Opinion
A150338
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN KEATH NORTH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1602533B)
Benjamin Keath North appeals from a judgment of conviction and sentence imposed after a jury found him guilty of receiving stolen property and unlawfully possessing a firearm (as a felon). He contends (1) the trial court erred in failing to grant his motion for a mistrial based on statements by a prosecution witness in a purported violation of an in limine order; and (2) the court should have stayed his sentence on one of his convictions under Penal Code section 654.
All statutory citations are to the Penal Code.
We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In an information, North was charged in count one with first degree residential burglary (§ 459), in count two with receiving stolen property (§ 496, subd. (a)), in count three with grand theft of a firearm (§ 487, subd. (d)(2)), and in count four with being a felon in possession of a firearm (§ 29800, subd. (a)(1)). It was further alleged that North had served a prison term within the meaning of section 667.5, subdivision (b) and had a prior strike conviction for purposes of section 667, subdivisions (b)-(i). A bifurcated jury trial began in October 2016.
A. Prosecution Case
At approximately 4:00 p.m. on June 1, 2016, victim Galen Gallup returned to his farmhouse, where he lived part of the year, and saw two people heading off in a black Tacoma pickup that was pulling a trailer containing his refrigerator and riding lawnmower. Gallup did not recognize the truck, the male driver, or the female passenger. He turned his vehicle around and attempted to follow the truck, but lost sight of it and went back to his farmhouse, where "things were amiss." Someone had opened a window, and there were scratches on the floor where appliances had been "drug out." Gallup called police, reported the burglary, and suggested to the 911 dispatcher that police meet him at a market in Hydesville since that would be easier to find than his house.
Officer David Diemer of the Humboldt County Sheriff's Department met with Gallup at the market around 5:15 p.m. or later. They contacted an individual at another location, where Gallup thought he had seen his lawnmower. As they were talking, the black Tacoma pickup truck passed by with a refrigerator tied to the truckbed. Gallup recognized the refrigerator as his.
Officer Diemer pursued the pickup truck in his patrol vehicle and conducted an investigatory stop. The driver was identified as North, and the passenger was identified as his girlfriend, Tiffany Deveraux. North claimed he was delivering the refrigerator to his father's apartment. North and Deveraux were detained and, after Gallup identified the refrigerator, arrested.
Additional investigation revealed that the door to Gallup's garage and a door to a "breezeway" storage area, connecting the garage to his farmhouse, had been forced open and damaged. Many items were missing, including tools, a power washer, a chain saw, a microwave oven, clothing, two rifles, and a handgun. Besides the lawnmower, Gallup described the stolen items as "three full pickup loads" including the backseat and cab of his Chevy pickup truck. The stolen items had a value of about $22,000.
Some of the stolen items, including the two rifles, were recovered that evening from an apartment North shared with Deveraux.
B. Defense Case
Deveraux testified that North was not involved in the burglary, although she and North were living together at the time. She acknowledged that she was addicted to heroin and had prior arrests for domestic violence and a conviction for receiving stolen property.
According to Deveraux, she first stole property from Gallup's home at 11:30 p.m. on May 31, 2016, with the help of some other man, using North's truck (which she used frequently because her own car had been "totaled"). Between 12:30 a.m. and 1:30 a.m. on June 1, 2016, she and the unidentified man stashed the stolen goods at the apartment Devereaux shared with North. She then dropped off her accomplice and picked up North from his father's house; not wanting North to see what she had stolen, she did not take him to their apartment but instead spent the night with him at the beach.
The morning of June 1, 2016, Devereaux dropped North off at work, picked up the unidentified man who had helped her the previous day, went home to hook up the trailer onto North's truck, and then proceeded with the unidentified male to Gallup's house to take his dishwasher and lawnmower, which they put in the trailer. Deveraux and her companion then drove the stolen items to the apartment she shared with North. Later, she picked North up from work at 4:30 p.m. with Gallup's refrigerator still in the back of the truck; when North asked about the refrigerator, Deveraux purportedly showed him a receipt. Shortly thereafter, they were stopped by Officer Diemer and arrested.
Deveraux acknowledged, however, that she had told police a different story when she was arrested, informing Officer Diemer that she was home when North arrived in his truck with the refrigerator already in the truck bed.
C. Prosecution's Rebuttal Evidence
Officer Diemer testified that Deveraux had actually given two different accounts of the theft of the refrigerator before her latest account at trial. When he first questioned her, Deveraux said that North had gotten the refrigerator at a friend's house and then picked her up at her house. She later said that she and North had obtained the refrigerator together at "Mike's" house.
D. Verdict and Sentence
The jury found North not guilty of burglary and grand theft of a firearm (counts one and three), but guilty of receiving stolen property and being a felon in possession of a firearm (counts two and four). North admitted the prison prior allegation and the prior strike allegation.
Jurors were instructed that "[t]he parties have agreed it was unlawful for the defendant to possess a firearm" and were not informed that North had a prior felony.
The court sentenced North to seven years in state prison, consisting of the upper term of three years for receiving stolen property, doubled pursuant to the prior strike conviction, plus a consecutive year for the prison prior. The court also imposed the upper term of three years for the firearm possession by a felon, doubled pursuant to the prior strike conviction, but ordered that this term would run concurrently. This appeal followed.
II. DISCUSSION
A. Motion for Mistrial
North contends the court erred in denying his motion for a mistrial after a prosecution witness testified, in violation of an in limine order, that North was on parole at the time of the offense and he recognized North from mug shots. We find no abuse of discretion.
1. Proceedings
Before testimony, defense counsel "requested that there be no mention by any of the witnesses of [North's] parole status or that he was a felon." The prosecutor agreed, and the court instructed him to "affirmatively tell any witness that they're not to make reference to a parole status or previous felon or anything of that nature." It was decided that reference to a "lawful search" would discourage jurors from speculating whether the search of North's residence was performed without a warrant. The court concluded, "So, just make sure you get to that [search discussion] without the words 'parole' or 'felon' being used at all."
During his testimony, however, Sergeant Braud noted that one of the two detained suspects (North or Deveraux) was on parole and subject to search: "Q. And what happened next? [¶] A. I arrived on the scene and met with [my corporal], and he explained the circumstances of his investigation. [¶] Q. What did you do after that? [¶] A. He told me that one of the people he had detained as a suspect in the investigation was on parole, and he requested that I respond to that person's address of residence with parole to conduct a search. [¶] Q. Let me—let me take a break. I don't want to talk about any of the other people that you looked at. But at some point, did you get information about [North] and where he might be living? [¶] A. I— that was—I talked to my corporal about [North]. [¶] [Prosecutor]: Okay. Well, I have to take a break. Sorry, Your Honor. If we could approach. [¶] THE COURT: Yes." (Italics added.)
Defense counsel moved for a mistrial, contending the comment "sort of floats out the idea that [North] is on parole," although "he hasn't quite" said it was North. The prosecutor apologized that his message not to mention a felony record or parole had not reached Sergeant Braud, but he thought "this is the kind of thing that the Court could cure with an instruction and just ask the jury not to pay any attention to that portion of the testimony."
The court took the matter under submission and allowed the testimony to proceed. In his continued testimony, Sergeant Braud next referred to seeing North in "mug shots." "Q. Okay. Is Mr. North the person that you saw the night of June 1st? Is that the defendant here in court today? [¶] A. Yes. [¶] Q. Okay. And I'm—well, do you see him in—in this photograph that was taken at the apartment? [¶] A. Yes. But I—could I clarify something? [¶] Q. Sure. [¶] A. Even on that night, although he was on scene in the back of a car, I never went and actually looked at him. The only reason I knew what he looked like is from looking at mug shot photos of him previously." (Italics added.)
Defense counsel renewed his motion for mistrial, noting that the latest comment "sort of floats out there that [North] has prior criminal contact or criminal conduct." The prosecutor countered that the jury might think Sergeant Braud was referring to North's mug shots in the present case, since Braud had not mentioned previous arrests; also, the defense had already acknowledged in opening statement that North had a drug problem. In continued argument, defense counsel asserted: "And since the crux of the defense here is that Mr. North had no idea what his partner, Ms. Deveraux, was up to and had no involvement with this, floating out the fact that he was on parole and the intimation that it was Mr. North who was on parole, not some third party, I think was very clear, and -- and then talking about his mug shots, also very, very clear, and in direct contradiction to the Court's explicit instructions both to [the prosecutor] and then later to Sergeant Braud, who just managed to, you know, slip over into that again. I think it's very clear that . . . Mr. North's case has been prejudiced." The prosecutor argued, on the other hand, that instructing the jury not to consider the testimony would suffice to cure any prejudice.
The court denied the mistrial motion, noting that both of Sergeant Braud's comments, although cumulative, were "fleeting;" the reference to a parole search did not directly refer to North as the parolee or his residence as the object of the parole search; and the reference to mug shots did not irreparably damage North's right to a fair trial. The court offered to strike the references to "parole" and "mug shots" and admonish the jury not to consider them.
Defense counsel agreed to the proposed admonition, and the court included it as part of the jury instructions to avoid highlighting the stricken comments. The court ultimately instructed the jury, orally and in writing, as follows: "When Sergeant Braud testified, he made reference to parole and mugshots. The Court is striking any reference to parole and mugshots from the record. Any reference to parole or mugshots should not be [considered] by the jury at all for any purpose in the trial."
2. Law
A mistrial should be granted if "the court is apprised of prejudice that it judges incurable by admonition or instruction." (People v. Harris (2013) 57 Cal.4th 804, 848; People v. Collins (2010) 49 Cal.4th 175, 198 [mistrial requires a showing that a defendant's chances of receiving a fair trial have been irreparably damaged].) We review the denial of a mistrial motion for an abuse of discretion. (People v. Cowan (2010) 50 Cal.4th 401, 459.)
3. Application
The court did not abuse its discretion in denying the motion for a mistrial. Sergeant Braud's brief mention that "one of the people [Officer Diemer] had detained as a suspect in the investigation was on parole" was ambiguous, since it was unclear if he was referring to North or to Deveraux, both of whom had been detained as a suspect. Indeed, by the time the court ruled on the mistrial motion, Deveraux had testified that she had a criminal record and was addicted to drugs, and Sergeant Braud testified that he had had a number of prior law enforcement contacts with her, including at least one regarding theft.
As to Sergeant Braud's later statement that he had seen North's mug shot "previously," we note that it did not directly reference North being on "parole" or being a "felon." And while the statement might have had some cumulative effect in suggesting it was North who was on parole, the statement was brief, isolated, and ambiguous as well. On the one hand, as the prosecutor noted, it could have been understood to mean mug shots from the present offense, since there was no testimony that North had been arrested for any crime other than the burglary being tried; in that sense, " 'looking at mug shot photos of him previously' " could mean looking at photographs before going to the apartment, or being able to recognize North in court from photographs he saw before the trial, as opposed to looking at photos taken with respect to prior crimes. On the other hand, as North argues, Braud went to North's residence the night it was searched - the same day North was arrested - and there was no evidence North had been taken to the police station and booked or otherwise photographed. But since any of these inferences could reasonably be drawn from the mug shot comment, it cannot be said that the jury necessarily concluded there were mug shots of North from prior arrests.
Furthermore, neither comment was particularly prejudicial. Even if the jury thought that it was North who was on parole, there was no indication that the parole was based on a conviction for the type of crimes for which he was being tried - burglary, theft, receiving stolen property, or possessing a firearm. To the contrary, jurors learned from Deveraux's testimony that North, as well as Deveraux, had a "heroin problem," and they could have attributed the parole and mug shots to that. Moreover, although a reference to parole suggests a prior conviction, it also suggests the completion of a sentence, so it is unlikely Sergeant Braud's reference inspired the jury to punish North in this case for some uncharged past crime rather than the charged crimes based on the evidence. (And indeed, the jury found North not guilty of burglary and theft.)
North argues that Sergeant Braud's references to parole and mug shots were particularly damaging because they were not "largely duplicative of evidence the jury properly received." (People v. Dement (2011) 53 Cal.4th 1, 40 (Dement), disapproved on other grounds by People v. Rangel (2016) 62 Cal.4th 1192.) The argument is unavailing. In Dement, a prosecution witness in a murder case impermissibly volunteered that the defendant had "bragged before about killing his brother" previously and said that "it didn't mean anything for him to take a human life," and yet our Supreme Court affirmed the denial of a motion for a mistrial because the comment was "brief and isolated," ordered stricken with admonishments to disregard it, and duplicative of other evidence. (Dement, supra, at pp. 38-40.) Here, Sergeant Braud's veiled comments were far less inflammatory and far more ambiguous than that in Dement, and they were nonetheless ordered stricken with an admonishment to disregard them. Under the circumstances, it was well within the court's discretion to conclude that any prejudice arising from Sergeant Braud's comments could be cured by the admonition, and that North's right to a fair trial was not irreparably damaged.
B. Section 654
North was convicted of receiving stolen property and being a felon in possession of a firearm. Because the stolen property he received included the firearms that he possessed, North contends he cannot be punished for both crimes under section 654, since he possessed the firearms as part of a single act and indivisible conduct. We disagree.
Section 496, subdivision (a) makes it unlawful to receive any property that has been stolen or obtained by theft, knowing the property to be stolen or so obtained. Section 29800, subdivision (a)(1) provides: "Any person who has been convicted of [a felony], or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony."
1. Law
Section 654 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." Thus, when a defendant is convicted of multiple crimes arising out of the same act or an indivisible course of conduct, a court will impose a sentence for the most serious offense and stay the sentence for the remaining offenses. (People v. Pearson (1986) 42 Cal.3d 351, 359-360, disapproved on another ground in People v. Vidana (2016) 1 Cal.5th 632, 650; People v. Deloza (1998) 18 Cal.4th 585, 592. Italics added.)
" '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 (1993) 5 Cal.4th 1203, 1208; People v. Douglas (1995) 39 Cal.App.4th 1385, 1393 ["multiple punishment also may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives"].)
The court's express or implied determination that two crimes were separate acts, or involving separate objectives, will be upheld if supported by substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.)
2. Cases Discussed by the Parties
The parties primarily discuss three cases in regard to section 654 and possession of a firearm by a felon. We describe them briefly to provide context for our analysis.
In People v. Taylor (1969) 2 Cal.App.3d 979 (Taylor), an ex-convict possessed a stolen firearm capable of concealment. The court held that section 654 did not bar punishment for both possessing stolen property and possessing a concealable gun by an ex-convict. Although the two crimes were based on the possession of the same gun, the court concluded there was "a separate and distinguishable mens rea." (Id. at pp. 985-986.) Further, the court explained: "The public insult done by Taylor, an ex-convict, in possessing the loaded revolver was compounded by the fact that the weapon was stolen, and known by him to be stolen." (Id. at p. 985.) In reaching its conclusion, Taylor purported to rely on In re Hayes (1969) 70 Cal.2d 604, 607 (Hayes), which had held that section 654 did not preclude multiple punishments for the crimes of driving without a license and driving under the influence, since the act of driving common to both crimes was not inherently criminal and section 654 therefore did not apply.
In People v. Jones (2012) 54 Cal.4th 350 (Jones), a felon possessed a single gun. The court ruled that section 654 precluded multiple punishments, based on the possession of that one gun, for the crimes of possession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered loaded firearm in public. Jones noted that a contrary conclusion would have been reached under Hayes (on which Taylor had relied), since Hayes ruled section 654 inapplicable where the common act was not in itself unlawful. The court in Jones rejected the analysis in Hayes, stating: "The rationale of Hayes . . . would permit multiple punishment in many cases when a single physical act is made punishable by different provisions of law. Different provisions of law punishing the same physical act—for example, driving while intoxicated and on an expired license, or a felon's carrying a loaded and concealed firearm—are generally directed at distinct societal evils. It might make sense to punish these distinct evils separately, and a criminal justice system could logically and reasonably do so. But doing so would be contrary to section 654's plain language, which prohibits multiple punishment for '[a]n act or omission that is punishable in different ways by different provisions of law.' " (Jones, at p. 356.) On that basis, Jones overruled Hayes. (Id. at p. 358.)
See also People v. Williams (2009) 170 Cal.App.4th 587, 645-646 [§ 654 prohibits multiple punishment for possession of a firearm by a felon and possession of a controlled substance while armed, where the court finds the two crimes were based on the same act and intent]; People v. Scheidt (1991) 231 Cal.App.3d 162, 170 [§ 654 precludes separate punishment for single act of possessing a concealable firearm and possessing a sawed-off rifle]; People v. Lopez (2004) 119 Cal.App.4th 132, 138 [§ 654 precludes imposition of separate sentences for unlawful possession of ammunition and unlawful possession of a firearm when both violations were part of an " 'indivisible course of conduct' "].)
In People v. Correa (2012) 54 Cal.4th 331 (Correa), the defendant was found with seven guns and convicted of seven counts of being a felon in possession of a firearm. (Id. at pp. 334, 338.) The court held that section 654 did not bar multiple punishments for multiple convictions under the same statute, based on the defendant's multiple acts. The court observed that "the purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability," and "a felon who possesses several firearms is more culpable than one who possesses a single weapon." (Id. at p. 341-342.) The court also observed that the Legislature made clear that "the purpose of 'The Dangerous Weapons Control Law,' . . . was to protect the public by denying firearms to felons, who are considered more likely to commit crimes with them." (Id. at p. 342.)
In sum, Taylor held that a felon who possesses a single stolen firearm may be punished for both possession of stolen property and possession of a gun by a felon; Jones held that a felon who possesses a single stolen firearm may not be punished under multiple statutes based on that one act; and Correa held that a felon who possesses multiple stolen firearms may be punished for each of the firearm possessions.
North argues that Jones overruled "the multiple intent test" of Hayes, and therefore implicitly overruled Taylor, so Taylor is not authority for the proposition that his possession of the rifle can be punished both as possession of stolen property and possession by a felon. More accurately, Jones rejected the idea in Hayes that, where the act (e.g., possessing a gun, driving a car) is not in itself unlawful, section 654 does not apply. (Jones, supra, 54 Cal.4th at pp. 356-358.) In other words, Jones teaches that the correct inquiry is whether the act underlying the two punishments is the same, not whether the act is itself unlawful. (Ibid.) At any rate, North's argument concerning Jones's implications for Taylor is immaterial, since Taylor and Jones concerned multiple punishment for the one act of possessing a single gun, while we are concerned here with punishment for different acts. To that issue we turn next.
We express no opinion on the vitality of Taylor.
3. Application
Section 654 analysis begins by ascertaining whether multiple punishments are being imposed for the same act or indivisible conduct. Here, as argued by the prosecutor, the act underlying North's conviction for receiving stolen property was his possession of truckloads of stolen property. The act underlying his conviction for possession of a firearm as a felon, on the other hand, was his possession of a gun. Since possessing truckloads of stolen property is not the same act as possessing a gun, and there are different criminal objectives in receiving truckloads of stolen property and choosing, as a felon, to possess a firearm, substantial evidence supports the trial court's implicit conclusion that the acts underlying the two convictions were different and divisible. Because the underlying acts are not the same, section 654 is no bar to punishment for both convictions.
In addition, although the parties do not note this in their briefs, and the jury instructions and verdict form did not specifically repeat it, the record indicates that the Information was read to the jury and stated that count two for receiving stolen property pertained to "appliances, tools, and clothing," while count four for unlawful possession of a firearm pertained to a rifle, a shotgun, and a revolver. The two counts, as charged, targeted different goods and acts. --------
Our conclusion is consistent with the law. North does not cite any case holding that a defendant who possesses a stolen firearm as a felon cannot be punished for receiving stolen property when he possesses not only the stolen firearm, but also truckloads of other stolen property. While Jones precluded multiple punishment for the single act of possessing one firearm, it also admonished that " 'simultaneous possession of different items of contraband' are separate acts" for purposes of section 654, and the court "[did] not intend to cast doubt on the cases so holding." (Jones, supra, 54 Cal.4th at p. 358, italics added.)
Furthermore, our conclusion comports with common sense and is supported by the policy underlying section 654. As Correa ruled, a felon's possession of two firearms merits punishment for the possession of the first firearm and punishment for possession of the second firearm; it would be illogical to hold that a felon's possession of the firearm and truckloads of other stolen loot would merit punishment for the firearm possession alone. To so hold would mean that a felon engaged in the act of possessing a firearm would take on no prospect of further punishment by engaging in the additional acts of receiving other stolen property. And surely section 654 was not designed to let North off the hook for receiving multiple truckloads of stolen property merely because he included a stolen firearm (or two) in that bounty. Just as "a felon who possesses several firearms is more culpable than one who possesses a single weapon" (Correa, supra, 54 Cal.4th at p. 342), a felon who possesses a firearm and truckloads of additional stolen property is more culpable than a felon who possesses a single weapon, and more culpable than a non-felon who possesses stolen property including a gun.
North fails to demonstrate error under section 654.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.