People v. Ponce CA1/3

Filed 3/11/21 P. v. Ponce CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A155368
v.
ADRIAN JOSEPH PONCE, (Contra Costa County
Defendant and Appellant. Super. Ct. No. 051702232)
Defendant appeals from a judgment after a jury trial finding him guilty
of possession of heroin for sale, possession of methamphetamine for sale,
possession of firearms as a felon, and possession of controlled substances
while armed, and finding true gang enhancements and firearm
enhancements. Defendant contends: (1) the evidence was insufficient to
support the gang enhancements; (2) the trial court committed sentencing
error regarding the firearm charges; (3) he is entitled to a remand for a
hearing to determine whether he has the ability to pay the fines and fees
imposed on him; and (4) the abstract of judgment must be modified to reflect
his 588 days of custody and conduct credits. We find that the judgment must
be modified to stay portions of defendant’s sentence regarding the firearm
enhancements and to correctly reflect the custody and conduct credits. We
affirm the judgment as modified.
1
BACKGROUND
I. Prosecution Case
A. Arrest of Raymon Ponce
Defendant’s brother, Raymon Ponce, was arrested on January 7, 2017,
during a traffic stop. Raymon1 was a passenger in the car, which was
registered to him at an address in Pittsburg, but his driver’s license listed a
West 19th Street, Antioch, address. Raymon and another passenger in the
car both had CAL tattoos.2 Raymon was wearing red shoes and a black
jacket with red accents. During a search of the car, police officers discovered
narcotics paraphernalia; $2,097 in cash; and eighteen .22-caliber bullets.
B. Search of Defendant’s Home
On January 19, 2017, in connection with an ongoing investigation of
Raymon, Detective Souza, of the Concord Police Department,3 executed a
search warrant at defendant’s home on West 19th Street in Antioch. The
defendant and a woman later identified as R.D. were found in the bedroom
and detained in handcuffs. Two small children were also at the residence.
Detective Souza found a .22-caliber rifle in the bedroom, .22-caliber
ammunition in the kitchen and the bedroom, a butt stock for an AR-15 rifle
in the bedroom, and a loaded handgun in the kitchen. Detective Souza also
found a half-full box of .40-caliber ammunition. Next to the box of
1To avoid confusion, we refer to defendant’s brother by his first name.
We intend no disrespect.
2Detective Souza later testified as a gang expert and explained that
CAL is a subset of the Norteños criminal street gang.
3Detective Souza worked in the Violence Suppression Unit and was
assigned to the Federal Bureau of Investigation’s Safe Streets Task Force.
He was also in charge of an operation called Omega Red, designed to disrupt
the Norteños criminal street gang and to prevent violence in Contra Costa
County, and which involved a wiretap of Norteños gang members.
2
ammunition, he found a rubber-banded stack of money totaling about $5,100.
The police found additional sums hidden in picture frames. A total of about
$69,000 was discovered.
In the bedroom closet and dressers, the police found numerous articles
of red clothing, including pants, a red San Francisco Giants hat, a Raiders
hat with a red logo, hooded sweatshirts and tee shirts. Above the bed, the
police noticed a large “Raiders-style flag” with the huelga bird logo in the
background. Also in the bedroom closet, the police found a shoebox
containing approximately 50 letters from prison or jail inmates, some of
whom the police knew to be members of the Norteños street gang. Most of
the letters were addressed to defendant. The letters also included money
orders, which Detective Souza explained can be used to fund inmates’
accounts in prison. In some of the letters, gang members thanked defendant
for supplying them with funds.
In the kitchen, the police discovered a backpack containing a pound of
heroin and a pound and a quarter of methamphetamine. The police also
found a blender, a digital scale and plastic baggies. They did not find,
however, any drug user paraphernalia. A phone charger with “XIV”4 and
“CAL” inscribed on it in red ink was also found in the kitchen.
The police did not find any photographs of defendant flashing gang
signs. Further, he had not sustained any prior convictions for gang-related
activity. Defendant had two tattoos, one of his name, “ ‘Ponce,’ ” and the
other of an Oakland Raiders symbol. “ ‘19th Street Mob’ ” and “ ‘Ponce’ ”
were carved in the sidewalk outside of defendant’s home.
4Detective Souza testified that “XIV” is a symbol of the Norteños
criminal street gang.
3
C. Phone Call Between Defendant and J.Q.
Sergeant Matthew Koch, of the Antioch Police Department, testified
that during 2016, he participated in a federal wiretap operation into drug
trafficking and that J.Q. was one of the subjects.5 The wiretap recorded an
August 20, 2016 call between J.Q. and defendant, which was played for the
jury. Detective Souza, who knew J.Q. was a convicted Norteños drug dealer,
reviewed the recorded call as part of his investigation of defendant. During
the call, J.Q. and defendant discussed distribution of the profits of drug sales.
Detective Souza explained, “Based upon the context of the call, [it] appear[ed]
that [J.Q.] owe[d] [defendant] in some way,” and that defendant was angry.
Defendant asked J.Q., “Do you want to pay me or take it to another level?”
Detective Souza explained that within the context of gangs, the phrase “take
it to another level” usually means “violence, a fight, or . . . talk[ing] to
someone higher up about it.” After some back and forth, J.Q. responded,
“Let’s figure out how to do this.” At one point, defendant referenced being
“dry,” which Detective Souza explained means being out of whatever drug a
dealer is selling. Defendant stated, “Pig but [sic] me under,” and, “I am
fucking struggling too. All these people got locked up with my shit.”
Detective Souza testified that he knew a “self-admitted . . . Norteno gang
member” who used the moniker “Pig” and that the recorded phone call took
place shortly after several Norteños gang members were arrested on
5 J.Q. had a prior conviction which included a gang enhancement
finding that he had committed a crime for the benefit of the Norteños gang.
Sergeant Koch testified that he believed J.Q. to be a member of the Norteños
gang. Officer Josh Reddoch, of the Pittsburg Police Department, testified
that during a probation search of J.Q.’s home in 2010, police found a photo of
J.Q. and another Norteños gang member holding a red huelga bird flag,
which Officer Reddoch stated is “basically the logo for the Norteno criminal
street gang.”
4
August 3, 2016, as part of the Omega Red investigation. Defendant asked
J.Q., “I just want to know when I am going to get my dough.” J.Q. responded,
“As long as you on deck, we can start pushing it today. Just hit me up.”
Defendant then agreed to sell to J.Q. for “850,” which he said was a discount,
and the call ended with J.Q. agreeing to pay defendant “$5, $10 here,
[¶] . . . [¶] $20 bucks here” until it “add[s] up.”
Detective Souza testified that he understood the phone call to be “[o]ne
gang member providing another gang member with narcotics to sell on his
behalf and getting the profits to the other gang member . . . .” He explained
this would benefit the gang because “[b]oth the supplier and seller are
members of the Norteno street gang, both are backed by the overall Norteno
gang organization . . . , which would intimidate other people who would
potentially rob either party . . . [and] comes with the protection of the overall
gang, and [is] also basically [a] built-in way to distribute the drugs through
other gang members.”
D. Phone Call Between Defendant and Raymon Ponce
Detective Souza testified about a phone call between the defendant and
his brother Raymon, which was recorded while the defendant was in jail.
During the call, the defendant and his brother discussed an inmate named
“Mando,” whom Detective Souza understood to be Amando Amaro, one of the
targets of the Omega Red wiretap investigation. Amando Amaro has a
“ ‘Cal’ ” tattoo on his neck and an “ ‘SK’ ” tattoo on his wrist. Detective Souza
explained that “SK” is a term used by Norteños to mean “ ‘scrap killer’ ” and
that “scrap” refers to a rival gang member.6 Defendant told his brother that
6In addition, Detective Hoffman testified that Amando Amaro was a
CAL gang member whom he had investigated and arrested for gang-related
offenses.
5
he was trying to be Amaro’s cellmate. Detective Souza deemed defendant’s
desire to be housed with Amaro significant because, in his experience, “a
Norteno gang member will want to be housed with another Norteno gang
member, . . . in the same cell together. [A] Norteno’s not going to allow a
rival gang member or someone who’s not a gang member to share a cell with
them.”
Defendant also referred to Robert Wickham by his moniker, “Rojo.”
Wickham was another inmate whom Detective Hoffman had investigated and
whom Detective Hoffman concluded was a CAL member based on
photographs of Wickham displaying CAL hand signs. Defendant told his
brother that Wickham referred to defendant as “[m]y nigga from 19th” and
that Wickham and others referred to him as “OG.” Detective Souza
explained “OG” means original gangster and is used to denote an older
member of a gang.
Defendant also referred to “Chubz,” whom Detective Souza knew to be
Oscar Torres, a self-admitted Norteños gang member.
E. Gang Expert Testimony
Detective Souza testified as an expert in areas of the Norteños criminal
street gang in Contra Costa County and the possession of narcotics for sale.
He explained that the Norteños gang originated in Northern California
prisons and was originally called La Familia and later Nuestra Familia. The
gang associated with the color red and the number 14, which represents the
letter N. It also adopted the huelga bird as a symbol. Some members got
tattoos to instill fear in rival gang members and in the community, but others
chose not to get tattoos because “they want[ed] to fly under the radar” with
law enforcement.
6
Detective Souza testified that Norteños members move up the ranks by
engaging in criminal activity, including shootings, robberies, prostitution and
selling drugs. Norteños typically pay “taxes” to other Norteños “by putting
money on [an] individual’s books,” which means depositing funds in an
inmate’s commissary account.
Detective Souza explained that “CAL” stands for “Crazy Ass Latinos”
and that CAL is a subset of the Norteños in the Antioch, Brentwood, and
Oakley areas. CAL members engage in criminal activity, including robbery,
drug sales, and prostitution, to make money.
Detective Souza concluded that defendant was a member of the
Norteños gang. He based his opinion on several factors, including “red
clothing located inside of his home, the jail letters to other Nortenos street
gang members who are incarcerated, the Huelga bird flag located inside of
his home, and also . . . a phone charger inside of his home which was marked
‘X4’ and ‘CAL’ . . . , both signs and symbols of the Norteno criminal street
gang.” Detective Souza further testified that his opinion was based on the
two firearms found in defendant’s home, which are commonly possessed by
members of the Norteños street gang, and the fact that defendant associated
with Norteños criminal street gang members as indicated in the phone call to
defendant’s brother and in defendant’s phone call to J.Q.
The prosecutor posed the following hypothetical to Detective Souza: “If
a person has red clothing in their residence, including a red Oakland Raider
hat and red San Francisco Giant hat and other items of red clothing, has jail
letters from other Norteno drug dealers and other Nortenos, has a Huelga
bird above his bed, has a phone charger with gang ‘XIV’ and ‘CAL’ inscribed
on it, has sidewalk markings demarcating his territory outside of his house,
is in possession of a loaded firearm with an extended magazine and a speed
7
loader, as well as a rifle, is talking to Norteno drug dealers on phone
intercepts, and is currently in custody associating with Norteno gang
members, and in his house when he was arrested, there was a pound of
heroin, a pound of methamphetamine, do you have an opinion if these crimes
were committed for the benefit of or in association with the Norteno criminal
street gang?” (Sic.)
Detective Souza opined that the crimes were committed for the benefit
of and in association with the Norteños gang. Given the large amount of
drugs and the fact that the person in the hypothetical communicated with
Norteños drug dealers, Detective Souza concluded the person “could be the
source of supply for other Norteno criminal street gang members.
[¶] . . . [T]his is helpful for the Norteno criminal street gang because multiple
members of the gang could now be producing revenue for the gang itself.
This revenue can be used to acquire weapons, could be used to put money on
incarcerated other gang members’ books . . . to live a more comfortable
lifestyle in jail . . . , and it could be also used to acquire more drugs for the
gang so that they could profit further from their drug enterprise.”
II. Defense Case
Dr. Rahn Minagawa, a clinical and forensic psychologist, testified as an
expert in criminal street gang culture. Minagawa testified that children who
are exposed to street gangs gravitate toward them and befriend their
members. They then start to work on behalf of the gang and become
associates and may later enter the gang as members. Law enforcement may
erroneously profile family members or friends of gang members as gang
members themselves. By itself, a person’s relationship with a family member
who is part of a street gang does not establish that that person is a gang
8
member. However, Minagawa acknowledged that active gang members tend
to associate with other active members of the same gang.
Minagawa explained that it is common for Norteños gang members to
help incarcerated colleagues by putting money on their books in prison.
However, he also stated that a person may provide financial assistance to an
incarcerated family member or friend who is a gang member for personal
reasons and not for the benefit of a gang. Minagawa testified gang members
demonstrate their pride in their gang with gang-related tattoos and by
flashing gang signs among themselves, to perpetuate gang unity.
Minagawa was presented with a hypothetical including the facts of
defendant’s arrest, and he opined that “it [did not] appear to [him] that . . .
those drugs or guns [were] tied directly to the gang” and that it was “very
unlikely” that they were possessed for the benefit of a criminal street gang.
DISCUSSION
I. Substantial evidence supports the gang enhancements.
Defendant contends insufficient evidence supports the jury’s true
findings on the Penal Code section 186.22, subdivision (b)(1)(A)7 criminal
street gang enhancements associated with count 1 (possession of heroin for
the purpose of sale; Health & Saf. Code, § 11351), count 2 (possession of
methamphetamine for the purpose of sale; Health & Saf. Code, § 11378) and
count 6 (possession of a controlled substance while armed with a firearm;
Health & Saf. Code, § 11370.1, subd. (a)).
Section 186.22, subdivision (b)(1) provides a sentence enhancement for
“any person who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the specific
7 All statutory references are to the Penal Code unless otherwise
stated.
9
intent to promote, further, or assist in any criminal conduct by gang
members . . . .”
The substantial evidence standard applies to gang enhancement
findings. (People v. Albillar (2010) 51 Cal.4th 47, 59–60.) Substantial
evidence is “ ‘of ponderable legal significance[,] . . . reasonable in nature,
credible, and of solid value’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576),
and may include “[c]ircumstantial evidence and reasonable inferences drawn
therefrom . . . .” (In re James D. (1981) 116 Cal.App.3d 810, 813; see People v.
Miranda (2011) 192 Cal.App.4th 398, 411 [“There is rarely direct evidence
that a crime was committed for the benefit of a gang”].) When reviewing
sufficiency claims, appellate courts do not reweigh the evidence or reassess
the credibility of witnesses, and they “must accept logical inferences that the
jury might have drawn from the evidence even if [they] would have concluded
otherwise.” (People v. Combs (2004) 34 Cal.4th 821, 849; People v. Alvarez
(2009) 178 Cal.App.4th 999, 1004.) Reversal for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin
(1998) 18 Cal.4th 297, 331.)
Defendant argues specifically that there was no evidence that the
proceeds from his drug sales went to a street gang or that he intended to act
as a drug supplier for a street gang. He admits that he “engaged in drug
transactions with [J.Q.], a Norteno gang member,” but asserts that there is
no evidence that those transactions were gang-related or that the drug sales
would benefit the gang. Defendant contends his “collected correspondence”
with incarcerated gang members fails to establish that he had the mental
state required to support the gang enhancements, and instead is simply
evidence that he associated with gang members. Likewise, defendant argues
10
that the fact that his home “included gang indicia and that gang graffiti
existed close to his residence” only supports an inference that he “was
attracted to gangs [but] does not prove that he possessed the requisite mental
state.” According to defendant, there was insufficient foundation for
Detective Souza’s expert opinion and, therefore, the opinion cannot support
the jury’s gang enhancement findings.
We are not persuaded. The foundation for Detective Souza’s opinion
included evidence indicating defendant’s Norteños affiliation in his home,
including the huelga flag, the red clothing, the phone charger with CAL
markings, as well as the sidewalk carving stating “ ‘19th Street Mob’ ” and
“ ‘Ponce.’ ” In addition, there was correspondence between defendant and
multiple incarcerated Norteños gang members indicating that defendant was
supplying them with funds while they were incarcerated. Further, defendant
spoke with J.Q., a convicted Norteños drug dealer, and discussed defendant’s
supplying drugs for J.Q. to sell. During the call, defendant complained he
was “struggling” because “[a]ll these people got locked up with my shit.”
Detective Souza explained that the recorded call occurred shortly after
several Norteños gang members were arrested as part of the Omega Red
investigation. While in jail, other Norteños gang members referred to
defendant with terms of respect, and defendant said he wanted to be housed
with another Norteños gang member. Based on this evidence, Detective
Souza opined that defendant was a Norteños gang member, and in response
to a hypothetical paralleling the facts here, Detective Souza believed the
crimes were committed “for the benefit of and in association with the Norteno
criminal street gang[.]” He explained that supplying other Norteños gang
members with drugs provides revenue for the gang that could be used to buy
weapons, fund incarcerated members’ lifestyles, and acquire more drugs. We
11
find substantial evidence supports the jury’s conclusion that defendant
specifically intended to promote, further or assist criminal conduct by gang
members by possessing methamphetamine and heroin for sale, and while
armed.
Defendant relies upon People v. Ramon (2009) 175 Cal.App.4th 843 for
the position that “the mere fact that two gang members have engaged in
criminal conduct even in their own territory does not establish that their
conduct is gang related within the meaning of section 186.22,
subdivision (b)(1).” In Ramon, the defendant was convicted of receiving a
stolen vehicle and possession of a firearm by a felon. (Id. at p. 846.) Ramon
held that evidence the perpetrators were gang members and that the crimes
were committed in the gang’s territory was insufficient to support the gang
enhancement. (Id. at p. 851.) However, the court specifically noted that its
“analysis might be different if the [gang] expert’s opinion had included
‘possessing stolen vehicles’ as one of the activities of the gang.” (Id. at p.
853.) Here, Detective Souza testified that one of CAL’s “primary activit[ies]”
is “drug sales,” which makes money for the gang, and that Norteños “[move]
up the ranks” by “putting in work for the street gang,” which can include
“selling drugs.” Detective Souza’s testimony, and the facts upon which it was
based, including that defendant communicated with another Norteños gang
member about drug dealing and that defendant sent money to incarcerated
Norteños gang members, is sufficient to support the jury’s gang enhancement
true findings. (See People v. Hunt (2011) 196 Cal.App.4th 811, 822
[distinguishing Ramon where gang expert testified that the gang “committed
robberies, in fact, was notorious for doing so”].)
12
II. Defendant Waived Dueñas Claim
At sentencing, the trial court imposed the following fines and fees:
$1,500 restitution fine (Pen. Code, § 1202.4, subd. (b)); $1,500 parole
revocation restitution fine (id., § 1202.45), suspended unless parole is
revoked; $200 court operations assessment (id., § 1465.8); and a $150
conviction assessment (Gov. Code, § 70373). For the first time on appeal,
defendant argues that under People v. Dueñas (2019) 30 Cal.App.5th 1157(Dueñas), remand is required because the trial court failed to determine his
ability to pay before imposing the fines, fees, and assessments.8 We conclude
that defendant forfeited this argument.
Defendant concedes that at sentencing his trial counsel did not assert
inability to pay any of the fines, fees, or assessments. A timely objection
below was required to preserve this claim. (See People v. Frandsen (2019) 33
Cal.App.5th 1126, 1153 (Frandsen) [concluding that the defendant forfeited
challenge where his trial counsel failed to object to assessments or restitution
fine at sentencing]; People v. Trujillo (2015) 60 Cal.4th 850, 859 [explaining
that constitutional nature of defendant’s claim regarding his ability to pay
did not justify a deviation from the forfeiture rule].)
Defendant fails to show an applicable exception to the doctrine of
forfeiture. We disagree with his argument that forfeiture does not apply
because the legal argument raised in Dueñas was not recognized at the time
of defendant’s sentencing. As explained in Frandsen, “Dueñas was
foreseeable. Dueñas herself foresaw it. The Dueñas opinion applied ‘the
8Dueñas held that due process of law requires an ability to pay hearing
and a determination of present ability to pay before a court imposes
assessments under Penal Code section 1465.8 and Government Code section
70373, or executes a restitution fine under Penal Code section 1202.4.
(Dueñas, supra, 30 Cal.App.5th at p. 1164.)
13
Griffin–Antazo–Bearden analysis,’ ” flowing from cases Griffin v. Illinois
(1956) 351 U.S. 12, In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia
(1983) 461 U.S. 660. (Frandsen, supra, 33 Cal.App.5th at p. 1154, quoting
Dueñas, supra, 30 Cal.App.5th at p. 1168.) Dueñas likewise observed, “ ‘The
principle that a punitive award must be considered in light of the defendant’s
financial condition is ancient.’ ” (Dueñas, at p. 1171.) Accordingly, “Dueñas
applied law that was old, not new.” (Frandsen, at p. 1155.)
Even assuming no forfeiture, we would conclude any error under
Dueñas9 was harmless beyond a reasonable doubt. (People v. Johnson (2019)
35 Cal.App.5th 134, 139–140.) A defendant’s ability to pay is not limited to
his or her present financial situation but can also be based on his or her
future ability to earn prison wages and money after release from custody.
(People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) Here, the record
shows that defendant was 29 years old at the time of sentencing and that he
was sentenced to a prison term of 13 years. The total amount of the
challenged fines, fees, and assessments is $1,850 (the $1,500 parole
revocation fine is suspended). Nothing in this record indicates defendant will
be unable to work or ineligible for prison work assignments. Even assuming
defendant had no available assets at the time of sentencing, he will have
ample time to pay the $1,850 assessed against him from his prison wages.
(People v. Johnson, supra, at pp. 139–140.)
9 Courts have strongly criticized the substantive holding in Dueñas.
(See, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, 326–329, review granted
Nov. 26, 2019, S258946.) We need not offer our opinion regarding the Dueñas
holding because we conclude that, on this record, any possible error (even if
not forfeited) was harmless beyond a reasonable doubt.
14
III. Sentencing Issues
Defendant contests aspects of his sentence relating to his possession of
firearms.10 We agree that the trial court erred when it imposed concurrent
sentences for certain of the allegations related to defendant’s possession of
firearms. As we explain, the trial court should have stayed the concurrent
sentences related to the firearms to avoid multiple punishment for the same
acts. (People v. Jones (2012) 54 Cal.4th 350, 353 [imposing concurrent
sentences for the same act constitutes multiple punishments].) We modify
the judgment accordingly.
A. Defendant’s Sentence
Defendant was convicted of possession of heroin for sale (Health & Saf.
Code, § 11351; count 1); possession of methamphetamine for sale (Health &
Saf. Code, § 11378; count 2); possession of a firearm (.40-caliber handgun) as
a felon (Pen. Code, § 29800; count 4); possession of a firearm (.22-caliber rifle)
as a felon (Pen. Code, § 29800; count 5); and possession of heroin and
methamphetamine while armed with a loaded, operable firearm (Health &
Saf. Code, § 11370.1, subd. (a); count 6). In addition, counts 1 and 2 each
included three enhancements: the gang enhancement (Pen. Code, § 186.22,
subd. (b)(1)(A)) and a separate firearm enhancement for each firearm (Pen.
Code, § 12022, subd. (c)). The jury found all of the enhancements true.11 The
court found true the allegation that defendant had sustained a prior serious
felony conviction.
Defendant also contends the abstract of judgment must be corrected
10
to reflect the 588 days of conduct credit the trial court awarded.
11 Count 6 also charged a gang enhancement, which the jury found
true.
15
Defendant was sentenced to 13 years on count 1 as follows: the
midterm of three years doubled to six years because of the prior strike, a
consecutive three years for the gang enhancement, a consecutive four years
for one firearm enhancement and a concurrent four years for the second
firearm enhancement. As to count 2, the trial court imposed the midterm of
two years doubled to four years, three years for the gang enhancement, and
four years on each firearm enhancement, all to run concurrently to the
sentence for count 1. As to counts 4 and 5, the trial court imposed a
concurrent sentence of two years for each count. As to count 6, the trial court
imposed a concurrent midterm sentence of three years doubled to six years,
plus three years for the gang enhancement, but stayed punishment under
section 654.
B. Section 654 requires that the concurrent sentences imposed for
counts 4 and 5 be stayed.
Defendant argues section 654 prohibits imposition of a concurrent
sentence for count 4 (possession of the handgun) because he was punished for
the same conduct under the enhancement attached to count 1. He asserts his
concurrent sentence on count 4 must be stayed under section 654.12 The
People agree but explain that defendant’s concurrent sentence on count 5
must also be stayed for the same reason. In defendant’s reply brief, he agrees
that his sentences on both count 4 and count 5 should be stayed.
Section 654, subdivision (a) states, “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
12 As defendant notes, the lack of compliance with section 654 results in
an unauthorized sentence and may be raised on appeal even if defendant
failed to object below. (People v. Hester (2000) 22 Cal.4th 290, 295.)
16
more than one provision. . . .” Here, the trial court imposed one consecutive
four-year prison term for the first gun enhancement attached to count 1 and
imposed a concurrent four years for the second gun enhancement attached to
count 1. It then also imposed concurrent two-year terms for counts 4 and 5
for possession of the same firearms. “ ‘It has long been established that the
imposition of concurrent sentences is precluded by section 654 [citations]
because the defendant is deemed to be subjected to the term of both sentences
although they are served simultaneously.’ [Citation.] Instead, the accepted
‘procedure is to sentence defendant for each count and stay execution of
sentence on certain of the convictions to which section 654 is applicable.’
[Citations.] Accordingly, although there appears to be little practical
difference between imposing concurrent sentences . . . and staying execution
on two of the convictions . . . , the law is settled that sentences must be stayed
to the extent that section 654 prohibits multiple punishment.” (People v.
Jones, supra, 54 Cal.4th at p. 353.)
“Section 654 applies when the aspect of a sentence enhancement
punishes the exact criminal conduct for which a defendant has been
separately convicted and sentenced.” (People v. Buchanan (2016) 248
Cal.App.4th 603, 616.) In Buchanan, the defendant was convicted of
possession of a firearm as a felon and possession of narcotics for sale with a
section 12022, subdivision (c) enhancement for possession of the same
firearm in commission of the narcotics offenses. (Buchanan, at p. 606.) The
court concluded that section 654 applied because the firearm enhancement
pertained to the same possession of the firearm on the same occasion as the
narcotics offences and, therefore, “[t]he criminal act for which [the] defendant
was convicted and the aspect of the enhancements attached to his sentence
were identical.” (Buchanan, at p. 617.) Accordingly, under section 654, the
17
defendant could be subject “to only one sentence enhancement for use of the
firearm in the commission of his narcotics offenses,” and the other sentences
relating to possession of the firearm must be stayed. (Buchanan, at pp. 607,
618, fn. 4.)
Here, too, defendant cannot face punishment for both possessing the
firearms as a felon (counts 4 and 5) and section 12022, subdivision (c)
enhancements for possession of the same firearms on a single occasion.
Because the punishment for the section 12022, subdivision (c) enhancement
is greater (§ 12022, subd. (c) [imposing three, four, or five years
imprisonment]) than the punishment for possession of a firearm as a felon
(§§ 18, 29800, subd. (a) [imposing 16 months, two years, or three years
imprisonment]), defendant’s concurrent sentence for counts 4 and 5 must be
stayed, and we modify the judgment accordingly.
C. Section 1170.1 precludes imposition of concurrent sentences for
the multiple firearm enhancements attached to counts 1 and 2.
The People raise a second sentencing issue regarding the two gun
enhancements attached to each of counts 1 and 2. The People argue, and the
defendant agrees, that under section 1170.1, subdivision (f), punishment may
be imposed for only one of the firearm enhancements attached to count 1 and
for only one of the firearm enhancements attached to count 2. As noted
above, as to count 1, the trial court imposed a consecutive four years for the
handgun enhancement and a concurrent four years for the rifle enhancement.
As to count 2, the trial court imposed concurrent terms for each of the
handgun and rifle enhancements. Under section 1170.1, subdivision (f), this
was error.
Section 1170.1, subdivision (f) states, “When two or more
enhancements may be imposed for being armed with or using a dangerous or
deadly weapon or a firearm in the commission of a single offense, only the
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greatest of those enhancements shall be imposed for that offense.” In People
v. Jones (2000) 82 Cal.App.4th 485, 493, the court held it was error for the
trial court to impose a sentence enhancement for use of a gun during a
robbery and an additional sentence enhancement for use of a knife during the
same robbery. The court modified the judgment to stay the imposition of the
sentence for the knife-use enhancement. (See People v. Crites (2006) 135
Cal.App.4th 1251, 1255 [finding § 1170.1, subd. (f) “prevents execution of
sentences for multiple [weapon] enhancements [in the commission of a single
offense], but not the procedure of imposing but staying all but the greatest
enhancement falling within the statute”].)
We agree with the parties that the trial court should have stayed
punishment as to the rifle enhancement attached to count 1 and should have
stayed punishment as to the handgun enhancement attached to count 2, and
we modify the judgment accordingly. (See People v. Alford (2010) 180
Cal.App.4th 1463, 1473 [exercising authority under § 1260 to modify sentence
under § 654 rather than remanding for resentencing].)
D. Sentencing Credits
Defendant contends, and the People agree, that the abstract of
judgment must be modified to accurately state defendant’s presentence
custody credit award. As reflected in the trial court’s minutes and in the
reporter’s transcript, the trial court awarded defendant 589 days of
confinement credit and 588 of conduct credit for a total presentence custody
credit of 1,177 days. However, the abstract of judgment only reflects the 589
days of confinement credit. We further modify the judgment to accurately
reflect the trial court’s award of 589 days of confinement credit and 588 days
of conduct credit, for a total of 1,177 days of presentence custody credits. (See
People v. Scott (2012) 203 Cal.App.4th 1303, 1324 [“As with other clerical
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errors, discrepancies between an abstract and the actual judgment as orally
pronounced are subject to correction at any time, and should be corrected by a
reviewing court when detected on appeal”].)
DISPOSITION
The judgment is modified as described in this opinion to reflect that the
concurrent sentences imposed on the following counts and enhancements are
stayed: (1) the rifle enhancement attached to count 1; (2) the handgun
enhancement attached to count 2; (3) count 4; and (4) count 5. The judgment
is further modified to reflect that the defendant was awarded 589 days of
confinement credit and 588 days of conduct credits, for a total presentence
credit award of 1,177 days. The trial court is directed to prepare an amended
abstract of judgment reflecting these modifications and to forward a copy to
the Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Petrou, Acting P. J.
_________________________
Wiseman, J.*
A155368/People v. Adrian Joseph Ponce
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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