P. v. Costa

Filed 12/19/08 P. v. Costa CA6

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This case has been transferred to us from the Supreme Court (S151236) with directions that we vacate our prior decision (People v. Costa (Feb. 21, 2007, H029681) [nonpub.]) and reconsider the case in light of People v. Towne (2008) 44 Cal.4th 63 (Towne). In February 2007, we reversed the judgment and remanded the case for resentencing in light of the United States Supreme Court decisions in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham).

Defendant Michael Scott Costa had appealed from a judgment entered following his entry of pleas of nolo contendere and his admission of enhancement allegations. In consolidated proceedings, defendant pleaded no contest to 17 counts, namely, 12 counts of possession of a firearm by a felon (Pen. Code,  12020, subd. (a)(1)),[1] two counts of possession of ammunition by a felon ( 12316, subd. (b)), one count of perjury ( 118, subd. (a)), one count of conspiracy ( 182, subd. (a)(1), 12021, subd. (a)), and one count of misdemeanor possession of marijuana (Health & Saf. Code, 11357, subd. (c)). The court sentenced defendant to 22 years, eight months in prison; the sentence included an upper term sentence on the perjury conviction.

Defendant presented two challenges on appeal. First, he claimed that the court erred in imposing an upper term sentence for the perjury conviction (in superior court case number 210852) in violation of his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process. He claimed that under Blakely, supra, 542 U.S. 296, he was entitled to have a jury determine beyond a reasonable doubt any aggravating facts that were used as prerequisites to the imposition of an upper term sentence. Second, he contended that the sentence for the ammunition-possession conviction (count 6 in superior court case number CC238138) should have been stayed pursuant to section 654.

In accordance with the California Supreme Courts direction, we reconsider the matter and conclude that under the authority of Towne, supra, 44 Cal.4th 63, and People v. Black (2007) 41 Cal.4th 799 (Black II), that there was no Blakely error. We therefore affirm the judgment.[2]

FACTS

Since defendant pleaded nolo contendere to all charges, we present a summary of the evidence relevant to the challenges on appeal based principally upon information contained in the probation report:

I. Superior Court Case Number 210852

A. Indictment

In superior court case number 210852, defendant was charged by indictment filed on January 23, 2004, with two counts, namely, perjury by filing a false application for a drivers license or identification card, a felony ( 118, subd. (a)count 1); and possession of ammunition by a felon, a felony ( 12316, subd. (b)count 2).[3]

B. Underlying Facts

On October 12, 2000, defendant was cited for driving with a suspended license and other Vehicle Code violations. Defendants vehicle was impounded and an inventory search disclosed, among other things, one shotgun shell (count 2)

On February 16, 2001, defendant was again stopped for Vehicle Code violations. He presented the officers with a California drivers license with the name of Robert Armstrong; the license contained a photograph of defendant. He was arrested and his vehicle was impounded. In the course of the investigation, the police determined that on October 13, 2000, defendant had submitted a false application for a drivers license to the Department of Motor Vehicles in the purported name of Robert Armstrong, stating that he had made no previous applications for a California drivers license or identification card in a different name (count 1).

II. Superior Court Case Number CC238138

A. Information

In superior court case number CC238138, defendant was charged by information filed September 12, 2003, with 15 counts, namely, 12 counts of possession of a firearm by a felon ( 12021, subd. (a)(1)); misdemeanor possession of more than 28.5 grams of marijuana (Health & Saf. Code,  11357, subd. (c)count 5); possession of ammunition by a felon, a felony ( 12316, subd. (b)count 6); and conspiracy to possess firearms as a felon ( 182, 12021, subd. (a)(1)count 15). Counts 1 through 4 charged defendant with having possessed four different firearms between September 8, 2001, and October 9, 2001. Counts 7 through 9 charged defendant with possession of firearms (rifles) between January 10, 2000, and December 31, 2000. He was charged with possession of a firearm (Kimber pistol) in count 10, occurring between December 1, 1999, and October 9, 2001. And defendant was charged in counts 11 through 14 with possession of four different handguns between January 1, 2001, and December 31, 2001.[4] Many of the firearms were registered in the name of defendants wife, Jessica Ann Costa (Jessica), or in the name of one of defendants known associates.

B. Underlying Facts

Defendant was under surveillance by a task force (Santa Clara County Special Enforcement Team [SCCSET]) for suspicion of marijuana trafficking. On October 2, 2001, a search of trash by officers yielded various notes and ledgers that evidenced transactions involving money (hundreds of thousands of dollars) and marijuana, as well as bubblewrap from Mailboxes, Etc. that contained marijuana residue. On the same date, agents of the Internal Revenue Service (IRS) interviewed a former employee of defendant, who stated that he had seen a number of guns, marijuana, and money at defendants home.

On October 8, 2001, police officers in El Paso, Texas, interviewed defendant and another suspect in an El Paso hotel room. The officers found in the hotel room a loaded Smith and Wesson 10 mm. handgun registered to Jessica (count 1), ammunition for other firearms, cocaine, and a small quantity of marijuana. Defendant possessed over $25,000 in cash. A search of defendants vehicle yielded, among other things, a loaded .45 caliber Glock handgun (count 2), a loaded Kimber Pro Carry .45 caliber handgun (count 3), and a loaded Mossberg shotgun (count 4). Defendant admitted that he had arranged a cocaine transaction in Texas.

On October 9, 2001, SCCSET officers, having been informed about the events in El Paso the previous day, obtained a search warrant for defendants home and vehicle. They executed the search warrant and found, among other things, one and one-half ounces of marijuana (count 5), a loaded Kimber .45 caliber firearm registered to Jessica (count 10), ammunition for several guns (count 6), and receipts for over $17,000 worth of guns purchased by defendants wife and a third party.[5]

On November 2, 2001based upon receipts found during the prior search of defendants residenceSCCSET officers interviewed a San Jose gun dealer. The dealer provided transaction records for the seized receipts evidencing the purchase by Jessica of approximately $13,000-worth of weapons, namely, five assault rifles, one handgun, and one match grade rifle (count 15). Steven Bartnek, an associate of defendant, helped Jessica select the weapons, and she reportedly said, They were gifts for her husband (the defendant).

A second search of defendants residence was conducted on April 10, 2002. During the search, photographs were discovered depicting defendant and his associates displaying various rifles (counts 7 through 9). This was consistent with information SCCSET officers had learned previously concerning Jessicas acquisition of rifles from the San Jose gun dealer for her husband.

On December 11, 2002, SCCSET officers met with Adrienne Dell, the attorney for defendants wife. Dell delivered to the officers a gun case that contained the guns found in defendants custody and control in El Paso Texas on October 8, 2001, namely, a 10 mm. Smith and Wesson pistol registered to Jessica (count 1), a .45 caliber Glock pistol registered to Michael Sprague, an associate of defendant (count 2), a .45 caliber Kimber pistol registered to Bartnek (count 3), and a .12 gauge Mossberg shotgun registered to Bartnek (count 4).[6]

PROCEDURAL BACKGROUND

On September 28, 2004, defendant entered a plea of nolo contendere to both counts charged in the indictment in superior court case number 210852, and to all 15 counts charged in the information in superior court case number CC238138. Defendant also admitted the allegations in both cases that he had suffered four prior strike convictions. Defendant filed a motion to strike the prior strike allegations, pursuant to Romero, supra, 13 Cal.4th 497. On October 25, 2005, the court granted the Romero motion in part, striking three of the four strike convictions. Immediately thereafter, defendant was sentenced to 22 years, eight months in state prison. He was sentenced to eight years in prison in connection with the perjury conviction in superior court case number 210852 (the upper term of four years for the offense, doubled because of his prior strike conviction, pursuant to  667, subds. (b)-(i) and 1170.12). Defendant was sentenced to a consecutive one year, four month term for the count 2 conviction in that case. In superior court case number CC238138, the court sentenced defendant to 10 consecutive prison terms of one year, four months for the convictions of the offenses charged in counts 1, and 6 through 14. Defendant was sentenced to three separate concurrent terms of four years for counts 2 through 4, and 10 days in county jail for the count 5 misdemeanor conviction. Lastly, the court sentenced defendant to a four-year term for the count 15 conviction, which it stayed pursuant to section 654.

Defendant filed a timely notice of appeal from the judgment. We filed our original opinion in this appeal on February 21, 2007. In that opinion, although we rejected defendants claim of error under section 654, we agreed that there was Blakely error and reversed the judgment and remanded the case for resentencing. The People filed a petition for review, which the Supreme Court granted on May 9, 2007. On August 27, 2008, the high court ordered that the matter be transferred to this court for reconsideration of the appeal in light of Towne, supra, 44 Cal.4th 63.[7]

DISCUSSION

I. Contentions On Appeal

Defendant asserts two challenges to the judgment. These claims of error are as follows:

1. The court imposed an upper term sentence for the perjury conviction ( 118) that was based upon aggravating circumstances that were not part of a jurys factual findings. Under Blakely, supra, 542 U.S. 296, this sentence violated defendants right to a jury trial guaranteed under the United States and California Constitutions.

2. The court should have stayed punishment for the count 6 conviction (possession of ammunition by a felon), because section 654 precluded the imposition of separate punishment for both the ammunition-possession conviction and certain of the weapons-possession convictions (counts 2, and 7 through 10).

We discuss both of these claims of error, post.

II. Claimed Blakely Violation

A. Contentions of the Parties

In superior court case number 210852, the trial court imposed the upper term of four years provided in section 126 for the count 1 conviction (perjury by filing a false application for a drivers license or identification card, violation of  118, subd. (a)), which was doubled based on his prior strike conviction, pursuant to section 667, subdivisions (b)-(i) and section 1170.12.[8] The court noted that it was imposing the upper term after reviewing and balancing the factors in aggravation and mitigation. It noted the following factors in aggravation: (1) defendants prior prison commitment; (2) defendant was in a position of authority and leadership; (3) there was planning [and] sophistication; (4) defendant acquired various weapons; (5) defendant was untruthful in the drivers application and he needed the drivers license obtained through the false application process for illegal purposes; and (6) defendant [b]asically . . . led a life of excessive criminality.

Defendant claims that under Blakely, supra, 542 U.S. 296, he was deprived of his constitutional right to a jury trial when the trial court imposed an upper term sentence for the perjury conviction. He asserts that because the court based this sentencing determination on finding the existence of factors warranting imposition of the upper term by a preponderance of the evidence, he was deprived of his constitutional right to a jury trial and application of proof beyond a reasonable doubt.

The Attorney General makes four arguments in response to defendants Blakely challenge. First, defendant forfeited the challenge by failing to assert it below. Second, defendant expressly waived any challenge to judicial fact-finding in sentencing at the time he entered his plea of nolo contendere. Third, any Blakely challenge is substantively without merit, based upon the California Supreme Courts holding in People v. Black (2005) 35 Cal.4th 1238 (Black I). Fourth, assuming any error, it was harmless.

We address the parties contentions below.

B. Discussion of Blakely Challenge

1. Forfeiture

The Attorney General argues that defendant forfeited his claim of Blakely error by failing to assert it below. Defendant responds that the claim was not forfeited because it would have been futile for his counsel to have asserted that challenge in the trial court.

The holding of the California Supreme Court in Black I, supra, 35 Cal.4th 1238 decided on June 20, 2005compelled the conclusion at the time that a criminal defendants constitutional rights are not abridged when a court sentences him or her to the upper term under Californias determinate sentencing law (hereafter sometimes referred to as DSL). At the time of defendants sentencing hearing about four months later, the trial court was compelled to follow Black I. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, any Blakely objection that defense counsel might have made concerning the trial courts imposition of an upper term sentence would have been futile. Under these circumstances, defendants Blakely challenge was not forfeited. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; People v. Turner (1990) 50 Cal.3d 668, 703-704.)

Any doubt concerning the possible forfeiture of defendants Blakely challenge was laid to rest by our Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). In Sandoval, the Attorney General made the identical argument that the defendants Blakely challenge was forfeited because of his failure to raise it at a sentencing hearing that took place after Black I was decided but before Cunningham was decided by the United States Supreme Court. Our high court concluded that it would have been futile for the defendant to have asserted a Blakely challenge at the trial level because the sentencing court was bound to follow Black I. (Sandoval, supra, at p. 837,  fn. 4; see also Black II, supra, 41 Cal.4th at pp. 810-812 [no forfeiture where sentencing occurred before Supreme Courts decision in Blakely].)

2. Express waiver

The Attorney General argues that during proceedings in which defendant entered his plea of nolo contendere to all charges, defendant expressly waived his right to assert any Blakely challenge to future sentencing by the trial court. Defendant responds that there was no express waiver of his constitutional rights under Blakely and, specifically, he did not waive the right to assert under Blakely that any factors used in aggravation to impose an upper term sentence must be charged and proved beyond a reasonable doubt.

In assessing whether there has been an express waiver, [i]t has been pointed out that courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights. (Johnson v. Zerbst (1938) 304 U.S. 458, 464, fns. omitted, overruled in part on other grounds in Edwards v. Arizona (1981)451 U.S. 477.) To be enforceable, a defendants waiver of the right to appeal must be knowing, intelligent, and voluntary. [Citations.] (People v. Panizzon (1996) 13 Cal.4th 68, 80.) [T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.] [Citation.] . . . The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1662.)

In addition, as the Supreme Court has recently explained in People v. French (2008) 43 Cal.4th 36, 47 (French), where, as is the case here, there is a constitutional right to a trial by jury involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involvedthe trial court, the prosecutor, defense counsel, and the defendantassumed that the defendant had waived or intended to waive the right to a jury trial. [Citations.] Thus, in French, the court refused to construe the defendants waiver of his rights to a jury trial on the substantive offenses in his no contest plea as a waiver of his Blakely right to a jury trial on any aggravating circumstances considered in connection with his sentencing. (French, supra, at pp. 47-48.)

Here, in the course of taking defendants plea of nolo contendere in both cases, the court apprised him of his constitutional rights and the rights he would be waiving by entering the no contest plea. During those proceedings, the court specifically mentioned that defendant might have certain rights under Blakely.We have carefully reviewed the transcript of those proceedings. While the record may establish that defendant waived the right to a jury trial on the existence of factors used to impose an upper term punishment, that waiver did not extend to the standard of proof that would be required to establish those factors. There was no mention of defendant giving up the right to have the factors in aggravation upon which an upper term sentence might be based provedeither to a jury or the court sitting without a jurybeyond a reasonable doubt. We therefore conclude that defendant did not waive his Blakely challenge because such challenge was beyond the scope of any waiver obtained from defendant at the time of his change of plea. (See, e.g., People v. Rosso (1994) 30 Cal.App.4th 1001, 1005-1007 [waiver of appeal rights not found where court, during taking of guilty plea, did not advise the defendant of appellate rights, but only asked if the defendant gave up his right to appeal].)

3. Merits of Blakely challenge

Defendant claimed in this appeal prior to the filing of our original opinion that, because the court reached its sentencing determination by finding the existence of factors warranting imposition of the upper term by a preponderance of the evidence, he was deprived of his constitutional right to a jury trial and application of proof beyond a reasonable doubt. He cited the United States Supreme Courts decision in Blakely, supra, 542 U.S. 296, as authority compelling the conclusion that the upper term sentence for the forgery conviction violated his constitutional rights. In making this contention, however, defendant acknowledged at the time that the California Supreme Court, in Black I, supra, 35 Cal.4th at p. 1244, had held Blakely inapplicable to the imposition of upper term sentences under Californias determinate sentencing law. At the time we filed our original opinion, the recently decided case of Cunningham, supra, 549 U.S. 270 compelled that this matter be reversed. Several cases have been decided by our Supreme Court subsequently that directly bear on defendants Blakely challenge here.

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held unconstitutional a New Jersey law that permitted an enhancement that could have resulted in potentially double the maximum sentence for possession of a firearm in the event that the judge determined by a preponderance of the evidence that a hate crime had been committed. It concluded that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) This principle, the court explained, derives from two constitutional rights, namely, the right to trial by jury, and the prohibition against depriving a person of liberty without due process of law. (Id. at pp. 476‑477; see also Ring v. Arizona (2002) 536 U.S. 584, 603‑609.)

In Blakely, supra, 542 U.S. 296, the Supreme Court consideredWashington determinate sentencing laws under which the trial courtafter defendant had pleaded guilty to a class B felonydetermined that he had acted with deliberate cruelty  (id. at p. 298), and accordingly imposed an exceptional sentence of 90 months37 months beyond the standard maximum. (Id. at p. 300.) The defendant contended that the statute was unconstitutional: [T]he statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Id. at pp. 303-304.) The judge had relied on a fact not found by the jury or admitted by the defendant; accordingly the Supreme Court concluded that the sentence in Blakely was invalid. (Id. at p. 304; see also United States v. Booker (2005) 543 U.S. 220 (Booker) [Blakely holding found applicable to Federal Sentencing Guidelines].)

In Black, I, supra, 35 Cal.4th 1238, the California Supreme Court considered the effect of Blakely and Booker on upper term sentencing under Californias determinate sentencing law. The trial court had imposed an upper term sentence of 16 years, based upon the nature, seriousness, and circumstances of the crime. (Black I, supra, at p. 1245.) The Supreme Court, rejecting the defendants Blakely challenge, held that the imposition of an upper term sentence under Californias DSL was not unconstitutional, reasoning that the upper term is the statutory maximum for purposes of Sixth Amendment analysis. The jurys verdict of guilty on an offense authorizes the judge to sentence a defendant to any of the three terms specified by statute as the potential punishments for that offense, as long as the judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules. (Black I, supra, at pp. 1257-1258.)

The defendant in Cunningham, supra, 549 U.S. 270, received an upper term sentence of 16 years under Californias DSL, the sentencing judge having found six aggravating factors warranting the sentence. (Id. at pp. 275-276.) The appellate court rejected the defendants Blakely challenge, and the California Supreme Court denied review, having decided Black I nine days earlier. (Cunningham, supra, at p. 276.) Justice Ginsburg, writing for the majority, noted: This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Id. at p. 281.) Accordingly, the courtoverruling Black Iconcluded that aggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Citation.] Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendis bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.]  (Cunningham, supra, at pp. 288-289.) The Cunningham court thus concluded that the California Supreme Courts reasoning in Black I was at odds with the principles of Apprendi and Blakely: Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment. (Cunningham, supra, at p. 293.)

In Black II, supra, 41 Cal.4th 799, the California Supreme Court reexamined the propriety of the defendants upper term sentence in light of Cunningham. The court acknowledged Cunninghamsdisagreement with Black Is holding that Californias DSL did not violate the Sixth Amendment insofar as it permitted the sentencing judge to impose an upper term sentence based upon factors not determined by a jury beyond a reasonable doubt. (Black II, supra, at p. 808.) But the court in Black II concluded that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id. at p. 813.) It therefore held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id. at p. 816.) Because the judge based the upper term sentence upon a factor (i.e., force used to commit sex crime) that was the basis for the jurys prior true finding on a special allegation, the Black II court held that the upper term sentence was not unconstitutional. (Id. at pp. 816-817.)

In addition, the high court in Black II noted that the defendant was eligible for an upper term sentence due to a second aggravating circumstancehis criminal history. (Black II, supra, 41 Cal.4th at p. 818.) The trial court had indicated that it had considered the other aggravating circumstances set out in the district attorneys sentencing brief. (Ibid.) That brief had noted the aggravating factor in California Rules of Court, rule 4.421(b)(2) that defendants prior convictions . . . are numerous or of increasing seriousness, and the probation report had listed three prior misdemeanor and two prior felony convictions. (Black II, supra, at p. 818.) The court concluded that the courts imposition of an upper term sentence based in part on the defendants history of prior convictions was not unconstitutional: The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.] (Id. at pp. 819-820, fn. omitted; cf. French, supra, 43 Cal.4th at p. 52 [upper term sentence improper where based on aggravating circumstance neither found by jury nor admitted by defendant]; Sandoval, supra, 41 Cal.4th at pp. 837-838 [Blakely error found where aggravating circumstances on which upper term sentence was founded were based upon the facts underlying the crime; none were admitted by [the] defendant or established by the jurys verdict].)

In Towne, supra, 44 Cal.4th at page 73, the defendant, convicted of felony joyriding (Veh. Code,  10851, subd. (a)), received an upper term sentence that was based upon (1) [the courts] conclusion that the crime itself was aggravated because the victim was afraid for his life, and (2) [the] defendants lengthy criminal history. Relying on its decision in Black II, supra, 41 Cal.4th 799, the Supreme Court concluded that imposition of the upper term sentence was not unconstitutional. The high courtrejecting the defendants narrow reading of the Almendarez-Torres[9]exception to the right to a jury trial on federal sentencing factors, where that factor involves the defendants prior convictionheld that the federal constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstance that a defendant was on probation or parole at the time of the offense or has served a prior prison term. (Towne, supra, at p. 79.) The court reasoned: We have noted that in Apprendi, the high court pointed to three factors that distinguish recidivism from other matters employed to enhance punishment: (1) recidivism traditionally has been used by sentencing courts to increase the length of an offenders sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial protections. [Citations.] Applying these three factors to the aggravating circumstances at issue in the present case, we conclude that service of a prior prison term and the commission of an offense while on probation or parole are, like the fact of a prior conviction, distinguishable from other matters employed to enhance punishment. (Id. at p. 80.)

Black II and Towne dispose of defendants challenge. One of the factors relied upon by the court in imposing an upper term sentence of four years for the perjury conviction[10] was that defendant ha[d] a prior prison commitment . . . . This finding was not disputed, and the probation report plainly supported the courts conclusion. In it, the probation officer noted that defendant had four strike prior convictions, and defendant had previously served an eight[-]year prison term. The prior prison commitment finding as an aggravating factor was not one for which defendant was entitled to a trial by jury and a finding of proof beyond a reasonable doubt. (Towne, supra, 44 Cal.4th at p. 79.) We therefore conclude that the court did not commit constitutional error by imposing the upper term of four years as provided in section 126 for the perjury conviction, which was doubled based on defendants prior strike conviction (pursuant to 667, subds. (b)-(i), and 1170.12).

III. Sentence For Ammunition Possession Conviction (Section 654)

A. Background and Contentions

In superior court case number CC238138, the court imposed a prison term of one year and four months for the count 6 conviction (possession of ammunition by a felon). It also imposed separate prison terms of one year and four months for the convictions of the offenses charged in counts 7 through 10, and a concurrent four-year term for the count 2 convictionall five counts charging defendant with possession of firearms by a felon. During sentencing, the court specifically concluded that the weapon-possession offense charged in count 10involving a weapon found the same date as the ammunitionwas separate and distinct from the ammunition-possession charge (count 6).

The ammunition-possession conviction (count 6) was based upon evidence seized from various locations in defendants Saratoga home on October 9, 2001. That evidence consisted of a loaded magazine for a .45 caliber Kimber handgun, a loaded magazine for .45 caliber Glock handgun, and a magazine for a .223 caliber AR-15 style rifle. At the time of that seizure, there was only one firearm found at the homea loaded .45 caliber Kimber handgun with a laser site located in a gun safe (count 10). The information alleged that the ammunition possession took place on or about October 9, 2001. The weapons-possession convictions relevant to defendants challenge under section 654 are as follows: count 2 (possession of a .45 caliber Glock pistol between September 8, 2001, and October 9, 2001); counts 7 through 9 (possession of unspecified rifles between January 10, 2000, and December 31, 2000; and count 10 (possession of a Kimber pistol between December 1, 1999, and October 9, 2001).

Defendant contends that the possession of the ammunition was related to the weapons-possession charges because all charges involved the same criminal intent, i.e., the possession of loaded firearms. Citing People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), defendant urges that the sentence for the count 6 conviction should have been stayed pursuant to section 654. The Attorney General responds that Lopez is distinguishable and that the record supported a finding that defendant possessed multiple criminal objectives.

B. Penal Code Section 654

Section 654, subdivision (a), provides: 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 . . . . The statute thus precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] (People v. Deloza (1998) 18 Cal.4th 585, 591.) The purpose of section 654 is . . . to ensure that punishment is commensurate with a defendants criminal culpability. [Citations.] (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)

As construed by the Supreme Court, [w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) And as the high court later emphasized, [t]he initial inquiry in any section 654 application is to ascertain the defendants objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.)

In reviewing the propriety of the imposition of multiple punishments for separate convictions under section 654 based upon a finding that the defendant held more than one objective in committing those crimes, we evaluate whether there was substantial evidence to support that determination. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) The question of whether the defendant entertained multiple criminal objectives being one of fact for the trial court, we will sustain the courts findings if there is substantial evidence to support them. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) The trial court is vested with broad latitude in making its determination. [Citations.] (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Our review of the courts determination is made in the light most favorable to the respondent and [we] presume the existence of every fact the trial court could reasonably deduce from the evidence. (Ibid.)  Each case is decided in reference to its unique circumstances. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)

C. Discussion of Claim of Error

At the outset, we note that defendant did not challenge the propriety of the sentence for the count 6 conviction below. But this did not constitute a forfeiture of defendants section 654 argument on appeal. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. [Citation.] (People v. Hester (2000) 22 Cal.4th 290, 295; see also Lopez, supra, 119 Cal.App.4th at p. 138.)

Defendants argument is that he cannot be subjected to multiple punishment for both the weapons-possession convictions and the ammunition-possession conviction. He links the specific ammunition found on October 9, 2001, with corresponding firearms. the possession of which was charged in other counts, to assert that the ammunition-possession conviction was part of a single criminal objective to possess loaded firearms. He claims that Lopez, supra, 119 Cal.App.4th 132, is dispositive.

In Lopez, the defendant was convicted, inter alia, of unlawful possession of a firearm ( 12021, subd. (e)), and unlawful possession of ammunition ( 12316, subd. (b)(1)). (Lopez, supra, 119 Cal.App.4th at p. 134.) The convictions arose out of an arrest in which the defendant was found in possession of a loaded handgun. (Id. at p. 135.) He received a six-year prison term for the firearm-possession conviction and a concurrent six-year term for the ammunition-possession conviction. (Id. at p. 138.) The court in Lopez concluded that section 654 prohibited punishment for both offenses: To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. . . . Where, as here, all of the ammunition is loaded into the firearm, an indivisible course of conduct is present and section 654 precludes multiple punishment. (Ibid.)

Here, in contrast to the circumstances in Lopez, the weapons-possession and ammunition-possession charges did not arise out of the seizure of loaded weapons; the police did not seize one or more loaded weapons that resulted in defendant being charged with separate weapons-possession and ammunition-possession offenses. Rather, each of the three items of ammunition stood alone, and was not incorporated into a weapon. The ammunition may (or may not) have been held by defendant for ultimate loading at another time into weapons that he was charged with having possessed. Only one of the items (the magazine for the .45 caliber Kimber handgun) was associated with a weapon seized on October 9, 2001. The fact that the three items of ammunition may have been compatible with certain weaponsthe illegal possession of which defendant was charged in other countsdoes not mean that defendants possession of the ammunition could not have been punished separately from possession of the weapons. (Indeed, defendant may have had other weapons at his disposal as of October 9, 2001the possession of which was not subject to any chargesthat could have been compatible with the ammunition.) The crime of possession of ammunition by a felon ( 12316, subd. (b)) is a crime separate and distinct from possession of a firearm by a felon ( 12021, subd. (a)(1)). (Cf. People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410 [noting that a number of cases have rejected the argument that section 654 bars separate punishment for weapons possession and another offense involving weapon].) The blanket conclusion that section 654 bars multiple punishments for violations of sections 12021 and 12316 would be tantamount to a merger of those two offenses.

Furthermore, the court in Lopez, supra, did not suggest that section 654 would prevent separate punishment for ammunition- and weapons-possession convictions under the circumstances present here. To the contrary, the court emphasized that its holding was based upon the fact that the defendants weapon- and ammunition-possession offenses resulted from all of the ammunition having been loaded into the firearm. (Lopez, supra, 119 Cal.App.4th at p. 138.) The court expressly noted: While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. (Ibid.)  

There was substantial evidence to support either an express or implied finding by the court below that there were multiple objectives in the commission of the ammunition-possession and weapons-possession crimes of which defendant was convicted. (See People v. Blake (1998) 68 Cal.App.4th 509, 512 [trial courts implied finding of existence of separate criminal intents will not be disturbed if supported by substantial evidence].) Lopez is distinguishable. The court therefore did not err by failing to stay the consecutive prison sentence of one year and four months for the ammunition-possession conviction (count 6).

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

McAdams, J.

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[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The Supreme Courts holding in Towne, supra, 44 Cal.4th 63, does not impact defendants challenge based upon the claim that the sentence for the ammunition-possession conviction should have been stayed pursuant to section 654. Therefore, part III of our Discussionin which we reject defendants section 654 challengeis substantively identical to that section in our prior opinion.

[3] The indictment alleged further that defendant had suffered four prior strike convictions ( 667, subds. (b)-(i), 1170.12).

[4] The information alleged further that defendant had suffered four prior strike convictions ( 667, subds. (b)-(i), 1170.12).

[5] The search also disclosed records of various narcotics and gun transactions, a spreadsheet showing that defendant made monthly payments of over $48,000 for various homes in the San Jose area, and a spreadsheet listing 22 vehicles.

[6] The information concerning the weapons possession offenses charged in counts 11 through 14 does not appear in the probation report. We glean it from the prosecutions memorandum in opposition to defendants motion filed pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

[7] After transfer of the case, neither defendant nor the Attorney General elected to file a supplemental brief.

[8] If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. ( 667, subd. (e)(1).) Section 1170.12, subdivision (c)(1), has language identical to that found in section 667, subdivision (e)(1).

[9]Almendarez-Torres v. United States (1998) 523 U.S. 224.

[10] The sentencing provision with which we are concerned here specifies that [p]erjury is punishable by imprisonment in the state prison for two, three or four years. ( 126.)