Filed 5/4/22 In re A.J. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Hugo J. Loza, Judge.

Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

This matter involves a minor who comes before this court for the third time in four years. In 2018, we affirmed the juvenile court after it found true that appellant had committed (1) residential burglary (Pen. Code, § 459);[1] (2) robbery (§ 211); (3) assault with a deadly weapon (§ 245, subd. (a)(1)); and (4) battery with infliction of serious bodily injury (§ 243, subd. (d)). (In re A.J. (Dec. 14, 2018, F075246) [nonpub. opn.].)

While that first appeal was pending, appellant incurred various violations of probation. In November 2018, appellant was again deemed a ward of the juvenile court and his physical custody was removed from his parent or guardian. A maximum term of confinement of nine years four months was set.

In 2020, we concluded in an unpublished opinion that the maximum term of confinement had been erroneously calculated because some of the sentences imposed should have been stayed under section 654. In relevant part, we directed the juvenile court to set the maximum term of confinement at six years. (In re A.J. (Apr. 21, 2020, F078664).)

Appellant’s third appeal is now before us based on new wardship petitions. In March 2021, the juvenile court found true that appellant had committed felony second degree robbery (§ 211; count 1), and appellant personally used a loaded firearm (§ 1203.06, subd. (a)(1)). In addition, the court found true that appellant was in possession of a concealed firearm (former § 29610; count 2) and he was in possession of ammunition (§ 29650; count 3), both felonies.

In April 2021, the juvenile court continued appellant as a ward of the court, and he was committed to an out-of-home placement in a program. As is relevant in this appeal, the court calculated a maximum aggregate total period of confinement at 14 years four months, with 673 days of credit.

In the present appeal, we reject appellant’s claim that the juvenile court erred under section 654 when it failed to stay the sentences for his 2021 possession of a concealed firearm and his 2021 possession of ammunition. These crimes involved different criminal intents and objectives from his 2021 robbery. However, we agree with the parties that appellant’s maximum aggregate term of confinement was erroneously calculated, and appellant is also entitled to seven additional days of custody credits. We direct the juvenile court to amend its order to reflect that appellant has a maximum aggregate term of confinement of 10 years four months, and custody credits of 680 days. We otherwise affirm the juvenile court’s order.

BACKGROUND

Appellant’s appeal focuses on his most recent armed robbery, which occurred in February 2021. We limit our summary of the facts to that particular incident.[2]

On February 12, 2021, the victim was walking in his neighborhood when a vehicle stopped near him. A juvenile female, A.G., was driving and appellant was in the passenger seat. Appellant opened the door, holding a handgun. He demanded property from the victim, threatening to shoot. The victim gave appellant his wallet and ear buds. The vehicle drove away.[3]

About two to three miles away, and about 11 minutes later, officers stopped the vehicle. A.G. was driving and appellant was in the passenger seat. Officers discovered a loaded handgun on A.G.’s person, and ammunition in the vehicle. The victim’s stolen property was located inside the vehicle.

The officers conducted a field show-up on the day of this crime. The victim identified appellant and A.G. as the two individuals who had just robbed him. In court, the victim identified appellant and A.G. as the individuals who had robbed him with a handgun.

Both appellant and A.G. testified in court. They both denied knowing why police had stopped them on the day in question. According to appellant, A.G. had picked him up in her vehicle. He denied having any weapons on him, or knowing that any weapons were in her vehicle.

DISCUSSION

I. Section 654 Did Not Preclude Imposition of Multiple Punishments.

At the time appellant committed the robbery in 2021, it was illegal for a minor to “possess a pistol, revolver, or other firearm capable of being concealed upon the person.”[4] (Former § 29610.) It was also then illegal (as it is now) for a minor to possess live ammunition. (§ 29650.) In counts 2 and 3, the juvenile court found true that appellant had violated these respective statutes. The court imposed a consecutive term of eight months for these charges. The court did not address section 654 when it sentenced appellant.[5]

Appellant argues that the trial court violated section 654 when it imposed the sentences in counts 2 and 3. He contends that these sentences must be stayed. According to appellant, his possession of the concealable firearm and his possession of the ammunition were indivisible from the robbery. He asserts that nothing shows he possessed the loaded firearm for any purpose other than to commit the robbery. He notes that the wardship petition alleged that these crimes all occurred on the same date. He asserts it can be reasonably inferred it was A.G. who possessed the firearm and ammunition before he began riding with her, and she provided the gun to him for use in the robbery. According to appellant, he temporarily possessed it only for the robbery, and he returned the gun to A.G.

Respondent takes a contrary position. According to respondent, the juvenile court properly included counts 2 and 3 in calculating appellant’s maximum term of confinement. Respondent argues that appellant exhibited multiple criminal intents and objectives. Respondent contends that substantial evidence supports the juvenile court’s implied finding that it was appropriate to impose multiple sentences.

We agree with respondent and we reject appellant’s arguments. This record amply demonstrates that appellant held multiple criminal intents and objectives when he illegally possessed both the concealable firearm and the live ammunition. That criminal conduct was divisible from the robbery.[6] The juvenile court did not violate section 654.

“ ‘In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.’ ” (People v. Sloan (2007) 42 Cal.4th 110, 116.) Section 654 bars multiple punishments for the same criminal act or omission. (People v. Correa (2012) 54 Cal.4th 331, 337.) To determine if a defendant may be subjected to multiple punishment under section 654, we must analyze whether the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. (People v. Corpening (2016) 2 Cal.5th 307, 311.) However, if the case involves more than a single act—i.e., a course of conduct—the inquiry is whether that course of conduct reflects a single intent and objective, or multiple intents and objectives. (Ibid.) When the facts are undisputed, a de novo review is used to consider the application of section 654. (People v. Corpening, supra, at pp. 311–312.) When a sentencing court finds that the crimes involved more than one objective, that factual determination must be sustained on appeal if it is supported by substantial evidence.[7] (People v. Osband (1996) 13 Cal.4th 622, 730.)

Appellant’s arguments are unpersuasive. The reasonable inferences drawn from this record demonstrate that he possessed the gun and the ammunition prior to this robbery.

Possession of contraband “may be physical or constructive, and more than one person may possess the same contraband.” (People v. Miranda (2011) 192 Cal.App.4th 398, 410.) A defendant can constructively possess a firearm by knowingly exercising “dominion and control” over it. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1029–1030, disapproved on other grounds by People v. Frierson (2017) 4 Cal.5th 225, 240, fn. 8; see also People v. Elder (2014) 227 Cal.App.4th 1308, 1314.) A defendant constructively possesses a firearm when he knowingly exercises control of it, or the right to control it, either directly or through others. (People v. Peña (1999) 74 Cal.App.4th 1078, 1083–1084.)

In the present matter, appellant exercised control of the concealable handgun. Indeed, he possessed it during the robbery. After the robbery, that loaded gun was found on A.G.’s person. Ammunition was recovered in the vehicle. The evidence reasonably demonstrates that appellant either physically held the gun before the robbery, or he was in constructive possession of it. Likewise, the reasonable inferences establish that he had a “right to control” the additional ammunition that was in the vehicle. (See CALCRIM No. 2591.) Although appellant draws a different interpretation from the record, substantial evidence supports the trial court’s implied finding that appellant illegally possessed the concealable firearm and the ammunition separate and apart from the robbery.

Multiple opinions support our conclusion that appellant’s conduct did not involve a single indivisible act. In People v. Ortiz (2012) 208 Cal.App.4th 1354, a reasonable inference could be drawn from the record that the defendant was already in possession of a firearm when he committed a kidnapping via a carjacking. (Id. at p. 1379.) No evidence showed “that fortuitous circumstances” had placed the firearm in the defendant’s hand at the start of the kidnapping and carjacking. (Ibid.) Section 654 did not preclude imposition of multiple punishments. (People v. Ortiz, at p. 1379.)

In People v. Jones (2002) 103 Cal.App.4th 1139, the record supported the trial court’s implied findings that the defendant’s possession of a firearm was a separate and distinct offense from shooting at an inhabited dwelling. (Id. at p. 1147.) A reasonable inference existed that the defendant must have possessed the firearm before firing shots at the home in question. “Any other interpretation would be patently absurd.” (Ibid.) As such, the defendant committed two separate acts: arming himself with a firearm, and shooting at an inhabited dwelling. Therefore, multiple punishments were commensurate with the defendant’s culpability. (Id. at p. 1148.)

Finally, in People v. Venegas (2020) 44 Cal.App.5th 32, the trial court imposed a concurrent term of possession of a firearm by a felon. The defendant had used the firearm to commit murder. (People v. Venegas, at p. 37.) The appellate court concluded that the defendant had purposefully possessed the gun before the murder took place. (Id. at p. 38.) Nothing suggested that someone had handed the defendant the gun at the scene, or that he had happened upon a loaded gun on the street. (Ibid.) Instead, the reasonable inference is that the defendant began his motorcycle ride with the gun. Thus, the defendant “purposefully possessed the gun” before he shot the victim. (Ibid.) The trial court properly imposed multiple punishments. (Ibid.)

We reject appellant’s assertion that his possession of the concealable firearm and his possession of the ammunition were a single physical act indivisible from the robbery. Instead, a course of conduct occurred. We further agree with respondent that appellant’s course of conduct demonstrated multiple criminal intents and objectives. Illegally possessing the handgun gave appellant a tool to commit any number of crimes. The additional ammunition permitted him to reload that gun, or to load another firearm.[8] This record conclusively establishes multiple criminal intents and objectives apart from appellant’s intent to rob the victim.

Appellant primarily relies on three opinions: (1) People v. Jones (2012) 54 Cal.4th 350 (Jones); (2) People v. Mesa (2012) 54 Cal.4th 191 (Mesa); and (3) People v. Williams (2009) 170 Cal.App.4th 587 (Williams). These authorities do not assist him.

In Jones, the defendant was a convicted felon who carried an unregistered gun that was concealed and loaded. He violated three different laws: (1) being a felon in possession of a firearm; (2) carrying a concealed and unregistered firearm; and (3) carrying an unregistered loaded firearm in public. (Jones, supra, 54 Cal.4th at p. 352.) Our Supreme Court held that those three crimes involved a single criminal act, i.e., unlawfully carrying a firearm. As such, the defendant could only be punished once. (Id. at p. 359.)

In Mesa, the defendant was a gang member and a convicted felon. He shot two victims on separate dates. For each shooting he was convicted of assault with a firearm, possession of a firearm by a felon, and actively participating in a criminal street gang. (Mesa, supra, 54 Cal.4th at pp. 193–194.) The Supreme Court held that the shooting and firearm possession offenses were the foundation for the defendant’s conviction of participating in a criminal street gang. (Id. at p. 200.) The information had alleged that the defendant committed each assault and related gang participation offense on the same day, which the high court concluded meant the defendant “committed both offenses simultaneously.” (Ibid.) The high court held that section 654 did not permit punishment for the gang crimes in addition to the punishments for assault with a firearm and possession of a firearm by a felon. (Mesa, at p. 201.)

Finally, in Williams, the police found drugs, drug paraphernalia, and a gun at the defendant’s property. (Williams, supra, 170 Cal.App.4th at p. 597.) At sentencing, the trial court stated its belief that appellant’s conviction for possession of a firearm by a felon (§ 12021, subd. (a)(1)) involved the same act and intent as his conviction for unlawful possession of a specific controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1). (Williams, supra, 170 Cal.App.4th at p. 645.) However, the trial court imposed a concurrent middle term of two years for possession of a firearm by a felon and a four-year term for possession of a controlled substance while armed. (Ibid.) The appellate court found error because the lower court had announced its finding that counts 1 and 3 involved the same act and intent, and that finding was supported by substantial circumstantial evidence in the record. Accordingly, section 654 barred punishment for the conviction in count 1. (Williams, supra, 170 Cal.App.4th at p. 646.)

Here, Jones, Mesa and Williams are distinguishable. Unlike in those opinions, appellant engaged in a course of conduct. The reasonable inferences establish that he illegally possessed the concealable firearm and the live ammunition separate and apart from committing the robbery. Appellant’s cited authorities are inapposite to the facts of his case, and they do not establish error.

Substantial evidence supports the juvenile court’s implied finding that section 654 was inapplicable. Moreover, our de novo review establishes that section 654 did not preclude imposition of multiple punishments for appellant’s illegal possession of the firearm and the live ammunition, in addition to the robbery. Thus, the trial court did not err in imposing these sentences, and this claim fails.

II. Appellant’s Maximum Aggregate Period of Confinement must be Reduced.

The parties agree, as do we, that appellant’s aggregate maximum term of confinement was erroneously calculated and it must be reduced. Reduction is required for two reasons.

First, appellant is entitled to retroactive application of the recent amendment to Welfare and Institutions Code section 726. On May 14, 2021, Senate Bill No. 92 (2021-2022 Reg. Sess.) became effective. Under this change, when a minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship, the minor now may not be held in physical confinement for a period in excess of the middle term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. (Welf. & Inst. Code, § 726, subd. (d)(1).) Previously, the physical confinement could not exceed the maximum term of imprisonment which could be imposed upon an adult. (Former Welf. & Inst. Code, § 726, subd. (d)(1).)

Respondent concedes that appellant benefits from this ameliorative change. We accept respondent’s concession because appellant’s appeal was still pending when this amendment occurred. (See In re Estrada (1965) 63 Cal.2d 740, 745 [it is presumed the Legislature intends for amendments to a criminal statute to apply to cases not yet final].) As a result, appellant’s principal felony must reflect the middle term and not the upper term.

Second, the juvenile court failed to implement the disposition from this court’s 2020 opinion. We ordered stricken the following three sentences which the trial court imposed in 2017: (1) appellant’s 2016 residential burglary (§ 459); (2) his 2016 assault with a deadly weapon (§ 245, subd. (a)(1)); and (3) his 2016 battery with infliction of serious bodily injury (§ 243, subd. (d)). We concluded that section 654 required these sentences to be stayed because they were indivisible from appellant’s 2016 first degree robbery (§ 211). We directed the juvenile court to deem the first degree robbery as the operative term, which carries a maximum prison sentence of six years (§ 213, subd. (a)(1)(A), (B)). (In re A.J., supra, F078664.)

Appellant’s current aggregate maximum term of confinement still erroneously includes the sentences above that we ordered stricken in 2020. Indeed, the juvenile court still erroneously lists appellant’s 2016 residential burglary (§ 459) as the principal felony, and it is set at the maximum term of six years.

We list below how appellant’s maximum term must be calculated. We reach this number by determining the principal term and adding one-third of the midterm for each subordinate term. (In re Eric J. (1979) 25 Cal.3d 522, 536.) The appropriate term is as follows:

1. Four years for the 2016 first degree robbery (§ 211).[9] This represents the principal felony. (See In re A.J., supra, F078664.)

2. One year for the 2019 assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)).

3. One year for the second 2019 assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)).

4. One year for the 2020 second degree robbery (§ 211).

5. One year for the 2021 second degree robbery (§ 211).

6. One year for the 2021 firearm enhancement (§ 1203.06, subd. (a)(1)).

7. Eight months for the 2021 possession of a concealed firearm (former § 29610).

8. Eight months for the 2021 possession of ammunition (§ 29650).

Based on this breakdown, we agree with the parties that appellant’s maximum aggregate term of confinement should be 10 years four months. Respondent argues a remand is unnecessary to reduce the term. In his reply brief, appellant neither disputes that proposed remedy nor responds to it. We agree with respondent that a remand is unnecessary because the juvenile court already imposed the maximum possible term. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 [remand unnecessary when maximum sentence imposed].) Accordingly, we will direct the juvenile court to amend its order to reflect an aggregate maximum term of confinement of 10 years four months.

III. Appellant Is Entitled to Additional Custody Credits.

Appellant was awarded 673 days of custody credit. The parties agree that he is entitled to additional credits. However, they disagree on the amount. Appellant requests an additional eight days of credit. In contrast, respondent contends that appellant should receive seven more days of credit. We agree with respondent’s calculation.

A juvenile court is required to calculate a ward’s custody credits. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) The ward is entitled to credit against his term of commitment for all days spent in physical confinement on the charges that resulted in his commitment. (In re Antwon R. (2001) 87 Cal.App.4th 348, 352.)

Here, at the close of the jurisdictional hearing on March 10, 2021, the court set the dispositional hearing for March 29, 2021. On March 29, 2021, the matter was continued to April 5, 2021. The probation officer’s report reflects that, as of March 29, 2021, appellant was due 673 days credit. However, nothing indicates that the probation officer updated the credits when the matter was continued to April 5, 2021. When imposing the aggregate maximum period of confinement, the juvenile court stated that appellant would receive 365 days for time served. However, we agree with appellant that it appears the court misspoke. The court’s records reflect custody credits of 673 days.

Respondent is correct that seven days of credit are due to appellant based on the continuance from March 29 to April 5, 2021. We will direct the juvenile court to amend its order to reflect that appellant has 680 days of credit.

DISPOSITION

We strike that portion of the juvenile court’s April 5, 2021, order that set appellant’s aggregate maximum term of confinement at 14 years four months. The court shall amend its order to reflect that appellant has a maximum aggregate term of 10 years four months. We further strike that portion of the same order that gave appellant 673 days credit for time served. We direct the court to amend its order to reflect that appellant has 680 days credit for time served. The juvenile court shall have its corrected order forwarded to any necessary authorities. In all other respects, the juvenile court’s order is affirmed.

* Before Levy, Acting P.J., Franson, J. and Snauffer, J.

[1] All future statutory references are to the Penal Code unless otherwise noted.

[2] Appellant violated other laws which contributed to his aggregate maximum term of confinement. In March 2020, the juvenile court found true that appellant had committed two counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)), both felonies. In August 2020, appellant admitted a count of second degree robbery (§ 211), a felony.

[3] The victim had never before seen either appellant or A.G.

[4] Effective January 1, 2022, section 29610 now makes it illegal for a minor to possess a handgun or semiautomatic centerfire rifle. (§ 29610, subds. (a) & (b).) “Commencing July 1, 2023, a minor shall not possess any firearm.” (Id. at subd. (c).)

[5] The juvenile court imposed a term of five years for the robbery, plus a consecutive one year for being armed in the commission of the robbery (§ 12022, subd. (a)(1)). The maximum period of confinement under this petition for these offenses was set at seven years four months.

[6] Respondent concedes that appellant cannot be punished for the live ammunition loaded inside the handgun. We agree. Section 654 precludes multiple punishment for illegally possessing both a firearm and ammunition when “all of the ammunition” is loaded into the firearm. (People v. Lopez (2004) 119 Cal.App.4th 132, 138.) Here, however, law enforcement located additional ammunition in the vehicle apart from the ammunition loaded in the firearm. Appellant concedes this point.

[7] Our Supreme Court holds that section 654 applies in juvenile wardship proceedings. (In re Michael B. (1980) 28 Cal.3d 548, 556, fn. 3.)

[8] Appellant concedes in his reply brief that “additional ammunition for the firearm was located in A.G.’s vehicle.”

[9] In our prior opinion, we ordered the juvenile court to impose a maximum term of six years for the first degree robbery. (In re A.J., supra, F078664.) That term, however, must now be reduced to four years (i.e., the middle term) based on the amendment to Welfare and Institutions Code section 726, subdivision (d)(1).