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The People v. Angelo Atencio

August 28, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANGELO ATENCIO, JR., DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of Butte County, Thomas W. Kelly, Judge. (Super. Ct. No. CM030868)

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

opn. on remand from Supreme Ct.

CERTIFIED FOR PUBLICATION

OPINION ON REMAND

Affirmed as modified.

A jury found defendant Angelo Atencio, Jr., guilty of two felonies -- grand theft of a firearm and firearm possession by a felon. The trial court found defendant had a prior serious felony conviction and a prior strike and had served a prior prison sentence. The court sentenced defendant to an aggregate prison term of 12 years 4 months.

On appeal, defendant contends his sentence for the unlawful firearm possession conviction must be stayed pursuant to Penal Code*fn1 section 654 because his two offenses were incidental to only "one criminal intent and objective, namely to possess the [firearm]." In the alternative, he argues the trial court abused its discretion by imposing consecutive sentences after finding that his two offenses were predominantly independent of one another.

We conclude defendant is correct on his first point: his sentence for the unlawful firearm possession conviction must be stayed pursuant to section 654. Accordingly, we will modify defendant's sentence and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

On May 6, 2009, Vanessa Trew went to the house of her mother, Debra Trew, to clean for money.*fn2 Defendant joined Vanessa at the house. After looking around, defendant brought a lockbox and small caliber handgun to Vanessa, which she told him to put back.

Vanessa called Jason Duensing and asked him to pick her and defendant up from Debra's house. Around noon, Vanessa and defendant loaded three or four garbage bags, a box, a duffel bag, and a lamp into the back of Duensing's truck. Vanessa asked Duensing to take defendant to her apartment and to return for her in about an hour. After unloading all the items at Vanessa's apartment, except the duffel bag, which defendant kept in his possession, defendant asked Duensing to drive him to Thermalito. Duensing dropped defendant off at an intersection and returned to Debra's house to pick up Vanessa. Later that afternoon, Debra's husband, John Kuhn, found five guns missing from the unlocked gun safe, including a .45-caliber semiautomatic pistol.

The next day, defendant called Shannon McCraney "wanting to sell [her] some jewelry or something." Before noon, defendant stopped by McCraney's home carrying a plastic bag. McCraney saw jewelry and a handgun in the bag and asked defendant why he had a gun in her home. Defendant responded that the gun was not loaded. Approximately 10 minutes later, "cops surround[ed] [the] house," and McCraney left the home. Defendant hid behind the couch and remained in the home for approximately four and one-half hours before being taken into custody.

On May 8, 2009, the Butte County Sheriff's Department searched McCraney's home and found a loaded semiautomatic .45-caliber AMT firearm among other items in the stove's broiler pan. Kuhn identified the gun as his, and the serial number confirmed his ownership.

Defendant was charged with grand theft of a firearm, receiving stolen property, and firearm possession by a felon. All charges pertained to the ...


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