People v. Vigil CA2/4 ( 2020 )

Filed 12/17/20 P. v. Vigil CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(a). This
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B298543
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA117978
v.
AARON ANTHONY VIGIL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed.
William J. Capriola, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Attorney General, Noah P. Hill and Steven E. Mercer
Patterson, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted defendant and appellant Aaron Vigil of
three felon in possession of a firearm charges and one felon in
possession of ammunition charge. The trial court sentenced Vigil
to consecutive terms on the firearm convictions and a two-year
term for the ammunition conviction to be served concurrently. On
appeal, Vigil contends his concurrent term for the ammunition
conviction should have been stayed pursuant to Penal Code
section 654 because he had a single intent and objective in
possessing the firearms and ammunition.1 We disagree with Vigil
and affirm.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed a complaint
charging Vigil with eight felony counts: three counts of felon in
possession of a firearm (§ 29800, subd. (a)(1); counts 3-5), one
count of felon in possession of ammunition (§ 30305, subd. (a)(1);
count 6); two counts of making criminal threats (§ 422, subd. (a);
counts 7 & 8); and two counts of threatening a public officer
(§ 71; counts 9 & 10). Concerning all counts, the information
alleged Vigil committed the acts for the benefit of, at the direction
of, and in association with a criminal street gang with the specific
intent to promote, further and assist in criminal conduct by gang
members. (§ 186.22, subd. (b)(1)(A).) The complaint also alleged
that Vigil suffered a prior conviction – a violation of section 245,
subdivision (a)(1) in 2000 – that qualified as both a prior serious
1 All undesignated statutory references are to the Penal
Code.
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felony conviction (§ 667, subd. (a)(1)) and a strike prior (§§ 667,
subds. (b)-(i),1170.12).
As noted above, a jury found Vigil guilty of the three felon
in possession of a firearm charges (counts 3-5), and one felon in
possession of ammunition charge (count 6). The jury found Vigil
not guilty of the two criminal threat charges (counts 7 and 8), and
found all the gang allegations to be not true. In a bifurcated
proceeding, Vigil admitted the prior conviction allegations. The
trial court sentenced Vigil to state prison for two years and eight
months, to be served consecutively to his 22-year sentence in a
companion case. Vigil timely appealed.
FACTUAL BACKGROUND
I. Prosecution Evidence
In April 2018, police responded to possible gunfire at a two-
story building in Asuza. Vigil’s barbershop was located on the top
floor of the building and was accessible by a single stairwell.
Upon arrival, police observed bullet strikes on the front of the
barbershop. Surveillance video from the exterior of the building
showed Vigil and another individual, Michaels, descending the
stairway at 2:52 a.m. In the video, both were holding semi-
automatic handguns. Vigil’s gun was black. Michaels’ was two-
toned. At the time, both Vigil and Michaels were convicted felons.
Later that day, police executed a search warrant of Vigil’s
barbershop. At the time the warrant was executed, Vigil and
three others were present. Police uncovered three firearms and
ammunition in a drawer of a metal toolbox. The firearms
included: (1) a two-toned, nine-millimeter Smith & Wesson semi-
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automatic handgun; (2) a black, .40 caliber Glock semi-automatic
handgun; and (3) a .38 Special revolver. All of the guns were
loaded and appeared to be in working order. The black Glock and
the Smith & Wesson were consistent with the guns Vigil and
Michaels held in the surveillance video, respectively. The toolbox
also contained additional rounds of .40 caliber and nine-
millimeter ammunition. The .40 caliber ammunition was
compatible with the black Glock, and the nine-millimeter
ammunition was compatible with the two-toned Smith & Wesson.
II. Defense Evidence
Vigil testified that he and Michaels were cleaning the
barbershop when they heard gunfire and dropped to the ground.
After the shooting stopped, Vigil removed two guns from the
toolbox, gave one to Michaels, and they both went out onto the
stairway. Vigil testified that he armed himself because he feared
for his life and the lives of others in the barbershop. Vigil
admitted the guns were his and claimed he obtained them after
two people in his community were killed in a shooting a few
blocks from his barbershop. Because he was a convicted felon,
Vigil purchased the guns illegally.
DISCUSSION
Vigil was convicted of unlawful possession of a nine-
millimeter Smith & Wesson handgun (count 3), a .40-caliber
Glock handgun (count 4), and a .38 caliber revolver (count 5), and
unlawful possession of ammunition (count 6). The trial court
sentenced Vigil to consecutive 16-month terms on counts 3 and 4,
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and concurrent two-year terms on counts 5 and 6. On appeal,
Vigil alleges the court improperly ordered a concurrent sentence
for the felon in possession of ammunition conviction. Specifically,
Vigil argues the two-year concurrent sentence on the unlawful
possession of ammunition conviction, count six, should have been
stayed pursuant to section 654 because there was no evidence he
had an intent and objective in possessing the guns that was
separate from his possession of the ammunition. Instead, Vigil
argues, he had a single intent and objective in possessing the
firearms and the ammunition for them.
Pursuant to section 654, subdivision (a), “[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 . . . .” “Section 654 precludes multiple punishment for a
single act or for a course of conduct comprising indivisible acts.”
(People v. Evers (1992) 10 Cal.App.4th 588, 602.) “‘Whether a
course of criminal conduct is divisible . . . depends on the intent
and objective of the actor.’ [Citations.]” (Ibid.) “‘“If all the offenses
were merely incidental to, or were the means of accomplishing or
facilitating one objective, [the] defendant may be found to have
harbored a single intent and therefore may be punished only
once.” [Citation.]’ [Citation.]” (People v. Spirlin (2000) 81
Cal.App.4th 119, 129.) “If, however, the defendant had multiple
or simultaneous objectives, independent of and not merely
incidental to each other, the defendant may be punished for each
violation committed in pursuit of each objective even though the
violations share common acts or were parts of an otherwise
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indivisible course of conduct. [Citation.]” (People v. Cleveland
(2001) 87 Cal.App.4th 263, 267-268.)
“Whether section 654 applies in a given case is a question
of fact for the trial court, which is vested with broad latitude in
making its determination. [Citations.] Its findings will not be
reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in
the light most favorable to the respondent and presume the
existence of every fact the trial court could reasonably deduce
from the evidence. [Citation.]” (People v. Jones (2002) 103
Cal.App.4th 1139, 1143.)
While there are some instances where multiple punishment
is lawful for possession of a firearm and ammunition, multiple
punishment is prohibited when an “indivisible course of conduct”
is present. (People v. Lopez (2004) 119 Cal.App.4th 132, 138
(Lopez).) For example, when ammunition is loaded into a firearm,
section 654 precludes multiple punishment. (Ibid.) Similarly,
when ammunition is either loaded into a gun or fired from a gun,
a defendant does not have” different or multiple objectives” in
possessing the gun and the ammunition. (People v. Sok, (2010)
181 Cal.App.4th 88, 100 (Sok).)
Unlike the defendants in Lopez and Sok, however, Vigil
possessed both ammunition loaded into the guns as well as
additional ammunition not loaded into any weapon. As the trial
court described it, Vigil “had a cache of firearms and
ammunition” stored in a clearly accessible location. These are
possession crimes, and the jury concluded Vigil intended to
possess both firearms and ammunition. Vigil’s acquisition of
several guns plus separate ammunition shows he harbored
multiple objectives: possessing firearms and possessing
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additional ammunition for those firearms. Because the additional
ammunition was not loaded into the guns, the trial court was
permitted to conclude its possession was not incidental to the act
of possessing the guns. Thus there is substantial evidence from
which the trial court could conclude Vigil harbored a separate
intent to possess the additional ammunition. We therefore
conclude the trial court did not stray beyond its broad latitude
when it declined to apply section 654 to stay Vigil’s sentence on
the possession of ammunition conviction, and instead ordered it
to run concurrently.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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