Filed 8/22/17 P. v. Beverly CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Palmer Beverly of being a convicted felon in possession of ammunition (Pen. Code, § 30305, subd. (a)(1); count six),[1] two counts of being a convicted felon in possession of a firearm (§ 29800, subd. (a)(1); counts four & five), and three counts of first degree burglary (§ 459; counts one, two, & three). Defendant admitted two prior felony convictions (§ 667, subd. (a)), two strike priors (§§ 667, subds. (b)-(i), 1170.12), and one prior prison term (§ 667.5, subd. (b)).[2]

At sentencing, the prosecutor dismissed one of the strike priors. The court imposed an aggregate term of 24 years 8 months.

Defendant appeals. He contends (1) his federal constitutional rights were violated when the prosecutor refused to allow him to accept the plea offer of 12 years because it was a package deal which codefendant Fulbright refused and (2) his sentence for possession of ammunition should have been stayed (§ 654) because he harbored only one intent in possessing the guns and ammunition. We reject defendant’s contentions and will affirm the judgment.

FACTS

A detailed recitation of the facts underlying defendant’s offenses is unnecessary in view of defendant’s contentions on appeal. We will recount those facts relevant to the contentions in our discussion of the same.

DISCUSSION

I

Defendant first contends that the package plea offer violated his right to fundamental fairness in plea bargaining under the Fourteenth Amendment due process clause because the plea bargain was contingent upon codefendant accepting the offer. We reject defendant’s contention.

The prosecutor offered a “package offer”--12 years for defendant and 17 years for Fulbright. Defendant wanted to accept the deal but Fulbright refused to accept. Defendant’s attorney later objected to the deal as being “unfair” because it was contingent upon Fulbright’s acceptance, resulting in an “injustice” to defendant. The prosecutor argued that a package deal was proper because defendant and Fulbright committed the crimes together and the evidence was intertwined.

Defendant did not object based on the federal Constitution or the Fourteenth Amendment. He simply stated it was “unfair” and resulted in an “injustice” to defendant. “Failure to raise a constitutional issue at trial constitutes a waiver of the issue on appeal. [Citation.]” (People v. Esayian (2003) 112 Cal.App.4th 1031, 1042.) Assuming defendant’s contention is not forfeited for failing to object on specific constitutional ground, we reject defendant’s claim.

A “package offer” does not violate fundamental fairness or due process unless the package requirement puts undue coercion upon a codefendant reluctant to agree. (In re Ibarra (1983) 34 Cal.3d 277, 287-290; People v. Conerly (2009) 176 Cal.App.4th 240, 248-249; People v. Sandoval (2006) 140 Cal.App.4th 111, 124-125; Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1056.)

Defendant misplaces his reliance upon case law where the defendant has been misinformed or received ineffective assistance of counsel or where a promise made in a bargain was not kept. (Santobello v. New York (1971) 404 U.S. 257 [30 L.Ed.2d 427]; People v. Goodwillie (2007) 147 Cal.App.4th 695, 731-738.) Here, the danger of coercing a defendant into accepting a plea did not occur. Defendant’s contention is rejected.

II

Defendant contends the punishment for possession of ammunition must be stayed because he harbored a single intent in possessing the guns and ammunition. We disagree.

When defendant was arrested, officers found a shotgun in his car. In a closet in defendant’s home, officers found another shotgun and, on the shelf above the gun, a plastic bag containing shotgun shells.

The court imposed sentence on the burglaries, a consecutive term for possession of a firearm on count four, a concurrent term for possession of a firearm on count five, and a concurrent term for possession of ammunition on count six.

Section 654, subdivision (a) provides, in relevant part, as follows: “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.”

When section 654 applies, the term of punishment, including a concurrent sentence, is to be stayed. (People v. Jones (2012) 54 Cal.4th 350, 353.)[3] People v. Lopez (2004) 119 Cal.App.4th 132 held that multiple punishment for possession of a firearm and ammunition violates section 654 when all of the ammunition is loaded in the firearm. (Lopez, at pp. 137-139.)

Lopez is distinguishable. Here, one gun was found in the car and another gun was found in the closet. The ammunition was found in a plastic bag on the top shelf in the closet. The ammunition found in the closet was not in either gun. Possession of the guns and possession of the ammunition were separate acts of possession. The trial court’s implied finding that the acts were not an indivisible course of conduct is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Section 654 does not apply.

DISPOSITION

The judgment is affirmed.

/s/

Blease, Acting P. J.

We concur:

/s/

Hull, J.

/s/

Mauro, J.