P. v. Wilkes CA2/7

Filed 6/17/13 P. v. Wilkes CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B239694

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA068807)
v.

DAVID WILKES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael Kellogg, Judge. Affirmed in part; reversed in part and remanded.
Benjamin Owens, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II and Mark E. Weber, Deputy Attorneys General, for Plaintiff and
Respondent.

__________________________________
 INTRODUCTION
David Wilkes (appellant) was convicted by a jury of carjacking (Pen. Code, § 215,

subd. (a), count 1);1 assault with a semiautomatic firearm (§ 245, subd. (b), count 2);
possession of a firearm by a felon (former § 12021, subd. (a)(1), count 3); grand theft of
an automobile with a prior conviction (§ 666.5, count 4); unlawful driving or taking of a
vehicle with a prior conviction (§ 666.5, count 5); and possession of ammunition by a
felon (former § 12316, subd. (b)(1), count 6).2 He was sentenced to 46 years, 4 months
in prison.
On appeal, appellant raises nine issues: (1) the evidence was insufficient to prove
carjacking; (2) the evidence was insufficient to prove that he used an automatic handgun;
(3) the trial court prejudicially erred in not instructing the jury on assault with a firearm
as a lesser included offense of assault with a semiautomatic firearm; (4) his conviction for
unlawfully driving or taking a vehicle must be reversed because it is a lesser included
offense of grand theft of an automobile; (5) the consecutive sentence for grand theft of an
automobile must be stayed pursuant to section 654; (6) the concurrent sentence for
assault with a firearm and the firearm enhancement must be stayed pursuant to section
654; (7) the abstract of judgment and clerk‘s minutes must be amended to reflect the trial
court‘s stay of the sentence for possession of ammunition by a felon pursuant to section
654; (8) the trial court abused its discretion in finding no mitigating factors in imposing
the sentence; and (9) the abstract of judgment and clerk‘s minutes must be amended to
reflect restitution and suspended parole revocation fines in the amount of $200 as orally
pronounced by the trial court.
For the reasons set forth below, we affirm the judgment in part, reverse the
judgment in part, and remand for resentencing.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Sections 12021 and 12316 were repealed as of January 2012.

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 FACTUAL BACKGROUND
On August 31, 2011, Jose Aristizabal was driving a truck owned by his employer,
Graffiti Control Systems. On his way to Graffiti Control Systems‘ truck yard, Aristizabal
stopped at El Portal Bakery on the corner of Sherman Way and Coldwater Canyon
Avenue in Los Angeles. He left the truck running with the keys in the ignition while he
went inside the bakery.

While inside, Aristizabal saw two friends, Carlos Castreyon and Vicente Gomez.3
After talking to them for a few minutes, Aristizabal heard an alarm or whistle that
resembled the sound his work truck makes when it is put in reverse. He looked out of the
bakery‘s front window and saw a Caucasian male with long hair, whom Gomez later
identified as appellant, inside his truck. Aristizabal said to Castreyon and Gomez, ―Hey,
someone is taking – my car is being stolen.‖ Aristizabal and Castreyon ran out of the
bakery together and watched the truck leave the parking lot. Aristizabal pursued the
truck on foot. At the same time, Gomez grabbed Castreyon‘s car keys, got into
Castreyon‘s car, and pursued appellant and the truck.
As appellant drove out of the parking lot in Aristizabal‘s truck on to Sherman
Way, he sideswiped a van. Aristizabal continued to chase after the truck on foot for
about half a block down Sherman Way, yelling for appellant to stop. Once appellant ran
the truck through a red light at the intersection at Sherman Way and Ethel Avenue,
Aristizabal gave up his chase. At that moment, he saw a coworker driving by on
Sherman Way. Aristizabal asked the coworker for help and got into the coworker‘s car to
pursue the truck. As they were driving, Aristizabal called the police to report the theft.
While Aristizabal pursued appellant on foot, Gomez followed in Castreyon‘s car.
Gomez stopped next to the truck and saw appellant‘s face. At the intersection of
Wyandotte Street and Woodman Avenue, appellant stopped the truck and Gomez pulled
up behind him. Gomez got out of Castreyon‘s car and approached the truck on foot. He

3 The record also refers to Vicente Gomez as Sebastian Gomez.
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approached from the driver‘s side of the truck and opened the driver‘s side door.
Appellant then drew a gun, which Gomez later testified was an ―automatic‖ handgun, and
pointed it at Gomez‘s chest. Gomez backed away from the gun and tried to use the truck
for cover. Appellant then fired one shot, which missed Gomez.
Appellant immediately drove off in Aristizabal‘s truck. Terrified, Gomez
remained standing in the street for thirty seconds. He returned to the bakery and called
Aristizabal to tell him what had happened.
Several days after the incident, Gomez was riding in the passenger seat of
Castreyon‘s car when he saw appellant walking on Sherman Way. Gomez approached a
police car in a nearby 7-Eleven parking lot. He reported to Los Angeles Police Officers
Ricardo Izquierdo and Anthony Ramirez what happened two days prior, and told them
that he had just seen appellant. He described appellant‘s appearance and answered a
number of the officers‘ questions. The officers then left the parking lot to look for
appellant. Soon after, the officers stopped appellant on Sherman Way. They called
Gomez to have him meet them in a nearby parking lot to conduct a field identification.
Gomez identified appellant as the man who stole Arisitizabal‘s truck and later shot at
him.
Gomez told Officer Izquierdo the location where appellant fired a gun. Officer
Izquierdo and Officer Ramirez then returned to that location to search for bullet casings
and other evidence. They scanned the area but found no evidence of the shooting or any
reports of gunshots around the time of the shooting.
After appellant was arrested, Officer Izquierdo and a group of Los Angeles police
officers conducted a search of appellant‘s loft located above a mechanic‘s garage on
Coldwater Canyon Avenue. Inside the loft, the officers found a Department of Motor
Vehicles printout containing appellant‘s information. Next to the stairs leading to
appellant‘s loft, they found a large toolbox containing approximately 1,000 rounds of
ammunition. According to Officer Izquierdo, most of the rounds found in the toolbox
could be used in a semiautomatic firearm. They did not find a firearm.

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 Kenny Davison, a witness for the defense and sublessee of the mechanic‘s garage,
testified that he had hired appellant and appellant had been staying in the upstairs loft
since the beginning of August 2011. Davison used the garage to conduct his business as
an automobile and motorcycle repair shop, but appellant was the only person who lived at
that location. Davison subleased the garage and loft from George Harris, who owned a
number of items in the garage, including the toolbox containing the ammunition.
Davison did not know whether Harris left the toolbox unlocked but he testified that
anyone who entered the garage had access to it. Davison admitted he had three prior
felony convictions.
PROCEDURAL BACKGROUND
Appellant was charged with carjacking in violation of section 215, subdivision (a)
(count 1); assault with a semiautomatic firearm in violation of section 245, subdivision
(b) (count 2); possession of a firearm by a felon in violation of former section 12021,
subdivision (a)(1) (count 3); grand theft of an automobile with a prior conviction in
violation of section 666.5 (count 4); unlawful driving or taking of a vehicle with a prior
conviction of section 666.5 (count 5); and possession of ammunition by a felon in
violation of former section 12316, subdivision (b)(1) (count 6).
As to count 1, the information alleged that appellant personally and intentionally
used and discharged a firearm, a handgun, within the meaning of section 12022.53,
subdivisions (b) and (c). As to counts 2, 4, and 5, the information alleged that in the
commission of these offenses, appellant used a firearm, a handgun, within the meaning of
section 12022.5, subdivision (a).
The information also alleged prior felony convictions as to counts 1 and 2
pursuant to section 667, subdivision (a)(1), section 667, subdivisions (b) through (i),
section 1170.12, subdivisions (a) through (d), and section 1203, subdivision (e)(4). It
alleged appellant had suffered three prior felony convictions for which he had served
separate prison terms pursuant to section 667.5, subdivision (a). As to counts 3 through
6, the information alleged prior felony convictions pursuant to section 667, subdivisions

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(b) through (i), section 1170.12, subdivisions (a) through (d), and section 1203,
subdivision (e)(4).
Prior to trial appellant admitted the prior convictions alleged in counts 3 through 6
The jury found appellant guilty on all counts and found true the special allegations
under former section 12022.5, subdivision (a) and former section 12022.53, subdivision
(c). In a bifurcated trial, the trial court found true the prior conviction allegations within
the meaning of section 667, subdivisions (a)(1), (b) through (i), section 1170.12, and the
prior prison term allegations pursuant to section 667.5, subdivision (b).
The trial court imposed an aggregate sentence of 46 years and 4 months in prison.
Appellant received 200 days of presentence custody and conduct credit.
DISCUSSION
I. Sufficient Evidence Supports Appellant’s Carjacking Conviction
Appellant first contends there was insufficient evidence to support his carjacking
conviction under section 215, subdivision (a). We agree.
―When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.‖ (People v. Avila (2009) 46 Cal.4th 680,
701.) In determining whether there was sufficient evidence to support a jury‘s finding,
we must determine whether, after reviewing the entire record in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. (Ibid.) We neither reweigh evidence nor reevaluate
the credibility of witnesses. (People v. Linbderg (2008) 45 Cal.4th 1, 27.) ―This standard
applies whether direct or circumstantial evidence is involved.‖ (People v. Avila, supra,
46 Cal.4th at p. 701.)
Appellant contends the evidence adduced at trial could not sustain his carjacking
conviction. To be convicted of carjacking under section 215, subdivision (a), the accused
must take ―a motor vehicle in the possession of another, from his or her person or

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immediate presence . . . against his or her will and with the intent to either permanently or
temporarily deprive the person . . . of his or her possession, accomplished by means of
force or fear.‖ (§ 215, subd. (a).) Appellant asserts his carjacking conviction must be
overturned because Gomez did not have actual or constructive possession of the truck,
and therefore, could not be a proper victim of carjacking.
A conviction for carjacking requires that the accused take the stolen vehicle from a
person who was in some sense in possession of that vehicle. (People v. Scott (2009) 45
Cal.4th 743, 749; see also People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131 [―While a
distinct crime from robbery, the elements and statutory language of carjacking are
analogous to those of robbery, and the ‗taking‘ language of the carjacking statute is
framed in identical language to the robbery statute‖].) Therefore, a person from whose
immediate presence the vehicle was taken is not a proper carjacking victim unless he was
in possession of the vehicle. (People v. Scott, supra, 45 Cal.4th at p. 749.) However,
neither ownership nor physical possession is required to establish the element of
possession for the purposes of the carjacking statute. (Ibid.) Constructive possession is
sufficient to establish this element. (Id. at pp. 749-750.)
―[A] person who has the right to control property has constructive possession of
it.‖ (People v. Scott, supra, 45 Cal.4th at p. 750.) Generally, courts have required that
the alleged victim of the carjacking or robbery have a ―special relationship‖ with the
owner of the property such that the alleged victim had authority or responsibility to
protect the stolen property on behalf of the owner. (Ibid.)
Appellant contends that Gomez did not have constructive possession of
Aristizabal‘s truck at the time appellant fired his gun at Gomez. Appellant relies on two
cases, People v. Galoia (1994) 31 Cal.App.4th 595, and Sykes v. Superior Court (1998)
30 Cal.App.4th 479.
In Galoia, Steadman, the alleged victim, owned a number of video games located
inside a convenience store. (People v. Galoia, supra, 31 Cal.App.4th at p. 597.) While
Steadman was inside the store collecting money from his games, the defendant stole a
number of items from the store, including a pack of beer and a pack of cigarettes. (Id. at

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pp. 596-597.) Without being asked for help by the store‘s owner, or any of its
employees, Steadman gave chase to the defendant. (Id. at pp. 597-598.) Outside the
store, he asked the defendant to stop. (Id. at p. 597.) The defendant told Steadman he
was going to ―kick his ass.‖ (Ibid.) Steadman responded, ―come on‖ and was then hit
from behind by the defendant‘s companion. (Ibid.)
There, the court held Steadman was not a proper victim of robbery. (Ibid.) The
court emphasized the fact that Steadman was neither the owner, nor an employee, of the
store, and that neither the store owner, nor the store employees, asked Steadman for help.
(Id. at pp. 597-598 [―Steadman was not an employee or agent of the convenience store
. . . [and] no one from the store instructed Steadman to give chase, and there is no
evidence Steadman was motivated by anything other than good citizenship‖].) Rather,
Steadman merely acted as a ―Good Samaritan,‖ which California law does not recognize
as creating a sufficient relationship with the property‘s owner for purposes of robbery and
carjacking. (Ibid.; see also People v. Sykes, supra, 30 Cal.App.4th at p. 484.)
In Sykes, the court held that a security guard who worked for a business located
across the street from the burglarized store was not a proper victim for purposes of the
robbery statute. (People v. Sykes, supra, 30 Cal.App.4th at pp. 480-484.) There, two
security guards employed by the business across the street from the burglarized store
witnessed the defendant steal a saxophone from that store. (Id. at p. 481.) One security
guard witnessed the defendant break into the store. (Ibid.) A second security guard
witnessed the defendant leave the store with the saxophone. (Ibid.) The second security
guard approached the defendant and told him to ―halt.‖ (Ibid.) The defendant
approached the security guard and the security guard drew his revolver. (Ibid.) The
defendant then turned and ran. (Ibid.) The security guard eventually caught the
defendant and recovered the saxophone. (Ibid.) During the pursuit and ensuing struggle,
the security guard suffered minor wounds. (Ibid.)
The court held the security guard was not a proper victim of robbery because he
was not an employee of the burglarized store. (People v. Sykes, supra, 30 Cal.App.4th at
p. 484.) Rather, the security guard was merely acting as a neighbor and good citizen

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seeking to catch a criminal. (Ibid.) The security guard was neither employed, nor
directed to help, by the storeowner. (Id. at p. 481.) The security guard acted on his own
volition and was never granted implied authority to recover the store‘s property. (Id. at
pp. 481-484.) There was no special relationship between the security guard and the
storeowner sufficient to give the security guard constructive possession over the stolen
property. (Id. at p. 484.)
The People rely on People v. Bekele (1995) 33 Cal.App.4th 1457, disapproved on
another point in People v. Rodriguez (1999) 20 Cal.4th 1, 13-14, to support their
contention that Gomez was a proper victim for purposes of the carjacking statute. In
Bekele, a man named Jump and his coworker were driving a front-end loader during the
course of their employment when one of them, Jump, spotted the defendant burglarizing
his truck. (People v. Bekele, supra, 33 Cal.App.4th at pp. 1459-1460.) Jump said to his
coworker, ―Let‘s stop . . . [t]here is somebody in my truck.‖ (Ibid.) The defendant
emerged on the side the coworker approached from. (Ibid.) Both men told the defendant
to stop. The defendant ran off and the coworker chased after him. The defendant then
pulled a gun from his jacket, pointed it at the coworker and said, ―Don‘t.‖ (Ibid.)
The court in Bekele held the coworker was a proper victim for purposes of the
robbery statute. (People v. Bekele, supra, 33 Cal.App.4th at p. 1462.) The court
recognized, ―[a] person must have an ownership interest in the property taken, or some
representative capacity with respect to the owner of the property taken . . . for the taking
of the property to constitute a robbery.‖ (Ibid.) The court found the coworker had a
representative capacity with respect to Jump‘s property because he had implied authority
to help prevent the robbery. (Ibid.) There, Jump saying, ―Let‘s stop,‖ and the two of
them subsequently pursuing the defendant at the same time led to the implication that
Jump wanted the coworker to help protect his property. (Ibid.) This call for help gave
rise to the coworker‘s implied authority to protect Jump‘s property, which created a
sufficient special relationship for purposes of the burglary statute. (Ibid.)
Here, Aristizabal never asked nor instructed Gomez for help. He merely
exclaimed that his truck was being taken. Gomez, a friend, but not a coworker, was

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acting as a good citizen but did not have a special relationship necessary to establish
constructive possession. We therefore reverse the carjacking conviction.
II. Sufficient Evidence Supports Appellant’s Semiautomatic Firearm Conviction
Appellant next contends there was insufficient evidence to show that he fired a
semiautomatic firearm. Section 17140 defines a ―semiautomatic pistol‖ as a ―pistol with
an operating mode that uses the energy of the explosive in a fixed cartridge to extract a
fired cartridge and chamber a fresh cartridge with each single pull of the trigger.‖ In
challenging the jury‘s finding that he used a semiautomatic firearm, appellant makes the
following arguments: (1) the weapon was fired only once; (2) Gomez, the only
eyewitness, merely testified that the gun was not a revolver and that it had a silver
handle; (3) Gomez had never held a gun before, and was only familiar with them through
movies; (4) although there was semiautomatic ammunition found outside appellant‘s
living quarters, there was no evidence that appellant actually fired a semiautomatic pistol;
and (5) no casings from the gun were found at the scene of the shooting or in
Aristizabal‘s truck. Appellant‘s challenge lacks merit.
In California, the trier of fact, not the appellate court, weighs evidence and
determines a witness‘s credibility. (People v. Linbderg, supra, 45 Cal.4th at p. 27.)
Therefore, on appeal, this court cannot reweigh evidence or reevaluate the credibility of a
witness. (Ibid.) Appellant merely challenges the weight of the evidence—the lack of
casings found at the scene of the shooting and Gomez‘s description of the weapon—and
the credibility of the witness—the extent of Gomez‘s familiarity with guns.
The testimony of a lay witness is sufficient to establish the nature of a firearm.
(People v. Haynes (1984) 160 Cal.App.3d 1122, 1136, fn. 7.) Here, there was sufficient
evidence from which the jury could have found beyond a reasonable doubt that appellant
used a semiautomatic firearm to shoot at Gomez. (See People v. Avila, supra, 46 Cal.4th
at p. 701.) Gomez testified that appellant shot at him with an ―automatic‖ firearm. He
believed this was so because he could tell the gun was not a revolver. Additionally, the
police found hundreds of semiautomatic rounds of ammunition in an unlocked toolbox
directly outside of appellant‘s living quarters. Further, appellant offered no evidence at

10
trial to contradict the conclusion that he used a semiautomatic firearm, and his trial
counsel did not cross-examine Gomez about the gun. Therefore, there was substantial
evidence from which the jury could have concluded beyond a reasonable doubt that
appellant used a semiautomatic firearm when he shot at Gomez. (See People v. Avila,
supra, 46 Cal.4th at p. 701.)
III. The Trial Court’s Decision To Not Instruct the Jury on the Lesser Offense of
Assault with a Firearm Was Not Error
Appellant alleges the trial court prejudicially erred when it did not instruct the jury
on assault with a firearm as a lesser necessarily included offense of assault with an
automatic firearm.
―A trial court has a sua sponte obligation to instruct the jury on any uncharged
offense that is lesser than, and included in, a greater charged offense, but only if there is
substantial evidence supporting a jury determination that the defendant was in fact guilty
only of the lesser offense.‖ (People v. Parson (2008) 44 Cal.4th 332, 348-349.) ―An
uncharged offense is included in a greater charged offense if either (1) the greater
offense, as defined by statute, cannot be committed without also committing the lesser
(the elements test), or (2) the language of the accusatory pleading encompasses all the
elements of the lesser offense (the accusatory pleading test).‖ (Ibid.; italics in original.)
Because there is no substantial evidence in the record to show the jury would have
convicted appellant of only the lesser firearm charge had it been instructed on it, the trial
court did not err.
As indicated above, there is substantial evidence to show appellant used a
semiautomatic firearm when he fired at Gomez. Gomez, the only eyewitness, testified
that appellant fired at him with an ―automatic‖ handgun. The prosecution also presented
evidence showing that appellant had easy access to a large amount of semiautomatic
ammunition. Appellant never contradicted this evidence at trial. Nor was there any
evidence that another type of gun was used or recovered. (People v. Breverman (1998)
19 Cal.4th 142, 155 [a trial court has no obligation to instruct on a lesser-included offense

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when there is no evidence that the offense was less than that charged].) In light of the
lack of sufficient evidence that the crime was less than that charged, there was no error.
IV. Appellant’s Conviction for Unlawfully Driving or Taking a Vehicle Must Be
Reversed
Appellant contends, and the People agree, that the conviction for unlawfully
driving or taking a vehicle must be reversed. ―In California, a single act or course of
conduct by a defendant can lead to convictions ‗of any number of the offenses charged.‘‖
(People v. Montoya (2004) 33 Cal.4th 1031, 1034.) However, ―a judicially created
exception to this rule prohibits multiple convictions based on necessarily included
offenses.‖ (Ibid.) ―If a crime cannot be committed without also necessarily committing a
lesser offense, the latter is a lesser included offense within the former.‖ (People v. Reed
(2006) 38 Cal.4th 1224, 1227.)
Under California law, unlawful driving of a vehicle under Vehicle Code section
10851 is a lesser-included offense of grand theft of an automobile under section 487.
(People v. Barrick (1982) 33 Cal.3d 115, 128; People v. Buss (1980) 102 Cal.App.3d
781, 784.) Therefore, it was error to convict appellant of both offenses. Appellant‘s
conviction for unlawful driving of a vehicle in count 5 is reversed.
V. Sentencing
The court sentenced appellant as follows:
On count 1, the carjacking, imposed the high term of nine years, doubled it
pursuant to the strike prior for 18 years, and added a 20-year consecutive term pursuant to
section 12022.53, subdivision (c) for a total of 38 years. Then it added a consecutive
term of five years for the section 667, subdivision (a)(1) prior, for a total of 43 years.
On count 2, the assault with a firearm, it sentenced appellant to 33 years to run
concurrent to count 1. The 33 years was computed as follows: a high term of nine years,
doubled for the prior felony strike to 18 years, a high term of 10 years for the section
12022.5, subdivision (a) enhancement, for a total of 28 years, plus five years pursuant to
the section 667, subdivision (a)(1) prior, for a total of 33 years.

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 On count 3, the possession of a firearm by a felon, the court imposed a
consecutive term of one year, four months. This was computed by taking one-third the
mid-term (8 months), doubled for the strike prior to equal one year, four months.
On count 4, grand theft, the court imposed a two-year consecutive term, consisting
of one-third of the mid-term (one year), doubled for the strike prior, to equal two years.
On count 5, the unlawful taking of a vehicle, the court sentenced appellant to two
years stayed, computed by taking one-third the mid-term (one year), doubled for the
strike prior.
On count 6, the possession of ammunition, the court imposed a concurrent term of
two years.
The total sentence imposed was 46 years four months.
Appellant raises several contentions with respect to sentencing.
A. Section 654
Section 654 bars multiple punishment for multiple acts where those acts constitute
an indivisible course of conduct with a single criminal objective and intent. (People v.
Latimer (1993) 5 Cal.4th 1203, 1208.) Whether there was a single course of conduct is a
question of fact for the trial court and we uphold its findings on appeal when they are
supported by substantial evidence, viewing the evidence in the light most favorable to the
prosecution. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Appellant presents two separate questions with respect to section 654. First,
whether the auto theft was a separate event from the carjacking, and second, whether an
assault with the firearm could be imposed in addition to the carjacking count. Because
we have determined that the carjacking count should be reversed we need not address
these contentions.
B. The Stay of the Sentence for Possession of Ammunition by a Felon
Pursuant to Section 654
Appellant asserts the trial court stayed his sentence on count 6 for possession of
ammunition by a felon pursuant to section 654, and therefore, the abstract of judgment
and the clerk‘s minutes must be corrected to reflect the stay. The People contend the

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record is unclear and does not indicate whether the sentencing judge intended to stay
appellant‘s conviction for possession of ammunition by a felon.
At the sentencing hearing, the trial court stated: ―Count six, the court already
deemed as being 654 . . . I said concurrent. Even though I found it to be a 654 in the
12022.53(c) or the 12022.5, I sentenced it concurrent in case I am incorrect on the 654
issue.‖
There was no affirmative evidence of appellant‘s ownership of the multiple rounds
of ammunition in the garage toolbox. As for the ammunition used in the shooting, there
is no justification for the imposition of a separate sentence. (People v. Lopez (2004) 119
Cal.App.4th 132, 138 [―To allow multiple punishment for possessing ammunition in a
firearm would, in our judgment, parse the [defendant‘s] objectives too finely‖].)
Therefore, on remand, the court should stay appellant‘s sentence on count 6 pursuant to
section 654.
C. Imposition of the Upper Term
Appellant next contends the trial court abused its discretion when it found no
mitigating circumstances in determining his sentence. In determining the sentence, the
trial court had before it the details of the present case, appellant‘s criminal history (three
prior convictions), and both parties‘ sentencing memoranda. (See § 1170, subd. (b) [in
determining the appropriate sentence, the court may consider the record in the case,
reports about the defendant, statements in aggravation or mitigation submitted by the
prosecution or the defendant, and any further evidence introduced at the sentencing
hearing].) After hearing arguments from the prosecution and the defense, the trial court
explained its sentencing decision. It stated:

I looked at this case and just could not, once again, understand, based on
your record, based on everything else – to me, everything in your life
appears to be either drug driven or close. And taking this truck is a crime
of opportunity. Don‘t believe that you were hanging out at the panaderia
waiting to get somebody in a bakery truck and that you were taking the
bakery truck to survive based on the load of the bakery truck . . . .
Thinking about how Mr. Gomez, on behalf of his friend, chased you down

14
 through the streets, got up to your car, took a good look, and then wet his
pants upon receiving a shot from a pistol that you possessed. . . . It was
absolutely scary for him, because one never knows. A bullet going through
someone is not as pretty as the movies or television make it . . . . [L]ooking
at this case, I can’t find anything that would be a factor in mitigation. I
looked. I did think very seriously, long and hard on count one, because it
was an unusual circumstance . . . had it not been for the use of the weapon
and the manner in which it was used, I would have been satisfied that this
was a mid term case. Even if it was just used to scare someone away, the
fact that a weapon was fired and fired in the direction of Mr. Gomez, it took
it from that mid term to a high term. (Italics added.)

The court also referred to the sentencing memoranda filed by the parties.
Appellant contends the court erred because it did not consider his mental health
history as a mitigating fact. We also note the court relied on appellant‘s use of a firearm
to both aggravate and enhance the sentence on the primary count, the carjacking.
However, we are reversing the conviction for carjacking and therefore must remand the
matter for resentencing on that count.
D. The Minute Order and Abstract of Judgment Should Be Modified to Reflect
the Fines that the Trial Court Imposed Orally
At the sentencing hearing on February 22, 2012, the judge orally imposed a
mandatory restitution fine of $200 pursuant to section 1202.4, subdivision (b), and a
parole revocation fine of $200 pursuant to section 1202.45. However, the abstract of
judgment and sentencing minutes reflect a mandatory restitution fine of $240, and a
parole revocation fine of $240.
Both parties agree that the minute order and abstract of judgment should be
modified to reflect the fines that the trial court imposed orally.
―An abstract of judgment is not the judgment of conviction; it does not control if
different from the trial court‘s oral judgment and may not add to or modify the judgment
it purports to digest or summarize.‖ (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
―Where there is a discrepancy between the oral pronouncement of judgment and the
minute order or the abstract of judgment, the oral pronouncement controls.‖ (People v.

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Zackery (2007) 147 Cal.App.4th 380, 385.) Here, the trial court‘s oral pronouncement of
the $200 restitution and parole revocation fines controls. Therefore, the abstract of
judgment should be amended to reflect a mandatory restitution fine of $200 and a parole
revocation fine of $200.
DISPOSITION
The convictions on count 1 and count 5 are reversed and the sentences on those
counts are stricken. The convictions on the remaining counts are affirmed. We remand
the matter for resentencing in accordance with the directions set forth in this opinion.
The clerk of the superior court is directed to prepare an amended abstract of
judgment and forward a copy to the Department of Corrections and Rehabilitation.

WOODS, J.

We concur:

PERLUSS, P. J. ZELON, J.

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