Opinion
A148200
01-17-2018
THE PEOPLE, Plaintiff and Respondent, v. LANZELLE GREEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 224528)
Appellant Lanzelle Green appeals from two convictions, for auto burglary and for being a felon in possession of a firearm, on the ground that the concurrent sentences he received for both crimes violates Penal Code section 654. We find there is substantial evidence supporting the trial court's determination that Green had multiple objectives within the meaning of section 654 and can be punished for both crimes.
Code references are to the Penal Code unless otherwise specified.
I. BACKGROUND
Manuel Calderon was working as an unarmed security guard at 595 Market Street in San Francisco on July 25, 2015. Because Calderon just left a shift as an armed guard at his second job, he left his firearm in a lockbox inside of his backpack in the passenger's side of his car alongside his black sweatshirt. The gun was unloaded, but the lockbox also contained a loaded magazine. Calderon had parked in the loading dock on Stevenson Street. During his shift, Calderon saw a man walk away from his car on the security cameras and went to investigate. Discovering a broken front passenger side window, he noticed that his backpack with the lockbox and gun inside were missing, along with his sweatshirt. He reported the theft to the police.
Near midnight on the same day, the San Francisco Police Department received a call about a person with a gun at an apartment building. Officer Andrew Clifford and his partner arrived to find Green sitting in the hallway on a chair with Calderon's gun under his seat. Green was "lethargic" and "kind of just like numb" and was wearing Calderon's sweatshirt. Clifford kicked the gun away and detained Green. The officers observed the gun was cocked and had a loaded magazine attached to it, although there was not a round in the gun's chamber. Green admitted on the stand that he used heroin earlier that day.
On November 10, 2015, Green was charged by amended information with three Counts: (1) possession of a firearm by a felon under section 29800, subdivision (a)(1), (2) carrying a loaded firearm by a felon under section 25850, subdivision (a), and (3) second-degree burglary under section 459. A jury trial commenced on November 11, 2015, and the jury returned a verdict on November 17, 2015, finding Green guilty of Counts 1 and 3, and not guilty on Count 2.
The trial court judge sentenced Green to two years per count—doubled to four under section 667, subdivision (e)(1)—in state prison on February 19, 2016, ordered to run concurrently.
II. DISCUSSION
Penal Code section 654 subdivision (a) states, "[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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." The purpose of section 654 "is to insure that a defendant's punishment will be commensurate with his culpability." (People v. Perez (1979) 23 Cal.3d 545, 551.)
"Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of 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. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] 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 indivisible course of conduct." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.) "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." ' " (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313.) "Whether the defendant held 'multiple criminal objectives is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.' " (People v. Galvan (1986) 187 Cal.App.3d 1205, 1218.)
The crux of the matter here is the determination that Green had an intent to possess Calderon's gun separate from his intent in burglarizing Calderon's car. Having reviewed the record, we conclude that substantial evidence supports the trial court's conclusion.
Green argues that section 654 prohibits the imposition of four-year concurrent terms for the burglary and possession of a firearm by a felon, contending that Green's possession of the gun was the objective of the burglary, which would conceivably merge the crimes and their requisite intent under section 654. To that end, he argues, the sentence imposed for one of the crimes should have been stayed pursuant to section 654. We are not persuaded. Notably, Green did not know there was a gun in the backpack when he committed the burglary and testified that he was looking for property to sell or trade for drugs.
Appellant's opening brief is ambiguous as to which count he claims should be stayed. In his argument heading he indicates the felon in possession count should be stayed, but in the body of the brief he contends count three (burglary) should be stayed. Because we determine neither count must be stayed, we need not speculate as to how appellant's briefing should be construed.
Stealing a gun in a burglary and possessing the same gun may be punished as separate offenses when the possession is "severable from the burglary not merely in terms of continuity, but in terms of intention as well." (People v. Garfield (1979) 92 Cal.App.3d 475, 478.) In Garfield, the defendant stole a gun in a residential burglary. (Id. at p. 477.) Six days later, he was arrested on an unrelated charge. (Ibid.) The gun was found in his car. (Ibid.) The defendant was convicted of first degree burglary and possession of a firearm by a narcotics addict. (Ibid.) The court held section 654 did not bar punishment for both convictions because six days had passed and the gun was in the defendant's personal possession instead of being stored with the rest of the fruits of the burglary. (Id. at p. 478.) Though the length of time that elapsed between the burglary and the possession was shorter in this case, the evidence showed Green entertained separate intents, which justified the dual sentencing. As in Garfield, we conclude that "the circumstances of his possession rather than the mere passage of time [is] . . . the key element supporting" the trial court's finding of separate mens rea. (Ibid., italics added.)
Green cites People v. Allen (1999) 21 Cal.4th 846 (Allen), but we find that case unenlightening on the issue before us. In Allen, the defendant was convicted of multiple counts of burglary and selling stolen property after he stole jewelry from homes and sold it within a few minutes or hours after committing the burglaries. (Allen, supra, 21 Cal.4th at pp. 849-850.) He was sentenced to prison on all counts, but his sentence was stayed on the section 496 counts. (Id. at pp. 850, 867.) On review in the California Supreme Court, the primary issue was whether the defendant could be convicted of both burglary and selling stolen property, given that section 496, subdivision (a) expressly forbids dual convictions for theft of and receiving or selling the same property: "no person may be convicted both pursuant to . . . section [496] and of the theft of the same property." The Court held it was proper to convict for both burglary and selling stolen property because burglary is not a theft offense and the prohibitory language of section 496 is limited to "theft." (Id. at pp. 850-866.)
Although a section 496, subdivision (a) violation is generally referred to as "receiving stolen property," the statute also forbids buying, selling, concealing and withholding stolen property. Allen was charged with two separate instances of selling jewelry he had stolen in burglaries. --------
The Court in Allen also affirmed the sentence, holding the selling counts were properly stayed under section 654, but did not discuss why. (Id. at pp. 866-867.) We find Allen sheds little light on the present case and provides no guidance on when dual punishment is allowed for burglary and possession and when it is not. The fact that section 654 barred double punishment in Allen—where the section 496 violations came on the heels of the burglaries and no change of objective or intent was shown—does not mean burglary and possession offenses can never be sentenced separately. The application of section 654 inherently requires a case-by-case analysis of the facts of the various offenses to determine the applicability of the principles underlying section 654. (In re Adams (1975) 14 Cal.3d 629, 633; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) "[T]here can be no universal construction which directs the proper application of section 654 in every instance." (People v. Beamon (1973) 8 Cal.3d 625, 636.)
Green also cites People v. Bradford (1976) 17 Cal.3d 8 and People v. Atencio (2012) 208 Cal.App.4th 1239 (Atencio). These cases are distinguishable. In Bradford, the defendant took a police officer's gun and shot at the officer. (Bradford, supra, 17 Cal.3d at p. 13.) He was convicted of assault with a deadly weapon upon a peace officer (§ 245, subd. (b)), brandishing a firearm (§ 417), and possession of a concealable firearm by an ex-felon in violation of former section 12021, with an enhancement for using a firearm during the assault as described in section 12022.5. (Ibid.) The court determined section 654 applied to possession of a concealable firearm by an ex-felon because it was not "antecedent and separate" from the defendant's assault upon the officer and the defendant could not, therefore, be punished for possession of the firearm. (Id. at p. 22.) In this case, Green committed burglary—seeking money or drugs—then found the gun and magazine in the lockbox, and proceeded to take, load and cock the gun.
In Atencio, the defendant was convicted of grand theft of a firearm and being a felon in possession of the same firearm and received consecutive sentences. (Atencio, supra, 208 Cal.App.4th at pp. 1240-1241.) There, the defendant obtained possession of the firearm after being invited by the victim's daughter to help clean her mother's house in exchange for money. After finding a lockbox containing firearms, Atencio took five guns from the victim's home. (Id. at p. 1241.) The next day he abandoned one of them in a second house, where he was trying to sell jewelry to the occupant, after the police surrounded the home. (Id. at p. 1244.) There was evidence in Atencio that the defendant knew about and intended to steal the specific gun that was later found stashed in the stove's broiler pan in the second house, where Atencio was found hiding behind the couch. (Id. at pp. 1241-1242.) The Court of Appeal found section 654 applied because the defendant's theft of the gun and his possession of it were part of the same criminal objective, noting that the defendant's intent of stealing and possessing the gun did not change simply because he decided to retain possession of it after successfully stealing it. (Id. at p. 1244.) The scenario in Atencio is unlike the one we have here, since Green did not commit his burglary with the goal of possessing a gun.
The factual premise of Green's argument—that he intended to steal a gun—is untenable, since he testified he was unaware of the existence of the gun before he stole it. When he discovered the gun in the lockbox, Green made a new decision to keep it for the apparent purpose of using it. He was not just found in possession of the gun hours later at a different location, but the gun was cocked and had a loaded magazine attached to it. Just as a separate and distinct criminal intent was found in Garfield based on the defendant's decision to keep a stolen gun in his personal possession while storing the rest of his burglary loot elsewhere, the circumstances surrounding Green's handling of the gun he stole from Calderon justify a finding of multiple objectives. There is substantial record evidence that his possession was a separate act, with a separate intent, and was separately punishable. Accordingly, we uphold the trial court's finding that Green engaged in two divisible actions: stealing from Calderon's car and, upon discovering the gun, deciding to keep it. Both punishments are justified.
III. DISPOSITION
The sentence is affirmed.
/s/_________
Streeter, J.
We concur:
/s/_________
Ruvolo, P.J.
/s/_________
Reardon, J.