Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-572878
BRUINIERS, J.
Marayamah Muhammed Smith was convicted on a plea of no contest of one count of possessing methamphetamine for sale (Health & Saf. Code, § 11378) and of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1).) He also admitted an allegation that he was personally armed with a firearm during the commission of the drug offense. (§ 12022, subd. (c).) Smith challenges the sentence imposed, contending that the trial court violated section 654’s prohibition against multiple punishment by imposing a concurrent two-year term on the felon in possession of a firearm count in addition to sentencing him under the arming enhancement. We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code. Section 12021, subdivision (a)(1), provides, in relevant part: “Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country... 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.”
Section 12022, subdivision (c), provides, in relevant part: “[A]ny person who is personally armed with a firearm in the commission of a violation or attempted violation of Section... 11378... of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.”
I. Factual and Procedural Background
According to the presentence report, on November 11, 2009, police were at Smith’s residence to serve a search warrant and observed a car with three occupants park near the residence. Shortly after the car was parked, Smith exited his residence and walked towards it. Suspecting that the occupants of the car were there to conduct a narcotics transaction, the officers detained Smith when he was within 20 feet of the car. One of the occupants of the car admitted that he was there to conduct a narcotics transaction with Smith. The police searched Smith’s person and found three baggies of methamphetamine, weighing 4.52 grams, 0.40 grams, and 0.71 grams respectively, as well as $120 in cash and a.22 caliber semiautomatic handgun containing live ammunition.
Smith himself acknowledged that the car’s occupants were there to buy methamphetamine from him. Smith also admitted to police that “he began carrying a firearm after he was threatened by an unknown source... [and] feared for his safety.”
Smith was charged, by complaint, with one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count one), one count of possession of methamphetamine while armed (Health & Saf. Code, § 11370.1, subd. (a); count two), one count of possession of a firearm by a felon (§ 12021, subd. (a)(1); count three), and one count of possession of ammunition by a felon (§ 12316, subd. (b)(1); count four). With respect to the first count, it was also alleged that Smith was personally armed with a firearm during the commission of the offense (§ 12022, subd. (c)).
Pursuant to a negotiated disposition, Smith pleaded no contest to counts one and three. Smith also admitted the allegation that he was personally armed with a firearm during the commission of count one. The remaining two counts were dismissed. Smith’s plea was initially conditioned on receiving a six-year total prison term.
Smith also agreed to a Cruz waiver, under which he would be released on supervised own recognizance (SOR) pending sentencing. The waiver provided: “I understand that if pending sentencing I commit another crime, violate any condition of a [SOR] release, or willfully fail to appear for my sentencing hearing, [the plea] agreement will be canceled, I will be sentenced unconditionally and I will not be allowed to withdraw my guilty/no contest plea(s).” At the time of his plea, the court explained: “[The Cruz waiver is] of significance to you because should you violate any terms of that paragraph, you could be sentenced to eight years and eight months in state prison and you would not be permitted to withdraw your plea....” When asked if he understood and agreed to the Cruz waiver, Smith responded “[y]es, sir.” Smith was released on SOR and ordered to return for sentencing on February 10, 2010.
People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5 (Cruz).
Before sentencing, Smith’s SOR release was revoked when Smith violated its terms by failing to provide proof of attending Narcotics Anonymous/Alcoholics Anonymous meetings and by testing positive for marijuana and methamphetamine use.
On June 11, 2011, Smith was sentenced to a total term of eight years. The sentence included a three-year term on count one, a consecutive five-year term on the weapon enhancement, and a concurrent two-year term on count three, being a felon in possession of a firearm. Smith filed a notice of appeal, stating that his appeal “is based on the sentence or other matters occurring after the plea.”
Notwithstanding the Cruz waiver, Smith did seek to withdraw his plea. That motion was heard and denied on April 5, 2010. That decision is not challenged in this appeal.
A “defendant need not [obtain a certificate of probable cause] if the notice of appeal states that the appeal is based on... [¶]... [¶] [g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B); see also People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon).) To the extent that Smith’s challenge to his sentence may actually be a disguised challenge to the plea, it would require a certificate of probable cause. (See People v. Shelton (2006) 37 Cal.4th 759, 769–771 [“[b]ecause the plea agreement was based on a mutual understanding... that the court had authority to impose the lid sentence, defendant’s contention that the lid sentence violated the multiple punishment prohibition of... section 654 was in substance a challenge to the plea’s validity and thus required a certificate of probable cause...”]; Panizzon, at p. 79; People v. Vargas (2007) 148 Cal.App.4th 644, 646, 652 [certificate of probable cause required when defendant challenged sentence imposed pursuant to Cruz waiver included in plea bargain].) However, because Smith’s substantive argument is without merit, we need not decide whether a certificate was necessary.
II. Discussion
Smith asserts that trial court erred in imposing a two-year concurrent sentence on count three, given that a five-year term was also imposed for the enhancement under section 12022, subdivision (c). He argues that the sentence on count three should have been stayed, pursuant to section 654, because “[t]he firearm was the same, the date and circumstances of possession [were] the same.”
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....”
“ ‘ “Section 654 has been applied not only where there was but one ‘act’ in the ordinary sense... but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.” [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Rodriguez (2009) 47 Cal.4th 501, 507.)
Our Supreme Court has recently said: “With respect to punishment imposed under statutes that define a criminal offense, it is well settled that ‘[s]ection 654 bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective.’ [Citation.] But this court has never held that section 654 applies to sentence enhancements.” (People v. Rodriguez, supra, 47 Cal.4th at p. 507.) The parties correctly note a split of authority as to whether section 654 applies to conduct-related enhancements. (Compare People v. Wynn (2010) 184 Cal.App.4th 1210, 1220–1221 (Wynn) [§ 654 applies to enhancement under § 12022, subd. (b)(1), for personally using a deadly weapon during commission of burglary when based on same act or omission as offense] and People v. Reeves (2001) 91 Cal.App.4th 14, 55–56 [applying § 654 to bar imposition of two great bodily injury enhancements for single act against single victim] with People v. Boerner (1981) 120 Cal.App.3d 506, 511 [§ 654 inapplicable to enhancements].)
The Supreme Court has held that section 654 does not apply to enhancements based on the status of the offender. (People v. Coronado (1995) 12 Cal.4th 145, 158.) Here, however, the enhancement at issue is related to the defendant’s conduct.
The Wynn court specifically noted, however: “We do not decide the broader issue of whether section 654 applies to all sentencing enhancements based on the nature of a defendant’s criminal acts.” (Wynn, supra, 184 Cal.App.4th at p. 1221.)
We need not decide, however, whether section 654 applies to the sentence enhancement at issue in this case. Even if we were to assume that section 654 does apply to such a sentence enhancement, we would still affirm the sentence imposed by the trial court in this case.
“The question whether section 654 is factually applicable to a given series of offenses is for the trial court and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.... ‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313, citations omitted.)
“Case law establishes... guidelines for applying section 654 in the context of a conviction for possession of a prohibited weapon. ‘ “[W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the [weapon] has been held to be improper where it is the lesser offense.” ’ (People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford); see also People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408–1409 (Ratcliff). [¶] Applying this rule, courts have determined that section 654 applies where the defendant obtained the prohibited weapon during the assault in which he used the weapon. [Citations.] However, section 654 has been found not to apply when the weapon possession preceded the assault. [Citation.]” (Wynn, supra, 184 Cal.App.4th at p. 1217, parallel citations omitted.)
Stated differently, “[i]t is clear that multiple punishment is improper where the evidence ‘demonstrates at most that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense ....’ ([Ratcliff, supra, ] 223 Cal.App.3d [at p.] 1412.)... [¶]... [¶] On the other hand, it is clear that multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1144, italics added.)
Here, substantial evidence supports the trial court’s implicit finding that Smith possessed the gun, with an independent intent, before the possession of methamphetamine for which he was convicted in count one. Smith admitted to police that “he began carrying a firearm after he was threatened by an unknown source, indicating he feared for his safety.” Smith even admitted to probation that “[h]e purchased a gun from ‘a friend’ because he began receiving two-to-three death threats daily. His girlfriend was also threatened: on one occasion bricks were thrown through her car window.” The court could reasonably infer from this evidence that Smith possessed the gun before he committed the offense charged in count one. The evidence also supports a finding that Smith possessed the gun for a purpose independent of his intent to sell methamphetamine—i.e., to protect himself and his girlfriend from threats.
Contrary to Smith’s assertion, the facts here are distinguishable from those presented in Bradford, supra, 17 Cal.3d 8. In Bradford, the defendant robbed a bank and was stopped, minutes later, for speeding by a highway patrol officer. The defendant took the officer’s revolver and began shooting. The defendant was convicted of both possession of a concealable firearm by a felon and assault with a deadly weapon on a peace officer. (Id. at p. 13.) Because the “[d]efendant’s possession of [the officer’s] revolver was not ‘antecedent and separate’ from his use of the revolver in assaulting the officer, ” our Supreme Court concluded that the defendant’s sentence for possession of a firearm by a felon should be stayed, pursuant to section 654. (Id. at pp. 22–23.)
Unlike in Bradford, there was evidence here that Smith possessed the firearm before the offense charged in count one and with a separate intent. Substantial evidence exists in the record to support the trial court’s implicit findings. The trial court’s imposition of a two-year sentence for count three did not violate section 654.
III. Disposition
The judgment is affirmed.
We concur: SIMONS, ACTING P. J., NEEDHAM, J.
Smith’s reliance on People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez) is misplaced. The Gonzalez court held: “section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancement that were found true for the same crime must be imposed and then stayed.” (Id. at p. 1130.) The Gonzalez court did not address section 654. (See id. at p. 1123, fn. 5.)