People v. Hall CA4/2

Filed 1/7/14 P. v. Hall CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E056037

v. (Super.Ct.No. RIF1101887)

ALFONSO DANIEL HALL, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger,

Judge. Affirmed in part; remanded with directions in part.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Lilia E.

Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant Alfonso Daniel Hall pled guilty to 58 felony counts and

one misdemeanor count and was sentenced to a total term of 117 years four months in

state prison. On appeal, defendant contends: (1) the matter must be remanded for

resentencing because the trial court misunderstood its sentencing discretion under People

v. Superior Court (Romero) (1996) 13 Cal.4th 497; (2) the trial court abused its discretion

when it refused to strike his prior strike conviction as to some or all of the counts; (3) his

sentence constitutes cruel and unusual punishment under both the state and federal

Constitutions; (4) the concurrent sentences on the 15 convictions for being a felon in

possession of a firearm must be stayed pursuant to Penal Code section 654; and (5) the

abstract of judgment and the court’s minute order of the sentencing hearing must be

corrected to accurately reflect the court’s oral pronouncement of judgment. Because the

court’s oral pronouncement is ambiguous as to the section 654 issue, we will remand the

matter for resentencing on this issue and for the court to correct its minute order and

abstract of judgment. We, however, reject defendant’s remaining contentions.

I

FACTUAL AND PROCEDURAL BACKGROUND1

Beginning in November 2010, defendant committed a string of armed robberies

throughout Riverside and San Bernardino counties. Defendant was eventually

apprehended on March 17, 2011, after robbing employees at gunpoint of a Best Western

1 The details of the underlying facts are not relevant to the issues on appeal; hence
only a summary of the factual background will be provided. The summary of the factual
background is taken from the preliminary hearing.

2
Hotel. Defendant admitted to the investigating officers that he had robbed the Best

Western Hotel, and also admitted to committing other robberies throughout two counties.

Police investigation revealed that defendant, sometimes acting alone and other times with

an accomplice, robbed employees of numerous small business retail stores at gunpoint.

On July 12, 2011, a 59-count information was filed charging defendant with 22

counts of robbery (Pen. Code, § 211; counts 1-2, 5, 8, 14, 17, 20, 23-24, 27, 30, 34-35,

37-40, 46, 48, 51, 54, 58);2 two counts of attempted robbery (§§ 664/211; counts 11, 43);

two counts of assault with a firearm (§ 245, subd. (a)(2); counts 3, 31); 15 counts of being

a felon in possession of a firearm (§ 12021, subd. (a)(1); counts 4, 7, 10, 13, 16, 19, 22,

26, 29, 33, 42, 45, 50, 53, 56); 16 counts of second degree burglary (§ 459; counts 6, 9,

12, 15, 18, 21, 25, 28, 32, 36, 41, 44, 47, 49, 52, 55); one count of grand theft exceeding

$400 (§ 487, subd. (a); count 57); and one misdemeanor count of battery (§ 242; count

59). The information also alleged that defendant personally used a firearm (§ 12022.53,

subd. (b), or § 12022.5, subd. (a)) within the commission of 19 robberies and the two

attempted robberies; that defendant personally used a deadly weapon, to wit, a knife

(§ 12022, subd. (b)(1)) during the commission of one of the robberies (count 58); and that

a principal was armed with a firearm (§ 12022, subd. (a)(1)) during the commission of

two of the robberies (counts 37 & 38). The information further alleged that defendant

had suffered one prior serious conviction, to wit, a 2008 attempted residential burglary,

2 All future statutory references are to the Penal Code unless otherwise stated.

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(§ 667, subd. (a)) and one prior serious and violent strike conviction, to wit, the same

2008 attempted residential burglary (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

On January 31, 2012, defendant pled guilty to all the charges and admitted all the

enhancement allegations. Defendant also admitted that he had previously been convicted

of a prior serious felony and a prior strike conviction.

On April 2, 2012, defendant filed a motion to dismiss his prior strike conviction

pursuant to section 1385. He claimed that he fell outside the spirit of the three strikes

law, his actions were committed as a result of his drug addiction, he did not have an

extensive criminal record, and he would be receiving a sentence in excess of 100 years if

the court did not exercise its discretion. The People filed an opposition noting

defendant’s prior criminal history, the seriousness of the current crimes, the potential for

violence based on defendant’s use of a gun to commit the current crimes, his leadership

role in recruiting accomplices, and his continual defiance of the law as evidenced by his

arrest for assault and indecent exposure while in custody.

At the sentencing hearing, the trial court addressed defendant’s Romero motion

and invited further argument. Both parties submitted on the matter. The court noted that

in looking at defendant’s “background, current offenses, attitude towards the current

offenses, behavior since arrest of the current offenses,” it did not believe defendant was

outside the spirit of the three strikes law. Indeed, the court stated: “You [defendant]

appear to be almost exactly what they wrote the law for.” The court further asserted,

“The only reason to strike a strike in this case would be because the consequences of the

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three-strikes law are so severe, and that’s the one reason that’s quite clear I can’t use. [¶]

[Defendant] is an individual that the law describes. The writers of the law had

[defendant] in mind, and the writers of the law produce these consequences, the

consequences which I agree with the defense are severe. There’s no basis on which to

avoid it. If the law were such that judges were free to simply tailor the three-strike law

on individual cases, strike it as to some counts, not as to others, to reach a sentence less

severe than the one prescribed by law simply because of the belief that the sentence is too

long, this would be such a case because I think the sentence is going to be too long. But

it’s the one mandated by law. [¶] So the request to strike any portions is denied.” The

court thereafter sentenced defendant to a total term of 117 years four months in state

prison with credit for time served.

II

DISCUSSION

A. Whether Court Misunderstood Scope of Discretion

Defendant contends that the case must be remanded for resentencing because the

trial court misunderstood the scope of its sentencing discretion when it mistakenly

believed it could not strike his prior strike conviction as to some but not all counts.

Defendant refers specifically to the trial court’s statement that “[i]f the law were such that

judges were free to simply tailor the three-strike law on individual cases, strike it as to

some counts, not as to others, to reach a sentence less severe than the one prescribed by

law . . . .” We conclude the record is insufficient to affirmatively establish that the court

5
was unaware of its discretion to strike the prior conviction allegation on a count-by-count

basis.

In sentencing a defendant under the three strikes law, courts have the discretion to

strike a prior conviction in the interests of justice. (§ 1385, subd. (a); Romero, supra, 13

Cal.4th at pp. 529-530.) It is also well settled “that a trial court has discretion in a Three

Strikes case to strike prior conviction allegations on a count-by-count basis.” (People v.

Garcia (1999) 20 Cal.4th 490, 499.) On review, we presume the trial court correctly

exercised its discretion to strike a prior conviction in the interests of justice. (People v.

Fuhrman (1997) 16 Cal.4th 930, 943-945.) Relief on appeal is inappropriate unless the

record affirmatively reflects that the court misunderstood its discretion or otherwise

incorrectly applied the law in deciding whether to strike a prior conviction allegation

under section 1385. (Ibid.)

The record here does not establish that the trial court was obligated to decide

whether to exercise its discretion to strike the prior conviction allegations on a count-by-

count basis, much less that the court was unaware of its power to do so. Defendant’s

Romero motion did not ask the court to exercise its discretion in this manner. Rather,

defendant argued that the interests of justice would be served by striking his prior strike

conviction, such that he would not be subjected to receive a punishment in excess of 100

years. Defendant offers no authority for the proposition that the sentencing court has a

sua sponte duty to consider whether to strike prior conviction allegations on each

individual count or as to some and not all.

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 Moreover, the record fails to affirmatively establish that the court was unaware of

its discretion to strike the prior conviction allegation on individual counts. Defendant’s

Romero motion cited to Garcia, supra, 20 Cal.4th 490, which concluded that “a trial

court in a Three Strikes case may exercise its discretion under section 1385,

subdivision (a), so as to dismiss a prior conviction allegation with respect to one count,

but not with respect to another.” (Id. at pp. 503-504.) The trial court’s comments at the

sentencing hearing merely reflect its understanding that it declined to strike the prior

strike conviction as to all counts because it did not find defendant to be outside the spirit

of the three strikes law considering defendant’s background, character, current offenses,

and prospects for the future. Although the court stated “[i]f the law were such that judges

were free to simply . . . strike it as to some counts, not as to others,” it concluded, “So the

request to strike any portions is denied.” In addition, the court’s expressed dissatisfaction

with the severe consequences of the three strikes law does not constitute affirmative

proof that the court misunderstood its discretion to strike the prior conviction allegation

as to some counts and not to all. Indeed, the trial court in Garcia expressed a similar

reservation with the consecutive sentencing requirement, yet proceeded to strike the

defendant’s prior strike allegations as to one of two burglary counts. (Garcia, at p. 495.)

While it is true that “an abuse of discretion occurs where the trial court was not

‘aware of its discretion’ to dismiss” a strike prior (People v. Carmony (2004) 33 Cal.4th

367, 378 (Carmony)), we do not believe that the court’s remarks here indicate that it

misunderstood the scope of its authority. Examining the remarks in context reveals that

7
the court believed there could be no real doubt that defendant’s behavior fell within the

spirit of the three strikes law; as the court also explained, “as I look at your client’s

background, current offenses, attitude towards the current offenses, behavior since the

arrest of the current offenses, [defendant], I see nothing that says you are not a person

that is within the character and spirit of the three-strikes law. You appear to be almost

exactly what they wrote the law for.” The court’s language here even mirrors that of

People v. Williams (1998) 17 Cal.4th 148 (Williams), which held that the trial court

“must consider whether, in light of the nature and circumstances of his present felonies

and prior serious and/or violent felony convictions, and the particulars of his background,

character, and prospects, the defendant may be deemed outside the scheme’s spirit, in

whole or in part, and hence should be treated as though he had not previously been

convicted of one or more serious and/or violent felonies” when ruling on a motion to

dismiss a prior serious or violent felony conviction subject to the three strikes law. (Id. at

p. 161.)

Defendant also refers to the trial court’s statements in regards to the severity of the

consequences of the three strikes law and “no basis on which to avoid it.” Relying on

these statements and the court’s comments that it would consider defendant’s willingness

to take responsibility and genuine remorse, defendant argues that the court made

conflicting statements during the proceedings showing the court misunderstood its

sentencing discretion. The court’s statements, however, do not suggest that it lacked all

authority to dismiss defendant’s prior strike conviction or that it could not do so as to all

8
the counts or on a count-by-count basis; rather, the court was simply acknowledging that

it could not dismiss defendant’s strike prior based on its personal sympathy for defendant,

as it is an abuse of discretion for a trial court to dismiss prior strike convictions “ ‘guided

solely by a personal antipathy for the effect that the three strikes law would have on [a]

defendant.’ ” (Romero, supra, 13 Cal.4th at p. 531.)

Taken in their entirety, the trial court’s remarks illustrate simply that it properly

understood that a “court’s discretion to strike prior felony conviction allegations in

furtherance of justice is limited” (Romero, supra, 13 Cal.4th at p. 530), and that “no

weight whatsoever may be given to factors extrinsic to the [three strikes] scheme . . . .”

(Williams, supra, 17 Cal.4th at p. 161). “[A] primary purpose of the [t]hree [s]trikes law

was to restrict judicial discretion.” (Garcia, supra, 20 Cal.4th at p. 501.) And “the three

strikes law not only establishes a sentencing norm, it carefully circumscribes the trial

court’s power to depart from this norm and requires the court to explicitly justify its

decision to do so.” (Carmony, supra, 33 Cal.4th at p. 378.) We therefore reject

defendant’s contention that the trial court misunderstood the scope of its discretion to

dismiss his strike prior.

B. Motion to Dismiss Prior Strike Conviction

Defendant also argues that the trial court abused its discretion when it declined to

dismiss his prior strike conviction as to some or all counts in the interests of justice. We

disagree.

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 A trial court’s decision to not dismiss or strike a prior serious and/or violent felony

conviction allegation under section 1385 is reviewed for abuse of discretion. (Carmony,

supra, 33 Cal.4th at p. 376.) Because there is “a strong presumption” that the sentence

required under the three strikes law “is both rational and proper” (id. at p. 378), a trial

court abuses its discretion in failing to dismiss a prior strike conviction only if “its

decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at

p. 377.) The defendant carries the burden “ ‘ “to clearly show that the sentencing

decision was irrational or arbitrary.” ’ ” (Id. at p. 376, quoting People v. Superior Court

(Alvarez) (1997) 14 Cal.4th 968, 977.)

“It is not enough to show that reasonable people might disagree about whether to

strike one or more of his prior convictions. Where the record demonstrates that the trial

court balanced the relevant facts and reached an impartial decision in conformity with the

spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled

differently in the first instance. [Citation.]” (People v. Myers (1999) 69 Cal.App.4th

305, 310.) “Because the circumstances must be ‘extraordinary . . . by which a career

criminal can be deemed to fall outside the spirit of the very scheme within which he

squarely falls once he commits a strike as part of a long and continuous criminal record,

the continuation of which the law was meant to attack’ [citation], the circumstances

where no reasonable people could disagree that the criminal falls outside the spirit of the

three strikes scheme must be even more extraordinary.” (Carmony, supra, 33 Cal.4th at

p. 378.)

10
 The touchstone of the analysis must be “whether, in light of the nature and

circumstances of his present felonies and prior serious and/or violent felony convictions,

and the particulars of his background, character, and prospects, the defendant may be

deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as

though he had not previously been convicted of one or more serious and/or violent

felonies.” (Williams, supra, 17 Cal.4th at p. 161.)

Defendant contends the court should have granted his request to strike his prior

strike conviction given his age, background, character, willingness to take responsibility,

lack of parental guidance and criminal record, remorse, drug addiction, and given that the

prior and current crimes did not involve violence or serious injury to anyone. He further

asserts that the court “erred when it failed to recognize a number” of significant

mitigating factors, such as his young age, lack of a significant criminal record, and

extremely disadvantaged background.

We cannot conclude the trial court abused its discretion in declining to strike

defendant’s prior strike conviction. The relevant considerations supported the trial

court’s ruling, and there is nothing in the record to show that the court declined to

exercise its discretion on improper reasons or that it failed to consider and balance the

relevant factors, including defendant’s personal and criminal background. In fact, the

record clearly shows the court was aware of its discretion, aware of the applicable factors

a court must consider in dismissing a prior strike, and appropriately applied the factors as

outlined in Williams.

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 This case is far from extraordinary. Defendant has manifested a persistent

inability to conform his conduct to the requirements of the law. Though defendant does

not have an extremely violent prior record of criminal behavior, his past and current

criminal history is nonetheless serious. Defendant’s prior strike for attempted residential

burglary posed a potential danger to the occupants of the residence. Furthermore, he

committed the instant string of robberies for a period of four months with the use of a

firearm after surveilling the businesses and employees. In almost each of the current

incidents, defendant pointed a loaded gun at the victims and demanded money, thereby

inflicting fear into the victims and posing a risk for potential violence. In addition, as in

the prior attempted burglary offense, defendant orchestrated and recruited others to assist

him in committing some of the current offenses. Moreover, even while in custody for the

instant offenses, defendant continued to violate the law by assaulting another inmate and

indecently exposing himself to others.

The court here could not overlook the fact defendant continued to commit serious

criminal offenses. His conduct as a whole was a strong indication of unwillingness or

inability to comply with the law. He has also shown a proclivity for weapons through his

illegal possession and use of firearms. Finally, he has shown his continual disregard for

the law as evidenced by his criminal convictions, and continuing to violate the law even

while in custody. It is clear from the record that prior rehabilitative efforts have been

unsuccessful for defendant. All of these factors were relevant to the trial court’s decision

under Romero; there is no indication from the record here that the court failed to consider

12
the relevant factors, that it failed to properly balance the relevant factors, or that it abused

its discretion in determining that as a flagrant recidivist defendant was not outside the

spirit of the three strikes law. (Williams, supra, 17 Cal.4th at p. 161.)

C. Cruel and Unusual Punishment

For the first time on appeal, defendant further argues that his sentence of 117 years

four months constitutes cruel and unusual punishment in violation of both the federal and

the California Constitutions. He contends that because he is relatively young and capable

of learning from his mistakes, he has a minimal criminal history, his current offenses are

nonhomicide offenses, and he came from a disadvantaged home life, his sentence, which

is the functional equivalent to a life sentence without the possibility of parole, is grossly

disproportionate.

Both the federal and state Constitutions proscribe cruel and unusual punishment

by prohibiting punishment that is grossly disproportionate to the severity of the offense.

(U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; Harmelin v. Michigan (1991) 501 U.S.

957, 1001; People v. Marshall (1990) 50 Cal.3d 907, 938.) Defendant, however, failed to

object to the sentence, forfeiting his right to challenge the sentence as cruel and unusual

punishment. (People v. Russell (2010) 187 Cal.App.4th 981, 993; People v. Kelley

(1997) 52 Cal.App.4th 568, 583.)

Nonetheless, on the merits, defendant makes no showing that the sentence is

grossly disproportionate to the severity of the crimes. (Solem v. Helm (1983) 463 U.S.

277, 288 (Solem); People v. Dillon (1983) 34 Cal.3d 441, 477-478.) In evaluating

13
proportionality, the state and federal standards are similar. Courts consider (1) the nature

of the offense and the offender, (2) punishments for more serious offenses in the same

jurisdiction, and (3) punishments for the same crime in other jurisdictions. (Solem, at

pp. 290-292; In re Lynch (1972) 8 Cal.3d 410, 425-427.) A punishment may violate the

California Constitution “if, although not cruel or unusual in its method, it is so

disproportionate to the crime for which it is inflicted that it shocks the conscience and

offends fundamental notions of human dignity.” (Lynch, at p. 424, fn. omitted.) A

criminal sentence is cruel and unusual under the federal Constitution if it is not

proportional to the crime for which a defendant stands convicted. (Solem, supra, 463

U.S. 277; Harmelin v. Michigan, supra, 501 U.S. 957.)

Numerous courts have concluded that sentences in excess of 100 years, or ones

that exceed a defendant’s life expectancy, do not constitute cruel and unusual

punishment. (See, e.g., People v. Byrd (2001) 89 Cal.App.4th 1373, 1382 [115 years plus

444 years to life]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [375

years to life plus 53 years]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [283

years eight months sentence]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 532

[129 years].) In Byrd, the court stated: “In our view, it is immaterial that defendant

cannot serve his sentence during his lifetime. In practical effect, he is in no different

position than a defendant who has received a sentence of life without possibility of

parole: he will be in prison all his life. However, imposition of a sentence of life without

possibility of parole in an appropriate case does not constitute cruel or unusual

14
punishment under either our state Constitution [citation] or the federal Constitution.

[Citations.]” (People v. Byrd, at pp. 1382-1383.) We find that defendant’s sentence

violates neither the state nor federal ban on cruel and unusual punishment.

Defendant invokes the recent decision of Graham v. Florida (2010) 560 U.S. 48

(Graham), which found a sentence of life imprisonment without parole for a juvenile who

did not commit a homicide was categorically cruel and unusual under all circumstances.

He appears to expand the hold in Graham to a claim that his de facto life sentence

without parole is unconstitutional because he was only on the cusp of adulthood when he

committed the instant string of armed robberies at a relatively young age of 21 years.

Graham on its face applies only to offenses committed as a juvenile. The court in

Graham made it very clear that the new rule is specific to non-homicide offenses

committed by juveniles, not those committed by “relatively young adults.” The court

said: “Juvenile offenders who committed both homicide and nonhomicide crimes present

a different situation for a sentencing judge than juvenile offenders who committed no

homicide. It is difficult to say that a defendant who receives a life sentence on a

nonhomicide offense but who was at the same time convicted of homicide is not in some

sense being punished in part for the homicide when the judge makes the sentencing

determination. The instant case concerns only those juvenile offenders sentenced to life

without parole solely for a nonhomicide offense.” (Graham, supra, 560 U.S. at p. 63,

italics added.)

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 Given that the categorical limitation of Graham does not apply here, we are left

with an adult offender who was convicted of 58 serious crimes, including 22 robberies,

all but two committed with the use of a firearm. It is the number and seriousness of the

offenses that permitted the trial court to impose a sentence that is equivalent to a life-

without-parole term. The cumulative sentence of 117 years four months is not grossly

disproportionate to the offenses committed or the manner of their commission.

Defendant also relies on Miller v. Alabama (2012) ___ U.S. ___ [132 S.Ct. 2455]

(Miller), People v. Caballero (2012) 55 Cal.4th 262, and People v. Mendez (2010) 188

Cal.App.4th 47. Defendant’s reliance on these cases is unavailing. These cases are

inapposite.

The Supreme Court in Miller held that “mandatory life without parole for those

under the age of 18 at the time of their crimes violates the Eighth Amendment’s

prohibition on ‘cruel and unusual punishments.’” (Miller, supra, 132 S.Ct. at p. 2460.)

The court did not ban imposition of a sentence of life without parole on a juvenile

offender, but it did require sentencing courts to consider the differences between children

and adults, “and how those differences counsel against irrevocably sentencing them to a

lifetime in prison.” (Id. at p. 2469, fn. omitted.) Defendant was not a juvenile when he

committed the instant crimes and, thus, Miller has no application here.

In People v. Caballero, supra, 55 Cal.4th 262, our Supreme Court held that

sentencing a juvenile who commits a nonhomicide offense to a de facto sentence of life

without parole is categorically cruel and unusual punishment. (Id. at p. 268.) In People

16
v. Mendez, supra, 188 Cal.App.4th 47, the appellate court held that a sentence of 84 years

to life imposed on a defendant who was 16 when he committed several nonhomicide

crimes was unconstitutional as constituting a de facto sentence of life without parole,

which provided no meaningful opportunity for release. (Id. at pp. 63-64.) Caballero and

Mendez are distinguishable because defendant here was not a juvenile when he

committed his crimes.

In People v. Argeta (2012) 210 Cal.App.4th 1478, the court rejected the argument

of an 18-year-old defendant that the holding of Caballero should be extended to his case.

The court explained, “[W]hile ‘[d]rawing the line at 18 years of age is subject . . . to the

objections always raised against categorical rules . . . [, it] is the point where society

draws the line for many purposes between childhood and adulthood.’ [Citations.]

Making an exception for a defendant who committed a crime just five months past his

18th birthday opens the door for the next defendant who is only six months into

adulthood. Such arguments would have no logical end, and so a line must be drawn at

some point. We respect the line our society has drawn and which the United States

Supreme Court has relied on for sentencing purposes . . . .” (Id. at p. 1482.) We agree

with the reasoning of the court in Argeta; we conclude defendant’s sentence was not

categorically cruel and unusual punishment.

D. Section 654

Defendant was convicted of 20 counts of robbery with a firearm use enhancement,

two counts of attempted robbery with a firearm use enhancement, and 15 counts of felon

17
in possession of a firearm. The trial court imposed concurrent sentences of four years on

the 15 counts of being a felon in possession of a firearm.

Defendant claims the trial court erred in imposing the concurrent sentences on his

15 convictions for being a felon in possession of a firearm. He argues that section 654

precludes imposition of sentences on those 15 counts because his sentence was enhanced

for his use of a gun to commit the robberies, and the offenses and the enhancement were

based on the same criminal act and were part of an indivisible transaction carried out with

a single objective. The People respond defendant forfeited the issue by failing to object

below and, in the alternative, claim defendant’s claim lacks merit because the record

supports the trial court’s implied findings that defendant’s possession of the firearm was

antecedent to and separate from his use of the gun to commit the robberies.

Initially, we note defendant’s failure to raise an objection in the trial court does not

mean he forfeits his appellate challenge regarding the applicability of section 654. “[A]

court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails

to stay execution of a sentence under section 654. [Citation.]” (People v. Hester (2000)

22 Cal.4th 290, 295.) Thus, subject to an exception not applicable here, the “‘waiver

doctrine does not apply to questions involving the applicability of section 654.’” (Id. at

p. 295.)

Section 654, subdivision (a), provides that 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

18
omission be punished under more than one provision.” Section 654 precludes multiple

punishment for a single act or a course of conduct comprising indivisible acts. (People v.

Jones (2002) 103 Cal.App.4th 1139, 1142-1143 (Jones); People v. Conners (2008) 168

Cal.App.4th 443, 458; People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)

“‘“‘Whether a course of criminal conduct is divisible . . . depends on the intent and

objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or

were the means of accomplishing or facilitating one objective, defendant may be found to

have harbored a single intent’”’” and therefore may be punished only once. (Jones, at

p. 1143; see also People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If the defendant

harbored multiple or simultaneous objectives, he or she may be punished for each

violation committed in pursuit of each objective, even though the violations share

common acts or were part of an otherwise indivisible course of conduct. (Jones, at

p. 1143; People v. Conners, at p. 458.)

Whether section 654 applies in a given case is a question of fact for the trial court,

which is vested with broad latitude in making its determination. (Jones, supra, 103

Cal.App.4th at p. 1143; People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) The trial

court’s findings will not be reversed on appeal if there is substantial evidence to support

them. (Jones, at p. 1143; People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) “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, at p. 1143.)

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 Appellate courts have disagreed as to whether section 654 applies to

enhancements. (People v. Coronado (1995) 12 Cal.4th 145, 157 (Coronado); see also

People v. Oates (2004) 32 Cal.4th 1048, 1066, fn. 7.) There are two different categories

of sentence enhancements: (1) status enhancements, which go to the nature of the

offender, such as recidivist enhancements; and (2) conduct enhancements, which go to

the nature of the offense, such as firearm or bodily injury enhancements. (Coronado, at

p. 156; People v. Ahmed (2011) 53 Cal.4th 156, 161 (Ahmed); People v. Rodriguez

(1988) 206 Cal.App.3d 517, 519.) Coronado held that section 654 does not apply to

prior conviction enhancements (status enhancements) because they “‘relate to the status

of the recidivist offender engaging in criminal conduct, not to the conduct itself.’”

(Coronado, at p. 157.) Because a “repeat offender (recidivist) enhancement” does not

implicate multiple punishment of an act or omission, section 654 is inapplicable.

(Coronado, at p. 158; see also People v. Price (1992) 4 Cal.App.4th 1272, 1277 [§ 667,

subd. (a), creates a status not a conduct enhancement, and § 654 does not apply].) The

court in Coronado left open the question of whether section 654 can apply, at least, to

some conduct enhancements.

The modern trend has been for appellate courts to hold, or at least to assume, that

section 654 does apply to conduct enhancements. (Ahmed, supra, 53 Cal.4th at p. 162.)

This trend is supported by the express language of section 654 which “proscribes

multiple punishment for the same act.” (People v. Moringlane (1982) 127 Cal.App.3d

811, 817-818, disapproved on other grounds in People v. Jones (1991) 53 Cal.3d 1115,

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1144-1145.) Section 654 states that it applies to “different provisions of law” that punish

“an act or omission” in different ways. Nothing in section 654 explicitly prohibits its

application to enhancements.

In Ahmed, the Supreme Court confirmed that “as a default, section 654 does apply

to enhancements [other than status enhancements dealt with in Coronado] when the

specific statutes do not provide the answer.” (Ahmed, supra, 53 Cal.4th at p. 163.)

Ahmed involved the question of whether section 654 prohibits imposition of both the

great bodily injury enhancement and the firearm use enhancement because both apply to

the same act. (Ahmed, at p. 162.)

Section 12021, subdivision (a)(1), which criminalizes possession of a firearm by a

felon, “presents a unique circumstance in the minefield of section 654 cases in that this

charge involves an important policy consideration.” (People v. Ratcliff (1990) 223

Cal.App.3d 1401, 1409 [Fourth Dist., Div. Two].) The statute’s intent was to minimize

the danger to public safety posed by access to weapons that can be used in crimes of

violence, and “‘[t]he law presumes the danger is greater when the person possessing the

concealable firearm has previously been convicted of felony . . . . [Citation.]’” (Ibid.)

When a defendant felon violates section 12021 by possessing a firearm during the

commission of an offense, for purposes of section 654 analysis, the question is whether

there is substantial evidence that the firearm possession “‘“constitutes a divisible

transaction from the offense in which he employs the weapon [and] depends upon the

facts and evidence of each individual case. Thus where the evidence shows a possession

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distinctly antecedent and separate from the primary offense, punishment on both crimes

has been approved. On the other hand, where the evidence shows a possession only in

conjunction with the primary offense, then punishment for the illegal possession of the

firearm has been held to be improper where it is the lesser offense.”’” (Jones, supra, 103

Cal.App.4th at p. 1143; see also People v. Bradford (1976) 17 Cal.3d 8, 22.)

For example, in People v. Killman (1975) 51 Cal.App.3d 951, the defendant had

given his girlfriend money to purchase a gun. Several months before the robbery, the

defendant used the gun for target practice and took it with him when he moved to a new

residence. (Id. at p. 955.) Section 654 did not bar punishment on both first degree

robbery and firearm possession charges; the defendant was properly punished “for his

own personal possession of the gun before the robbery.” (Killman, at p. 959; see also

People v. Garfield (1979) 92 Cal.App.3d 475, 478 [defendant properly sentenced for

burglary and possession of a weapon by a narcotics addict, based upon his possession of a

firearm stolen during the burglary; he had the weapon in his personal possession when

arrested six days after the burglary and had not stored it with the rest of the fruits of the

burglary].)

In People v. Ratcliff, supra, 223 Cal.App.3d 1401, the defendant used a handgun

to commit two robberies an hour and one-half apart. When he was apprehended

approximately one-half hour after the second robbery, the handgun was still in his

possession. We rejected the defendant’s argument that section 654 precluded punishment

for both the ex-felon in possession of a firearm conviction and the firearm use

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enhancement. We explained: “the defendant already had the handgun in his possession

when he arrived at the scene of the first robbery. A justifiable inference from this

evidence is that defendant’s possession of the weapon was not merely simultaneous with

the robberies, but continued before, during and after those crimes. Section 654 therefore

does not prohibit separate punishments. [Citation.] [¶] . . . [¶] Commission of a crime

under section 12021 is complete once the intent to possess is perfected by possession.

What the ex-felon does with the weapon later is another separate and distinct transaction

undertaken with an additional intent which necessarily is something more than the mere

intent to possess the proscribed weapon. [Citations.] In other words, in the case here,

defendant’s intent to possess the weapon did not import or include the intent to commit

the robberies.” (Ratcliff, at pp. 1413-1414.)

On the other hand, where the evidence shows a possession only in conjunction

with the primary offense, then punishment for the illegal possession of the firearm has

been held to be improper. (People v. Garcia (1978) 86 Cal.App.3d 314, 317.) People v.

Jurado (1972) 25 Cal.App.3d 1027 (Jurado) is illustrative. In that case, the Court of

Appeal concluded that where a weapon was possessed in commission of a burglary and

was the basis for elevating that offense to first degree, and there was no evidence that the

defendant possessed the gun before or after the burglary, the defendant could not properly

be sentenced for both burglary and carrying a concealed weapon, even if the terms were

to run concurrently. (Id. at p. 1033; People v. Duran (1976) 16 Cal.3d 282, 296, fn. 16

[citing Jurado with approval and in dictum stating, “We note, however, that as there is no

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evidence in the record now before us that defendant possessed the weapon except during

the assault,” and “he could not have been properly sentenced under both violations found

against him”].)

People v. Mustafaa (1994) 22 Cal.App.4th 1305 is also instructive. In that case,

the defendant pled guilty to three robbery counts, admitted that he was personally armed

with a firearm on those occasions, and admitted that he was a felon in possession of a

firearm in each of those instances. (Id. at p. 1309.) Because the prison term imposed for

one count of possession of a firearm by a convicted felon “appear[ed] to be based on the

same conduct as that on which the term for the personal gun-use enhancement . . . was

based” (id. at p. 1312), at the change of plea hearing “the court referred to [the

defendant’s] gun possession only as part of the robbery incident and not to his gun

possession at the time of his arrest” (ibid.), and “there was no stipulation that the plea was

based on the preliminary hearing or police reports” (ibid.), the court held that the

sentence on the count of possession of a firearm by a convicted felon violated section

654.

Here, the People assert that the trial court’s implied findings show “[t]he evidence

was sufficient to infer that [defendant]’s possession of the firearm was antecedent to and

separate from his use of the gun to commit the robbery offenses.” The People further

argue that “[t]he evidence likewise supported the reasonable inference that [defendant]

harbored separate intents in the commission of using a gun to commit the robberies and

being a felon in possession of a firearm.” However, the court expressly stated, “I intend

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to run all the burglaries 654. I intend to run all the felon in possession of a gun 654.

Other than that, I don’t see what other issues there are.” Nonetheless, when the court

pronounced sentence on each of the 15 counts for felon in possession of a firearm, it

imposed a concurrent sentence of four years on each of those counts. Hence, the record

is ambiguous as to the court’s findings, and a remand is necessary.3

While a reasonable inference can be made that defendant must have had

possession of the gun for some period of time before he entered the retail establishments

to commit the robberies, the appellate record is unclear and lacking of substantial

evidence that defendant’s possession of a firearm had any objective other than to assist in

the robberies. Under the circumstances of this case, especially in light of the court’s

explicit comment to stay sentence on the 15 convictions for felon in possession of a

firearm under section 654, and defendant’s separate punishments on both the substantive

robbery offenses and the attached gun use enhancements, we believe a remand is

necessary.

E. Correction to Abstract of Judgment and Court’s Minute Order

Defendant also contends, and the People agree, that the abstract of judgment and

the court’s minute order must be modified to reflect the court’s oral pronouncement.

Defendant notes that there are discrepancies between the trial court’s oral pronouncement

3 The People maintain that “[a] remand is not warranted because [defendant] did
not object to the court’s imposition of concurrent sentences.” We reject this claim. As
previously noted, the waiver doctrine does not apply to questions involving section 654.
(People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3; People v. Hester, supra, 22
Cal.4th at p. 295.)

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at sentencing and the court’s minute order and/or abstract of judgment as to counts 5, 7,

31, 57, and 59. We also agree and note there are discrepancies, not pointed out by either

party, as to count 11.

As to count 11 (attempted robbery), at the time of oral pronouncement of

judgment, the court ordered count 11 stayed pursuant to section 654 at one point in the

proceedings, but later, following a discussion off the record, the court imposed it and its

attendant firearm use enhancement consecutively. The People note that the court stayed

count 11 pursuant to section 654; defendant, however, notes that count 11, as well as the

attached enhancement, was imposed consecutively. The abstract of judgment notes count

11 was imposed consecutively.

As to count 5, the parties state that the court erred in imposing and then staying a

firearm enhancement as to count 5 because a firearm enhancement was not alleged as to

defendant. The parties are mistaken. The information clearly charges defendant with

personal use of a firearm as to count 5. As such, the trial court correctly imposed and

stayed the firearm enhancement as to count 5. As to counts 7, 31, 57, and 59, we agree

with the parties that the court’s minute order and/or the abstract of judgment incorrectly

reflect the sentence imposed by the court at the time of sentencing. Accordingly, on

remand the trial court is to correct these discrepancies.

III

DISPOSITION

The matter is remanded to the trial court with directions to:

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 (1) Consider whether punishment for the 15 counts of felon in possession of a

firearm should be stayed pursuant to section 654;

(2) Correct the abstract of judgment and the court’s minute order of the

sentencing hearing to reflect the court’s oral pronouncement of judgment; and

(3) Forward a copy of the amended abstract of judgment to the Department of

Corrections and Rehabilitation.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.

We concur:

HOLLENHORST
J.

CODRINGTON
J.

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