People v. Lee CA3

Filed 6/29/15 P. v. Lee 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C076367
Plaintiff and Respondent, (Super. Ct. Nos.
12F02806, 13F03608)
v.
KENNY DEAN LEE,
Defendant and Appellant.
On August 30, 2012, in case No. 12F02806, defendant Kenny Dean Lee entered
no contest pleas to possession of methamphetamine for sale (count one), possession of
marijuana for sale (count two), felon in possession of a firearm, to wit, a .38-caliber
handgun, a nine-millimeter handgun, and a .22-caliber handgun (Pen. Code, § 29800,
subd. (a)(1); count three),1 and felon in possession of ammunition, to wit, .22 caliber, .30
caliber, .357 caliber, and nine millimeter (§ 30305, subd. (a)(1); count four). That same
1 Undesignated statutory references are to the Penal Code.
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day, the trial court imposed an aggregate term of three years four months, that is, the low
term of 16 months on count one and a consecutive one-third the midterm or eight months
on counts two, three, and four, each. The court suspended execution of sentence and
granted probation.
Defendant did not appeal.
On March 5, 2014, in case No. 13F03608, a jury convicted defendant of
possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) In bifurcated
proceedings, defendant admitted a prior drug conviction. (Health & Saf. Code,
§ 11370.2, subd. (c).) The court found defendant in violation of probation in case
No. 12F02806.
On April 4, 2014, the court sentenced defendant to state prison for an aggregate
term of eight years eight months: case No. 13F03608, the upper term of three years plus
three years for the prior drug conviction; case No. 12F02806, the court modified the
sentence previously imposed and imposed a consecutive one-third the midterm or eight
months on each count (counts one through four).
Defendant appeals. Citing People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez),
he contends section 654 and the federal due process clause barred punishment for the
unlawful possession of ammunition (count four, case No. 12F02806), which was
possessed for no other purpose than for use in the firearms (count three, case
No. 12F02806) also found in the same storage box. The People respond that, unlike in
Lopez, all the ammunition was not loaded into the handguns.
For a different reason, we conclude the trial court properly sentenced defendant.
In any event, Lopez does not apply here.
After conviction, “the court may suspend the imposition of the sentence, in which
case no judgment of conviction is rendered, or it may impose the sentence and thereafter
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suspend its execution. [Citations.] In the latter case a judgment of conviction has been
rendered from which an appeal can be taken . . . .” (In re Phillips (1941) 17 Cal.2d 55,
58.) “As a general rule, a sentence lawfully imposed may not be modified once a
defendant is committed and execution of his sentence has begun.” (People v. Bozeman
(1984) 152 Cal.App.3d 504, 507.) Section 1170.1, subdivision (a) represents a statutory
exception to this general rule by providing that “when any person is convicted of two or
more felonies, whether in the same proceeding or court or in different proceedings or
courts, and whether by judgment rendered by the same or by a different court, and a
consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate
term of imprisonment for all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable enhancements . . . .
The subordinate term for each consecutive offense shall consist of one-third of the middle
term of imprisonment prescribed for each other felony conviction for which a consecutive
term of imprisonment is imposed . . . .”
Section 669, subdivision (a) provides in relevant part, “When a person is convicted
of two or more crimes, whether in the same proceeding or court or in different
proceedings or courts, and whether by judgment rendered by the same judge or by
different judges, the second or other subsequent judgment upon which sentence is
ordered to be executed shall direct whether the terms of imprisonment or any of them to
which he or she is sentenced shall run concurrently or consecutively.”
The subsequent court is required to combine the terms of all the sentences into a
single “aggregate term of imprisonment” (§ 1170.1, subd. (a)), recalculating the
subordinate terms under the one-third rule and reducing the terms for a conviction and
applicable enhancement. Section 1170.1 authorizes the subsequent court to modify a
sentence previously imposed by another court (People v. Baker (2002) 144 Cal.App.4th
1320, 1328-1329), but the subsequent court may not change a discretionary decision by
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the prior court, which includes a decision to make a count in the prior case concurrent
with or consecutive to each other. (In re Reeves (2005) 35 Cal.4th 765, 773; Cal. Rules
of Court, rule 4.452(3).)
Here, the prior court in case No. 12F02806 imposed a sentence that included
consecutive sentences for counts three and four. Defendant did not appeal. Thereafter,
defendant committed a new offense and the subsequent court in case No. 13F03608 was
required to resentence but could not change the discretionary decision by the prior court
to run counts three and four in case No. 12F02806 consecutively. The subsequent court
was precluded from applying section 654 to counts three and four in case No. 12F02806.
In any event, we do not find any error. “Section 654 bars multiple punishments
for separate offenses arising out of a single occurrence where all of the offenses were
incident to one objective.” (People v. McKinzie (2012) 54 Cal.4th 1302, 1368.) A trial
court’s implied finding supported by substantial evidence that defendant entertained a
separate intent and objective for each offense will be upheld on appeal. (Ibid.)
Lopez, supra, 119 Cal.App.4th 132 is distinguishable. Lopez found that section
654 applied where all the ammunition found was loaded into the firearm. (Lopez, at
p. 138.) Here, there was a cache of weapons and a separate cache of ammunition.
Officers searched two storage facility units defendant used and a shed behind defendant’s
house. In these various locations, defendant possessed a total of four firearms, two of
which were loaded, and more than 175 live rounds of ammunition of various calibers.
Section 654 does not preclude multiple punishment here. (People v. Jones (2012)
54 Cal.4th 350, 358-360.) Substantial evidence supports the trial court’s implied finding
that section 654 did not bar punishment for count four in case No. 12F02806.
Having concluded section 654 did not apply, we also reject defendant’s due
process claim, which was simply based on an argument that defendant had the due
process right to have the sentencing rules properly applied. He did.
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DISPOSITION
The judgment is affirmed.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
HOCH , J.
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