People v. Ashurst CA6

Filed 2/5/16 P. v. Ashurst CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040995
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS131139)
v.
ROBERT JAMES ASHURST,
Defendant and Appellant.
Defendant Robert James Ashurst appeals from a judgment of conviction entered
after a jury found him guilty of possession of a controlled substance (Health & Saf. Code,
§ 11350, subd. (a) – count one), possession of a controlled substance while armed with a
loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a) – count two), felony
vehicular evasion of a peace officer with willful disregard for the safety of others (Veh.
Code, § 2800.2, subd. (a) – count three), and possession of a firearm by a felon (Pen.
Code, § 29800, subd. (a)(1)1 – count four). The jury also found that defendant was armed
with a firearm in the commission of count three (§ 12022, subd. (a)(1)). In a bifurcated
proceeding, defendant admitted the allegations that he had two prior strike convictions
(§ 1170.12, subd. (c)(2)) and he was ineligible for a jail sentence pursuant to section
1170, subdivision (h)(3).
1
All further statutory references are to the Penal Code unless otherwise stated.
After granting defendant’s Romero2 motion to strike one prior serious felony
conviction, the trial court sentenced defendant to ten years eight months in prison. The
trial court imposed: (1) the upper term of four years for possession of a controlled
substance while armed (count two) and doubled that term to eight years; and (2) one year
and four months each for vehicular evasion (count three) and possession of a firearm by a
felon (count four). The trial court stayed the one-year enhancement attached to count
three and the upper term of three years for possession of a controlled substance (count
one) pursuant to section 654.
On appeal, defendant contends: (1) the trial court erred when it denied his
Pitchess3 motion; (2) the trial court abused its discretion when it excluded evidence of a
prosecution witness’s prior dishonesty; (3) and the trial court erred in denying his motion
to stay his punishment for count four.4 We conclude that the judgment must be modified
to stay punishment for the possession of a firearm by a felon count. As modified, the
judgment is affirmed.
I. Statement of Facts
At about 2:00 a.m. on April 22, 2013, Sergeant Brian Pickens was parked in a
turnout and monitoring traffic just outside the City of Marina. He saw a dark-colored
sedan drive by with two Vehicle Code violations: there was no front license plate or
registration on the windshield; and all the windows were tinted. Pickens decided to
conduct a traffic stop, positioned his patrol car behind the 2001 Infiniti, and turned on the
overhead lights. After the driver failed to yield after 250 to 300 yards, Pickens activated
2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
3
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
4
Defendant also argued that there was a clerical error in the abstract of judgment.
The error has since been corrected.
2
the patrol car siren. The driver continued and ignored a red light at an empty intersection.
Pickens broadcast his pursuit on his police radio.
The driver made a left turn onto Ready Court, “abruptly” pulled over, and left the
engine running. Pickens stopped his patrol car behind the Infiniti and activated the patrol
car spotlights into the open driver’s window. Pickens, who was wearing his sheriff’s
uniform, drew his service revolver, exited his patrol car, and shouted to the driver to shut
off the engine. Pickens also illuminated the driver’s side window with his flashlight.
Pickens was about 20 to 25 feet from this window when the driver looked at him and
said, “You can’t pull me over for nothing.” Pickens identified defendant as the driver.
As Pickens spoke to defendant, Pickens observed that defendant had a “big black
birthmark or mole on his left cheek.”
Pickens told defendant again to shut off the engine. Defendant said “something to
the effect of, ‘Oh, let me guess. You’re going to shoot me now.’ Or, ‘You can’t shoot
me now.’” At this point, defendant put the car into gear and drove away. Pickens
returned to his patrol car, resumed the chase, and broadcast a description of the driver as
“a black male adult with a du rag.”
Defendant went through another red light at Imjin Street while Pickens was 30 to
40 yards behind him. After defendant turned onto Reservation Road and headed towards
Marina, he was weaving between lanes. At the Del Monte intersection, defendant ran a
red light.
When defendant turned onto Lake Drive, Pickens performed a “PIT” stop and
drove into the rear side of the Infiniti to cause a spin-out. However, defendant’s car did
not stall. Instead, the Infiniti spun 180 degrees and accelerated down another residential
street. As the pursuit continued, Pickens was joined by two Marina Police patrol cars.
Defendant turned onto Debbie Lane, a dead-end street, and stopped just to the left
of 191 Debbie Lane. Defendant exited the driver’s door and ran toward a wooden fence.
3
As defendant ran, he had his right wrist anchored to his front right waistband area.
Pickens was concerned that defendant had a firearm. When defendant reached the fence,
he scaled it.
As Pickens attempted to follow defendant, a woman, who was wearing only a
T-shirt, ran out of the residence at 191 Debbie Lane and got between defendant and
Pickens. Officer Richard Moreno arrived as the driver of the vehicle ran toward the
fence. Moreno knew that defendant lived at the Debbie Lane residence. When Moreno
tried to climb over the fence after defendant, his ankle or foot became stuck and he fell on
his shoulder. Meanwhile, Pickens told the woman several times to step away from
Infiniti and return to her residence. She left, but returned after putting on more clothing.
The woman initially provided a fake name and tried to get into the Infiniti. Pickens
eventually learned that her name was Rosie Travis.
When Pickens learned from Moreno that defendant lived at 191 Debbie Lane, he
asked the dispatcher to e-mail him a photograph of defendant. Pickens immediately
recognized defendant as the driver of the Infiniti when he saw the photograph.
Pickens searched the car and found several items that linked defendant to the
Infiniti: a California identification card with defendant’s name and date of birth, a Visa
debit card in defendant’s name, an envelope addressed to defendant, and a speeding ticket
issued to defendant. Pickens also found a small canister containing suspected powdered
cocaine as well as a Kindle Fire.
Pickens had been at the scene for 45 to 50 minutes when he searched Travis’s cell
phone and read text messages between Travis and “papa bear.” Pickens concluded that
defendant was “papa bear.” Defendant sent a text message at 2:29 a.m., which said:
“Say the Kindle Fire is yours and try to get the computer back.” At 2:30 a.m., he sent
another text message: “Say the iPad is your sister’s.” Travis replied, “K. Erase MGS.”
At 2:30 a.m., defendant texted: “Are they still there?” The response was “Ye.” About
4
six minutes later, Travis sent a text, which stated: “Still outside. Ugo ur handle.”
Defendant texted a response about two minutes later, “Huh.” At approximately 2:41
a.m., defendant sent a text: “Just make sure you get the Kindle and tell my dad to say
that’s his computer bag. And it is.” At about 2:55 a.m., he texted “What are they doing?
Did they find the guy driving my car?”
Shortly after the last text, Travis told Pickens that the Infiniti was her car and she
wanted to report it as stolen. Pickens laughed at her, because “typically when a car is
involved in something criminal, a lot of times the people who own the vehicle know to
report the car stolen because it will throw suspicion elsewhere as far as it from being on
them.” Pickens told Travis that defendant had stopped during the pursuit and Pickens
had seen him driving the vehicle. She responded, “Oh, I didn’t know that.”
Officer Terrell Bailey arrived at the scene with his police dog. The dog followed a
scent from the wooden fence and displayed interest in “something up high” on the
carport. Moreno retrieved a .380 semiautomatic pistol in a holster on roof of the carport.
The handgun had a clip containing five bullets and appeared operable. No debris
surrounded the handgun, which indicated that it had been recently left there.
When Pickens was in court for the preliminary hearing in defendant’s case,
defendant was seated in the jury box. As Pickens passed by defendant, defendant stared
at him and said, “Fucking punk.” It was stipulated that no one else heard defendant make
this statement to Pickens.
The parties stipulated that defendant had a prior felony conviction within the
meaning of section 29800, subdivision (a)(1). They also stipulated that Officer Jorge
Alvarado would testify that on February 11, 2009, he searched defendant, who possessed
a bindle of a white powdery substance that he admitted contained cocaine. By
stipulation, the parties agreed that Rachel Frase, a criminalist, would testify that she
5
examined the suspected contraband in November 2013 and found that it weighed
.16 grams, tested positive for cocaine, and was a usable amount.
II. Discussion
A. Pitchess Motion
Defendant contends that the trial court erred when it denied his Pitchess motion on
the ground that he had failed to establish good cause.
1. Background
Defense counsel filed motion for discovery of Pickens’s personnel records. The
motion sought the disclosure of any complaints that alleged any acts of dishonesty or
falsifying information and acts of moral turpitude. Trial counsel also submitted a
declaration that stated in relevant part: “2. Defendant was arrested, for an incident that
took place on April 22, 2013. True and correct copies of the Monterey County Sherriff’s
Police reports are attached hereto as Exhibit A. [¶] 3. I am informed and believe that the
identification that is alleged to have been made by Deputy of Defendant, the
identification that is noted in the third paragraph of page 2 in Exhibit A, did in fact not
take place. [¶] 4. I am informed and believe that Deputy Brian Pickens fabricated facts
and evidence to implicate Defendant in this alleged offense. [¶] 5. I am informed and
believe that Defendant was not driving the vehicle in the manner discussed in the
Monterey County Sherriff’s reports that are attached. [¶] 6. I am informed and believe
that at a trial on the facts described in the Monterey County Sherriff’s report the
character, habits, customs and credibility of Deputy will be a material and substantial
issue. [¶] 7. I am informed and believe that the Monterey County Sheriff’s Office 24
(hereafter the ‘Sherriff’) makes, maintains, and keeps written records concerning its
6
deputies, including but not limited to, complaints received by the Department regarding
its officers.”5
Following argument, the trial court denied the Pitchess motion: “THE COURT:
All right. At this time, Mr. O’Keefe [deputy public defender], I agree with Mr. Grant
[deputy county counsel]. I don’t think -- I think this case is just him saying I -- it didn’t
happen and he’s lying, and there isn’t any alternative factual scenario that’s been
presented that, I think, shows that there is sufficient information to establish good cause
for the request or the materiality. The materiality is not -- I mean, that’s not the main
issue, but it’s just standing there and saying it didn’t happen, he’s lying, I don’t -- I just
don’t think that’s sufficient. So the motion, at this point, is denied. [¶] MR. O’KEEFE:
Just -- [¶] THE COURT: Do you have a future date already? [¶] MR. O’KEEFE: Just
so that I’m clear as to the denial, is the denial based upon the fact that my client states
that he was not the driver of the vehicle, saying that that factual scenario is not plausible,
or is it that it’s not enough? [¶] THE COURT: I don’t think that it’s sufficient to rise to
the level to establish the good cause. I think that is comparable to the cases that just say,
the cop’s lying. I didn’t do it.”
Defense counsel later stated that he had received information from the prosecution
that might aid him in filing an amended declaration to the Pitchess motion and requested
to set the matter for another date. The trial court scheduled a hearing on the amended
motion on December 18, 2013. Defense counsel did not file an amended declaration and
the clerk’s minutes for December 18, 2013, did not indicate that an amended Pitchess
motion was heard.
5
The third paragraph on page 2 of the police report prepared by Pickens states: “I
returned to my car and advised county communications that the driver of the vehicle was
again attempting to evade me. I put the male’s description out as a black male adult
wearing a black ‘dew rag.’ It is interesting to note while talking to the driver, I noted
what appeared to be a large, black birthmark on his left cheek. This cheek was turned
towards me as the driver shouted at me.”
7
2. Analysis
A criminal defendant has a limited right to discovery of law enforcement officer
personnel records. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-
1045.) “To initiate discovery, the defendant must file a motion supported by affidavits
showing ‘good cause for the discovery,’ first by demonstrating the materiality of the
information to the pending litigation, and second by ‘stating upon reasonable belief’ that
the police agency has the records or information at issue. [Citation.] This two-part
showing of good cause is a ‘relatively low threshold for discovery.’ [Citation.]”
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).)
Establishing “good cause” requires the defendant to “propose a defense or
defenses to the pending charges” and “articulate how the discovery sought may lead to
relevant evidence or may itself be admissible direct or impeachment evidence [citations]
that would support those proposed defenses.” (Warrick, supra, 35 Cal.4th at p. 1024.)
Defense counsel’s “affidavit must also describe a factual scenario supporting the claimed
officer misconduct.” (Ibid.) In some cases, this affidavit “may consist of a denial of the
facts asserted in the police report.” (Id. at pp. 1024-1025.) However, in other cases, the
trial court “determines whether defendant’s averments, ‘[v]iewed in conjunction with the
police reports’ and any other documents, suffice to ‘establish a plausible factual
foundation’ for the alleged officer misconduct and to ‘articulate a valid theory as to how
the information sought might be admissible’ at trial. [Citations.] . . . . What the
defendant must present is a specific factual scenario of officer misconduct that is
plausible when read in light of the pertinent documents. [Citations.]” (Id. at p. 1025.) A
factual scenario is “ ‘plausible’ ” if it is one that “might or could have occurred.” (Id. at
p. 1026.)
8
After the defendant has shown good cause for the discovery, the trial court reviews
the relevant documents in chambers to determine which documents meet the relevant
statutory standards. (Warrick, supra, 35 Cal.4th at p. 1027.)
A trial court’s ruling on a Pitchess motion is reviewed for abuse of discretion.
(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)
Here, defendant did not establish sufficient good cause for the requested
discovery. The declaration failed to state a proposed defense or to establish a link
between any defense and the charges against defendant. While defendant raised mistaken
identity and third party culpability defenses at trial, the declaration did not identify these
defenses. Moreover, the declaration did not “describe a factual scenario” which
supported the alleged misconduct by Pickens that was plausible when read in light of the
police report. Merely stating in the declaration that Pickens’s identification of defendant
“did not take place” and defendant “was not driving the vehicle in the manner discussed”
was insufficient given several other facts set forth in the police report which supported
Pickens’s identification of defendant as the perpetrator of the charged offenses. Those
facts included: Pickens conducted a traffic stop involving a car belonging to defendant’s
girlfriend; Pickens followed the car to a location near defendant’s residence; defendant fit
the description that Pickens set forth in the report; several items belonging to defendant
were found in the car; and defendant’s girlfriend told Pickens that defendant had been
driving her car that night. Thus, defense counsel could not merely allege that Pickens
was lying. Accordingly, the trial court did not abuse its discretion in denying the motion.
People v. Hustead (1999) 74 Cal.App.4th 410 is distinguishable from the case
before us. In Hustead, the defendant was charged with, among other things, evasion of
arrest. (Id. at p. 412.) The defendant’s Pitchess motion included defense counsel’s
declaration which stated that the officer fabricated the defendant’s alleged dangerous
driving. (Id. at pp. 417-418.) The declaration also stated that the defendant asserted that
9
he did not drive in the manner described in the officer’s report and his driving route was
different from that claimed by the officer. (Id. at p. 417.) Thus, unlike in the present
case, the declaration in Hustead described a factual scenario that supported the officer’s
alleged misconduct.
Defendant argues that “the motion and declaration suggested an alternative version
of the facts that supported [his] defense.” There was no such suggestion. Though the
supporting memorandum stated that defendant “denie[d] being the driver of the vehicle,”
the declaration alleged that defendant “was not driving the vehicle in the manner
discussed in the Monterey County Sherriff’s reports that are attached.” Thus, since the
declaration disputed the manner in which defendant was driving, it failed to allege facts
that supported his defenses of mistaken identity and third party culpability.
Alternatively, defendant contends that his counsel rendered ineffective assistance.
“To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.
[Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) However, “ ‘[if] the
record on appeal sheds no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation,’ the claim on appeal must be
rejected.” (People v. Wilson (1992) 3 Cal.4th 926, 936.)
Defendant argues that defense counsel’s performance was deficient because he
failed to submit an amended declaration that alleged the theory advanced at trial:
defendant lent the car to a friend, who was also an African-American male, his friend was
10
driving the car when Pickens conducted the traffic stop, and Pickens’s broadcast of the
suspect’s description omitted defendant’s facial birthmark.
However, the record on appeal does not indicate why defense counsel failed to file
an amended declaration. Defense counsel may well have learned from a colleague or
some other source that there was nothing in Pickens’s personnel file that would have
assisted the defense. Thus, based on this record, we must reject defendant’s claim of
ineffective assistance of counsel.
B. Admissibility of Evidence
Defendant also contends that the trial court erred when it excluded evidence of
Pickens’s prior dishonesty.
1. Background
Prior to trial, defense counsel objected to the exclusion of evidence that he
intended to use solely to impeach the credibility of Pickens. The evidence consisted of an
application for modification of sentence in an unrelated case, People v. Tetrick, case No.
SS060958A, filed on May 14, 2007. Defense counsel stated that “if Deputy Pickens did
indeed file a document with the Court that was forged by him misrepresenting
information, I think that’s relevant to his credibility. I don’t think it’s a waste of time. I
don’t think it would fall under 352, and I would ask that the Court not exclude that
information.”
The following exchange occurred at the hearing: “MR. O’KEEFE: That the
answers contained within this document -- I don’t remember the numbers exactly to all
questions. It was maybe three or four -- dealt with a conversation that -- well, that form
was filled out, according to my sources by Deputy Pickens. I believe he’s admitted to
this under oath. I also know that the handwriting has been looked at by a couple of
members of the DA’s office, most notably Todd Hornik was one of the individuals [t]hat
11
did do a handwriting comparison. The answers contained therein talk about a
conversation that was had with one of the deputy district attorneys Rick Storms to
attempt to have a modification or sentence reduced. I have a memo from Mr. Storms if
the Court would like to see that, stating he never had any such conversation with Deputy
Pickens, and the information contained on this form is a lie. . . . I did speak to Mr.
Storms this morning. He told me his statement remains the same; that he never gave
Deputy Pickens any permission to file anything with the Court. He said he simply told
Deputy Pickens the process he would need to follow. [¶] THE COURT: Okay. And the
form that I’ve been presented with is something that can be filled out by a defendant or
by anyone else, and there is a signature at the bottom that appears to be Brad Tetrick. [¶]
MR. O’KEEFE: That’s correct. [¶] THE COURT: And you can’t tell if the person
filled out the form is the same person that signed it or not, because they’re in two
different types of writing. [¶] MR. O’KEEFE: And they appear that they are not. Those
actually appear to be the signature of Mr. Tetrick. . . . [¶] THE COURT: So you’re
showing -- this is being presented to the Court to request that the Court do what? [¶]
MR. O’KEEFE: Well, I’m offering it as an opposition to the People’s motion number 10.
I don’t think this information should be excluded. I think that I still have some
investigation that needs to be conducted. I do think that it’s relevant to this case. The
credibility of Deputy Pickens is the -- maybe not the only issue but certainly the primary
issue in this matter, and I continue to come into new information as I attempted to
investigate this since Friday. I’m trying to get to the bottom of it as fast as I can. [¶]
THE COURT: The document that you’re presenting to me, you’re not claiming that the
signature on here is a forged signature? [¶] MR. O’KEEFE: It’s the information
contained within is forged by Deputy Pickens. [¶] THE COURT: Well, forged means
that you are writing it on behalf of someone else and claiming that it is someone else.
These forms are frequently filled out by attorneys or others, and then the probationer
12
signs the bottom. [¶] MR. O’KEEFE: I agree with that. But most notably what that
form is doing is it is claiming that Deputy DA Storms approved or agreed to a sentence
being modified and reduced for an individual. And that never happened. That’s the crux
of the issue. I do think that it is technically a forgery, [although] it’s not the most typical
form of forgery. I think offering a document to superior court in the State of California in
an attempt to have the sentence modified would fall under one of the 470 subsections. [¶]
THE COURT: Okay. Is this copy something that can be made a court document? [¶]
MR. O’KEEFE: I have no objection. [¶] THE COURT: I’ll make this part of the record
in this matter. It will be Court Document Number 1. And I’m not hearing anything thus
far that -- I’m hearing that you are wanting to impeach Deputy Pickens and claim that he
is not a truthful individual with an incident involving another defendant where you are
claiming that Deputy Pickens assisted someone in petitioning the Court for modification
of sentence based on -- or this petition appears to say that the deputy district attorney was
spoken to with regard to this petition for modification of probation. I’m not hearing
anything that would be directly impeaching of Deputy Pickens at this time. And what
I’m hearing is that the information that’s being provided is kind of tangential
impeachment at best that appears thus far would take a significant amount of time. I’m
not -- it does not appear to be relevant at this stage in the game, the information that
you’ve provided me. And maybe that’s because it’s not been developed fully. I’m not
going to prohibit you from developing it fully, because that’s something you’ll do outside
of court. But from what I’ve heard thus far, I don’t find anything that is worthy of kind
of impeachment cross-examination and going further into if he doesn’t answer the
questions the way you want, which would be bringing in other witnesses to testify about a
document that, as I say, is not -- certainly is not directly related to this incident and, at
best, the statements in here are even tangentially made. When I say they’re tangentially
made, number two says, ‘I hereby make the following request for modification.’. . . And
13
in print it says, ‘modification of sentence per district attorney DA Rick Storms possible
early termination.’ Well, there’s not a -- there’s nothing there that says Storms agreed to
an early termination and nothing there truly directing the Court. [¶] The next question,
number three is, ‘This modification is based upon the following reasons,’ and it says,
‘State the particular reasons.’ And the words that are in writing are ‘Spoke with: District
attorney regarding possible remaining’ -- I think that’s ‘remaining work furlough,
supervised home release and possibly time served,’ which is not really a representation to
the Court that there has been a commitment or an agreement with the district attorney’s
office either. So that’s why I’m putting this on the record, because as I’m saying, there is
nothing here that is a direct statement. It’s -- there’s no true representations other than
there was a conversation without any real representations in that conversation. It appears
to the Court that it would be difficult to impeach someone based on a conversation that
makes no commitment or statement in this application for modification, that truly makes
no commitment, nor does it say that the district attorney promised anything. [¶] As I
say, I’m not prohibiting you from continuing to develop this, but I don’t see anything that
at this point would clear the burden of 352, which is that, for whatever use the probative
value would be, it appears to this Court, at this stage anyway, that it would confuse the
issues and involve an undue consumption of time and not bare [sic] directly on the
matters and issues in this case. As I say, I’m more than happy to hear anything else that
you develop as your investigation continues. [¶] MR. O’KEEFE: That would be my
only request, that I be allowed to revisit this issue as the days go on if I come up with
new information. [¶] THE COURT: Yes. The Court will allow that. [¶] MR. FROST
[Prosecutor]: So at this point, the Court is granting the People’s motion number 10, then,
subject to that ruling? [¶] THE COURT: I’d say that it’s a -- let me just read People’s
motion. ‘People object to the admission of testimony or evidence concerning an
allegation contained in a memo dated 2007 about Sergeant Pickens.’. . . But the Court’s
14
ruling at this time is that I don’t find that the impeachment - - any impeachment evidence
that might be related to the May 2007 application for modification of probation would
assist this jury, and I do find that under 352 at this point it would not be admissible. So
unless we talk about it any further, that will be the Court’s ruling.”
2. Analysis
Evidence Code section 352 provides the trial court discretion to exclude evidence
“if its probative value is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We
review the trial court’s ruling under Evidence Code section 352 for abuse of discretion.
(People v. Holloway (2004) 33 Cal.4th 96, 134.)
Defendant argues that the excluded evidence “allegedly showed [Pickens] had
intentionally made material misrepresentations about a criminal defendant’s case.”
We first note that defendant did not contend either at the hearing or later that
Pickens signed the document. Even assuming that defendant was able to establish that
Pickens filled out the form, there were no misrepresentations. Defendant claims that
“Pickens purported that he prepared the court-filed document at the behest of a district
attorney, who denied any communications with Pickens about the matter” and that
“Pickens falsely conveyed that the district attorney had agreed to a sentence
modification.” However, as the trial court pointed out, the document refers to a
“modification of sentence per district attorney . . . possible early modification” and
“spoke with district attorney regarding possibly removing work furlough, supervising
home release, and possibly time served.” There is nothing in the application stating that
the district attorney approved of the application. Moreover, though defense counsel
claimed that Storms stated that he never talked to Pickens and that the “information
contained on this form is a lie,” he later asserted that Storms “said he simply told Deputy
15
Pickens the process he would need to follow.” Based on defense counsel’s statements,
Storms apparently did discuss an application by this defendant with Pickens. In the event
that Pickens would testify that he had spoken to Storms, the issue would be the extent to
which Pickens’s understanding of that conversation differed, if at all, from Storms’s
understanding. Given this record, defense counsel failed to proffer any evidence to prove
that Pickens’s filling out of the form for another defendant tended to prove that Pickens
was dishonest. Since the trial court reasonably concluded that the probative value of the
evidence was substantially outweighed by the danger of confusing the issues and
necessitating an undue consumption of time, defendant has failed to show the trial court
abused its discretion in excluding this evidence.
C. Section 654
Defendant next contends that the trial court’s imposition of sentence as to the
possession of a firearm by a felon (§ 29800, subd. (a)) must be stayed pursuant to
section 654.
At the sentencing hearing, defense counsel argued that section 654 applied
because defendant had the same criminal objective with respect to the possession of a
firearm by a felon and the possession of a controlled substance while armed with a
loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)). The prosecutor
argued, “I don’t think it is 654, because it is different elements. Clearly his status as a
felon would dictate that.” The trial court concluded: “As far as the 29800, again, a
different set of facts. The defendant is a felon, and as a result, it’s illegal for him to
possess weapons. The Court does not find that it’s 654. The Court -- prior Courts have
not found it to be 654, and this Court does not either.”
Section 654 provides in relevant part: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
16
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (§ 654, subd. (a).) Thus, section
654 prohibits multiple punishment for a single act or indivisible course of conduct.
(People v. Hicks (1993) 6 Cal.4th 784, 789.)
“ ‘ “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.” ’ [Citation.] [¶] . . . ‘It
is [the] defendant’s intent and objective, not temporal proximity of his offenses, which
determine whether the transaction is indivisible.’ [Citation.] ‘ “The defendant’s intent
and objectives 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.” ’ [Citation.]” (People v.
Capistrano (2014) 59 Cal.4th 830, 885-886.)
People v. Jones (2012) 54 Cal.4th 350 (Jones) is instructive. In Jones, the police
searched the defendant’s car and found a loaded revolver. (Id. at p. 352.) The defendant,
who was a convicted felon, asserted that he had bought the gun three days earlier “ ‘for
protection.’ ” (Ibid.) He claimed that he kept the gun at his grandmother’s house and
“ ‘just picked the gun up from there and that’s why the gun was in the car.’ ” (Ibid.) The
defendant was conviction of possession of a firearm by a felon, carrying a readily
accessible concealed and unregistered firearm, and carrying an unregistered loaded
firearm in public. (Ibid.) Jones held that “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.)
Jones overruled In re Hayes (1969) 70 Cal.2d 604, which permitted punishing the
defendant for simultaneously driving while intoxicated and while possessing an invalid
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license. (Jones, supra, 54 Cal.4th at pp. 356, 358.) Jones rejected Hayes’s rationale that
multiple punishment was permissible when the statutes violated by the defendant had
distinct societal purposes. (Jones, at p. 356.) Jones also disapproved People v. Harrison
(1969) 1 Cal.App.3d 115, which had relied on Hayes in holding that separate punishment
for possession of a concealable firearm by a felon and possession of a loaded firearm was
permissible even though both offenses involved the same firearm. (Jones, at p. 357.)
Jones cited with approval People v. Williams (2009) 170 Cal.App.4th 587. (Jones,
supra, 54 Cal.4th at p. 357.) In Williams, the officers searched a house and garage and
found methamphetamine, sales paraphernalia, and a loaded handgun. (Williams, at
pp. 596-597.) The defendant was convicted of, among other things, possession of a
firearm by a felon and possession of a controlled substance while armed. (Id. at p. 595.)
Williams held that the trial court erred by failing to stay the term for felon in possession
under section 654, because the trial court had found that both acts of firearm possession
occurred with the same intent and objective. (Williams, at pp. 645-646.)
Jones recognized that “[i]n some situations, physical acts might be simultaneous
yet separate for purposes of section 654. For example, ‘simultaneous possession of
different items of contraband’ are separate acts for these purposes. [Citations.]” (Jones,
supra, 54 Cal.4th at p. 358.) Jones also noted that cases, which permitted multiple
punishment when the possession of a firearm by a felon was antecedent and separate
from a crime committed with that firearm, were distinguishable from the case before it.
(Id. at p. 358, fn. 3.)
Without any citation to the record, the Attorney General argues that “there was a
basis to infer that [defendant’s] possession of the firearm was separate and distinct from
his possession of the gun to commit drug and evasion offenses.” We disagree.
Here, the crimes of possession of a firearm by a felon and possession of a
controlled substance while armed with a firearm were committed contemporaneously.
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There is nothing in the record to suggest that the two offenses involved separate or
different acts. Both crimes involved the intent and objective to possess the same firearm
on the same occasion. As to each of these counts, the prosecutor’s argument to the jury
was based on the same evidence, that is, defendant’s possession of the firearm in the car
and then taking the firearm with him when he exited his car. Based on this record, the
trial court erred in refusing to stay the 16-month term for the conviction for possession of
a firearm under section 654.
III. Disposition
The judgment is modified to stay under section 654 the term imposed for the
possession of a firearm by a felon count. The trial court is directed to prepare an
amended abstract of judgment reflecting this change and to forward a certified copy of
the amended abstract to the California Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.
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_______________________________
Mihara, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
______________________________
Bamattre-Manoukian, J.
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