Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Ct. Nos. VCF148503 & VCF154557, Gerald F. Sevier, Judge.
Rita Barker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Dawson, J., and Kane, J.
OPINION
On September 27, 2006, in Tulare County Superior Court case No. VCF148503 (case 503), a jury convicted appellant Arturo Lua Lua of possession of a controlled substance (Health & Saf. Code, § 11377; count 1) and possession of paraphernalia used for smoking a controlled substance (Health & Saf. Code, § 11364; count 2), and found true an allegation that appellant had suffered a “strike.” On September 28, 2006, in Tulare County Superior Court case No. VCF154557 (case 557), a jury convicted appellant of possession of a firearm by a person previously convicted of a felony (§ 12021, subd. (a)(1); count 1) and possession of ammunition by a person previously convicted of a felony (§ 12316, subd. (b)(1); count 2), and found true allegations that appellant committed each offense while released on bail (§ 12022.1) and that he had suffered a strike.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
In sentencing appellant on both cases, the court imposed a prison term of seven years four months, consisting of the following: in case 557, a four-year term on count 1; a concurrent four-year term on count 2; a two-year term on the on-bail enhancement alleged in connection with count 1; a concurrent two-year term on the on-bail enhancement alleged in connection with count 2; and, in case 503, 16 months on count 1. On count 2 in case 503, the court gave appellant credit for 90 days served.
In case 557, the court awarded appellant 415 days of presentence credit, consisting of 353 days’ actual time credit and 62 days’ conduct credit. In case 503, the court awarded appellant three days of presentence credit.
In case 557, the court imposed a restitution fine (§ 1202.4, subd. (b)) of $2,400 and a parole revocation fine (§ 1202.45) in the same amount, and stayed the latter fine pending successful completion of parole. In case 503 the court imposed a restitution fine of $200 and a parole revocation fine in the same amount, but did not stay the parole revocation fine.
On appeal, appellant contends the court erroneously (1) failed to stay execution of sentence on count 2 in case 557 pursuant to section 654; (2) imposed more than one on-bail enhancement in case 557; (3) calculated appellant’s presentence credits in case 557; and (4) failed to stay the section 1202.45 fine in case 503. The People counter that appellant’s appeal should be dismissed as untimely and that the court did not violate section 654. The People concede appellant’s remaining contentions. We will modify the judgment to correct errors regarding presentence credit in case 557, the parole revocation fine in case 503 and the on-bail enhancement in case 557, and affirm the judgment as modified.
Because appellant’s section 654-based claim relates to case 557, and the facts of case 503 are not relevant to the issues raised on appeal, our factual summary is limited to case 557.
Prosecution Case
On November 5, 2005, at approximately 10:40 a.m., City of Lindsay Police Officer Ryan Heinks stopped a car being driven by appellant. Appellant was the only person in the car. Upon searching the car, the officer found in the backseat, obscured by a jacket that was lying on the seat, a nine-millimeter handgun, loaded with 10 rounds of nine-millimeter ammunition. The gun appeared to be operable and the ammunition appeared to be live.
The “Prosecution Case” portion of our factual statement is taken from Officer Heinks’s testimony.
In the trunk of the car, Officer Heinks found a suitcase, inside of which, wrapped up in a piece of cloth, he found 29 more live rounds of nine-millimeter ammunition. This additional ammunition “[w]ould ... work in the handgun” found on the backseat. The suitcase also contained men’s clothing and mail addressed to “A. Lua.”
Appellant told the officer the following. He had purchased the gun from a man named Poncho. Appellant knew he was not supposed to have the gun but he needed it for protection.
The car was not registered to appellant.
Defense Case
Appellant testified to the following. He was test-driving the car and had traveled only four or five blocks when he was stopped. He was unaware that either the gun or the ammunition found in the trunk was in the car. He did not recall admitting to the officer that the gun was his.
Appellant had a jacket in the car, but it was not on the rear seat; rather, it was hanging from the backrest or the back of the driver’s seat. He stated he did not “recall” telling the officer that he “had a gun.” When asked if he recalled telling the officer he needed the gun for protection, he responded, “Absolutely not.”
DISCUSSION
Timeliness of the Instant Appeal
The People, noting that appellant was sentenced on November 2, 2006, but appellant’s notice of appeal was not filed in the court below until January 3, 2007, 62 days later, argue that the notice of appeal was not timely filed and therefore the appeal must be dismissed. They base this argument on California Rules of Court, rule 8.308(a), which provides, in relevant part, that subject to an exception not applicable here, “a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.”
All rule references are to the California Rules of Court.
Appellant counters that while incarcerated, he delivered his notice of appeal to prison authorities within 60 days of rendition of judgment and therefore, his appeal is timely. The legal basis for this claim is the holding in In re Jordan (1992) 4 Cal.4th 116: “[A] prisoner’s notice of appeal is deemed to have been filed in the office of the appropriate county clerk on the date, within the filing period prescribed [in the predecessor to rule 8.308(a)] on which it was delivered to the prison authorities. If the notice of appeal is received by the county clerk following expiration of the 60-day filing period, the prisoner who seeks to pursue his or her appellate rights has the burden of establishing that the notice of appeal was delivered to prison authorities within the 60-day period.” (Id. at p. 130, fn. omitted.) The record supports appellant’s claim.
A notice of appeal must be filed in the superior court that rendered the judgment. (Rule 8.304(a)(1).)
The notice of appeal bears appellant’s signature, dated December 20, 2006, and a stamp mark indicating it was received in this court on December 27, 2006; the envelope in which the notice of appeal was mailed, which is addressed to this court, bears a Delano State Prison return address; the envelope also bears a stamp indicating it was received by the clerk of Tulare County Superior Court on January 3, 2007; appellant was sentenced on November 2, 2006; and the abstract of judgment, filed November 13, 2006, indicates that after sentencing, appellant was remanded to the custody of the sheriff, “[t]o be delivered to the reception center designated by the director of the California Department of Corrections.”
We infer from the foregoing as follows: Appellant completed the notice of appeal on December 20, 2006, and it was initially mailed to this court and received on December 27, 2006; it was forwarded to the court below; but it was not received in that court until January 3, 2007. However, appellant, while incarcerated in Delano State Prison, delivered his notice of appeal, in an envelope for mailing, to prison authorities at some point prior to December 27, 2006, well before the deadline for filing the notice of appeal. Therefore, the notice of appeal must be considered timely filed. (In re Jordan, supra, 4 Cal.4th at p. 130; People v. Le Blanc (1997) 60 Cal.App.4th 157, 160 [that envelope was addressed to the court of appeal, rather than superior court, does not negate constructive filing].)
Section 654Appellant contends his convictions in case 557 of possession of a firearm by a felon and possession of ammunition by a felon were based on “a single course of conduct with a single objective,” and therefore the court erred in failing to stay execution of sentence on the latter conviction. We disagree.
Section 654, subdivision (a) provides, in relevant 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.” Thus, under the plain language of the statute, multiple punishment may not be imposed for a single “act or omission.” (§ 654, subd. (a).) In addition, however, section 654 prohibits multiple punishment for multiple acts which comprise an “indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.)
A course of conduct is “indivisible” if the defendant acts with “a single intent and objective.” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) The trial court “is vested with broad latitude in making its determination. [Citations.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Our review of the trial court’s determination is made “in the light most favorable to the respondent and [we] presume the existence of every fact the trial court could reasonably deduce from the evidence.” (Ibid.) The court’s findings may be either express or implied from the court’s ruling. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.) The purpose of section 654 “is ... to ensure that punishment is commensurate with a defendant’s criminal culpability. [Citations.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
Appellant relies chiefly on People v. Lopez (2004) 119 Cal.App.4th 132. In that case, police found a loaded firearm in the defendant’s pocket; the defendant was convicted of unlawful possession of a firearm and unlawful possession of ammunition; and the trial court imposed concurrent sentences on the two offenses. The defendant argued that execution of the sentence for unlawful possession of ammunition should be stayed under section 654 because possession of the firearm and the ammunition with which it was loaded was an “‘indivisible course of conduct.’” (Id. at p. 137.) The appellate court agreed: “To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and section 654 precludes multiple punishment.” (Id. at p. 138, italics added.)
Appellant acknowledges that some ammunition was found not loaded into the gun, and he concedes that Lopez “left open the possibility of a different result when the ammunition is not loaded into the firearm.” However, appellant notes, the ammunition-possession charge, as set forth in the information, “does not specify to which ammunition it refers”; the jury was not instructed that the charge of that offense “pertained only to the ammunition found in the trunk”; and the prosecutor “made no election on the issue.” Based on these factors, appellant suggests that because it cannot be established that the charge applied only to the ammunition in the trunk, we must assume the jury convicted appellant, at least in part, based on the ammunition loaded into the gun; and therefore Lopez applies and section 654 precludes punishment on both the ammunition possession and gun possession convictions.
We agree with the major premise of this argument, i.e., that appellant’s conviction on the ammunition possession charge was based at least in part on the ammunition found in the gun. But this does not preclude the operation of section 654. Lopez holds that section 654 precludes punishment on both firearm possession and ammunition possession offenses “[w]here ... all of the ammunition is loaded into the firearm ....” (People v. Lopez, supra, 119 Cal.App.4th at p. 138, italics added.) Nothing in Lopez suggests that where, as here, a defendant is convicted of unlawful possession of a firearm and unlawful possession of ammunition and the conviction of the latter offense is based at least in part on ammunition not loaded into the gun, the defendant may not be punished for both offenses. Therefore, Lopez does not support appellant’s claim that section 654 precludes multiple punishment here.
Appellant also argues that even if we reject his Lopez-based contention, section 654 nonetheless applies because there is no evidence, substantial or otherwise, that he harbored separate intents in possessing that ammunition and the gun. Again, we disagree. The trial court reasonably could have concluded the evidence demonstrated appellant’s intent to not only use the ammunition in the gun, but also the separate intent to reload if needed. As a result, we conclude that substantial evidence supports the trial court’s implied finding that possession of the ammunition and possession of the gun were separate acts. Accordingly, we affirm the sentence imposed with respect to count 2.
On-Bail Enhancements
Section 12022.1 mandates the imposition of a two-year enhancement, commonly referred to as an on-bail enhancement, for a defendant who, while free from custody on bail or his own recognizance on a felony (the “primary offense”) of which he is subsequently convicted, commits a second felony (the “secondary offense”). As indicated above, the jury found true allegations that in case 557, appellant committed two secondary offenses while free on bail in case 503, and the court imposed concurrent two-year terms, reflecting two on-bail enhancements. Appellant contends, and the People concede, imposition of more than one on-bail enhancement term was error. We agree.
As the court stated in People v. Augborne (2002) 104 Cal.App.4th 362, in holding that the trial court erred in imposing two on-bail enhancements: “The California Supreme Court has recognized that there are at least two types of sentence enhancements. In People v. Coronado (1995) 12 Cal.4th 145, 156-157, the California Supreme Court held: ‘[T]here are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. [Citation.] Prior prison term enhancements, such as those authorized by section 667.5(b), fall into the first category and are attributable to the defendant’s status as a repeat offender. [Citations.] The second category of enhancements ... arise from the circumstances of the crime and typically focus on what the defendant did when the current offense was committed. [Citation.]’ In People v. McClanahan [(1992) 3 Cal.4th 860,] 870-871, the California Supreme Court explicitly noted that a section 12022.1 enhancement is one that describes the nature of the offender as distinguished from the crime. Other decisions are in accord. [Citations.] Enhancements which describe the nature of the offender such as those pursuant to section 12022.1 are imposed only once in a particular case. [Citations.]” (Id. at pp. 376-377.) Therefore, the two-year on-bail enhancement purportedly imposed as to count 2 is stricken.
Presentence Credits
Appellant contends, and the People concede, the court erred in its award of presentence credits in case 557 by (1) miscalculating appellant’s actual time credits and (2) limiting appellant’s conduct credits by applying section 2933.1. Appellant is correct on both counts.
First, as indicated above, in case 557, the court awarded appellant 353 days of actual time credit. However, it appears appellant was in custody in case 557 from November 5, 2005, through November 2, 2006, a period of 363 days. Thus, appellant is entitled to 363 days of actual time credit in case 557, not 353 days. (§ 2900.5.)
The court did not specify the period for which it was awarding credits. However, the probation report indicates, and neither party disputes, that appellant’s period of custody in case 557 began November 5, 2005. And although sentencing was originally set for October 26, 2006, and the first part of the sentencing was held on that date, the hearing was continued to, and concluded on, November 2, 2006. The probation officer recommended an award of 353 days of actual time credit, reflecting the period from November 5, 2005, through October 26, 2006, and the court made its award of credits on the latter date. The court apparently failed to update its award of credits when the sentencing hearing concluded on November 2, 2006.
Second, the court calculated conduct credit under section 2933.1, a statute which, where applicable, limits conduct credits to no more than 15 percent of actual presentence time in custody. (§ 2933.1.) However, section 2933.1 applies only when a defendant is convicted of a serious felony listed in section 667.5, subdivision (c). (§§ 2933.1, subd. (a), 667.5, subd. (c).) Neither possession of ammunition by a felon or possession of a firearm by a felon is one of the enumerated serious felonies. (§ 667.5, subd. (c).) Therefore, appellant is entitled to conduct credit computed according to the more generous scheme set forth in section 4019. (§ 4019; People v. King (1992) 3 Cal.App.4th 882, 884-885.) And under section 4019, on an award of 363 days of actual time credit, appellant is entitled to conduct credit of 180 days (ibid.), making the correct amount of total presentence credit 543 days. We will modify the judgment accordingly.
Section 1202.45 Fine
As indicated above, in case 503, the court imposed two fines of $200 each pursuant to section 1202.4, subdivision (b) and 1202.45 respectively, but failed to stay the section 1202.45 fine. Appellant argues, and the People concede, the court erred in failing to stay the section 1202.45 fine. We agree. Section 1202.45 provides that when a court imposes a restitution fine under section 1202.4, subdivision (b), it must also impose, and “suspend[] unless the person’s parole is revoked.” We will modify the judgment accordingly.
DISPOSITION
The judgment is modified as follows: the on-bail enhancement purportedly imposed as to count 2 in Tulare County Superior Court case No. VCF154557 is stricken; appellant is awarded presentence credit of 543 days in that case, consisting of 363 days actual time credit and 180 days conduct credit; and the parole revocation fine of $200 imposed pursuant to section 1202.45 in Tulare County Superior Court case No. VCF148503 is suspended unless appellant’s parole is revoked. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We note that no modification is needed with respect to the section 1202.45 fine in case 503 because even though the trial court failed to suspend that fine, the abstract of judgment indicates it was suspended.
All further statutory references are to the Penal Code.