People v. West CA2/6 ( 2014 )

Filed 1/23/14 P. v. West CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B243448
(Super. Ct. No. 1363298)
Plaintiff and Respondent, (Santa Barbara County)
v.
STANLEY ROBERT WEST,
Defendant and Appellant.
Stanley Robert West appeals his conviction, by jury, of numerous
methamphetamine and firearm possession offenses. He contends the trial court should
have stayed, pursuant to Penal Code section 6541, a concurrent term of three years
imposed for one of the firearm offenses, and that the trial court improperly used the
same factors to impose an upper term sentence and to impose consecutive terms. We
affirm.
Facts
On three separate occasions, appellant sold methamphetamine to a
confidential informant who was working with the Lompoc police department. Based
on those sales, police officers obtained a search warrant for appellant's residence.
When they executed the warrant, they discovered a .380 caliber handgun and a .22
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All statutory references are to the Penal Code unless otherwise stated.
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caliber rifle with a modified grip and a barrel measuring only 13 1/2 inches. Appellant
was arrested and released on bail. While on bail, he was found to be under the
influence of methamphetamine and in possession of the same substance.
Appellant was convicted of three felonies relating to the purchases made
by the confidential informant: counts 1 and 2, sale and/or transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and count 3, sale of a
substitute substance. (Health & Saf. Code, § 11382, subd. (a).) Based on items
discovered during the search of his residence, appellant was convicted of count 6,
possession of a firearm by a felon, e.g., the handgun and the short-barreled rifle
(§ 29800, subd. (a), formerly § 12021, subd. (a)); and count 7, possession of a short-
barreled rifle. (§ 33215, formerly § 12020, subd. (a)(1).) Appellant's final three
convictions relate to conduct that occurred after his release on bail: count 8, sale or
transportation of methamphetamine with an on-bail enhancement (Health & Saf. Code,
§ 11379, subd. (a); § 12022.1, subd. (b)); count 9, possession of methamphetamine
with an on-bail enhancement (Health & Saf. Code, § 11378); and count 11, a
misdemeanor count of being under the influence of methamphetamine (Health & Saf.
Code, § 11550).
The jury acquitted appellant of count 12, dissuading a witness (the
confidential informant) from testifying. (§ 136.1, subd. (a)(1).) It was unable to reach
verdicts on counts 4, 5 and 10, for possession of a firearm while in possession of
methamphetamine (Health & Saf. Code, § 11370.1, subd. (a)), possession of
methamphetamine during the search of his residence (Health & Saf. Code, § 11377,
subd. (a)), and bringing a controlled substance into the jail during his second arrest.
(§ 4573.) The trial court declared a mistrial as to those charges.
The trial court sentenced appellant to an aggregate term of 10 years,
calculated as follows: the upper term of four years on count 1, the primary offense,
and consecutive terms of one year, eight months, and eight months on counts 2, 3 and
6. It imposed a concurrent term of three years on count 7, for possession of the short
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barreled rifle, a consecutive term of one year on count 8 and a consecutive term of
eight months on count 9. The trial court imposed a concurrent term of one year on
count 11, for the misdemeanor conviction. In addition, it imposed two consecutive,
one-year terms for the on-bail enhancements.
Contentions
Appellant contends the trial court violated section 654 when it imposed a
concurrent term on count 7, for his possession of the short barreled rifle, rather than
staying that term. He contends this conduct was either the same as the conduct that
resulted in his conviction on count 6, of being a felon in possession of a firearm, or it
occurred during the same course of conduct as that offense. Appellant next contends
the trial court improperly used the same facts to justify imposing the upper term on
count 1 and imposing consecutive terms on counts 8 and 9.
Discussion
Section 654
Section 654 prohibits the imposition of multiple punishments for the
same act or omission; it does not bar multiple punishment for multiple violations of the
same statute or for acts committed incident to multiple criminal objectives. (People v.
Correa (2012) 54 Cal. 4th 331, 340-341; People v. Rodriguez (2009) 47 Cal. 4th 501,
507.) More specifically, section 654 allows multiple punishments where a felon
simultaneously possesses multiple firearms. (People v. Sanders (2012) 55 Cal. 4th
731, 742-743.) "[T]he purpose of section 654 is to ensure that a defendant's
punishment will be commensurate with his culpability." (People v. Correa, supra, 54
Cal.4th at p. 341.) A felon who possesses multiple firearms is more culpable than a
felon who possesses only one. (Id. at p. 342.) By the same logic, a felon who
possesses an illegal weapon, such as a short barreled rifle, is more culpable than a
felon who possesses otherwise legal weapons. Here, appellant, who has prior felony
convictions, was convicted of possessing two distinct firearms. Section 654 allows
him to be punished separately for each possession.
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Use of Sentencing Factors
Appellant contends the trial court erroneously relied on the same factors
to justify imposing upper term sentences and to justify imposing consecutive
sentences. The contention fails because section 12022.1, subdivision (e) required the
trial court to impose consecutive terms and because the trial court relied on multiple
factors in making its sentencing choices, any one of which would have justified each
choice.
Section 12022.1, subdivision (e) mandates imposition of consecutive
terms. The statute provides, "If the person is convicted of a felony for the primary
offense, is sentenced to state prison for the primary offense, and is convicted of a
felony for the secondary offense, any sentence for the secondary offense shall be
consecutive to the primary sentence and the aggregate term shall be served in the state
prison, even if the term for the secondary offense specifies imprisonment in county jail
pursuant to subdivision (h) of Section 1170." Here, appellant's primary offense, sale
or transportation of methamphetamine, was a felony for which the trial court imposed
a state prison sentence of three years. The secondary offenses in counts 8 and 9, sale
and possession of methamphetamine, were also felonies. As a consequence, the trial
court was required under subdivision (e) of section 12022.1 to impose consecutive
terms for those offenses.
Second, the trial court relied on multiple factors to justify imposition of
the upper term on the primary offense. It stated, "I choose the upper term based on a
weighing of the aggravating and mitigating factors. [¶] Circumstances in aggravation
[include] that the defendant was convicted of other crimes allegedly committed while
on bail . . . , the manner in which the crime was carried out indicating a showing of
planning and sophistication or professionalism; that his prior convictions as an adult
are numerous and of increasing seriousness, and that he has served a prior prison
term." Any one of these factors would support imposition of the upper term; any of
the others would support imposition of consecutive terms. (People v. Osband (1996)
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13 Cal. 4th 622, 728-729; People v. Moberly (2009) 176 Cal. App. 4th 1191, 1197-
1198.) There was no error.
Conclusion
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Patricia Kelly, Judge
Superior Court County of Santa Barbara
______________________________
R. Addison, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy
Attorney General, for Plaintiff and Respondent.
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