P. v. Costa

Filed 2/21/07  P. v. Costa CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Michael Scott Costa appeals from a judgment entered following his entry of pleas of nolo contendere and his admission of enhancement allegations.  In consolidated proceedings, defendant pleaded no contest to 17 counts, namely, 12 counts of possession of a firearm by a felon (Pen. Code, §  12020, subd. (a)(1)),[1] two counts of possession of ammunition by a felon (§  12316, subd. (b)), one count of perjury (§  118, subd. (a)), one count of conspiracy (§§ 182, subd. (a)(1), 12021, subd. (a)), and one count of misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (c)).  The court sentenced defendant to 22 years, eight months in prison; the sentence included an upper term sentence on the perjury conviction.

Defendant presents two challenges on appeal.  First, he claims that the court erred in imposing an upper term sentence for the perjury conviction (in superior court case number 210852) in violation of his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process.  He claims that under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), he was entitled to have a jury determine beyond a reasonable doubt any aggravating facts that were used as prerequisites to the imposition of an upper term sentence.  Second, he contends that the sentence for the ammunition-possession conviction (count 6 in superior court case number CC238138) should have been stayed pursuant to section 654. 

We conclude, based upon a very recent controlling decision of United States Supreme Court (see Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham)), that there was Blakely error.  We hold further that the sentence for the ammunition-possession conviction did not violate section 654.  We therefore reverse the judgment and remand for resentencing in light of the holding in Cunningham.

FACTS

Since defendant pleaded nolo contendere to all charges, we present a summary of the evidence relevant to the challenges on appeal based principally upon information contained in the probation report:  

I.          Superior Court Case Number 210852

            A.        Indictment

In superior court case number 210852, defendant was charged by indictment filed on January 23, 2004, with two counts, namely, perjury by filing a false application for a driver's license or identification card, a felony (§  118, subd. (a)--count 1); and possession of ammunition by a felon, a felony (§  12316, subd. (b)--count 2).[2]

            B.        Underlying Facts

On October 12, 2000, defendant was cited for driving with a suspended license and other Vehicle Code violations.  Defendant's vehicle was impounded and an inventory search disclosed, among other things, one shotgun shell (count 2)

On February 16, 2001, defendant was again stopped for Vehicle Code violations.  He presented the officers with a California driver's license with the name of Robert Armstrong; the license contained a photograph of defendant.  He was arrested and his vehicle was impounded.  In the course of the investigation, the police determined that on October 13, 2000, defendant had submitted a false application for a driver's license to the Department of Motor Vehicles in the purported name of Robert Armstrong, stating that he had made no previous applications for a California driver's license or identification card in a different name (count 1).

II.         Superior Court Case Number CC238138

            A.        Information

In superior court case number CC238138, defendant was charged by information filed September 12, 2003, with 15 counts, namely, 12 counts of possession of a firearm by a felon (§  12021, subd. (a)(1)); misdemeanor possession of more than 28.5 grams of marijuana (Health & Saf. Code, §  11357, subd. (c)--count 5); possession of ammunition by a felon, a felony (§  12316, subd. (b)--count 6); and conspiracy to possess firearms as a felon (§§ 182,  12021, subd. (a)(1)--count 15).  Counts 1 through 4 charged defendant with having possessed four different firearms between September 8, 2001, and October 9, 2001.  Counts 7 through 9 charged defendant with possession of firearms (rifles) between January 10, 2000, and December 31, 2000.  He was charged with possession of a firearm (Kimber pistol) in count 10, occurring between December 1, 1999, and October 9, 2001.  And defendant was charged in counts 11 through 14 with possession of four different handguns between January 1, 2001, and December 31, 2001.[3]  Many of the firearms were registered in the name of defendant's wife, Jessica Ann Costa (Jessica), or in the name of one of defendant's known associates.

            B.        Underlying Facts

Defendant was under surveillance by a task force (Santa Clara County Special Enforcement Team [SCCSET]) for suspicion of marijuana trafficking.  On October 2, 2001, a search of trash by officers yielded various notes and ledgers that evidenced transactions involving money (hundreds of thousands of dollars) and marijuana, as well as bubblewrap from Mailboxes, Etc. that contained marijuana residue.  On the same date, agents of the Internal Revenue Service (IRS) interviewed a former employee of defendant, who stated that he had seen a number of guns, marijuana, and money at defendant's home.

On October 8, 2001, police officers in El Paso, Texas, interviewed defendant and another suspect in an El Paso hotel room.  The officers found in the hotel room a loaded Smith and Wesson 10 mm. handgun registered to Jessica (count 1), ammunition for other firearms, cocaine, and a small quantity of marijuana.  Defendant possessed over $25,000 in cash.  A search of defendant's vehicle yielded, among other things, a loaded .45 caliber Glock handgun (count 2), a loaded Kimber Pro Carry .45 caliber handgun (count 3), and a loaded Mossberg shotgun (count 4).  Defendant admitted that he had arranged a cocaine transaction in Texas.

On October 9, 2001, SCCSET officers, having been informed about the events in El Paso the previous day, obtained a search warrant for defendant's home and vehicle.  They executed the search warrant and found, among other things, one and one-half ounces of marijuana (count 5), a loaded Kimber .45 caliber firearm registered to Jessica (count 10), â€