P. v. Sult
Filed 8/8/13 P. v. Sult CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JAMES JESSE SULT,
Defendant
and Appellant.
E055060
(Super.Ct.No.
FSB1000973)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. Duke
D. Rouse, Judge. (Retired judge of the
San Bernardino Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Daniel
G. Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
On
March 26, 2010, the San
Bernardino County District Attorney filed an information charging defendant and
appellant James Jesse Sult with second
degree robbery (Pen. Code, § 211, counts 1, 11-12, & 20),
Code, § 211, counts 2 & 3), possession of a firearm by a felon with a prior
conviction (former Pen. Code, § 12021, subd. (a)(1) [now § 29800, subd. (a)(1)
(Stats. 2010, ch. 711, § 6)],
name="_ftnref1" title="">[1] counts 4, 8, 14, & 21)
first degree burglary with a person present (Pen. Code, § 459, counts 5, 13,
& 15), attempted carjacking (Pen.
Code, §§ 664/215, subd. (a), count 6), assault with a firearm (Pen. Code,
§ 245, subd. (a)(2), count 7), attempted first degree residential robbery (Pen.
Code, §§ 664/211, counts 9 & 10), unlawful driving or taking of a vehicle
(Veh. Code, § 10851, subd. (a), count 16), evading an officer (Veh. Code, §
2800.2, subd. (a), count 17), assault upon a peace officer (§ 245, subd. (c),
counts 18 & 19), and possession of a controlled substance (Health &
Saf. Code, § 11377, subd. (a), count 22).
As to counts 1-3, 6, 9-12, and 20, the information alleged that defendant
personally used a firearm, within the meaning of Penal Code section 12022.53,
subdivision (b). As to counts 5, 7, 13,
15, and 16, the information alleged that defendant personally used a firearm,
within the meaning of Penal Code sections 1203.06, subdivision (a)(1), and
12022.5, subdivision (a). The
information also alleged that defendant served two prior prison terms. (Pen. Code, § 667.5, subd. (b).)
Defendant
pled guilty to all counts and enhancements.
A trial court sentenced defendant to a total sentence of 38 years 10
months,
as to the principal term in count 2, the upper term of six years, plus a
consecutive 10 years for the firearm use enhancement; as to count 1, a
consecutive one year, plus a consecutive three years four months on the firearm
use enhancement; on count 6, a consecutive 10 months, plus three years four
months on the firearm use enhancement;
plus three years four months on the firearm use enhancement; as to count 15, a
consecutive one year four months, plus one year four months on the firearm use
enhancement; as to count 18, a consecutive one year four months; and, as to
count 20, a consecutive one year, plus three years four months on the firearm
use enhancement. As to counts 3, 10-14,
19, 21-22 and their enhancements, the court imposed concurrent terms. As to the remaining counts, the court imposed
but stayed their sentences pursuant to section 654.
the prison priors.
On
appeal, defendant contends (1) the trial court abused its discretion in
imposing the upper term on count 2, and (2) the court should have stayed the
sentence on count 14 under section 654.
We affirm.
FACTUAL
BACKGROUND
Defendant
pled guilty to all counts, thereby admitting that, from the period of February
18, 2010 through March 9, 2010, he committed four counts of second degree
robbery (Pen. Code, § 211, counts 1, 11-12, & 20), two counts of first
degree residential robbery (Pen. Code, § 211, counts 2 & 3), four counts of
possession of a firearm by a felon with a prior conviction (Pen. Code, § 12021,
subd. (a)(1), counts 4, 8, 14, & 21), three counts of first degree burglary
with a person present (Pen. Code, § 459, counts 5, 13, & 15), attempted
carjacking (Pen. Code, §§ 664/215, subd. (a), count 6), assault with a firearm
(Pen. Code, § 245, subd. (a)(2), count 7), two counts of attempted first degree
residential robbery (Pen. Code, §§ 664/211, counts 9 & 10), unlawful
driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 16),
evading an officer (Veh. Code, § 2800.2, subd. (a), count 17), two counts
of assault upon a peace officer (Pen. Code, § 245, subd. (c), counts 18
& 19), and possession of a controlled substance (Health & Saf. Code, §
11377, subd. (a), count 22).
ANALYSIS
I. The Trial Court Properly Imposed the Upper
Term on Count 2
Defendant
argues the court improperly imposed the upper term on count 2, since the court
relied on improper factors, and the aggravating factors did not outweigh the
mitigating factors. We conclude that the
court properly sentenced defendant to the upper term.
A. Standard
of Review
aggravating and mitigating factors [citations], and may balance them against
each other in “qualitative as well as quantitative terms†[citation]
. . . . We must affirm
unless there is a clear showing the sentence choice was arbitrary or
irrational.’ [Citation.]†(People
v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
B. Factual
Background
Defendant
pled guilty to first degree residential robbery (§ 211) in count 2. The victim of this offense was Dianne
Crowther (the victim). She presented a
victim impact statement at the sentencing hearing. She said she was 66 years old, and her
husband was 74 years old. On February 21,
2010, they sat down to watch television when their dogs started to bark. They looked up to see a masked man
(defendant) standing in their bedroom about five feet away from them, pointing
a large gun at them. Defendant grabbed
her by the arm, pulled her up, and held the gun behind her ear. He demanded that she and her husband take him
to their safe. Defendant continually
pointed his gun at the victim’s husband, directed him to take him to the safe,
and asked him to show him where his wallet was.
Defendant also held the gun at the victim’s temple while he took money
from her purse. Defendant held his gun
to the victim’s head for over 15 minutes.
At one point, defendant took the victim and her husband to the closet
and had them kneel down. Defendant “put
the gun to the top of [her] head,†and the victim thought he was going to
execute them.
C. The
Court Properly Considered the Factors
At
the sentencing hearing, the court
stated numerous reasons for imposing the upper term on count 2. The court found that the following
aggravating factors applied:
(1) there was a threat of great bodily harm; (2) some of the
victims were particularly vulnerable, based upon their age and circumstances;
(3) there was planning; (4) defendant had prior convictions; (5) he had served
prior prison terms; and (6) he was on parole when the crimes were
committed. “[A] court needs only one
factor to impose the aggravated term.
[Citation.]†(
581; see also People v. Osband (1996)
13 Cal.4th 622, 730.) The court here
listed not just one but several factors that adequately supported the
imposition of the aggravated term.
Defendant
asserts that the aggravating factors used by the court were: (1) the threat of great bodily harm; (2)
victim vulnerability; and (3) defendant’s prior convictions. He neglects to mention the three other
factors cited by the court. Defendant
proceeds to argue that the court should have disregarded the three factors he
asserted. He states that the first
factor relied upon by the court (the threat of great bodily harm) was based on
the fact that he used a weapon during the commission of the robbery in count 2. He claims the court improperly relied on this
factor because he received a separate 10-year term on the firearm use. However, the court did not mention the use of
a gun in finding this aggravating factor.
Moreover, the record shows that defendant threatened to kill the victim
if she “screw[ed] up†or did not do what he told her to do. Such direct verbal threats supported the
court’s use of the “threat of great bodily harm†aggravating factor. (People
v. Edwards (1981) 117 Cal.App.3d 436, 445-446.)
Defendant
next argues that the court improperly relied on victim vulnerability as an
aggravating factor. He claims that the
court could not rely on the fact that defendant committed the robbery against
an older victim since “the victim’s age and status as a robbery victim were
already elements of the offense.†He
asserts that “by definition, any victim of a robbery offense is a particularly
vulnerable victim.†Defendant cites
1154 (Quinones), overruled in part by
People v. Soto (2011) 51 Cal.4th 229,
248, footnote 12, and People v. Alvarado
(2001) 87 Cal.App.4th 178 (Alvarado)
in support of his position. However,
these cases are easily distinguishable.
The defendant in Quinones was
convicted of committing a lewd or lascivious act on a child under the age of
14. (Quinones,
at p. 1159; § 288.) Thus, age
was an element of the offense. In
against a person who was 65 years or older.
(Alvarado, at p. 193; §
667.9, subd. (a).) Unlike these cases, the
victim’s age and vulnerability here are not elements of robbery. Section 211 only requires a finding of “the
felonious taking of personal property in the possession of another, from his
person or immediate presence, and against his will, accomplished by means of
force or fear.â€
Defendant
further contends that the court improperly relied on the factor that he had
suffered prior offenses, since he received enhancements for his two prior
prison terms under section 667.5, subdivision (b). He appears to be claiming that the court made
an improper dual use of facts. However,
California Rules of Court, rule 4.421(b)(2), permits the court to use as an
aggravating factor the fact that “[t]he defendant’s prior convictions as an
adult or sustained petitions in juvenile delinquency proceedings are numerous
or of increasing seriousness.†The
record here reflects that, excluding the two prison priors, defendant had
suffered six other prior convictions.
Thus, the court could easily establish the aggravated sentence without
the prison priors. (See People v. Bejarano (1981) 114 Cal.App.3d 693, 706.) Moreover, absent an affirmative indication in
the record that the trial court included the prison priors as part of
defendant’s criminal pattern under California Rules of Court, rule 4.421(b)(2),
we will not presume they were so used. (
Furthermore,
contrary to defendant’s contention that the court failed to adequately consider
the mitigating factors, the record reflects that the court took into consideration
all of the factors in aggravation and mitigation as contained in the probation
reports, recommendation report, and the sentencing memo filed on behalf of
defendant. We also note that the court
heard and considered defense counsel’s argument regarding mitigating
circumstances.
In view of the
numerous aggravating factors, we cannot say that the court’s decision to impose
the upper term on count 2 was arbitrary or irrational. Thus, we must affirm the court’s decision. (Avalos,
supra, 47 Cal.App.4th at
p. 1582.)
II. Section 654 Does Not Apply
The
record shows that, when pronouncing judgment, the trial court imposed a
concurrent two-year term on count 14, the felon in possession of a firearm
(§ 12021) conviction. However, the
court thereafter stated, “The following counts will be—sentence will be imposed
but stayed under Penal Code section 654.â€
The court went on to list the remaining counts and included count 14
again. On appeal, the parties do not
mention that the court announced the sentence on count 14 twice. Rather, both parties argue as if the court
just imposed the term concurrently on count 14.
Defendant points out that the court imposed firearm use enhancements on
counts 9 through 13. (§§ 12022.53,
subd. (b), 1203.06, subd. (a)(1), and 12022.5, subd. (a).) He then claims that the evidence shows he
possessed a firearm only in conjunction with counts 9 through 13. Thus, he avers that section 654 barred the
sentence on the felon in possession of a firearm conviction in count 14. The People respond that the court properly
sentenced defendant to the concurrent term on count 14 because it constituted a
separate offense under section 654.
Assuming the court misspoke when it listed count 14 among the sentences
to which it applied section 654, as the parties appear to do, we disagree with
defendant that section 654 applied to bar the sentence on that count.
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.†Section 654 precludes
multiple punishments not only for a single act, but also for an indivisible
course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of this statute is to prevent
multiple punishment for a single act or omission, even though that act or
omission violates more than one statute and thus constitutes more than one
crime.†(People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (
“The
question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad
latitude in making this determination.
Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them.
[Citations.] ‘We must “view the
evidence in a light most favorable to the respondent and presume in support of
the [sentencing] order the existence of every fact the trier could reasonably
deduce from the evidence.
[Citation.]†[Citation.]’ [Citation.]â€
(Hutchins,
forbids convicted felons from possessing any firearm. “Whether a violation of section 12021
. . . constitutes a divisible transaction from the offense in which
he employs the weapon depends upon the facts and evidence of each individual
case. [Citation.] Thus where the evidence shows a possession
distinctly antecedent and separate from the primary offense, punishment on both
crimes has been approved.
[Citations.] 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. [Citations.]â€
(People v. Venegas (1970) 10
Cal.App.3d 814, 821.)
For
example, in People v. Ratcliff (1990)
223 Cal.App.3d 1401 [Fourth Dist., Div. Two], the defendant was convicted of
two counts of robbery with the use of a firearm and with being a felon in
at p. 1404.) He argued that the
firearm use and being a felon in possession of a concealable firearm were “part
of a continuous transaction†and, as a result, the sentence on the felon in
possession charge should have been stayed pursuant to section 654. (Ratcliff,
at pp. 1407-1408.) In analyzing the
existing authorities on the issue, this court “distill[ed] the principle that
if the evidence demonstrates at most that fortuitous circumstances put the
firearm in the defendant’s hand only at the instant of committing another
offense, section 654 will bar a separate punishment for the possession of the
weapon by an ex-felon.†(
used a handgun to commit the robberies about an hour and a half apart, and that
he possessed the handgun when he arrived at the scene of the first
robbery. When he was arrested half an
hour later, he still had the handgun in his possession. (Id.
at p. 1413.) We concluded section 654
did not preclude separate punishments because “[a] justifiable inference from
this evidence is that defendant’s possession of the weapon was not merely
simultaneous with the robberies, but continued before, during and after those
crimes.†(Ratcliff, at p. 1413.)
Here,
there is substantial evidence in the
record to support a finding that defendant’s possession of the handgun was
“distinctly antecedent and separate†from the offenses he committed in counts
9-13. The police report states defendant
told a police detective he purchased a .45-caliber gun, extra magazine, and
ammunition for $450 about six weeks prior to March 6, 2010, the date on which
he committed the offenses in counts 9-13.
He said he bought the gun for protection. Thus, contrary to defendant’s claim, the
evidence does not show that he possessed the firearm “only in conjunction withâ€
the offenses in counts 9-13. Rather, it
shows that he possessed a firearm for several weeks before he committed those
offenses.
We
conclude that the felon in possession offense was independent of and separable
from the offenses defendant committed in count 9-13. Thus, section 654 does not preclude a
separate punishment for this offense.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
name="_ftn1" title=""> [1] See People
v. Jones (2012) 54 Cal.4th 350, 352.
name="_ftn2" title=""> [2] To be consistent with the parties’ briefs,
and for the sake of clarity, we will simply refer to former section 12021 as
section 12021 in this opinion.
