Opinion
A jury fоund defendant Angelo Atencio, Jr., guilty of two felonies—grand of a and firearm possession by a felon. The trial court found defendant had a prior serious felony conviction and a prior strike
On appeal, defendant contends his sentence for the unlawful firearm possession conviction must be stayed pursuant to Penal Code
We conclude defendant is correct on his first point: his sentence for the unlawful firearm possession conviction must be stayed pursuant to section 654. Accordingly, we will modify defendant’s sеntence and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On May 6, 2009, Vanessa Trew went to the house of her mother, Debra Trew, to clean for money.
Vanessa called Jason Duensing and asked him to pick her and defendant up from Debra’s house. Around noon, Vanessa and defendant loaded three or four garbage bags, a box, a duffelbag, and a lamp into the back of Duensing’s truck. Vanessa asked Duensing to take defendant to her apartment and to return for her in about an hour. After unloading all the items at Vanessa’s apartment, except the duffelbag, which defendant kept in his possession, defendant asked Duensing to drive him to Thermalito. Duensing dropped defendant off at an intersection and returned to Debra’s house to pick up Vanessa. Later that afternoon, Debra’s husband, John Kuhn, found five guns missing from the unlocked gun safe, including a .45-caliber semiautomatic pistol.
The next day, defendant called Shannon McCraney “wanting to sell [her] some jewelry or something.” Before noon, defendant stopped by McCraney’s home carrying a plastic bag. McCraney saw jewelry and a handgun in the bag and asked defendant why he had a gun in her home. Defendant responded that the gun was not loaded. Approximately 10 minutes later, “cops surround[ed] [the] house,” and McCraney left the home. Defendant hid behind
On May 8, 2009, the Butte County Sheriff’s Office searched McCraney’s home and found a loaded semiautomatic .45-caliber AMT firearm among other items in the stove’s broiler pan. Kuhn identified the gun as his, and the serial number confirmed his ownership.
Defendant was charged with grand theft of a firearm, receiving stolen property, and firearm possession by a felon. All charges pertained to the same firearm, Kuhn’s .45-caliber gun.
The trial court instructed the jury that defendant could not be found guilty on both the grand theft and the receipt of stolen property charges. The court explained that the unlawful firearm possession charge was “independent of that instruction” because “[i]t’s legally possible to steal something or receive it, and then be a felon in possession of it.”
The jury found defendant guilty of grand theft (finding that defendant acted with the “intent to permanently deprive a person of property”) and firearm possеssion by a felon. The trial court found defendant had served a prior prison term, had a prior serious felony conviction, and had a prior strike. After finding the “two crimes and their objectives were predominantly independent of each othеr,” the court imposed consecutive sentences and sentenced defendant to the upper term of six years for the grand theft of a firearm and one-third of the middle term (16 months) for the unlawful firearm possession. In accordance with the thrеe strikes law, the court further imposed a five-year enhancement for defendant’s prior serious felony and a stayed one-year enhancement for his prior prison term. Defendant filed a timely notice of appeal.
DISCUSSION
I
Standard of Review
Whether section 654 applies to the facts in a given case is one of fact for the trial court to decide, and such findings will be upheld on appeal if there is any substantial evidence to support them. (People v. Akins (1997)
II
Section 654
Section 654, subdivision (a), provides in relevant part that “[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.” At its simрlest, “section 654 proscribes double punishment for multiple violations of the Penal Code based on the ‘same act or omission.’ ” (People v. Siko (1988)
Recently, in People v. Jones (2012)
Here, the evidence established that defendant took a pistol from Debra’s house and kept it until the next day, when he abandoned it in Shannon McCraney’s house after the police showed up and surrounded the house. If defendant’s taking of the pistol аnd his possession of it through the following day are considered a single physical act, then pursuant to Jones defendant cannot be punished for the possession of the pistol in addition to being punished for the theft of it. But even if the taking and the subsequent possession do not constitute a single physical act,
Here, defendant argues the evidence showed that he “harbored [only] one criminal intent and objective, namely to possess the firearm[]. [His] primary offense was grand theft of a firearm and his possession of the same gun was merely in сonjunction with that theft.” The People, on the other hand, contend there was substantial evidence to support a finding of separate criminal objectives because “[a]t the time of the theft, [defendant]’s objective was to take the [gun] from [its] original owner,”
We are not persuaded by the People’s argument. To say that defendant’s objective on the first day was to take the gun, while his objective on the next day was to possess it is cutting the point too fine. The only point in taking the gun was to gain possession of it, so that he could then do with it what he pleased, whether “possess[ing] [it] while selling jewelry” or something else. The fact that defendant kept possession of the gun for a period of 24 hours did not, without more, alter his intent and objective such that his course of criminal conduct can be deemed to consist of more than one act for purposes of section 654. Just as in Neal, where the defendant’s act of arson was merely the means by which he tried to kill his intended victims (Neal v. State of California, supra,
The People note that “[sjection 654 . . . bars multiple punishments when fortuitous circumstances put a weapоn in the hands of the defendant only at the instance of committing the primary offense.” Thus, in People v. Bradford (1976)
That application of section 654 has no bearing here, however. This is not a case where the defendant acquired a gun, then committed a crime using it. Instead, here defendant was charged with a crime for the manner in which he acquired the gun, then charged with another crime for possessing the gun after he acquired it. The rule from Bradford does not speak to this situation.
The People also rely on People v. Garcia (2008)
Like Bradford, Garcia does not speak to the facts of the present case. The defendant in Garcia was convicted of using a handgun in two robberies and also of possessing the handgun when he was arrested after the robberies. The defendant’s postrobbery possession of the gun was not the means by which he committed the robberies, nor were the robberies the means by which he possessed the handgun. In other words, his use of the gun in the robberies and his continued possession of the gun after the robberies, including at the time he contemplated a shootout with the police, were distinguishable for purposes of section 654.
Here, in contrast, defendant was convicted of taking a handgun and then of possessing it after he took it. As we have explained already, defendant’s taking of the pistol was merely the means by which he gained possession of it. Thus, what we have here is a course of conduct pursuant to one criminal objective—to possess the gun—and based on that there is but one act that can be punished under section 654.
Defendant’s sentence is modified to stay the term of imprisonment on his conviction of possession of a firearm by a felon. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward the amended abstract to the Department of Corrections and Rehabilitation.
Nicholson, Acting P. J., and Butz, J., concurred.
Notes
Further undesignated sеction references are to the Penal Code.
We refer to Vanessa Trew and Debra Trew by their first names to avoid confusion.
The Supreme Court noted in Jones “that what is a single physical act might not always be easy to ascertain.” (People v. Jones, supra,
In their argument, the People contend defendant’s objective was “to take the four guns from their original owner.” (Italics added.) But defendant was charged with taking and possessing only a single firearm, so the question here for purposes of section 654 is was his intent and objective with respect to that firearm only?