People v. Baranovych CA3

Filed 1/25/23 P. v. Baranovych 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
THE PEOPLE, C095064
Plaintiff and Respondent, (Super. Ct. No.
CRF20211509)
v.
VLADISLAV LEONIDOV BARANOVYCH,
Defendant and Appellant.
A jury found defendant Vladislav Leonidov Baranovych guilty of possession of a
controlled substance with a loaded firearm, possession of a firearm as a convicted felon,
possession of ammunition as a person prohibited from possessing a firearm, misdemeanor
possession of a controlled substance, and possession of burglary tools. The trial court
sentenced defendant to concurrent sentences for the latter four counts and imposed a
variety of fines and assessments. On appeal, defendant argues: (1) Penal Code section
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654 requires the sentences for three of the counts be stayed;1 (2) because section 654
applies, Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441; Assembly
Bill 518) requires remand so the trial court may exercise its discretion to determine which
sentence to stay; and (3) the trial court erred in imposing fines and assessments without
an ability to pay hearing consistent with People v. Dueñas (2019) 30 Cal.App.5th 1157.
The People concede that some, but not all, of the counts must be stayed under
section 654 and that Assembly Bill 518 thus requires remand for the trial court to
exercise its discretion to choose which sentences to stay. We accept these concessions
but otherwise reject defendant’s claims, remand the matter for the trial court to decide
whether to exercise its new discretion and entertain any arguments as to defendant’s
ability to pay, and direct the trial court to correct errors in the abstract of judgment. We
otherwise affirm the judgment.
I. BACKGROUND
In June 2021, several police officers responded to a call reporting gunfire. One
officer found a truck matching the description in the call at a gas station. Defendant was
near the truck. The officer saw defendant place an object that looked like a gun
underneath the truck. The officers detained defendant. One officer retrieved the gun, a
.40-caliber handgun, from underneath the truck. When the officer retrieved the gun, he
removed a magazine which contained nine rounds. The serial number on the gun had
been scratched off. The officer searched defendant and found a baggy of heroin in his
pants pocket. The officer also found two shaved keys, which could be used to unlock car
or residential doors.
Another officer retrieved surveillance footage from the gas station showing
defendant walking from the station with a green bag. A search of the bag found a box of
1 Undesignated statutory references are to the Penal Code.
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45 rounds of .40-caliber ammunition. Some, but not all, of the rounds in the gun’s
magazine were the same type of ammunition as in the box. There were also more shaved
keys in the bag and a lock picking set.
The prosecution charged defendant with possession of a controlled substance
while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)—count 1),
possession of a firearm by a convicted felon (§ 29800, subd. (a)(1)—count 2), possession
of ammunition by a person prohibited from possessing a firearm (§ 30305, subd. (a)—
count 3), possession of a firearm without an identifying mark (former § 12094—count 4),
misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350, subd.
(a)—count 5), and possession of burglary tools (§ 466—count 6). A jury found
defendant guilty of all counts, except for count 4, which was dismissed.
In October 2021, the trial court sentenced defendant to an aggregate term of three
years, which included the three-year midterm for count 1; a concurrent two-year term for
each of counts 2 and 3; and a concurrent 180-day term for each of counts 5 and 6. The
court also imposed a $300 restitution fine (§ 1202.4), a $300 parole revocation fine
(§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction
assessment (Gov. Code, § 70373).
II. DISCUSSION
A. Section 654
Defendant contends the trial court erred when it imposed concurrent sentences for
the possession of a firearm by a convicted felon, possession of ammunition by a person
prohibited from possessing a firearm, and possession of a controlled substance counts
because those counts should have been stayed under section 654. He argues the latter
two counts were the result of the same conduct as the possession of a controlled
substance while armed with a loaded firearm offense, and thus he could not be separately
punished. The People agree the possession of a firearm and possession of a controlled
substance counts should have been stayed, but assert the possession of ammunition count
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constituted a separate act because defendant possessed ammunition not only within the
firearm’s magazine, but also in a separate box in his bag. We agree with the People.
Section 654, subdivision (a) states in relevant part: “An act or omission that is
punishable in different ways by different provisions of law may be punished under either
of such provisions, but in no case shall the act or omission be punished under more than
one provision.” “ ‘Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of section 654 depends on the intent and
objective of the actor. If all of the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more than one.’ ” (People v.
Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted.)
“ ‘ “Whether a violation of [former] section 12021, forbidding persons convicted
of felonies from possessing firearms . . . constitutes a divisible transaction from the
offense in which he [or she] employs the weapon depends upon the facts and evidence of
each individual case. Thus where 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. Jones (2002)
103 Cal.App.4th 1139, 1143-1144, fn. omitted.) “[A] single possession or carrying of a
single firearm on a single occasion may be punished only once under section 654.”
(People v. Jones (2012) 54 Cal.4th 350, 357.) However, “ ‘simultaneous possession of
different items of contraband’ are separate acts” because “ ‘the possession of one item is
not essential to the possession of another separate item.’ ” (Id. at p. 358.) Thus, for
example, “a felon who possesses several firearms is more culpable than one who
possesses a single weapon.” (People v. Correa (2012) 54 Cal.4th 331, 342.) To be
convicted of possession of a controlled substance while armed with a firearm, a defendant
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must unlawfully possess, as relevant here, “a substance containing heroin . . . while
armed with a loaded, operable firearm.” (Health & Saf. Code, § 11370.1, subd. (a).)
“ ‘The defendant’s intent and objective are factual questions for the trial court; [to
permit multiple punishments,] there must be evidence to support [the] finding the
defendant formed a separate intent and objective for each offense for which he was
sentenced.’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Here, there was only one firearm that formed the basis for the possession of a
firearm by a convicted felon offense and the possession of a controlled substance while
armed with a firearm offense. Thus, as the parties agree, defendant could be punished for
only one of those convictions, and the court was required to stay the sentence for one or
the other. (People v. Williams (2009) 170 Cal.App.4th 587, 645-646.) The same analysis
applies to the possession of a controlled substance offense: only one quantity of heroin
was found in the search, so the single act of possessing that heroin comprised both the
possession of a controlled substance while armed offense and the possession of a
controlled substance offense. As a result, the court was also required to stay the sentence
for one of these two convictions. (People v. Washington (2021) 61 Cal.App.5th 776,
797.)
Substantial evidence supports, however, the unstayed imposition of a separate
punishment for the possession of ammunition count, as defendant’s offenses consisted of
two distinct acts performed with separate intents. One act was possessing the heroin and
the firearm, the other was possessing the ammunition found in defendant’s bag.
Possessing a firearm in violation of section 29800 and possessing ammunition in
violation of section 30305 do not necessarily share a common intent. And, the gun and
the ammunition were kept separately. That the ammunition could have been used in the
gun does not establish possessing the items was an indivisible course of conduct with the
same objective.
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Defendant relies on People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), to
support his argument that the possession of ammunition offense arose from the same
conduct as the “firearm possession convictions,” but the case is distinguishable. In
Lopez, the defendant was found possessing a loaded firearm. The defendant was
convicted of multiple crimes based on the one act, and the appellate court stayed
sentencing on the additional crime. (Id. at p. 139.)
The Lopez court made clear, however, that this analysis applied only to the
specific circumstances of that case: “While there may be instances when multiple
punishment is lawful for possession of a firearm and ammunition, the instant case is not
one of them. Where, as here, all of the ammunition is loaded into the firearm, an
‘indivisible course of conduct’ is present and section 654 precludes multiple
punishment.” (Lopez, supra, 119 Cal.App.4th at p. 138, italics added.) In the instant
case, defendant possessed ammunition separate from the loaded handgun. As noted
above, the ammunition possession and the firearm possession were two separate acts, and
they could have been separately punished accordingly.
B. Assembly Bill 518
Assuming section 654 applies to his case, defendant further argues the changes
made to section 654 by Assembly Bill 518, which amended section 654 to give trial
courts increased discretion, should apply retroactively to his case. Defendant contends
the changes require that his case be remanded for resentencing. The People agree remand
is required. We agree with the parties.
At the time defendant was sentenced, section 654, former subdivision (a)
provided: “[a]n 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.” (Stats. 1997, ch. 410, § 1.) As amended by Assembly
Bill 518, which went into effect January 1, 2022, section 654, subdivision (a) now
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provides: “[a]n act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions . . . .” (Stats. 2021,
ch. 441, § 1, italics added.) Thus, as amended, where section 654 applies, that section
now authorizes trial courts to exercise their discretion in choosing the count for which
punishment will be imposed rather than requiring the longest potential term of
imprisonment.
Defendant contends that, because his case is not yet final, he is entitled to the
benefits of amended section 654. In In re Estrada (1965) 63 Cal.2d 740, the California
Supreme Court held, “a statute that reduced the punishment for a crime applied
retroactively to any case in which the judgment was not final before the statute took
effect.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.) “ ‘The Estrada
rule rests on an inference that, in the absence of contrary indications, a legislative body
ordinarily intends for ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences that are final and sentences
that are not.’ ” (Id. at p. 308.)
Assembly Bill 518 results in ameliorative changes with potential to impact
defendant’s sentence, it contains no indication the Legislature intended the amendment to
apply prospectively only, and defendant’s case was not final before amended section 654
went into effect. Thus, we agree that its changes apply here. (People v. Mani (2022)
74 Cal.App.5th 343, 379.)
Here, the trial court imposed a three-year sentence for defendant’s possession of a
controlled substance while armed with a firearm conviction, and should have stayed a
two-year sentence for defendant’s possession of a firearm as a convicted felon
conviction. Under the amended law, the court now has discretion to determine which
sentence it should impose and which sentence it should impose and stay.
There is no clear indication what sentencing decisions the trial court would have
made if it had possessed the sentencing discretion given by Assembly Bill 518.
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(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [when sentencing decisions are made
without informed discretion, “the appropriate remedy is to remand for resentencing
unless the record ‘clearly indicate[s]’ that the trial court would have reached the same
conclusion ‘even if it had been aware that it had such discretion’ ”].) Thus, we conclude
remand is appropriate so the trial court may fully resentence defendant, incorporating the
new legislative changes. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)
C. Fines and Fees
Relying on People v. Dueñas, supra, 30 Cal.App.5th 1157, defendant contends the
trial court violated his federal and state constitutional rights by imposing fines and
assessments without determining his ability to pay. Although the People dispute the
specific grounds on which defendant may challenge the fines and assessments, they
acknowledge the case should be remanded based on the aforementioned changes to
section 654 and agree defendant may raise any objections to the fines and assessments on
remand. Under these circumstances, we need not resolve defendant’s contention. On
remand, defendant may raise any objections to the fines and assessments he deems
appropriate, and we express no opinion as to the resolution of those objections.
D. Abstract of Judgment
The People note that the abstract of judgment lists three-year terms for defendant’s
possession of a firearm by a convicted felon conviction and his possession of ammunition
by a person prohibited from owning a firearm conviction, which is inconsistent with the
trial court’s oral pronouncement, which imposed a two-year concurrent term for each of
the two convictions. We agree these errors must be corrected on remand. (People v.
Zackery (2007) 147 Cal.App.4th 380, 385 [“[w]here there is a discrepancy between the
oral pronouncement of judgment and the minute order or the abstract of judgment, the
oral pronouncement controls”].) We will direct the trial court to prepare an abstract of
judgment that accurately reflects the oral pronouncement after it has resentenced
defendant, as discussed above.
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III. DISPOSITION
The matter is remanded for resentencing consistent with this opinion and to allow
the trial court to exercise its new sentencing discretion under Assembly Bill 518. After
resentencing, the trial court is directed to prepare an amended abstract of judgment and
forward a certified copy to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
BOULWARE EURIE, J.
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