People v. Lopez-Juarez, E040792 (Cal. App. 7/17/2007), E040792
| Decision Date | 17 July 2007 |
| Docket Number | E040792 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DAGOBERTO LOPEZ-JUAREZ, Defendant and Appellant. |
Appeal from the Superior Court of Riverside County, Nos. RIF123592, RIF126263, Robert George Spitzer, Judge. Affirmed.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
Following a jury trial, defendant was found guilty of two counts of possessing methamphetamine for sale (Health & Saf. Code, § 11378) (counts 1 and 3); one count of possessing cocaine for sale (Health & Saf. Code, § 11351.5) (count 2); one count of possessing methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1) (count 4); one count of possessing a short-barrel shotgun (Pen. Code, § 12020, subd. (a)(1)) (count 5); and four counts of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (counts 7, 8, 9, and 10).1 The jury also found true that defendant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)) in the commission of count 3. In connection with count 3, defendant admitted that he had previously suffered a prior conviction for violating Health and Safety Code section 11378 within the meaning of Health and Safety Code section 11370.2. Defendant was sentenced to a total term of 11 years in state prison as follows: the midterm of two years on count 3, plus a consecutive midterm of four years for the firearm enhancement attached to that count; a consecutive midterm of 16 months on count 2; a consecutive midterm of eight months on count 5; a consecutive three years for the prior drug conviction enhancement attached to count 3; and concurrent sentences of two years each on counts 1, 8, 9, and 10. The sentences on counts 4 and 7 were stayed pursuant to Penal Code section 654.2
On appeal, defendant contends (1) the sentence on count 5 should have been stayed pursuant to section 654, and (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed a consecutive eight-month term on count 5. We reject these contentions and affirm the judgment.
In May 2005, defendant lived in an apartment complex on Spring Street in Highgrove. About 8:00 p.m., on May 12, 2005, a Riverside County sheriff's deputy was dispatched to the carport alleyway at the complex in response to reports of drug-dealing activity. The reporting party had provided a carport location and partial clothing description of the person selling drugs.
When the deputy arrived at the location, he found defendant and codefendant Carlos Garcia standing in the carport next to a truck.3 A desk and chairs had also been set up in the carport. The deputy searched Garcia and found a wad of loose cash totaling $1,570 and a dollar bill used as a bindle for 2.5 grams of methamphetamine. A digital scale was also found in a trash can in the back of the carport, where defendant had been standing, underneath a storage locker marked "E." Under this storage locker, another deputy found a plastic bag containing 16.8 grams of methamphetamine and a plastic bag containing 27.2 grams of cocaine base.
Codefendant Garcia was arrested. Defendant and another man were not arrested at that time.
On September 30, 2005, Riverside County sheriff's deputies were conducting another narcotics investigation in the same carport alleyway. About 9:30 p.m., they saw 11 people standing in or around the carport, as well as at least two "drive-by" drug sales and other hand-to-hand drug transactions. As the deputies approached the carport area, they saw defendant sitting in the driver's seat of a red Ford. A bindle containing 0.5 grams of methamphetamine was found right next to where defendant had been sitting.
On defendant's person, the deputies found keys to storage lockers "B" and "E." Defendant consented to a search of the lockers and admitted that he had used storage locker "E" and that it contained guns.
In storage locker "E" the deputies found a .22-caliber semiautomatic handgun, a sawed-off 12-gauge shotgun with a barrel measuring 14.5 inches, a .22-caliber rifle, and a loaded nine-millimeter handgun. Loose ammunition for various guns was also found in the storage locker. A search of the locker further disclosed one bindle containing 3.5 grams of methamphetamine, two egg-sized bindles containing 28.5 and 28.8 grams of methamphetamine respectively, and a bindle containing 10.5 grams of marijuana.
Defendant was thereafter arrested, and a search of his person revealed $499 in cash. He was later also charged with possession of cocaine and methamphetamine in the May 2005 incident.
Defendant contends that the trial court erred in imposing a consecutive term of eight months on count 5 (possession of a short-barreled sawed-off shotgun), because the same sawed-off shotgun was designated as the prohibited firearm for the gun enhancement attached to count 3. He therefore claims the consecutive term on count 5 should have been stayed pursuant to section 654.
As defendant and the People point out, we note that there is a split of authority as to whether section 654 applies to enhancements in the first instance. (See People v. Coronado (1995) 12 Cal.4th 145, 157 (Coronado) and cases cited therein.) The issue is currently before the California Supreme Court. (See People v. Carter (2005) 36 Cal.4th 1215, 1269, fn. 36 []; see also People v. Manila (review granted Sept. 20, 2006, S144885).)
Defendant argues that an enhancement or a substantive offense based on a defendant's criminal conduct is subject to the Penal Code section 654 prohibition against multiple punishment when the same conduct underlies both the enhancement and an offense for which the defendant has been separately sentenced. He relies upon Coronado to urge that the possession of the sawed-off shotgun (count 5), which was based on defendant's conduct, is subject to Penal Code section 654, as he committed one act in connection with the shotgun. Coronado draw a distinction between enhancements related to the defendant's status, such as recidivist enhancements, versus enhancements related to the defendant's conduct. (Coronado, supra, 12 Cal.4th at p. 157.) However, that case does not address the question of whether Penal Code section 654 bars imposition of a conduct-related enhancement where the same conduct underlies both the enhancement and an offense for which the defendant was separately punished. Coronado held only that a single prior conviction and resulting prison term may be used both to elevate a violation of Vehicle Code section 23152 to a felony under Vehicle Code section 23175 and to enhance the sentence for such conviction under Penal Code section 667.5, subdivision (b) without violating Penal Code section 654. (Coronado, at p. 159.)
Nonetheless, until our high court provides otherwise, we will apply section 654 to enhancements as done in the past by our court and the majority of other courts. (See People v. Douglas (1995) 39 Cal.App.4th 1385, 1392-1393; see also People v. Reeves (2001) 91 Cal.App.4th 14, 55-56.)
Assuming section 654 applies to sentence enhancements, imposition of the firearm enhancement (personally being armed with the shotgun within the meaning of section 12022, subdivision (a)) in commission of count 3 (possession of methamphetamine for sale) and the substantive offense of possession of the shotgun (count 5) was proper.
Section 654, subdivision (a) provides in pertinent part: "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 more than one provision." Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) "The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives " (People v. Centers, supra, 73 Cal.App.4th at p. 98.) The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple. (People v. Beamon (1973) 8 Cal.3d...
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