The PEOPLE, Plaintiff and Respondent, v. Vincent Dion SPIRLIN, Defendant and Appellant.
O P I N I O N
Following the close of the prosecution's case-in-chief in a robbery trial, the defense rested without presenting any opening statement or evidence. Defendant made a Marsden 1 motion, which was denied after a hearing. Thereafter, the jury convicted defendant of committing felony robberies of a Shell gas station on August 24, 1996, and September 20, 1996, while personally armed (Pen.Code, §§ 211, 12022.5, subd. (a) and 1192.7, subd. (c)(8) 2 ), and in doing so, falsely imprisoning his victims. (§ 236.) The jury further found defendant guilty of three counts of being a felon in possession of a handgun in violation of section 12021, subdivision (a)(1). In a bifurcated proceeding, the trial court found defendant guilty of the misdemeanor offense of possessing marijuana 3 (HEALTH & SAF.CODE, § 11357, SUBD. (B)) AND FOund true that defendant had suffered four prison priors (§ 667.5, subd. (b)) and had two strike priors. Defendant was sentenced to 83 years to life in prison.
Defendant appeals, contending the trial court erred in denying his Marsden motion, his counsel rendered ineffective assistance of counsel by not presenting any defense to rebut the prosecution's case, and that the court should have stayed two of the three counts of being a felon in possession of a handgun pursuant to section 654. As to the first two contentions, we find no error and affirm. However, we agree with the last contention and modify the sentence accordingly.
In a supplemental argument submitted after all briefing had been completed, defendant contends that his custody credits were improperly calculated. We have considered the issue for purposes of judicial economy because it involves undisputed facts, is readily capable of calculation and takes only a few minutes of appellate time. (People v. Guillen (1994) 25 Cal.App.4th 756, 764, 31 Cal.Rptr.2d 653.) Having done so, we reject the contention.
On August 24, 1996, defendant robbed a Shell gas station while pointing a gun at Bobby Miller, the co-owner of the Shell station.
On September 20, 1996, defendant robbed the same Shell gas station, this time while pointing a gun at Farhad Gharabiklou, the other co-owner of the Shell station.
Additional facts will be set forth below as relevant to the issues discussed.
Defendant was convicted of three counts (counts III, VI & VII) of being a felon in possession of a handgun in violation of section 12021, subdivision (a)(1) on three separate occasions, August 24, 1996 (the date of the first robbery), September 20, 1996 (the date of the second robbery), and September 26, 1996 (the date defendant was arrested and the gun discovered). The trial court sentenced defendant to a term of 25 years to life on count III, to run consecutively to his sentence on count I (robbery); and terms of 25 years to life on counts VI and VII, to run concurrently with his sentences on counts I (robbery), III (felon in possession of handgun), and IV (robbery).7
In his opening brief, defendant appeared to argue that the court violated section 654 by imposing separate punishments on two of his convictions for felon in possession (counts III and VI) and his two convictions for robbery (counts I and IV) on the ground that each possession was incidental to each robbery. Respondent addressed this contention by showing that defendant had different criminal intents in committing the robberies and the felon in possession offenses and therefore could be sentenced separately under our opinion in People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413-1414, 273 Cal.Rptr. 253 [defendant was properly sentenced on two counts of robbery with use of a firearm and one count of being an ex-felon in possession of a handgun]. Apparently recognizing this, defendant, in his reply brief, asserts that he does not challenge “the fact the court could impose a separate term for [his] conviction of violating ․ section 12021, subdivision (a)(1)” in addition to his sentences for robberies while personally armed. Instead, defendant contends he could only be sentenced on one of the three felon in possession of a handgun counts and the other two counts should be stayed pursuant to section 654.8
Section 654, subdivision (a) provides: “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 punishment for a single act or for a course of conduct comprising indivisible acts. ‘Whether a course of criminal conduct is divisible ․ depends on the intent and objective of the actor.’ [Citations.] ‘[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]” (People v. Evers (1992) 10 Cal.App.4th 588, 602, 12 Cal.Rptr.2d 637.) “Although there is a plethora of authority interpreting section 654” (ibid.), the parties have not identified, nor have we found, any case dealing with the precise issue before us--whether a defendant can be thrice punished for being a felon in possession of the same handgun on three different occasions.
The key inquiry here is whether defendant's objective and intent in possessing the handgun on all three occasions were the same, thus making the crime one indivisible transaction subject only to one punishment under section 654. (People v. Brown (1991) 234 Cal.App.3d 918, 933, 285 Cal.Rptr. 824.) Section 12021 does not require any specific criminal intent; general intent to commit the proscribed act is sufficient. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922, 49 Cal.Rptr.2d 86.) The act proscribed by section 12021 is possession of a firearm by a convicted felon. (Ibid.) Possession may be either actual or constructive as long it is intentional. (Ibid.) “The proof need not conform to the exact date laid in the information, it being sufficient to prove the commission of the offense at any time prior to the filing of the information within the statutory period--the commission of the act here charged is not the kind that does not constitute a crime unless committed on a specific date; time is not of the essence or a material ingredient of the offense․” (People v. Neese (1969) 272 Cal.App.2d 235, 245, 77 Cal.Rptr. 314.)
Defendant argues that there was no evidence he “did not maintain constructive possession of the gun the entire time” from August 20 to September 26, and therefore the court improperly sentenced him. We agree. Defendant completed the offense once his intent to possess was perfected by possession. (People v. Ratcliff, supra, 223 Cal.App.3d 1401, 1414, 273 Cal.Rptr. 253.) The following prosecution evidence shows defendant possessed the subject handgun for “a couple months” before he committed the present robberies. After defendant was arrested on September 26, 1996,9 a police detective went to defendant's apartment. Defendant's wife, Maurisha Thomas, answered the door and indicated that defendant lived there “most of the time.” In response to the detective's questions and concerns, Thomas directed the detective to a closet, where he found a gun and a loaded gun clip. Thomas advised the detective that the gun belonged to defendant and that he had possessed it for “a couple months or so.” It is undisputed that the gun found in defendant's apartment was the same gun used during the robberies on August 24, 1996, and September 20, 1996.
In our opinion, the foregoing evidence is sufficient from which to infer that defendant had continuous constructive possession of the gun from a couple of months before the robberies to when the gun was found in defendant's apartment. While what defendant did later with the weapon, i.e., commit the robberies, were “separate and distinct transaction[s] undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon” (People v. Ratcliff, supra, 223 Cal.App.3d 1401, 1414, 273 Cal.Rptr. 253), the same cannot be said of his continuous possession of the weapon. In other words, defendant's intent to possess the weapon as a felon did not change each time he committed a robbery or when he was arrested and the gun confiscated.
We conclude defendant's possession of the handgun was a single act with a single objective. Accordingly, the trial court should have stayed the imposition of sentence on counts VI and VII, rather than run them concurrently. “Where multiple punishment has been improperly imposed, ‘․ the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. [Citation.]’ [Citation.]” (People v. Butler (1996) 43 Cal.App.4th 1224, 1248, 51 Cal.Rptr.2d 150.)
Defendant's sentence is modified so that execution of the sentence imposed for counts VI and VII is stayed pending the finality of the judgment and service of the sentences on the remaining counts, the stay to become permanent upon completion of the terms imposed. In all other respects, the judgment is affirmed.
1. People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.
2. All further statutory references will be to the Penal Code unless otherwise indicated.
3. Defendant's assertion that the misdemeanor offense was later dismissed pursuant to the prosecutor's motion is not supported by the record.
FOOTNOTE. See footnote *, ante.
7. Defendant incorrectly states in his reply brief that the court sentenced him to consecutive terms for possession of the firearm in both counts III and VI.
8. We need not decide whether this issue was improperly raised in defendant's reply brief as “[e]rrors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. [Citations.]” (People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3, 153 Cal.Rptr. 40, 591 P.2d 63.)
9. The record mistakenly refers to the date as September 26, 1998.
FOOTNOTE. See footnote *, ante.
RAMIREZ, P.J., and WARD, J., concur.