IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
December 30, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JUAN JOSE MORALES, DEFENDANT AND APPELLANT.
(Sonoma County Super. Ct. No. SCR451243)
The opinion of the court was delivered by: Rivera, J.
P. v. Morales
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case returns to us after we reversed the conviction on one of the counts of which defendant Juan Jose Morales was found guilty and remanded for resentencing. (People v. Morales (2008) 168 Cal.App.4th 1075, 1085 (Morales I).) Defendant contends that the trial court erred in not staying sentence on one of the remaining counts; that it misunderstood the scope of its discretion in imposing two enhancements; and that he was deprived of effective assistance of counsel. We affirm.
A jury found defendant guilty of "possession of a firearm by a felon (Pen. Code,*fn2 § 12021, subd. (a)(1)) (counts I, V, and XII); possession of ammunition by a felon (§ 12316, subd. (b)(1)) (counts II and VI); attempting to evade a police officer (Veh. Code, § 2800.2, subd. (a)) (count III); misdemeanor resisting and obstructing a police officer (§ 148, subd. (a)(1)) (count IV); child abuse likely to create great bodily harm (§ 273a, subd. (a)) (count VII); assault with a firearm (§ 245, subd. (a)(2)) (count IX); shooting at an inhabited dwelling (§ 246) (count X); and first degree burglary (§ 459) (count XI). Various enhancement allegations were also found true. Defendant was [originally] sentenced to 10 years plus 25 years to life in prison." (Morales I, supra, 168 Cal.App.4th at p. 1078.)
The charges arose out of three incidents. The first took place on August 4, 2004, the day after Rhonda Oliva had given birth to his son.*fn3 Defendant was visiting Oliva at the hospital, and the two had a "big fight." A security officer was called, and found the room in disarray, with a food tray table and other furniture knocked over and bed sheets thrown to the floor. The officer escorted defendant out of the hospital, and defendant told him he wanted to retrieve a gun from Oliva's car, saying it belonged to a friend. A police officer searched the car and found a loaded semiautomatic pistol under the driver's seat.
The second incident took place on November 17, 2004, when "defendant was driving a car with 16-year-old Kayla in the passenger seat. Police Officer Richard Celli of the Santa Rosa Police Department saw that the car had expired registration tags. He put on his overhead lights and siren to signal defendant's car to pull over. The car signaled to the right but continued on the road. Celli pursued defendant, who evaded him and sped through a stop sign without stopping. After going through a red light, defendant's car collided with a telephone pole, spun around, and hit a metal post." (Morales I, supra, 168 Cal.App.4th at p. 1078, fn. omitted.) A loaded .380 caliber pistol magazine was found in the driver's door pocket, and a loaded .380 semi-automatic pistol and magazine were found nearby.
The third incident occurred on November 23, 2004. "Rhonda Oliva and Sebastian Fent were at Oliva's home, along with Oliva's three-month-old baby, defendant's son. In the middle of the night, defendant began banging on the front door, tearing off the screen door. He moved to the bedroom window and tore at the window screen while yelling. Fent called 911[, and Oliva took him to the garage to get something to protect himself. Fent got a bat from the garage], then went into the kitchen and locked the door between the kitchen and the garage. Fent heard a crash or bang in the garage, and defendant began pounding on the door leading from the garage to the kitchen. He fired three or four shots through the kitchen door. Two of the shots hit Fent's legs." (Morales I, supra, 168 Cal.App.4th at pp. 1078-1079, fns. omitted.) Defendant later told a police officer that he was concerned that Oliva was not feeding his son, went into the garage to find a bat, and found a gun there. He said that after the incident, he threw it into a field.*fn4
In Morales I, we concluded defendant's actions in the November 23, 2004, incident did not meet the elements of section 246, shooting at an inhabited dwelling, reversed count X, and remanded the matter for resentencing. (Morales I, supra, 168 Cal.App.4th at pp. 1079-1082, 1085.)
On remand, the trial court sentenced defendant to a total prison sentence of 24 years and eight months. On count IX, assault with a firearm (§ 245, subd. (a)(2)), it imposed the upper term of four years, with a three-year enhancement for infliction of great bodily injury (§ 12022.7, subd. (a)), a 10-year enhancement for personal use of a firearm (§ 12022.5, subds. (a)-(d)), and a two-year out-on-bail enhancement (§ 12022.1). The court imposed an eight-month sentence (one-third the midterm) on count I; a concurrent three-year term on count V; a consecutive sentence of one year and four months (one-third the midterm) on count VII, with a two-year out-on-bail enhancement (§ 12022.1); a consecutive eight-month sentence (one-third the midterm) on count XII; and a one-year enhancement under section 667.5, subdivision (b), for a prior prison term. The court stayed sentence on counts II, III, and IX pursuant to section 654.
A. Sentence for Possession of a Firearm
In count XII, defendant was convicted of being a felon in possession of a firearm on November 25, 2004. The trial court found it was a "separate crime," and imposed a consecutive eight-month term for this count. Defendant contends the sentence on this count should have been stayed under section 654.*fn5
Section 654's ban on multiple punishment applies where possession of a firearm is incidental to and simultaneous with the primary offense. (People v. Jones (2002) 103 Cal.App.4th 1139, 1144 (Jones).) "[M]ultiple punishment is improper where the evidence 'demonstrates at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense . . . .' [Citation.]" (Ibid.; see also People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412 (Ratcliff).)*fn6 "On the other hand, it is clear that multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent." (Jones, supra, 103 Cal.App.4th at p. 1144.) Multiple punishment is also proper if the felon possessed the firearm after the crime, with a separate intent. (See People v. Garcia (2008) 167 Cal.App.4th 1550, 1565-1566.)
Whether section 654 applies is "a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (Jones, supra, 103 Cal.App.4th at p. 1143; see also People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.)
The trial court could properly conclude defendant did not fortuitously obtain possession of the gun only at the time of committing the offense of firing it through the door. It is true, as defendant points out, that he told an officer he had found the gun on a sofa in the garage when he was looking for a baseball bat. The trial court could reasonably disbelieve defendant's statement, however. Defendant had twice been found with loaded firearms in his possession, the most recent time only a week previously. Oliva testified that when defendant was outside the house, she took Fent into the garage because he wanted something to protect himself, and that they got the bat from the garage. The trial court could reasonably infer that if a gun had been kept in the garage, Oliva and Fent would have taken the gun, rather than the bat, when looking for a weapon to use to defend themselves, and that defendant had a gun in his possession when he went to Oliva's home.*fn7
B. Out-on-Bail Enhancements
The trial court imposed two out-on-bail enhancements pursuant to section 12022.1. That statute provides in pertinent part: "Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court." (§ 12022.1, subd. (b).) Despite this general mandatory language, the trial court retains discretion to strike or dismiss the enhancement or the additional punishment under section 1385. (People v. Meloney (2003) 30 Cal.4th 1145, 1155.) Defendant contends the trial court did not understand that it had discretion to strike the enhancements, and that his counsel's failure to ask the trial court to do so deprived him of effective assistance of counsel.
When defendant was originally sentenced, the prosecutor noted that the trial court had found defendant committed the two November 2004, offenses while on bail. The trial court responded, "Let me say I'm going to suspend any sentence on the out-on-bail enhancement," and the court minutes indicated that two two-year enhancements were stayed.
The same judge presided after we remanded the matter to the trial court for resentencing. At a hearing after remand, the prosecutor requested and received a continuance on the ground that the presentence report failed to take into consideration the section 12022.1 enhancements. The People's subsequent resentencing brief noted that the trial court had found two section 12022.1 out-on-bail enhancements to be true, and went on: "The sentencing report does not consider the enhancements as it should. Accordingly, the defendant's aggregate term sentence should be increased four years." Defendant's statement in mitigation addressed the issue by stating: "The defense does not dispute the prosecution's contention that probation's updated sentencing report . . . neglected to address the two 'out-on-bail' enhancements per Penal Code § 12022.1. Because these sentencing provisions are mandatory, the defense has no further comment on them." (Italics added.) A revised memorandum prepared by the probation department for resentencing indicated that two section 12022.1 enhancements were found true by the court, but not originally imposed, and went on: "There do not appear to be any factors that would otherwise limit the Court from imposing said enhancements at the present time." During the sentencing hearing, the prosecutor noted that the revised probation report "consider[ed] the 12022.1 out-on-bail enhancements."*fn8 Without commenting on its reasons for doing so, the trial court imposed out-on-bail enhancements in connection with counts VII and IX.
Defendant's argument that the trial court mistakenly believed it did not have discretion to strike the out-on-bail enhancement is based on his counsel's statement that the sentencing provisions were mandatory. Despite this statement, the record as a whole does not persuade us that the trial court was unaware of its discretion to strike the section 12022.1 enhancements. The judge who presided over defendant's resentencing also imposed the original sentence, and suspended sentence on the enhancements. Neither the revised probation report nor the prosecutor argued that the enhancements were mandatory, and the trial court gave no indication that it believed it was required to impose the sentence enhancements.
It is well established that "a trial court is presumed to have been aware of and followed the applicable law" (People v. Mosley (1997) 53 Cal.App.4th 489, 496 (Mosley)), and that " '[a] judgment or order of the lower court is presumed correct . . . and error must be affirmatively shown' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564). "These general rules concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues." (Mosley, supra, 53 Cal.App.4th at p. 496; see also People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 ["[W]e cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of [its sentencing] discretion."].) This record does not show that the court misunderstood the scope of its discretion. We will not presume it did so.
Because we reach this conclusion, we also reject defendant's contention that the judgment should be reversed because his counsel was ineffective in failing to recognize that the trial court had discretion to strike the section 12022.1 enhancements and in failing to urge the trial court to do so.
Defendant also contends the trial court erred in failing to state its reasons for imposing consecutive terms for each of the section 12022.1 enhancements. He waived this contention by failing to raise it below. (See People v. Scott (1994) 9 Cal.4th 331, 353-356.)
The judgment is affirmed.
REARDON, Acting P.J. SEPULVEDA, J.