People v. Perraza

Filed 11/23/05 P. v. Peraza CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE PERAZA, Defendant and Appellant.

B181615 (Los Angeles County Super. Ct. No. KA061982)

APPEAL from a judgment of the Superior Court for the County of Los Angeles, Robert M. Martinez, Judge. Affirmed as modified.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General.

___________________

Enrique Peraza appeals from the judgment entered following his conviction by a jury on three counts of using an assault weapon on a peace officer (Pen. Code, § 245, subd. (d)(3)[1]), two counts of resisting an executive officer (§ 69), one count of possession of an assault weapon (§ 12280, subd. (b)) and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)), with special findings by the jury that Peraza had used a firearm in the commission of the assault and resisting offenses and that he had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and the “Three Strikes” law (§§ 667, subds. (b) - (i); 1170.12, subd. (a)-(d)). Peraza contends the trial court improperly failed to stay sentence on the two weapon-possession counts in violation of section 654[2] and imposition by the trial court of upper-term sentences based on facts neither found true by the jury nor admitted by him violated his right to a jury under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). We agree that sentence on one of the two possession charges, but not both, should have been stayed. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

1. Peraza’s Assault on Uniformed Sheriff’s Deputies

Two Los Angeles County deputy sheriffs (Philip Johnson and Romel Piggue) responded to a family disturbance call in the early morning of May 16, 2003. After determining no crime had been committed, the deputies left. Several hours later Deputy Sheriff Johnson and Deputy Sheriff Timothy Jimenez returned to the same location in response to a report a man had been seen walking on the street with an assault rifle. Both officers were wearing their uniforms and driving marked patrol cars.

At the scene Johnson saw Peraza’s head through an open door and warned Jimenez, “Look out, he’s behind you.” Jimenez turned and saw Peraza run from the house with an assault rifle. When Jimenez directed Peraza to put the gun down, Peraza fired the weapon. One of the shots struck the top of Johnson’s patrol car, where Johnson had taken cover, and shattered the car window above Johnson’s head. Peraza moved toward the deputies, firing four or five times in their direction. After Jimenez fired one shot to stop Peraza’s advance, Peraza retreated toward his house and then jumped over a fence and ran to the next street, still holding the assault rifle.

Sheriff’s deputies Piggue, Greg Bawdon and Don Naslund responded to Jimenez’s request for assistance. Peraza fired the weapon two or three times at Bawdon, who returned fire. Peraza fell down, got back up, ran across the street and hid behind a brick wall. After the arrival of a sheriff’s helicopter, Peraza surrendered and was arrested.

Peraza was taken to the hospital following his arrest. After being advised of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel, Peraza spoke to Deputy Sheriff Daniel Zumer. He told Zumer he believed his children, who lived across the street from him with his ex-wife, were being raped or abused by a neighbor. Around midnight Peraza had tried to see the children, but was told they were asleep. Peraza went to a friend’s house, where he smoked some methamphetamine before returning home. Throughout the night, Peraza heard voices telling him both that he should leave and not cause any problems and that his children were going to be killed or kidnapped. Peraza watched the deputies respond to the initial disturbance call at his ex-wife’s house. After the deputies left, Peraza went back to that house, armed with an assault rifle. Peraza explained he had obtained the weapon three days earlier to protect his children. The voices told Peraza if he did not go back across the street, his children would die.

Peraza’s ex-wife let him into her home. Peraza remained agitated and upset; the voices told him his children needed protection. When the deputies responded to the second call and parked in front of his house, he fired the weapon twice at a deputy from the doorway. Then he ran through the house and went over the back fence to the next street, where he fired a number of rounds at another deputy. After falling to the ground, Peraza got up, ran to another street and attempted to hide until he heard the helicopter, at which point he decided to give himself up.

2. The Charges Against Peraza

Peraza was charged in a seven-count second amended information with three counts of using an assault weapon on a police officer (counts 1, 2 and 3), two counts of resisting an executive officer (counts 6 and 7), possession of an assault weapon (count 8) and possession of a firearm by a felon (count 9). It was alleged as to counts 1, 2 and 3 that Peraza had used a firearm within the meaning of section 12022.53, subdivision (b), and section 12022.5, subdivisions (a) and (d), and had personally and intentionally discharged the firearm within the meaning of section 12022.53, subdivision (c). As to counts 6 and 7, it was alleged Peraza had personally used a firearm within the meaning of section 12022.5, subdivision (b). The second amended information further alleged as to counts 1, 2, 3, 6, 7 and 8 that Peraza had suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law and as to counts 1, 2 and 3 that he had sustained one prior conviction of a serious felony pursuant to section 667, subdivision (a)(1).

Peraza pleaded not guilty by reason of insanity.

3. Trial and Conviction

Defense counsel declared a doubt as to Peraza’s mental competence. Criminal proceedings were suspended pending a mental competency hearing, at which Peraza was found competent to stand trial. Several requests by Peraza to represent himself were denied by the trial court.

Following the initial phase of the trial, at which Peraza did not testify and presented no other evidence in his defense, Peraza was convicted on all charges; and the jury found true all special allegations regarding Peraza’s use and discharge of a firearm and his prior serious felony conviction. In a subsequent sanity phase of the trial, the jury found Peraza was sane at the time of the offenses.

4. Peraza’s Sentence

The trial court sentenced Peraza to an aggregate state prison term of 74 years four months. Count 1, use of an assault weapon on a police officer, was selected as the principal term, with the court imposing the upper term of 12 years, doubled under the Three Strikes law to 24 years, plus 20 years for the personal discharge of a firearm enhancement, plus an additional five years for the prior serious felony conviction, for a total of 49 years. On counts 2 and 3, also use of an assault weapon on a police officer, the court imposed terms of 12 years eight months, one-third the middle term of nine years, doubled to six years, plus one-third the 20-year firearm discharge enhancement (six years eight months), to be served consecutively to count 1 and to each other. As to counts 8 and 9 the court imposed the upper term of three years, doubled to six years, and, after dismissing the strike-prior for purposes of the mandatory, consecutive-term provision of the Three Strikes law, ordered those terms be served concurrently to each other and to the terms imposed on counts 1, 2 and 3. Execution of the sentences imposed on counts 6 and 7 was stayed pursuant to section 654.

DISCUSSION

1. The Trial Court Erred in Sentencing Peraza to Separate, Concurrent Terms for Both Possession Offenses

Section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335.) Peraza contends the sentences imposed on counts 8 and 9, possession of an assault weapon and possession of a firearm by a felon, to be served concurrently to the consecutive sentences imposed on counts 1, 2 and 3 for using an assault weapon on a peace officer, should have been stayed pursuant to section 654 because the possession offenses were indivisible from the assaults he committed with the firearm. Although Peraza obtained the assault rifle three days prior to the assaults, he argues all the offenses were part of a single course of conduct and incident to only one objective: “The purpose of all of appellant’s misguided acts was to protect his children from the abuse he erroneously believed they were suffering; no other intent or objective is apparent in the facts.”

Whether section 654 applies in a given case “depends on the intent and objective of the actor” (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Latimer, supra, 5 Cal.4th at p. 1208) and is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)[3] Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Hutchins, at p. 1312; Herrera, at p. 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)[4]

With respect to a defendant’s possession and use of a firearm, section 654 is inapplicable when the evidence shows the defendant arrived at the scene of his or her primary crime already in possession of the firearm. (People v. Jones (2002) 103 Cal.App.4th 1139, 1145.) Multiple punishment is appropriate when the evidence shows a weapon possession “distinctly antecedent and separate from the primary offense.” (People v. Bradford (1976) 17 Cal.3d 8, 22.) For example, in People v. Hudgins (1967) 252 Cal.App.2d 174 the defendant, a felon, broke into his wife’s house, shot and killed a male guest and threatened to kill his wife. The Court of Appeal rejected defendant’s argument section 654 barred punishments for both murder and gun possession in violation of section 12021, holding, “The acts constituting the offenses were separable. Possession of the gun constituted one offense, and this was an act separate and apart from any use that was made of the gun, and would have been a completed offense even if no use had been made of it.” (Hudgins, at p. 185.)

Similarly, in People v. Jones, supra, 103 Cal.App.4th 1139, the court upheld imposition of concurrent sentences for shooting at an inhabited dwelling and possession of a firearm by a felon, holding that, when a felon commits a crime using a firearm and there is no suggestion the defendant accidentally came upon the weapon at the precise moment the primary offense occurred, “it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime.” (Id. at p. 1141.) The court explained, “[T]he evidence was sufficient to allow the inference that Jones’s possession of the firearm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling. It strains reason to assume that Jones did not have possession for some period of time before firing shots at the [victim’s] home. . . . Section 12021 is violated whenever a felon intentionally has the weapon in constructive or actual possession. . . . . [Citation.] Jones’s violation of section 12021 was complete the instant Jones had the firearm within his control prior to the shooting.” (Id. at p. 1147; accord, People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1414 [“Commission of a crime under section 12021 is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with the additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.”].)

Substantial evidence supports the trial court’s implied finding Peraza’s possession of the assault rifle was an act antecedent to and separate from the use made of the weapon in the assaults on sheriff’s deputies on the morning of May 16, 2003. (See People v. Blake (1998) 68 Cal.App.4th 509, 512 [trial court’s implied finding that defendant harbored a separate intent and objective for each offense will be upheld on appeal if supported by substantial evidence].) Peraza obtained the firearm several days before commission of the primary offenses. His possession of the assault weapon constituted a criminal offense that was independent of any use made of the gun and would have been a completed offense even if the rifle had never been used.

Although Peraza’s possession of the assault rifle may be punished separately from his use of the weapon, the trial court erred in imposing concurrent sentences for both possession of an assault weapon and possession of a firearm by a felon for the same incident. (People v. Scheidt (1991) 231 Cal.App.3d 162, 170 [§ 654 precludes separate punishment for single act of possessing a concealable firearm and possessing a sawed-off rifle]; see People v. Lopez (2004) 119 Cal.App.4th 132, 138 [§ 654 precludes imposition of separate sentences for unlawful possession of ammunition and unlawful possession of a firearm when both violations were part of an “indivisible course of conduct”]; see generally People v. Miller (1977) 18 Cal.3d 873, 887 [where applicable, § 654 precludes imposition of concurrent sentence].)[5]

In their supplemental letter brief, filed at the request of the court, the People note the statutes prohibiting possession of any firearm by a felon and possession of an assault weapon by anyone are directed to different types of wrongful conduct and suggest the two offenses “‘are in no sense identical or equivalent.’” (People v. Rowland (1971) 21 Cal.App.3d 371, 376, quoting In re Hayes (1969) 70 Cal.2d 604, 607.) From that premise and relying on People v. Harrison (1969) 1 Cal.App.3d 115, in which the court approved multiple punishment for a felon-in-possession count under former section 12021 and carrying a loaded firearm in a vehicle under former section 12031, they argue imposition of separate sentences on the two possession counts was proper. But the Supreme Court has cautioned against “parsing . . . too finely” the criminal intent at issue. (See People v. Britt (2004) 32 Cal.4th 944, 953; accord, People v. Lopez, supra, 119 Cal.App.4th at p. 138.) Viewed from that perspective and under the facts of this case, Peraza’s unlawful possession of an assault weapon was indivisible from his simultaneous violation of section 12021, subdivision (a)(1), which prohibits a felon from possessing any firearm.

2. Imposition of Upper Term Sentences Did Not Violate Peraza’s Right to a Jury Trial

Peraza contends the trial court’s imposition of upper term sentences on counts 1, 6, 7, 8 and 9 based on facts neither found by a jury to be true beyond a reasonable doubt nor admitted by Peraza violated his right to a jury trial under Blakely, supra, 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (defendant is entitled under the Sixth Amendment to the United States Constitution to a jury trial on any fact that increases the maximum sentence to which the defendant is exposed for a particular offense unless that fact has been admitted by the defendant or is based on the defendant’s prior convictions). However, as Peraza acknowledges, in People v. Black (2005) 35 Cal.4th 1238 the California Supreme Court held the trial court’s identification of aggravating factors and imposition of an upper-term sentence under California’s determinate sentencing law do not violate a defendant’s constitutional right to a jury trial: “[T]he judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) As the Court explained, “The jury’s verdict of guilty on an offense authorizes the judge to sentence a defendant to any of the three terms specified by statute as the potential punishments for that offense, as long as the judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules.” (Id. at pp. 1257-1258.)

Peraza does not contend the trial court exercised its discretion in an unreasonable fashion or the sentence imposed was in any way inconsistent with the requirements of the Penal Code or the California Rules of Court. Blakely, therefore, provides no basis to set aside or modify his sentence.

DISPOSITION

The judgment is modified to provide the concurrent sentence imposed on count 8 (possession of an assault weapon) is stayed pursuant to section 654 pending completion of the sentence on the other convictions; the stay is to become permanent thereafter. As modified, the judgment is affirmed.

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[1] Statutory references are to the Penal Code.

[2] 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”

[3] The Supreme Court in People v. Black (2005) 35 Cal.4th 1238, expressly approved this court’s holding in People v. Cleveland (2001) 87 Cal.App.4th 263, 270-271, that there is no Sixth Amendment right to a jury determination whether under section 654 a defendant has a separate intent and objective for multiple offenses occurring during a course of criminal conduct: “For purposes of the right to a jury trial, the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently. Both are sentencing decisions made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense, and neither implicates the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.” (Black, at p. 1264.)

[4] “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.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see People v. Cleveland, supra, 87 Cal.App.4th at p. 271 [trial court’s finding of “‘separate intents’” reviewed for sufficient evidence in light most favorable to the judgment].)

[5] We are required to consider the propriety of the trial court’s imposition of separate, concurrent sentences for each possession count notwithstanding Peraza’s failure to object in the trial court or to advance this argument on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295 [“Errors 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.’ [Citation.]”].) We invited supplemental letter briefs from the parties to address the issue.