P. v. Frick

















Filed 3/5/13 P. v. Frick CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FIRST
APPELLATE DISTRICT



DIVISION
ONE




>

THE PEOPLE, Plaintiff and Respondent, v. JASON MICHAEL FRICK, Defendant and Appellant.

A133676 (Mendocino County Super. Ct. No. SCUK-CRCR-11-16554)

Defendant entered a plea of guilty
to possession of a destructive device
(Pen. Code, former § 12303) and possession of a firearm by a convicted
felon (Pen. Code, former § 12021, subd. (a)(1)), and admitted two prior
felony strike convictions (Pen. Code, §§ 667, subds. (d), (e), 1170.2,
subds. (b), (c)).href="#_ftn1" name="_ftnref1"
title="">[1] After defendant’s motion to dismiss one of
the prior strike convictions (§ 1385) was denied, he was sentenced to two
terms of 25 years to life in state prison
under the three-strikes law, to be served concurrently.

In this appeal he argues that his
trial counsel was incompetent for failing to object to the admission of
evidence at the hearing on his motion to dismiss a prior strike conviction
brought pursuant to People v.
Superior Court (Romero)> (1996) 13 Cal.4th 497 (>Romero). He also seeks
resentencing under the recent amendments to the three-strikes law, and claims
the imposition of concurrent terms for his convictions constituted
impermissible multiple punishment. We
conclude that counsel was not incompetent for failing to object to the
admission of evidence at the hearing on his Romero
motion, defendant is not entitled to relief in this appeal from his
three-strikes sentence, and the imposition of concurrent terms was not
error. We therefore affirm the judgment.

>STATEMENT OF FACTS AND PROCEDURAL HISTORYhref="#_ftn2" name="_ftnref2" title="">[2]

The
convictions are based on an incident that ensued from efforts by officers of
the Mendocino County Major Crimes Task Force to serve a search warrant at 24615
Birch Street in Willits, a residence occupied by defendant, who was the subject
of a $200,000 arrest warrant from Humboldt County for numerous outstanding
felony charges. At 3:15 p.m., the
officers were advised that defendant was inside the house, armed with a
shotgun. The house was surrounded by a
Special Weapons and Tactical (SWAT) team of officers, and defendant was ordered
to leave the residence and surrender.
Defendant told the officers that he “had a bomb and was not going to
come out without defending himself.”
Nearby residences were evacuated.

Soon
thereafter a loud explosion from inside the residence was heard. Defendant stated that he discharged his
shotgun into the ceiling after a laser was pointed at him. Defendant claimed that he was “facing a third
criminal strike and looking at life in prison.”
He made several demands to the SWAT team, and asserted that he was in
possession of two to four bombs.

At 2:09
a.m., defendant came out of the house and surrendered. He informed the officers that he had disabled
two bombs, but another was left in the bedroom of the residence. The remaining bomb, which contained gun
powder, BB’s and nails, was found in the bedroom and detonated. Officers also discovered a loaded Mossberg
12-gauge shotgun in the house, along with additional shotgun shells and an
expended shell in the bedroom. A large
hole was observed in the bedroom ceiling.

Defendant
stated during subsequent interviews that he “had no intentions of hurting
anyone other than himself.” He was aware
of the Humboldt County arrest warrant, and was attempting to hide at the home a
friend in Mendocino County when the search warrant was served. He decided not “to be taken alive,” due to
the prospect of a life prison term, so he ran into the bedroom where weapons
were located. He used methamphetamine
and intended to kill himself, but after conversations with his family and the
officers he eventually decided to surrender.

Defendant
filed a motion pursuant to Romero, supra,
13 Cal.4th 497, to dismiss one of his prior strike convictions. At the combined Romero motion and sentencing hearing, without objection from the
defense the prosecutor referred to an “attachment” that was omitted from the
opposition to the motion: an “accusatory pleading from Humboldt County.”href="#_ftn3" name="_ftnref3" title="">[3] The prosecutor proceeded to recite the
Humboldt County charges that were pending when defendant left the county:
stalking, corporal injury to a spouse, residential burglary, possession of a
concealed firearm in a vehicle, possession of methamphetamine, possession of a
dirk or dagger, possession of a firearm in a school zone, cruelty to a child by
endangering health, vandalism, “unlawful use of tear gas, and possession of
ingestion device.”

The
prosecutor also submitted a declaration from a Humboldt County assistant
district attorney, Wesley Keat, who reviewed the crime reports related to the
Humboldt County charges, and recited a factual summary in support of a request
to increase bail in that proceeding: On October 14, 2010, the victim reported
to a deputy sheriff that defendant, her “ex-boyfriend,” entered her apartment
uninvited and accused her of “seeing someone else.” When a neighbor called 911 for help,
defendant pushed the victim to the floor, threw her phone down, and left. On October 16, 2010, defendant was
encountered near a high school by a deputy sheriff who was dispatched to
investigate a suspicious person report.
Defendant was found in possession of a 12-gauge shotgun, a dagger and
tear gas, and stated, “I should have done what I was going to do.” Keat added that defendant’s extensive
criminal history, including a prior 13-year sentence for first degree burglary
and taking a hostage with use of a firearm, demonstrates he “poses an extreme
danger to safety and his bail should be increased to reflect that.” In further opposition to the >Romero motion in the present case the
prosecutor narrated a synopsis of Mendocino County convictions. The prosecutor also referred to defendant’s
total of seven prior strike convictions, only two of which were alleged, to argue
that defendant “is a danger to this community.”
Defense counsel responded that the Humboldt County charges would be
“very difficult for Humboldt County to prove,” particularly because the victim
of the charged domestic violence offense wrote a letter on defendant’s behalf
in the present case.

The trial
court denied the motion to dismiss a prior strike, and proceeded to impose
sentence. Defendant was sentenced to a
term of 25 years to life for possession of a destructive device, and a concurrent term of 25 years to
life for possession of a firearm by a convicted felon.

>DISCUSSION

Defendant makes several claims of
ineffective assistance of counsel related to the presentation of his >Romero motion to dismiss one of his
prior strike convictions. His claims are
focused on the failure of his attorney to object to the admission of evidence
of his pending “unadjudicated charges” in Humboldt County, consisting of both
the prosecutor’s recitation of the charges and the declaration of Humboldt
County assistant
district attorney Wesley Keat, which offered a factual synopsis from the police
report of the basis for the charges.
Defendant argues that evidence of the charges was objectionable for two
reasons, neither of which was raised by his attorney: first, the prosecution failed
to give proper advance notice of the evidence; and second, the evidence was
hearsay and admitted in contravention of both his statutory and due process
rights. He therefore asserts that a
“reasonably competent attorney would have objected” to admission of the reading
of the charges and the declaration.
Defendant also faults his attorney for failing to object to the trial
court’s assumption and ultimate finding that he “would be found guilty in
Humboldt County,” based only on the charges and police report, a violation of
his “constitutional right to be presumed innocent until the contrary was proved
beyond a reasonable doubt.”

The
principles that govern defendant’s claim of “constitutionally inadequate
representation are settled.” (>In re Lucas (2004) 33 Cal.4th 682,
721.) “To establish a claim of
inadequate assistance, a defendant must show counsel’s representation was
‘deficient’ in that it ‘fell below an objective standard of
reasonableness. . . . [¶] . . . under prevailing
professional norms.’ [Citations.] In addition, a defendant is required to show
he or she was prejudiced by counsel’s deficient representation. [Citations.]
In determining prejudice, we inquire whether there is a reasonable
probability that, but for counsel’s deficiencies, the result would have been
more favorable to the defendant.” (>People v. Frye (1998) 18 Cal.4th 894,
979.) “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (People
v. Williams (1997) 16 Cal.4th 153, 215; see also In re Jones (1996) 13 Cal.4th 552, 561.)

In addition, the California Supreme
Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light
on why counsel acted or failed to act in the manner challenged[,]
. . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,” the
claim on appeal must be rejected.’
[Citations.]” (>People v. Mendoza Tello (1997) 15
Cal.4th 264, 266.) Without a
definitive indication in the record before us of inexcusable ignorance or
oversight by defendant’s attorney rather than strategic considerations as the
basis for the decision to offer defendant’s testimony, we cannot find
inadequate assistance of counsel on appeal.
(People v. Hart (1999) 20
Cal.4th 546, 630; People v. Williams,
supra, 16 Cal.4th 153, 261–262; People
v. Montiel (1993) 5 Cal.4th 877, 921; People
v. Aubrey (1999) 70 Cal.App.4th 1088, 1105.) “ ‘Because the appellate record ordinarily does not show
the reasons for defense counsel’s actions or omissions, a claim of ineffective
assistance of counsel should generally be made in a petition for writ of habeas
corpus, not on appeal.’
[Citation.]” (>People v. Lucero (2000) 23 Cal.4th 692,
728–729.)

I. The Adequacy of Notice of the Evidence>.

Looking first at trial counsel’s
failure to challenge the lack of notice of the evidence of the Humboldt
charges, we observe that the essence of procedural due process is notice and an
opportunity to respond. (>Cleveland Board of Education v. Loudermill
(1985) 470 U.S. 532, 546; People v. Minor
(2010) 189 Cal.App.4th 1, 18.) “The
quantum and quality of due process
required under specific circumstances varies. . . . ‘The primary purpose of procedural due
process is to provide affected parties with the right to be heard at a
meaningful time and in a meaningful manner.
Consequently, due process is a flexible concept, as the characteristic
of elasticity is required in order to tailor the process to the particular
need. [Citations.] Thus, not every situation requires a formal
hearing accompanied by the full rights of confrontation and cross-examination.
[Citation.] “What due process does
require is notice reasonably calculated to apprise interested parties of the
pendency of the action affecting their property interest and an opportunity to
present their objections. . . . .” [Citation.]’ ” (People
v. Minor, supra, at p. 20, quoting from
Ryan v. California Interscholastic Federation-San Diego Section (2001) 94
Cal.App.4th 1048, 1069–1072.)

At a sentencing hearing, a
defendant’s due process rights are protected if he is given notice of potential
aggravating and mitigating factors prior to the hearing or in the probation
report (§ 1203.72), and an opportunity to contest those factors; the rigorous
procedural safeguards required during the guilt phase are not required. (People
v. French (2008) 43 Cal.4th 36, 48; People
v. Foster (1993) 14 Cal.App.4th 939, 947; People v. Rivera (1989) 212 Cal.App.3d 1153, 1161.) Evidence pertinent to sentencing decisions,
in the nature of statements in aggravation and mitigation, must be filed and
served at least four days before the time set for sentencing under section 1191
or the time set for pronouncing judgment on revocation of probation under
section 1203.2, subdivision (c) if imposition of sentence was previously
suspended. (§ 1170, subd. (b);
rule 4.437(a).)href="#_ftn4"
name="_ftnref4" title="">[4] Any sentencing statement may include a
“summary of evidence that the party relies on as circumstances justifying the
imposition of a particular term,” and “generally describe the evidence to be
offered, including a description of any documents and the names and expected
substance of the testimony of any witnesses.”
(Rule 4.437(c)(1), (2).) “No
evidence in aggravation or mitigation may be introduced at the sentencing
hearing unless it was described in the statement, or unless its admission is
permitted by the sentencing judge in the interests of justice,” and
“[a]ssertions of fact in a statement in aggravation or mitigation must be
disregarded unless they are supported by the record in the case, the probation
officer’s report or other reports properly filed in the case, or other
competent evidence.” (Rule 4.437(c)(2),
(d).)

Here, the probation report was
timely filed, as was the prosecution’s opposition to the Romero motion, both of which referred to the pending Humboldt
County charges. The recitation of the
charges and the declaration, which contained more detailed information about
the Humboldt County charges, were omitted from the documents or attachments,
apparently inadvertently. However, the
declaration was given to defense counsel during discovery. A statement of the factual basis for the
Humboldt County charges was also included in a psychological evaluation and
report provided to defense counsel well before the hearing. Defense counsel’s argument at the hearing
reveals that she was thoroughly informed of the nature and underlying substance
of the Humboldt County charges. Not only
that, counsel took advantage of the opportunity to fully respond to the
prosecution’s reference to the charges.
Any failure of the prosecution to provide further notice of the
sentencing information did not constitute a violation of defendant’s due
process rights and was not prejudicial to him.
(People v. Minor, supra, 189
Cal.App.4th 1, 18–19.) Thus, counsel’s failure to
object to the presentation of the information on the ground of lack of notice
was not prejudicial to defendant.

II. The Admissibility of the Evidence.

We turn to
defendant’s claim that the evidence of the Humboldt County charges was
inadmissible. Defendant submits that the
prosecution’s reference to the “unadjudicated charges without supporting facts”
was impermissible, and the contents of the declaration by Keats, which
described the two incidents on which the charges were based, was hearsay. Defendant therefore argues that a “reasonably
competent attorney would have objected” to both the reading of the Keats’
declaration and the “prosecutor’s recitation of the allegation of the Humboldt
County charges.”

We conclude
that no improper consideration of evidence occurred. The “ ‘scope of information a sentencing
court may consider is
very broad . . . .’ ”
(People v. Whitten (1994) 22 Cal.App.4th 1761, 1766, quoting
People v. Stanley (1984) 161 Cal.App.3d 144, 150.)href="#_ftn5" name="_ftnref5" title="">>[5] “ ‘ “ ‘Due process does not
require a judge to draw sentencing information through the narrow net of
courtroom evidence rules . . . [.
S]entencing judges are given virtually unlimited discretion as to the
kind of information they can consider and the source . . . whence it
comes.’ [Citation.]” [Citation.]’
[Citation.]” (>People v. Prosser (2007) 157 Cal.App.4th
682, 692; see also People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) “ ‘Due process does not require that a
criminal defendant be afforded the same evidentiary protections at sentencing
proceedings as exist at trial.
[Citations.] A sentencing judge
may consider responsible unsworn or out-of-court statements concerning the
convicted person’s life and characteristics.
[Citations.]’ [Citation.]” (People
v. Roberts (2011) 195 Cal.App.4th 1106, 1128; see also People v. Arbuckle (1978) 22 Cal.3d 749, 754–755.) “Fundamental fairness, however, requires that
there be a substantial basis for believing the information is reliable.” (People v. Lamb (1999) 76 Cal.App.4th
664, 683.) “ ‘Reliability of the
information considered by the court is the key issue in determining fundamental
fairness’ in this context.” (>People v. Eckley (2004) 123 Cal.App.4th
1072, 1080.)

The fact that the probation report
and declaration contained hearsay is in itself not improper. (People
v. Santana (1982) 134 Cal.App.3d 773, 780; People v. Valdivia (1960) 182 Cal.App.2d 145, 148.) “Due process does not prohibit the ‘use where
appropriate of the conventional substitutes for live testimony, including >affidavits, depositions, and documentary
evidence.’ [Citation.] Documentary evidence must be accompanied by
reasonable indicia of reliability to be admissible.” (People
v. Gomez (2010) 181 Cal.App.4th 1028, 1034, italics added.) “California law affords the trial court broad
discretion to consider relevant evidence at sentencing. ‘[T]he court may consider the record in the
case, the probation officer’s report, other reports including reports received
pursuant to Section 1203.03 and statements in aggravation or mitigation
submitted by the prosecution, the defendant, or the victim, or the family of
the victim if the victim is deceased, and any further evidence introduced at
the sentencing hearing.’ (§ 1170,
subd. (b).) The trial court may consider
any ‘criteria reasonably related to the decision being made.’ (Cal. Rules of Court, rule 4.408(a).) The court specifically is authorized to
consider ‘the record in the case.’ (§
1170, subd. (b).)” (People v. Towne (2008) 44 Cal.4th 63, 85, fn. omitted.)

Defendant claims that consideration
of the affidavit and the prosecutor’s narration of the Humboldt County charges
violated sections 1203 and 1204, which provide that at a sentencing hearing the
aggravating and mitigating circumstances shall be presented by the testimony of
witnesses examined in open court, and no affidavit or testimony, or
representation of any kind, verbal or written, can be offered to or received by
the court, or a judge thereof, in aggravation or mitigation of the punishment,
except as stated in the written probation report, which may include any
information gathered by a law enforcement agency relating to the defendant.href="#_ftn6" name="_ftnref6" title="">[6] “Under sections 1203 and 1204, the sentencing
judge may receive information upon which to base his decision in either (1) a
probation report, which must be provided to the defendant at least two days
before sentencing, or (2) a hearing in open court on aggravating, or mitigating
circumstances. Section 1204 prohibits receipt of information from other
sources.” (In re Calhoun (1976) 17 Cal.3d 75, 83; see also >id. at pp. 80–85; and see >In re Hancock (1977) 67 Cal.App.3d 943,
948, fn. 6, para. 2.)

Sections 1203 and 1204 do not govern
receipt or admissibility of evidence at a hearing on a Romero motion pursuant to section 1385 to strike a prior
conviction. The Romero proceeding is not one in which the court merely considers
statutory aggravating and mitigating circumstances under sections 1203 and
1204. Rather, “In exercising its
discretion to strike a prior felony conviction pursuant to section 1385,
subdivision (a), or in reviewing such a ruling, the court must consider
‘whether, in light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the
scheme’s spirit, in whole or in part, and hence should be treated as though he
had not previously been convicted of one or more serious and/or violent
felonies.’ [Citation.]” (People
v. Lee (2008) 161 Cal.App.4th 124, 127–128.)

Here, the prosecutor’s recitation of
the Humboldt County charges, and the declaration of assistant district
attorney Keat based on the police reports of the charged crimes, bore the
requisite indicia of reliability and were not demonstrated to be inadequate or misleading in any
way. (People v. Santana, supra, 134 Cal.App.3d 773, 783.) Defendant was aware of the nature, grounds,
and consequences of the evidence, and was afforded the opportunity to present
evidence or argument in opposition to counteract or correct any portion of the
information related to the Humboldt County charges. Defendant did not have the fundamental
constitutional right to confront and cross-examine the declarants, but rather
was limited to challenging the statements by presenting his own evidence. (See People
v. Sapp (2003) 31 Cal.4th 240, 291; People
v. Arbuckle, supra, 22 Cal.3d 749, 754–755; In re Romeo C. (1995) 33 Cal.App.4th 1838, 1846–1847; >People v. Goodner (1992) 7 Cal.App.4th
1324, 1329.) Without any indication in
the record before us that the information was materially untrue, the trial
court was authorized to consider hearsay statements in the declaration. (See People
v. Eckley, supra, 123 Cal.App.4th 1072, 1080.) We conclude that admission of the evidence did not violate defendant’s
statutory or procedural due process rights.
(People v. Minor, supra, 189
Cal.App.4th 1, 22–23.) Therefore,
counsel was not incompetent for failing to make an objection that
ultimately would have proved futile. (>People v. Mendoza (2000) 24 Cal.4th 130,
171.)

III. The Trial Court’s
Consideration of the Evidence.

Defendant also asserts that counsel
was incompetent for failing to object to the trial court’s “finding that the
unproved charges were probably true,” in violation of the presumption of
innocence. We are dubious that defense
counsel may be found incompetent for not contesting a finding by the trial court.
In any event, the court did not make an improper assumption that
defendant “would be found guilty in Humboldt County,” as defendant
suggests. Instead, the court properly
considered the Humboldt County charges and the declaration merely as evidence
pertinent to the Romero motion, not
as convictions. The court commented that
defendant was “consciously aware” of the “potential third strike offense,” and
the “probability that he was facing a third strike conviction” in Humboldt
County, not to assume defendant would be convicted, but as a “troubling” factor
that precipitated the Mendocino County “standoff” with the police. The court was justified in considering the
conduct underlying the pending Humboldt
County charges that did not yet, and ultimately may not, result in
convictions. Facts relevant to
sentencing need be proved only by a preponderance of the evidence, and in a
sentencing proceeding which is governed by a standard of proof lower than
beyond a reasonable doubt, the court may even consider an acquittal of href="http://www.fearnotlaw.com/">criminal charges. (See United
States v. Watts (1997) 519 U.S. 148, 156–157; Dowling v. United States (1990) 493 U.S. 342, 349; >People v. Towne, supra, 44 Cal.4th 63,
86.) Finally, in light of the entire
record, even without consideration of the Humboldt County charges it is not
reasonably probable the court would have granted defendant’s >Romero motion. No incompetence of counsel or prejudice has
been established.

IV. The Effect of the Amendment of the Three Strikes
Law.

In a supplemental brief, defendant
raises two additional issues, the first of which is that he should be granted
retroactive application of the recent amendment of the three strikes law. On November 6, 2012, California voters
approved Proposition 36, which modified the three strikes law; the enactment
was effective the following day.
Proposition 36 limits three strikes sentences to current convictions for
serious or violent felonies, or a limited number of other felonies that the
record does not on its face establish here.
(See §§ 1170.12, subd. (c), 667, subd. (c).) Defendant was sentenced before the effective
date of Proposition 36 to 25 years to life under the former three strikes law
for crimes that were neither serious nor violent felonies. If defendant had been sentenced today, he
would not be subject to a 25-year-to-life three-strikes sentence unless the
prosecution were to plead and prove one of the specified exceptions to the
third-strike sentencing limitation.href="#_ftn7"
name="_ftnref7" title="">[7]

Defendant points out that if he had
been sentenced under the Proposition 36 version of the three strikes law his
maximum term would be seven years and four months on counts 1 and 2, plus two
years for the “on bail” enhancement, rather than 25-years-to-life. He acknowledges that Proposition 36 also
added section 1170.126, subdivision (a), which explicitly provides for the
resentencing of “persons presently serving an indeterminate term of
imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or
paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this
act would not have been an indeterminate life sentence.” A person serving a three strikes sentence for
a current conviction that is not a serious or violent felony “may file a
petition for a recall of sentence, within two years after the effective date of
the act that added this section or at a later date upon a showing of good
cause, before the trial court that entered the judgment of conviction in his or
her case, to request resentencing in accordance with” Proposition 36. (Pen. Code, § 1170.126, subd. (b).) An inmate is eligible for resentencing unless
he has prior convictions for certain specified offenses. (Id.,
subd. (e).) If the prisoner is eligible,
then the trial court will resentence the defendant “unless the court, in its
discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.”
(Id., subd. (f).) The factors governing the exercise of the
trial court’s discretion—the prisoner’s criminal history, record in prison and
any other relevant evidence—are set forth in Penal Code section 1170.126,
subdivision (g).”href="#_ftn8" name="_ftnref8"
title="">[8]

Defendant argues that he should not
be relegated to the resentencing specifications of section 1170.126 – that is,
a petition for recall of his sentence.
He claims the ameliorative provisions of Proposition 36 were not
intended by the voters to be given limited, retroactive application only to
“future sentencing,” but instead should be available to “defendants whose cases
are not final” on the effective date of the initiative. He maintains that in accord with the
venerable decision in In re Estrada
(1965) 63 Cal.2d 740, he is “entitled to the benefit of a change in the law
during the pendency of his appeal,” which would grant him the absolute right to
resentencing under sections §§ 1170.12, subdivision (c), and 667, subdivision
(c). He also contends that to treat him
and his class of defendants “differently [than] defendants sentenced after the
adoption of ‘Three Strikes Reform’ would create serious issues of equal
protection of the law under the Fourteenth Amendment.”

The same challenge to prospective
operation of Proposition 36 was presented in People v. Yearwood (Feb. 19, 2013, F063712) ___ Cal.App.4th ___
(2013 Lexis 58, *1), where the appellant was convicted of an offense that is
not a serious felony within the meaning of section 1192.7, subdivision (c), or
a violent felony within the meaning of section 667.5, subdivision (c), one
count of unlawfully possessing marijuana in prison (§ 4573.6.), and
sentenced as a third strike offender to 25 years to life imprisonment plus one
year. Two prior strike allegations and one
prior prison term allegation were sustained.
(§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(c), 667.5, subd.
(b).) (Yearwood, supra, at p. *1.)
Like defendant in the present case, if Yearwood had been sentenced for
the marijuana possession conviction after the effective date of Proposition 36,
an indeterminate life sentence would not have been imposed. The court was called upon “to decide if the
amendments to sections 667 and 1170.12 apply retroactively to prisoners who
were sentenced prior to the Act’s effective date but whose judgments were not
final as of that date.” (>Yearwood, supra, at p. *3.) The court concluded “that the common law
doctrine embraced by the California Supreme Court in In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948]
(Estrada) does not apply because section
1170.126 operates as the functional equivalent of a saving clause. The voters intended for the amendments to
sections 667 and 1170.12 to operate prospectively only. Section 1170.126 is not ambiguous. It applies to prisoners, like appellant,
whose judgments were not final on the Act’s effective date.” (Id.
at pp. *3–*4.) The court observed: “The voters intended a petition for recall
of sentence to be the sole remedy available under the Act for prisoners who
were serving an indeterminate life sentence imposed under the former three
strikes law on the Act’s effective date without regard to the finality of the
judgment.” (Id. at p. *13.) The court
explained: “The postconviction release proceeding crafted in section 1170.126
operates as the functional equivalent of a saving clause. In part, section 1170.126(b) provides that
‘[a]ny person serving an indeterminate term of life imprisonment’ imposed for a
third strike conviction ‘may file a petition for a recall of sentence.’ The quoted phrase is not ambiguous. Section 1170.126(b) could have been, but was
not, drafted so that it applied only to prisoners whose judgments were final
before the Act’s effective date. We
believe that section 1170.126(b) is correctly interpreted to apply to all
prisoners serving an indeterminate life sentence imposed under the former three
strikes law. The finality of the
judgment is not determinative for purposes of section 1170.126(b).” (Id.
at p. *19, fn. omitted.)

In response to the appellant’s claim
in Yearwood that prospective-only
application of amended sections 667 and 1170.12 infringes his equal protection
rights, the court decided that under the governing rational relationship test:
“Prospective application of amended sections 667 and 1170.12 furthers
legitimate interests and does not unfairly discriminate against appellant. A prisoner who was sentenced to an
indeterminate life term before the Act’s effective date may file a section
1170.126 petition upon finality of the judgment. If qualified, the prisoner will ordinarily
receive the same sentencing reduction that would have been obtained if he or
she had been resentenced under amended sections 667 and 1170.12. The discretionary public safety exception to
second strike sentencing that is present in section 1170.126, but not in
amended sections 667 and 1170.12, is rationally related to a legitimate state
interest. It increases the likelihood
that prisoners whose sentences are reduced or who are released due to the Act
will not pose an unreasonable risk of danger to the public. Thus, the distinction drawn between felony
offenders sentenced before, and those offenders who are sentenced after the
Act’s effective date, does not violate appellant’s state or federal equal
protection rights.” (>People v. Yearwood, supra, ___
Cal.App.4th ___ Lexis 58, *28–*29; see also People
v. Brown (2012) 54 Cal.4th 314, 318, 330.)


We agree with the reasoning in >Yearwood and conclude that prospective
application of Proposition 36 comports with the intent of the voters and does
not deny defendant equal protection.

V. The Imposition of a Concurrent Term on Count 2.

Also in his supplemental brief,
defendant challenges the imposition of a concurrent term for the conviction of
possession of a firearm by a convicted felon as charged in Count 2
(§ 12012, subd. (a)(1)). Defendant
submits that the record fails to show, and the trial court made no finding,
that his possession of a destructive device (§ 12303), which is the basis
for the plea and conviction of Count 1, had “any other intent and objective in
possessing the shotgun than the intent and objective he had in possessing the
pipebomb.” He therefore argues that
multiple punishment for the two convictions may be barred under section 654,
and asks that we reverse the concurrent sentence on Count 2 and remand the case
for a new sentencing hearing at which the “factual issues” of whether the two
offenses were “parts of the same course of conduct, and were incident to the
same intent and objective” for purposes of the proscription against multiple
punishment, may be resolved.href="#_ftn9"
name="_ftnref9" title="">[9]


Defendant relies on the established
rule that the double jeopardy clause of the Fifth Amendment and section 654
forbid multiple punishment for the same offense. (People
v. Osband (1996) 13 Cal.4th 622, 730; People
v. Wader (1993) 5 Cal.4th 610, 670.)
“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
provision.’ [Citations.]” (People
v. Calles (2012) 209 Cal.App.4th 1200, 1215; see also People v. Kramer (2002) 29 Cal.4th 720, 722; People v. Hall (2000) 83 Cal.App.4th 1084, 1088.)

According to its plain language,
“ ‘section 654 proscribes double punishment for multiple violations of the
Penal Code based on the “same act or omission.” ’ [Citation.]”
(People v. Atencio (2012) 208
Cal.App.4th 1239, 1243.) The California
Supreme Court recently confirmed that “Section 654 prohibits multiple
punishment for a single physical act that violates different provisions of
law.” (People v. Jones (2012) 54 Cal.4th 350, 358.)

Our courts also continue to follow a
clear protocol in applying section 654 to multiple act cases, such as this
one. “[W]hen a defendant’s crimes
involve a course of conduct, ‘[w]hether [the] 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.’ [Citation.]” (People
v. Atencio, supra, 208 Cal.App.4th 1239, 1244.) While section 654 bars multiple punishment
where the defendant’s course of conduct violated more than one statute but
nevertheless comprised a single act or indivisible transaction, the statute
“does not apply when the evidence discloses that a defendant entertained
multiple criminal objectives independent of each other. In that case, ‘the trial court may impose
punishment 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.
[Citations.] . . .’
[Citation.]” (>In re Jose P. (2003) 106 Cal.App.4th
458, 469.) “[M]ultiple crimes that arise from a
single course of criminal conduct may be punished separately, notwithstanding
section 654, if the acts constituting the various crimes serve separate
criminal objectives.” (>People v. Davey (2005) 133 Cal.App.4th
384, 390.) “[I]f the evidence discloses
that a defendant entertained multiple criminal objectives which were
independent of and not merely incidental to each other, the trial court may
impose punishment 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.
[Citations.] The principal
inquiry in each case is whether the defendant’s criminal intent and objective
were single or multiple. Each case must
be determined on its own facts.” (>People v. Liu (1996) 46 Cal.App.4th
1119, 1135.)

“ ‘The
question of whether the acts of which defendant has been convicted constitute
an indivisible course of conduct is primarily a factual determination, made by
the trial court on the basis of its findings concerning the defendant’s intent
and objective in committing the acts. . . .’ [Citation.]”
(People v. Nichols (1994) 29
Cal.App.4th 1651, 1657; see also People
v. Coleman (1989) 48 Cal.3d 112, 162; People
v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) Where, as
here, “a trial court sentences a defendant to separate terms without making an
express finding the defendant entertained separate objectives, the trial court
is deemed to have made an implied finding each offense had a separate
objective.” (People v. Islas (2012) 210 Cal.App.4th 116, 129.) “ ‘ “ ‘A trial court’s implied
finding that a defendant harbored a separate intent and objective for each
offense will be upheld on appeal if it is supported by substantial
evidence.’ [Citation.]” [Citation.]’
[Citations.]” (>People v. McKinzie (2012) 54 Cal.4th
1302, 1368; see also People v. Blake
(1998) 68 Cal.App.4th 509, 512.)

Defendant possessed two distinctly
different types of weapons. Destructive
devices and shotguns are used for different purposes and in different contexts,
and defendant may have possessed the weapons beginning at different times. The possession of both types of weapons was
antecedent to and separate from the altercation that commenced when the police
arrived at the house. Thus, no single
course of criminal conduct is associated with possession offenses. Multiple criminal acts of possession of two
different classes of weapons were committed.
Defendant stated that he possessed the pipe-bombs to “keep the police
from entering the house before he was ready,” but discharged only the shotgun
to protect himself when threatened by a laser pointed at him. We conclude that the evidence supports the
implied finding that the possession offenses were committed for different
objectives for purposes of section 654.
Imposition of concurrent terms on Counts 1 and 2 was not error.

Accordingly, the judgment is
affirmed.






>

	__________________________________ Dondero, J.
We concur: __________________________________ Marchiano, P. J. __________________________________ Banke, J.