PEOPLE v. SANDERS

Appellant's Petition for Review

Cal.March 11, 2011

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KOREWARE GrPierdenss ARE £5 NS BWODeArie WA TEROGERES HRVAw Ws FN We RERADE Be RAK SAKKeaASRAK VKARIRS RAB | CASKYad AT SKEANS WAKE SA YAR eet. SQM KRROLRNS GAKGEANS Greys SAR REGAL CYER ARES TRORATATON POSS CORKAAL EXEL WE \Lenreng, _XArecore Lk TOCRUS DEECAE BAKE BAS NK Been Cik [Citation.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) The corpus delicti “rule is intended to ensure that one will notbe falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]” (Alvarez, supra, 27 Cal.4th at p. 1169.) “[TJhe rule in California has been that one cannot be convicted whenthere is no proof a crime occurred other thanhis or her ownearlier utterances indicating a predisposition or purpose to commit it.” (/d. at p. 1171.) The corpusdelicti rule is not onerous. In California,it only “require[s] some independentproofof the corpusdelicti itself, i.e., injury, damage, or loss by a criminal agency. [Citation.]” (Alvarez, supra, 27 Cal. 4th at p. 1169,fn. 3.) “A slight or prima facie showing, permitting the reasonable inferencethat a crime was committed,is sufficient. [Citations.]” (People v. Alcala (1984) 36 Cal.3d 604, 624-625.) “The independent proofmay be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanationis also plausible. [Citations.] There is no requirementof independent evidence ‘of every physicalact constituting an element of an offense,’ so long as there is someslight or prima facie showingofinjury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on allissues. (Citations.]” (Alvarez, supra, 27 Cal.4th at p. 1171.) The corpusdelicti rule applies in various contexts. “[A]ppellate courts have entertained direct claims that a conviction cannot stand becausethe trial record lacks independent evidenceofthe corpusdelicti. [Citations.]” (Alvarez, supra, 27 Cal.4th atp. 1170.) When such a claim is raised, the entire record is reviewed to determineifit contains some evidence, independentofthe defendant’s extrajudicial statements, from which one could reasonably infer that a crime was committed. (See, e.g., People v. Morales (1989) 48 Cal.3d 527, 553; People v. Wright (1990) 52 Cal.3d 367, 403-405.) B. The evidence adequately establishes the corpusdelicti of the charged crimes. Appellant contends all four convictions must be reversed because “no sufficient prima facie showing was made regarding the elements ofpossession (custody or control) and knowledge.” Weare not convinced. Whena defendantis charged with violating section 12021, the corpusdelicti rule requires slight proofof “(1) conviction of a felony and (2) ownership or possession of a firearm. [Citation.]” (People v. Hilliard (1963) 221 Cal.App.2d 719, 724; § 12021, subd. (a)(1).) Section 12021.1 adds the requirementthat the defendant has been previously @ convicted ofa specified violent felony. (§ 12021.1, subd. (b).) @ Appellant acknowledgesthat he stipulated to having suffered three prior felony convictions of moral turpitude® Therefore, we must determine only whetherthereis slight or minimal evidence supporting a reasonable inference that appellant knowingly possessed the shotguns. The record contains such evidence. “Possession may beactualor constructive. Actual possession meansthe object is in the defendant’s immediate possession or control. A defendant has actual possession when he himselfhas the weapon. Constructive possession meansthe objectis not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. [Citation.] Possession of a weapon may be proven circumstantially, and possession for even a limited time and purpose maybesufficient. (Citation.]” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) _.-” Constructive “possession may be imputed whenthe contraband is foundin a /. place which is immediately and exclusively accessible to the accused and subject to his \ dominion and control, or to the joint dominion and control of the accused and another.’ \ {Gitation.|”(People v. Johnson (1984) 138 CalApp.34 850, 854.) It is undisputed that Tamulived at the Bakersfield apartment. Shetold officers she married appellant in December 2008. Appellant possessed a key to the front door of the Bakersfield apartment.’ There were two photographsof appellant in the Bakersfield apartment.one wasin the living room and the other was in the master bedroom. A duffle bag containing men’s clothing and paperwork addressed to appellant was foundin the apartment This evidenceis sufficient to permit a reasonable inference that appellant resided at the Bakersfield apartment with his wife.” Twoshotguns were foundinside the master bedroom closet of the Bakersfield apartment. The closet’s door was open and shotguns werein plain view. Although one was covered,it wasstill recognizable to officers as a firearm. Officer Yoontestified, “They were partially wrapped up in a blanket leaned up againstthe closet. I could see the tubes of the shotguns and butt stalk of one of the shotguns.” The duffle bag, which contained paperwork addressed to appellant, was found resting on the floor of the master bedroom.A photograph of appellant and Tamu was foundin the master bedroom. This evidenceis sufficient to support a prima facie inference that appellant used the master bedroom,including the master bedroom closet, and he possessed and had knowledge of the shotguns. | Wetherefore conclude the corpusdelicti rule wassatisfied; this challenge to the sufficiency of the evidencefails.” II. Section 654 Applies to Count 3. The probation report recommended a term of 25-years-to-life be imposed for count 3 (possession of the 12-gauge shotgun). It also recommendedthis term run 2 Respondent contends this issue was forfeited by the absence of an objection on this ground below. Our Supreme Court hasnot “suggested that an evidentiary objection at trial is a prerequisite to raising instructional and sufficiency claims on appeal.” (Alvarez, supra, 27 Cal.4th at p. 1172, fn. 8.) However,a split has developed in the appellate courts on the question whether“the defendant musteither give the prosecution trial notice of his insistence on independentproofor forfeit the benefitof the independent-proofrule entirely. [Citations.]” (Zbid.) Since we have determinedthe corpus delicti rule wassatisfied, it is unnecessary to address the question offorfeiture. The point is moot. concurrently with the term imposed for count 1 (possession of the 20-gauge shotgun). The court sentenced appellant in accordance with both of these recommendations. It did not proffer any reason for the decision to run count 3 concurrently with countI. Appellant argues the concurrent term imposed for count 3 must be stayed pursuant to section 654. Weagree. “Section 654 precludes multiple punishmentfor a single actor indivisible course of conduct punishable under more than one criminalstatute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends onthe ‘intent and objective’ of the actor. [Citation.] If all of the offenses are incidentto one objective, the court may punish the defendantfor any oneofthe offenses, but not more than one. [Citation.] If, however, the defendant had 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 commonacts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) Whether the defendant possessed multiple objectives and intents within the meaning of section 654 is a factual question. Wewill uphold a trial court’s explicit or implicit findingif it is supported by substantial evidence. Thetrial court’s determination is viewed in the light most favorable to the respondent and we presumethe existence of every fact that could reasonably be deduced from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The absence of a timely objection during sentencing does not result in forfeiture of a section 654 claim. (People v. Le (2006) 136 Cal.App.4th 925, 931.) In People v. Kirk (1989) 211 Cal.App.3d 58 (Kirk), the appellate court held that the defendant could not be convicted of multiple counts of unlawfully possessing a sawed-off shotgun under former section 12020 for his contemporaneouspossession of two shotguns, which were foundatthe same time and place. (Kirk, supra, atp. 65.) In light of this holding,it did not consider defendant’s contention that section 654 barred punishment for more than oneviolation of section 12020. (Kirk, supra, at p. 05.) The Legislature subsequently added subdivision (k) to section 12001, which provides that for the purposesof, inter alia, sections 12021 and 12021.1, “nonwithstandingthe fact that the term ‘any firearm’ may be usedin those sections, each firearm or the frameor receiver of the same shall constitute a distinct and separate offense under those sections.” The question whether a felon may beseparately punished for possession of multiple firearms is currently pending in our Supreme Court in the context of whether the trial court properly imposed concurrent sentences for being an ex-felon in possession ofa firearm and carrying a loaded, concealed weapon. (People v. Jones, review granted Mar. 24, 2010, $179552; see also People v. Correa, review granted Jul. 9, 2008, S163273, formerly published at 161 Cal.App.4th 980, submission vacated June 11, 2010, so the matter may be considered in conjunction with People v. Jones, $179552 [review was granted in People v. Correa to consider if defendant was properly sentenced on multiple counts of being a felon in possession ofa firearm where he was discovered in a closet with a cache of weapons].) Thus, appellant’s unlawful possession of each shotgun constitutes “a distinct and separate offense.” (§ 12001, subd. (k).) Yet, separate sentences must nonetheless be supported by substantial evidence of independent criminal objectives. (§ 654; Peoplev. Cleveland, supra, 87 Cal.App.4th at pp. 267-268.) Here, the record lacks such evidence. The two shotguns were found nextto each other in the master bedroom closet. The record does not contain any proof that appellant intended to use these weaponsin different crimesor to sell them to different people. There is also no proofthat appellant obtained the shotguns in separate transactions. There is no evidence the two weapons were previously used in different crimes. “In sum, the record lacks evidence from which thecourt couldhave inferredthat appellant had a different criminal objective or intent for each shotgun. Therefore, we conclude section 654 precludes imposition of separate punishmentfor count 3 andthe concurrent term imposed for this count mustbe stayed. Ill. Counts 2 and 4 are Necessarily Included Offenses of Counts 1 and 3. Finally, appellant contends counts 2 and 4 must be reversed becausethe violations of section 12021.1, subdivision(a), are lesser included offenses of the violations of section 12021, subdivision (a). Respondent concedes this point and weacceptthe concession as properly made. A defendant cannot be convicted of both a greater offense and a necessarily included lesser offense. (People v. Ortega (1998) 19 Cal.4th 686, 692.) “We employ twoalternative tests to determine whethera lesser offenseis necessarily included in a greater offense. Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describesthe greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime. [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 25-26.) We agree with respondent that because section 12021, subdivision (a), prohibits a person convicted of a felony from possessing a firearm, andsection 12021.1, subdivision (a), prohibits a person convicted ofa violent felony from possessing a firearm, section 12021.1 is a lesser included offense of section 12021 under certain circumstances. Since someorall of appellant’s prior convictions are for violent felonies listed in section 12021.1, under the facts of the case when appellant possessed the shotguns he necessarily violated both section 12021 and section 12021.1. Therefore, the convictions on counts 2 and 4 are lesser included offenses of counts 1 and 3, and they must be reversed for this reason. 10. DISPOSITION The convictions on counts 2 and 4 are reversed and the sentences imposed and stayed for these counts are vacated. The sentence imposed for count 3 is ordered to be stayed pursuant to Penal Code section 654. In all other respects, the judgmentis affirmed. The superior court is ordered to prepare an amendedabstract ofjudgment and to transmit a copy ofit to the appropriate authorities. LEVY,J. WE CONCUR: WISEMAN,Acting P.J. CORNELL,J. 11. Oaack ak Scanct® 1 DERLENMK HEALER RAK 4 RRL REL RK NG Gk NO epee ok Met Kk CeGsmek ck RE Gade tk Cikatick DASe & ZAM XO RE GodheadCRG Ck NOcctad. 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