People v. Wadsworth CA2/7 ( 2020 )

Filed 11/16/20 P. v. Wadsworth CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301363
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA076563)
v.
JOCKAINE LAMONTE
WADSWORTH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed in part;
reversed in part; and remanded with instructions.
Katharine Eileen Greenebaum, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Jockaine Lamonte Wadsworth appeals from a judgment
entered after a jury convicted him of possession of a firearm by a
felon, having a concealed firearm in a vehicle, unlawful
possession of ammunition by a felon, and misdemeanor giving
false information to a police officer. Wadsworth contends, the
People concede, and we agree the trial court erred by failing to
stay under Penal Code1 section 654 the sentences imposed for
having a concealed firearm in a vehicle and unlawful possession
of ammunition.
Wadsworth also contends the trial court violated his right
to due process, as set forth in this court’s opinion in People v.
Dueñas (2019) 30 Cal. App. 5th 1157, 1168, by imposing court fines
and assessments absent evidence of his ability to pay. The
People concede and we agree that on remand the trial court
should afford Wadsworth an opportunity to request a hearing and
present evidence demonstrating his inability to pay the
applicable fines and assessments. We affirm Wadsworth’s
conviction but reverse the sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial2
At approximately 1:30 a.m. on June 17, 2019 Los Angeles
Sheriff’s Deputy Jonathan Lee was on patrol with his partner
when he observed a vehicle driven by Wadsworth’s girlfriend,
1 All undesignated statutory references are to the Penal
Code.
2 Wadsworth does not challenge the sufficiency of the
evidence on appeal.
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Rreonna Moore “fly through the intersection at a very high rate of
speed,” driving through a red light. Deputy Lee activated his
patrol car’s lights and sirens and turned on a spotlight to see
inside the vehicle. He saw Wadsworth, who was seated in the
passenger seat, wave his arms and pass an object to Moore.
Deputy Lee pulled the vehicle to the side of the road. His partner
searched Moore and recovered a small .380-caliber firearm.
Deputy Lee ejected the magazine from the firearm and
determined the firearm’s chamber was empty, but the magazine
was loaded with five bullets. Deputy Lee then searched the
vehicle and found a single bullet in the storage area of the front
passenger side door matching the style and .380-caliber of the
firearm found on Moore. He opined the bullet was capable of
being fired from the firearm. When Deputy Lee asked
Wadsworth for his name and date of birth, Wadsworth provided
false information.
Wadsworth testified he did not know Moore had a firearm,
nor was he aware there was ammunition in the vehicle. Instead,
he gave Moore his cell phone before they were pulled over so he
would not be booked with his cell phone. He admitted he had a
prior felony conviction and had given the officers a false name.
B. The Verdict and Sentencing
The jury convicted Wadsworth of possession of a firearm by
a felon (§ 29800, subd. (a)(1); count 2), having a concealed firearm
in a vehicle (§ 25400, subd. (a)(1); count 3), unlawful possession of
ammunition by a felon (§ 30305, subd. (a)(1); count 5), and
misdemeanor giving false information to a police officer (§ 148.9,
subd. (a); count 6). Wadsworth admitted he had suffered a prior
conviction of a serious or violent felony under the three strikes
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law (§§ 667, subds. (b)-(j), 1170.12) for which he served a prison
term within the meaning of section 667.5, subdivision (b).
The trial court sentenced Wadsworth to an aggregate term
of seven years four months in prison and a consecutive term of
180 days in county jail. The court selected count 2 for possession
of a firearm as the principal term and sentenced Wadsworth to a
six-year term (the upper term of three years, doubled as a second
strike). On count 3 for possession of an unregistered firearm in a
vehicle, the court imposed a consecutive term of 16 months (one-
third the middle term of eight months, doubled). On count 5 for
unlawful possession of ammunition, the trial court imposed the
middle term of two years, doubled, to run concurrently with the
sentence on count 2. On count 6 the court imposed a consecutive
term of 180 days in county jail. The court struck the prior prison
term allegation.
The court found in imposing the sentence on count 3 that
the offense had “a separate and distinguishable purpose” and was
a “separate and distinct crime” from Wadsworth being a felon in
possession of a firearm. The court pointed out Wadsworth was
“clearly carrying that [firearm] before he ever got in the car. So I
think that those are separate and distinct crimes.” The court
likewise found the offense of possession of ammunition was a
“separate crime[]” from the firearm possession offenses.
The court imposed a $120 court facilities assessment (Gov.
Code, § 70373, subd. (a)(1)) ($30 on each count) and a $160 court
operations assessment (Pen. Code, § 1465.8, subd. (a)(1)) ($40 on
each count). The court imposed a $2,100 restitution fine
(§ 1202.4, subd. (b)(1)), and it imposed and suspended a parole
revocation restitution fine in the same amount (§ 1202.45).
Wadsworth timely appealed.
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DISCUSSION
A. The Trial Court Erred in Not Staying the Sentences on
Counts 3 and 5
Wadsworth contends, the People concede, and we agree the
trial court erred in failing to stay under section 654 the sentences
on counts 3 and 5.
Section 654, subdivision (a), provides in part, “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
provision.” “Whether a defendant may be subjected to multiple
punishment under section 654 requires a two-step inquiry,
because the statutory reference to an ‘act or omission’ may
include not only a discrete physical act but also a course of
conduct encompassing several acts pursued with a single
objective.” (People v. Corpening (2016) 2 Cal. 5th 307, 311
(Corpening); accord, People v. Kelly (2018) 28 Cal. App. 5th 886,
904.)
“We first consider if the different crimes were completed by
a ‘single physical act.’” (Corpening, supra, 2 Cal.5th at p. 311;
accord, People v. Jones (2012) 54 Cal. 4th 350, 358 (Jones).) “If so,
the defendant may not be punished more than once for that act.
Only if we conclude that the case involves more than a single
act—i.e., a course of conduct—do we then consider whether that
course of conduct reflects a single ‘“intent and objective”’ or
multiple intents and objectives.” (Corpening, at p. 311; accord,
Jones, at p. 359.) “Whether a defendant will be found to have
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committed a single physical act for purposes of section 654
depends on whether some action the defendant is charged with
having taken separately completes the actus reus for each of the
relevant criminal offenses.” (Corpening, at p. 313.)
“Whether multiple convictions are based upon a single act
is determined by examining the facts of the case.” (People v.
Mesa (2012) 54 Cal. 4th 191, 196; accord, Corpening, supra,
2 Cal.5th at p. 312.) Similarly, “[i]ntent and objective are factual
questions for the trial court, which must find evidence to support
the existence of a separate intent and objective for each
sentenced offense.” (People v. Jackson (2016) 1 Cal. 5th 269, 354;
accord, People v. Vasquez (2020) 44 Cal. App. 5th 732, 737.) “A
trial court’s express or implied determination that two crimes
were separate, involving separate objectives, must be upheld on
appeal if supported by substantial evidence.” (People v. Brents
(2012) 53 Cal. 4th 599, 618; accord, Vasquez, at p. 737 [“In
analyzing whether section 654 bars the imposition of multiple
sentences, we consider the evidence in the light most favorable to
the judgment and affirm the trial court’s sentencing decision—
whether express or implied—if it is supported by substantial
evidence.”].) But “[w]hen th[e] facts are undisputed . . . the
application of section 654 raises a question of law we review de
novo.” (Corpening, at p. 312.)
The Supreme Court’s holding in Jones, supra, 54 Cal.4th at
page 352 is directly on point. On facts similar to those here, the
Supreme Court held that under section 654 the defendant could
not separately be sentenced for the offenses of possession of a
firearm by a felon, carrying a readily accessible concealed and
unregistered firearm, and carrying an unregistered loaded
firearm in public, where the defendant was found in possession of
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a single firearm. (Id. at pp. 352, 357.) The Court explained, “[A]
single possession or carrying of a single firearm on a single
occasion may be punished only once under section 654.” (Id. at
p. 357.) The Supreme Court rejected the argument the defendant
could be separately sentenced for possession of the firearm as a
felon because he had purchased the firearm three days before he
was apprehended with the firearm, observing the amended
information alleged the three crimes occurred on a single date.
(Id. at p. 359.) Similar to Jones, Wadsworth was charged with
committing the firearm offenses on June 17, 2019. Thus, the trial
court erred, after sentencing Wadsworth on count 2 for
possession of a firearm by a felon, in failing to stay the sentence
on count 3 for possession of an unregistered weapon in a vehicle
because both counts were based on Wadsworth’s possession of a
single firearm.
Similarly, the court was required to stay the sentence on
count 5 for possession of ammunition because the bullet found in
the vehicle matched the style and caliber of the firearm recovered
from Moore, and the firearm was missing a bullet in the chamber.
On these facts, substantial evidence does not support the court’s
finding Wadsworth had more than one objective in possessing the
firearm and the separate ammunition. (See People v. Broadbent
(2020) 47 Cal. App. 5th 917, 923 [trial court erred in not staying
sentences imposed for sale of firearms and sale of large-capacity
magazines where firearms were sold with magazines]; People v.
Sok (2010) 181 Cal. App. 4th 88, 100 [trial court should have
stayed sentence for defendant’s possession of ammunition where
it imposed sentence for unlawful possession of firearm and
ammunition was either loaded into the firearm or had been fired
from the firearm]; People v. Lopez (2004) 119 Cal. App. 4th 132,
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138 [trial court erred in failing to stay sentence for possession of
ammunition where the ammunition was loaded into the firearm
and defendant’s intent was to possess a loaded firearm].)
Although unlike Sok and Lopez the bullet was not inside the gun,
given that the gun did not have a bullet in the chamber and the
bullet matched the caliber of the gun, the only reasonable
inference is Wadsworth had a single intent and objective in
possessing the bullet and the firearm.
B. On Remand Wadsworth Is Entitled To Request a Hearing
on His Ability To Pay the Court Fines And Assessments
Wadsworth requests we remand for the trial court to
conduct an ability-to-pay hearing in accordance with this court’s
opinion in People v. Dueñas, supra, 30 Cal.App.5th at pages 1168
and 1172 because he is indigent and qualified for free counsel at
the time of trial. Wadsworth did not object to the imposition of
fines and assessments at the time of sentencing, but the People
concede on remand Wadsworth may request an ability-to-pay
hearing. We agree Wadsworth should have an opportunity on
remand to request a hearing and present evidence demonstrating
his inability to pay the fines and assessments imposed by the
trial court. (People v. Belloso (2019) 42 Cal. App. 5th 647, 654-655,
review granted Mar. 11, 2020, S259755; People v. Castellano
(2019) 33 Cal. App. 5th 485, 488-489; People v. Dueñas, at
pp. 1168, 1172.)3
3 Wadsworth’s contention on appeal that on remand the
People have the burden to prove Wadsworth has the ability to
pay lacks merit. We rejected this contention in People v.
Castellano, supra, 33 Cal.App.5th at page 490, explaining “a
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DISPOSITION
The judgment of conviction is affirmed. We reverse the
sentence and remand with directions for the trial court to stay
counts 3 and 5 under section 654. The trial court is also directed
on remand to allow Wadsworth an opportunity to request a
hearing and present evidence demonstrating his inability to pay
the court facilities and operations assessments, restitution fine,
and parole revocation restitution fine. If Wadsworth
demonstrates his inability to pay the assessments, the trial court
must strike them. If the trial court determines Wadsworth does
not have the ability to pay the restitution and parole revocation
restitution fines, it must stay execution of the fines.
FEUER, J.
We concur:
PERLUSS, P. J. DILLON, J.*
defendant must in the first instance contest in the trial court his
or her ability to pay the fines, fees and assessments to be imposed
and at a hearing present evidence of his or her inability to pay
the amounts contemplated by the trial court.”
* 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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