Filed 12/1/14 P. v. Harris CA3
NOT TO BE PUBLISHED
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yuba)
----
THE PEOPLE, C071577
Plaintiff and Respondent, (Super. Ct. Nos. CRF11517 &
CRF12173)
v.
BOB COLBURN HARRIS, JR.,
Defendant and Appellant.
Defendant Bob Colburn Harris, Jr., appeals from a judgment sentencing him to
state prison for eight years. He contends the trial court violated Penal Code section 6541
when it imposed punishment for both felon in possession of a firearm (§ 12021,
subd. (a)(1)) and unlawful possession of ammunition (§ 12316, subd. (b)(1)).
We affirm.
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
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FACTUAL AND PROCEDURAL BACKGROUND
In April 2012, in consolidated felony complaint CRF11-517, defendant pleaded
guilty to possession of a dirk or dagger (§ 12020, subd. (a)(4) – count 3), possession of a
firearm by a felon (§ 12021, subd. (a)(1) – count 4); possession of ammunition by a felon
(§ 12316, subd. (b)(1) – count 5), and receiving stolen property (§ 496, subd. (a) –
count 6). In exchange for defendant’s pleas, he was guaranteed a maximum prison
sentence of no more than five years. Defendant entered a waiver pursuant People v. Cruz
(1988) 44 Cal.3d 1247, whereby he would be released on his own recognizance and if he
returned to court for sentencing as ordered and had complied with the terms of his
release, counts five and six, possession of ammunition by a felon and receiving stolen
property, would be dismissed and his resulting sentence would be two years eight
months.
Defendant failed to appear for sentencing. He was later arrested and charged in a
new case, No. CRF12-173, with transportation of methamphetamine (Health & Saf.
Code, § 11377, subd. (a)) with an on-bail enhancement (§ 12022.1), and with providing
false information to a peace officer (§ 148.9, subd. (a)). On May 30, 2012, defendant
pleaded no contest to the methamphetamine transportation charge and admitted the on-
bail enhancement in exchange for a term of three years to run consecutive to the sentence
that would be imposed in case No. CRF11-517.
On June 25, 2012, in case no. CRF11-517, the court imposed an aggregate term of
five years, consisting of three years for carrying a concealed dagger, consecutive terms of
eight months each for felon in possession of a firearm, felon in possession of
ammunition, and receiving stolen property. In case no. CRF12-173, the court imposed
the agreed upon three-year consecutive term.
The factual basis for defendant’s plea was taken from the Yuba County Sheriff’s
Department report no. 11-4397, which is summarized in the probation officer’s report.
According to the probation report, deputies searched a shed next to a trailer where
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defendant was living. “Within the shed, deputies found three firearms, numerous rounds
[ ]
of ammunition, 2 two I-Mac computers, and credit and identification cards in plain view.
One of the laptops belonged to Orin H., who reported a residential burglary on June 11,
2011. The second I-Mac belonged to Eduard B. The deputies ran the serial numbers of
the guns and determined that the Ruger .22 caliber semi-automatic had a registered owner
of Ronald A. There were 107 rounds of ammunition, a Savage 12 gauge single shot
shotgun, and a Winchester .3006 caliber bolt action rifle. Also located was an Epiphone
guitar and telescope stolen during a residential burglary in Smartsville.”
DISCUSSION
Relying on People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), defendant
contends the consecutive eight-month sentences imposed for possession of a firearm and
possession of ammunition violated section 654’s proscription against multiple
punishment for a single criminal act because his “possession of the guns and ammunition
was a single criminal act committed for a single criminal objective -- illegal possession of
a loaded firearm.” We find Lopez distinguishable and reject defendant’s claim.
Section 654 provides in pertinent 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.”
“Section 654 prohibits punishment for two offenses arising from the same act or
from a series of acts constituting an indivisible course of conduct. [Citations.] ‘Whether
2 The probation report did not specify the caliber of the ammunition. Nor did it state
how it was packaged and where it was located within the storage shed relative to the
firearms. No evidence was before the trial court indicating whether the ammunition
could or could not be fired in the weapons that were found. The briefing of the parties
appears to assume the ammunition could be fired from one or more of the firearms that
were found.
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a course of criminal conduct is divisible and therefore gives rise to more than one act
within the meaning of section 654 depends on the intent and objective of the actor. If all
of the offenses were incident to one objective, the defendant may be punished for any one
of such offenses but not for more than one.’ [Citations.] On the other hand, if the
defendant entertained multiple criminal objectives that were independent and not
incidental to each other, he or she ‘may be punished for each statutory violation
committed in pursuit of each objective’ even though the violations were otherwise part of
an indivisible course of conduct. [Citation.] ‘ “The principal inquiry in each case is
whether the defendant’s criminal intent and objective were single or multiple.”
[Citation.] “A defendant criminal objective is ‘determined from all the circumstances.
….’ ” ’ [Citation.].” (People v. Sok (2010) 181 Cal.App.4th 88, 99.) The trial court’s
ruling on the applicability of section 654, express or implied, will be affirmed on appeal
if supported by substantial evidence. (People v. Bui (2011) 192 Cal.App.4th 1002, 1015.)
In Lopez, the defendant was sentenced for unlawful possession of a firearm and
unlawful possession of ammunition based upon a patdown search which revealed a
loaded gun in the defendant’s pocket. (Lopez, supra, 119 Cal.App.4th at pp. 135, 137.)
The appellate court ordered the sentence for the ammunition possession stayed, stating:
“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.” (Id. at p. 138, italics added.)
The circumstances in Lopez are a far cry from those of the present case. This is
not a case where defendant was caught with a loaded gun on his person. Instead, he
possessed multiple firearms and a separate cache of ammunition hidden in a storage shed,
including a handgun, a shotgun, and a rifle and 107 rounds of ammunition. At least one
of the firearms was registered to someone other than defendant and defendant also
possessed two computers stolen from two other persons, and a stolen guitar and
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telescope. This evidence suggests defendant’s intent to receive and sell stolen property,
including guns and ammunition. There is no evidence that defendant possessed the guns
and ammunition together for the single objective of possessing loaded firearms, as
defendant claims. Consequently, substantial evidence supports the trial court’s decision
to sentence defendant on both the gun possession and ammunition possession charges.
DISPOSITION
The judgment is affirmed.
MURRAY , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
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