P. v. West
Filed 1/23/14 P. v. West CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff
and Respondent,
v.
STANLEY ROBERT WEST,
Defendant
and Appellant.
2d
Crim. No. B243448
(Super.
Ct. No. 1363298)
(
Stanley
Robert West appeals his conviction, by jury, of numerous methamphetamine and
firearm possession offenses. He contends
the trial court should have stayed, pursuant to Penal Code section 654
a concurrent term of three years imposed for one of the firearm offenses, and
that the trial court improperly used
the same factors to impose an upper term sentence and to impose consecutive
terms. We affirm.
Facts
On
three separate occasions, appellant sold methamphetamine to a confidential
informant who was working with the Lompoc police
department. Based on those sales, police
officers obtained a search warrant for
appellant's residence. When they
executed the warrant, they discovered a .380 caliber handgun and a .22 caliber
rifle with a modified grip and a barrel measuring only 13 1/2 inches. Appellant was arrested and released on
bail. While on bail, he was found to be
under the influence of methamphetamine and in possession of the same substance.
Appellant
was convicted of three felonies relating to the purchases made by the
confidential informant: counts 1 and 2, sale and/or transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and count 3, sale of a substitute substance. (Health & Saf. Code, § 11382, subd.
(a).) Based on items discovered during
the search of his residence, appellant was convicted of count 6, possession of
a firearm by a felon, e.g., the handgun and the short-barreled rifle
(§ 29800, subd. (a), formerly § 12021, subd. (a)); and count 7, possession
of a short-barreled rifle. (§ 33215,
formerly § 12020, subd. (a)(1).)
Appellant's final three convictions relate to conduct that occurred
after his release on bail: count 8, sale
or transportation of methamphetamine with an on-bail enhancement (Health &
Saf. Code, § 11379, subd. (a); § 12022.1, subd. (b)); count 9, possession
of methamphetamine with an on-bail enhancement (Health & Saf. Code,
§ 11378); and count 11, a misdemeanor count of being under the influence
of methamphetamine (Health
& Saf. Code, § 11550).
The
jury acquitted appellant of count 12, dissuading a witness (the confidential
informant) from testifying.
(§ 136.1, subd. (a)(1).) It was
unable to reach verdicts on counts 4, 5 and 10, for possession of a firearm
while in possession of methamphetamine (Health & Saf. Code, § 11370.1,
subd. (a)), possession of
methamphetamine during the search of his residence (Health & Saf. Code,
§ 11377, subd. (a)), and bringing a controlled substance into the jail
during his second arrest.
(§ 4573.) The trial court
declared a mistrial as to those charges.
The
trial court sentenced appellant to an aggregate term of 10 years, calculated as
follows: the upper term of four years on
count 1, the primary offense, and consecutive terms of one year, eight months, and eight months on counts 2, 3 and 6. It imposed a concurrent term of three years
on count 7, for possession of the short barreled rifle, a consecutive term of
one year on count 8 and a consecutive term of eight months on count 9. The trial court imposed a concurrent term of
one year on count 11, for the misdemeanor conviction. In addition, it imposed two consecutive,
one-year terms for the on-bail enhancements.
Contentions
Appellant
contends the trial court violated section 654 when it imposed a concurrent term
on count 7, for his possession of the short barreled rifle, rather than staying
that term. He contends this conduct was
either the same as the conduct that resulted in his conviction on count 6, of
being a felon in possession of a firearm, or it occurred during the same course
of conduct as that offense. Appellant
next contends the trial court improperly used the same facts to justify
imposing the upper term on count 1 and imposing consecutive terms on counts 8
and 9.
Discussion
Section 654
Section
654 prohibits the imposition of multiple punishments for the same act or
omission; it does not bar multiple punishment for multiple violations of the
same statute or for acts committed incident to multiple criminal objectives. (People
v. Correa (2012) 54 Cal.4th 331, 340-341; People v. Rodriguez (2009) 47 Cal.4th 501, 507.) More specifically, section 654 allows
multiple punishments where a felon simultaneously possesses multiple
firearms. (People v. Sanders (2012) 55 Cal.4th 731, 742-743.) "[T]he purpose of section 654 is to
ensure that a defendant's punishment will be commensurate with his
culpability." (People v. Correa, supra, 54 Cal.4th at p. 341.) A felon who possesses multiple firearms is
more culpable than a felon who possesses only one. (Id.
at p. 342.) By the same logic, a felon
who possesses an illegal weapon, such as a short barreled rifle, is more
culpable than a felon who possesses otherwise legal weapons. Here, appellant, who has prior felony
convictions, was convicted of possessing two distinct firearms. Section 654 allows him to be punished
separately for each possession.
Use of Sentencing Factors
Appellant
contends the trial court erroneously relied on the same factors to justify
imposing upper term sentences and to justify imposing consecutive
sentences. The contention fails because
section 12022.1, subdivision (e) required the trial court to impose consecutive
terms and because the trial court relied on multiple factors in making its
sentencing choices, any one of which would have justified each choice.
Section
12022.1, subdivision (e) mandates imposition of consecutive terms. The statute provides, "If the person is
convicted of a felony for the primary offense, is sentenced to state prison for
the primary offense, and is convicted of a felony for the secondary offense,
any sentence for the secondary offense shall be consecutive to the primary
sentence and the aggregate term shall be served in the state prison, even if
the term for the secondary offense specifies imprisonment in county jail
pursuant to subdivision (h) of Section 1170." Here, appellant's primary offense, sale or
transportation of methamphetamine, was a felony for which the trial court
imposed a state prison sentence of three years.
The secondary offenses in counts 8 and 9, sale and possession of
methamphetamine, were also felonies. As
a consequence, the trial court was required under subdivision (e) of section
12022.1 to impose consecutive terms for those offenses.
Second,
the trial court relied on multiple factors to justify imposition of the upper
term on the primary offense. It stated,
"I choose the upper term based on a weighing of the aggravating and
mitigating factors.
[¶] Circumstances in aggravation [include] that the defendant
was convicted of other crimes allegedly committed while on bail . . . ,
the manner in which the crime was carried out indicating a showing of planning
and sophistication or professionalism; that his prior convictions as an adult
are numerous and of increasing seriousness, and that he has served a prior
prison term." Any one of these
factors would support imposition of the upper term; any of the others would
support imposition of consecutive terms.
(People v. Osband (1996) 13
Cal.4th 622, 728-729; People v. Moberly
(2009) 176 Cal.App.4th 1191, 1197-1198.)
There was no error.
Conclusion
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
>
Patricia Kelly, Judge
Superior Court County of Santa Barbara
______________________________
R.
Addison, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy
Attorney General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless otherwise stated.
