Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA050129 Darlene E. Schempp, Judge.
Judy G. Fridkis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Milton Parada (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 1 & 9), being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 5), possessing an assault weapon (§ 12280, subd. (b); count 6), and receiving a stolen motor vehicle (§ 496d, subd. (a); count 7). As to the assaults in counts 1 and 6, the jury found true that defendant had personally used a firearm (§ 12022.5, subd. (a)(1)) and that in count 1, he had personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury also made findings that defendant had three prior felony convictions for which he had served two separate prison terms. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that the imposition of terms for counts 5 and 6 -- being a felon in possession of a firearm and possessing the assault weapon on September 14, 2005 -- violated section 654.
For purposes of the jury verdict forms, these counts were temporarily designated counts 2 and 3.
We affirm the judgment.
FACTS
On September 11, 2005, at about 2:00 a.m., defendant arrived at the North Hollywood apartment where Gilberto Alvarenga (Gilberto) lived with his brother, Wilver Alvarenga (Wilver), his cousin, Jose Guardado, and a friend, Obidio Morales. Everyone was sleeping. Defendant told Wilver that he had to see Gilberto and that it was urgent. When Gilberto came to the door, defendant, whom Gilberto did not know, indicated that he was there about “Yancy,” Gilberto’s former girlfriend. Gilberto stepped outside while Gilberto’s roommates stood at the apartment’s threshold. Gilberto saw Yancy standing about 20 feet away. Gilberto and defendant argued briefly, and defendant asked, “[W]ho wanted to die first?” Simultaneously, defendant took out a handgun, pointed it at Gilberto and then at Wilver and the other two youths standing in the door. Wilver stepped outside, and defendant fired at him and hit the door jam at Wilver’s feet. Defendant then used the handgun and struck Gilberto four times over the head. He hit Gilberto three times on the head and then broke one of Gilberto’s fingers. Gilberto ran behind a truck, and defendant discharged the handgun at Gilberto four times and left the area with Yancy.
Later, at a hospital, Gilberto required surgery on his finger and 15 stitches to his head.
On September 14, 2005, Los Angeles Police Officer Scott Tween and his partner contacted defendant at his Reseda residence. Defendant was working on a Nissan X-Terra sports utility vehicle (SUV), which he claimed he owned. Later the police discovered the SUV had been stolen on September 6, 2005. The officers arrested defendant. Prior to a search of his residence, defendant spontaneously told the officers that he had left an assault rifle on his bed. In defendant’s bedroom, the officers recovered an operable SKS assault rifle with a detachable magazine. The X-Terra had a key in its ignition.
Defendant did not testify on his own behalf or present any evidence.
Defendant stipulated that he had a prior felony conviction in 1996 for a violation of Vehicle Code section 10851, subdivision (a) (case No. PA024277), and that on May 12, 2003, he suffered prior felony convictions for owning a “chop shop” in violation of Vehicle Code section 10801 (case No. PA038713) and for grand theft of an automobile (case No. PA044102). He also stipulated that he had not remained free from prison for five years subsequent to the service of his separate prison terms.
DISCUSSION
Defendant contends that punishing him with consecutive terms for being a felon in possession of a firearm (count 5) and for possession of an assault rifle, the SKS rifle (count 6), violated section 654’s ban on multiple punishment.
We disagree.
A. Background
The information alleged that counts 5 and 6 had occurred on September 14, 2005. In its instructions on the elements of being a felon in possession of a firearm, the trial court instructed the jury that the prosecution had to prove that defendant possessed either a handgun or the SKS assault weapon with the knowledge that he possessed one of these weapons. During final argument, with respect to count 5, the prosecutor argued to the jury that the weapon defendant possessed on September 14, 2005, in relation to count 5 was the SKS assault rifle. As to count 6, there was no ambiguity in the allegations in the information or in the evidence that the charge of possessing an assault weapon referred to defendant’s September 14, 2005, possession of the SKS assault rifle.
During sentencing, the trial court selected count 1, the assault with a firearm on Gilberto, as the principle term, and imposed a three-year middle term, enhanced by three years for the personal infliction of great bodily injury and by four years for the personal use of a firearm, imposing a total term of 10 years for that count. For counts 2, 3, and 4, the trial court imposed consecutive subordinate terms of one-third the middle term of two years, or eight months. For count 9, the assault with a firearm on Wilver, the trial court imposed a consecutive term of one-third of the middle term of three years, or one year, enhanced by one-third of a term of four years, or 16 months, for the personal use of a firearm. It imposed two consecutive years for the service of two separate prison terms.
The aggregate term imposed was 16 years four months in state prison.
At sentencing, no one mentioned section 654’s ban on multiple punishment.
B. The Relevant Legal Principles
Section 654, subdivision (a), provides in pertinent part, “[a]n 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.”
The court in People v. McGuire (1993) 14 Cal.App.4th 687, 697-698, summarized the relevant legal principles with respect to the application of section 654’s ban on multiple punishment: “‘[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all 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. Perez (1979) 23 Cal.3d 545, 551.) However, where, as here, the defendant ‘“entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” [Citation.]’ (People v. Butler (1986) 184 Cal.App.3d 469, 472- 473.) ‘Whether the defendant held “multiple criminal objectives is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.” [Citations.]’ (People v. Galvan (1986) 187 Cal.App.3d 1205, 1218 [232 Cal.Rptr. 410].)”
Errors in the applicability of section 654 are corrected on appeal regardless of whether the point has been raised in the trial court. (People v. Lopez (2004) 119 Cal.App.4th 132.) Double punishment is prohibited unless there is substantial evidence in the record to show multiple criminal objectives. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.)
C. The Analysis
Defendant argues that because counts 5 and 6 were based on the same facts -- the possession of the same assault rifle on September 14, 2005 -- the imposition of a term for each of these offenses constitutes a violation of the ban on multiple punishment. The Attorney General argues to the contrary that defendant possessed two weapons and defendant had separate intents and objectives.
This court cannot know whether the jury found defendant to be guilty in count 5 because he possessed a handgun or because he possessed the SKS assault rifle. As we cannot be sure of the factual basis for the verdict in count 5, for the purposes of this contention, we shall assume that the jury determined that defendant unlawfully possessed the SKS rifle. In our view, the criminal act of unlawful possession of the weapon leads us to the conclusion that section 654 does not apply. We conclude that the decision in People v. Taylor (1969) 2 Cal.App.3d 979 (Taylor) is determinative.
Defendant does not raise instructional error with respect to count 2.
The defendant in Taylor was convicted of being a felon in possession of a concealable weapon and of receiving stolen property based on his possession of the same weapon. That court in turn relied upon the decision in In re Hayes (1969) 70 Cal.2d 604 (Hayes) to find multiple criminal objections. The Taylor court explained the Hayes decision as follows.
In Hayes, supra, 70 Cal.2d 604, “a divided court, considering Penal Code section 654, concluded that driving with a suspended license (Veh. Code, § 14601) while simultaneously driving under the influence of intoxicating liquor (Veh. Code, § 23102) constituted two separately punishable offenses. The [Hayes] court distinguished between a noncriminal act (driving an automobile) which was a common element of two different criminal statutes, and two simultaneous criminal acts made punishable by law. ([Hayes, supra, 70 Cal.2d at p.] 608.) Describing ‘driving’ as a neutral act which was a necessary element of both crimes the court said ([id. at] p. 608, fn. 6): ‘Yet this fact does not make those neutral elements in themselves punishable or criminal, for none is by itself a complete criminal act. Thus the fortuitous identity of “essential” neutral elements remains irrelevant for our purposes.’ The court concluded ([id. at] p. 611): ‘In summation, then, section 654 of the Penal Code proscribes multiple punishment for a single “act or omission which is made punishable” by different statutes, i.e., a single criminal act or omission. Since the mere act of driving is made punishable by no statute, it is not the type of act or omission referred to in section 654. The acts “made punishable” which this petitioner committed were (1) driving with a suspended license and (2) driving while intoxicated two separate and distinct criminal acts; that they were committed simultaneously and that they share in common the neutral noncriminal act of driving does not render petitioner’s punishment for both crimes in conflict with Penal Code section 654.’” (Taylor, supra, 2 Cal.App.3d at p. 985.)
From Hayes, the Taylor court reasoned: “The neutral noncriminal common element of [the defendant’s] crimes was possession of the .22 calibre revolver. On the other hand the acts made punishable by the respective Penal Code sections were possession of (receiving) stolen property, and possession by an ex-convict of a concealable gun. The public insult done by [the defendant], 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. As to each offense [, defendant] had a separate and distinguishable mens rea. It does not seem reasonable that the state should be required to indulge in the fiction that but one crime had been committed. [¶] Following the authority and rationale of In re Hayes, supra, we conclude that Penal Code section 654 is inapplicable to [the imposition of terms for the offenses of receiving stolen property and being a felon in possession of a concealable firearm.]” (Taylor, supra, 2 Cal.App.3d at pp. 985-986.)
In the present case, we apply the rationale in Taylor. Each of these offenses is supported by a different and distinct public policy: one is to deter one type of person -- criminals -- from possessing firearms, and the other limits the public’s possession of assault rifles because this particular sort of weapon is so dangerous. (See People v. Scheidt (1991) 231 Cal.App.3d 162, 171 [the offense of possessing a sawed-off shot gun (§ 12020, subd. (a)) has a different legislative purpose and objective that prohibiting possession of firearms by felons (§ 12021.1)].) The “neutral noncriminal common element” of the crimes is the act of possession, and the criminal elements are the possession by a felon of a firearm, compounded by the fact that the firearm was of a dangerous variety -- the firearm possessed was an assault rifle. (Taylor, supra, 2 Cal.App.3d at p. 985.)
Also, in People v. Harrison (1969) 1 Cal.App.3d 115, the court held that the defendant could be separately punished for convictions of sections 12021 and 12031, subdivision (a) (carrying a loaded firearm in a vehicle on a public street), even when the charges involved the same weapon. The court said: “The two statutes strike at different things. One is the hazard of permitting ex-felons to have concealable firearms, loaded or unloaded; the risk to public safety derives from the type of person involved. The other strikes at the hazard arising when any person carries a loaded firearm in public. Here, the mere fact the weapon is loaded is hazardous, irrespective of the person (except those persons specifically exempted) carrying it.” (Id. at p. 122.)
We are unable to isolate the single criminal objective essential to defendant’s analysis. Consequently, pursuant to the decision in Taylor, we conclude that each offense involved a “separate and distinguishable mens rea,” and the two offenses may be separately punished.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.