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People v. Wynn

May 24, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN PAUL WYNN, JR., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Bernardino County, Jon D. Ferguson, Judge. Modified in part; affirmed in part. (Super. Ct. No. FVI-020939).

The opinion of the court was delivered by: Irion, J.

CERTIFIED FOR PUBLICATION

A jury convicted John Paul Wynn, Jr. of one count of burglary (Pen. Code,*fn1 § 459); three counts of petty theft with priors (§ 666); one count of possession of a prohibited deadly weapon (§ 12020, subd. (a)(1)); and three counts of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also made a true finding that Wynn personally used a deadly or dangerous weapon in connection with the burglary and petty theft counts. (§ 12022, subd. (b)(1).) The trial court struck two of the petty theft counts and sentenced Wynn to prison for nine years four months.

Wynn contends that pursuant to section 654, the trial court was required to stay various portions of his sentence. He also contends that the abstract of judgment should be amended to accurately reflect that the trial court struck two of the petty theft counts. We conclude that (1) the trial court should have stayed the section 12022, subdivision (b)(1) sentence enhancement for use of a deadly or dangerous weapon in connection with the burglary count because it was based on the same indivisible course conduct that gave rise to the assault with a deadly weapon counts; and (2) the abstract of judgment must be amended to reflect that the trial court struck two of the petty theft convictions (counts 3 & 4).

I. FACTUAL AND PROCEDURAL BACKGROUND

A loss prevention officer at a Walmart store observed Wynn leave the store with a carton of cigarettes that he had not purchased. She confronted Wynn in the parking lot, told him she was a loss prevention officer, and asked him to come back inside the store. Wynn threw the carton of cigarettes down on the ground, stating, "I did not take anything. I don't know what you're talking about." He then took a nunchaku from his pants and started swinging it around. It took several store employees to subdue Wynn and place handcuffs on him. In the course of the struggle, Wynn inflicted a wound to one employee's head with the nunchaku. Two other employees sustained scratches and bruises while subduing Wynn.

Wynn was arrested and later told police that he carried the nunchaku because people are afraid of it.

After a jury trial, Wynn was convicted of one count of burglary (§ 459); three counts of petty theft with priors (§ 666); one count of possession of a prohibited deadly weapon (§ 12020, subd. (a)(1)); and three counts of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also made a true finding that Wynn personally used a deadly and dangerous weapon in connection with the burglary and petty theft counts. (§ 12022, subd. (b)(1).) Wynn admitted a prior prison term. At sentencing, the trial court struck two of the petty theft counts.

The trial court sentenced Wynn to prison for nine years four months, which was based on the following consecutive terms: four years for one of the assault with a deadly weapon counts; one year each for the two other assault with a deadly weapon counts; eight months on the burglary count; one year for the weapon enhancement on the burglary count; eight months on the possession of a prohibited deadly weapon count; and one year for the prison prior.*fn2

II. DISCUSSION

A. Wynn's Contention That Portions of His Sentence Should Have Been Stayed Pursuant to Section 654

Wynn contends that pursuant to section 654, three different portions of his sentence must be stayed, namely, (1) the sentence for burglary; (2) the sentence for possession of a prohibited deadly weapon; and (3) the enhancement for personally using a deadly or dangerous weapon in connection with the burglary.

Section 654, subdivision (a) 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." "[S]section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.... If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551, citations omitted, italics added.) Whether offenses are "indivisible" for these purposes is determined by the "defendant's intent and objective, not the temporal proximity of his offenses." (People v. Harrison (1989) 48 Cal.3d 321, 335.) "If [a] defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (Ibid.) The application of section 654, thus, "turns on the defendant's objective in violating" multiple statutory provisions. (People v. Britt (2004) 32 Cal.4th 944, 952 (Britt).) Where the commission of one offense is merely " 'a means toward the objective of the commission of the other,' " section 654 prohibits separate punishments for the two offenses. (Britt, at p. 953.)

We apply a substantial evidence standard of review. "The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial." (People v. Saffle (1992) 4 Cal.App.4th 434, 438; see also People v. Osband (1996) 13 Cal.4th 622, 730 [approving substantial evidence standard of review as stated in Saffle].) "[T]he law gives the ...


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