Filed 3/8/16 P. v. Bland CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069496
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F12909340)
                   v.

JOSHUA DAVIS BLAND,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Robert Navarro, 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, Stephen G. Herndon and Peter
W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




         *   Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
       Defendant Joshua Davis Bland was convicted of one count of possession of child
pornography and one count of possession of child pornography with a prior conviction,
which required him to register as a sex offender. Numerous prior convictions were found
true resulting in two consecutive sentences of 25 years to life.
       Defendant’s only argument is the trial court erred when it imposed consecutive
sentences, instead of concurrent sentences. We find no error and affirm the judgment.
       The Information
       The consolidated information charged defendant with one count of possession of
child pornography in violation of Penal Code section 311.11, subdivision (a),1 and one
count of possession of child pornography with a prior conviction for an offense that
requires registration under the Sex Offender Registration Act in violation of section
311.11, subdivision (b). The information also alleged defendant had suffered seven prior
convictions that constituted strikes within the meaning of section 667, subdivisions
(b)(i).
       The Testimony
       Six witnesses testified at trial, all police officers at Coalinga State Hospital. 2 On
July 6, 2012, Officer Samuel Hall participated in a search of defendant’s room at the
hospital. Hall located a digital media player that can be connected to a television and
which will then display images or music that had been stored on a memory card. Such
devices are common in the hospital. There was a thumb drive in the digital media player
that appeared to contain music files. Hall located a memory card underneath the portable
player. These items were confiscated from defendant’s room.




       1    All statutory references are to the Penal Code unless otherwise stated.
       2    The issue in this case requires us to summarize only the testimony of five of the
officers.


                                                2.
       Officer Michael Clark also participated in search of defendant’s room on July 6,
2012. During that search Clark found a sheet of paper with a list of what appeared to be
child pornography websites, although Clark did not view the websites to verify their
content. Clark also found four compact disks. Each of the items were confiscated.
Officer Juan Ibarra documented where confiscated items were located during the July 6,
2012, search of defendant’s room, took photographs of those items, and booked the
confiscated items into evidence.
       Officer Lisandro Galvan conducted a search of defendant’s room on November
19, 2012. He located a digital media player, some memory cards, two thumb drives, a
hard drive, some compact disks, and an MP3 player. Galvan confiscated the items and
booked them into evidence.
       Sergeant Jerry Duvall instructed the officers to search defendant’s room on July 6,
2012. He then interviewed defendant. The recording of the interview was played for the
jury. He also searched the media storage devices confiscated from defendant’s room. On
the memory card he located approximately 765 images and 137 videos depicting child
pornography. The other media storage devices contained pictures depicting children in
erotic poses, but did not contain child pornography. After completing his review of the
media storage devices, Duvall again interviewed defendant, this time on August 16, 2012.
A recording of the interview was played for the jury.
       After defendant’s room was searched in November, Sergeant Duvall inspected the
media storage devices confiscated from the room. One memory card had over 7,000
images depicting child pornography. Another memory card had over 5,000 images and
over 400 videos depicting child pornography.
       The final item of evidence introduced by the prosecutor was a certified record of
defendant’s prior conviction for violating section 288, subdivision (a).




                                             3.
       Closing Argument, Verdict and Sentencing
       The prosecutor argued the evidence established defendant’s guilt. Defense
counsel admitted the confiscated items contained child pornography, but argued there
was insufficient evidence that defendant possessed those items since defendant had four
roommates in the first room that was searched, and both the first and second rooms were
easily accessible to any of the patients at the hospital.
       The jury found defendant guilty as charged. In a bifurcated trial, the trial court
found each of the enhancements true. The trial court denied defendant’s invitation to
strike his prior convictions pursuant to section 1385 and People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, and sentenced defendant to two consecutive third strike
terms of 25 years to life.
                                       DISCUSSION
       Defendant argues the trial court abused its discretion when it imposed consecutive
sentences for the two convictions. Defendant bases his argument on section 667,
subdivision (c)(6) (hereafter subdivision (c)(6)), which provides, “If there is a current
conviction for more than one felony count not committed on the same occasion, and not
arising from the same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to subdivision (e).” The Supreme Court has
interpreted this provision to mean that consecutive sentences are not mandatory if the
multiple felony convictions are committed on the same occasion or arise from the same
set of operative facts. (People v. Deloza (1998) 18 Cal.4th 585, 591(Deloza).)
Defendant argues his two convictions arose from the same set of operative facts, and thus
the trial court was not obligated to impose consecutive sentences. We disagree.
       People v. Lawrence (2000) 24 Cal.4th 219 (Lawrence) is instructive. Lawrence
stole a bottle of brandy from a market and ran from the premises when confronted by
store employees. He took a commonly used short cut to enter a gated community. This
short cut required him to jump over a fence into the back yard of a private residence. He

                                               4.
was confronted in the back yard by the homeowner (Rojas) and his fianceé (LaVastida).
A struggle ensued, with Lawrence using the bottle of brandy as a weapon. At one point
he struck the homeowner’s fianceé in the head with the bottle, causing her to collapse and
nearly rendering her unconscious. Lawrence was convicted of several crimes including,
as relevant here, felony petty theft with a prior conviction, and felony assault with a
deadly weapon or with force likely to produce great bodily injury. (Id. at p. 225.)
Several prior convictions which constituted strikes were also found true. The trial court
concluded it was obligated to impose consecutive three strike sentences on the two felony
counts. (Ibid.)
       The issue before the Supreme Court was whether the trial court had discretion to
impose concurrent sentences pursuant to subdivision (c)(6). It began its analysis with
Deloza, and confirmed that for the purposes of subdivision (c)(6), the phrase “committed
on the same occasion” refers “ ‘ “to at least a close temporal and spatial proximity
between two events, although it may involve other factors as well….” ’ ” (Lawrence,
supra, 24 Cal.4th 219 at p. 226, italics added in original.) It then explained Deloza
concluded the crimes before it were committed on the same occasion within the meaning
of the statute when Deloza entered a store, robbed four victims within that store, then left.
“ ‘His robberies were committed in one location, and were apparently brief in duration.
They were committed essentially simultaneously against the same group of victims, i.e.,
persons in the furniture store. While [the patron whose purse was stolen] approached
defendant, his criminal activity was not thereby interrupted, but merely continued with
her as an additional victim. Nor was there any other event that could be considered to
separate one “occasion” of robbery from another. Given the close temporal and spatial
proximity of defendant’s crimes against the same group of victims, they were clearly
committed on the “same occasion,” regardless of what additional factors may be found
relevant in defining the precise parameters of this phrase in future cases.’ ” (Lawrence,
supra, at p. 227.)

                                             5.
       Turning to Lawrence’s crimes, the Supreme Court reached the opposite
conclusion.

               “Here, in contrast, defendant fled the scene of his first crime, the
       theft of a bottle of brandy from a market. He was seen running across the
       street and through a gas station. He likely followed the shortcut through the
       vacant lot, over the wall behind the Rojas/LaVastida house, and into their
       fully enclosed backyard. There was testimony it would have taken
       defendant two or three minutes to walk that distance, though he
       undoubtedly traveled the route at a quickened pace. The facts taken as a
       whole support an inference that defendant committed his second offense at
       the Rojas/LaVastida home, a one to three-block distance from the site of his
       first crime (depending on whether he took the shortcut or followed the city
       streets), and most likely within two or three minutes of his theft from the
       market. Although he was fleeing from the first crime scene and may have
       been following a known neighborhood shortcut, he nonetheless chose to
       trespass into the Rojas/LaVastida house’s fully enclosed backyard. At the
       point at which he entered the backyard, defendant was no longer being
       pursued by any store personnel (although we do not know whether he was
       aware of that). In theory, he could have fled along a public street or
       thoroughfare and possibly escaped apprehension. Instead, he chose to
       commit new and separate crimes during his flight. The instant case thus
       involves additional factors not present in Deloza and [People v. Hendrix
       (1997) 16 Cal.4th 508]: two separate locations (a market and a residence
       one to three blocks away), and two entirely separate groups of victims (the
       employees and a patron of the market, and Rojas and LaVastida, who had
       no connection to the first crime). Nor can it be said that defendant’s crimes
       were committed simultaneously (cf. Deloza, supra, 18 Cal.4th 585) or
       through the same criminal act directed against multiple victims (cf.
       Hendrix, supra, 16 Cal.4th 508).” (Lawrence, supra, 24 Cal.4th 219 at
       p. 228.)
       The Supreme Court next considered the phrase “same set of operative facts” and
concluded the phrase refers to two crimes that share common acts or common criminal
conduct. (Lawrence, supra, 24 Cal.4th 219 at p. 233.) It then rejected Lawrence’s claim
that his two felony convictions arose from the same set of operative facts.

       “Defendant’s initial crime was the shoplifting theft of a bottle of brandy
       from a market. Although still in flight from the crime scene, he thereafter
       chose to commit new and different offenses: the trespass into the
       Rojas/LaVastida backyard, and the ensuing assaults against Rojas and

                                            6.
       LaVastida. The first crime involved an act of theft directed at one group of
       victims, the second involved assaultive conduct directed at an unrelated
       pair of victims. The two criminal episodes were separated spacially by at
       least one to three city blocks, and temporally by two to three or more
       minutes (from the time defendant stole the brandy from the market until the
       point he committed the aggravated assault upon LaVastida after having fled
       from the first crime scene, trespassed into the Rojas/LaVastida backyard,
       and fled again, chased by Rojas out of the yard and down a long driveway
       to the street, where he hit LaVastida with the bottle before being subdued).

              “On these facts we conclude that defendant’s felony assault upon
       LaVastida did not arise out of the ‘same set of operative facts’ as the theft
       from the market. Because defendant’s multiple current felony convictions
       neither were committed on the same occasion within the meaning of Deloza
       nor arose from the same set of operative facts, the trial court correctly
       concluded it was mandated by subdivision (c)(6) to sentence
       consecutively.” (Id. at pp. 233234.)
       The above quotes are from the lead opinion, which was signed by three justices.
Justice Mosk wrote a concurring opinion which concluded the key to interpreting the
above phrases was whether the perpetrator had a reasonable opportunity for choice when
committing the two crimes. (Lawrence, supra, 24 Cal.4th 219 at pp. 237238 (conc. opn.
of Mosk, J.).) “I conclude that a perpetrator convicted of multiple felonies committed his
felonies on the ‘same occasion’ when, and only when, he committed them within a period
of time that denied him a reasonable opportunity for choice in the interim. I likewise
conclude that his felonies arose out of the ‘same set of operative facts’ when, and only
when, they arose out of a single group of common facts, whose commonality denied him
a reasonable opportunity for choice in the interim by denying him any ‘interim’ within
which to choose.” (Id. at pp. 238239.) Justice Mosk then concluded that mandatory
consecutive sentences were required for Lawrence.

              “I believe that the facts establish that appellant did not commit his
       felonies on the ‘same occasion.’ On one, he engaged in petty theft against
       the Stater Brothers market, having previously suffered a theft-related
       conviction. On another, he assaulted Elizabeth LaVastida with a deadly
       weapon. It is true that he did the one and then the other one close in time.



                                            7.
      But he had a reasonable, albeit not an extensive, opportunity for choice in
      the interim.

              “I also believe that the facts establish that appellant’s felonies did
      not arise from the ‘same set of operative facts.’ It is not the case that there
      was a single group of common facts for both the theft and the assault.
      Hence, it is not the case that there was a commonality of facts that denied
      him a reasonable opportunity for choice in the interim by denying him any
      ‘interim’ within which to choose. Rather, as stated, he did indeed have the
      requisite reasonable, if not extensive, opportunity.” (Id. at p. 239.)
      Regardless of the approach used, it is clear that defendant’s crimes did not arise
from the same set of operative facts. The first crime occurred when defendant’s room
was searched on July 6, 2012. The testimony suggests all media storage devices in
defendant’s room were confiscated at that time.3 Defendant was sometime thereafter
moved to a different room. When this room was searched four months later different
media storage devices were located, giving rise to the second charge. While each search
resulted in essentially the same charge, the two charges were based on different media
storage devices, found in searches conducted four months apart, and found in different
rooms at Coalinga State Hospital. In other words, the two crimes were separated by time
and space, and did not have any common acts. Under no reasonable construction can the
phrase “same set of operative facts” include the facts of this case. Although the two
criminal acts were the same, possession of child pornography, the two charges related to
separate and distinct conduct. There was not a single group of common facts for both
charges, and defendant had a reasonable opportunity for choice between obtaining the
two sets of media storage devices. Accordingly, we reject defendant’s argument, and


      3  Although the question was not directly asked, the testimony established that the
officers conducting the search were instructed to confiscate media storage devices, and
since none were examined for possible pornography until later, the only reasonable
inference is that all media storage devices were confiscated. The testimony established,
however, that the media storage devices containing child pornography found in the
November search were not the same media storage devices containing child pornography
found in the July search.


                                            8.
subdivision (c)(6) required the trial court to impose consecutive sentences for the two
felony convictions.
       The cases cited by defendant are inapposite. In Wright v. Superior Court (1997)
15 Cal.4th 521 (Wright), the defendant was charged with felony failure to register as a
sex offender pursuant to section 290, subdivisions (a) and (f). The relevant facts
indicated he originally had registered, but in November 1994, he moved and failed to
report his new address. In March 1995, officials discovered the defendant had moved,
and charges were brought. In 1994, failure to register as a sex offender was a
misdemeanor, but effective January 1, 1995, the legislature reclassified the crime as a
felony. The defendant was charged with a felony, but argued he should be charged with a
misdemeanor because he violated the statute when he moved in November 1994. The
issue was whether the failure to register as a sex offender was a continuing offense.
       The portion of this opinion on which defendant relies is contained in the following
quote. “Most crimes are instantaneous since they are committed as soon as every
element is satisfied. Some crimes, however, are not terminated by a single act or
circumstance but are committed as long as the proscribed conduct continues. Each day
brings ‘a renewal of the original crime or the repeated commission of new offenses.’
[Citation.]” The distinction is critical because it determines the application of many legal
principles such as the statute of limitations period, venue, jurisdiction, sentencing, double
jeopardy, and, as here, the prohibition against ex post facto laws.” (Wright, supra, 15
Cal.4th at p. 525.)
       This quote does not assist defendant. It may be true that the media storage devices
found in defendant’s possession in July resulted in a continuing offense from the time he
obtained them until they were confiscated. However, when those media storage devices
were confiscated the crime ended. A second and distinct crime occurred because
defendant possessed different media storage devices that contained child pornography.
Wright is not implicated.

                                             9.
       Nor does People v. Garcia (2008) 167 Cal.App.4th 1550 assist defendant. Garcia
was convicted of numerous crimes including robberies, carjacking, and vehicle related
theft. In each of these crimes he used a firearm. He was also convicted of possession of
a firearm by a felon. The issue was whether the possession of a firearm count arose out
of the same set of operative facts within the meaning of subdivision (c)(6). The appellate
court concluded it did because the firearm on which the possession charge was based was
also used in the other crimes. Thus, according to the appellate court, “every other count
shares common acts or criminal conduct  possession of what the trial court could
reasonably find was the same firearm by the same previously arrested felon. As a result,
the trial court possessed the discretion to impose a concurrent sentence.” (Id. at p. 1567.)
       Defendant was convicted of possessing child pornography on two separate
occasions. The images were stored on different media storage devices. While some of
the images found in the first search may have been the same or similar to images found in
the second search, because there were thousands more images found in the second search
there must have been images found in the second search which were not found in the first
search. Therefore, to the extent defendant is arguing the crimes arose from the same set
of operative fact because the images found in both searches were the same, we reject the
argument.
                                     DISPOSITION
       The judgment is affirmed.




                                            10.
