People v. Jones

• Decision Date: 25 November 2002
• Docket Number: No. B154006.,B154006.
• Citation: 127 Cal.Rptr.2d 319,103 Cal.App.4th 1139
• Parties: The PEOPLE, Plaintiff and Respondent, v. Louis Willie JONES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

127 Cal.Rptr.2d 319

103 Cal.App.4th 1139

The PEOPLE, Plaintiff and Respondent, v. Louis Willie JONES, Defendant and Appellant.

No. B154006.

Court of Appeal, Second District, Division 3.

November 25, 2002.

Review Denied Feb. 19, 2003.^*

Tara Selver, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Victoria B. Wilson, Supervising Deputy Attorneys General, Plaintiff and Respondent.

ALDRICH, J.

After a jury trial, defendant and appellant Louis Willie Jones was convicted of shooting at an inhabited dwelling and possession of a firearm by a felon. Jones was sentenced to a total term of nine years in prison. Jones's sole contention on appeal is that Penal Code section 654¹ precluded imposition of concurrent sentences on the offenses. We conclude that, when an ex-felon commits a crime using a firearm, and arrives at the crime scene already in possession of the firearm, it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime. Therefore, section 654 will not bar punishment for both firearm possession by a felon (§ 12021, subd. (a)(1)) and for the primary crime of which the defendant is convicted. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Kyshanna Walter² ended a dating relationship with Jones after he became violent towards her. Jones continued to telephone her and appear at her home and school, and Kyshanna obtained a restraining order against him.

On April 23, 2001, Jones and an unidentified man drove in a white car to the Walter home and parked in front of the house. The unidentified man rang the doorbell while Jones remained in the passenger seat of the car. The unidentified man asked Kyshanna's brother, Glenn, if he could speak to Kyshanna. When Glenn stated that Kyshanna was not available, the man and Jones departed in the white car.

Approximately fifteen minutes later, the white car slowly drove past the Walter home. Jones, who was still in the passenger seat, fired several gunshots at the Walter home.

Approximately one week later, Jones's residence was searched. No gun or ammunition was recovered during that search or at any other time.

Jones presented an alibi defense. He did not testify, but stipulated that he had been convicted of a prior felony.

2. Procedure.

Trial was by jury. Jones was found guilty of shooting at an inhabited dwelling (§ 246) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury acquitted Jones of two counts of assault with a firearm. In a bifurcated proceeding, the trial court found true allegations that Jones had served two prior prison terms within the meaning of section 667.5, subdivision (b). It sentenced Jones to a total term of nine years in prison, configured as follows. On count 3, shooting at an inhabited dwelling, the court imposed the upper term of seven years. On count 4, possession of a firearm by a felon, the court imposed the upper term of three years, to run concurrently with the sentence on count 3. Two additional one-year terms were imposed pursuant to section 667.5, subdivision (b), to run consecutive to the term imposed on count 3. The trial court also imposed various fines.

DISCUSSION

Section 654 did not preclude the imposition of a concurrent sentence for the possession of a firearm by a felon conviction.

Jones asserts that, because his possession of the gun was incidental to and simultaneous with the primary offense of shooting at an inhabited dwelling, section 654 precluded the imposition of sentence on both offenses. We disagree.

Section 654, subdivision (a), provides in pertinent part, "[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." Section 654 therefore "`precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. "Whether a course of criminal conduct is divisible ... depends on the intent and objective of the actor." [Citations.] "[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." [Citation.]' [Citation.]" (People v. Spirlin (2000) 81 Cal.App.4th 119, 129, 97 Cal.Rptr.2d 1; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208, 23 Cal.Rptr.2d 144, 858 P.2d 611; Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.) However, if the defendant harbored "multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268, 104 Cal.Rptr.2d 641; People v. Solis (2001) 90 Cal.App.4th 1002, 1021, 109 Cal.Rptr.2d 464; People v. Alvarado (2001) 87 Cal.App.4th 178, 196, 104 Cal. Rptr.2d 624.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312, 109 Cal.Rptr.2d 643; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466, 83 Cal. Rptr.2d 307.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (People v. Hutchins, supra, at p. 1312, 109 Cal. Rptr.2d 643; People v. Herrera, supra, at p. 1466, 83 Cal.Rptr.2d 307; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657, 35 Cal.Rptr.2d 478.) We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313, 109 Cal.Rptr.2d 643.)

"`Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person,³ constitutes a divisible transaction from the offense in which he 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. Bradford (1976) 17 Cal.3d 8, 22, 130 Cal.Rptr. 129, 549 P.2d 1225 [quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821, 89 Cal.Rptr. 103].)

It is clear that multiple punishment is improper where the evidence "demonstrates at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense ...." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412, 273 Cal. Rptr. 253.) For example, in People v. Bradford, supra, 17 Cal.3d 8, 130 Cal.Rptr. 129, 549 P.2d 1225, the defendant was stopped by a Highway Patrol Officer for speeding. He wrested away the officer's revolver and shot at the officer with it. (Id. at p. 13, 130 Cal.Rptr. 129, 549 P.2d 1225.) The California Supreme Court found punishment for both assault with a deadly weapon upon a peace officer and possession of a firearm by an ex-felon was prohibited by section 654. The defendant's possession of the officer's revolver was not antecedent and separate from the use of the revolver in assaulting the officer. (Id. at pp. 22-23, 130 Cal.Rptr. 129, 549 P.2d 1225.)

Likewise, in People v. Venegas, supra, 10 Cal.App.3d at p. 821, 89 Cal.Rptr. 103, the defendant shot a companion in a bar. A waitress heard a gunshot, turned to see the defendant holding a gun, and heard two more shots. The defendant was shot in the leg during the incident. There was no showing that the defendant had possessed the gun before the assault, and the defense presented evidence suggesting that he obtained it during a struggle at the bar moments before the shooting. (Id. at pp. 818-819, 821, 89 Cal.Rptr. 103.) Section 654 barred punishment for possession of a firearm by an ex-felon in addition to punishment for assault with a deadly weapon. (Id. at p. 821, 89 Cal.Rptr. 103.) The evidence showed "a possession only at the time defendant shot [the victim]. Not only was the possession physically simultaneous, but the possession was incidental to only one objective, namely to shoot [the victim]." (Ibid.)

On the other hand, it is clear that multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent. In People v. Killman (1975) 51 Cal.App.3d 951, 124 Cal.Rptr. 673, the defendant had given his girlfriend money to purchase a gun. Several months before the robbery, the defendant used the gun for target practice, and took it with him when he moved to a new residence. (Id. at p. 955, 124 Cal.Rptr. 673.) Section 654 did not bar punishment on both first degree robbery and firearm possession charges; the defendant was properly punished "for his own personal possession of the gun before the robbery." (Id. at p. 959, 124 Cal.Rptr. 673; e.g., People v. Garfield (1979) 92 Cal.App.3d 475, 478, 154 Cal.Rptr. 869 [defendant was properly sentenced for burglary and possession of a weapon by a narcotics addict, based upon his possession of a firearm stolen during the burglary; he had the weapon in his personal possession when arrested six days after the...