Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed with directions. Super.Ct.No. RIF127634
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Elizabeth A. Hartwig, Deputy Attorney General, and Barry Carlton, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant, Ulises Antonio Vizcaino, Jr., appeals from convictions for being an ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)), and unlawful possession of ammunition while being prohibited from possessing a firearm (Pen. Code, § 12316, subd. (b)), following a jury trial. He was sentenced to 32 months in state prison and appeals.
BACKGROUND
On November 24, 2005, police were dispatched to a residence in the City of Riverside, after defendant called. He informed the 911 dispatcher that he had locked himself in the upstairs bedroom and there was a gun in the closet. Defendant gave the dispatcher a description of his wife, Tyra Willis, and informed the dispatcher that his wife had a butcher knife. He also told the dispatcher that there was a gun in the closet of the room in which he was locked, and that his wife had recently purchased a gun but he was not sure if she had picked it up.
Responding officers were aware that defendant had previously been convicted of a felony, so they obtained consent to search the house from both defendant and his wife, Tyra Willis, in writing, and conducted a search of the home, including the master bedroom. Throughout the master bedroom, officers found both male and female clothing, and a black jacket belonging to defendant was found hanging in the bedroom closet, where the officers also found a loaded rifle on a shelf. The officers also found a box of ammunition on top of a dresser inside the closet.
Ms. Willis informed officers at the scene that the firearm belonged to her, but defendant was arrested and transported to the police station. During booking, defendant gave his address as the residence where he had been arrested. He never mentioned living in Sylmar during either the booking process or the interrogation. However, he did state he stayed with his sister on occasion. Three separate neighbors had seen defendant at the residence at 225 Bathurst Road on a regular and frequent basis, and had observed him engaged in activities such as doing yard work, taking out the trash, and coming out of the residence in his robe, on a daily basis. His driver’s license reflected a Sylmar address until August 2005.
Defendant was charged with being an ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a), count 1), and unlawful possession of ammunition by a person prohibited from possessing a firearm. (Pen. Code, § 12316, subd. (b), count 2.) It was further alleged defendant had served a prior prison term (Pen. Code, § 667.5, subd. (a)), and that he had been previously convicted of a serious or violent felony within the meaning of the Strikes Law. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)
On January 25, after a trial by jury, defendant was convicted of both counts. On February 26, 2007, defendant filed a motion for new trial. On March 9, 2007, the court made a true finding on the enhancement allegations relating to the prison prior and the Strike allegation. Defendant requested that the court exercise its discretion to strike the prior serious felony allegation in the interests of justice. (Pen. Code, §1385.) On April 27, 2007, the court denied the new trial, and declined to strike the Strike. Defendant was sentenced to the low term on count 1, which was doubled due to the Strike, for a total of 32 months on count 1. The court imposed a concurrent term of 16 months for count 2. Defendant appealed.
Both the clerk’s minutes and the abstract of judgment reflect that the term for count 2 was ordered to run consecutively. Neither of the special allegations is mentioned during sentencing.
DISCUSSION
At his request, this court appointed counsel to represent appellant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record.
We offered appellant an opportunity to file a personal supplemental brief, and he has done so, raising several issues: (1) Whether his right to effective assistance of counsel was violated by a failure to investigate possible defenses; (2) whether there was prosecutorial misconduct in failing to authenticate a transcription of an audiotape; (3) whether there was insufficient evidence defendant had dominion and control over the property at the Riverside residence to support a conviction of possession of the firearm which was found during a search of that residence; (4) error relating to the execution of a stipulation between the court and counsel in chambers while a witness was testifying; (5) lack of proof the firearm was purchased or owned by defendant. We address these issues after we resolve issues relating to the sentence.
After independently reviewing the record, we requested supplemental briefing on two sentence-related issues: (1) Whether the minutes and abstract of judgment should be modified to conform to the oral pronouncement of sentence, and (2) whether the sentence should be remanded to permit the trial court to either strike or impose the enhancement for the prior prison term allegation. We address the issues separately.
1. Concurrent vs. Consecutive Terms
During the sentencing hearing, the trial court stated more than once that it intended to impose concurrent terms for counts 1 and 2. However, the clerk’s minutes of the sentencing hearing indicate that consecutive sentences were imposed. The abstract also reflects that consecutive terms were imposed.
When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, the court must direct whether the terms of imprisonment shall run concurrently or consecutively. (Pen. Code, § 669; People v. Black (2007) 41 Cal.4th 799, 820-821.) In exercising its discretion whether to impose concurrent or consecutive terms, a trial court considers the factors set forth in California Rules of Court, rule 4.425. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) The reasons for consecutive sentences must be expressly stated. (People v. Tillotson (2007) 157 Cal.App.4th 517, 545.)
The record includes no reasons for imposing consecutive terms, but it does include the court’s expressed intent to impose concurrent terms. However, the court ordered only one-third the middle term for the intended concurrent sentence. As respondent notes in its supplemental brief, a concurrent sentence is served full strength. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3.) We therefore direct the clerk to amend the minutes of the sentencing and the abstract of judgment to reflect a concurrent term of 32 months for the ammunition count.
2. Failure to Strike or Impose the Term for the Prison Prior
Penal Code, section 667.5, subdivision (b), provides that the court shall impose a one-year term for each prior separate prison term served for any felony, where the new offense is any felony for which a prison sentence is imposed. The use of the word “shall” means that imposition of the enhancements is mandatory once the prior prison terms are found true; a trial court may not stay the one-year enhancements. (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
The trial court was misinformed that because the same prior conviction led to both the prison prior allegation and the Strike allegation, it could only be used once. This is not true. The same prior conviction can be used both as a Strike and as a prison prior enhancement pursuant to Penal Code, section 667.5, subdivision (b). (People v. Cressy (1996) 47 Cal.App.4th 981, 989-990, 993.) When a true finding has been made on an allegation that the defendant has suffered a prior prison term, the court was required to either impose and execute one-year enhancements, or dismiss (strike) those enhancements. (People v. Fielder (2007) 154 Cal.App.4th 712, 714, fn. 3; see also, People v. Campbell (1999) 76 Cal.App.4th 305, 311.)
Ordinarily, if the court had listed reasons for not imposing the enhancement, we could imply the trial court intended to strike the two enhancements, as appellant requests. (See People v. Langston, supra, 33 Cal.4th at p. 1241.) However, a trial court is required to provide a statement of reasons for using its discretion to strike a mandatory prison prior. (Pen. Code, § 1385, subd. (a); People v. Jordan (2003) 108 Cal.App.4th 349, 368.) Because we cannot assume the reasons for striking a prison prior enhancement, we direct the lower court to exercise its discretion to either strike or impose the prior prison term enhancement.
3. Defendant’s Supplemental Brief
Defendant filed a supplemental opening brief pro seraising several issues for us to consider in conducting our independent review of the record. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have considered the following potential errors.
a. Defendant’s Right to Effective Assistance of Counsel Was Not Violated By a Failure to Investigate Possible Defenses or Call All Available Witnesses.
Defendant’s claim that trial counsel failed to call all available witnesses cannot be considered in this appeal because it refers to evidence which is outside the record on appeal. (People v. Jones (2003) 30 Cal.4th 1084, 1105; People v. Pope (1979) 23 Cal.3d 412, 426.) Counsel presented four witnesses who testified on his behalf that he did not live at the residence, but the jury rejected that testimony. The record establishes that appellant received effective assistance of trial counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) There was no constitutional violation.
b. There Was Neither Prosecutorial Misconduct Nor Any Error Regarding the Transcript of the Audiotape of the 911 Call or the Police Dispatch.
Defendant claims there was error in admitting the 911 tape at trial. However, the audiotape of the police dispatch (911) call was not admitted into evidence because the tape had been destroyed. There was no transcript of the tape. The computerized transmission of the information from the call to officers on patrol was used to aid the police dispatcher who testified she had no recollection of the call (Evid. Code, § 1237), but it was not admitted into evidence. There was no error.
c. There was Substantial Evidence to Support the Convictions for Possession of the Firearm and Ammunition.
Defendant claims there was insufficient proof he had dominion and control over the residence where the firearm and ammunition were found, and there was a lack of proof he possessed the firearm and ammunition. We disagree.
On appeal, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. (See People v. Guerra (2006) 37 Cal.4th 1067, 1129.) The jury found the defendant guilty based on evidence that he was seen on a regular basis at the residence doing things that a resident normally does, which permitted the jury to find he had dominion and control over the house and its contents. Although defendant’s wife and other family members testified he lived elsewhere, it was for the jury to decide which witnesses to believe. (Evid. Code, §312, subd. (b).)
There was substantial evidence defendant had dominion and control over the rifle. Defendant told police he lived at the address, and he told the 911 dispatcher about the gun’s presence in the closet, which showed he knew where it was kept. There was testimony that he and Ms. Willis had married shortly before the Thanksgiving holiday, and officers found men’s clothing in the closet and scattered around the master bedroom. This evidence is sufficient to support a finding that he had dominion and control over the residence, including the closet of the master bedroom where the gun was kept.
The fact defense witnesses testified differently does not compel a different result where the task of determining the credibility of the witnesses was one for the jury and we cannot substitute our judgment for that of the jury. (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1511.)
d. There Was No Error Relating to a Stipulation.
Defendant argues that during Officer Olivas’s testimony there was a sidebar followed by a stipulation relating to the jury admonition. The only stipulation made at the time indicated by defendant was a standard stipulation regarding admonitions to the jury. Defendant does not explain how this constituted error or why we should consider it when any error is presumed waived. The standard stipulation was properly executed and did not prejudice defendant’s trial in any way.
DISPOSITION
The judgment is affirmed as modified, and the superior court is directed to strike or impose the enhancement for the prior prison term.
We concur: Ramirez, P. J., Richli J.