P. v.
Palmer
Filed 2/27/13 P. v. Palmer CA3
NOT TO
BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE,
Plaintiff
and Respondent,
v.
CODEY LEE PALMER,
Defendant
and Appellant.
C069193
(Super. Ct. Nos. CM034122 &
CM034831)
A jury found defendant Codey Lee
Palmer guilty of possession of a firearm
by a felon (Pen. Code,
name="_ftnref1" title="">[1] § 12021, subd.
(a)(1); count 1), possession of a
short-barreled shotgun (§ 12020, subd. (a)(1); count 2), and
exhibiting a firearm (§ 417, subd. (a)(2); count 3).
(§ 186.22, subd. (b)(1)) attached to counts 1 and 2. Outside the presence of the jury, defendant
admitted his prior strike conviction and prior prison term.
The trial court sentenced defendant
to an aggregate term of eight years four months in
count 1, 16 months concurrent with count 2; count 3, a consecutive effective
term of 16 months (1/3 the midterm of two years, doubled), and a consecutive
one-year term for the service of a prior prison term.
On appeal, defendant first contends
that count 3 as charged incorrectly conflated the misdemeanor section 417
charge with the alternate penalty provision contained in section 186.22,
subdivision (d) (section 186.22(d)), which resulted in charging error such that
count 3 failed to allege a crime.
that claim. He further contends that
trial counsel was ineffective for failing to object to the charging error and
resulting sub-issues; and that section 654 requires that we stay sentence on
counts 1 and 3.
The People agree that the sentence
on count 1 should be stayed.
We agree with the parties as to
count 1. As we will explain, we find no
prejudicial error upon consideration of defendant’s remaining contentions.
On February
17, 2011,
about 2:00 a.m., Robert Binsfield,
David Barker and Mitchell Engstrom were walking to a party after drinking at a
bar in Chico.
Binsfield stopped to talk with other friends while Barker and Engstrom
continued walking. Binsfield heard
yelling and cursing, looked around a corner and saw defendant jogging toward
him holding a shotgun. Defendant yelled
at Binsfield something like, “You want to go†or “You want some of this.†Binsfield ran and hid behind a parked car.
Officer Curtis Prosise was in his
patrol car within a block of where defendant had threatened Binsfield when he
received a dispatch call of a Hispanic male, wearing a white T-shirt, carrying
a shotgun, and yelling “Chapman†and “Norte.â€
Prosise drove to the area, saw defendant and shined his spotlight on
him. Defendant fled and Prosise pursued
him. As defendant ran, Prosise heard
metal striking the asphalt, but Prosise did not stop. With the aid of another officer, he took
defendant into custody. Prosise then
returned to where he had heard the metallic sound and found a loaded shotgun
with the stock and barrel modified.
The parties stipulated that the Norteños
were a criminal street gang and
testimony by a gang expert established that defendant was a member of the
Chapman Town Norteños. The expert
further testified that defendant’s conduct in yelling gang terms while carrying
a shotgun in public view would benefit the Norteño street gang by “instilling
fear in their rivals and instilling fear in their victims and witnesses.†Further, a higher-profile crime of this
nature would receive significant media coverage which would also benefit the
gang by scaring people.
Defendant rested without presenting
any evidence. He argued that the
evidence failed to establish his identity as the person with the shotgun.
I
Defendant first contends that count
3 must be reversed because it “did not allege a crime.†He explains that count 3 incorrectly
conflated the section 417 charge with the alternate penalty provision contained
in section 186.22(d), which resulted in charging error. He further argues that the jury instructions
were defective and the verdict form invalid, all due to the charging
error. He adds that the trial court erred
in failing to instruct the jury on the lesser-included offense of misdemeanor
brandishing, again as a consequence of the charging error.
The People respond only that
defendant “was properly charged in count 3†and add that defendant received
notice of the charges and allegations against him and that the jury “was
properly instructed on all the elements.â€
While they also “note†that section 186.22 (d) is indeed an alternate
penalty provision and neither a substantive offense nor a sentencing
allegation, they do not address the relevance of that distinction. They fail to respond to defendant’s
additional arguments regarding the effects of the improper charging.
A. Error in
the Form of the Pleading
Count 3 charged:
“
. . . the crime of Exhibiting a Deadly
Weapon, in violation of Penal Code Sections 417(a)(1) and Criminal Street Gang,
a violation of Penal Code Section 186.22(d), an offense punishable as a Felony,
was committed by CODEY LEE PALMER, who did willfully and unlawfully commit the
public offense of Exhibiting a Deadly Weapon.â€
(Emphasis in original.)
“It
is further alleged in connection with the offense charged in Count 3 that the
offense was for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, or assist in
criminal conduct by gang members pursuant to Penal Code Section 186.22(d).
Defendant argues that count 3 does
not charge a crime, contending that because section 186.22(d) is an alternative
sentencing provision rather than a substantive offense or an enhancement, the
conjoining of section 186.22(d) and the section 417 offense
latter which is not within the statutory definition, thereby rendering the
offense nonexistent.
We agree that section 186.22(d) is
an alternative sentencing provision. (
30 Cal.4th 894, 899 (Robert L.).) As such, it “‘prescribes an added penalty to
be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the
underlying offense and does not set forth elements of the offense or a greater
degree of the offense charged.
[Citations.]’ [Citation].†(
899.) To the extent that it was “joinedâ€
with the section 417 misdemeanor offense to charge a single felony crime, the
offense itself was improperly conflated with the penalty provision,
constituting error in the pleading of the offense.
The California Constitution
provides: “No judgment shall be set
aside . . . for any error as to any matter of pleading
. . . unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.â€
(Cal. Const., art VI, § 13.)
Here, examination of the record reveals no miscarriage of justice.
Pursuant to CALCRIM No. 983, the
trial court instructed the jury that defendant was charged in count 3 with
“brandishing a firearm†and that to prove him guilty of that offense the People
“must prove that: “1. The defendant drew
or exhibited a firearm in the immediate presence of someone else; AND 2. The
defendant did so in a rude, angry, or threatening manner.â€
Immediately following the CALCRIM
No. 983 instruction, the court instructed the jury pursuant to CALCRIM No. 1401
that defendant was charged in count 3 with “exhibiting a deadly weapon as a
gang offense,†and “[t]o prove this crime, the People must prove that: 1. The defendant brandished a firearm. The definition and elements of brandishing a
firearm are contained in instruction #983 above; 2. The defendant committed the
crime for the benefit of, at the direction of, or in association with a
criminal street gang; AND 3. The defendant intended to assist, further, or
promote criminal conduct by gang members.â€
Because the jury was correctly
advised of the elements the People were required to prove to find defendant
guilty of the brandishing offense as well as the section 186.22(d) allegation,
defendant suffered no miscarriage of justice from the error in the form of the
pleading.
B. Error in
Instructing the Jury and Verdict Form
Defendant also argues that the
manner in which he was charged in count 3 “resulted in defective jury
instructions†because the instructions did not make clear that the jury should
first decide defendant’s culpability for the misdemeanor and then address the
penalty provision. Because defendant
failed to object to the instructions he now challenges, his claim of
appeal unless the error resulted in a miscarriage of justice. (People
v. Battle (2011) 198 Cal.App.4th 50, 64-65.)
We see no miscarriage of justice and
no prejudicial error here. As we
described ante, the trial court
instructed the jury regarding count 3 by reading CALCRIM No. 983 and CALCRIM
No. 1401, as modified, seriatim. No.
1401 correctly directed the jury to determine defendant’s guilt or innocence of
the brandishing charge before considering the other elements of the penalty
provision. Defendant does not explain
how the instructions’ failure to further distinguish the requirements of the
two separate Penal Code sections from each other caused the jury to make any
inappropriate determinations. We shall
not make his argument for him.
Similarly, although the verdict form
tracked the charging document and repeated its error, requiring the jury to
find defendant “guilty†or “not guilty†of “EXHIBITING A DEADLY WEAPON AND
CRIMINAL STREET GANG, a violation of Section [sic] 417(a)(1) and 186.22(d) of the Penal Code, a Felony,†defendant
does not argue how the verdict form’s failure to separate the substantive
offense from the penalty provision prejudiced him. We see no prejudicial error.
C. Lesser-Included Offense Instruction
Defendant also contends that because
the section 186.22(d) provision was charged as an element of the brandishing
offense, rendering it a felony charge, the trial court erred in failing to
instruct the jury sua sponte on the
included offense of misdemeanor brandishing.
Although it is clear that misdemeanor brandishing was an included
offense in the brandishing offense as it was charged--as a hybrid of that very
charge, modified only to add the penalty provision--we see no basis to require
its separate instruction.
“[T]he trial court must instruct on
a lesser offense necessarily included in the charged offense if there is
substantial evidence the defendant is guilty only of the lesser.†(
108, 118, emphasis added.) Here, the
evidence at trial established that defendant’s brandishing the shotgun would
benefit the Norteño street gang by “instilling fear in their rivals and
instilling fear in their victims and witnesses.†Further, a higher-profile crime of this
nature would receive significant media coverage which would also benefit the
gang by scaring people. If the jury
found defendant guilty of brandishing the gun, which it did, then it
necessarily would have found him guilty of brandishing the gun for the benefit
of the gang. There was simply no
substantial evidence that he brandished the gun for any reason
II
Defendant contends his trial counsel
was constitutionally ineffective for failing to call the trial court’s
attention to the charging error in count 3 and the issues stemming from that
error. To establish ineffective
assistance of counsel, defendant must establish prejudice from the claimed
deficiency. (In re Alvernaz (1992) 2 Cal.4th 924, 944-945.) Because we have already determined that
defendant suffered no prejudice from the charging error in count 3 and the
irregularities stemming therefrom, counsel was not constitutionally ineffective
for failing to seek correction of the error.
III
Defendant contends the trial court
violated section 654’s proscription against multiple punishment when it failed
to stay the sentences imposed on counts 1 (felon in possession of a firearm)
and 3 (exhibiting a deadly weapon). We
agree as to count 1.
Section 654 provides in relevant
part: “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. . . .â€
A. Count
1
Counts 1 and 2 were based upon
defendant’s possession only of the
same shotgun on a single occasion. In
350 (Jones), our Supreme Court held
that section 654 prohibited multiple punishments for a defendant convicted of
“possession of a firearm by a felon, carrying a readily accessible concealed
and unregistered firearm, and carrying an unregistered loaded firearm in
public.†(Jones, supra, 54 Cal.4th at p. 352.) The court cited with approval
42 Cal.App.3d 451, which held that section 654 prohibited more than one
punishment for a defendant convicted of possession of a firearm by a felon and
possession of an unlawful firearm, where possession was of the same weapon on a
single occasion. (Jones, supra, at p. 357.)
Consequently, defendant’s sentence on count 1 must be stayed.
B. Count
3
Citing Jones, among other cases, defendant argues his sentence on count 3
must also be stayed under section 654.
We are not persuaded.
As we discussed ante, our Supreme Court recently held in Jones that “a single possession or carrying of a single firearm on
a single occasion may be punished only once under section 654.†(Jones,
supra, 54 Cal.4th at p. 357.)
Here, the crimes of conviction include brandishing as well as
possession. As the applicable jury
instructions set forth, brandishing is different than mere “possessing†or
“carryingâ€--it requires proof that defendant drew or exhibited a firearm in a rude, angry, or threatening manner in
the immediate presence of someone else.
Defendant did not merely possess or carry in this case.
Jones
also clarified that “section 654 prohibits multiple punishment for a single
physical act that violates different provisions of law.†(Jones,
supra, 54 Cal.4th at p. 358.) Here,
clearly the evidence showed multiple physical acts. In Jones,
the court emphasized that the People had admitted in argument that the charges
at issue constituted “three different counts for the same exact conduct.†(Jones,
supra, at p. 359.) In the instant
case, in contrast, the evidence showed and the People argued that defendant
“was walking around . . . carrying a shotgun . . . sometimes he’s walking
around with [the gun] . . . . Other
times he’s confronting people with it out in front of him . . . .†Thus the multiple
physical acts pled and proven in this case further distinguish defendant’s
situation here from that of defendant’s situation in Jones.
Under the facts of this case, it is
clear that defendant possessed the shotgun both before and after he brandished
it, in a manner and time sufficiently separate and distinct from his conduct in
brandishing it, such that section 654 does not compel that his sentence on
count 3 be stayed. (See also
103 Cal.App.4th 1139, 1142, 1144 [where defendant charged with felon in
possession and shooting into an inhabited dwelling, section 654 inapplicable
where evidence shows the defendant arrived at the scene of the primary crime
already in possession of the firearm].)
Further, the evidence showed the
offenses of possession and brandishing were not
incident to one intent and objective.
(See Neal v. State of California
(1960) 55 Cal.2d 11, 19.) “Multiple
punishment is proper where the evidence shows that the defendant possessed the
firearm before the crime, with an independent intent.†(People v.
Jones, supra, 103 Cal.App.4th at p. 1144.)
Here, as in People v. Jones,
defendant’s possession of the gun both before and after his brandishing of it
suggests a separate intent than simply to brandish it--much as the independent
possession of the gun in People v. Jones
suggested a separate intent than simply to shoot into an inhabited dwelling.
(See Kellett v. Superior Court (1966) 63 Cal.2d 822, 824-825
[brandishing and possession of a gun may properly be punished separately if the
defendant has unrelated intent and objective for committing the two crimes].)
The sentence on count 1 is stayed
pursuant to Penal Code section 654. In
all other respects, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment
reflecting the stay and correcting count 3 to reflect defendant’s
conviction
pursuant to Penal Code section 417, subdivision (a)(2), and to forward a
certified
copy of the amended abstract to the Department of Corrections and
Rehabilitation.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Penal Code.
name="_ftn2" title="">[2] Defendant was erroneously charged with and
convicted of violating section 417, subdivision (a)(1), which criminalizes threatening another person with “any
deadly weapon whatsoever, other than a
firearm†(emphasis added); this was error because a loaded short-barreled
shotgun was the only weapon referenced in this case. Section 417, subdivision (a)(2) criminalizes threatening with “any firearm, whether loaded or unloaded†(emphasis added), and was
the applicable charge. Defendant notes
this error on appeal, but commendably concedes that “the record amply
demonstrates [defendant’s] understanding that the [People] had based count 3
upon [defendant’s] alleged brandishing of a firearm.†The People completely ignore the error,
arguing that defendant “was properly charged in Count 3†while conceding “this
case could have been pled cleaner [sic],â€
an understatement we address in more detail post. Because the evidence showed and the trial
court instructed the jury that the deadly weapon at issue was a firearm, we
shall treat this erroneous designation as a typo and direct the trial court to
correct the abstract of judgment accordingly.
