Filed 4/3/15 P. v. Lawhead 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C072151
Plaintiff and Respondent, (Super. Ct. No. 10F05982)
v.
JAMES EARL LAWHEAD,
Defendant and Appellant.
A jury convicted defendant James Earl Lawhead of second degree robbery (Pen.
Code, § 211),1 two counts of felon in possession of a firearm (§ 12021, subd. (a)(1)),
receiving stolen property (a firearm) (§ 496, subd. (a)), and exhibiting a deadly weapon to
a peace officer (§ 417.8), with an enhancement for personal use of a firearm (§ 12022.53,
subd. (b)). The trial court found true five prior strike and serious felony allegations
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
1
(§§ 1170.12, 667, subds. (a), (b)-(i)) and sentenced defendant to 100 years to life plus 15
years.
On appeal, defendant contends the trial court’s denial of his Romero motion2 was
an abuse of discretion and his sentence violates the state and federal constitutional
prohibitions against cruel and/or unusual punishment. In a supplemental brief, he
contends the sentence on either the receiving stolen property conviction (count four),
which involved a stolen firearm, or felon in possession of a firearm (count six), which
involved the same firearm, should be stayed pursuant to section 654.
We remand for the trial court to stay sentence on count four or six, and in all other
respects, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Tifanee Blue was a shift manager at a Blockbuster store in Citrus Heights. On
July 25, 2010, at around 10:45 a.m., Blue was walking through the parking lot to make a
bank deposit when a dark purple PT Cruiser with “blue and ghost-like” iridescent flames
cut her off and parked in a disabled parking spot. As Blue went around the PT Cruiser, a
door opened and the driver said something to her. The driver had his left leg out of the
car and held a small semiautomatic handgun. The man told her to “give me the bag.”
Frightened, Blue gave him the deposit bag containing $1,157.75. The driver shut the
door, quickly backed up, and drove away. Blue returned to the Blockbuster and called
911. The responding officer who spoke with her observed that “[s]he was very shaken
up.” Later, she was shown two photographic lineups, one including defendant’s DMV
photograph and the other including defendant’s booking photograph after his arrest for
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2
the charges in this case. Blue was unable to identify anyone in either photo lineup. The
person who robbed her was wearing dark glasses and a baseball hat during the robbery.
Law enforcement officers observed a purple PT Cruiser with flames on the side
during surveillance in an unrelated case. They noted the license plate number and
determined that as of July 25, 2010, the car was registered to defendant and Annette
Dustin at a Sacramento address. Defendant’s name was taken off the registration on
August 16, 2010.
Jerry Riggs was defendant’s parole agent. Riggs last met with defendant in a
parking lot on July 27, 2010. At that time, defendant told Riggs he had been evicted from
his apartment and was trying to live with his stepfather. He did not plan to be at his new
home for several days and would not give an address where he would be staying. Riggs
had previously seen defendant in possession of a “maroon-purplish” PT Cruiser that had
flames on the side. Defendant failed to appear at his mandatory meeting with Agent
Riggs on August 4, 2010.
On August 25, 2010, Eddie Cisneros, a bail agent, received a phone call from a
person identifying himself as defendant. The person gave a date of birth and asked for a
warrant check. Cisneros contacted the Sacramento County Sheriff’s Department and
learned defendant had a no-bail warrant for robbery. Cisneros gave the information to
the caller, who immediately hung up.
On September 8, 2010, at around 6:00 a.m., Sacramento County Sheriff’s Deputy
David Treat followed up on a tip and went to a location to arrest defendant. Within a few
minutes of his arrival, Deputy Treat saw a Toyota Camry driven by a woman. There was
also a passenger slumped down in the front seat with the bill of his hat over his face.
Driving a marked patrol vehicle, Deputy Treat followed the car, which took no evasive
action. Ultimately, there were three patrol vehicles following the Camry. The car
eventually pulled into a McDonald’s parking lot and parked.
3
Deputy Treat stopped his patrol car, turned on all of his lights, including the face
forward red lamp, and started to exit. The driver raised her hands while the passenger,
defendant, put a handgun into his mouth. Deputy Treat ordered the woman out of the car.
After she complied, defendant left the car while still holding the gun. Defendant said he
wanted law enforcement to kill him. Defendant repeatedly went in and out of the car. He
eventually fashioned a sling to keep the gun in his mouth.
During the standoff, defendant told a negotiator that “he did what he did” because
he needed money. He had been kicked out of his home and had issues with his mother
because of his methamphetamine use. Defendant said he did not want to go to prison.
The standoff ended with defendant’s arrest at around 8:00 a.m. Deputies
recovered a stolen .380-caliber Bersa handgun at the scene when they arrested defendant.
The gun had been stolen in a burglary on September 5, 2010. During a recorded jail visit
conversation with his grandmother, defendant admitted he knew that gun had been taken
in a burglary. Defendant told his girlfriend in another recorded jail visit that “I did what I
did [] because I made a promise to myself years ago that I would never be homeless
again.”
Defense Evidence
Defendant’s mother, Annette Dustin, was one of the registered owners of the PT
Cruiser. The flame decals were removable. She testified that she saw someone other
than defendant driving the car, but she did not recognize the driver. She told defendant’s
parole agent about that sometime in May or June. Dustin removed defendant from the
car’s registration on August 16, 2010. After defendant was arrested, she reported the car
stolen because defendant did not have it and she wanted it back.
Defendant was unemployed when he got out of prison but quickly got two jobs.
Dustin got him an apartment and defendant was doing “fantastic” until he started using
drugs, causing their relationship to go downhill. Dustin then evicted defendant from the
apartment, telling him to vacate by July 24, 2010.
4
Verdicts and Findings
The jury found defendant guilty of second degree robbery (§ 211), two counts of
felon in possession of a firearm (§ 12021, subd. (a)(1)), receiving stolen property (a
firearm) (§ 496, subd. (a)), and exhibiting a deadly weapon to a peace officer (§ 417.8).
The jury also found true an enhancement for personal use of a firearm (§ 12022.53,
subd. (b)). Defendant was acquitted of the burglary in which the stolen firearm had been
taken.
After a court trial on the prior conviction allegations, the trial court found true
allegations that defendant had sustained five prior strike and serious felony convictions.
(§§ 1170.12, 667, subds. (a), (b)-(i).)
Romero Motion
Defendant’s five prior strike convictions were all from a single proceeding in the
state of Washington in January 1999. The convictions were robbery, two counts of
assault, burglary, and theft of a firearm.3
According to the probation report, the facts of the prior convictions are as follows.
On May 5, 1998, a woman stopped by her parents’ home to drop off some items. She
became suspicious after seeing the doors wide open and no one home. The woman
entered the home with her five-year-old son so she could use the phone to call her
mother. Defendant, who was armed with a handgun, came up behind the woman as she
entered. He pulled the slide back on the gun and ordered her to hang up the phone and
get on the ground. The woman grabbed her son and placed her body over him, pleading
with defendant to spare her life. Defendant held the barrel of the gun to her head, cut the
cord to the phone, and then walked to the kitchen.
3 The trial court found all of the Washington priors were serious felonies because
defendant used a firearm in the commission of all five offenses.
5
The woman heard defendant speaking to another person, and could hear one of
them say the woman should be killed. Defendant planned to make the woman go with
them until she begged him to leave her and her son alone. The burglars eventually drove
off, taking her father’s truck from the residence. The burglars also took coins and
collectables valued at $21,000 and a .45-caliber handgun.
Defendant was convicted on the five counts and sentenced to 147 months in
Washington state prison. On April 1, 2009, he requested a parole transfer from
Washington to California. His discharge date was to be June 3, 2012. In preparing the
presentence report, the probation department was not able to obtain defendant’s release
date from the prison in Washington, but defense counsel told the trial court defendant
was paroled on July 20, 2009.
Defendant was born in January 1981. He had a California juvenile adjudication
for misdemeanor vehicle theft in April 1995, juvenile adjudications in Washington for
burglary and possession of a firearm in November 1995, a felony escape in April 1997,
and possession of stolen property in October 1998.
Defendant told the probation officer who wrote the presentence report that he was
addicted to methamphetamine. He first used the drug when he was 17, but did not use it
for the first six months out of prison. He had only recently started using it again.
In his Romero motion, defendant argued that the Washington convictions were not
actually strikes, but if they were, then the five prior strikes should be treated as a single
strike conviction because they arose during a continuous course of conduct. He also
argued that the trial court should dismiss the strike allegations in the interest of justice.
In ruling on the Romero motion, the trial court observed defendant was
“respectful, articulate and well-behaved” during the court proceedings. But as the court
observed, its focus was not on defendant’s demeanor and character during trial. Rather,
“I’m judging what happened during the crimes both back in Washington and here in
California.” The court acknowledged that when defendant uses methamphetamine, his
6
“drug of choice,” defendant turns into a “different person.” Defendant had used
methamphetamine within a year of getting out of prison in Washington, even though he
promised his mother he would not use the drug as a condition of getting an apartment
through her. The trial court found it was very easy for defendant to go from the
respectful person he was when he was first paroled and the respectful person in court to
the person who “engages in this criminal conduct” out in society, and the court had to
protect the community from that person.
Regarding the Washington priors, the trial court reasoned that the five prior strikes
involved separate courses of conduct, including the entry into the home, taking the gun,
and later threatening the woman and her son with the gun when they stumbled upon the
burglary. The crimes involved different victims, different places in the house, different
motives, and different actions. As with the Washington crimes, defendant’s current
offense had a “level of cruelty” from the robbery at the video store “all the way until the
weapon is drawn in the presence of law enforcement.”
The trial court saw the video of the standoff, where the police “did everything they
could” and it was “a short reach . . . to take the gun from his head and aim it at an
officer.” The court reasoned that the person it saw in the video “and the person who
engaged in these crimes” did not warrant the trial court granting the Romero motion.
Summing up, the trial court said, “It kills me to put somebody at 31 years of age
into a penitentiary for a very substantial period of his life, if not the remainder of his life.
I hate that. That’s the toughest part of my job. But under these circumstances, I can’t see
how I can avoid it.” Reiterating its finding that the prior strikes involved separate courses
of conduct, the trial court denied the Romero motion. The court then proceeded to
conduct the sentencing hearing.
Defendant’s grandmother addressed the court in the sentencing hearing.
Defendant’s father served an 11-year prison term for rape in 1980 and had very little
contact with defendant. Defendant was in and out of juvenile hall growing up, as there
7
were no programs available to teach troubled kids the difference between right and
wrong. She believed the absence of his father had a profound effect on defendant. When
he was released from prison in 2009, defendant was 28 1/2 years old, “but 18 street-
wise.” “He is very smart, extremely funny and very loving. He has always been
respectful and polite, and he loves children. [¶] That all changes when drugs are
involved. [¶] He just doesn’t love himself enough to make the right choices.”
In sentencing defendant, the trial court said it “spent a lot of time on this,” having
“re-read these materials several times; late at night, at lunch hours and early in the
morning trying to figure out what I can do, what should I do.” It found that “the problem
is, is that the defendant himself has left me very few options here. I’m not sure that I
have any options here.” Recognizing the many problems in defendant’s life, his father’s
incarceration and his own drug use, the court said it did not “have a magic wand” to wave
“and say all right. No more drugs.” Reiterating the danger defendant posed to the
officers in the standoff, the trial court concluded, “I don’t have a lot of options available
to me as much as I wish that I did.” The court then noted defendant was statutorily
ineligible for probation, listed several circumstances in aggravation,4 found that counts
one, four, five, and six were predominantly independent of each other and then imposed
4 Regarding factors in aggravation, the trial court observed, “these crimes involved great
violence . . . [the] threat of bodily harm. [¶] And . . . I believe that while it may not be
the person that the family knows, the person who engaged in these criminal acts showed a
high degree of cruelty and viciousness and . . . callousness. [¶] The crimes were
committed in a manner showing planning, sophistication and a clear intent. [¶]
[Defendant] has engaged in violent conduct before, and he certainly did again here
indicating a very serious danger to society. [¶] His prior convictions as an adult and his
sustained petitions in Juvenile Delinquency proceedings are numerous and of increasing
seriousness. [¶] He served a prior prison term. As I pointed out a moment ago, had only
been out of prison approximately one year when he then returned to the life of crime and
. . . was on parole when the crimes were committed, showing us that his prior
performance on parole [was] grossly unsatisfactory.”
8
sentence on each count. The court sentenced defendant to 100 years to life plus 15 years.
Defendant did not object to this sentence.
DISCUSSION
I. Romero Motion
A. Applicable Law
Defendant contends it was an abuse of discretion for the trial court not to dismiss
at least four of his five prior strike convictions as to all counts or dismiss four strike
convictions as to the subordinate counts. We disagree.
A trial court has the authority to dismiss a strike conviction allegation in the
interests of justice under section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at
p. 504.) A trial court also has the discretion to dismiss strike allegations on a count-by-
count basis. (People v. Garcia (1999) 20 Cal.4th 490, 499 (Garcia).) We review a trial
court’s refusal to dismiss strike allegations under the deferential abuse of discretion
standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts.
First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’
[Citations.] Taken together, these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable person could
agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)
In deciding whether to exercise its discretion to dismiss strike allegations, courts
must determine whether the defendant should be deemed outside the spirit of the three
9
strikes law and hence should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th
148, 161 (Williams).) In making this determination courts must consider three
circumstances: (1) the nature and circumstances of his present felony; (2) the nature and
circumstances of his strike offense; and (3) the particulars of the defendant’s background,
character, and prospects for the future. (Ibid.)
B. Analysis
Defendant asserts the trial court’s failure to dismiss four of the five strikes was an
abuse of discretion because “the trial court did not consider all relevant sentencing factors
which supported dismissing some of [defendant]’s prior strikes, and it also failed to
consider viable sentencing alternatives.” According to defendant, the trial court did not
consider that defendant’s adult criminal history consists entirely of the current offenses
and all of the strikes “occurred during the same incident.” He claims the trial court did
not consider that defendant was 17 when he committed the strikes, “more than a decade
before the current offenses.” Defendant further claims the trial court’s statement, “I don’t
have a lot of options available to me as much as I wish that I did” was wrong, as it could
have dismissed four of the strikes on all counts or just the subordinate terms.
Defendant argues on appeal that dismissing all of his strikes produces a sentence
of 22 years 4 months, and dismissing four of the five strikes leads to a sentence of 29
years 8 months. Imposition of the latter sentence would mean he would not be eligible
for parole until he was 55 and therefore unlikely to reoffend. Defendant also argues on
appeal that the trial court could have sentenced defendant to 25 years to life by
dismissing the strike allegations as to the subordinate terms. (See Garcia, supra, 20
Cal.4th at p. 499.) Arguing that the robbery “was a relatively minor offense that resulted
in the theft of less than $1,200” in which he made no explicit threats to use the gun
against the victim and nobody was injured, defendant maintains that a sentence of 115
10
years to life for a 29 year old based on the instant charges “exceeds the bounds of
reason.”
As our high court has noted, “any failure on the part of a defendant to invite the
court to dismiss under section 1385 following Romero waives or forfeits his or her right
to raise the issue on appeal. [Citation.]” (Carmony, supra, 33 Cal.4th at pp. 375-376.)
Based on this, we hold that a defendant forfeits any claim that the trial should have found
defendant partially outside the spirit of the three strikes law and dismissed strikes as to
only some counts pursuant to Garcia, supra, 20 Cal.4th 490 if that request is not made in
the trial court. Here, defendant did ask the trial court to treat all of the strikes as a single
strike and further asked the court to dismiss strikes, but he never proposed the alternative
of dismissing four strikes as to the subordinate terms. His contention that the trial court
should have considered that option is forfeited.
As for the option of dismissing strike allegations on all counts, contrary to
defendant’s assertions, there is no indication that the trial court was unaware of its
discretion to do so. Indeed, that was one of the two options defendant argued in the trial
court. And the prosecution opposed defendant’s request to dismiss strikes in its written
opposition, arguing it was not in the interest of justice to do so under the analysis in
Williams, supra, 17 Cal.4th 148.
Defendant seizes upon the trial court’s statement, “defendant himself has left me
very few options here. I’m not sure that I have any options here,” as evidence the court
misunderstood its discretion under section 1385. The trial court’s statement that it did
not have any options was not made when deciding the Romero motion. Rather, the court
said that after the Romero motion was denied, well after the sentencing hearing had
commenced, just before it imposed sentence. Examined in its proper context, this
statement accurately reflects the law. Denial of the Romero motion meant defendant was
to be sentenced under the three strikes law, which mandates consecutive sentences of 25
years to life for each felony “not committed on the same occasion, and not arising from
11
the same set of operative facts.” (§ 667, subd. (c)(6); People v. Lawrence (2000)
24 Cal.4th 219, 222-223.) Once the trial court denied the Romero motion, it had to
impose consecutive 25 years to life terms for all four of defendant’s felony convictions.
As for defendant’s age, the lapse of time between the strike offenses and the
current offense, defendant’s substance abuse problem and the facts that defendant did not
expressly threaten to shoot the victim here and nobody was hurt, the trial court was well
aware of those circumstances. It reviewed the probation report and presided over the
trial. Even when we factor the circumstances defendant highlights here into the three-
prong analysis outlined by our high court in Williams (Williams, supra, 17 Cal.4th at
p. 161), we conclude the court’s decision not to dismiss any strikes was not “so irrational
or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th
at pp. 376-377.)
1. Nature and Circumstances of the Current Offense
The strike offense was violent and involved the use of a gun. It showed a level of
planning and sophistication in that defendant targeted an individual who was on her way
to make a deposit of store receipts. In light of the fear defendant caused, we conclude
that any mitigation from the fact that he did not expressly threaten to use the gun and did
not hurt the victim during this armed robbery was minimal.
To make matters worse, defendant engaged in a lengthy public standoff with
sheriff’s deputies, in an apparent attempt to induce the deputies to shoot him. The trial
court correctly found that the situation defendant created posed a threat to public safety.
The current offenses were not part of a single incident, but involved at least three
separate criminal acts, all involving a firearm: obtaining the stolen gun, the armed
robbery, and finally, the armed standoff with the police.
2. Nature and Circumstances of the Strike Convictions
The prior strike offenses were not non-violent; they involved a burglary turned
home invasion. It seems defendant could have walked away from the burglary, but
12
instead confronted the victim and her young son. Defendant pulled the slide of his gun
back and pointed the gun at the victim’s head. The victim no doubt thought she and her
son were going to be killed and she begged defendant to spare their lives. There is
nothing mitigating about these offenses. Indeed, these offenses are extremely
aggravating.
3. Defendant’s Background, Character, and Prospects for the Future
Defendant had a criminal history beginning when he was 14 years old. One of his
five juvenile adjudications involved burglary and possession of a firearm.
Defendant was 17 when he committed his prior strike offenses, but he was old
enough and his crimes were sufficiently serious for him to be tried as an adult. The 11
years between his strikes and the current offenses is not the result of some break in
criminal activity. Defendant was incarcerated for most of that time, and committed the
current offenses a little more than a year after his release from prison.
Defendant’s life is one of almost continuous offending, a lengthy juvenile record
including several felonies, followed by five strike convictions, and then the current
offenses a relatively short time after his release from prison and while he was on parole.
And it seems defendant was prepared to go on a crime spree. During a recorded jail visit
conversation, defendant remarked, “It’s good that it happened the way it did. It’s good
that it’s only three charges and not 50. Cause another month and it would have been 50.”
Defendant’s current crimes and criminal history show that when he is not
incarcerated, he is highly likely to commit violent offenses involving the use of firearms.
It was not an abuse of discretion to deny his Romero motion.
II. Cruel and Unusual Punishment
Defendant contends his sentence of 100 years to life plus 15 years constitutes cruel
and/or unusual punishment under the state and federal Constitutions.
Defendant’s Romero motion did not include and is not a substitute for a claim that
his sentence is cruel and unusual punishment. He likewise did not assert his sentence was
13
cruel and unusual when the trial court imposed sentence. This forfeits his contention on
appeal.5 (People v. Norman (2003) 109 Cal.App.4th 221, 229 (Norman).)
Defendant’s claim also fails on the merits. A punishment may violate the
California Constitution if, although not “cruel or unusual” in its method, the punishment
“is so disproportionate to the crime for which it is inflicted that it shocks the conscience
and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410,
424, fn. omitted.) Similarly, “an Eighth Amendment analysis requires a finding of ‘gross
disproportionality’ between the offense and the offender and the punishment.
[Citations.]” (Norman, supra, 109 Cal.App.4th at p. 230.)
Relying on a concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-
602, in which Justice Mosk opined that a sentence that is impossible to serve is per se
cruel and unusual, defendant contends his 100 years to life plus 15 years sentence is
disproportionate to the current offenses even considering the current offenses and his
criminal history. He further claims that a sentence which is “more than 85 years longer
than the upper term second strike sentence that could be imposed for the same offenses
and enhancements” is disproportionate to him as the offender and to his offenses.
This court has previously rejected reliance on Justice Mosk’s concurrence. In
People v. Retanan (2007) 154 Cal.App.4th 1219, 1231, this court wrote: “ ‘ “ [N]o
opinion has value as a precedent on points as to which there is no agreement of a majority
of the court. [Citations.]” [Citations.] Because no other justice on our Supreme Court
joined in Justice Mosk’s concurring opinion [in Deloza], it has no precedential value.’
Accordingly, there is no authority for defendant’s argument.” We again reject the theory
5 Defendant’s section 1385 motion does not preserve the claim, as that motion does not
substitute for litigation under the constitutional provisions prohibiting the imposition of a
cruel and unusual sentence. (People v. Cole (2001) 88 Cal.App.4th 850, 868-869.)
14
that a sentence is cruel and unusual because it is impossible for a human being to
complete.
Nor do the facts surrounding the commission of the offenses or an individualized
assessment of the offender compel a different result. As noted above, we are well
acquainted with the factors in mitigation applicable here, including defendant’s age and
his problem with methamphetamine. These factors do not tip the scale.
Defendant’s lengthy and near continuous criminal record beginning as a juvenile
(except while incarcerated), and the violent nature of his current and past offenses show
that defendant is a serious threat to public safety when he is not incarcerated. His lengthy
sentence is neither disproportional to the offense or the offender, and does not violate the
state or federal prohibitions against cruel and/or unusual punishment.
III. Section 654
In a supplemental brief, defendant contends sentence should be stayed pursuant to
section 654 on either count four, receiving stolen property (the firearm), or count six,
felon in possession of a firearm.6 The People concede and we agree.
Section 654, subdivision (a), provides in pertinent part that “[a]n 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.” In short, “section
654 proscribes double punishment for multiple violations of the Penal Code based on the
6 Defendant filed his motion for leave to file a supplemental brief long after briefing had
concluded. Our decision to grant the motion as to one issue raised in the supplemental
brief should not be taken as an endorsement of filing supplemental briefs. Failure to raise
an issue in appellant’s opening brief forfeits the contention on appeal. (Christoff v. Union
Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.) We generally do not allow
supplemental briefing so that an appellant can overcome this rule, but do here to avoid a
claim of ineffective assistance of appellate counsel for failing to raise a contention with
obvious merit.
15
‘same act or omission.’ ” (People v. Siko (1988) 45 Cal.3d 820, 822.) If the crimes
involve a course of conduct, “[w]hether [the] 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.”
(Neal v. State of Cal. (1960) 55 Cal.2d 11, 19.)
Defendant was convicted of receiving stolen property in count four for receiving a
stolen .380-caliber Bersa handgun, the same weapon that formed the basis of his
conviction for felon in possession of a firearm in count six.7 Defendant argues, and the
People concede, that he cannot be sentenced for receiving stolen property and felon in
possession of a firearm when both crimes involve the same firearm.
A panel of this court addressed this issue in similar circumstances in People v.
Atencio (2012) 208 Cal.App.4th 1239 (Atencio), a case not cited by defendant in his
supplemental brief. In Atencio, the defendant was convicted of grand theft of a firearm
and felon in possession of a firearm after he took a pistol from the victim’s house, kept it
for a day, and then abandoned it at another person’s house. (Id. at p. 1243.) This court
concluded that both acts were committed pursuant to a single objective, possessing the
gun. “To say that defendant’s objective on the first day was to take the gun, while his
objective on the next day was to possess it is cutting the point too fine. The only point in
taking the gun was to gain possession of it, so that he could then do with it what he
pleased . . . . The fact that defendant kept possession of the gun for a period of 24 hours
did not, without more, alter his intent and objective such that his course of criminal
conduct can be deemed to consist of more than one act for purposes of section 654.” (Id.
7 The felon in possession offense in count two was based on possession of a different
firearm, the unknown firearm defendant used to commit the robbery. The trial court
imposed but stayed a sentence pursuant to section 654 on count two.
16
at p. 1244.) Since the “defendant’s taking of the pistol was merely the means by which
he gained possession of it,” defendant could be punished only once for both crimes. (Id.
at p. 1245.)
Atencio is dispositive here. As in that case, the defendant committed the crimes of
receiving stolen property and felon in possession of a firearm in counts four and six with
a single purpose, to possess that firearm. Like in Atencio, “what we have here is a course
of conduct pursuant to one criminal objective—to possess the gun—and based on that
there is but one act that can be punished under section 654.” (Atencio, supra, 208
Cal.App.4th at p. 1245.)
When section 654 applies, the offense with the longest term is imposed. (§ 654,
subd. (a).) Defendant received the same three-strikes sentence of 25 years to life on both
counts and the base punishments for both crimes is the same (§§ 12021, subd. (a)(1), 496,
subd. (a)). We shall remand the case for the trial court to select the count upon which to
stay the sentence pursuant to section 654.
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DISPOSITION
The case is remanded for the trial court to stay the sentence on count four or count
six pursuant to section 654. In all other respects, the judgment is affirmed. The trial
court is further directed to prepare an amended abstract of judgment reflecting the new
sentence and to forward a certified copy to the Department of Corrections and
Rehabilitation.
MURRAY , J.
We concur:
RAYE , P. J.
MAURO , J.
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