Opinion
C082060
03-07-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN GARY STEWART, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCYKCRBF201413972)
A jury found defendant Kevin Gary Stewart guilty of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), possession of a controlled substance while armed with a loaded and operable firearm (Health & Saf. Code, § 11370.1, subd. (a)), and misdemeanor possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)). The trial court sentenced him to an aggregate term of four years eight months in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends, and the People concede, the trial court erred in failing to stay sentence on his convictions for possession of a firearm by a felon and possession of a controlled substance under section 654. We agree. Accordingly, we will order the sentence on those convictions stayed, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited issue raised on appeal, we only briefly summarize the relevant facts and procedural history of this case. In early September 2014, defendant rented room 224 at the Motel 6 in Yreka. Around 4:30 p.m. on September 6, 2014, a manager of the motel called the Yreka Police Department to report that a housekeeper had found a firearm in defendant's room. The following day, a search warrant was executed on room 224. During the search, officers detained defendant and his ex-girlfriend Heather Frost, after ordering them to come out of the bathroom with their hands up. The officers subsequently found a loaded nine-millimeter semiautomatic Ruger handgun in the tank of the toilet. A further search of the room revealed, among other things, multiple syringes, a used glass methamphetamine pipe, marijuana, pills, a rifle cleaning kit, a rifle scope, and a stun gun. Inside a backpack, officers also discovered 6.25 grams of methamphetamine and a wallet containing a food stamp card and a California identification card belonging to defendant. When interviewed by a police officer, defendant admitted that the methamphetamine, marijuana, syringes, and stun gun belonged to him. However, he denied knowing anything about the handgun. Frost also denied knowing that there was a handgun in the motel room.
After a jury trial, defendant was found guilty of possession of a firearm by a felon (§ 29800, subd. (a)(1)), possession of a controlled substance while armed with a loaded and operable firearm (Health & Saf. Code, § 11370.1, subd. (a)), and misdemeanor possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)). The trial court sentenced him to an aggregate term of four years eight months in state prison, calculated as follows: the upper term of four years for possession of a controlled substance while armed with a loaded and operable firearm, a consecutive eight months (one-third the midterm) for possession of a firearm by a felon, plus a concurrent one-year term for possession of a controlled substance. Prior to the imposition of sentence, defendant argued that section 654 applied to his conviction for possession of a controlled substance. The prosecutor disagreed, arguing that the two offenses constituted separate and different crimes. In denying defendant's request to stay sentence, the court noted that there was not much "practical difference" in imposing a concurrent sentence rather than staying sentence. The trial court did not articulate a basis as to why section 654 did not apply under the facts of this case.
At trial, the parties stipulated that defendant had previously been convicted of a felony. --------
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court erred in failing to stay sentence on his convictions for possession of a firearm by a felon and possession of a controlled substance under section 654. The People concede the point, and we agree.
A. Legal Principles
Section 654 states, in relevant part, as follows: "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).)
"Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 294.) " 'Few if any crimes, however, are the result of a single physical act. "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.]' [Citation.]" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
" '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. Latimer, supra, 5 Cal.4th at p. 1208.) "[T]he question of whether defendant harbored a 'single intent' within the meaning of section 654 is generally a factual one . . . ." (People v. Harrison (1989) 48 Cal.3d 321, 335.) "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." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
Section 654 prohibits multiple punishments, not multiple convictions. (People v. Ortega (2000) 84 Cal.App.4th 659, 666-667; see also People v. Sloan (2007) 42 Cal.4th 110, 116.) The statute "does not allow any multiple punishment, whether concurrent or consecutive. [Citation.]" (People v. Deloza (1998) 18 Cal.4th 585, 594.) Its purpose is to ensure that punishment is commensurate with culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551.) In situations where section 654 applies, "the accepted 'procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.' " (People v. Jones (2012) 54 Cal.4th 350, 353.) "In the absence of an explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it." (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045.)
B. Sentence for Possession of a Firearm by a Felon
Prior to sentencing, defendant did not argue that section 654 applied to his possession of a firearm by a felon conviction. Nor did he object to the consecutive sentence imposed for this conviction. Defendant's claim is nonetheless reviewable on appeal. (People v. Hester, supra, 22 Cal.4th at p. 295 ["Ordinarily, a section 654 claim is not waived by failing to object below"]; see also People v. Perez, supra, 23 Cal.3d at p. 549, fn. 3 ["Errors 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"].)
Here, there was no discussion at sentencing as to whether section 654 applied to defendant's conviction for possession of a firearm by a felon. Accordingly, we must affirm the sentence if an implied finding that section 654 is inapplicable is supported by substantial evidence. (People v. Mejia, supra, 9 Cal.App.5th at p. 1045.)
In People v. Williams (2009) 170 Cal.App.4th 587, the trial court found that the conduct underlying the defendant's convictions for possession of a controlled substance while armed and possession of a firearm by a felon "involved the same act and intent," but imposed a concurrent term on the possession of a firearm by a felon count rather than staying that term under section 654. (Williams, at pp. 645-646.) The Court of Appeal reversed, holding that "[t]he trial court . . . erred under section 654 in imposing a concurrent term rather than staying the punishment" on the defendant's possession of a firearm by a felon conviction. (Williams, at p. 646; see also People v. Jones, supra, 54 Cal.4th at p. 357 [in a § 654 case concerning multiple punishment for illegal firearm possession, the California Supreme Court cited, with apparent approval, the holding in People v. Williams, which it characterized as: "§ 654 prohibits multiple punishment for possession of a firearm by a felon and possession of a controlled substance while armed"].)
Viewing the evidence in the light most favorable to the trial court's implied finding, we find no basis to conclude that defendant's conduct underlying his convictions for possession of a controlled substance while armed with a loaded and operable firearm and possession of a firearm by a felon involved a divisible course of criminal conduct. The record reflects that defendant, a felon, possessed methamphetamine and a handgun together in his motel room, and was convicted of each crime due to being caught with the handgun and methamphetamine in the motel room, not due to any antecedent possession of the handgun. The amended information alleged defendant committed the charged crimes on or around September 8, 2014, and the verdicts found defendant guilty as charged. In closing argument, the prosecutor argued that defendant was guilty of the charged crimes by possessing methamphetamine and a handgun in the motel room on the date of the search. Although the prosecutor mentioned that there was evidence presented at trial showing that defendant had possessed a handgun prior to the date of the search, the prosecutor made this argument to bolster the theory that defendant knowingly possessed the handgun in the motel room, not to base liability on such possession. Thus, the record supports only the conclusion that the crimes of possessing a controlled substance while armed with a loaded and operable firearm and possessing a firearm by a felon were part of an indivisible course of conduct. Section 654, therefore, precludes imposition of an unstayed sentence on defendant's possession of a firearm by a felon conviction. (See People v. Jones, supra, 54 Cal.4th at p. 359.) Accordingly, the trial court erred in failing to stay execution of the sentence on that conviction.
C. Sentence for Possession of a Controlled Substance
We also conclude the trial court erred in failing to stay execution of the sentence on defendant's conviction for possession of a controlled substance. Even viewing the evidence in the light most favorable to the trial court's section 654 determination, we find no basis to conclude that defendant's conduct underlying his convictions for possession of a controlled substance and possession of a controlled substance while armed with a loaded and operable firearm involved a divisible course of criminal conduct. There is nothing in the record to suggest that the two offenses involved separate or different acts. The prosecutor did not introduce evidence that defendant possessed the handgun for any purpose other than maintaining possession of the methamphetamine. No evidence was presented at trial to support a finding that defendant formed a separate intent and objective for each offense. Defendant's possession of methamphetamine while armed was an indivisible course of conduct and one criminal act that the trial court could punish only once. Accordingly, the trial court erred in refusing to stay execution of the sentence on defendant's conviction for possession of a controlled substance under section 654.
DISPOSITION
Execution of the sentence on defendant's convictions for possession of a firearm by a felon (§ 29800, subd. (a)(1)) and possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)) are stayed pursuant to section 654. The judgment is affirmed as modified. The trial court shall prepare an amended abstract of judgment to reflect the modified judgment and forward a certified copy to the California Department of Corrections and Rehabilitation.
RAYE, P. J. We concur: ROBIE, J. MURRAY, J.