P. v. Gomez CA2/4 ( 2013 )

Filed 7/30/13 P. v. Gomez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B242330
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA091031)
v.
MIGUEL GOMEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles
D. Sheldon, Judge. Affirmed.
Brandie Devall, 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, Assistant Attorney General, and Paul M. Roadarmel, Jr.,
Deputy Attorney General, for Plaintiff and Respondent.
_________________________________________
Miguel Gomez appeals his conviction of one count of unlawful driving or taking
of a vehicle (count 1) and one count of unlawful possession of a “shaved” motor vehicle
key (count 3). He claims the sentence on count 3 should have been stayed pursuant to
section 654 because both offenses arose during a single indivisible transaction. We
affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On January 6, 2012, Los Angeles Police Officers Gayosso and Makari were
driving in Wilmington when they noticed a red Honda Civic fail to yield to them at a
four-way stop sign. The officers “ran” the license plate and received information that the
vehicle was stolen. The officers called for backup and followed the vehicle until it
stopped. They ordered appellant, who was driving, to turn off the engine and throw the
keys out of the window. He complied. When backup arrived, appellant and his
passenger were taken into custody.
The officers recovered the items thrown out of the vehicle. One was a shaved key,
which was filed down with equal notches made into the grooves all the way up and down
the key on both sides. The other had at one point been a small pair of scissors; it was
altered in the same fashion as the key, with notches on both sides of the blade.
According to Officer Makari, who had received training in lock picking and covert entry
into vehicles, it would be possible to break into a vehicle and turn it on with either of
these items, which had been shaved and notched to work as an automobile key.
The vehicle belonged to Marlowe Paguio. He had reported his 1995 red Honda
Civic stolen on the morning of January 4, 2012. He had locked it when he parked it on
the street the night before, and had not given anyone permission to drive it.
Appellant was charged in count 1 with unlawful driving or taking of a vehicle with
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a prior (Pen. Code, § 666.5 ), in count 2 with unlawful driving or taking of a vehicle
(Veh. Code, § 10851, subd. (a)), and in count 3 with the misdemeanor of unlawful
possession of a motor vehicle key (§ 466.7). Appellant admitted two prior convictions.
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All statutory references are to the Penal Code unless otherwise indicated.
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The jury found him guilty on counts 1 and 3; count 2 was dismissed in furtherance
of justice. The court granted appellant’s motion to strike one prior juvenile adjudication,
making count 1 a second strike. On count 1, the court sentenced appellant to the upper
term of four years in state prison, doubled as a second strike, with an additional two year
term for two prior prison terms. On count 3, the court sentenced appellant to six months
in county jail, to run consecutively to the sentence on count 1. This is a timely appeal
from the judgment.
DISCUSSION
Appellant claims imposition of sentence on count 3 was erroneous because the
crimes in count 1 and count 3 arose during a single, indivisible transaction. Section 654,
subdivision (a) prohibits multiple punishment for the same act. The purpose of this
section “is to prevent multiple punishment for a single act or omission, even though that
act or omission violates more than one statute and thus constitutes more than one crime.
Although the distinct crimes may be charged in separate counts and may result in
multiple verdicts of guilt, the trial court may impose sentence for only one offense . . . .”
(People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) Multiple punishment is proper “if the
defendant entertained multiple criminal objectives which were independent of each
other.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1021.)
We find guidance in a series of cases addressing whether section 654 precludes
punishment for illegal possession of a firearm by a felon, and a separate crime in which
the firearm was used. “[W]here the evidence shows a possession distinctly antecedent
and separate from the primary offense, punishment on both crimes has been
approved. . . . On the other hand, where the evidence shows a possession only in
conjunction with the primary offense, then punishment for the illegal possession of the
firearm has been held to be improper where it is the lesser offense.” (People v. Venegas
(1970) 10 Cal.App.3d 814, 821.) In People v.Venegas, the evidence showed possession
of the firearm only at the time the defendant shot the victim. “Not only was the
possession physically simultaneous, but the possession was incidental to only one
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objective,” namely to shoot the victim. (Ibid.) Thus section 654 barred multiple
punishment.
But in People v. Ratcliff (1990) 223 Cal.App.3d 1401, the court emphasized that
the crime of ex-felon in possession is committed as soon as the felon has a firearm within
his control. (Id. at p. 1410.) The evidence in that case was that defendant, with an
accomplice, drove up to a gas station and asked the station employee if he could use the
bathroom; defendant then emerged from the bathroom, drew a gun on the employee,
demanded his wallet and the money collected at the station, then drove away. An hour
and a half later, defendant and his accomplice drove into a different gas station, pointed a
gun at the station employee, demanded his wallet, then drove away. (Id. at pp. 1404-
1405.) “A justifiable inference from this evidence is that defendant’s possession of the
weapon was not merely simultaneous with the robberies, but continued before, during
and after those crimes.” (Id. at p. 1413.)
Similarly, in People v. Jones (2002) 103 Cal.App.4th 1139, the defendant was
convicted of shooting at a inhabited dwelling and possession of a firearm by a felon. The
court found section 654 did not bar imposition of sentence for both crimes: “[W]hen an
ex-felon commits a crime using a firearm, and arrives at the crime scene already in
possession of the firearm, it may reasonably be inferred that the firearm possession is a
separate and antecedent offense, carried out with an independent, distinct intent from the
primary crime.” (Id. at p. 1141.)
The evidence in this case supports the same conclusion. The owner of the vehicle
testified that he had parked and locked his car the night before it was taken. He also
testified that when the car was returned to him, he found no damage to the car other than
a dent on the outside. Officer Makari testified that the key and scissors appellant threw
out of the car window at the time of his arrest were both shaved or filed down, with equal
notches made into grooves on both sides of the blade. Neither one was consistent with a
regular car key or house key. They were altered to work as keys, and were consistent
with the type of item used to gain entry into and drive a vehicle. He saw no damage to
the dashboard or ignition of the vehicle when he examined the car.
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From this evidence, it may be inferred that appellant possessed and used one of the
altered keys for the purpose of entering the vehicle sometime after the owner parked and
locked it on January 3, 2012 and before the owner noticed it missing the following day.
Appellant was found driving the vehicle without the owner’s consent on January 6, 2012.
A justifiable inference from this evidence is that appellant possessed an altered key at the
time he entered the car, and that completed crime was not merely simultaneous with his
subsequent driving or taking the vehicle. Section 654 does not prohibit imposition of
sentence on counts 1 and 3.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
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