People v. Pinkham CA2/8 ( 2015 )

Filed 9/22/15 P. v. Pinkham CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B257834
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA094761)
v.
BRADFORD ADAM PINKHAM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Tomson T. Ong, Judge. Affirmed in part, reversed part and remanded for resentencing.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General and Lance E. Winters, Assistant Attorney General, Mary Sanchez and Andrew S.
Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant Bradford Adam Pinkham was charged by the First Amended
Information with six counts1 consisting of various drugs and firearm-related offenses.
The People also alleged Pinkham was eligible for sentencing under California’s Three
Strikes law (armed with a firearm pursuant to Penal Code section 667,
subdivision (e)(2)(C)(iii)). He was ultimately sentenced to two consecutive life sentences
under the Three Strikes law. Pinkham does not challenge the imposition of the
indeterminate terms. Instead, he contends the trial court erred by failing to stay two of
the non-life sentences pursuant to Penal Code section 654;2 possession of a firearm by a
felon (count 4) and possession of ammunition (count 5). Respondent concedes the
possession of a firearm by a felon should have been stayed but not the possession of
ammunition. We agree with respondent the trial court properly imposed the sentence for
the possession of ammunition conviction. We therefore reverse only as to the sentence
imposed for the possession of a firearm by a felon and remand for a new sentencing
hearing.
1
Pinkham was charged in the First Amended Information as follows: Count 1 -
Health & Safety Code section 11379, subdivision (a) [Transportation of
Methamphetamine], Count 2 - Health & Safety Code section 11378 [Possession of
Methamphetamine], Count 3 - Health & Safety Code section 11350, subdivision (a)
[Possession of Heroin], Count 4 - Penal Code section 29800, subdivision (a)(1)
[Possession of a Firearm by a Felon with Two Priors], Count 5 - Penal Code section
30305, subdivision (a)(1) [Possession of Ammunition], and Count 6 - Health & Safety
Code section 11370.1, subdivision (a) [Possession of a Controlled Substance with
Firearm]. Pinkham was also charged with several special allegations: Penal Code section
12022, subdivision (c) [count 1]; two prior convictions under the Three Strikes law
pursuant to Penal Code section 667, subdivision (d) on all counts; and two prior
conviction under Health & Safety Code, section 11370.2, subdivision (c).
2
All future undesignated statutory references are to the Penal Code.
2
FACTS AND PROCEDURAL HISTORY
On the morning of February 11, 2013, Long Beach police officers pulled over a
pick-up truck driven by Pinkham.3 The officers searched Pinkham and found a .45
caliber semiautomatic handgun in his waistband. The gun was loaded with a fully loaded
magazine containing seven bullets with one round in the chamber. Inside the vehicle, the
officers found a second fully loaded seven-round magazine that fit Pinkham’s handgun in
a briefcase. Additionally, the officers found a hidden pouch that contained multiple
illegal drugs and drug paraphernalia: more than 24 grams of methamphetamine,
approximately 5 grams of heroin, 11 unused syringes, and a spoon encrusted with heroin
residue.
Pinkham was charged with six counts: (1) transporting methamphetamine;
(2) possession for sale of methamphetamine; (3) possession of heroin; (4) possession of
a firearm by a felon; (5) unlawful possession of ammunition; and (6) possession of
heroin while armed with a firearm. As for count 1, Pinkham was also charged with being
armed with a firearm. In addition, Pinkham was also charged with several prior
conviction enhancements: (1) Three Strikes law alleging two prior federal bank robbery
convictions, and (2) two prior convictions for drug sales offenses.
Count 2 was dismissed before trial. On May 30, 2014, the jury convicted Pinkham
of the five remaining counts. On July 23, 2014, the trial court applied the two strike
priors and imposed consecutive life terms totaling years to life (counts 1 and 6). The trial
court also imposed a consecutive determinate term of 13 years, 4 months consisting of a
principal term of 6 years on count 4 (high term of 3 years doubled by applying the strike
prior), a subordinate term of 16 months on count 5 (one third the middle term of 8 months
doubled by applying the strike prior), and an additional 6 years on the two prior
convictions for drug sales offenses (3 years each for Health & Saf. Code, § 11370.2,
3 Although the jury was not told the reason for the traffic stop, the record includes a
police report stating that Pinkham was pulled over for driving at 85 miles per hour on
Pacific Coast Highway.
3
subdivision (c) priors). Finally, on count 3, the trial court stayed the sentence pursuant to
section 654 without stating the term imposed.
Pinkham contends the trial court erred by not staying both sentences imposed on
counts 4 and 5 pursuant to section 654. He also contends that the trial court’s oral
pronouncement of judgment must be corrected because the trial court mistakenly
described the sentence as 123 years, plus 50 to life.
DISCUSSION
1. Penal Code Section 654
Section 654 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[.]” Thus, when a single act is charged as the basis for
multiple convictions, the defendant can be punished only once. (People v. Latimer
(1993) 5 Cal. 4th 1203, 1207-1208.)
Although section 654 prohibits multiple punishments for crimes arising from a
single act or indivisible course of conduct (People v. Britt (2004) 32 Cal. 4th 944, 951-
952), where a defendant entertains multiple criminal objectives independent of and not
merely incidental to each other, he may be punished for more than one crime even though
the violations share common acts or are parts of an otherwise indivisible course of
conduct. (People v. Blake (1998) 68 Cal. App. 4th 509, 512.)
A defendant’s intent or objective is determined from all the circumstances of the
case, and a trial court’s implied findings that a defendant harbored a separate intent and
objective for each offense will be upheld on appeal if they are supported by substantial
evidence. (People v. Blake, supra, 68 Cal.App.4th at p. 512; People v. Porter (1987)
194 Cal. App. 3d 34, 38.)
4
2. A Consecutive Sentence for Ammunition Possession Was Proper
Pinkham was prohibited from possessing ammunition because of his prior felony
convictions. (§ 30305, subd. (a)(1).) Relying on People v. Lopez (2004)
119 Cal. App. 4th 132 (Lopez), Pinkham argues the ammunition in the loaded firearm and
the additional ammunition kept in a separate loaded magazine were incidental to one
objective - to possess a loaded firearm.
Lopez is distinguishable. There, the officers arrested the defendant for resisting
arrest and found a loaded handgun in his pants pocket. He was charged, inter alia, with
possession of a firearm by a felon (§ 12021, subd. (e)) and illegal possession of
ammunition (§ 12316, subd. (b)(1)). He was also charged with a strike prior. At
sentencing, the defendant was sentenced to six years in state prison for unlawful
possession of a firearm. The trial court also imposed a concurrent six-year term for
unlawful possession of ammunition.
The Lopez court held the sentence for unlawful possession of ammunition loaded
in the gun should have been stayed because the defendant had only one intent: to possess
a loaded firearm. (Lopez, supra, 119 Cal.App.4th at p. 138.)
In reaching this conclusion, the Lopez court focused on the legislative objectives
behind the laws that barred felons from possessing guns or ammunition. “While
possession of an unloaded firearm alone can aid a person committing another crime,
possession of ammunition alone will not. The former may be used as a club and a victim
may be fearful that the firearm is loaded. While the latter may be thrown at a victim, it is
extremely unlikely that possession of bullets alone would scare anyone but the most
timid. In combination, however, the mixture is lethal and that is why criminals have a
penchant for loaded firearms. [¶] The Legislature has wisely declared that specified
people should not possess firearms and/or ammunition. The obvious legislative intent is
to prohibit these persons from combining firearms with ammunition. Appellant’s
obvious intent was to possess a loaded firearm.” (Lopez, supra, 119 Cal.App.4th at
p. 138.)
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Lopez reasoned permitting multiple punishment for unlawful possession of
ammunition loaded into a firearm would “parse the objectives too finely[.]” (Lopez,
supra, 119 Cal.App.4th at p. 138.) It also explained, “there may be instances when
multiple punishment is lawful for possession of a firearm and ammunition, . . . [but when]
all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is
present and section 654 precludes multiple punishment.” (Ibid., italics added.)
While a consecutive sentence cannot be based on the ammunition loaded in
Pinkham’s gun, Lopez does not extend to the ammunition found in his briefcase.
Unlike the defendant in Lopez, Pinkham did not have all of his ammunition loaded
into his gun. Instead, he separately possessed an extra ammunition magazine capable of
re-loading the gun. This shows a secondary intent - a choice to possess more ammunition
for use on a separate occasion. Furthermore, Pinkham’s extensive criminal history
reveals he is no stranger to criminality: he has previously committed two bank robberies,
two sales of controlled substances, a burglary, and making unlawful threats. Unlike the
defendant in Lopez who had a single intent to carry a loaded firearm, the trial court
reasonably could have found Pinkham possessed the additional, unloaded ammunition for
a separate intent: to re-load for future additional criminality. This implied finding
supported the trial court’s refusal to apply section 654 and its decision to impose a
consecutive sentence.4
People v. Correa (2012) 54 Cal. 4th 331, reached a similar result. There, the
defendant possessed seven firearms in a single weapons cache. He was convicted of
4 The trial court gave no reasons for imposing a consecutive sentence on the
ammunition possession count. When the trial court denied Pinkham’s request to sentence
his convictions for transporting methamphetamine and possession of heroin while armed
with a firearm as second, as opposed to third strikes, the trial court surmised it could only
speculate why Pinkham had been armed because there was no evidence he was on his
way “to commit another crime like a robbery or anything like that, . . .”
Pinkham contends this statement applies to the sentence on the ammunition
possession as well, meaning the trial court found no evidence he intended to commit
other crimes. We do not read the trial court’s statement so broadly. One need not be on
the way to commit another crime to intend possessing additional ammunition for future
criminality.
6
seven counts of violating possession of a firearm by a felon. He was sentenced
consecutively on the seven counts. The Supreme Court held the consecutive sentences
for each firearm possession were not barred under section 654 because “a felon who
possesses several firearms is more culpable than one who possesses a single weapon.”
(Id. at p. 342.) Otherwise, after acquiring one firearm, a felon could acquire an unlimited
number of guns with impunity if they were stashed in one place. (Id. at pp. 342-343.)
The Correa rationale applies with equal force here. A defendant who possesses a
separate set of ammunition to load the gun multiple times is more culpable than one who
possesses ammunition already loaded into the gun. The obvious difference is the greater
potential for additional damage the separately kept ammunition could inflict, if loaded
and used later. We conclude section 654 is not a bar to an imposition of sentence on the
ammunition possession conviction.
3. The Consecutive Sentence for Firearm Possession by a Felon Should Have Been
Stayed
Pinkham contends, and respondent concedes, the consecutive sentence imposed on
count 4 (possession of a firearm by a felon) should have been stayed since the same act
was used for punishment on count 6 (possession of a controlled substance while armed
with a firearm). (People v. Jones (2012) 54 Cal. 4th 350, 357.) We agree. Therefore, we
reverse as to the sentence on count 4 (possession of a firearm by a felon) and remand for
resentencing so the trial court may exercise its discretion to reconsider the entire
sentencing scheme, principally the decision on the appropriate sentence to be imposed on
count 5. (People v. Burbine (2003) 106 Cal. App. 4th 1250, 1258.)
4. Other Errors in the Judgment Are Left to the Trial Court on Remand
When the trial court pronounced the judgment, it incorrectly stated Pinkham was
sentenced to 123 years, plus 50 years to life, an error Pinkham asks us to correct.
Respondent contends we should correct the abstract of judgment because it omits certain
fines the court did impose – criminal conviction assessments (Gov. Code, § 70373,
7
subd. (a)(1)), court operations assessments (Pen. Code, § 1465.8, subd. (a)(1)), drug
program fees (Health & Saf. Code, § 11372.7, subd. (a)) – and two that it failed to
properly calculate – the penalty assessments under Penal Code section 1464,
subdivision (a)(1)) and Government Code section 76000, subdivision (a)(1).
Because we send this matter back for resentencing, we leave it to the trial court to
impose the correct penalties, assessments, and fines on remand.
DISPOSITION
The judgment is reversed on the consecutive sentence imposed for Pinkham’s
conviction on count 4 (possession of a firearm by a felon). The matter is remanded to the
trial court for resentencing so that it may exercise its discretion on the appropriate
sentence on count 5, as well as consideration of the proper fees, fines, penalties, or
assessments.
OHTA, J.*
WE CONCUR:
FLIER, ACTING P. J.
GRIMES, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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