Opinion
E051058 Super.Ct.No. FVI900076
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEWIS, Defendant and Appellant.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia Garcia, and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed in part, reversed in part with directions.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia Garcia, and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Michael Lewis (defendant) appeals his conviction for possession of a firearm by a convicted felon, possession of ammunition by a convicted felon and receiving stolen property. He raises numerous contentions, some of which, as we discuss below, are well taken.
PROCEDURAL HISTORY
Defendant was charged with two counts being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a); counts 1 & 2); being a convicted felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1); count 3); and two counts of receiving stolen property (Pen. Code, § 496, subd. (a); counts 4 & 5). The information alleged two prior serious felony convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior prison terms (Pen. Code, § 667.5, subd. (b)). (All further statutory citations refer to the Penal Code unless another code is specified.)
A jury convicted defendant on counts 1, 3 and 4, and found him not guilty on counts 2 and 5. In a separate proceeding, the court found the prior conviction allegations true. It found two of the three prior prison term allegations true and found one not true. On motion of the prosecutor, one of the prior prison term allegations found true was dismissed as falling outside the five-year "washout" period.
The court sentenced defendant to three consecutive terms of 25 years to life, with a determinate term of two years for two prior prison term enhancements.
Defendant filed a timely notice of appeal.
FACTS
Defendant stipulated that he was a convicted felon, with two prior convictions for robbery (Pen. Code, § 211), a prior conviction for possession of controlled substances for sale (Health & Saf. Code, § 11351.5), and a prior conviction for transportation or sale of controlled substances (Health & Saf. Code, § 11352, subd. (a)).
On January 7, 2009, defendant's six-year-old son brought a loaded handgun to school. The gun, a .45-caliber Para 1911 semiautomatic pistol, contained a magazine loaded with eight rounds of .45-caliber ammunition. The gun was capable of being fired. The child had the gun concealed under his pants. The school health attendant took the gun from the child, and the school principal secured the gun in his office and called the sheriff's department.
The child testified that he had taken the gun from the trunk of his father's car. He did not see his father put the gun into the trunk. He discovered it when his mother gave him the car keys and asked him to open the trunk for Curtis Johnson. Johnson was not present when the child found the gun. The child took the gun because he did not want his father to get hurt.
In the complaint, Johnson was also charged in connection with these events. He was not tried with defendant.
After learning that the gun was found at school, a sheriff's detective placed defendant's home under surveillance. He saw defendant leave the house hurriedly and get into a car driven by another man, later identified as Curtis Johnson, also known as "C- Loc." The detective and his partner stopped the vehicle and asked defendant where he was going. Defendant replied that he was going to the police station where his son was. He said that his son had taken a gun to school but that it was not his son's fault. He said his son had taken the gun from the trunk of his car. He said that he had been given the gun on New Year's Day by an acquaintance, Rich Mack, who asked him to hold the gun for him. Mack was killed later that day in Pomona.
Johnson's vehicle was impounded and searched. An operable Smith and Wesson .38-caliber revolver with five bullets in the chamber was found under the hood of the vehicle, wedged between the battery and the frame.
Both the .45-caliber semiautomatic pistol confiscated from defendant's son and the .38-caliber revolver found in Johnson's car had been stolen from a residence during a burglary in Victorville in November 2008.
Later that day, defendant was read his rights and interrogated. He stated that on New Year's Eve, Rich Mack had come to his home and asked him to hold some "stuff" for him. He agreed, as long as the items remained outside his home. Mack handed him a gun, which defendant placed in the trunk of his car. Mack also handed him a clip, separate from the gun, which defendant took into the house with him. The clip had bullets in it, but defendant did not know what caliber they were. Defendant said he did not know that the gun was loaded. He conceded that it could have been and that Mack had given him a second clip. At the time, though, he assumed that the clip was the clip for the gun Mack had given him. Defendant did not recall where he put the clip; he thought he might have put it into a shoebox and that he had thrown the shoebox away. Mack was to return the next day to retrieve the items, but he was killed on New Year's Day. Defendant admitted that he knew the gun was probably stolen. He denied any knowledge of the gun found in Curtis Johnson's car.
"Rich Mack" was the person's street name. Defendant thought his first name was Dennis, but he did not know his last name.
LEGAL ANALYSIS
1.
THE OMISSION OF A UNANIMITY INSTRUCTION REQUIRES REVERSAL
OF COUNT 3
Defendant contends that the court should have given a unanimity instruction as to count 3, possession of ammunition by a convicted felon, because the evidence permitted jurors to base a conviction on two discrete criminal events—possession of the loaded .45-caliber pistol and possession of the separate clip or magazine. He contends that the omission was prejudicial under either Chapman v. California (1967) 386 U.S. 18 (Chapman)or People v. Watson (1956) 46 Cal.2d 818 (Watson). We agree.
In a criminal case, a jury verdict must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In addition, the jury must unanimously agree that the defendant is guilty of a specific crime. (Ibid.)Therefore, "when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.) In the absence of an election, a unanimity instruction is required in order "'to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.]" (Ibid.)Where the instruction is warranted, the trial court must give the instruction sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
In this case there were unquestionably two alternate bases upon which the jury could rationally have found defendant guilty of possession of ammunition—the gun his son removed from the trunk of defendant's car, which contained a loaded clip, and the second clip which defendant said Mack had given him along with the loaded gun. Although in her argument the prosecutor referred only to the clip found inside the gun which was confiscated from defendant's son, she did not state explicitly that she was relying solely on the gun and its clip to prove that defendant possessed ammunition. To be effective and to eliminate the need for a unanimity instruction, the prosecutor must clearly communicate to the jury that he or she intends to rely solely on a particular act as proof of the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534-1536.) Here, the prosecutor did not do so, and the omission of a unanimity instruction was error.
Defendant argues that the prosecutor referred both to the clip which was inside the gun and to the second clip as possible bases for convicting him of possession of ammunition. We do not understand the prosecutor's comments as does defendant. However, we need not find that the prosecutor's comments could have been understood by jurors to refer to both clips, as defendant contends, in order to conclude that the prosecutor did not make an effective election between the two bases for conviction of possession of ammunition.
As this court recently noted, the California Supreme Court has never explicitly decided whether omission of a necessary unanimity instruction is reviewed for error under Chapman, supra, 386 U.S. 18 or under Watson, supra, 46 Cal.2d 818. (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1589 [Fourth Dist., Div. Two].) There is a split of authority among the intermediate appellate courts. (Ibid.)
The California Supreme Court has held that omission of a unanimity instruction is reversible error if "some of the jurors may have believed the defendant guilty of one of the acts . . . while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific [act]. [Citation.]" (People v. Russo, supra, 25 Cal.4th at p. 1132.) In general, if there is a rational basis on which jurors could distinguish between alternative factual bases, omission of a unanimity instruction is reversible error. (People v. Arevalo-Iraheta, supra, 193 Cal.App.4th at p. 1589; People v. Deletto (1983) 147 Cal.App.3d 458, 472-473.) Assuming that the Watson standard of prejudice applies, reversal is required if there is a reasonable probability that some jurors based their guilty verdicts on one criminal act while other jurors based their guilty verdicts on another criminal act. (People v. Arevalo-Iraheta, supra, at p. 1590.)
In this case, we find the error prejudicial under that standard. The only evidence that defendant possessed a second loaded clip was his statements to that effect during the police interrogation. However, the only evidence which had any logical bearing on whether defendant knew that the gun contained a loaded clip also consisted of defendant's statements during the interrogation. The evidence was uncontradicted that the gun found in the trunk of defendant's car was loaded. A recording of the interrogation was played during the trial. Jurors heard the tone and manner of defendant's speech when he denied knowing the gun was loaded and when he claimed he had been given a separate clip. Consequently, jurors were in a position to assess the credibility of defendant's denial that he knew the gun was loaded and of his admission that he had possession of a loaded clip, much as they would have been had he testified at trial. Jurors clearly gave credence to defendant's denial that he had knowledge of or control over the gun which was found under the hood of Johnson's car; they acquitted him on both counts pertaining to that gun. And, there is nothing either contradictory or inherently implausible in defendant's statements that he thought the clip was the one from the gun Mack gave him and that he took the clip into the house. Consequently, it is reasonably probable that some jurors believed that defendant did not know the gun Mack gave him was loaded and that he did receive a separate clip from Mack. It is equally probable that some jurors did not believe his denials, and believed instead that he knew the gun was loaded. For those jurors, it would be irrelevant whether he also possessed a second loaded clip.
The jury was instructed that it had to find that defendant knew that he possessed ammunition.
The Attorney General contends that defendant's argument necessarily fails because in order for him to prevail it must be possible to conclude that he may not have known that the gun was loaded while at the same time concluding that the second clip did not exist. She contends that in order to believe both things, a juror would have to believe both that defendant was lying when he said there was a second clip and that he was lying when he told police he did not know the gun was loaded. She contends that these two conclusions are irrational because in combination, they mean that defendant was both attempting to exculpate himself (with respect to the gun) and to inculpate himself (with respect to the second clip). However, as defendant points out, while defendant admitted that he knew that, as an ex-convict, he was not allowed to possess a firearm, there is no evidence that he knew that he was not allowed to possess ammunition. Defendant never denied that he put the gun into his car; he only denied knowing that it was loaded. He also stated quite forthrightly during the interrogation that he knew he was going to go to prison for possessing the gun. Consequently, there is no rational basis for concluding that defendant was attempting to exculpate himself by denying that he knew the gun was loaded.
For these reasons, defendant's conviction on count 3 must be reversed.
2.
THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE CONCLUSION THAT
DEFENDANT KNEW THE GUN WAS STOLEN
In count 4, defendant was convicted of receiving or possessing stolen property. An element of that offense is knowledge that the property was stolen. Defendant contends that the evidence did not show that he knew the gun was stolen. Rather, it showed only that he suspected that it was. Consequently, he contends, his conviction on count 4 must be reversed. The Attorney General contends that the evidence is sufficient to support the inference that defendant knew the gun was stolen.
Section 496, subdivision (a) provides, in pertinent part, that "[e]very person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished . . . ." (Italics added.)
"In reviewing a criminal conviction challenged as lacking evidentiary support, '"the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."' [Citation.] The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation] . . . . An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) Reversal is not warranted unless it appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Possession of recently stolen property "is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt." (People v. McFarland (1962) 58 Cal.2d 748, 754.) "'[Possession] of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen.'" (People v. Lyons (1958) 50 Cal.2d 245, 258, overruled on another point in People v. Green (1980) 27 Cal.3d 1, 32.) Only slight corroboration is required. (People v. Shope (1982) 128 Cal.App.3d 816, 821)
Here, there is some slight evidence which is sufficient to support the inference that defendant knew the gun was stolen. In his recorded interrogation, he said that he did not think that the gun was "legit." He knew that Mack was "in the criminal element," that he probably got the gun "off the streets" and that the gun was probably stolen. He denied knowing that it was stolen, however. As we discussed in Section 1, ante, because jurors heard defendant's voice and manner of speaking during the interrogation, they were in a position to evaluate the credibility of his statements. Jurors could have inferred from his tone of voice that he was lying when he denied knowing that the gun was stolen. An appellate court cannot assess the credibility of a witness; only the trier of fact is in a position to do so. If the jurors inferred that defendant was lying, we cannot second-guess them. Accordingly, we conclude that substantial evidence supports the conviction on count 4.
"The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration. A witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favorable impression. Did plaintiff and her mother testify with the conviction and assurance compatible with truthfulness; or did either of them give testimony haltingly as though laboring under the handicap of apprehension and uncertainty or did either of them give it glibly as though a tale learned by rote for the purposes of the courtroom? These are questions which can only be answered by the trier of fact. The court having seen and heard the parties may well have concluded that there was collusion; that the plaintiff's testimony was a fabric of fancy and exaggeration woven to lift her from bonds now distasteful; and that the testimony of plaintiff's mother was a recital of rehearsed evidence." (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243, disapproved on other grounds in Liodas v. Sahadi (1977) 19 Cal.3d 278, 287.)
3.
PRIOR STRIKE ALLEGATIONS NEED NOT BE PLEADED AS TO EACH
COUNT, AND OMISSION OF A PRIOR STRIKE ALLEGATION AS TO A
COUNT TO WHICH THE THREE STRIKES LAW APPLIES DOES NOT
RENDER A SENTENCE UNDER THE THREE STRIKES LAW
UNAUTHORIZED
The first amended information alleged two prior strikes. The first strike was alleged "as to count(s) 1, 2, 3, 5," and the second strike was alleged "as to count(s) 1, 2, 3, 4, 5." Defendant contends that he was without notice that he faced a third strike sentence of 25 years to life on count 4 and that the sentence imposed is therefore unauthorized.
Both versions of the three strikes law make it clear that three strikes sentencing applies to each new felony conviction. Section 667, subdivision (c) and section 1170.12, subdivision (a) provide, "Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d) [subd. (b) in § 1170.12], the court shall adhere to each of the following: . . ." Section 667, subdivision (f)(1) and section 1170.12, subdivision (d)(1) both provide that, notwithstanding any other law, the statutes' provisions shall be applied in every case in which a defendant has a prior felony conviction as defined in that section. And, while both statutes mandate that each qualifying prior conviction shall be pleaded and proven, neither section 667 nor section 1170.12 contains any provision which would require count-by-count pleading. Finally, both statutes provide "this section shall be applied in every case in which a defendant has" a qualifying prior conviction. (§ 667, subd. (f)(1); § 1170.12, subd. (d)(1).) Neither provides the prosecutor any discretion to apply the statute to some counts but not to others.
See, e.g., section 667, subdivisions (e)(1), (e)(2), (f)(1) and (g) and section 1170.12, subdivisions (a), (d)(1) and (e).
The sole exception to mandatory application of the three strikes law lies in section 667, subdivision (f)(2) and section 1170.12, subdivision (d)(2), which provide that the prosecuting attorney may seek court authorization to strike a strike prior in the interest of justice or if there is insufficient evidence to prove the prior conviction. Neither statute gives the prosecutor any autonomy to decide not to allege any given qualifying prior conviction or to allege any qualifying prior conviction with respect to some new charged felonies but not to others.
"'In construing a statute, our first task is to look to the language of the statute itself. [Citation.] When the language is clear and there is no uncertainty as to the legislative intent, we look no further and simply enforce the statute according to its terms. [Citations.] [¶] Additionally, however, we must consider the [statutory language under scrutiny] in the context of the entire statute . . . and the statutory scheme of which it is a part. "We are required to give effect to statutes 'according to the usual, ordinary import of the language employed in framing them.' [Citations.]" [Citations.]' [Citation.]" (People v. Mancebo (2002) 27 Cal.4th 735, 743.) Here, the plain wording of the statutes makes it clear that three strikes sentencing provisions apply to each new felony conviction and require only that each qualifying prior felony conviction be pleaded and proven. There is no ambiguity in the language which could lead to the conclusion that three strikes sentencing may apply to some new felony counts but not to others. Moreover, section 667, subdivision (b) states that in enacting that statute, the Legislature intended "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." Any interpretation of that section which would allow its provisions to be selectively applied to some new felonies but not to others would be inconsistent with that intent.
Because the statutes unambiguously mandate the application of three strikes sentencing in any case in which a defendant who has one or more qualifying strike priors is convicted of any new felony and does not permit the prosecutor to apply the law selectively, defendant was on notice that he faced three strikes sentencing on all counts.
Defendant has cited no case authority which addresses his contention. People v. Mancebo, supra, 27 Cal.4th 735, on which defendant relies, is inapposite. In that case, the Supreme Court construed the pleading and proof requirements of the one strike law (§ 667.61) in order to decide "the narrow question . . . whether the circumstance of gun use was available to support two section 12022.5(a) enhancements when gun use had already been properly pled and proved as a basis for invoking One Strike sentencing." (Mancebo, at p. 738.) Both allegations were pleaded in the information. (Id. at p. 740.) There was no issue raised in that case as to whether one-strike allegations must be pleaded on a count-by-count basis. Thus, the issue decided in that case was not even remotely similar to the issue in our case. The court's statement that a defendant "has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes" (id. at p. 747), which defendant quotes in his opening brief, is obviously applicable here, but Mancebo does not address its application in this context or in an analogous context.
Nor is People v. Arias (2010) 182 Cal.App.4th 1009, on which defendant also relies, apposite. In that case, the defendant was convicted of two counts of attempted murder. The information did not allege that either offense was committed willfully, deliberately, and with premeditation. The court held that section 664, subdivision (a) unambiguously requires that in order for a life sentence for attempted murder to apply, the information must allege that the offense was committed willfully, deliberately, and with premeditation. (Arias, at pp. 1016-1021.) Thus, the issue before the court was in no way analogous to the issue in this case.
4.
THE SENTENCE MUST BE MODIFIED TO DELETE THE SENTENCE
IMPOSED FOR ONE PRIOR PRISON TERM ENHANCEMENT
As noted above, the information alleged three prior prison terms within the meaning of section 667.5, subdivision (b). The court found one allegation (based on Santa Clara County case No. 175133) not true. The district attorney moved to dismiss the first prior prison term allegation (based on San Bernardino County case No. SCR51536) because the not true finding on the Santa Clara County prison term allegation resulted in a gap of more than five years between the first and third alleged prior prison terms. The court agreed, and ordered the first prior prison term allegation dismissed.Nevertheless, the court imposed two one-year prison terms for enhancements pursuant to section 667.5, subdivision (b). Defendant contends that the sentence must be corrected. The Attorney General concurs, as do we.
Section 667.5, subdivision (b) provides for a one-year enhancement for each prior prison term served for any felony "provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction."
Section 667.5, subdivision (b) provides for a one-year enhancement for each prior prison term served for any felony "provided that no additional term shall be imposed for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." The five-year rule is commonly referred to as the "washout rule." (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.) The washout period begins when the defendant is first released from custody or paroled. (See § 667.5, subd. (d) ["For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole, whichever first occurs. . . ."]; People v. Nobleton (1995) 38 Cal.App.4th 76, 84-85.) This means that the prosecution must show that the defendant either served time in prison or committed a new offense resulting in a felony conviction within five years of the defendant's discharge from custody or release on parole. (People v. Fielder, supra, at p. 1229.)
The probation report indicates that in San Bernardino County case No. SCR51536, defendant was sentenced on May 22, 1990, to two years with credit for 102 days in custody and conduct credits. The chronological record provided by the Department of Corrections and Rehabilitation states that defendant was released on parole on November 2, 1991. According to defendant's probation report, the felony for which defendant served the prior prison term in San Bernardino County case No. FSB038335 (i.e., the third prior prison term alleged in the information) was committed on September 18, 2002. This is more than five years after defendant was released on parole in San Bernardino County case No. SCR51536. Accordingly, the first prior prison term allegation was properly dismissed, and defendant's sentence must be corrected to reflect a single one-year enhancement under section 667.5, subdivision (b).
5.
THERE IS NO BASIS FOR A FINDING OF INEFFECTIVE ASSISTANCE OF
COUNSEL
Defendant contends that his attorney provided constitutionally inadequate assistance when she failed to object to the life sentence imposed on count 4 and to the sentence imposed on a prior prison term allegation which was stricken by the court. However, we have found no error with respect to the sentence imposed on count 4. (See Section 3, ante.) Consequently, as to count 4 there was no ineffective assistance of trial counsel. And, we have agreed that the sentence must be corrected with respect to the stricken prior prison term enhancement. (See Section 4, ante.) While reasonably diligent trial counsel would have objected, defendant has suffered no prejudice because we have corrected the error. Consequently, the claim of ineffective assistance of counsel fails. (See Strickland v. Washington (1984) 466 U.S. 668, 697 [finding of lack of prejudice warrants rejection of ineffective assistance of counsel claim].)
6.
SECTION 654 DOES NOT PRECLUDE IMPOSITION OF MULTIPLE
SENTENCES ON COUNTS 1 AND 4
In counts 1 and 3, defendant was convicted of being an ex-felon in possession of a firearm and of ammunition, respectively. In count 4, he was convicted of possessing or receiving stolen property, i.e., the same gun which was the subject of count 1. Defendant was sentenced to consecutive terms of 25 years to life on all three counts. He contends that, pursuant to section 654, he can be punished only once for those offenses because all three crimes were committed in a single, indivisible transaction. He also contends that because there was a single physical act, i.e., possession of the gun and ammunition, with no evidence of any objective beyond mere possession, that act cannot be punished under separate statutes. The Attorney General contends that the crimes had different objectives and different criminal intents and were therefore independent of each other.
Section 654, subdivision (a) 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
In In re Hayes (1969) 70 Cal.2d 604, the defendant contended that section 654 precluded imposition of sentence on both of his counts of conviction, which were driving with a suspended license and driving under the influence. Both acts were committed in a single incident. He contended that he could not be punished for a single act of driving which violated two statutes. (Hayes, at p. 605.) The Supreme Court concluded that because section 654 addresses punishment for "criminal acts and omissions," the act in question was not the "neutral" act of driving, but rather the discrete criminal acts of driving with a suspended license and of driving while intoxicated. The court explained: "[S]ection 654 of the Penal Code proscribes multiple punishment for a single 'act or omission which is made punishable' by different statutes, i.e., a single criminal act or omission. Since the mere act of driving is made punishable by no statute, it is not the type of act or omission referred to in section 654. The acts 'made punishable' which this petitioner committed were (1) driving with a suspended license and (2) driving while intoxicated, two separate and distinct criminal acts; that they were committed simultaneously and that they share in common the neutral, noncriminal act of driving does not render petitioner's punishment for both crimes in conflict with Penal Code section 654." (Hayes, at p. 611, italics omitted.) The Supreme Court further warned that courts "must not confuse simultaneity with identity: in both of the above situations— driving as in this case and possession of contraband in the cited cases—the defendant committed two simultaneous criminal acts, which coincidentally had in common an identical noncriminal act." (Id. at p. 607, italics omitted.)
Similarly, defendant's acts of possessing a firearm and ammunition are not criminal acts in and of themselves. Rather, defendant was precluded from possessing either item because of his status as a convicted felon. Possession of the firearm was also illegal because defendant knew it to be stolen. Consequently, by his single act of possessing the firearm, a neutral act, defendant committed "two simultaneous criminal acts, which coincidentally had in common an identical noncriminal act." (In re Hayes, supra, 70 Cal.2d at p. 607, italics omitted.) Accordingly, section 654 does not preclude imposition of sentence both for illegal possession of a firearm and for receiving stolen property.
We note that this issue appears to be under review by the California Supreme Court in People v. Atencio (2010) 190 Cal.App.4th 695, review granted March 16, 2011, S189461, and in People v. Jones, review granted March 24, 2010, S179552. In People v. Atencio, the defendant was convicted of grand theft of a firearm and being in possession of stolen property, i.e., the same firearm. In People v. Jones, review was granted to address the question whether section 654 precludes imposition of concurrent sentences for being a felon in possession of a firearm and for carrying a loaded, concealed firearm.
Imposition of sentence for possession of stolen property and for illegal possession of the ammunition also did not violate section 654, since the ammunition was not alleged to be stolen. Defendant does not address whether section 654 precludes imposition of sentence for both possession of the firearm and possession of the ammunition. Because we have reversed the conviction on count 3, possession of ammunition by a felon, we need not address that question at this juncture.
7.
THE CAUSE MUST BE REMANDED FOR RESENTENCING TO PERMIT THE
TRIAL COURT TO EXERCISE ITS DISCRETION WITH REGARD TO
CONSECUTIVE OR CONCURRENT SENTENCES
Defendant contends, and the Attorney General concedes, that the trial court failed to recognize that it had discretion, under the three strikes law, to impose either consecutive or concurrent sentences.
Section 667, subdivision (c)(6) and section 1170.12, subdivision (a)(6) provide, "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count . . . ." In People v. Deloza (1998) 18 Cal.4th 585, the California Supreme Court held that the "same occasion" and "same set of operative facts" analysis under the three strikes law is not the same as the indivisible transaction analysis under section 654. (Deloza, at pp. 594-595.) Consequently, even if section 654 does not preclude imposition of multiple sentences, the three strikes law does not necessarily mandate imposition of consecutive sentences. (Deloza, at pp. 594-595.) "Same occasion" and "same set of operative facts" are given their ordinary English meanings. (People v. Lawrence (2000) 24 Cal.4th 219, 226, 230-234.) "Same occasion" refers "at least to a close temporal and spatial proximity between the acts underlying the current convictions." (Deloza, supra, at p. 595.) "Operative facts" refers "to the facts of a case which prove the underlying act upon which a defendant had been found guilty." (Lawrence, supra, at p. 231.)
Here, all three offenses were committed simultaneously, and therefore on a single occasion, and arose out of the same set of operative facts, i.e., the possession of the gun and ammunition. Nevertheless, the trial court, in response to defendant's contention that all three offenses arose out of the same set of operative facts, stated, "It's noted for the record but I think that I have to . . . sentence him consecutively according to the law." Because the court did indeed have the discretion to impose concurrent sentences if it chose, we will remand the cause to allow the court to exercise its discretion. (People v. Jeffries (2000) 83 Cal.App.4th 15, 27.)
8.
THE COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO STRIKE
ONE OR MORE PRIOR SERIOUS FELONY CONVICTIONS
Defendant contends that the trial court abused its discretion by failing to strike some or all of his prior strike convictions in the interest of justice.
A trial court has the discretion to strike one or more of a defendant's prior strike convictions in the interest of justice, pursuant to section 1385, subdivision (a). (People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 530-531.) In determining whether to exercise its discretion or in reviewing an exercise of discretion under section 1385, a court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Section 1385, subdivision (a) provides, in pertinent part, "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."
An abuse of discretion occurs only when a trial court's decision "is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) Here, the trial court stated that although it considered defendant's current offenses relatively innocuous, the problem lay in defendant's extensive criminal record. The court stated, "The problem is your record is so bad that I can't in my mind strike the strike. I mean, your record is horrendous, frankly, and it's one of the worst . . . records that I have ever seen and I've been in this business a long time."
While we might question whether defendant's record is "horrendous," or among the worst an experienced judge might have seen, it is nevertheless extensive. Defendant has juvenile adjudications for grand theft from the person in 1980, robbery and robbery armed with a firearm in 1981, and second degree burglary in 1985. He was paroled from the California Youth Authority in June 1988 and discharged in December 1988. In August 1988, as an adult, he was convicted of showing false identification to a peace office (a misdemeanor). In 1989, he was convicted of two counts of robbery and sentenced to four years in prison. He was returned to prison on a parole violation. He was also convicted of robbery in 1990 and sentenced to two years. In 2002, he was convicted of transportation or sale of a controlled substance and was sentenced to three years. He was returned to prison on a parole violation in that case as well, in 2005.The current offenses took place in 2008. Given the length of defendant's criminal history and the proximity in time between defendant's last parole violation and his current offenses, we cannot say that, on the basis of defendant's record, refusing to strike one or both of his prior strikes is "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at p. 377.)
The probation officer's report states that in 1994, defendant was convicted in Santa Clara County of possession for sale of a controlled substance and sentenced to nine years in prison. However, that case was the basis of the prior prison term allegation the trial court found not true.
Moreover, an assessment of the particulars of defendant's "background, character, and prospects" (People v. Williams, supra, 17 Cal.4th at p. 161) also militates against a determination that defendant falls outside the spirit of the three strikes law (ibid.). We disagree with the trial court's assessment of defendant's current offenses. The trial court stated that the decision to impose a third-strike sentence was difficult because in the current case, "it's not one that you affirmatively did something bad . . . [t]his is more of a neglect type of situation where but for your child getting ahold of the gun, you probably wouldn't be where you are." On the contrary, defendant took possession of a gun, knowing that he was precluded from doing so because of his status as a convicted felon. He did so, in his own words, to accommodate a "fuckin' low-life" whom he knew to be "in the criminal element of the world." And, even though he denied knowing the gun was stolen, he admitted that he suspected as much, knowing the character and habits of the person who asked him to hold it for him. Moreover, the gun in defendant's possession had been stolen in a residential burglary about two months earlier. The gun which was found under the hood of Curtis "C-Loc" Johnson's car, in which defendant was riding when he was arrested, was stolen in the same residential burglary. Based on defendant's continued association with criminals, along with his extensive criminal history, it is clearly neither arbitrary nor irrational to refuse to strike his strike priors. Accordingly, there was no abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
DISPOSITION
Defendant's conviction on count 3 is reversed. The district attorney shall determine, within 30 days after this opinion has become final, whether to retry defendant on that count.
If the district attorney elects not to retry defendant on count 3, the court shall dismiss count 3 and hold a new sentencing hearing within 30 days following the district attorney's election, to determine whether to impose consecutive or concurrent sentences on counts 1 and 4. The sentencing minutes shall reflect the dismissal of count 3 and the dismissal of the prior prison term enhancement (§ 667.5, subd. (b)) based on San Bernardino County case No. SCR51536. The sentencing minutes shall also reflect that the court previously found the prior prison term enhancement based upon Santa Clara County case No. 175133 not true. The court shall issue a new abstract of judgment reflecting the sentence imposed at that hearing. The new abstract of judgment shall reflect imposition of a single one-year enhancement pursuant to section 667.5, subdivision (b).
If the district attorney elects to retry defendant on count 3, the court shall resentence defendant following the trial consistent with this opinion.
The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur: Hollenhorst
Acting P.J.
Codrington
J.