People v. Brown

56 Cal.Rptr.3d 255

148 Cal.App.4th 911

The PEOPLE, Plaintiff and Respondent, v. Desmond BROWN, Defendant and Appellant.

No. D047721.

Court of Appeal, Fourth District, Division 1.

March 21, 2007.

Gregory Marshall, Palo Cedro, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, J.

Desmond Brown was convicted of attempted murder, attempted robbery, assault with a deadly weapon, being a felon in possession of a firearm, being a felon in possession of ammunition and possession of marijuana. As to the attempted murder and attempted robbery convictions, it was found true Brown used a firearm within the meaning of Penal Code¹ sections 12022.53, subdivisions (b), (c), (d), and 12022.5, subdivision (a). As to the assault with a deadly weapon conviction, it was found true appellant used a deadly weapon within the meaning of section 12022, subdivision (b)(1).

Brown was sentenced to a term of 25 years to life plus 12 years. He appeals, arguing the evidence was insufficient to support his conviction for being a felon in possession of ammunition, the trial court violated the double punishment prohibition of section 654 in imposing terms on his convictions for attempted murder, attempted robbery and assault, violated his right to trial by jury in failing to require the jury make the factual finding necessary for the proper imposition of multiple terms and erred in imposing multiple section 12022.53 enhancements.

FACTS

A. Prosecution Case

At approximately 8:00 p.m. on November 18, 2004, as Jose Depaz was walking home he was approached by appellant and another man. Depaz recognized both men from the neighborhood and had seen appellant the day before. At their request Depaz approached the men. Appellant showed him a gun and was holding a bottle. Appellant's companion stood off to the side. Appellant told Depaz to give him his money. When Depaz said he had none appellant tucked the gun in his waistband and searched him. Appellant then hit Depaz in the face with the bottle. As appellant started to take the gun from his waistband Depaz ran. Appellant fired, hitting Depaz in the shoulder and elbow.

The day after the shooting, Depaz was shown a photographic lineup not containing a photograph of appellant and made no identification. Four days after the shooting, Depaz was shown a photographic lineup and positively identified appellant as the shooter. Depaz later identified appellant at trial.

The night of the shooting, Depaz's blood alcohol level was .15.

During a search of appellant's home, officers found two .22 caliber bullets and a .45 caliber bullet. During his arrest, marijuana was found on appellant's person.

The bullets retrieved from Depaz's body were .32 caliber.

B. Defense Case

Appellant testified he was present at the shooting but was the man who stood off to the side. He stated he did not participate in the attempted robbery, the assault with the bottle or the attempted murder. Appellant testified the man who committed the crime threatened appellant and told him not to go to the police. Afraid, appellant told no one about the crime. Appellant could not remember the man's name.

DISCUSSION

A Double Punishment

Appellant argues the trial court violated the double-punishment prohibition contained in section 654 when it did not stay imposition of sentence on his convictions for attempted murder, attempted robbery and assault with a deadly weapon. Appellant argues each of the crimes had a single objective, the commission of a robbery and, thus, he; was liable for punishment for only one of the offenses.

Section 654 states an act punishable in different ways by different provisions of the Penal Code may be punished under only one such provision. The section, however, applies not only to a single act violating multiple provisions of the code but also to an indivisible course of conduct violating several statutes. Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant. If all the criminal acts were incident to one object, then punishment may be imposed only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-637, 105 Cal.Rptr. 681, 504 P.2d 905; People v. Saffle (1992) 4 Cal.App.4th 434, 438, 5 Cal.Rptr.2d 648.) Section 654, however, does not apply to similar but consecutive and different objectives, or to simultaneous but separate objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212, 23 Cal.Rptr.2d 144, 858 P.2d 611.)

The trial court decides whether criminal acts had one or multiple objectives. The question is one of fact, and if the trial court's conclusion is supported by substantial evidence it is upheld on appeal. (People v. Osband (1996) 13 Cal.4th 622, 730-731, 55 Cal.Rptr.2d 26, 919 P.2d 640.)

In People v. Sandoval (1994) 30 Cal. App.4th 1288, 36 Cal.Rptr.2d 646 the defendant attempted to rob a store. The clerk began to comply with the defendant's demand for money. He then, however, slammed the cash drawer closed and tried to reason with the defendant. The defendant shot the clerk and then left the store without completing the robbery. (Id. at pp. 1295-1296, 36 Cal.Rptr.2d 646.)

Sandoval argued he could not be punished for both the attempted robbery and attempted murder because they were incident to a single objective, i.e., robbing the victim. This court disagreed, concluding there was evidence to support the trial court's finding that when the clerk ceased complying, the attempted robbery ended and the object of the shooting was not to steal but rather to punish the clerk or to assuage the defendant's frustration. (People v. Sandoval, supra, 30 Cal.App.4th at pp. 1299-1300, 36 Cal.Rptr.2d 646.)

This court then quoted People v. Nguyen (1988) 204 Cal.App.3d 181, 193, 251 Cal.Rptr. 40: "`[A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for the purposes of section 654.'" (People v. Sandoval, supra, 30 Cal.App.4th at p. 1300, 36 Cal.Rptr.2d 646.)

In this case the trial court concluded based on substantial evidence that while appellant's first objective was to commit a robbery, the attempt to commit that crime ended when the victim stated he had no money and appellant confirmed the fact by searching him. The assault with a deadly weapon was committed, perhaps out of frustration, not to complete the robbery but to hurt the victim Appellant then shot at the victim, not to hurt him but to kill him.

Appellant argues the jury's finding that the attempted murder was committed without premeditation and deliberation somehow foreclosed the trial court from finding that appellant's act of attempting to kill appellant by shooting him had a separate objective. Appellant is mistaken. To be found guilty of attempting to kill the victim, it was only necessary the jury find appellant intended to kill him. The fact that intent might not have been premeditated or deliberated says nothing about appellant's objective.

B. Factual Findings on Section 654 Issues

As noted above we have concluded the trial court properly found that appellant's acts of attempted murder, attempted robbery and assault with a deadly weapon did not arise from a single objective and, therefore, the trial court did not violate section 654 when it imposed sentences on the convictions arising from those acts. Appellant, citing Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, argues imposing sentence on those counts was unconstitutional because the factual findings necessary for imposition of or staying terms within the meaning of section 654, i.e., whether a course of conduct is divisible and therefore gives rise to more than one act, was made not by the jury but by the trial court.

In Cunningham the Supreme Court found California's system for imposing upper terms unconstitutional because a judge and not a jury makes the factual findings necessary for the imposition of that term. It did not address, however, this state's system for the imposition of consecutive terms or the staying of terms under section 654. In People v. Black (2005) 35 Cal.4th 1238, 1261-1264, 29 Cal.Rptr.3d 740, 113 P.3d 534 (Black), our Supreme Court concluded that the jury's verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense. Allowing a judge to decide whether terms should be served consecutively or concurrently does not eliminate the right of a defendant to have a jury determine the elements of the charged offenses and is constitutionally proper.

The court in Black then related this reasoning to section 654, saying: "For purposes of the right to a jury trial, the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently. Both are sentencing decisions made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense, and neither implicates the defendant's right to a jury trial on facts that are the functional equivalent of elements of an offense." (Black, supra, 35 Cal.4th at p. 1264, 29 Cal.Rptr.3d 740, 113 P.3d 534.)

We are both bound by this conclusion of our Supreme Court and agree with it.

C. Firearm Enhancements

Appellant notes the trial court imposed section 12022.53 firearm use enhancements on both his conviction for attempted murder and his conviction for attempted robbery. Appellant argues such sentencing violated section 654's prohibition against double punishment...