IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
March 18, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MAURICE DANIELS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F00694)
The opinion of the court was delivered by: Mauro ,j.
P. v. Daniels CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Maurice Daniels of burglary, battery resulting in serious bodily injury, unlawful possession of a firearm and ammunition, and resisting arrest. The trial court found defendant had a prior juvenile adjudication for robbery and sentenced him to an aggregate term of 21 years 8 months in state prison.
On appeal, defendant first contends that the trial court should not have used his juvenile adjudication for robbery as a basis to impose a five-year sentence enhancement. The People concede the error. We agree that juvenile adjudications do not qualify as criminal convictions for purposes of the five-year sentence enhancement under Penal Code section 667, subdivision (a)(1).*fn1
Defendant also asserts that, pursuant to Penal Code section 654, the trial court erred in failing to stay the sentences for aggravated battery and possession of ammunition. We conclude that the sentence for battery should have been stayed because it was part of the same objective and course of conduct as the burglary. But the trial court did not abuse its discretion regarding the sentence for possession of ammunition, because there is no evidence defendant was in possession of a loaded firearm during the incident, the jury found defendant did not personally use the firearm during the attack, the evidence did not establish that the ammunition defendant possessed was of the type useable in that firearm, and the trial court implicitly found that possession of the firearm and possession of the ammunition had separate and divisible objectives.
We will modify defendant's sentence to reduce it to 14 years 8 months and otherwise affirm.
The victim, John Pratt, lived with his girlfriend, Naisi Saeteurn, in a small apartment in Sacramento. Pratt supplemented his social security income by repairing various items, including automobiles. In late 2008, defendant's half-brother, Timothy Granderson, Jr., asked Pratt to make certain repairs on Granderson's Chevy Blazer. Pratt made the requested repairs but the Blazer still would not start. Granderson did not pay Pratt for the repairs, did not provide money for further repairs, and did not retrieve his Blazer, despite multiple calls from Pratt. After several months, the apartment manager arranged to tow the Blazer.
Just before the Blazer was towed, Granderson came to Pratt's apartment with his father and defendant. As Pratt attempted to explain the situation to Granderson's father, Granderson punched Pratt in the nose and the three men left.
Around 5:00 p.m. on January 26, 2009, Pratt and Saeteurn were accosted by Granderson and defendant. Saeteurn testified the men came to the apartment twice. The first time, they tried to force their way into the apartment, asked about the car, began swinging at Pratt and struck him in the head. One of the men grabbed a shovel and tried to enter the apartment again. When Pratt grabbed a steak knife to defend himself, the men said they were coming back with a gun and left.
Saeteurn obtained a telephone from her sister's apartment. Pratt called 911 and reported the incident. But within minutes, before the police arrived, defendant and Granderson returned with a gun. Saeteurn initially told police that defendant carried the gun, but she testified at trial that Granderson carried it. Based on Saeteurn's description of the gun, it may have been a sawed-off shotgun.
Defendant and Granderson told Saeteurn to leave the apartment and then they attacked Pratt. Saeteurn witnessed some of the attack through the window. Saeteurn saw them move Pratt to the bedroom, continue hitting him, and then move him to the computer table. She heard sizzling as the men placed Pratt's hand on exposed wiring and shocked him repeatedly.
A neighbor witnessed the attacks and yelled at the men while his young son called 911. Defendant and Granderson ran off, leaving Pratt bleeding and unconscious.
The police arrived just after defendant and Granderson ran off. The neighbor told police which direction they ran and a few minutes later, after a foot chase, defendant was apprehended. Defendant had two live 12-gauge shotgun shells in his pants pocket at the time of his arrest. Granderson was not apprehended at the scene and the gun was not recovered.
Pratt was hospitalized for over a month. The attack rendered Pratt mentally and physically disabled.
A jury found defendant guilty of burglary (§ 459), but found the allegation that he personally used a firearm in the commission of the burglary not true (§ 12022.5, subd. (a)(1)). The jury also found defendant guilty of battery resulting in serious bodily injury (§ 243, subd. (d)), but found the allegation that he personally inflicted serious bodily injury not true (§ 12022.7, subd. (a)). In addition, the jury found defendant guilty of unlawful possession of both a firearm and ammunition (§§ 12021, subd. (e), 12316, subd. (b)(1)) and guilty of resisting arrest (§ 148, subd. (a)(1)). However, the jury found defendant not guilty of assault with a deadly weapon, to wit, a shovel (§ 245, subd. (a)(1)).
The trial court found defendant had a prior juvenile adjudication for second degree robbery, which qualified as a strike under the "Three Strikes" law. The trial court imposed an aggregate term of 21 years 8 months as follows: for the burglary (count one), the upper term of 6 years, doubled to 12 years; for the battery (count two), a consecutive one-third the midterm of 1 year, doubled to 2 years; for unlawful possession of a firearm (count four), a consecutive one-third the midterm of 8 months, doubled to 16 months; for unlawful possession of ammunition (count five), a consecutive one-third the midterm of 8 months, doubled to 16 months; for resisting arrest (count six), a concurrent one-year jail term; and for defendant's prior serious felony conviction (the juvenile adjudication for second degree robbery), a five-year sentence enhancement.
Defendant contends, and the People concede, that the trial court incorrectly used his juvenile adjudication for robbery as a prior serious felony and, on that basis, improperly imposed a five-year enhancement.
Section 667, subdivision (a)(1), provides for a five-year sentence enhancement for each prior serious felony conviction. Although certain juvenile adjudications may qualify as a prior felony conviction for purposes of the Three Strikes law, juvenile adjudications do not qualify as criminal convictions for purposes of the five-year sentence enhancement under section 667, subdivision (a)(1). (People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10; People v. West (1984) 154 Cal.App.3d 100, 108.) The five-year enhancement imposed by the trial court must be stricken.
Defendant next contends that his sentence for aggravated battery must be stayed pursuant to section 654 because the burglary was committed for the sole purpose of committing the battery. We agree.
Section 654, subdivision (a), states 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." This means that a defendant may not be punished more than once for separate acts comprising an indivisible course of conduct with a single intent; but, if the separate acts had separate intents and objectives, the defendant may be punished separately for each crime, even though they made up an indivisible course of conduct. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) We review for abuse of discretion the trial court's ruling on the applicability of section 654, and we will not reverse if substantial evidence supports the ruling. (Ibid.)
"Burglary consists of entry into a house or other specified structure with the intent to commit a felony. [Citation.] Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, . . . section 654 will permit punishment for one or the other but not for both." (People v. Centers (1999) 73 Cal.App.4th 84, 98-99, and cases cited therein.) It is improper to sentence a defendant for burglary and an underlying felony offense where the felonious entry was for the purpose of accomplishing the underlying felony. (Id. at p. 98; People v. Radil (1977) 76 Cal.App.3d 702, 713.)
Here, the evidence showed defendant and Granderson entered the apartment for the purpose of battering Pratt and causing him serious bodily injury. The burglary was committed to this end. Thus, section 654 bars punishment for both the burglary and the aggravated battery.
The People argue that the evidence supports finding defendant "committed two separate burglaries and a minimum of two separate batteries against Pratt -- each with its own intent." Thus, they argue, defendant may be punished for burglary based on the initial forced entry into the apartment, and then punished separately for battery based on the second entry which occurred after he and his brother returned with the gun.
Defendant, however, was only charged and convicted for a single count of burglary, and the record supports defendant's argument that the aggravated battery occurred during that burglary. Under the circumstances, the term imposed for the aggravated battery must be stayed.
Finally, defendant asserts that his sentence for unlawful possession of ammunition must be stayed pursuant to section 654, because his possession of ammunition was part of the same objective and course of conduct as his possession of the firearm. On this point we disagree.
Defendant argues his case is governed by People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez). The appellant in Lopez was found in possession of a loaded firearm. (Id. at p. 135.) He was convicted and sentenced separately under section 12021, subdivision (e)(1) (unlawful possession of firearm) and section 12316, subdivision (b)(1) (unlawful possession of ammunition). (Id. at p. 134.) The Court of Appeal reversed the separate sentence for the ammunition offense. "While possession of an unloaded firearm alone can aid a person committing another crime, possession of ammunition alone will not." (Id. at p. 138.) In prohibiting certain individuals from possessing either firearms or ammunition, the Legislature intended "to prohibit these persons from combining firearms with ammunition." (Ibid.) "While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment." (Ibid.)
Lopez is distinguishable from the instant case, because in Lopez the defendant's possession of a loaded firearm served as the basis for his conviction of both unlawful possession of a firearm and unlawful possession of ammunition. (Lopez, supra, 119 Cal.App.4th at pp. 134-135, 137-139.) Here, however, the record does not establish that defendant was in possession of a loaded firearm during the incident. The jury was instructed on constructive possession and the jury found defendant guilty of unlawful possession of a firearm but found he did not personally use the firearm during the attack. The jury could reasonably conclude from the evidence that Granderson carried the firearm and that defendant constructively possessed it. In addition, the record does not establish that the ammunition defendant actually carried was of the type useable in that firearm.
Again, we review the trial court's ruling for abuse of discretion, and we will not reverse if substantial evidence supports the trial court's explicit or implicit factual findings. (People v. Jones, supra, 103 Cal.App.4th at p. 1143; People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136; People v. Coleman (1989) 48 Cal.3d 112, 162.) The trial court implicitly found that defendant's possession of the firearm and possession of the ammunition were part of separate and divisible objectives. We conclude on this record that the trial court did not abuse its discretion.
The judgment is modified to strike the five-year enhancement (section 667, subdivision (a)(1)), and to stay the sentence for battery resulting in great bodily injury (section 243, subdivision (d); count two) pursuant to section 654, thereby reducing defendant's aggregate sentence to 14 years 8 months. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward the same to the Department of Corrections and Rehabilitation.
BLEASE , Acting P. J.
ROBIE , J.