P. v. Sult CA4/2 ( 2013 )

Filed 8/8/13 P. v. Sult 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E055060
v. (Super.Ct.No. FSB1000973)
JAMES JESSE SULT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Daniel G. Koryn, 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, Melissa Mandel and Marissa
Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
1
On March 26, 2010, the San Bernardino County District Attorney filed an
information charging defendant and appellant James Jesse Sult with second degree
robbery (Pen. Code, § 211, counts 1, 11-12, & 20), first degree residential robbery (Pen.
Code, § 211, counts 2 & 3), possession of a firearm by a felon with a prior conviction
(former Pen. Code, § 12021, subd. (a)(1) [now § 29800, subd. (a)(1) (Stats. 2010,
ch. 711, § 6)],1 counts 4, 8, 14, & 21)2, first degree burglary with a person present (Pen.
Code, § 459, counts 5, 13, & 15), attempted carjacking (Pen. Code, §§ 664/215, subd. (a),
count 6), assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 7), attempted first
degree residential robbery (Pen. Code, §§ 664/211, counts 9 & 10), unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a), count 16), evading an officer (Veh.
Code, § 2800.2, subd. (a), count 17), assault upon a peace officer (§ 245, subd. (c), counts
18 & 19), and possession of a controlled substance (Health & Saf. Code, § 11377,
subd. (a), count 22). As to counts 1-3, 6, 9-12, and 20, the information alleged that
defendant personally used a firearm, within the meaning of Penal Code section 12022.53,
subdivision (b). As to counts 5, 7, 13, 15, and 16, the information alleged that defendant
personally used a firearm, within the meaning of Penal Code sections 1203.06,
1 See People v. Jones (2012) 54 Cal.4th 350, 352.
2 To be consistent with the parties’ briefs, and for the sake of clarity, we will
simply refer to former section 12021 as section 12021 in this opinion.
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subdivision (a)(1), and 12022.5, subdivision (a). The information also alleged that
defendant served two prior prison terms. (Pen. Code, § 667.5, subd. (b).)3
Defendant pled guilty to all counts and enhancements. A trial court sentenced
defendant to a total sentence of 38 years 10 months,4 as follows: as to the principal term
in count 2, the upper term of six years, plus a consecutive 10 years for the firearm use
enhancement; as to count 1, a consecutive one year, plus a consecutive three years four
months on the firearm use enhancement; on count 6, a consecutive 10 months, plus three
years four months on the firearm use enhancement;5 as to count 9, a consecutive eight
months, plus three years four months on the firearm use enhancement; as to count 15, a
consecutive one year four months, plus one year four months on the firearm use
enhancement; as to count 18, a consecutive one year four months; and, as to count 20, a
consecutive one year, plus three years four months on the firearm use enhancement. As
to counts 3, 10-14, 19, 21-22 and their enhancements, the court imposed concurrent
3 All further statutory references will be to the Penal Code, unless otherwise
noted.
4The court announced that the total term imposed was 39 years 10 months.
However, the terms imposed actually added up to 38 years 10 months. We note that the
clerk’s transcript and the abstract of judgment correctly state that the total term imposed
was 38 years 10 months.
5The court erroneously referred to the attempted carjacking conviction as count
3. It is count 6.
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terms. As to the remaining counts, the court imposed but stayed their sentences pursuant
to section 654.6 The court also imposed two 1-year terms for the prison priors.
On appeal, defendant contends (1) the trial court abused its discretion in imposing
the upper term on count 2, and (2) the court should have stayed the sentence on count 14
under section 654. We affirm.
FACTUAL BACKGROUND
Defendant pled guilty to all counts, thereby admitting that, from the period of
February 18, 2010 through March 9, 2010, he committed four counts of second degree
robbery (Pen. Code, § 211, counts 1, 11-12, & 20), two counts of first degree residential
robbery (Pen. Code, § 211, counts 2 & 3), four counts of possession of a firearm by a
felon with a prior conviction (Pen. Code, § 12021, subd. (a)(1), counts 4, 8, 14, & 21),
three counts of first degree burglary with a person present (Pen. Code, § 459, counts 5,
13, & 15), attempted carjacking (Pen. Code, §§ 664/215, subd. (a), count 6), assault with
a firearm (Pen. Code, § 245, subd. (a)(2), count 7), two counts of attempted first degree
residential robbery (Pen. Code, §§ 664/211, counts 9 & 10), unlawful driving or taking of
a vehicle (Veh. Code, § 10851, subd. (a), count 16), evading an officer (Veh. Code,
§ 2800.2, subd. (a), count 17), two counts of assault upon a peace officer (Pen. Code,
§ 245, subd. (c), counts 18 & 19), and possession of a controlled substance (Health &
Saf. Code, § 11377, subd. (a), count 22).
6 We note that the court included counts 13 and 14 again when it announced the
counts to which it was going to apply section 654. The court apparently erred in doing
so. (See § II., post.)
4
ANALYSIS
I. The Trial Court Properly Imposed the Upper Term on Count 2
Defendant argues the court improperly imposed the upper term on count 2, since
the court relied on improper factors, and the aggravating factors did not outweigh the
mitigating factors. We conclude that the court properly sentenced defendant to the upper
term.
A. Standard of Review
“‘Sentencing courts have wide discretion in weighing aggravating and mitigating
factors [citations], and may balance them against each other in “qualitative as well as
quantitative terms” [citation] . . . . We must affirm unless there is a clear showing the
sentence choice was arbitrary or irrational.’ [Citation.]” (People v. Avalos (1996) 47
Cal.App.4th 1569, 1582.)
B. Factual Background
Defendant pled guilty to first degree residential robbery (§ 211) in count 2. The
victim of this offense was Dianne Crowther (the victim). She presented a victim impact
statement at the sentencing hearing. She said she was 66 years old, and her husband was
74 years old. On February 21, 2010, they sat down to watch television when their dogs
started to bark. They looked up to see a masked man (defendant) standing in their
bedroom about five feet away from them, pointing a large gun at them. Defendant
grabbed her by the arm, pulled her up, and held the gun behind her ear. He demanded
that she and her husband take him to their safe. Defendant continually pointed his gun at
the victim’s husband, directed him to take him to the safe, and asked him to show him
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where his wallet was. Defendant also held the gun at the victim’s temple while he took
money from her purse. Defendant held his gun to the victim’s head for over 15 minutes.
At one point, defendant took the victim and her husband to the closet and had them kneel
down. Defendant “put the gun to the top of [her] head,” and the victim thought he was
going to execute them.
C. The Court Properly Considered the Factors
At the sentencing hearing, the court stated numerous reasons for imposing the
upper term on count 2. The court found that the following aggravating factors applied:
(1) there was a threat of great bodily harm; (2) some of the victims were particularly
vulnerable, based upon their age and circumstances; (3) there was planning; (4) defendant
had prior convictions; (5) he had served prior prison terms; and (6) he was on parole
when the crimes were committed. “[A] court needs only one factor to impose the
aggravated term. [Citation.]” (People v. Kelley (1997) 52 Cal.App.4th 568, 581; see also
People v. Osband (1996) 13 Cal.4th 622, 730.) The court here listed not just one but
several factors that adequately supported the imposition of the aggravated term.
Defendant asserts that the aggravating factors used by the court were: (1) the
threat of great bodily harm; (2) victim vulnerability; and (3) defendant’s prior
convictions. He neglects to mention the three other factors cited by the court. Defendant
proceeds to argue that the court should have disregarded the three factors he asserted. He
states that the first factor relied upon by the court (the threat of great bodily harm) was
based on the fact that he used a weapon during the commission of the robbery in count 2.
He claims the court improperly relied on this factor because he received a separate 10-
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year term on the firearm use. However, the court did not mention the use of a gun in
finding this aggravating factor. Moreover, the record shows that defendant threatened to
kill the victim if she “screw[ed] up” or did not do what he told her to do. Such direct
verbal threats supported the court’s use of the “threat of great bodily harm” aggravating
factor. (People v. Edwards (1981) 117 Cal.App.3d 436, 445-446.)
Defendant next argues that the court improperly relied on victim vulnerability as
an aggravating factor. He claims that the court could not rely on the fact that defendant
committed the robbery against an older victim since “the victim’s age and status as a
robbery victim were already elements of the offense.” He asserts that “by definition, any
victim of a robbery offense is a particularly vulnerable victim.” Defendant cites People
v. Quinones (1988) 202 Cal.App.3d 1154 (Quinones), overruled in part by People v. Soto
(2011) 51 Cal.4th 229, 248, footnote 12, and People v. Alvarado (2001) 87 Cal.App.4th
178 (Alvarado) in support of his position. However, these cases are easily
distinguishable. The defendant in Quinones was convicted of committing a lewd or
lascivious act on a child under the age of 14. (Quinones, at p. 1159; § 288.) Thus, age
was an element of the offense. In Alvarado, the court imposed a sentence enhancement
for a specified offense against a person who was 65 years or older. (Alvarado, at p. 193;
§ 667.9, subd. (a).) Unlike these cases, the victim’s age and vulnerability here are not
elements of robbery. Section 211 only requires a finding of “the felonious taking of
personal property in the possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.”
7
Defendant further contends that the court improperly relied on the factor that he
had suffered prior offenses, since he received enhancements for his two prior prison
terms under section 667.5, subdivision (b). He appears to be claiming that the court made
an improper dual use of facts. However, California Rules of Court, rule 4.421(b)(2),
permits the court to use as an aggravating factor the fact that “[t]he defendant’s prior
convictions as an adult or sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness.” The record here reflects that, excluding the two
prison priors, defendant had suffered six other prior convictions. Thus, the court could
easily establish the aggravated sentence without the prison priors. (See People v.
Bejarano (1981) 114 Cal.App.3d 693, 706.) Moreover, absent an affirmative indication
in the record that the trial court included the prison priors as part of defendant’s criminal
pattern under California Rules of Court, rule 4.421(b)(2), we will not presume they were
so used. (Bejarano, at p. 706.)
Furthermore, contrary to defendant’s contention that the court failed to adequately
consider the mitigating factors, the record reflects that the court took into consideration
all of the factors in aggravation and mitigation as contained in the probation reports,
recommendation report, and the sentencing memo filed on behalf of defendant. We also
note that the court heard and considered defense counsel’s argument regarding mitigating
circumstances.
In view of the numerous aggravating factors, we cannot say that the court’s
decision to impose the upper term on count 2 was arbitrary or irrational. Thus, we must
affirm the court’s decision. (Avalos, supra, 47 Cal.App.4th at p. 1582.)
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II. Section 654 Does Not Apply
The record shows that, when pronouncing judgment, the trial court imposed a
concurrent two-year term on count 14, the felon in possession of a firearm (§ 12021)
conviction. However, the court thereafter stated, “The following counts will be—
sentence will be imposed but stayed under Penal Code section 654.” The court went on
to list the remaining counts and included count 14 again. On appeal, the parties do not
mention that the court announced the sentence on count 14 twice. Rather, both parties
argue as if the court just imposed the term concurrently on count 14. Defendant points
out that the court imposed firearm use enhancements on counts 9 through 13.
(§§ 12022.53, subd. (b), 1203.06, subd. (a)(1), and 12022.5, subd. (a).) He then claims
that the evidence shows he possessed a firearm only in conjunction with counts 9 through
13. Thus, he avers that section 654 barred the sentence on the felon in possession of a
firearm conviction in count 14. The People respond that the court properly sentenced
defendant to the concurrent term on count 14 because it constituted a separate offense
under section 654. Assuming the court misspoke when it listed count 14 among the
sentences to which it applied section 654, as the parties appear to do, we disagree with
defendant that section 654 applied to bar the sentence on that count.7
7 We note that the clerk’s transcript and the abstract of judgment reflect that the
court imposed a sentence on count 14 and ran it concurrent to the principal count. They
do not reflect that the court stayed the sentence on count 14 under section 654. We
further observe that the court similarly imposed the sentence on count 13 concurrently
and then apparently misspoke in listing count 13 among the sentences to which it applied
section 654. The clerk’s transcript and abstract of judgment reflect that the court ran the
[footnote continued on next page]
9
Section 654, subdivision (a), 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
precludes multiple punishments not only for a single act, but also for an indivisible
course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of this
statute is to prevent multiple punishment for a single act or omission, even though that act
or omission violates more than one statute and thus constitutes more than one crime.”
(People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins).)
“The question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them. [Citations.] ‘We must “view the evidence in a
light most favorable to the respondent and presume in support of the [sentencing] order
the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]” [Citation.]’ [Citation.]” (Hutchins, supra, 90 Cal.App.4th at p. 1312.)
Section 12021, subdivision (a), forbids convicted felons from possessing any
firearm. “Whether a violation of section 12021 . . . constitutes a divisible transaction
from the offense in which he employs the weapon depends upon the facts and evidence of
[footnote continued from previous page]
sentence on count 13 concurrent to the principal count, as well. There is no issue on
appeal regarding count 13.
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each individual case. [Citation.] Thus where the evidence shows a possession distinctly
antecedent and separate from the primary offense, punishment on both crimes has been
approved. [Citations.] 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. [Citations.]” (People
v. Venegas (1970) 10 Cal.App.3d 814, 821.)
For example, in People v. Ratcliff (1990) 223 Cal.App.3d 1401 [Fourth Dist., Div.
Two], the defendant was convicted of two counts of robbery with the use of a firearm and
with being a felon in possession of a handgun. (Id. at p. 1404.) He argued that the
firearm use and being a felon in possession of a concealable firearm were “part of a
continuous transaction” and, as a result, the sentence on the felon in possession charge
should have been stayed pursuant to section 654. (Ratcliff, at pp. 1407-1408.) In
analyzing the existing authorities on the issue, this court “distill[ed] the principle that if
the evidence demonstrates at most that fortuitous circumstances put the firearm in the
defendant’s hand only at the instant of committing another offense, section 654 will bar a
separate punishment for the possession of the weapon by an ex-felon.” (Id. at p. 1412.)
This, however, was not such a case. Rather, the evidence showed the defendant used a
handgun to commit the robberies about an hour and a half apart, and that he possessed the
handgun when he arrived at the scene of the first robbery. When he was arrested half an
hour later, he still had the handgun in his possession. (Id. at p. 1413.) We concluded
section 654 did not preclude separate punishments because “[a] justifiable inference from
this evidence is that defendant’s possession of the weapon was not merely simultaneous
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with the robberies, but continued before, during and after those crimes.” (Ratcliff, at
p. 1413.)
Here, there is substantial evidence in the record to support a finding that
defendant’s possession of the handgun was “distinctly antecedent and separate” from the
offenses he committed in counts 9-13. The police report states defendant told a police
detective he purchased a .45-caliber gun, extra magazine, and ammunition for $450 about
six weeks prior to March 6, 2010, the date on which he committed the offenses in counts
9-13. He said he bought the gun for protection. Thus, contrary to defendant’s claim, the
evidence does not show that he possessed the firearm “only in conjunction with” the
offenses in counts 9-13. Rather, it shows that he possessed a firearm for several weeks
before he committed those offenses.
We conclude that the felon in possession offense was independent of and
separable from the offenses defendant committed in count 9-13. Thus, section 654 does
not preclude a separate punishment for this offense.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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