P. v. Sanders

















Filed 1/15/13 P. v. Sanders CA5

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NOT TO BE PUBLISHED IN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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

FIFTH APPELLATE DISTRICT


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THE PEOPLE, Plaintiff and Respondent v. MAURICE D. SANDERS, Defendant and Appellant.

F059287 (Super. Ct. No. BF126309A) >OPINION

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County. Michael E. Dellostritto, Judge.



Robert Navarro,
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, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and
Respondent.

-ooOoo->

INTRODUCTION

Two
shotguns were found in the master bedroom closet of the apartment where
appellant Maurice D. Sanders resided with his wife. Appellant was convicted after jury trial of
two counts of unlawfully possessing a
firearm after conviction of a felony (counts 1 & 3; former Pen. Code,
§ 12021, subd. (a)(1))href="#_ftn1"
name="_ftnref1" title="">^[1] and two counts of possessing a
firearm after conviction of a specified violent offense (counts 2 & 4;
former § 12021.1, subd. (a)).href="#_ftn2" name="_ftnref2" title="">^[2] All four counts were based
on his simultaneous possession of two firearms.
The court found four prior strike allegations and three prior prison
term allegations to be true.
(§§ 667, subds. (a)-(e), 1170.12, 667.5, subd. (d).) Appellant was sentenced on counts 1 and 3 to
25-years-to-life imprisonment; the term imposed on count 3 was ordered to run
concurrently with the term imposed on count 1. He was sentenced to terms of
25-years-to-life imprisonment on counts 2 and 4 but imposition of punishment
was stayed pursuant to section 654. The
court struck all of the prior prison term enhancements.

Appellant
appealed the judgment. This court held
that the corpus deliciti of the offenses were adequately established. We also held that counts 2 and 4 must be
reversed because the violations of section 12021.1 are lesser included offenses
of the violations of section 12021 (counts 1 and 3), and that the term imposed
for count 3 must be stayed pursuant to section 654.

Appellant filed
a petition for review in the California Supreme Court challenging the
sufficiency of the evidence. The
petition for review was denied. On its
own motion, the Supreme Court granted review limited to the following two
issues: “‘(1) Is possession of a firearm
after conviction of a specified violent offense (Pen. Code § 12021.1,
subd. (a)) a necessarily included offense of possession of a firearm after
conviction of a felony (Pen. Code, § 12021, subd. (a)(1))?’ and ‘(2) Was
defendant properly sentenced to concurrent terms for his simultaneous
possession of two firearms in violation of Penal Code section 12021,
subdivision (a)(1)?’” (>Sanders, supra, 55 Cal.4th at p.
735.)

On November 19,
2012, the Supreme Court decided Sanders,
supra, 55 Cal.4th 731. >Sanders held “that neither section
12021(a)(1) nor section 12021.1(a) is a necessarily included offense of the
other, because it was possible to commit either offense without committing the
other.” (Id. at p. 741.) Therefore,
“the rule against multiple convictions for necessarily included offenses does
not bar defendant’s separate convictions for violating both sections based on
possession of the same weapon. The Court
of Appeal erred in reversing defendant’s convictions on counts two and
four.” (Ibid.) Sanders also held that appellant “may be separately punished for
two violations of section 12021(a)(1) and of section 12021.1(a) based on his
simultaneous possession of two firearms.”
(Id. at p. 745.) Yet, appellant “may not be separately
punished for violations of sections 12021(a)(1) and 12021.1(a) based on
possession of the same firearm.” (>Ibid.)
The Supreme Court reversed our judgment insofar as we reversed the two
convictions and ordered the sentence on count 3 to be stayed. It remanded the matter to this court for
further proceedings consistent with its opinion.

Following and
applying the Supreme Court’s guidance, we will affirm all of the
convictions. We will modify the sentence
as follows: (1) execution of the sentences imposed for counts 1 and 3 will be
ordered stayed pursuant to section 654; and (2) the stay on execution of the
sentences imposed for counts 2 and 4 will be lifted. So modified, the judgment will be affirmed.

FACTS

On January 14,
2009, Bakersfield Police Officers Paul Yoon and Stephen Kauffman contacted
appellant. Appellant told them he lived
with his wife somewhere in downtown Bakersfield but he did not know his address
or phone number.

A parole search
was conducted of appellant’s person. He
possessed a key ring containing, inter alia, a car key and a house key. The car key fit the ignition of a vehicle
parked nearby. Inside the vehicle,
officers found a bank statement addressed to Tamu Tenison at an apartment in
Bakersfield (the Bakersfield apartment).


Officer Kauffman
telephoned Tamu, who said she was married to appellant in December 2008.

Appellant
telephoned Tamu. During their
conversation, appellant said, “Baby, remember when I brought the thing into the
house, you asked me about it? I told you
not to worry about it. It was some
guns.”

Some Bakersfield
police officers, including Officer Kauffman and Officer Joshua Finney, arrived
to search the Bakersfield apartment.
Kauffman opened the front door using one of the keys on appellant’s key
ring. During a protective sweep of the
apartment, officers noted the door of the master bedroom closet was open. Two shotguns were found in the master bedroom
closet, along with several 20-gauge and 12-gauge shotgun shells. The shotguns were in plain view. Although one of them was covered, it was
still identifiable as a firearm. One of the shotguns was a 12-gauge pump-action
type and the other was a 20-gauge bolt action type. Both shotguns were operable.

A duffel bag was
found resting on the ground in the master bedroom. It contained men’s clothing and a letter from
the Department of Corrections and Rehabilitations addressed to appellant at an
address in Palmdale. A photograph of
appellant was found in the living room.
A photograph of appellant and Tamu was found in the master bedroom.

The field arrest
data sheet reflects that appellant gave the Bakersfield address as his
residence. Appellant told Officer Finney
he stays at the Bakersfield apartment with Tamu when he is in Bakersfield but
he lives in Palmdale.

Appellant gave a
statement to Officer Finney. In relevant
part, appellant said he was married to Tamu but did not live with her. Appellant said he purchased the shotguns for
Bakersfield Police Officer Mason Woessner.
Appellant said that he had been stopped by Woessner and had made a deal
with him to find information for him in exchange for getting some unrelated
charges dismissed. Appellant said he
purchased the guns from a “crack head” on the day of his arrest.

Officer Woessner
testified on December 30, 2008, he stopped a vehicle driven by Tamu in which
appellant was a passenger. Appellant
initially gave Woessner a false name. He
told Woessner he wanted to “work off” the situation by becoming a confidential
informant concerning drugs and firearm possession. Woessner did not ask appellant to purchase
firearms for him and did not say anything that would have led appellant to
believe that Woessner wanted him to do so. Appellant never indicated to
Woessner that he was going to purchase some firearms. Appellant did not tell Woessner he had
purchased the shotguns.

It was
stipulated that appellant was convicted of a felony within the meaning of
sections 12021 and 12021.1 prior to January 14, 2009.

Appellant’s
sister-in-law, Danyell Sanders, testified appellant lived in Palmdale with
appellant’s brother and her.

Appellant
testified he lived in Palmdale at the time of his arrest. Appellant further testified Officer Woessner
telephoned him several times. During one
of their conversations, Woessner offered to pay appellant $75 to $100 for
shotguns and $100 to $300 for fully automatic weapons. Tamu listened to this conversation. She bought the shotguns. She thought that if appellant gave Woessner
what he wanted, he would stop telephoning appellant.

DISCUSSION

>I. The Corpus Delicti of the Offenses was Adequately Proven.

A. The corpus delicti rule.

“In every criminal trial, the
prosecution must prove the corpus delicti, or the body of the crime
itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal
agency as its cause. In California, it
has traditionally been held, the prosecution cannot satisfy this burden by
relying exclusively upon the
extrajudicial statements, confessions, or admissions of the defendant. [Citations.]
Though mandated by no statute, and never deemed a constitutional
guaranty, the rule requiring some independent proof of the corpus delicti has
roots in the common law.
[Citation.]” (>People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).)

The
corpus delicti “rule is intended to ensure that one will not be falsely
convicted, by his or her untested words alone, of a crime that never
happened. [Citations.]” (Alvarez,
supra, 27 Cal.4th at p. 1169.) “[T]he rule in
California has been that one cannot be convicted when there is no proof a crime
occurred other than his or her own earlier utterances indicating a
predisposition or purpose to commit it.”
(Id. at p. 1171.)

The corpus delicti rule is not onerous. In California, it only “require[s] some
independent proof of the corpus delicti itself, i.e., injury, damage, or loss
by a criminal agency. [Citation.]” (Alvarez,
supra, 27 Cal. 4th at p. 1169, fn. 3.)
“A slight or prima facie showing, permitting the reasonable inference
that a crime was committed, is sufficient.
[Citations.]” (>People v. Alcala (1984) 36 Cal.3d 604,
624-625.)

“The independent proof may be
circumstantial and need not be beyond a reasonable doubt, but is sufficient if
it permits an inference of criminal conduct, even if a noncriminal explanation
is also plausible. [Citations.] There is no requirement of independent
evidence ‘of every physical act constituting an element of an offense,’ so long
as there is some slight or prima facie showing of injury, loss, or harm by a
criminal agency. [Citation.] In every case, once the necessary quantum of
independent evidence is present, the defendant’s extrajudicial statements may
then be considered for their full value to strengthen the case on all
issues. [Citations.]” (Alvarez,
supra, 27 Cal.4th at p. 1171.)

The
corpus delicti rule applies in various contexts. “[A]ppellate courts have entertained direct
claims that a conviction cannot stand because the trial record lacks
independent evidence of the corpus delicti.
[Citations.]” (>Alvarez, supra, 27 Cal.4th at p.
1170.) When such a claim is raised, the
entire record is reviewed to determine if it contains some evidence,
independent of the defendant’s extrajudicial statements, from which one could
reasonably infer that a crime was committed.
(See, e.g., People v. Morales
(1989) 48 Cal.3d 527, 553; People v.
Wright (1990) 52 Cal.3d 367, 403-405.)


B. The evidence adequately establishes the
corpus delicti of the charged crimes.

Appellant
contends all four convictions must be reversed because “no sufficient prima
facie showing was made regarding the elements of possession (custody or
control) and knowledge.” We are not
convinced.

When a defendant
is charged with violating section 12021, the corpus delicti rule requires
slight proof of “(1) conviction of a felony and (2) ownership or possession of
a firearm. [Citation.]” (People
v. Hilliard (1963) 221 Cal.App.2d 719, 724; § 12021, subd.
(a)(1).) Section 12021.1 adds the
requirement that the defendant has been previously convicted of a specified
violent felony. (§ 12021.1, subd.
(b).)

Appellant
acknowledges that he stipulated to having suffered three prior felony
convictions of moral turpitude.
Therefore, we must determine only whether there is slight or minimal
evidence supporting a reasonable inference that appellant knowingly possessed
the shotguns. The record contains such
evidence.

“Possession may be actual or
constructive. Actual possession means
the object is in the defendant’s immediate possession or control. A defendant has actual possession when he
himself has the weapon. Constructive
possession means the object is not in the defendant’s physical possession, but
the defendant knowingly exercises control or the right to control the
object. [Citation.] Possession of a weapon may be proven
circumstantially, and possession for even a limited time and purpose may be
sufficient. [Citation.]” (In re
Daniel G. (2004) 120 Cal.App.4th 824, 831.)


Constructive
“‘possession may be imputed when the contraband is found in a place which is
immediately and exclusively accessible to the accused and subject to his
dominion and control, or to the joint dominion and control of the accused and
another.’ [Citation.]” (People
v. Johnson (1984) 158 Cal.App.3d 850, 854.)


It is undisputed
that Tamu lived at the Bakersfield apartment.
She told officers she married appellant in December 2008. Appellant possessed a key to the front door
of the Bakersfield apartment. There were
two photographs of appellant in the Bakersfield apartment, one was in the
living room and the other was in the master bedroom. A duffle bag containing men’s clothing and
paperwork addressed to appellant was found in the apartment. This evidence is sufficient to permit a
reasonable inference that appellant resided at the Bakersfield apartment with
his wife.

Two shotguns
were found inside the master bedroom closet of the Bakersfield apartment. The closet’s door was open and shotguns were
in plain view. Although one was covered,
it was still recognizable to officers as a firearm. Officer Yoon testified, “They were partially
wrapped up in a blanket leaned up against the closet. I could see the tubes of the shotguns and a
butt stalk of one of the shotguns.” The
duffle bag, which contained paperwork addressed to appellant, was found resting
on the floor of the master bedroom. A
photograph of appellant and Tamu was found in the master bedroom. This evidence is sufficient to support a
prima facie inference that appellant used the master bedroom, including the
master bedroom closet, and he possessed and had knowledge of the shotguns.

We therefore
conclude the corpus delicti rule was satisfied; this challenge to the
sufficiency of the evidence fails.href="#_ftn3" name="_ftnref3" title="">^[3]

>II. Counts 2 and 4 are Not Necessarily Included Offenses of
Counts 1 and 3.

Appellant
contends that counts 2 and 4 must be reversed because the violations of section
12021.1, subdivision (a), are lesser included offenses of the violations of
section 12021, subdivision (a). The
Supreme Court resolved this issue adverse to appellant’s position.href="#_ftn4" name="_ftnref4" title="">^[4] It held that “neither
section 12021(a)(1) nor section 12021.1(a) is a necessarily included offense of
the other, because it was possible to commit either offense without committing
the other. [Citation.] Accordingly, the rule against multiple
convictions for necessarily included offenses does not bar defendant’s separate
convictions for violating both sections based on possession of the same
weapon.” (Sanders, supra, 55 Cal.4th at p. 741.) Thus, appellant was properly convicted for
the simultaneous possession of two firearms of two counts of violating section
12021, subdivision (a)(1) and two counts of section 12021.1, subdivision
(a). (Sanders, supra, at p. 741.)

III. Section
654 Does Not Preclude Imposition of Separate Punishment For Each Firearm that
Appellant Illegally Possessed.

The probation
report recommended a term of 25-years-to-life be imposed for count 3
(possession of the 12-gauge shotgun). It
also recommended this term run concurrently with the term imposed for count 1
(possession of the 20-gauge shotgun).
The trial court sentenced appellant in accordance with both of these
recommendations. The trial court also
imposed terms of 25-years-to-life for counts 2 and 4 but stayed execution of
these terms under section 654.

Appellant argues
the term that was imposed for count 3 must be stayed pursuant to section
654. The Supreme Court rejected this
argument in Sanders, supra, 51
Cal.4th 731. It explained that in >People v. Correa (2012) 54 Cal.4th 331,
it had “announced, as a new rule,
that section 654 does not bar multiple punishments for violations of the same
provisions of law.” (>Sanders, supra, at p. 742, italics
added.) The Sanders court further explained that “the Legislature had
specifically exempted section 12021(a)(1) from the application of section 654
in circumstances where a defendant is found in possession of several
firearms.” (Sanders, supra, at p. 742.)
“‘[T]he magnitude of a felon’s culpability depends on the number of
weapons he or she possesses.’” (>Ibid.)
Therefore, appellant’s “two convictions for violating section
12021(a)(1), based on his simultaneous possession of two firearms, are exempt from section 654’s application because the
Legislature intended that the possession of ‘each firearm … shall constitute a
distinct and separate offense …’ under that statute. (§ 12001, subd. (k).) The same is true of [appellant’s] two
convictions for violating section 12021.1(a).
(§ 12001, subd. (k).)” (>Sanders, supra, at p. 743.)

Yet, appellant
“may not be separately punished for
violations of sections 12021(a)(1) and 12021.1(a) based on his possession of
the same firearm, even though
multiple convictions for both
offenses were proper.” (>Sanders, supra, 55 Cal.4th at p.
743.) The punishment for violating
section 12021.1, subdivision (a) provides for the longest potential term of
imprisonment. Therefore, “[i]t would
have contravened legislative intent to stay execution of sentence on a section
12021.1(a) conviction in favor of imposing sentence on a section 12021(a)(1)
conviction.” (Sanders, supra, at pp. 744-745.)

Based on the
foregoing reasoning, the Supreme Court held:

“[Appellant] may be separately punished
for two violations of section 12021(a)(1) and of section 12021.1(a) based on
his simultaneous possession of two firearms.
The Court of Appeal erred in concluding otherwise. However, we also hold that defendant may not
be separately punished for violations of section 12021(a)(1) and 12021.1(a)
based on possession of the same firearm.
While the trial court correctly recognized this point, it incorrectly
stayed execution of sentence on the wrong offenses (§ 12021.1(a)).” (Sanders,
supra, 55 Cal.4th at p. 745.)

The Supreme
Court remanded this matter for further proceedings consistent with its
opinion. Since the trial court stayed
execution of the sentences imposed on counts 2 and 4 and the Supreme Court
determined that it “incorrectly stayed execution of sentence on the wrong
offenses,” we conclude that the Supreme Court directed this court to lift the
stay on those counts and to stay the execution of the sentence that was imposed
on counts 1 and 3. (Sanders, supra, 55 Cal.4th at p. 745.)

DISPOSITION

The convictions
are affirmed. The sentence is modified
as follows: (1) execution of the
sentences imposed on counts 1 and 3 is stayed pursuant to Penal Code section
654; and (2) the stay of execution of the sentences imposed on counts 2 and 4
is lifted. As modified, the judgment is
affirmed. The superior court is ordered
to prepare an amended abstract of judgment and to transmit a copy of it to the
appropriate authorities and the parties.






_____________________

LEVY,
J.

WE CONCUR:





_____________________

WISEMAN, Acting P.J.





_____________________

CORNELL, J.