Filed 7/12/17 P. v. Davis CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

LORANCE DAVIS,

Defendant and Appellant.
D071142



(Super. Ct. No. SCE357535)

APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles R. Ragland and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
In this case the appellant, Lorance Davis, pleaded guilty to multiple felonies and enhancements. The only issue presented in this appeal is whether the court should have stayed the sentence for firearm possession pursuant to Penal Code section 654. Unfortunately, neither counsel raised any issue regarding section 654 in the trial court. The only mention of the issue was in the probation officer's report and in a very brief discussion between the trial judge and the probation officer. As a result, the record regarding the precise relationship between possession of the firearm and other offenses is quite sparse.
It appears from the record we do have that Davis stole a pistol during a residential burglary and tucked the pistol in his waistband. Very shortly after that, Davis committed another residential burglary. He was seen fleeing from the latter burglary holding his left hand at his waistband. Davis was arrested and a pistol found in his truck. The absence of any objection prevented further development of the facts. Based on the record we do have, we will conclude the firearm possession was not merely incidental to the burglary in which it was taken. Rather, it seems clear that Davis possessed the pistol when he committed a separate burglary than the one in which the pistol was taken. As we will explain below, we conclude section 654 does not bar separate punishment for the firearm offense.
FACTS AND PROCEDURAL BACKGROUND
Davis pleaded guilty to seven counts of residential burglary (§ 459); one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 8); one count of possession of ammunition (§ 30305, subd. (a)(1); count 9); possession of stolen property (§ 496, subd. (a); count 10); possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 11); and one count of carrying a loaded firearm with the intent to commit a felony (§ 25800; count 12). Davis admitted one prison prior (§ 667.5, subd. (b)); one serious felony prior (§ 667, subd. (a)(1)) and one strike prior (§ 667, subds. (b)-(i)).
The trial court sentenced Davis to an aggregate determinate term of 31 years four months in prison. In that sentence the court stayed the terms for counts 9, 10 and 12 under section 654. The court did not stay the term for count 8.
Since this appeal is from guilty pleas we will take our summary of facts from the probation officer's report. However, since the only issue raised here is the question of staying the sentence for count 8 under section 654, we will limit our factual summary to the events in which the firearm was involved.
On January 12, 2016, while under surveillance, Davis entered Michael Garone's residence through a back window. The screen to the window was torn off and the window was unlocked. Davis took Garone's .357 Smith and Wesson revolver, two prescription bottles, and miscellaneous gold jewelry. The estimated total loss was approximately $4,800.
Detectives continued to follow Davis for several more minutes and he entered a backyard. Several minutes later, Davis ran away from the residence. Eric Calderon spoke with the Sheriff's Department and confirmed Davis tried to enter his residence through a window. When speaking with deputies, Calderon appeared shaken up by the incident and scared. Calderon said he heard noise coming from the bedroom and saw Davis climbing through the window. They locked eyes and Davis said something to the effect of, "What's up homie." Davis jumped out of the window and ran. Calderon armed himself with a baseball bat and called his mother. A neighbor had security surveillance cameras which recorded parts of the incident. The footage showed Davis running from the residence, at a full sprint, holding his waistline area with his left hand.
Knowing Davis was on parole, casing the neighborhood, and had just committed a burglary with an occupant inside, detectives contacted Davis. Detectives saw Davis fleeing rapidly in his vehicle toward his residence. He was arrested by detectives. During the arrest, Davis said, "There's a stolen gun on the seat." Located inside the vehicle was Garone's stolen, loaded .357 magnum revolver, stolen pill bottles, casino cards issued to someone other than Davis, a Michael Kors watch, a gold necklace, a gold bracelet, a GoPro camera, and several other items. A search of Davis's person revealed three rings and a gold necklace.
Davis told the detectives he knew Garone's gun was loaded. He said he was going to sell it for $300 or $400. He denied having the gun during the Calderon burglary, but admitted he had it in his waistband right after he stole it from Garone. Davis further admitted he knew he should not have possessed the gun due to his felon status.
DISCUSSION
Davis contends the sentence for count 8 should be stayed under section 654. He argues the pistol was stolen in a burglary and he was arrested with it in his possession. Thus, he contends the possession of the gun was a single act arising from the burglary and is part of the burglary offense. We will reject his contention. The record here supports the inference that Davis took the gun during one burglary (the Garone burglary) and kept it in his waistband while he committed another, unrelated burglary (the Calderon burglary). The possession of the gun was not simply the fruits of a burglary, but was separately used in the commission of another offense.
A. Legal Principles
Section 654 provides in 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." (§ 654, subd. (a).) The statute has spawned a vast amount of case law. The courts have generally agreed that a person may not be punished for more than one crime arising out of the same act or course of conduct. (People v. Deegan (2016) 247 Cal.App.4th 532, 541-542.) The application of section 654 requires a case-by-case analysis of the facts of the various offenses to determine the applicability of the principles underlying the section. (People v. Beamon (1973) 8 Cal.3d 625, 636.) Whether a given course of conduct is divisible into separate offenses for punishment will depend in part on whether the defendant harbored different intents or objectives and whether the events are separate in time and commission. (People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Williams (1988) 201 Cal.App.3d 439, 442.)
Recently the Supreme Court has re-examined section 654 and the method of determining its applicability to a given set of facts. The court has determined the starting point for the analysis is whether the different crimes were completed by a "single physical act." (People v. Jones (2012) 54 Cal.4th 350, 358.) "Only if we conclude that the case involves more than a single physical act—i.e., a course of conduct—do we consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening); Jones, supra, at p. 359; see People v. Mesa (2012) 54 Cal.4th 191, 199.)
In Corpening, the court considered a defendant convicted of robbery and carjacking, involving several physical acts. In determining whether 654 applied the court considered the actus reus for each of the several criminal offenses. Considering the crimes both involved the forcible taking of property from another, the court concluded the conduct there involved a "single physical act" for purposes of the application of section 654. (Corpening, supra, 2 Cal.5th at pp. 313-314; see People v. Dominguez (1995) 38 Cal.App.4th 410, 417-418.)
B. Analysis
We first conclude the possession of a firearm as charged here was not part of a single physical act arising from the Garone burglary. The gun was certainly taken during the burglary where the intention was to steal property. If the facts ended there we would be inclined to agree that section 654 would apply. However, Davis moved on to a separate course of action, i.e., another residential burglary. This time the pistol was tucked in Davis's waistband. It is apparent that Davis then possessed the firearm separate from the Garone burglary. Possession of the firearm by a felon has a different actus reus than burglary of a residence accomplished by physical entry of a building separate from the one in which Davis acquired the gun.
Davis relies heavily on People v. Griffin (1962) 209 Cal.App.2d 125, 129. There the defendant committed a burglary, in which he took a controlled substance. The defendant was convicted of burglary and for possession of the substance taken in the burglary. Griffin is not applicable to the facts in this case. The conduct involved here is not limited to a burglary and possession of the item taken. Here, there is a separate, intervening course of conduct in which Davis not only had possession of the gun, he took it with him in committing a separate crime at a different location. We find there were separate physical acts, accompanied by separate intents and objectives. Accordingly, we find no error in the court's decision to decline to stay the sentence for the one firearm offense.
DISPOSITION
The judgment is affirmed.


HUFFMAN, J.

WE CONCUR:




McCONNELL, P. J.




O'ROURKE, J.