Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FCH07182. Shahla Sabet, Judge.
Athena Shudde, 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, Senior Assistant Attorney General, and David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of second degree murder (count 1—Pen. Code, § 187, subd. (a)) and possession of a firearm by a felon (count 2—§ 12021, subd. (a)(1)). In addition, the jury made true findings on all special allegations. On appeal, defendant contends the court erred in imposing sentence on count 2. He maintains that the evidence failed to support the prosecution’s theory that defendant had actual or constructive possession of the gun prior to the shooting, such that his intent in possessing the weapon was indivisible from his intent in shooting the victim. This, he argues, required the court to stay imposition of sentence on count 2 pursuant to the dictates of section 654. We agree and, therefore, order imposition of sentence on count 2 stayed. In all other respects, the judgment below is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
Approximately a month prior to the incident in the current matter, Emilio Orsoco had been released from prison. Emilio knew that Robert “Caspar” Moreno, Paul Yamas’s stepson, had implicated Emilio in a drive-by shooting. Emilio held Yamas responsible for Moreno’s betrayal, because they all belonged to the same gang, the Chino Sinners; and, as a veteran member of the gang and Moreno’s stepfather, Yamas was responsible for Moreno’s conduct. Nonetheless, Yamas had failed to take any remedial action regarding Moreno’s betrayal of Emilio. Therefore, Emilio intended to settle the dispute by fighting with Yamas.
For ease of reference, and with no disrespect, Mario Orosco, Emilio Orosco, and Joseph Orosco will be referred to by their first names.
On April 3, 2005, Yamas, his friends, and fellow gang members, including defendant, were playing horseshoes at a home in Chino. Emilio arrived in a green Blazer with Albert Hernandez, Mario, and Joseph. Emilio and Yamas engaged in a fistfight. Afterward, Yamas and Hernandez became embroiled in fisticuffs.
After the second fight ended, Joseph and defendant began exchanging hostile words with one another. Joseph called defendant out to fight; however, defendant began walking away toward and behind a brick wall. Joseph called defendant a rat. Thereafter, defendant came out with a gun, which he pointed at Joseph and fired.
Defendant ran off, discarding the gun in the bushes and hiding himself in a nearby shed, where he was apprehended. Joseph died from a single gunshot wound. The weapon recovered at the scene was a six-cylinder revolver loaded with four live rounds and one empty cartridge casing. A knife was found under Joseph’s body as he rolled over. Defendant testified he ran towards the brick wall because he believed Joseph had a gun and was going to shoot him. Defendant’s right hand tested positive for gunshot residue. Gang expert Daniel Gonzalez testified that Chino Sinners is a criminal street gang of which defendant, Yamas, Manuel Parra, Mario, Hernandez, and Joseph are all members. Defendant, Yamas, and Mario were all veteran members of the gang.
At sentencing, defense counsel asserted that imposition of sentence on count 2 was prohibited by section 654. The People countered that the conduct underlying defendant’s conviction in count 2 was separate and indivisible from that in count 1; therefore, it maintained multiple punishment was appropriate. The trial court agreed with the People and sentenced defendant to an aggregate prison term of 98 years to life, including a consecutive 25-year-to-life sentence on count 2.
We note that the trial court appears to have applied the incorrect test in determining whether to stay count 2 pursuant to section 654. The court stated: “We have different elements of the crime; one is felon in possession. They are elements of the crime as to prior felony and then possession of firearm. They are not the same crime charged in two different ways.” Thus, the court appears to have erroneously applied the “elements test,” which is used for determining whether a lesser offense is necessarily included in the charged offense. (People v. Lopez (1998) 19 Cal.4th 282, 288.)
II. DICUSSION
Section 654, subdivision (a) provides, in pertinent 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 precludes multiple punishments not only for a single act, but also for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) “The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
“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.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) But “[i]f [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished 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.” (People v. Beamon (1973) 8 Cal.3d 625, 639; accord, People v. Latimer (1993) 5 Cal.4th 1203, 1216.)
“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, supra, 90 Cal.App.4th at p. 1312.) “‘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. [Citation.]” [Citation.]’ [Citation.]” (Id. at pp. 1312-1313.)
“‘Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms . . . constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where 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 firearm has been held to be improper where it is the lesser offense.’ [Citation.]” (People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford), quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821 (Venegas); People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
In Venegas, the defendant sat at a table in a bar with the victim and two women, drinking from 9:00 p.m. to 1:00 a.m. (Venegas, supra, 10 Cal.App.3d at p. 817.) After their waitress refused to continue to serve them due to their level of intoxication, she heard shots ringing out and witnessed defendant with a gun in his hand. (Id. at pp. 817-818.) The victim incurred two bullet wounds and was hospitalized for a month. (Id. at p. 819.) The defendant sustained a gunshot wound to his leg. (Ibid.) Some evidence adduced at trial suggested that a stranger had walked up to the table and pulled out a gun. (Id. at pp. 817-820.) The defendant told one witness that he attempted to wrest the gun from the stranger’s hand. (Id. at p. 819.) The victim testified defendant had no motive to shoot him and was, in fact, not the individual responsible. (Ibid.) Another individual testified that defendant was not the person who shot the victim. (Id. at p. 820.) One of the women who was sitting at the table with the defendant and the victim reported that defendant “didn’t mean to do it.” (Id. at p. 818.) The court convicted defendant of assault with a deadly weapon with intent to commit murder and possession of a firearm by a convicted felon, and imposed concurrent sentences on both counts. (Id. at p. 817.) The appellate court found that the evidence showed only possession at the time of the shooting and, therefore, the possession was incidental to the objective of shooting the victim. (Id. at p. 821.) Hence, punishment on the lesser offense was required to be stayed pursuant to section 654. (Ibid.)
In Bradford, an officer pulled the defendant over for speeding. (Bradford, supra, 17 Cal.3d at p. 13.) The defendant exited his vehicle, approached the officer, and wrested the officer’s weapon away from him. (Ibid.) The defendant then fired five shots at the officer. (Ibid.) A jury convicted the defendant of assault with a deadly weapon upon a peace officer and possession of a firearm by an ex-felon. (Ibid.) The trial court imposed concurrent sentences on the two counts. (Id. at p. 19.) The appellate court held that punishment on the possession count, the lesser charge, must be stayed because the defendant’s possession of the officer’s handgun “was not ‘antecedent and separate’ from his use of the revolver in assaulting the officer.” (Id. at p. 22.)
In People v. Ratcliff (1990) 223 Cal.App.3d 1401 (Ratcliff), the defendant committed two separate robberies at two different gas stations within an hour and a half. (Id. at pp. 1404-1405.) The jury convicted defendant of two counts of robbery and one count of possession of a firearm by an ex-felon. (Id. at p. 1405.) The court sentenced defendant to a consecutive term on the firearm possession count. (Ibid.) In analyzing the existing authorities on the issue, this court “distill[ed] the principle that if the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense, section 654 will bar a separate punishment for the possession of the weapon by an ex-felon.” (Id. at p. 1412.) This, however, was not such a case. Rather, because the defendant arrived with the handgun already in his possession, and continued to possess it after the first robbery, section 654 did not bar separate punishments for the robberies and the possession of a firearm. (Id. at p. 1413.)
In the instant case, the evidence adduced below fails to demonstrate that defendant had actual or constructive possession of the weapon prior to or after the shooting of Joseph. Indeed, if anything, the evidence shows that defendant only possessed the weapon contemporaneously to the shooting. Here, no one testified they saw defendant with the handgun prior to the shooting. Rather, the only testimony regarding defendant’s possession of the gun apart from the shooting itself was that it had occurred solely in the short duration afterward. Officer Valentino Falcon of the Chino Police Department searched defendant on the morning of the shooting, but did not find him in possession of any weapons. Defendant himself testified that someone else threw the gun, it bounced off the fence, and defendant picked it up off the ground. Though the jury and judge were certainly entitled to disbelieve the accounts presented by defendant and the other witnesses, this does not change the fact that no affirmative evidence was presented that defendant possessed the gun, either actually or constructively, prior to the shooting.
Furthermore, the evidence established that defendant discarded the gun immediately after the shooting. Officer Andrew Vestey testified that he saw defendant running with a large black object in his hands, which he then threw into the bushes. Michael Cullume, a neighbor, testified he looked between the cracks in his fence after hearing a gunshot and saw defendant run off and throw a black gun in the bushes. Likewise, another neighbor, Miguel Briones, looked out his window after hearing a gunshot and saw defendant running off with a gun, which he then discarded. The gun was later found in the precise location of the bushes reported by Vestey and Cullume. Thus, this case would appear to come within the holdings in Venegas and Bradford because the evidence is only supportive of defendant’s possession of the weapon fortuitously at the instant in which he committed the crime of killing Joseph.
But for previously existing precedents which use the term “fortuitous,” we would find defendant’s chance encounter of the firearm in this instance as “inauspicious” or “unfortunate” at best.
The prosecution’s theory that the gun was planted behind the brick wall for later use, that defendant knew this and, therefore, had constructive possession of the weapon prior to the shooting is simply not supported by any evidence at all. While Gonzalez testified that gangs in general, and the Chino Sinners in particular, typically have a firearm available for use at all times; no specific evidence suggests this was the case on the day in question. Moreover, even if a firearm were provably available on the day of the incident, the People adduced no evidence that prior to the time of the confrontation, the defendant both knew of the presence and location of the gun. The People’s “evidence” of defendant’s prior constructive possession of the weapon amounted purely to speculation.
The People assert that defendant’s constructive possession of the weapon is a rational inference of the evidence adduced at trial that defendant went behind the wall and reappeared with weapon in hand. It cites Ratcliff and Jones for this proposition; however, those cases are factually dissimilar and, therefore, unavailing. In Ratcliff, the People produced evidence that the defendant arrived at the first gas station already in possession of the gun and with the intent of committing a robbery. (Ratcliff, supra, 223 Cal.App.3d at p. 1413.) Likewise, the defendant retained possession of the weapon in the interim between the first and second robberies. (Ibid.) Thus, it was “[a] justifiable inference from this evidence . . . that defendant’s possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes.” (Ibid.) In Jones, the defendant, whose prior girlfriend had a restraining order against him, drove over to and parked in front of her house. (Jones, supra, 103 Cal.App.4th at p. 1141.) Defendant’s companion approached the front door, rang the doorbell, asked for defendant’s ex-girlfriend, and was informed she was not available. (Id. at p. 1142.) They then left. (Ibid.) However, 15 minutes later, they drove by the home slowly as defendant fired several shots at the home. (Ibid.) The court found multiple punishment appropriate “because the evidence was sufficient to allow the inference that [the defendant’s] possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling.” (Id. at p. 1147.) The court determined that logic dictated the conclusion that defendant must have possessed the firearm at least during the intervening 15 minutes between his first visit to the home and the shooting. (Ibid.) Thus, the defendant in Jones, like that in Ratcliff, must have had possession of the weapon prior to the primary crime’s commission because they both traveled to the location of the crime in order to commit it.
Here, defendant’s killing of Joseph amounted to an opportunistic crime made possible only by the fortuitous appearance of the gun. Defendant was playing horseshoes at his friend’s house. He had no apparent intent of committing any crimes that day. He had no knowledge that Emilio and his faction would be coming over to the house to start trouble. Defendant did not set out to commit a crime, but was randomly presented the opportunity to do so. We do not downplay the seriousness of the crime committed nor the malevolent intent behind it; however, we cannot say, from the state of the existing evidence, that defendant’s intent in possessing the weapon was separate and divisible from his shooting of Joseph. Were there some evidence adduced below that defendant regularly carried a weapon, had been seen with a weapon that day, and/or had a bulge on his person consistent with the possession of a concealed weapon, we might find support for the contention that he actually possessed a weapon that day, separate and apart from his shooting of Joseph. Likewise, were some evidence adduced below that the Chino Sinners regularly hid a weapon in the yard at that location for use by its members, or testimony establishing the placement of the weapon and defendant’s knowledge of that placement, there would be support for a determination that defendant constructively possessed the weapon. Nonetheless, no such evidence was produced; therefore, the sentence on count 2 must be stayed. (People v. Solo (1970) 8 Cal.App.3d 201, 208, disapproved on another ground in People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 4.)
III. DISPOSITION
The trial court is directed to amend the minute order dated December 1, 2006, and the abstract of judgment to reflect that imposition of sentence on count 2 has been stayed. The trial court is directed to deliver a certified copy of the amended minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez, P.J., McKinster, J.