P. v. Daniels

Filed 11/2/07 P. v. Daniels CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

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On July 7, 2006, appellant Aaron Patrick Daniels was convicted by jury, in count 1, of assault with a deadly weapon in violation of Penal Code^[1]section 245, subdivision (a)(2), with an enhancement for personal use of a firearm pursuant to section 12022.5, subdivision (a). In count 2, he was convicted of being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1). In count 3, he was convicted of misdemeanor brandishing a weapon in violation of section 417, subdivision (a)(2). He was sentenced to a total term of seven years eight months.

FACTS

On March 28, 2005, appellant had words with his good friend Nicolette Fabela after she greeted him by saying Whats up, punk? Appellant left Fabelas garage, where the two and others had been gathered.

Appellant returned about 20 minutes later. When he entered the garage, he had a gun at his side. Then he pointed the gun and walked up to Fabela. He said, call me a punk again. Now whos the punk. He stopped pointing the gun at her and began brandishing the weapon at whoever was in the garage, saying over and over, whos the punk now? At one point, appellant placed the revolver on a table and coaxed Fabelas 15-year-old son to pick it up. But he did not. After 15 minutes, appellants friend, an unknown Hispanic man, came into the garage. He grabbed the revolver from appellant and emptied the bullets from it. The man kept apologizing to Fabela. Then she and her companions entered into the house, followed by this man who asked them not to call the police.

While Fabelas sister was calling the police, Fabela heard noise in the garage and then heard the garage door slam shut. When the police arrived, Fabela learned that the garage had been ransacked. Appellant and the man were gone.

Appellant testified in his own defense. He first met Fabela in 1989 while they were attending high school. Later, it happened that Fabela lived near the mother of appellants son. As appellant visited his sons mother often, he became friends with Fabela. Prior to the incident in March 2005, appellant never had any arguments with Fabela. Appellant considered being called a punk was forbidden. He had never heard her call anyone else by that name.

On the night of the incident, according to appellant, he had been walking to a friends home when he passed the open garage, noticed that Fabela was there, and stopped in to visit. When she called him a punk, he was offended and told her so. Fabelas son jumped between them and acted aggressively towards appellant. After a short time, appellant left the garage and came back with a firearm. He had gotten the gun from his friend who lived nearby because he felt intimidated by Fabelas son, who was a gang member. He went back to see Fabela because he felt embarrassed and intimidated by her son. He brought the gun because he felt disrespected.

Appellant denied waving the gun at anyone. He placed the gun on a table and slid it over to Fabela and her son. Appellant told them, [Y]ou see a punk, deal with em, deal with em now. Then the friend, who had driven him there, came into the garage, got the gun, and unloaded it.

DISCUSSION

I. Did the trial court err by imposing sentence for both assault with a deadly weapon and being a felon in possession of a firearm, in violation of section 654?

The trial court sentenced appellant to three years on count 1, assault with a deadly weapon ( 245, subd. (a)(2)), and to eight months consecutive on count 2, felon in possession of a firearm ( 12021, subd. (a)(1)). Appellant contends the court erred in failing to stay the sentence on count 2 pursuant to section 654.

Section 654 prohibits multiple punishment for multiple convictions arising either from a single act or omission or from an indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639, overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 908.) Whether 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.) The purpose of section 654 is to ensure that a defendants punishment will be commensurate with his culpability. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. (Ibid.)

In the context of convictions for assault with a deadly weapon and for felon in possession of a firearm, the California Supreme Court has noted that trial courts must examine the facts and circumstances of the individual case. (People v. Bradford (1976) 17 Cal.3d 8, 22.) 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 both offenses is not permitted. (Ibid.) Where a felon possesses a firearm in violation of section 12021, the offense is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon. (People v. Jones (2002) 103 Cal.App.4th 1139, 1146, quoting People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1414.)

Appellant contends the evidence here shows that both counts involved a single objective, to threaten Fabela with the gun. In fact, however, the evidence, including appellants own testimony, shows multiple objectives: to teach Fabela a lesson for calling him a punk and to protect himself from her son, by whom he felt intimidated.

Further, as the trial court found, possession of the gun certainly was not always simultaneous to the display of the gun, but required him to go out and get the gun, return with the gun, so there was a separation in time . It is true, as appellant contends, that the evidence suggests he may have borrowed his friends weapon and does not show the exact moment at which he came into possession of the gun. It is also true, nonetheless, that the inferences from the evidence are that, when appellant entered the garage for the second time, he was already in possession of the gun. And, thus, he was already guilty of the completed crime of violating section 12021.

There was no section 654 error.

II. Did the trial court err under Cunningham v. California by imposing a consecutive sentence?

In his opening brief, appellant contends that, pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), the trial court was required to submit to the jury the question whether appellants conduct underlying counts 1 and 2 was divisible for purposes of section 654. In his reply brief, appellant argues the trial court was required by Blakely and Cunningham to order concurrent terms or to submit the question of aggravating circumstances justifying consecutive sentencing to the jury. We reject both contentions. (People v. Black (2007) 41 Cal.4th 799, 823 [The high courts decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a sentencing decision[] made by the judge and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense]; People v. Black (2005) 35 Cal.4th 1238, 1264, judg. vacated and cause remanded sub. nom. Black v. California (2007) __ U.S. __ [127 S.Ct. 1210] [For purposes of the right to a jury trial, the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently. Both are sentencing decisions made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense, and neither implicates the defendants right to a jury trial]; People v. Cleveland (2001) 87 Cal.App.4th 263, 270 [ 654 is a sentence reduction statute to which jury trial right does not attach].)

DISPOSITION

The judgment and sentence are affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.

^[1]Further statutory references are to the Penal Code unless otherwise indicated.