Filed 12/2/15 P. v. Blunt CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142432
v.
SEDDIE BLUNT,                                                        (Contra Costa County
                                                                     Super. Ct. No. 51400191)
         Defendant and Appellant.


         On January 13, 2014, the Contra Costa District Attorney filed an information
charging Seddie Blunt (Blunt or appellant) with felony possession of a firearm by a
violent offender (Pen. Code, § 29900, subd. (a)(1)) (Count 1), felony possession of a
firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) (Count 2), and felony possession of
ammunition by a prohibited person (Pen. Code, § 30305, subd. (a)) (Count 3), all based
on his involvement in a December 2013 shooting incident outside of his home.1 The
information additionally alleged that Blunt had a prior strike conviction (§§ 667, subds.
(b)-(i), 1170.12) and a prison prior (§ 667.5, subd. (b)). On May 16, 2014, a jury found
Blunt guilty of all three substantive charges.
         At sentencing on June 20, 2014, the trial court found the enhancement allegations
true; denied Blunt’s motion to strike the prior strike conviction; stayed the sentence for
Count 2 under section 654; sentenced Blunt to two concurrent terms of two years and
eight months in prison for Count 1 and Count 3; and added an additional year for the


1
    All statutory references are to the Penal Code unless otherwise specified.

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prison prior, for a total sentence of three years and eight months. Blunt argues on appeal
that the trial court committed error under In re Yurko (1974) 10 Cal.3d 857 (Yurko),
requiring reversal of the finding as to his prior strike. He also maintains that sentencing
him for both possession of a firearm by a violent offender (Count 1) and possession of
ammunition by a prohibited person (Count 3) was erroneous under section 654. We
agree that Blunt’s concurrent sentence for Count 3 must be stayed pursuant to section
654, but otherwise affirm the judgment.
                             I. FACTUAL BACKGROUND
       On December 12, 2013, at approximately 10:20 a.m., Richmond Police Officer
Canelo responded to a Shot Spotter alert near Blunt’s residence.2 When Officer Canelo
arrived on the scene, Officer Vegas was already present and speaking to a witness, Ms.
Woods. According to Woods, a man had fired a shot from the driveway of Blunt’s
residence. Based on this information, the two officers walked to the nearby residence and
observed Blunt standing near the open trunk of a silver Ford Taurus. Officer Vegas
asked Blunt not to close the trunk, but Blunt closed it anyway.
       Officer Canelo then asked Blunt to walk towards the officers, which he did.
Officer Canelo told Blunt he was being detained and searched him for weapons. Officer
Vegas asked Blunt why he had closed the trunk and if there was something in it. Blunt
replied: “Yeah, my gun is in the trunk.” Blunt further admitted that the Ford was his car,
and the officers retrieved the car keys from Blunt’s pants pocket. When the officers
opened the trunk, they recovered a 410-gauge single-barrel shotgun with a loaded shell
and six loose shotgun shells. The shotgun appeared to be engraved with Blunt’s
initials—SLB.
       After the officers arrested Blunt and he waived his rights pursuant to Miranda v.
Arizona (1966) 384 U.S. 436, Blunt explained that he had argued with Woods because he
wanted to leave in his car and Woods was blocking his driveway with a cart. When Blunt
asked Woods to move, she was reportedly belligerent and called him names. Claiming he

2
 The City of Richmond uses the Shot Spotter system to triangulate areas where loud
noises occur or shots are fired.

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felt threatened, Blunt returned to his apartment, where he viewed Woods flagging people
down and pointing at his apartment and car. At some point, according to Blunt, Woods
produced a knife. Again feeling threatened, Blunt retrieved his shotgun and fired one
shot into the air from his window. He claimed he was hoping to scare Woods and
discourage her from returning.
       Blunt next unloaded the expended shell from his shotgun and placed another live
round in it. When he saw Woods return, he left his apartment, walked to his car with the
shotgun, and placed the shotgun in the trunk. The officers arrived while the trunk was
still open. According to Blunt, he knew what he did was wrong, but he felt threatened
by Woods and believed that firing the gun was the only way to resolve the situation. As a
result of this incident, Blunt was charged as described above, and a jury trial was
scheduled.
       Commission of a prior qualifying crime was an element of each of the three
substantive offenses with which Blunt was charged in this case: possession of a firearm
by a violent offender; possession of a firearm by a felon; and possession of ammunition
by a prohibited person. Prior to commencement of the jury trial, defense counsel agreed
to stipulate to the existence of a prior conviction as an element of the various offenses,
stating: “So I am thinking about the 1994 felony 211, Mr. Blunt and I would be willing
to stipulate to that.” At the close of the People’s case, the trial court announced (and
both parties confirmed) the stipulation to the jury as follows: “The two parties, the
People and the defendant, have stipulated that prior to the time that the People allege a
gun was found in the defendant’s possession, he had been convicted of the felony of
robbery; and they have stipulated that under the Penal Code, that felony is designated as a
violent felony.” According to the record, the parties did not discuss the separate prior
strike allegation during the trial, no advisements were given to Blunt pursuant to Boykin
v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl), and
Blunt did not expressly waive any of his trial rights with respect to the prior strike.
       After the jury returned guilty verdicts for all three offenses, sentencing occurred
before the trial court on June 20, 2014. Indicating that “we’re on for trial on the priors,”


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the trial court went on to state: “Because we have a stipulation to the robbery, it appears
to me the only matter that the People need to prove that’s relevant to the sentencing in
any significant fashion is [the domestic violence conviction supporting the prison prior].”
Nevertheless, the People thereafter submitted a certified copy of Blunt’s RAP sheet and
prison packets from the Department of Corrections with respect to both the robbery and
the domestic violence convictions, and these documents were received into evidence
without objection for, as the court characterized it, “support of the determination of prior
convictions.” After both parties declined to argue, the court found as follows: “The
Court finds that the defendant was convicted in 1994 in the Alameda County Superior
Court of a robbery, Penal Code Section 211, served a state prison term for that. That he
was convicted, again in 2012, for a . . . 245(a), domestic violence crime and received a
two-year state prison sentence for that crime. [¶] The Court finds also that the various
crimes enumerated in the probation report by the probation officer are established by the
evidence as the record of the defendant. That will be the Court’s finding on the priors.”
       Thereafter, as stated above, the court imposed a total sentence of three years and
eight months on Blunt, including one year for the prison prior and concurrent sentences
of two years and eight months with respect to Count 1 and Count 3. The sentences for
Count 1 and Count 3 were doubled due to Blunt’s prior strike conviction. Blunt’s timely
notice of appeal brought the matter before this court.
                                    II. DISCUSSION
       A.     Yurko Error
       “When a criminal defendant enters a guilty plea, the trial court is required to
ensure that the plea is knowing and voluntary.” (People v. Cross (2015) 61 Cal.4th 164,
170 (Cross).) As a part of this obligation, “the court must inform the defendant of three
constitutional rights—the privilege against compulsory self-incrimination, the right to
trial by jury, and the right to confront one’s accusers—and solicit a personal waiver of
each.” (Ibid.; see Boykin, supra, 395 U.S. at pp. 243-244; Tahl, supra, 1 Cal.3d at
pp. 130-133.) The California Supreme Court in Yurko, supra, 10 Cal.3d 857, concluded
that these Boykin-Tahl “requirements of advisement and waiver apply when a defendant


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admits the truth of a prior conviction allegation that subjects him to increased
punishment.” (Cross, supra, 61 Cal.4th at p. 170 [discussing Yurko].) Specifically, the
Yurko Court held that “ ‘Boykin and Tahl require, before a court accepts an accused’s
admission that he has suffered prior felony convictions, express and specific admonitions
as to the constitutional rights waived by an admission. The accused must be told that an
admission of the truth of an allegation of prior convictions waives, as to the finding that
he has indeed suffered such convictions, the same constitutional rights waived as to a
finding of guilt in case of a guilty plea.’ ” (Cross, supra, 61 Cal.4th at p. 170, quoting
Yurko, supra, 10 Cal.3d at p. 863.)
       In fact, the Yurko Court, in dealing with admissions related to previous
convictions, actually went beyond the Boykin-Tahl requirements. Under such
circumstances, the Court concluded, “a defendant must also be advised of ‘the full penal
effect of a finding of the truth of an allegation of prior convictions.’ ” (Cross, supra, 61
Cal.4th at p. 170, quoting Yurko, supra, 10 Cal.3d at p. 865.) Specifically, Yurko holds
“ ‘as a judicially declared rule of criminal procedure’ that an accused, before admitting a
prior conviction allegation, must be advised of the precise increase in the prison term that
might be imposed, the effect on parole eligibility, and the possibility of being adjudged a
habitual criminal.” (Cross, supra, 61 Cal.4th at pp. 170-171, quoting Yurko, supra, 10
Cal.3d at p. 864.)
       The California Supreme Court has subsequently clarified that Boykin, Tahl, and
Yurko “do not apply to a stipulation of ‘evidentiary facts, even facts crucial to a
conviction,’ if the stipulation does not encompass ‘all of the evidentiary facts necessary
to imposition of the additional penalty.’ ” (Cross, supra, 61 Cal.4th at p. 171.) Thus, for
example, in People v. Newman (1999) 21 Cal.4th 413 (Newman), our high court held that
Boykin and Tahl did not apply to the defendant’s stipulation to his status as a felon during
trial because “no penal consequences flowed directly from the stipulation, and the
prosecutor still was required to prove the remaining elements of the [felon in possession
of a firearm] offense.” (Newman, supra, 21 Cal.4th at pp. 421-422, disapproved on
another ground in Cross, supra, 61 Cal.4th at pp. 178-179.) Similarly, in this case, when


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Blunt stipulated to his prior robbery conviction during the jury trial on the substantive
charges, Boykin and Tahl were not implicated because no penal consequences flowed
directly from the stipulation. Rather, the stipulation merely relieved the People of
proving one element of each of the charged offenses. (Cf. Newman, supra, 21 Cal.4th at
p. 422.) Thus, it was not error to fail to advise Blunt of his Boykin-Tahl rights at that
stage in the proceedings.
       However, when the trial court, at the June 2014 sentencing hearing, adopted
Blunt’s previous stipulation for purposes of proving his prior strike conviction without
giving the necessary advisements, it appears that Yurko error occurred. Indeed, the trial
court expressly stated that there was “a stipulation to the robbery” and went on to explain
that, for sentencing purposes, the People need only prove Blunt’s other prior conviction
for domestic violence. Obviously, as the trial court recognized, Blunt’s stipulation
admitted the truth of every fact necessary for imposition of additional punishment based
on the prior strike conviction. It was tantamount to a plea of guilty insofar as the
enhancement allegation was concerned. Thus, Yurko advisements were warranted. (Cf.
People v. Adams (1993) 6 Cal.4th 570, 580-583.) Indeed, the People concede as much.
       The question before us, then, becomes whether, under the particular circumstances
of this case, the Yurko error identified by Blunt requires reversal of the trial court’s prior
strike finding. Our high court has concluded that Yurko errors are not reversible per se.
Rather, “the test for reversal is whether ‘the record affirmatively shows that [the guilty
plea] is voluntary and intelligent under the totality of the circumstances.’ ” (Cross,
supra, 61 Cal.4th at p. 171, quoting People v. Howard (1992) 1 Cal.4th 1132, 1175.) The
Supreme Court has also employed a harmless error analysis when determining the
consequences of Yurko error. Specifically, in People v. Guzman (1988) 45 Cal.3d 915
(Guzman), overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046,
1069, fn. 13, the defendant admitted that he had suffered two prior rape convictions.
Although he was largely advised of his trial rights with respect to the admission, the trial
court told the defendant that he had the right to “a hearing” on the prior convictions rather
than the right to a jury trial. (Guzman, supra, 45 Cal.3d at p. 968.) Under these facts, the


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Guzman court concluded: “On this record there is no reasonable probability that, if the
term ‘jury trial’ instead of ‘hearing’ had been used, defendant (i) would have denied the
priors and (ii) they would not have been found true. There is no dispute that defendant
had suffered the priors and served prison terms therefor. We therefore conclude the error
was harmless.” (Ibid.)
       In the present case, however, we need not avail ourselves of either of these
analytical constructs in concluding that reversal of the trial court’s finding with respect to
Blunt’s prior strike conviction is unnecessary. This is true because—although the trial
court informed the People that no further proof of the prior strike was required given
Blunt’s stipulation to the 1994 robbery—the People chose to reject the stipulation and
prove the strike anyway. Specifically, the People introduced into evidence without
objection both the prison packet from the Department of Corrections with respect to the
1994 robbery and Blunt’s RAP sheet which confirmed the robbery conviction. The court
found the evidence admissible “in support of the determination of prior convictions” and,
after both sides declined to argue the matter, found that “the defendant was convicted in
1994 in the Alameda County Superior Court of a robbery, Penal Code Section 211, [and]
served a state prison term for that.” The prior conviction records admitted into evidence
in this case, including the records with respect to the 1994 robbery, “were official
government documents clearly describing the alleged convictions. As such, the fact of
the convictions was presumptively established.” ( See People v. Epps (2001) 25 Cal.4th
19, 29-30, citing Evid. Code, § 664.) Since the People chose not to rely on Blunt’s prior
stipulation when proving the prior strike conviction and instead admitted uncontested
evidence which overwhelmingly established the existence of that conviction, the
stipulation became irrelevant for purposes of sentencing and therefore Yurko advisements
were simply not required.
       B.     Multiple Punishments Under Section 654
       Blunt also contends that he was improperly sentenced for both Count 1
(possession of a firearm by a violent offender) and Count 3 (possession of ammunition by
a prohibited person) in violation of section 654, which prohibits multiple punishments for


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the same offense. Section 654 provides in relevant part: “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
prohibits multiple punishment for the same offense even when, as here, the trial court
imposes concurrent sentences. (People v. Jones (2012) 54 Cal.4th 350, 353 (Jones).)
Moreover, although Blunt did not raise this issue in the trial court, “ ‘[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.’ ” (People v. Hester
(2000) 22 Cal.4th 290, 295.)
       Recently, the Supreme Court in Jones confirmed that the “ ‘simultaneous
possession of different items of contraband’ ”—like the firearm and the ammunition in
this case—constitute separate acts for purposes of section 654. (Jones, supra, 54 Cal.4th
at p. 358.) However, “ ‘[s]ection 654 applies not only where there was but one act in the
ordinary sense, but also where there was a course of conduct which violated more than
one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a
course of conduct is indivisible depends upon the intent and objective of the actor.
[Citation.] If all the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” (People v. Dowdell
(2014) 227 Cal.App.4th 1388, 1414 (Dowdell).) Thus, section 654 would be implicated
in this case if Blunt possessed both the firearm and the ammunition as part of an
indivisible course of conduct based on a single objective.
       “ ‘Whether the facts and circumstances reveal a single intent and objective within
the meaning of Penal Code section 654 is generally a factual matter.’ ” (Dowdell, supra,
227 Cal.App.4th at p. 1414.) We therefore apply on appeal “the substantial evidence
standard of review to the trial court’s implied finding that a defendant harbored a separate
intent and objective for each offense.” (Ibid.) In contrast, “ ‘the dimension and meaning
of section 654 is a legal question,’ ” and thus subject to our de novo consideration.



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(Dowdell, supra, 227 Cal.App.4th at p. 1414; see People ex rel. Lockyer v. Shamrock
Foods Co. (2000) 24 Cal.4th 415, 432.)
       Under similar, although not identical, circumstances, the Second District in People
v. Lopez (2004) 119 Cal.App.4th 132 (Lopez) concluded that section 654 barred
punishment for both unlawful possession of a firearm and unlawful possession of
ammunition. (Id. at p. 138.) In that case, all of the ammunition at issue was loaded into
the prohibited weapon. (Ibid.) Noting that the defendant’s “obvious intent was to
possess a loaded firearm,” the Lopez court opined: “While there may be instances when
multiple punishment is lawful for possession of a firearm and ammunition, the instant
case is not one of them. Where, as here, all of the ammunition is loaded into the firearm,
an ‘indivisible course of conduct’ is present and section 654 precludes multiple
punishment.” (Ibid.) In reaching this conclusion, the Lopez court emphasized that, when
undertaking an analysis of the applicability of section 654, “the appellate courts should
not ‘parse[] the objectives too finely.’ ” (Ibid., quoting People v. Britt (2004) 32 Cal.4th
944, 953.)
       Here, Blunt argues that the reasoning in Lopez bars punishment for both
possession offenses because there are no facts in the record indicating that he possessed
the shotgun shells found in the trunk next to the firearm at issue with a “separate intent
and objective.” Rather, he claims, he possessed both the shotgun and the extra shells as
part of the same course of conduct and with the sole intent to possess a loaded shotgun to
ward off a threatening trespasser. The People, in contrast, argue that Lopez is
distinguishable because the ammunition in this case was not loaded into the gun, the
record is silent as to when the shells were placed in the trunk, and Blunt could have
intended to give the shells away or use them to reload an empty shotgun for a separate
criminal purpose.
       We find Blunt’s position to be the more persuasive. The six shotgun shells at
issue were found loose in the trunk next to the single-shot shotgun. Of course, because
the shotgun only permitted a single round to be loaded at any given time, the shells could
not all be physically contained within the gun. However, they were all of the type which


                                              9
could be used to reload the gun, they were unexpended, and, as previously stated, they
were found in close proximity to the shotgun. Thus, this is not a case where different
types of ammunition were found; where the ammunition was kept separately from the
firearm; or where large amounts of stockpiled ammunition were recovered, all facts
which might tend to support a finding of a separate criminal objective. Rather, the most
reasonable inference from the evidence presented is that Blunt possessed both the
shotgun and the extra shells with the single intent to possess a loaded shotgun (reloading
as necessary) to respond to the perceived threat presented by Woods. In contrast, there is
no substantial evidence supporting the People’s version of events. Under such
circumstances, section 654 bars punishment for both possession offenses.
                                  III. DISPOSITION
        The 32-month concurrent sentence for Count 3, unlawful possession of
ammunition, is stayed pursuant to section 654. The superior court is ordered to prepare
an amended abstract of judgment to reflect this modification and send it to the
Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.




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                                 _________________________
                                        REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
STREETER, J.




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People v. Blunt A142432




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