PEOPLE v. JOHNSON

THE PEOPLE, Plaintiff and Respondent,
v.
RASHAD JOHNSON, Defendant and Appellant.

B212764.

Court of Appeals of California, Second Appellate District, Division Three.

February 4, 2010.

Gene D. Vorobyov, 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.

Not to be Published in the Official Reports

ALDRICH, J.

INTRODUCTION

A jury found defendant and appellant Rashad Johnson guilty of four counts of robbery, petty theft, possession of a firearm, and of possession of ammunition. The trial court sentenced defendant to, among others, concurrent sentences on the counts concerning firearms. On appeal, defendant contends that the court should have stayed, under Penal Code section 654,^{[ 1 ]} one of those counts. He also contends that the court imposed an improper fine. We remand for resentencing and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

Just before 7:00 p.m. on March 14, 2008, Jose Lopez, Eduardo Gonzalez, Edwin Urias and Edin Velasco were talking outside of Velasco's house. Two men, including defendant, approached them. Defendant pulled out a gun, cocked it and said, "`Fuck La Mirada.'" He told them to give him their money. At first nobody responded. Defendant racked the gun and shells fell out of the gun. Defendant fired his gun once toward a brick wall. Lopez gave defendant about $250. Defendant took Urias's cell phone and Gonzalez's gold chain. At trial, all four robbery victims identified defendant as the man who robbed them and fired the gun. Two live rounds and one spent casing were recovered from the scene. The spent casing and live rounds were the same caliber.

That same day, just after 7:00 p.m., Chan Oh was working at Virgil Farm Market, which was not far from Velasco's house. Defendant came into the store with another person, and Oh asked if he could help them find anything. Defendant said they didn't need help and they wouldn't steal anything. After about five minutes, defendant ran out of the store. Later that night, Oh reviewed the security video from that day. The video shows defendant putting food items into his pockets. He did not pay for the items.

II. Procedural background.

Trial was by jury. On September 26, 2008, the jury found defendant guilty of counts 1, 2, 3 and 4 for robbery of Lopez, Gonzalez, Urias and Velasco (§ 211); of count 5 for petty theft with a prior (§ 666); of count 6, possession of a firearm by a felon (§ 12021, subd. (a)(1)); and of count 7, possession of ammunition by a person prohibited from possessing a firearm (§ 12316, subd. (b)(1)). As to counts 1 through 4, the jury found true gun-use allegations under section 12022.53, subdivisions (b) and (c).^{[ 2 ]}

On November 24, 2008, the trial court sentenced defendant to the midterm of three years on count 1 and to 20 years for the gun use. The court sentenced him to a concurrent midterm on the other robbery counts—counts 2, 3 and 4. The court imposed a two-year sentence on count 5, but stayed it under section 654. The court sentenced defendant on counts 6 and 7 to concurrent midterm sentences of two years. This appeal followed.

DISCUSSION

I. Either count 6 or count 7 should be stayed under section 654.

The trial court imposed concurrent two-year sentences on counts 6 and 7. Defendant contends, and the Attorney General agrees, that one of the sentences should have been stayed under section 654 because defendant's intent and objective was the same in both crimes. We agree.

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." "Section 654 therefore `"precludes multiple punishment[s] for a single act or for a course of conduct comprising indivisible acts. `Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] `[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" [Citation.]'" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see also People v. Lewis (2008) 43 Cal.4th 415, 519.) But if the defendant harbored multiple or simultaneous objectives, independent of and not merely incidental to each other, he or she "`may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.]" (People v. Martin (2005) 133 Cal.App.4th 776, 781.) The statute's purpose is to ensure the defendant's punishment is commensurate with his or her liability. (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044 .)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]" (People v. Blake (1998) 68 Cal.App.4th 509, 512.) We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones, supra, at p. 1143.)

The defendant in People v. Lopez (2004) 119 Cal.App.4th 132, similar to defendant here, was convicted of unlawful possession of a firearm and of possession of ammunition where the ammunition was loaded into the firearm. The conviction was based on evidence that police found a loaded firearm in the defendant's pocket. The Court of Appeal reasoned that possession of an unloaded firearm can help a person commit a crime, but possession of ammunition alone will not. Under the facts of that case, the defendant's "obvious intent was to possess a loaded firearm" (id. at p. 138), and section 654 precluded multiple punishment.

Here too defendant's obvious intent was to possess a loaded firearm. The ammunition that was the subject of count 7 was loaded into the firearm and only fell to the ground when defendant racked the gun several times before firing it. Indeed, the prosecutor argued that the two bullets fell out when defendant racked the gun: "Well, as he is racking it bullets are coming out. And he fires it. So obviously, it is loaded, and he is aware of that ammunition." Defendant's single intent was to possess a loaded firearm; therefore, the trial court should have stayed the sentence on either count 6 or count 7.^{[ 3 ]}

Although the Attorney General agrees that the sentence on either count 6 or 7 should be stayed, he raises an additional point: the trial court should not have stayed the sentence on count 5 for petty theft from the grocery store. The Attorney General argues that the petty theft was unconnected to the robberies in intent and objective, although occurring close in time and proximity to them. The Attorney General supposes that the trial court did not mean to stay the sentence on count 5, but misspoke. He therefore asks us to modify the judgment to impose the sentence on count 5.

We do not think such a modification is appropriate, although we agree that the trial court misspoke. The counts at issue were counts 1 through 4 for robbery, count 5 for petty theft, count 6 for possession of a firearm, and count 7 for possession of ammunition. At the sentencing hearing, the court said: "As to counts 2, 3 and 4, the court will sentence the midterm concurrent to the sentencing imposed on count 1." Then, although the court had just pronounced sentence on count 4, the court said: "As to count 4, pursuant to [section] 654 of the Penal Code, the court selects the midterm of two years, but then stays that; . . . [¶] As to count 5, as well as count 6, the court elects to sentence concurrently to the midterm of two years as to each one of those charges as well." (Italics added.)

It appears that when the trial court referred to count 4, it meant to refer to count 5. And when it referred to count 5 "as well as [to] count 6," it meant to refer to counts 6 and 7. The minute order and abstract of judgment bears this interpretation out. Nonetheless, it is also possible that the court was confused in some other way. We therefore find that remand for resentencing is proper, with the admonition that one of the sentences on counts 6 and 7 should be stayed under section 654.

II. The court construction fine.

The court ordered defendant to pay "a court construction fine of $140, a theft fine of $10, and a court security fine of $75." Defendant contends that the $75 court security fine is improper.

It appears that the trial court again misspoke: it meant to impose a $140 court security fine under section 1465.8, subdivision (a)(1), which provides that a $20 fee shall be imposed on every conviction for a criminal offense, to ensure and maintain adequate funding for court security. Defendant here was convicted of seven criminal offenses; therefore it appears that when the court referred to a $140 court construction fine, it meant to refer to the court security fee under section 1465.8. The abstract of judgment supports that interpretation, because it shows that a $140 court security fee was imposed. If this is correct, then the question becomes what was the trial court referring to when it referenced a $75 fine. The Attorney General speculates that the court meant to impose the fine referenced in Government Code section 70372.^{[ 4 ]} Rather than speculate, we leave the matter to the trial court to clarify the fines and fees on remand. We also note that although the court imposed a $10 theft fine, apparently under section 1202.5,^{[ 5 ]} that fine is not referenced in the abstract of judgment. The fine should be included in any amended abstract of judgment.

DISPOSITION

The matter is remanded for resentencing; the judgment is otherwise affirmed.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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