Opinion
C086371
02-19-2020
THE PEOPLE, Plaintiff and Respondent, v. TYRONE SOTOLONGO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CF02813)
Defendant Tyrone Sotolongo chased a man down a busy public street, shooting at him several times. He was convicted of assault with an automatic firearm, being a felon in possession of a firearm, and being a felon in possession of ammunition. A firearm enhancement and prior serious felony enhancement also were found true. The court sentenced him to an aggregate term of 34 years four months in state prison.
On appeal, defendant contends the trial court erred in applying Penal Code section 654 by punishing him for both the assault offense and the firearm possession offense since he used the firearm during the assault. He also argues that given recent legislative amendments, the matter must be remanded to allow the trial court to exercise its discretion to strike the firearm and prior serious felony enhancements.
We conclude that the court properly sentenced defendant for both the assault and firearm possession offenses, and that the trial court was aware of, and implicitly declined to exercise, its discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) to strike the firearm enhancement. We shall remand the matter so the trial court may determine whether to exercise its discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) to strike the prior serious felony enhancement. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Around 1:00 p.m. on June 7, 2017, surveillance video from the Safari Inn, a motel in Chico, captured two men—one a heavyset Hispanic man wearing shorts, a white T-shirt, and white shoes, and the other a slender African-American man wearing a light blue T-shirt with a dark screen print on front, dark pants, and black shoes—leaving a motel room together. The men got into a gold or silver Saturn and left the motel. The man in the white shirt, later identified as Marcelino Juarez, was driving. The man in the light blue shirt, later identified as defendant, was in the front passenger seat. The Safari Inn is located on Esplanade not far from Cohasset Road .
The time stamp on the surveillance video was 10 minutes later than actual time.
A short time later, a witness heard a loud pop, followed by five or six more pops while she was working in a business on Cohasset Road near Esplanade. She saw a man in dark blue acid-washed jeans and a gray hoodie pass by the front window of her business toward Esplanade. She thought it odd he was wearing a sweatshirt because it was 110 degrees that day. The man's right hand was by his leg, and he was holding a gun. He raised the gun and fired several shots at another man who was running on the other side of the street toward Esplanade. That man was wearing blue jeans and a white shirt with a backpack over his shoulder.
Several other employees of businesses along Cohasset Road also heard gunshots that day. One gunshot went through the front door of an optometrist's office, and another shot shattered the back windshield of another store employee's car.
When the men reached Esplanade, they turned in opposite directions. The shooter turned north on Esplanade toward the Safari Inn, and the man in the white shirt turned south.
Several people called 911 to report the shooting. Based on the information received, the police dispatcher broadcasted that there was an active shooter in the area of Cohasset Road and Esplanade, and that the shooter was traveling up Esplanade toward the Safari Inn. Multiple officers responded to the Safari Inn, including Detectives Mark Bass and Cody Uebelhardt.
When they arrived, the detectives saw Juarez driving the gold Saturn in the motel parking lot; defendant was in the front passenger seat. Although earlier that day Juarez had been wearing a white shirt and defendant had been wearing a light blue shirt with a dark screen print on front, Juarez was now in a light blue shirt and defendant was wearing a white shirt.
Juarez was driving erratically, trying to weave around the responding officers. Several officers yelled at the vehicle to stop, but Juarez sped out of the parking lot and onto Esplanade. The police chased the Saturn, and eventually stopped the car by ramming it. Juarez remained in the driver's seat, but defendant fled from the passenger seat. He was subsequently apprehended and detained. A key to a room at the Safari Inn was found near defendant.
Surveillance video from the gas station was played for the jury. The video showed defendant wearing acid-washed jeans, a dark gray hooded jacket, and black running shoes walking through the gas station parking lot from Esplanade and toward Cohasset Road. A short time later, the video surveillance captured defendant chasing a man, later identified as P.W., up Cohasset toward Esplanade. As P.W. sprinted away, defendant crossed Cohasset (to the same side of the street as the gas station), and fired several shots at him. Defendant then ran back through the gas station parking lot, and turned north onto Esplanade headed toward the Safari Inn.
When police detained P.W. he did not have any weapons on him.
Surveillance video from another nearby business captured defendant running through a vacant field toward a trailer park that abuts the Safari Inn. While running, defendant removed his dark hooded jacket to reveal a teal blue shirt, and discarded the jacket on the ground. A resident of the trailer park saw an African-American man wearing a teal blue shirt with black writing and acid-washed jeans run by toward the Safari Inn.
After apprehending defendant and Juarez, police conducted field showups with several witnesses. The witnesses did not recognize Juarez, but each identified defendant as the man they had seen shooting a firearm near Cohasset and Esplanade earlier that day, or as the man seen running through the trailer park toward the Safari Inn. The witness who identified defendant as the African-American man in the teal blue shirt running towards the trailer park noted that he had changed clothes; Juarez was now wearing the teal blue shirt defendant had been wearing earlier.
Officers later recovered nine-millimeter Luger shell casings near the intersection of Cohasset Road and Esplanade. Stashed in a hole in the ground near the Safari Inn officers located a semiautomatic firearm with a magazine in it containing one live round of nine-millimeter ammunition. A firearm expert testified that the recovered shell casings were fired from the semiautomatic firearm recovered from the hole.
No useable fingerprints or DNA were found on the recovered firearm.
Officers also recovered defendant's hooded jacket from the vacant lot near the trailer park where he dropped it while fleeing. During a search of the Saturn, officers found a cardboard box containing acid-washed jeans, a digital scale, sandwich bags, and a large amount of cash. A bag of heroin was found on the ground beneath the passenger side of the car.
Defendant was charged with assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)—count 1), possession of heroin for sale (Health & Saf. Code, § 11351—count 2), felon in possession of a firearm (§ 29800, subd. (a)(1)—count 3), and prohibited person in possession of ammunition (§ 30305, subd. (a)(1)—count 4). For count 1, the information alleged defendant personally used a firearm (§ 12022.5, subds. (a) & (d)). It was further alleged that defendant had a prior serious felony conviction (§ 667, subd. (a)(1)), a prior strike (§ 667, subd. (d)), and a prior prison term (§ 667.5, subd. (b)).
Further undesignated statutory references are to the Penal Code.
The jury found defendant guilty of counts 1, 3, and 4, and found the personal gun use enhancement true; the jury deadlocked on count 2, and the court dismissed that count. The court found the prior strike, prior serious felony, and prior prison term allegations true.
The court sentenced defendant to an aggregate term of 34 years four months in state prison, calculated as follows: the upper term of nine years for count 1, doubled to 18 years for the strike prior, plus 10 years for the gun enhancement; a consecutive eight-month term (one-third the midterm) for count 3, doubled to one year four months; and one year four months for count 4, which the court stayed under section 654. An additional five years was imposed for the prior serious felony conviction enhancement; the court stayed a one-year term for the prior prison term enhancement. Defendant timely appealed.
DISCUSSION
I
Section 654Defendant contends that his sentence for being a felon in possession of a firearm must be stayed because he possessed the gun to carry out the assault with a firearm. According to him, the act of possessing the firearm is indivisible from the assault committed using the firearm and cannot be separately punished under section 654. He further argues that sentencing him for both crimes not only violated section 654, but also his right to due process under the Fourteenth Amendment. We disagree and find the record contains substantial evidence that defendant harbored two separate intents—to possess the firearm and to commit the assault—both of which are individually punishable.
Section 654, subdivision (a) 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. . . ." "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, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334.) "However, if the defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]' [Citations.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones I).) In determining whether section 654 applies, the trial court exercises its discretion, and its findings will not be reversed on appeal if there is any substantial evidence to support them. (Jones I, at p. 1143.)
People v. Correa, supra, 54 Cal.4th 331 disapproved of applying section 654 to multiple punishments for multiple violations of the same provision of law, concluding Neal's footnote to the contrary (Neal, supra, 55 Cal.2d at p. 18, fn. 1) was dictum. (Correa, at pp. 334, 344.) --------
Section 29800, subdivision (a)(1) forbids a person convicted of a felony from possessing a firearm. Whether a violation of this statute " ' "constitutes a divisible transaction from the offense in which [a defendant] employs the weapon depends upon the facts and evidence of each individual case." ' " (Jones I, supra, 103 Cal.App.4th at p. 1143 [discussing former § 12021, the predecessor statute to § 29800, subd. (a)(1); Stats. 2010, ch. 711, § 6].)
Where substantial evidence shows a felon possessed a firearm prior to committing a separate crime using that firearm, section 654 has been held not to bar punishment for both the felon-in-possession conviction and the primary crime for which the defendant is convicted. In Jones I, for example, the court held the defendant was properly punished for being a felon in possession of a firearm and for shooting at an inhabited dwelling where the only reasonable inference from the evidence was that the defendant possessed the gun in a car before shooting at the victim's house. (Jones I, supra, 103 Cal.App.4th at pp. 1142-1143, 1147-1148.) The court reasoned that "when an ex-felon commits a crime using a firearm, and arrives at the crime scene already in possession of the firearm, it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime." (Id. at p. 1141.)
In People v. Ratcliff (1990) 223 Cal.App.3d 1401, the court likewise held that the defendant could be punished for being a felon in possession of a firearm and for two robberies where his possession of the gun "continued before, during and after [the robberies]." (Id. at p. 1413.) In that case, the defendant robbed a victim with a gun, committed a second robbery with the gun an hour and a half later, and was arrested a half hour later while still in possession of the gun. (Id. at pp. 1404-1405, 1413.)
By contrast, section 654 has been held to bar multiple punishments where the evidence shows a felon fortuitously came into possession of a firearm when committing a separate crime. In People v. Bradford (1976) 17 Cal.3d 8, the Supreme Court held section 654 prohibited separate punishments for assault with a deadly weapon upon a peace officer and felon in possession of a firearm where the defendant wrested away the officer's gun and shot at the officer after defendant was stopped for speeding. (Bradford, at pp. 13, 22.) The defendant's possession of the officer's gun was not " 'antecedent and separate' " from his use of the firearm in assaulting the officer. (Ibid.) In People v. Venegas (1970) 10 Cal.App.3d 814, the court held section 654 barred multiple punishments for assault with a deadly weapon and felon in possession of a firearm convictions where the evidence suggested the defendant obtained the gun during a struggle in a bar moments before the shooting occurred. (Venegas, at pp. 820-821.)
In this case, the record shows defendant committed two separate acts, each punishable under section 654: (1) arming himself with a firearm, and (2) assaulting P.W. with the firearm while running down the street. Unlike in Bradford and Venegas, where there was no evidence the defendants possessed the firearms before committing other crimes, the jury could reasonably find that defendant possessed the firearm before shooting at P.W. while chasing him down the street. Substantial evidence supports this finding. Specifically, the evidence showed that shortly after leaving the Safari Inn on Esplanade, defendant walked through the gas station parking lot where he turned on Cohasset Road. Moments later, video surveillance showed defendant on the opposite side of Cohasset Road chasing P.W. back up Cohasset toward Esplanade. Defendant then crossed over Cohasset back to the side where the gas station was located and shot at the fleeing man several times across traffic before returning to the Safari Inn. Given the surveillance video and the relatively short time from when defendant was first seen on the video to when he shot at P.W., as well as the testimony of a witness who saw defendant carrying and firing a gun as he passed by her business on Cohasset Road, a justifiable inference from this evidence is that defendant possessed the gun when he left the Safari Inn and traveled to Cohasset Road on foot before he subsequently shot at P.W. while chasing him back toward Esplanade.
This case, then, is akin to Jones I, in which section 654 did not bar punishment for both crimes. (Jones I, supra, 103 Cal.App.4th at p. 1145 ["section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm."].) " 'Commission of a crime under [section 29800, subdivision (a)(1)] is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon. [Citations.]' " (Jones I, at p. 1146.)
While defendant argues that Ratcliff was wrongly decided, the Supreme Court in People v. Jones (2012) 54 Cal.4th 350 (Jones II) cited Jones I and expressly stated it was not calling the decision into doubt. (Jones II, at p. 358, fn. 3 [the court does "not intend to cast doubt on" Jones I and the cases discussed therein]; see also Jones I, supra, 103 Cal.App.4th at pp. 1144-1147 [extensively discussing Ratcliff].) In doing so, the court emphasized that a defendant convicted of being a felon in possession of a firearm and of committing a separate crime with that firearm presents a very different situation from when the defendant commits a single act that violates different provisions of law. (Jones I, at pp. 1145-1147.)
Finally, we note that a violation of section 29800, subdivision (a)(1) differs from other weapons charges. (People v. Ratcliff, supra, 223 Cal.App.3d at pp. 1409-1410 [discussing former § 12021].) Nonfelons can be charged with other firearms violations but not with a violation of section 29800. Thus, section 29800 raises unique policy considerations not present with other firearms violations. (Jones I, supra, 103 Cal.App.4th at p. 1145.) "The Legislature clearly intended, in enacting section 12021 [now section 29800], to minimize the danger to public safety arising from free access to firearms, a danger presumed to be greater when the person possessing the concealable firearm is an ex-felon. [Citation.]" (Jones I, at p. 1145; Jones II, 54 Cal.4th at 358, fn. 3 [acknowledging that the Supreme Court did not intend to cast doubt on Jones I].) Punishing defendant for possessing the firearm as a felon, and for later shooting at P.W. on a public street, was commensurate with his culpability, even if the offenses occurred relatively close in time.
Because defendant was properly sentenced for both crimes under section 654, defendant's Fourteenth Amendment due process rights were not violated.
II
Firearm Enhancement
Defendant contends that Senate Bill No. 620 (2017-2018 Reg Sess.) (Senate Bill 620), which gave trial courts discretion to strike various firearm enhancements, mandates that his case be remanded for resentencing to allow the trial court to exercise its newly granted discretion to strike the firearm enhancement imposed here. The People argue that remand is unwarranted because Senate Bill 620 was in effect when defendant was sentenced, and the trial court was aware of but chose not to exercise its discretion to strike the firearm enhancement under section 12022.5. After examining the record, we agree with the People.
As noted above, the court imposed a 10-year firearm enhancement term on count 1. (§ 12022.5, subd. (a).) While defendant argues that the court had no choice but to impose the enhancement when it sentenced defendant, the record shows otherwise.
The court sentenced defendant on January 10, 2018. Senate Bill 620 became effective January 1, 2018. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) Thus, when he was sentenced the trial court had the power "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss [a firearm] enhancement otherwise required to be imposed by [section 12022.5]." (§ 12022.5, subd. (c).)
The record further shows that defense counsel purposefully requested, in November 2017, a sentencing hearing after January 1, 2018—when Senate Bill 620 took effect—in order to argue that the court should exercise its discretion to strike the firearm enhancement. As defense counsel explained: "Currently the Court does not have any discretion under [section] 1385 related to the firearm enhancement. Effective January 1, 2018[,] new legislation will extend that discretion to the Court. So we're asking for a date after the first of the year." In taking a waiver of the 20-day time limit for sentencing, defense counsel explained to defendant that he wanted to set the sentencing hearing after January 1, 2018, when the new law went into effect that would allow the court discretion to strike the 10-year firearm enhancement, although counsel acknowledged that the court was not required to strike the firearm enhancement under the new law, but that it potentially could once Senate Bill 620 became effective. Defendant agreed, and the court found defendant had knowingly and intelligently waived the statutory deadline.
At the sentencing hearing on January 10, 2018, defense counsel again explained to the court that the reason for setting the hearing after January 1 was to give the court discretion to strike the firearm enhancement under the statutory amendments. Based on defendant's youth, defense counsel expressly "ask[ed] the Court to exercise that discretion." After considering defense counsel's arguments, the court implicitly declined to exercise its new discretion to strike the firearm enhancement by imposing the upper term of 10 years for the section 12022.5, subdivision (a) firearm enhancement. Under these circumstances, defendant is not entitled to a remand for resentencing under Senate Bill 620, as the trial court has already chosen not to exercise its discretion to strike the firearm enhancement it properly imposed.
III
Prior Serious Felony Conviction Enhancement
The Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) which, effective January 1, 2019, amended sections 667, subdivision (a) and 1385, subdivision (b) to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1, 2.) Under the pre-2019 versions of these statutes, the court was required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (Former § 1385, subd. (b).)
Defendant contends Senate Bill 1393 applies retroactively to his case and that the matter should be remanded for resentencing to allow the trial court an opportunity to strike his prior serious felony enhancement. The People properly concede the matter. (See People v. Jones (2019) 32 Cal.App.5th 267, 272 [finding Senate Bill 1393 applies retroactively to judgments not yet final on appeal].) Accordingly, we remand the matter to the trial court to determine whether to exercise its discretion to strike the five-year prior serious felony enhancement.
DISPOSITION
Defendant's convictions are affirmed. The matter is remanded to allow the trial court to exercise its discretion, if it so chooses, to strike the prior serious felony enhancement.
KRAUSE, J. We concur: HULL, Acting P. J. MURRAY, J.