Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F05551
BUTZ, J.A jury convicted defendant David Meek of possession by a felon of a firearm (counts one through five), possession by a felon of ammunition (count six), and misdemeanor possession of marijuana (count seven). (Pen. Code, §§ 12021, subd. (a)(1), 12316, subd. (b)(1); Health & Saf. Code, § 11357, subd. (b).) The trial court found true an alleged strike. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to state prison for 12 years eight months and he timely appealed. We shall affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The facts adduced at trial are not contested on appeal. Defendant is a convicted felon. On May 23, 2007, peace officers searched his room. They found a shotgun and a rifle on a gun rack, and three handguns, each in a different caliber, in a safe. They also found live ammunition in several calibers, and marijuana.
At sentencing, defense counsel did not lodge any objections to the facts stated in the probation report. We therefore presume that report is accurate. (People v. Evans (1983) 141 Cal.App.3d 1019, 1021.) Defendant has had several violations involving weapons. As a juvenile he was found in possession of a loaded, concealed handgun; the charges were dismissed with a Harvey waiver as part of a resolution of another case. (See People v. Harvey (1979) 25 Cal.3d 754.) While on juvenile probation, defendant was found in possession of a sawed-off shotgun, but that charge was dismissed. As an adult, he committed an attempted robbery by simulating a gun in his waistband, a loaded gun was later found, and an arming enhancement (§ 12022, subd. (a)) was found true. During a probation search, officers found defendant to be in possession of a handgun (§ 12021, subd. (a)), and he was sent to prison. On another occasion when he was arrested for vehicle theft, he was found in possession of “a black pellet gun resembling a Sig handgun.”
The probation officer recommended a six-year prison sentence, the upper term of three years on one count of possession by a felon of a firearm, doubled for the strike, because “defendant was convicted of other crimes for which consecutive sentencing could have been imposed but for which concurrent [sentences] are being recommended ([Cal. Rules of Court,] [r]ule 4.421(a)(7)).” The recommendation was for the sentences on all other counts to be run concurrently.
The trial court rejected this recommendation, stating that the recommendation was too lenient. The trial court did sentence defendant to the upper term of three years on count one, doubled to six years because of the strike. However, the court imposed consecutive one-third midterm sentences of eight months, each doubled to sixteen months, on each of the other five felony counts, for a total sentence of 12 years eight months in state prison. The misdemeanor marijuana charge (count seven) resulted in a $100 restitution fine.
DISCUSSION
I.
Defendant contends separate sentences for each felon-in-possession count are barred by section 654. We disagree with this contention.
In relevant part, section 654 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.” (§ 654, subd. (a).)
“[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor.” (People v. Perez (1979) 23 Cal.3d 545, 551 (Perez).) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
As the court in Perez explained, the purpose of section 654’s protection against multiple punishments is to ensure that the defendant’s punishment will be commensurate with his culpability. (Perez, supra, 23 Cal.3d at p. 551.) Thus, for example, the court in People v. Lopez (2004) 119 Cal.App.4th 132, ruled that separate punishments for possession of a firearm and possession of ammunition inside the gun violated section 654. The court reasoned that since all of the ammunition was loaded into one firearm, both offenses comprised an indivisible course of conduct. (Id. at p. 138.) On the other hand, section 654 does not preclude multiple punishment of a defendant who commits a single act of violence with the intent to harm more than one victim. (See Neal v. State of California (1960) 55 Cal.2d 11, 20-21.)
Section 12021, subdivision (a)(1) states, “Any person who has been convicted of a felony... and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” (Italics added.) In People v. Kirk (1989) 211 Cal.App.3d 58, this court held that section 654 barred multiple punishment for defendant’s simultaneous possession of two sawed-off shotguns in violation of a former version of section 12020, subdivision (a): “‘Any person... who... possesses... any instrument or weapon... known as a... sawed-off shotgun... is guilty of a felony.’” (Id. at p. 60.) We found that the word “any” was ambiguous and failed to warn the offender that separate convictions would result for each weapon simultaneously possessed. (Id. at p. 65.)
In response, the Legislature abrogated Kirk. (See People v. Rowland (1999) 75 Cal.App.4th 61, 64-67.) Specifically, the Legislature amended section 12001 to add subdivision (k), which states in part: “For purposes of Sections 12021,... notwithstanding the fact that the term ‘any firearm’ may be used in those sections, each firearm... shall constitute a distinct and separate offense under those sections.” (5 Stats. 1994 (1993-1994 1st Ex. Sess.) ch. 32, § 5, pp. 8657-8658.)
Therefore, as defendant concedes, he was properly convicted of five separate counts, based on his possession of five firearms. But defendant contends he may not be punished for each separate firearm he unlawfully possessed. We disagree.
The trial court’s imposition of a separate sentence for each of the weapons defendant unlawfully possessed is fully consistent with the Legislature’s expressed intent that a felon’s possession of each firearm be deemed a distinct offense.
The purpose of section 12021 is to protect public welfare by precluding the possession of guns by those who are more likely to use them for improper purposes (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037, citing People v. Bell (1989) 49 Cal.3d 502, 544), and to provide a greater punishment to an armed felon than to an unarmed felon (People v. Winchell (1967) 248 Cal.App.2d 580, 597).
It would frustrate the evident purpose of the amendment abrogating Kirk to allow multiple convictions, but not multiple punishments, for each firearm illegally possessed by a felon. It would make the amendment toothless. To conclude that a felon could be convicted of multiple “distinct and separate” firearm offenses, but could not be punished commensurate with her or his greater culpability, as compared to a felon who possessed only one firearm, would frustrate the purpose of section 654. (See People v. Jones (2002) 103 Cal.App.4th 1139, 1148.)
There is support for the conclusion that defendant’s possession of each firearm had a separate purpose. Defendant possessed a rifle, a shotgun, and three handguns, each in a different caliber. Each weapon could be used for a different purpose. The fact that the firearms were of different types supports the conclusion that defendant harbored separate objectives for possessing each one.
Defendant’s claim that there were no multiple objectives as a matter of law because he was capable of firing only one weapon at a time is unconvincing. A felon who possesses multiple weapons that can be used to accomplish different objectives is inherently more dangerous than one who possesses only one. Defendant’s culpability increased with each additional weapon in his possession. (Perez, supra, 23 Cal.3d at pp. 550-551; see People v. Trotter (1992) 7 Cal.App.4th 363, 367-368.)
We conclude that defendant was properly punished for each of the five firearm possession counts.
II.
Defendant contends the trial court violated the Sixth Amendment by imposing consecutive sentences based on facts not found true by the jury. He acknowledges that this contention has been rejected by the California Supreme Court (see People v. Black (2007) 41 Cal.4th 799, 822), but he states he “looks to [the then-pending] Oregon v. Ice to resolve” the issue.
The United States Supreme Court has now issued its decision in that case and has rejected the application of the Sixth Amendment to consecutive sentencing determinations. (Oregon v. Ice (2009) 555 U.S. ___ [172 L.Ed.2d 517]; see People v. Quintanilla (2009) 170 Cal.App.4th 406, 414.) Accordingly, we reject defendant’s contention of error.
III.
Defendant contends the trial court abused its discretion in imposing consecutive sentences, because it was improper to use the fact of his prior criminal history both to impose the upper term and to impose consecutive sentences.
Defendant contends this issue is not forfeited by the lack of an objection in the trial court, because the trial court did not provide an opportunity for his trial counsel to object. (See People v. Scott (1994) 9 Cal.4th 331, 356.) Alternatively, he contends his trial counsel’s failure to object reflects incompetence of counsel. The Attorney General does not argue defendant’s claim is forfeited and addresses the claim on the merits. We shall do the same.
California Rules of Court, rule 4.425(a)(1) provides that one factor a trial court may consider in imposing consecutive sentences is that “The crimes and their objectives were predominantly independent of each other.” Further, “Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term.” (Rule 4.425(b)(1).)
The trial court rejected the probation officer’s recommendation in strong terms:
“I don’t know what you have to do in Sacramento County anymore to warrant anything other than what appears to be a lenient, relaxed middle term, we-don’t-care type sentencing. [¶] As I looked at your record, Mr. Meek, I was struck by the fact that you are consistently consciously motivated to have in your possession weapons when you aren’t allowed to, period. Not even a close call. And it’s a consistent theme of your life. And the themes are being violent and having weapons. [¶] And I would not be doing by job if I were to blindly follow the recommendation of this probation officer. I believe that you warrant the upper term, and I also believe that you warrant consecutive sentencing because of your conscious consistent disregard for the laws of the State of California. [¶] I also find that with respect to all of the offenses [of] which you stand convicted, that they were separate offenses, that... you’ve had opportunities not to be in possession of these weapons. You possessed a number of different weapons. You possessed a number of different pieces of ammunition all in violation of the law. You are not one that should be afforded yet an additional grant of leniency by this Court. [¶] I think, frankly, the problem has been you’ve been granted too many chances, and the message hasn’t been received. So perhaps this message will be received this time.”
The trial court then denied probation and imposed the upper term of three years on count one, doubled due to the strike, stating the upper term was imposed based on defendant’s “voluminous record” apart from the strike conviction. The trial court imposed consecutive one-third midterms, doubled for the strike, for the other felony counts.
Assuming the trial court did in part use defendant’s prior criminal history both to impose the upper term on count one and to impose consecutive sentences for each firearm and for the possession of ammunition, such error was harmless because it is not reasonably probable that defendant would have received concurrent sentences in the absence of such error. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) The trial court stated defendant had been treated too leniently in the past, leading to his habitual unlawful possession of weapons, and the trial court was determined to impose a sentence so that he would receive “the message” about society’s view of his conduct. Although the trial court at one point may have conflated its reasons for its distinct sentencing choices, the trial court clearly found each weapon was of a different type meriting separate punishment. As we have indicated above, that finding both comports with the legislation permitting multiple convictions for the simultaneous unlawful possession of multiple firearms, and with the facts of this case, showing each firearm was of a different type or caliber. Any “dual use” of facts at sentencing was harmless.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., HULL, J.