Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF126041. Jeffrey Prevost, Judge.
Nancy L. Tetreault, 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, Assistant Attorney General, Rhonda Cartwright-Ladendorf, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)) (count 1), possession of ammunition by a felon (§ 12316, subd. (b)(1)) (count 2), and receiving stolen property (§ 496, subd. (a)) (count 3). In a bifurcated proceeding, the trial court found true that defendant had served three prior prison terms (§ 667.5, subd. (b)) and two prior strike convictions (§§ 667, subd. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A).) Defendant was sentenced to a total term of 28 years to life in state prison as follows: 25 years to life on count 1, plus an additional three years for the three prior prison term enhancements; the same sentences were imposed on counts 2 and 3 to run concurrently.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) his sentence on count 2 should have been stayed pursuant to section 654; (2) there was insufficient evidence to sustain his conviction on count 3; and (3) the trial court abused its discretion in declining to dismiss one or more of his prior strike convictions. We agree with the parties that defendant’s sentence on count 2 should have been stayed but reject defendant’s remaining contentions and affirm the judgment.
I
FACTUAL BACKGROUND
On September 16, 2005, around 9:30 p.m., Riverside County Sheriff’s Deputies Jesse Martinez and Nathan Padilla were on routine patrol when they saw defendant riding a bicycle in the middle of the street without a light on his helmet. Since he was impeding the flow of traffic, the deputies asked him to pull over. Defendant did not stop but continued riding his bicycle for a short distance; he then picked up his bicycle and fled from the deputies. A pursuit followed.
Defendant eventually lost control of his bike and fell to the ground. When Deputy Padilla tried to grab defendant, defendant pulled away, and a struggle ensued. During the struggle, a loaded .45-caliber handgun fell from defendant’s jacket. The cylinder of the handgun contained three .45 Colt bullets and one .44 Remington Magnum bullet. Defendant broke free and ran from the deputies again. Another pursuit ensued. Defendant was eventually located with the assistance of a K-9 unit and taken into custody.
In June 2005, two guns, a gun belt, and eight to 10 rounds of ammunition were stolen from Randy Parker’s home. The gun found in defendant’s possession was one of the stolen firearms, worth about $600. The gun used .45-caliber Colt bullets. That type of ammunition was among the items stolen from Parker’s home.
Deputy Padilla testified that a .44-caliber bullet will fire from a .45-caliber handgun, but the tunnel effect from the smaller bullet make the aim less accurate. The deputy also confirmed that gun stores are prohibited from selling guns to convicted felons and must submit the names of potential purchasers to the Department of Justice for a background check.
II
DISCUSSION
A. Section 654
Defendant argues, and the People correctly concede, that sentencing on count 2 (felon in possession of ammunition) should have been stayed pursuant to section 654 because possession of the ammunition was incidental to possession of the firearm (count 1). Based on the reasoning of People v. Lopez (2004) 119 Cal.App.4th 132, we agree. In that case, the court explained: “The Legislature has wisely declared that specified people should not possess firearms and/or ammunition. The obvious legislative intent is to prohibit these persons from combining firearms with ammunition. [Defendant’s] obvious intent was to possess a loaded firearm. [¶] . . . 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.)
Here, as in Lopez, the ammunition in defendant’s possession was loaded into the firearm. Accordingly, the sentence on count 2 for felon in possession of ammunition should have been stayed.
B. Insufficiency of the Evidence of Receiving Stolen Property
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738.) “[O]ur inquiry is limited to whether any rational trier of fact could have found the necessary elements of the crime beyond a reasonable doubt. [Citations.]” (People v. Brown (1995) 35 Cal.App.4th 1585, 1598.) We review the entire record in the light most favorable to the judgment to determine whether it contains “‘“substantial evidence -- that is, evidence which is reasonable, credible, and of solid value”’” from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume “in support of the judgment the existence of every fact the [jury] could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . .” (Ibid.)
Defendant maintains his receiving stolen property conviction is not supported by the evidence. Defendant notes, correctly, that one of the essential elements of such a conviction is knowledge that the item possessed had been stolen. (People v. Kunkin (1973) 9 Cal.3d 245, 249.) Defendant contends the evidence here was insufficient because there was no evidence that he knew the handgun had been stolen. We disagree.
“Knowledge that property was stolen can seldom be proved by direct evidence and resort must often be made to circumstantial evidence. . . . ‘Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. [Citations.]’ [Citation.]” (People v. Vann (1974) 12 Cal.3d 220, 224, quoting People v. McFarland (1962) 58 Cal.2d 748, 754.) In other words, the “knowing possession by a defendant of recently stolen property raises a strong inference of the other element of the crime: the defendant’s knowledge of the tainted nature of the property. This inference is so substantial that only ‘slight’ additional corroborating evidence need be adduced in order to permit a finding of guilty.” (People v. Anderson (1989) 210 Cal.App.3d 414, 421.) When a defendant is found in possession of stolen articles “‘soon after they were stolen’” (McFarland, at p. 754), “suspicious circumstances attendant upon . . . possession” are sufficient corroboration. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1019-1020.) In People v. Reyes (1997) 52 Cal.App.4th 975, the court explained that “‘the attributes of the possession -- time, place, and manner -- may furnish the additional quantum of evidence needed. [Citation.]’ [Citation.]” (Id. at p. 985.)
In People v. Boinus (1957) 153 Cal.App.2d 618, the court set forth guidelines for determining whether a defendant may be found to have knowledge that property is stolen: “Although guilty knowledge of the fact that the property was stolen is an essential fact to be proved in a prosecution for receiving stolen property, such knowledge need not be that actual and positive knowledge which is acquired from personal observation of the fact. [Citation.] It is not necessary that the defendant be told directly that the property was stolen. [Citation.] Knowledge may be circumstantial and deductive. [Citations.] Among the elements from which knowledge may be inferred are that the property was obtained from a person of questionable character [citation], and the failure of the accused to satisfactorily explain his possession. [Citation.] Possession of stolen property, accompanied by an unsatisfactory explanation of the possession or by suspicious circumstances, will justify an inference that the property was received with knowledge it had been stolen. [Citation.] It is enough if, considering all the evidence, which may be circumstantial, an inference of guilt may be found. [Citation.]” (Id. at pp. 621-622.)
Courts have been reluctant to draw a bright line in terms of what constitutes “recently” stolen property. (See People v. Anderson, supra, 210 Cal.App.3d at p. 422 [four-and-a-half month time span from theft to possession deemed recent]; People v. Lopez (1954) 126 Cal.App.2d 274, 278 [nine months long enough to weaken the inculpatory inference but not to vitiate it entirely].) Whether the time period is “recent” is a matter to be decided by the trier of fact. (Anderson, at p. 422.)
In this case, there was substantial evidence to support the jury’s conclusion that defendant knew the handgun in question was stolen. The gun was found in defendant’s possession less than four months after it was stolen. This brief period of time certainly strengthened the inference of guilty knowledge. In addition, we believe the circumstances under which the gun was found established defendant’s conscious possession of stolen property. Defendant fled from the police twice. Further, as a convicted felon, defendant could not legally purchase or possess the handgun. Because defendant was in possession of recently stolen property, only slight additional corroborating evidence was necessary to establish that defendant had knowledge that the property was stolen. In other words, the time, place, and manner of defendant’s possession of the stolen handgun supported the conclusion that defendant was fully aware that the gun in his possession was stolen.
Based on the recent possession of the gun and the suspicious circumstances under which it was found, it reasonably could be inferred that defendant had knowledge that the gun had been stolen. Therefore, viewing the evidence in the light most favorable to the judgment, the jury reasonably could have concluded that defendant was in possession of stolen property.
C. Motion to Dismiss Prior Strike Convictions
Defendant argues the trial court abused its discretion by refusing to dismiss one or more of his prior strike convictions pursuant to People v. Superior Court (Romero) (1996)13 Cal.4th 497. We disagree.
A trial court’s decision to not dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 and People v. Preyer (1985) 164 Cal.App.3d 568, 573; see also People v. Myers (1999) 69 Cal.App.4th 305, 309.)
The California Supreme Court explained, “In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (People v. Carmony, supra, 33 Cal.4th at p. 378, citing People v. Langevin (1984) 155 Cal.App.3d 520, 524 and People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); People v. Myers, supra, 69 Cal.App.4th at p. 310.)
But “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance. [Citation.]” (People v. Myers, supra, 69 Cal.App.4th at p. 310.) “Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)
The touchstone of the analysis must be “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Defendant contends the court should have granted his request to strike one or more of his prior strike convictions given his age, background, character, and prospects for changing his life and given that current crimes were nonviolent and his priors arose from a single incident.
We cannot conclude the trial court abused its discretion in declining to strike one or more of defendant’s prior strike convictions. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined in Williams.
This case is far from extraordinary. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Though defendant does not have an extremely violent prior record of criminal behavior, his past criminal history is nonetheless serious. He began the life of crime at the age of 19 in 1993 for possessing marijuana for sale and continued to commit drug-related crimes and violate his probation and parole repeatedly until he committed burglary in 1996. He thereafter was sentenced to prison, and upon his release he violated parole three times before committing his strike offenses in 1998 for two counts of assault with a deadly weapon and making a terrorist threat. In 1998, he was also convicted of being a felon in possession of a firearm and receiving stolen property. Defendant was then sentenced to state prison for about five years; upon release from prison, he absconded from his parole until he committed the current crimes in 2005.
The court here could not overlook the fact defendant continued to commit serious criminal offenses and violate the terms and conditions of his parole even after repeatedly serving time in prison. His conduct as a whole was a strong indication of unwillingness or inability to comply with the law. He has also shown a proclivity for weapons through his illegal possession of firearms albeit there is no evidence that defendant has ever used them. Finally, he has shown his continual disregard for the law as evidenced by his parole violations and criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense. All of these factors were relevant to the trial court’s decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or that it failed to properly balance the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (Williams, supra, 17 Cal.4th at p. 161.)
Defendant unpersuasively argues that the court relied on the factor that defendant lied to the probation officer when he stated the gun was not his and that it “magically appeared.” Though the court pointed out that it bothered the court that defendant had apparently lied to the probation officer in stating the gun had “magically appeared,” a thorough review of the record reveals that the court did not rely solely on this factor in finding defendant was within the spirit of the three strikes law. In fact, when defense counsel pointed out whether the court was relying on lack of remorse, the court clearly stated, “No. I don’t think that’s appropriate in making a determination on the Romero motion.”
Indeed, defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) Thus, given defendant’s continuous criminal history, his numerous parole violations, the seriousness of the past offenses, and his seemingly dim prospects for rehabilitation and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss one or more of defendant’s prior strike convictions. The trial court’s decision not to strike defendant’s priors was neither irrational nor arbitrary.
Alternatively, defendant argues that one of his two 1998 assault with a deadly weapon convictions should have been stricken, based on the rationale of People v. Benson (1998) 18 Cal.4th 24, 36, footnote 8 (Benson) and People v. Burgos (2004) 117 Cal.App.4th 1209, 1215 (Burgos). We again disagree.
In Benson, the court noted that there may be circumstances in which a trial court will abuse its discretion in refusing to strike one of two prior strike convictions, where the convictions are closely connected or “arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct.” (Benson, supra, 18 Cal.4th at p. 36, fn. 8.)
Specifically, the Benson court noted: “Because the proper exercise of a trial court’s discretion under section 1385 necessarily relates to the circumstances of a particular defendant’s current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions . . . arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct -- that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.” (Benson, supra, 18 Cal.4th at p. 36, fn. 8; see also People v. Sanchez (2001) 24 Cal.4th 983, 993 [acknowledging fn. 8 of Benson] and People v. Carmony, supra, 33 Cal.4th at pp. 374-375 [same].)
Accordingly, Benson did not limit the factors that a trial court must consider in exercising its discretion to strike a prior strike under section 1385, even where two or more prior strike convictions are based on a single act. In such cases, the trial court still must consider the nature and circumstances of the defendant’s present convictions and prior strike convictions, together with the particulars of the defendant’s background, character, and prospects, in determining whether the defendant should be deemed outside the spirit of the three strikes law. (People v. Carmony, supra, 33 Cal.4th at p. 377; Williams, supra, 17 Cal.4th 148, 161.) Indeed, in footnote 8 of Benson, the court affirmed that the “trial court’s discretion under section 1385 necessarily relates to the circumstances of a particular defendant’s current and past criminal conduct . . . .” (Benson, supra, 18 Cal.4th at p. 36, fn. 8, italics added.)
Thus, the Benson court in footnote 8 was suggesting that a trial court may well abuse its discretion in refusing to strike one of two prior convictions provided that the convictions are based on a single act and provided further that the defendant should be deemed outside the spirit of the three strikes law, in view of the nature and circumstances of the present and prior offenses and his background, character, and prospects. (Benson, supra, 18 Cal.4th at p. 36, fn. 8.) That is not the case here. Defendant had engaged in ongoing criminal conduct, including violent criminal conduct and numerous parole violations, since 1993. In addition, it appears that his 1998 assault with a deadly weapon convictions involved two victims. He was not the type of person who should have been deemed outside the spirit of the three strikes law.
The court in Burgos followed footnote 8 of Benson and held that the trial court abused its discretion in refusing to strike one of the defendant’s two prior strike convictions for attempted robbery and attempted carjacking. The court emphasized that the two convictions were “closely connected” and arose from a “single criminal act.” (Burgos, supra, 117 Cal.App.4th at p. 1216.)
Notably, the Burgos court’s conclusion was not based solely on the two prior strike convictions being based on a single act. The court further observed that the defendant’s current offenses were not, “under the circumstances, the worst of crimes,” and his criminal history, aside from his current convictions and prior strike convictions, consisted of misdemeanors and one felony that did not qualify as a prior strike conviction. (Burgos, supra, 117 Cal.App.4th at p. 1216.) The court also followed the settled rule that it is appropriate to consider the term a defendant faces under the three strikes law in determining whether to strike a prior conviction. (Ibid., citing People v. Garcia, supra, 20 Cal.4th at p. 500.)
Thus, Burgos does not support defendant’s proposition that a trial court abuses its discretion as a matter of law if it fails to strike one of two or more prior convictions based on a single act. And even if Burgos may be interpreted as supporting this proposition, it was implicitly disapproved in People v. Carmony, supra, 33 Cal.4th at pages 376 and 377, where the state Supreme Court reaffirmed that a trial court has broad discretion and considers many factors in determining whether to strike a prior strike conviction. (See also People v. Ortega (2000) 84 Cal.App.4th 659, 667-668 [upholding refusal to dismiss one of two “single act” prior convictions to avoid future use as a strike, reasoning in part that trial court “considers many things” in exercising discretion under Pen. Code, § 1385].)
In short, defendant was within the spirit of the three strikes law (see Williams, supra, 17 Cal.4th at p. 161), the trial court did not rule in an “arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice” (see People v. Jordan (1986) 42 Cal.3d 308, 316), and we find no abuse of discretion (see Romero, supra, 13 Cal.4th at p. 504).
III
DISPOSITION
The judgment is modified to reflect that defendant’s sentence on count 2 (felon in possession of ammunition) is stayed. The superior court is directed to amend the abstract of judgment to reflect these modifications and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.