People v. Dupree CA3 ( 2016 )

Filed 2/23/16 P. v. Dupree CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C076732
v. (Super. Ct. No. 11F02175)
ANDRE ANTONIO DUPREE,
Defendant and Appellant.
Following a physical altercation between defendant Andre Antonio Dupree and
two of three men who were standing on a patio in front of adjacent upstairs apartments,
defendant was told to leave and escorted down the stairs by the third man. As defendant
left, one of the men he had just fought called him a “bitch.” Defendant returned a few
minutes later with a handgun and told the man to call him that again. When the man did
so, defendant pulled the gun from his waistband and fired two rounds up the stairs.
1
Defendant was convicted by jury of three counts of assault with a firearm (Pen.
Code, § 245, subd. (a)(2); Counts One through Three),1 one count of discharging a
firearm in a grossly negligent manner (§ 246.3; Count Four), and two counts of
possession of a firearm by a convicted felon (former § 12021 (Stats. 2011, ch. 15,
§ 501.5), now § 29800; Counts Eight and Twelve). With respect to the first three counts,
the jury also found defendant personally used a firearm in the commission of these
offenses (§ 12022.5, subd. (a)).2 After a bifurcated court trial on an allegation defendant
was previously convicted of a serious felony offense within the meaning of the three
strikes law (§§ 667, subds. (b)-(i), 1170.12), the trial court found the allegation to be true.
Defendant unsuccessfully moved to strike this prior conviction pursuant to People v.
Superior Court (Romero) (1996) 13 Cal. 4th 497 (Romero), after which he was sentenced
to serve an aggregate determinate term of 21 years 4 months in state prison.
On appeal, defendant contends: (1) his conviction in Count Twelve for possession
of a firearm by a convicted felon must be reversed because, although he undoubtedly
possessed a firearm on the date he used it to assault three people and also possessed that
same firearm the following month when he was arrested, his continuous possession of the
same firearm over a single period of time constituted only one violation of former section
12021; (2) the trial court abused its discretion by declining to strike his prior strike
conviction under Romero; (3) the trial court also abused its discretion by imposing
consecutive sentences on Counts Two and Three; and (4) the minute order incorrectly
1 Undesignated statutory references are to the Penal Code.
2 The jury found defendant not guilty of crimes alleged in Counts Five through
Seven (involving an incident separate from the crimes committed in Counts One through
Four) and could not reach a unanimous verdict as to crimes alleged in Counts Nine
through Eleven (involving another separate incident), resulting in a mistrial as to these
latter counts.
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indicates the jury found defendant guilty of Count Seven and must be corrected to reflect
the jury’s actual verdict of not guilty as to that count.
We agree there is insufficient evidence to support defendant’s conviction in Count
Twelve for possession of a firearm by a convicted felon and reverse the judgment as to
this conviction. Defendant’s assertions of sentencing error fail. The trial court did not
abuse its discretion by declining to strike defendant’s prior strike conviction under
Romero or by imposing consecutive sentences on Counts Two and Three. The minute
order does, however, incorrectly reflect a conviction as to Count Seven that we order
corrected. In all other respects, we affirm the judgment.
FACTS
In February 2011, Carlrissiane Dennis and Tyrone Hederington lived in adjacent
upstairs apartments near the North Highlands area of Sacramento. At around 9:00 p.m.,
Dennis and Hederington were “hanging out” on the patio in front of their apartments with
another man, Hakeem Blake. The three men were drinking beer while listening to music
and “rapping freestyle.” Defendant, who was friendly with Hederington, arrived at some
point and joined the three on the patio. Tension quickly developed between defendant
and Blake. Dennis, Hederington, and Blake decided to walk to a nearby store to pick up
a bottle of brandy. Defendant went somewhere else while they did so, but came back
shortly after they returned with the bottle. After the men took a few shots of brandy, the
tension between defendant and Blake resumed, confrontational words were exchanged,
and Dennis told defendant to leave. Defendant did not leave. Instead, he and Blake
began to “push and shove” each other, which turned into a wrestling match and fist fight.
Hederington broke up the fight. Dennis again told defendant to leave, which led to
another fist fight, this time between defendant and Dennis. Hederington broke up this
fight as well and escorted defendant down the stairs. Defendant and Dennis then
exchanged heated words as defendant stood at the bottom of the stairs, which culminated
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in Dennis telling defendant he was “acting like a bitch.” Defendant said, “okay” and left.
Hederington then rejoined Dennis and Blake on the patio.
Defendant returned a few minutes later and shouted something up the stairs.
Dennis again told defendant to leave and again said he was “acting like a bitch.”
Defendant responded, “call me a bitch again.” Dennis repeated, “you’re acting like a
bitch.” Defendant then pulled a handgun from his waistband and fired two shots up the
stairs before leaving the scene. Seeing the muzzle flash from the first shot, Dennis dove
into the open door of Hederington’s apartment. Hederington and Blake followed him
inside. Hederington’s wife and children were home at the time. Dennis’s children and
sister were also home, inside Dennis’s apartment, when the shots were fired. One of the
bullets lodged in the wall next to Dennis’s front door. Fortunately, no one was hit by
either bullet.
Defendant was arrested the following month. He was living with a friend, Adam
Zeissler, in the same apartment complex and kept a handgun concealed in a pair of boots
in a closet. Following defendant’s arrest, Zeissler consented to a search of the apartment
and revealed the location of the gun.
Based on the shooting incident, defendant was convicted of three counts of assault
with a firearm, with three personal use of a firearm enhancement allegations found true
(Counts One through Three), one count of discharging a firearm in a grossly negligent
manner (Count Four), and one count of possession of a firearm by a convicted felon
(Count Eight). He was convicted of a second count of possession of a firearm by a
convicted felon (Count Twelve) based on his possession of the same firearm the day he
was arrested.
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DISCUSSION
I
Sufficiency of the Evidence to Support Count Twelve
Defendant contends his conviction in Count Twelve for possession of a firearm by
a convicted felon must be reversed because, while he possessed a firearm on the date he
used it to assault three people and also possessed that same firearm the following month
when he was arrested, his continuous possession of the same firearm over a single period
of time constituted only one violation of former section 12021. The Attorney General
concedes the point. We accept the concession and reverse defendant’s conviction in
Count Twelve.
Former section 12021, subdivision (a)(1), provided in relevant part: “Any person
who has been convicted of a felony . . . and who owns, purchases, receives, or has in his
or her possession or under his or her custody or control any firearm is guilty of a felony.”
(See People v. Mason (2014) 232 Cal. App. 4th 355, 365 (Mason); see also § 29800
[continuing former section 12021 without substantive change] Stats. 2010, ch. 711, § 6.)
The purpose of this prohibition “is to protect the public by denying firearms to felons,
who are considered more likely to commit crimes with them.” (People v. Correa (2012)
54 Cal. 4th 331, 344.)
In Mason, supra, 232 Cal. App. 4th 355, the defendant was convicted of four counts
of violating former section 12021. He was proven to have possessed the same firearm on
four separate dates, corresponding to the dates of three shootings and the date the firearm
was recovered after he dropped it while fleeing from police. (Id. at pp. 363-364.) The
Court of Appeal reversed three of the four convictions because “there was no evidence
that Mason’s possession of the firearm was anything but continuous over the period
encompassing the four dates.” (Id. at p. 366.) The court explained: “The Supreme Court
has recognized that possession of a firearm by a felon is a continuing offense.
[Citations.] . . . [¶] ‘In the case of continuing offenses, only one violation occurs even
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though the proscribed conduct may extend over [an] indefinite period.’ [Citations.]
Thus, our Supreme Court recognized more than 70 years ago that the Deadly Weapons
Act, from which former section 12021 is derived, ‘does not provide that it is an offense
for each day that the ex-convict is in possession of the weapon. . . .’ ” (Id. at p. 365,
quoting People v. Warren (1940) 16 Cal. 2d 103, 112; see also Wright v. Superior Court
(1997) 15 Cal. 4th 521, 525, fn. 1.)
Here, too, defendant was convicted of multiple counts of violating former section
12021 based on his possession of the same firearm on separate dates. As in Mason,
supra, 232 Cal. App. 4th 355 there is no evidence in the record establishing his possession
of the firearm was anything but continuous between the time he used it to assault the
three men on the patio and the time it was recovered from Zeissler’s apartment. We must
therefore, as the Attorney General concedes, reverse one of these convictions.
II
Denial of Defendant’s Motion to Strike His Prior Conviction
Defendant claims the trial court abused its discretion by declining to strike his
prior strike conviction under Romero. We disagree.
Section 1385, subdivision (a), provides that a “judge or magistrate may, either of
his or her own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.” In Romero, our Supreme Court
held a trial court may utilize section 1385, subdivision (a), to strike or vacate a prior
strike conviction for purposes of sentencing under the three strikes law, “subject,
however, to strict compliance with the provisions of section 1385 and to review for abuse
of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Similarly, a trial court’s “failure to
dismiss or strike a prior conviction allegation is subject to review under the deferential
abuse of discretion standard.” (People v. Carmony (2004) 33 Cal. 4th 367, 374
(Carmony).)
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“‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do
other sentencing laws, but establishes a sentencing requirement to be applied in every
case where the defendant has at least one qualifying strike, unless the sentencing court
“conclud[es] that an exception to the scheme should be made because, for articulable
reasons which can withstand scrutiny for abuse, this defendant should be treated as
though he [or she] actually fell outside the Three Strikes scheme.”’ [Citation.]”
(Carmony, supra, 33 Cal.4th at p. 377.) “[T]he court in question must consider whether,
in light of the nature and circumstances of his [or her] present felonies and prior serious
and/or violent felony convictions, and the particulars of his [or her] background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he [or she] had not previously
been convicted of one or more serious and/or violent felonies.” (People v. Williams
(1998) 17 Cal. 4th 148, 161.) Thus, the three strikes law “creates a strong presumption
that any sentence that conforms to these sentencing norms is both rational and proper.”
(Carmony, supra, 33 Cal.4th at p. 378.) This presumption will be rebutted only in an
“extraordinary case―where the relevant factors described in Williams, supra, 17 Cal. 4th
148, manifestly support the striking of a prior conviction and no reasonable minds could
differ.” (Ibid.)
Here, the trial court indicated it “received and considered” defendant’s Romero
motion, invited defense counsel to offer additional argument on the motion, and when
further argument was declined, ruled as follows: “Having presided over this trial, as well
as having reviewed the convictions that are certainly attributable to [defendant], the Court
declines to exercise its discretion to strike the prior conviction. The Court finds that
defendant falls within the provisions of allowing that conviction to stand to enhance the
sentence in this case.” While the trial court did not discuss each of the Williams factors
in ruling on the motion, we must presume the trial court considered all of the relevant
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factors in the absence of an affirmative showing to the contrary. (People v. Myers (1999)
69 Cal. App. 4th 305, 310.)
Defendant’s present felony offenses for assault with a firearm, during the
commission of which defendant personally used a firearm, are serious and violent
offenses. (See §§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8).) Defendant’s prior strike
offense was a 1991 attempted robbery in which he pointed a shotgun at the victim and
threatened to “blow [his] head off,” also a serious and violent offense. With respect to
defendant’s background, character, and prospects, we note that prior to the strike offense,
he has juvenile adjudications in 1988 for theft by taking, and in 1990 for driving under
the influence. After the strike offense, which was committed in Maryland, and for which
defendant was granted probation, he violated the probation terms by possessing a
controlled substance with intent to distribute. Between the prior strike offense and 2008,
defendant was convicted in Georgia of four misdemeanor counts of driving under the
influence, one misdemeanor count of cruelty to animals, and one felony count of cruelty
to children. Finally, between 2010 and 2011, defendant was convicted in Florida of two
felony counts involving forgery and fraud. Thus, including the present offenses,
defendant’s criminal behavior spans over two decades and includes crimes committed in
four states. Far from being outside the spirit of the three strikes law, defendant is
precisely the type of career offender for whom the law was written.
Nevertheless, defendant argues the trial court abused its discretion in declining to
strike his prior strike conviction, relying primarily on People v. Bishop (1997) 56
Cal. App. 4th 1245 (Bishop). Such reliance is misplaced. The defendant in Bishop was
convicted of petty theft with a prior theft-related conviction and was found to have been
convicted of three prior strike convictions. He also had several convictions between the
strike offenses and the current offense. The trial court dismissed two of the strikes and
sentenced defendant to serve 12 years in state prison as a one-strike offender. The trial
court noted the strikes were remote in time (17 to 20 years old), the current offense was
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nonviolent, and the penalty of 12 years would keep the defendant in prison for a
significant period of time. (Id. at pp. 1248-1249.) The Court of Appeal affirmed,
commenting: “Bishop is not a worthy member of society. . . . While the People and
perhaps even this court may be of the opinion that Bishop appears undeserving of
leniency, the paramount consideration is not what the prosecution, defense or appellate
court might conclude. Rather, what counts is what the trial court in this case concluded,
as expressed by the reasons it stated under section 1385, subdivision (a). On this record,
we cannot say that the trial court’s decision to dismiss two of Bishop’s strikes in
furtherance of justice constituted an abuse of discretion.” (Id. at p. 1251.)
This case is not Bishop. First, unlike Bishop, defendant’s present offenses are both
serious and violent felony offenses. While defendant attempts to mitigate the seriousness
of these crimes by noting “no one was hurt,” this fortuitous circumstance does not render
defendant’s crimes remotely comparable to the petty theft at issue in Bishop. Defendant
fired two shots at three men standing on a patio in front of two apartments. He did so
because one of the men called him a “bitch.” Anyone on that patio could have been
killed. Children were also present inside each of the apartments. Defendant’s actions
placed their lives in danger as well. Second, while we accept defendant’s remaining
arguments, i.e., his prior strike offense was committed over 20 years ago when he was a
young man of 18 years, he was granted probation for the strike offense, his childhood
was “extremely dysfunctional,” including physical abuse suffered at the hands of his
father, and he “has a speech impediment and reduced cognitive mental skills,” we cannot
conclude the trial court abused its discretion by declining to strike defendant’s prior strike
conviction for these reasons. Finally, defendant ignores the different posture in which
Bishop was decided. There, the Court of Appeal concluded the trial court did not abuse
its discretion by striking two of the defendant’s prior strike convictions despite the
appellate court’s conclusion he was “not a worthy member of society” and was perhaps
“undeserving of leniency.” (Bishop, supra, 56 Cal.App.4th at p. 1251.) But it would be
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another matter entirely to conclude, as defendant asks us to do, the trial court in this case
abused its discretion by declining to strike his prior strike conviction, especially since
defendant appears to be less deserving of leniency than the defendant in Bishop.
We conclude the trial court did not abuse its discretion by declining to strike
defendant’s prior strike conviction under Romero, supra, 13 Cal. 4th 497.
III
Decision to Impose Consecutive Sentences on Counts Two and Three
Defendant also asserts the trial court abused its discretion by imposing consecutive
sentences on Counts Two and Three based on there being multiple victims because “there
was only one short outburst of violence” and “there is no evidence that the gun was ever
pointed at [Hederington] or [Blake].” He is mistaken.
“Section 669 grants the trial court broad discretion to impose consecutive
sentences when a person is convicted of two or more crimes.” (People v. Shaw (2004)
122 Cal. App. 4th 453, 458; see also Cal. Rules of Court, rule 4.425.3) “Only a single
aggravating factor is required to impose . . . a consecutive sentence.” (People v. Osband
(1996) 13 Cal. 4th 622, 728-729.)
3 This rule provides: “Criteria affecting the decision to impose consecutive rather
than concurrent sentences include: [¶] (a) Criteria relating to crimes [¶] Facts relating
to the crimes, including whether or not: [¶] (1) The crimes and their objectives were
predominantly independent of each other; [¶] (2) The crimes involved separate acts of
violence or threats of violence; or [¶] (3) The crimes were committed at different times or
separate places, rather than being committed so closely in time and place as to indicate a
single period of aberrant behavior. [¶] (b) Other criteria and limitations [¶] Any
circumstances in aggravation or mitigation may be considered in deciding whether to
impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to
impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant’s prison
sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose
consecutive sentences.” (Cal. Rules of Court, rule 4.425.)
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In People v. Leon (2010) 181 Cal. App. 4th 452, 468, the Court of Appeal affirmed
the defendant’s convictions of one count of first degree murder and one count of
attempted murder based on his act of firing a single shot into the back of a car containing
both victims, the murder victim being seated directly behind the attempted murder victim,
and further affirmed the trial court’s imposition of consecutive sentences on the two
counts. With respect to consecutive sentences, the court explained: “A trial court has
discretion to impose consecutive sentences where, as here, a single act has resulted in
crimes against multiple victims. For example, in People v. Valenzuela (1995) 40
Cal. App. 4th 358, the appellate court upheld the imposition of consecutive sentences on
two counts of gross vehicular manslaughter. Both counts were based on the defendant’s
single act of driving a motor vehicle while intoxicated and entering an intersection
against a red light. The two victims were killed when appellant broadsided the vehicle in
which they had been traveling. The court reasoned: ‘[Defendant’s] drunk driving
resulted in the death of two people, not just one. The trial court should have the
discretion to make [defendant] “pay” for both deaths.’ [Citation.] [¶] Like the trial court
in Valenzuela, the trial court here also did not abuse its discretion in imposing
consecutive sentences even though the murder and attempted murder convictions were
based on appellant’s single act of firing his revolver at the Camry.” (Leon, supra, 181
Cal.App.4th at p. 468.)
Here, defendant does not dispute his actions in firing two shots at the men on the
patio rendered him criminally liable for three assaults with a firearm. Thus, even
assuming firing these two shots amounted to a single act, as in Leon, this single act of
violence resulted in crimes committed against multiple victims. This aggravating factor
alone justifies the trial court’s decision to impose consecutive sentences.
Nor does it matter there is no evidence defendant was aiming specifically at
Hederington or Blake because “assault does not require a specific intent to cause injury,”
but “only requires an intentional act and actual knowledge of those facts sufficient to
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establish that the act by its nature will probably and directly result in the application of
physical force against another.” (People v. Williams (2001) 26 Cal. 4th 779, 790.)
“Although the defendant must intentionally engage in conduct that will likely produce
injurious consequences, the prosecution need not prove a specific intent to inflict a
particular harm. . . . The evidence must only demonstrate that the defendant willfully or
purposefully attempted a ‘violent injury’ or ‘the least touching,’ i.e., ‘any wrongful act
committed by means of physical force against the person of another.’ [Citation.] In other
words, ‘[t]he use of the described force is what counts, not the intent with which same is
employed.’ [Citation.] Because the offensive or dangerous character of the defendant’s
conduct, by virtue of its nature, contemplates such injury, a general criminal intent to
commit the act suffices to establish the requisite mental state. [Citations.]” (People v.
Colantuono (1994) 7 Cal. 4th 206, 214-215.) Again, defendant does not claim on appeal
his violent conduct did not render him liable for three assaults with a firearm. Because
there were three separate victims, the trial court did not abuse its discretion in imposing
consecutive sentences.
IV
Correction of the Minute Order
Finally, as the Attorney General concedes, the minute order incorrectly indicates
the jury found defendant guilty of Count Seven and must be corrected to reflect the jury’s
actual verdict of not guilty as to that count. (See, e.g., People v. Mitchell (2001) 26
Cal. 4th 181, 185.) We order the correction.
DISPOSITION
The judgment is reversed with respect to Count Twelve and the trial court is
directed to dismiss this count, prepare an amended abstract of judgment so stating, and
forward a certified copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed. The trial
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court is further directed to issue a corrected minute order reflecting the jury’s verdict of
not guilty as to Count Seven.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
MURRAY, J.
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