Opinion
F070159
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE G. DELTORO, Defendant and Appellant.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. LF009949A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield, Judge. Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Kane, J. and Peña, J.
-ooOoo-
INTRODUCTION
Defendant Jose G. Deltoro was convicted by jury of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) (count 1) and possession of ammunition by a felon (§ 30305, subd. (a)(1)) (count 2). In a bifurcated proceeding, the trial court found true that defendant suffered two prior strike convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).
Further statutory references are to the Penal Code unless otherwise noted. --------
On count 1, the trial court sentenced defendant to the middle term of two years, doubled for the strikes, for a total determinate term of four years. On count 2, defendant was also sentenced to the middle term of two years, doubled for the strikes, for a total determinate term of four years, to run concurrently with the sentence on count one.
Defendant challenges only his sentence in this appeal. He claims the trial court erred in imposing multiple punishments under section 654, as he was entitled to a jury determination on that issue under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). Given the error under section 654, defendant also claims the trial court's consideration of the concurrent sentences as an aggravating factor was erroneous. We reject both challenges and affirm the judgment.
FACTS
In the early morning hours of March 19, 2014, defendant entered and exited Renegade Truck Stop in Kern County several times. He was agitated and asked employees to call the police, said he had been in a gun battle and tried to give them a Smith & Wesson .357-caliber revolver he took from the waistband of his pants, stating he did not want it. He handed the gun to one of the employees, who put it in a plastic bag and handed it back to him.
Police were called and one of the arriving sheriff's deputies saw defendant place a plastic bag on top of some water bottles in the store. Other deputies recovered the revolver from the bag, and five shell casings and a live ammunition round were recovered from the ground. Defendant was described by different witnesses as wide-eyed, animated, excited, and agitated.
Defendant directed deputies to his van, which he parked on the side of the overpass where Interstate 5 and Highway 99 meet after it ran out of gas. Arriving deputies found one of the doors open, and a .30-06 rifle and some shell casings on the ground. The van had multiple bullet holes in it and inside there was a pillow, bedding and other items suggesting someone was living in it. A partial rifle was found inside, along with a bag of ammunition. Deputies recovered 12 live .38-caliber Special rounds, six live .357-caliber Magnum rounds, two live .22-caliber long rifle rounds, four spent .38-caliber Special shell casings and six spent .357-caliber Magnum shell casings. The spent shell casings were located inside and outside the vehicle, the live .22-caliber rounds were outside the vehicle and the live .38- and .357-caliber rounds were inside the vehicle. None of the ammunition matched the .30-06 rifle found outside the van but the .22-caliber ammunition rounds fit the partial rifle and the .38- and .357-caliber ammunition rounds fit the revolver.
Defendant testified he left Los Angeles on March 18, 2014, in the midafternoon. He was headed to Fresno for supervised visitation with his children. He previously reported his children were being molested by his wife and her friends and before he left Los Angeles, his friend gave him the revolver for protection, along with a bag of ammunition. He testified he had not known the rifle and partial rifle were in the van, which belonged to his wife. He denied living in the van and said he lived at the shop where he worked. The van was parked at the shop, and he and his coworkers used it for storage.
He stated he noticed a brown sedan following him and after unsuccessfully trying to ditch it, he turned around and headed back toward Los Angeles, fearing for his safety. He testified he ran out of gas and got a ride to a gas station. As he was returning to his van with a container of gas, he heard a voice he thought was his wife's screaming to run and he saw a man with a gun coming. He dropped the gas container and his jacket, and ran for his van. He testified the man was shooting at him and he described a gun battle with multiple men. He fired back and after trying to seek shelter in and around his van, he ran into the surrounding fields. Eventually he found his way to the truck stop, where he sought help. He tried to empty the revolver's bullets into the trash can but they ended up on the ground and as deputies arrived, he put the gun in a bag employees gave him and put it on the water bottles.
On rebuttal, a Fresno County Sheriff's Lieutenant testified defendant contacted the sheriff's department on February 7, 2014, and reported his children were being sexually abused. An incident report was filed but following investigation by detectives, the lieutenant concluded the allegations were unfounded. Defendant provided authorities with audio and video recordings, but they contained nothing substantiating his allegations.
DISCUSSION
I. Imposition of Multiple Punishments in Absence of Factual Determination by Jury
A. Standard of Review
Section 654, subdivision (a), provides 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." The statute "'prohibits multiple punishment for the same "act or omission,"'" and requires the trial court to "'stay execution of sentence on the convictions for which multiple punishment is prohibited.'" (People v. Correa (2012) 54 Cal.4th 331, 337; accord, People v. Kelly (2016) 245 Cal.App.4th 1119, 1130.) Its purpose "is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Correa, supra, at p. 341; accord, People v. Kelly, supra, at pp. 1130-1131.)
"'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation.] '"The defendant's intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced."'" (People v. Capistrano (2014) 59 Cal.4th 830, 886; accord, People v. Deegan (2016) 247 Cal.App.4th 532, 541-542, 545 (Deegan).)
"We review under the substantial-evidence standard the court's factual finding, implicit or explicit, of whether there was a single criminal act or a course of conduct with a single criminal objective." (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603; accord, Deegan, supra, 247 Cal.App.4th at p. 545 & fn. 4.) "[W]e review the trial court's conclusions of law de novo." (People v. Moseley, supra, at 1603.)
B. Analysis
Defendant concedes there was substantial evidence supporting both theories presented at trial: he possessed a loaded revolver and he possessed multiple firearms with multiple ammunition rounds. He argues, however, that under Apprendi, supra, 530 U.S. 466, he had a federal constitutional right to a jury determination of his intent and objectives and the trial court exceeded its authority when it made those factual determinations pursuant to section 654. (Deegan, supra, 247 Cal.App.4th at pp. 547-548.)
We rejected this argument in People v. Morelos (2008) 168 Cal.App.4th 758 (Morelos), as have other Courts of Appeal more recently. (Deegan, supra, 247 Cal.App.4th at pp. 546-550; People v. McCoy (2012) 208 Cal.App.4th 1333, 1340 (McCoy).) In Deegan, the court explained, "Apprendi '"established that a defendant has a federal constitutional right to a jury trial on sentence enhancements .... [Citations.]" [Citation.] [It] established the rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." [Citation.]'" (Deegan, supra, at p. 547.) "Apprendi does not apply to determinations made by a trial court under section 654 because that statute entails sentencing reduction rather than a sentencing enhancement." (Ibid.)
Defendant has offered no convincing rationale persuading us to depart from our prior decision in Morelos. (Accord, Deegan, supra, 247 Cal.App.4th at pp. 549-550; McCoy, supra, 208 Cal.App.4th at p. 1340.) We therefore conclude the trial court's imposition of separate sentences on counts 1 and 2 did not infringe defendant's jury trial right. (Deegan, supra, at pp. 549-550; McCoy, supra, at p. 1340; Morelos, supra, 168 Cal.App.4th at p. 770.)
II. Consideration of Concurrent Sentences as Aggravating Factor
Defendant also argues that in sentencing him to the middle term on counts 1 and 2, the trial court erroneously considered its concurrent sentences on those counts as one of the factors in aggravation, and the error was not harmless. (Cal. Rules of Court, rules 4.420(b), 4.421(a)(7).) The second claim is premised on our acceptance of the first claim that it was error for the trial court to impose multiple punishments under section 654. Our rejection of defendant's first claim renders his second claim moot. We observe, however, that "[o]nly a single aggravating factor is required to impose the upper term" (People v. Osband (1996) 13 Cal.4th 622, 728), and in selecting the middle term in this case, the trial court considered multiple factors in aggravation.
DISPOSITION
The judgment is affirmed.