P. v. Barfield
Filed 1/29/09 P. v. Barfield CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO TARREZ BARFIELD, Defendant and Appellant. | G040490 (Super. Ct. No. 06NF0131) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Kelly W. MacEachern, Judge. Affirmed as modified.
John L. Dodd, 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, Assistant Attorney General, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
THE COURT:*
The jury found Antonio Tarrez Barfield guilty of criminal threat (count one), possession of a firearm by a felon (count two), and possession of ammunition by a felon (count three). The jury also found true the allegation he had personally used a firearm in committing the criminal threat. The trial court found Barfield had served more than a year in prison for a prior serious felony, a 1995 robbery. It sentenced him to 15 years, 8 months in prison.
I
The only two issues raised on appeal involve sentencing. We relate, therefore, those facts relevant to these issues.
Barfield pointed a loaded firearm at his live-in girlfriend and threatened to kill her. She called 9-1-1 and told the operator Barfield had two firearms and he had pulled the little black one on her. When Anaheim police officers arrived at the scene, they found what one officer testified was a Beretta, .25 caliber semi-automatic handgun. This weapon was found in the linen closet in the hallway and the girlfriend confirmed that was the one with which Barfield had threatened her.
The girlfriend opened a red shoe box and showed the officer a .22 caliber revolver and some ammunition. She told him this was the second weapon and that Barfield had to cock the hammer and let it fall on a chamber since the trigger didnt work. When the police questioned Barfield, he admitted possessing a revolver in violation of the law but denied owning a Beretta.
II
A.
Barfield first argues the trial court improperly stayed punishment for the enhancement under Penal Code section 667.5, subdivision (b). He argues it should have been stricken, instead. The Attorney General concedes the point.
Penal Code section 667, subdivision (a)(1) states that when a defendant is convicted of a serious felony the trial court must impose a five-year enhancement for each prior serious felony conviction. In accordance with that direction, the court imposed a five-year enhancement here for the conviction for the 1995 robbery. The court then stayed the one-year enhancement under Penal Code section 667.5, subdivision (b), which section provides that in addition to any prison term the trial court shall impose a one-year term for each prior separate prison term. The law is well established that despite the mandatory nature of both sections, the trial court may only impose the greater enhancement and that the one-year enhancement must be stricken. (People v. Jones (1993) 5 Cal.4th 1142, 1153[case remanded with directions to strike the one-year enhancement].) Thus, the trial court incorrectly stayed the one-year enhancement, and the judgment and abstract must be corrected to reflect the one-year enhancement is stricken.
B.
Barfield argues the sentence on count two (possession of firearm by felon) must be stayed pursuant to Penal Code section 654. This is so, he insists, because it is uncertain if the jury found Barfield guilty of possessing the semiautomatic pistol used in the making of criminal threats, or the revolver, or both. Penal Code section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) Barfield argues he had the same objective and intent when he made criminal threats with the firearm under count one, as when he possessed the firearm under count two, and thus he cannot be punished twice if both convictions are based on the use of the same weapon.
Barfields girlfriend identified the Beretta as the firearm he used to threaten her. She also showed the officer a .22 caliber revolver with a broken trigger and some ammunition in a red shoe box that she said were Barfields. When the police questioned Barfield, he denied having a Berretta but admitted possessing a revolver even though, as he told them, he knew that was unlawful. There was no ambiguity in the evidence. The conviction for criminal threat involved the Berretta; the conviction for possession of a firearm by a felon involved the revolver. Thus, the punishment imposed in count two is not for the same conduct as that punished in count one and the sentence imposed on count two (16 months) should not be stayed.
III
The judgment is corrected by striking the punishment for the enhancement under Penal Code section 667.5, subdivision (b), and, as so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and immediately to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
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* Before Sills, P. J., Moore, J., and Fybel, J.
