is reviewed for harmless error under the standard applied to federal constitutional error in Chapman v. California (1967) 386 U.S. 18. (People v. Lozano (May 18, 2007, B189649) __ Cal.App.4th __ [2007 WL 1453756]; see People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) The United States Supreme Court has suggested that in applying the harmless error test to Apprendi error, courts should be guided by the analysis in Neder v. United States (1999) 527 U.S. 1. (Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2551-2552].) “Under Recuenco and Neder, an error is harmless if the court finds beyond a reasonable doubt that the result ‘would have been the same absent the error.’” (U.S. v. Zepeda-Martinez (9th Cir. 2006) 470 F.3d 909, 913, quoting Neder, at p. 19.) We may conclude the result would have been the same when the evidence supporting the sentencing factor is overwhelming and uncontradicted. (Neder, supra, at p. 17, quoting Chapman, supra, at p. 24.)
The evidence supporting the factors upon which the trial court relied was overwhelming. Three officers who were part of the search team testified regarding the amount and type of ammunition found and recovered from appellant’s bedroom. Two of the officers testified to finding the body armor with the guns and ammunition, and to finding the two loaded firearms. The officers’ testimony was uncontradicted. Appellant did not deny the quantity or type of ammunition found by the officers, the fact that they found body armor with it, or the fact that the firearms were loaded. Appellant merely claimed he did not know the shotgun was loaded and knew nothing about the other ammunition which, along with the assault pistol, he claimed belonged to someone else.
We need not consider the two factors referred to by the court but on which it expressly disclaimed reliance, viz., that appellant disobeyed a court order and perjured himself at trial. The court emphasized that “even setting aside those two factors, there are more than sufficient aggravating factors to support the upper term.” We conclude beyond a reasonable doubt that it was harmless error to select the upper term in this case by use of facts not found by the jury.
3. Pitchess Motion
Appellant requests an in camera review of the trial court’s determination that there were no discoverable items in the records produced pertaining to Detective Mallette and Lieutenant Lara pursuant to appellant’s Pitchess motion. We review the trial court’s determination for an abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.)
See footnote 1, ante.
In his pretrial Pitchess motion, appellant requested all evidence of misconduct by Mallette and others, based upon facts set forth in his attorney’s declaration. Counsel described the facts of the search in which Mallette and Lara were involved, and stated that appellant’s defense would include allegations that the officers planted the assault pistol in his duffel bag, that Mallette falsely stated he saw Lara open the bag and find the pistol, that an unknown officer struck him in the face twice, and that Mallette falsely stated that the abuse did not occur.
The trial court granted the motion as to Mallette and Lara, and denied it as to the other officers. After an in camera review of records produced by the San Gabriel Police Department, the court found no discoverable material. Appellant asks that we review the same material, to determine whether the trial court abused its discretion. The records produced in the trial court were not retained, but in the in camera hearing, the trial judge examined and described each one, and stated reasons for his determination. We have the sealed transcript of that hearing before us, and find it sufficient to review the trial court’s discretion, without having to order the production of the same documents in this court. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.)
We have reviewed the sealed record of the in camera proceedings and conclude the trial court properly exercised its discretion in determining that the documents produced complied with the court’s order granting the Pitchess motion, and that none of the documents or information should be disclosed to the defense.
We note that if any of the items had been erroneously excluded, we would find no prejudicial error requiring reversal, as appellant admitted at trial that the officers found the assault pistol in the bag under his bed, where he kept it.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.