P. v. Curry

Filed 10/26/07 P. v. Curry CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Jessie I. Rodriguez, Judge. Affirmed with modifications.

Charles B. Holzhauer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, Sirlasie Rayshon Curry, appeals from his convictions for two counts of assault on a peace officer with a semiautomatic firearm and one count of firearm possession by a felon. (Pen. Code,^[1] 245, subd. (d)(2); 12012, subd. (a)(1).) Defendant also appeals from the jurors firearm use finding. ( 12022.5, subds. (a), (d), 12022.53, subd. (b).) Defendant argues the trial court improperly imposed the upper term and should have stayed the count 3 firearm possession sentence pursuant to section 654, subdivision (a). The Attorney General argues the trial court should have imposed a court security fee as to each count. The judgment is affirmed with modifications.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 10 p.m. on November 29, 2004, Los Angeles County Sheriff Deputies Agostino Brancato and Joseph Garrido were on patrol in a marked cruiser. Both deputies were in uniform. The deputies saw three men on the sidewalk. As the patrol car approached, the three men looked in the direction of the deputies. Thereafter, the three men ran through the driveway of a nearby apartment complex. Deputy Garrido parked in front of the apartment complex. Deputy Garrido heard the noise of a chain link fence at the rear of the complex. Deputy Garrido believed the three men might be trying to escape. The deputies had been at the location on previous occasions. The deputies were familiar with chain link fences on the property line. There was an opening in the chain link fence which allowed access to the adjacent property. The deputies got out of their car. Deputy Garrido went to the west side of the driveway. Deputy Brancato stayed to the east at the mouth of the driveway.

Deputy Garrido used his flashlight to illuminate the area. Deputy Garrido saw defendant run around the rear corner of the staircase. Deputy Garrido had over a dozen previous contacts with defendant. Defendant had a pistol in his right hand. Defendant ducked behind the building. Deputy Garrido yelled to Deputy Brancato that defendant had a gun. Seconds later, defendant, who was still armed, approached Deputy Brancato. Deputy Brancato used his flashlight to illuminate the driveway. Deputy Brancato ordered defendant to stop and put the gun down. Defendant turned in an easterly direction. Defendant tripped on a low block wall, falling on all fours. Deputy Brancato continued to order defendant to: Drop the gun. Stop. Lay down. Deputy Garrido believed defendant was following Deputy Brancatos orders. Deputy Garrido continued to look for the other two individuals. Defendant got up. Defendant pointed the gun at Deputy Brancato. Thereafter, Deputy Garrido heard shots being fired. Deputy Brancato had fired numerous rounds at defendant. Defendant got up with the gun in his hand and ran in an easterly direction on 111th Street.

Defendant crouched behind a Chevrolet Suburban truck. Defendant pointed the gun again at both deputies. Both deputies shot at defendant. Defendant continued to move down the driveway. Defendant turned and pointed his gun at the deputies for the third time. Deputy Brancato again fired at defendant. Defendant did not appear to be hit by the shots. Deputy Brancato reloaded his weapon. Meanwhile, Deputy Garrido fired at defendant. Defendant stopped shortly thereafter. Deputy Garrido radioed for assistance. Thereafter, Deputy Garrido looked around a corner, and saw defendant and another individual lying on the ground. Protective shields were brought to the scene by sergeants. The deputies then used the shields to approach and arrest defendant. Deputy Garrido did not see a cellular phone in the area where defendant was ultimately arrested. However, one was later recovered from the area. Deputy Brancato saw another deputy pick up the cellular phone. However, Deputy Brancato was certain defendant was armed with a handgun rather than merely holding a cellular phone. An Astra .380 semi-automatic pistol with one bullet in the chamber and a magazine for that weapon containing seven bullets were recovered from a pile of rubble near where defendant was found. The pistol was functional. A Titan .25 caliber semi-automatic pistol was also found approximately 30 to 40 feet away. The magazine seated in the Titan pistol had eight cartridges in it and one round was in the chamber. The Titan pistol was also functional.

III. DISCUSSION

First, citing Cunningham v. California (2007) ___ U.S. ___, ___ [127 S.Ct.

856, 868-871] and Blakely v. Washington (2004) 542 U.S. 296, 301, defendant argues that his Sixth and Fourteenth Amendment right to a fair and impartial trial by jury and due process were violated by the trial courts imposition of the upper term as to count 1, assault on a peace officer with a semiautomatic weapon, because the terms were based on facts not determined to be true by a jury. In the recent case of People v. Black (2007) 41 Cal.4th 799, 805, the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham v. California, supra, ___ U.S. ___ [127 S.Ct. at pp. 863-864]. Our Supreme Court held: [A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black, supra, 41Cal.4th. at p.812, original italics.) The Black court further held: It follows that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black, supra, 41Cal.4th at p. 816.)

In this case, the information alleged and the jury found beyond a reasonable doubt, as to both counts 1 and 2, that defendant personally used a firearm in the commission of the assault on a peace officer pursuant to sections 12022.5, subdivision (a), and 12022.53, subdivision (b). The crime of assault on a peace officer can be committed without the use of a firearm. Therefore, the jurors findings constituted one legally sufficient aggravating circumstance that justified the imposition of the upper term as to count 1. As a result, defendants constitutional right to a jury trial was not violated by the trial courts imposition of the upper term sentence for his conviction of assault on a peace officer. The statutory maximum sentence to which defendant was exposed was the upper term. (People v. Black, supra, 41Cal.4th. at p. 816.)

Second, following our request for further briefing, defendant argues that the trial court improperly imposed a consecutive sentence for the felon in possession of a firearm conviction ( 12021, subd. (a)(1)) rather than staying the sentence pursuant to section 654, subdivision (a). Section 654, subdivision (a) provides in pertinent 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. . . . In People v. Britt (2004) 32 Cal.4th 944, 951-952, the California Supreme Court reiterated: The test for determining whether section 654 prohibits multiple punishment has long been established: 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. [Citation.] (Id., quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.) We review the trial courts order imposing multiple sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Downey (2000) 82 Cal.App.4th 899, 917.) The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case. (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) In conducting the substantial evidence analysis we view the facts in the following fashion: We must view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Holly (1976) 62 Cal.App.3d 797, 803.) (People v. McGuire (1993) 14 Cal.App.4th 687, 698; see also People v. Green (1996) 50 Cal.App.4th 1076, 1085.) Multiple criminal objectives may divide those acts occurring closely together in time. (People v. Hicks (1993) 6 Cal.4th 784, 788-789; People v. Harrison (1989) 48 Cal.3d 321, 336; People v. Davey (2005) 133 Cal.App.4th 384, 390.)

In People v. Bradford (1976) 17 Cal.3d 8, 22, the California Supreme Court held: Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. 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 the illegal possession of the firearm has been held to be improper where it is the lesser offense. (People v. Bradford, supra, 17 Cal.3d at p. 22, quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821.) In People v. Jones (2002) 103 Cal.App.4th 1139, our colleagues in Division Three of this appellate district examined whether the trial court properly imposed a concurrent sentence for a felon in possession of a firearm conviction. In Jones, the defendant had fired shots at his former girlfriends home from a passing car. The Jones court held: It is clear that multiple punishment is improper where the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendants hand only at the instant of committing another offense . . . . [Citation.] (People v. Jones, supra, 103 Cal.App.4th at p. 1144, quoting People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) The Jones court held that the concurrent sentence was properly imposed because, [T]he evidence was sufficient to allow the inference that [the defendant]s possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling. (People v. Jones, supra, 103 Cal.App.4th at p. 1147.)

The facts in this case are distinguishable from those in Jones. The deputies saw three men begin to run as they approached the apartment complex. The deputies did not see any weapons at that time. Thereafter, the men disappeared into the complex. When Deputy Garrido saw defendant a short time later, defendant had a gun in his hand. As the deputies pursued defendant, he pointed the gun at both of them. There is no evidence that defendant possessed the gun before that time. (See People v. Bradford, supra, 17 Cal.3d at p. 13 [defendants wrestling away of peace officers gun before shooting it at the officer did not constitute separate antecedent possession of a firearm]; People v. Venegas, supra, 10 Cal.App.3d 814, 821 [punishment for felon in possession of a firearm in addition to assault with a deadly weapon improper where there was no showing that defendant possessed the gun prior to shooting in a bar and may have obtained it during a struggle moments before].) Here, the trial court improperly imposed a consecutive sentence for the felon in possession of a firearm conviction. The eight-month sentence as to count 3 is therefore stayed pursuant to section 654, subdivision (a).

Third, the Attorney General argues additional court security fees should have been imposed and the restitution fines should be modified. At sentencing, the trial court stated: [T]he defendant is to pay a restitution fine pursuant to [Penal Code] section 1202.4 [subdivision] (b) for a maximum of $10,000 and pay an equal fine of $200, a parole revocation fine, pursuant to section 1202.45. That fine is stayed pending successful completion of parole. However, the abstract of judgment reflects that the court imposed a $5,000 section 1202.4, subdivision (b)(1) restitution fine and stayed the $5,000 section 1202.45 parole revocation restitution fine. Section 1202.45 provides: In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. . . . The $200 parole restitution fine is reversed. The judgment is modified to impose and stay a $10,000 section 1202.45 parole restitution fine. (People v. Mitchell (2001) 26 Cal.4th 181, 184-188; People v. Smith (2001) 24 Cal.4th 849, 851-854.)

In addition, defendant was subject to the imposition of a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) for each of the three counts for which he was convicted. Although the abstract of judgment indicates the trial court imposed only one section 1465.8, subdivision (a)(1) fee, the record of the sentencing hearing does not reflect any such fee was imposed. Three section 1465.8, subdivision (a)(1) fees must be imposed as to each count. The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The judgment is affirmed as modified to impose the state court fees and fines noted. The sentence as to count 3 is stayed pursuant to Penal Code section 654, subdivision (a). The trial court is to personally insure a corrected abstract of judgment is

prepared and forwarded to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

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