Filed 2/27/13 P. v. Palmer CA3
                                       NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                  THIRD APPELLATE DISTRICT
                                                   (Butte)
                                                     ----



THE PEOPLE,                                                                         C069193

                 Plaintiff and Respondent,                            (Super. Ct. Nos. CM034122 &
                                                                               CM034831)
        v.

CODEY LEE PALMER,

                 Defendant and Appellant.




        A jury found defendant Codey Lee Palmer guilty of possession of a firearm by a
felon (Pen. Code,1 § 12021, subd. (a)(1); count 1), possession of a short-barreled shotgun
(§ 12020, subd. (a)(1); count 2), and exhibiting a firearm (§ 417, subd. (a)(2); count 3).2



1   Further undesignated statutory references are to the Penal Code.
2 Defendant was erroneously charged with and convicted of violating section 417,
subdivision (a)(1), which criminalizes threatening another person with “any deadly
weapon whatsoever, other than a firearm” (emphasis added); this was error because a
loaded short-barreled shotgun was the only weapon referenced in this case. Section 417,
subdivision (a)(2) criminalizes threatening with “any firearm, whether loaded or
unloaded” (emphasis added), and was the applicable charge. Defendant notes this error

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The jury found not true gang enhancement allegations (§ 186.22, subd. (b)(1)) attached to
counts 1 and 2. Outside the presence of the jury, defendant admitted his prior strike
conviction and prior prison term.
       The trial court sentenced defendant to an aggregate term of eight years four
months in state prison, allocated as follows: count 2, six years (three years doubled);
count 1, 16 months concurrent with count 2; count 3, a consecutive effective term of 16
months (1/3 the midterm of two years, doubled), and a consecutive one-year term for the
service of a prior prison term.3
       On appeal, defendant first contends that count 3 as charged incorrectly conflated
the misdemeanor section 417 charge with the alternate penalty provision contained in
section 186.22, subdivision (d) (section 186.22(d)), which resulted in charging error such
that count 3 failed to allege a crime.4 He also raises several sub-issues related to that
claim. He further contends that trial counsel was ineffective for failing to object to the




on appeal, but commendably concedes that “the record amply demonstrates [defendant’s]
understanding that the [People] had based count 3 upon [defendant’s] alleged brandishing
of a firearm.” The People completely ignore the error, arguing that defendant “was
properly charged in Count 3” while conceding “this case could have been pled cleaner
[sic],” an understatement we address in more detail post. Because the evidence showed
and the trial court instructed the jury that the deadly weapon at issue was a firearm, we
shall treat this erroneous designation as a typo and direct the trial court to correct the
abstract of judgment accordingly.
3 The trial court also imposed a consecutive eight-month prison term for a separate
conviction which is not at issue on this appeal.
4  Section 186.22 (d) provides in pertinent part that any person convicted of a
misdemeanor or felony offense committed for the benefit of a street gang with the
specific intent to promote, further, or assist in any criminal conduct by gang members, is
eligible for a state prison sentence. In this particular case, application of this penalty
provision to the misdemeanor brandishing charge had the practical effect of elevating the
misdemeanor charge to a felony.

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charging error and resulting sub-issues; and that section 654 requires that we stay
sentence on counts 1 and 3.
          The People agree that the sentence on count 1 should be stayed.
          We agree with the parties as to count 1. As we will explain, we find no prejudicial
error upon consideration of defendant’s remaining contentions.5 Accordingly, we shall
affirm.
                                            FACTS
          On February 17, 2011, about 2:00 a.m., Robert Binsfield, David Barker and
Mitchell Engstrom were walking to a party after drinking at a bar in Chico. Binsfield
stopped to talk with other friends while Barker and Engstrom continued walking.
Binsfield heard yelling and cursing, looked around a corner and saw defendant jogging
toward him holding a shotgun. Defendant yelled at Binsfield something like, “You want
to go” or “You want some of this.” Binsfield ran and hid behind a parked car.
          Officer Curtis Prosise was in his patrol car within a block of where defendant had
threatened Binsfield when he received a dispatch call of a Hispanic male, wearing a white
T-shirt, carrying a shotgun, and yelling “Chapman” and “Norte.” Prosise drove to the
area, saw defendant and shined his spotlight on him. Defendant fled and Prosise pursued
him. As defendant ran, Prosise heard metal striking the asphalt, but Prosise did not stop.
With the aid of another officer, he took defendant into custody. Prosise then returned to
where he had heard the metallic sound and found a loaded shotgun with the stock and
barrel modified.
          The parties stipulated that the Norteños were a criminal street gang and testimony
by a gang expert established that defendant was a member of the Chapman Town



5 Defendant originally argued for additional conduct credit pursuant to the October 1,
2011, amendments to sections 2933 and 4019, but later withdrew his request. (See
People v. Brown (2012) 54 Cal.4th 314.)

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Norteños. The expert further testified that defendant’s conduct in yelling gang terms
while carrying a shotgun in public view would benefit the Norteño street gang by
“instilling fear in their rivals and instilling fear in their victims and witnesses.” Further, a
higher-profile crime of this nature would receive significant media coverage which would
also benefit the gang by scaring people.
        Defendant rested without presenting any evidence. He argued that the evidence
failed to establish his identity as the person with the shotgun. 6
                                       DISCUSSION
                                               I
                   Count 3--Charging Error and Related Claims of Error
        Defendant first contends that count 3 must be reversed because it “did not allege a
crime.” He explains that count 3 incorrectly conflated the section 417 charge with the
alternate penalty provision contained in section 186.22(d), which resulted in charging
error. He further argues that the jury instructions were defective and the verdict form
invalid, all due to the charging error. He adds that the trial court erred in failing to
instruct the jury on the lesser-included offense of misdemeanor brandishing, again as a
consequence of the charging error.
        The People respond only that defendant “was properly charged in count 3” and
add that defendant received notice of the charges and allegations against him and that the
jury “was properly instructed on all the elements.” While they also “note” that section
186.22 (d) is indeed an alternate penalty provision and neither a substantive offense nor a
sentencing allegation, they do not address the relevance of that distinction. They fail to
respond to defendant’s additional arguments regarding the effects of the improper
charging.




6   Defendant does not claim insufficient evidence of his identity on appeal.

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       A.     Error in the Form of the Pleading
       Count 3 charged:
              “ . . . the crime of Exhibiting a Deadly Weapon, in violation of Penal
       Code Sections 417(a)(1) and Criminal Street Gang, a violation of Penal Code
       Section 186.22(d), an offense punishable as a Felony, was committed by
       CODEY LEE PALMER, who did willfully and unlawfully commit the public
       offense of Exhibiting a Deadly Weapon.” (Emphasis in original.)
              “It is further alleged in connection with the offense charged in Count 3 that
       the offense was for the benefit of, at the direction of, or in association with a
       criminal street gang, with the specific intent to promote, or assist in criminal
       conduct by gang members pursuant to Penal Code Section 186.22(d).
       Defendant argues that count 3 does not charge a crime, contending that because
section 186.22(d) is an alternative sentencing provision rather than a substantive offense
or an enhancement, the conjoining of section 186.22(d) and the section 417 offense7 adds
an element to the latter which is not within the statutory definition, thereby rendering the
offense nonexistent.
       We agree that section 186.22(d) is an alternative sentencing provision. (Robert L.
v. Superior Court (2003) 30 Cal.4th 894, 899 (Robert L.).) As such, it “‘prescribes an
added penalty to be imposed when the offense is committed under specified
circumstances. A penalty provision is separate from the underlying offense and does not
set forth elements of the offense or a greater degree of the offense charged. [Citations.]’
[Citation].” (Robert L., supra, 30 Cal.4th at p. 899.) To the extent that it was “joined”
with the section 417 misdemeanor offense to charge a single felony crime, the offense




7We noted ante the continuing error regarding the Penal Code section applicable to
misdemeanor brandishing of a firearm (section 417, subdivision (a)(2)).

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itself was improperly conflated with the penalty provision, constituting error in the
pleading of the offense.
       The California Constitution provides: “No judgment shall be set aside . . . for any
error as to any matter of pleading . . . unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” (Cal. Const., art VI, § 13.) Here, examination of the
record reveals no miscarriage of justice.
       Pursuant to CALCRIM No. 983, the trial court instructed the jury that defendant
was charged in count 3 with “brandishing a firearm” and that to prove him guilty of that
offense the People “must prove that: “1. The defendant drew or exhibited a firearm in the
immediate presence of someone else; AND 2. The defendant did so in a rude, angry, or
threatening manner.”
       Immediately following the CALCRIM No. 983 instruction, the court instructed the
jury pursuant to CALCRIM No. 1401 that defendant was charged in count 3 with
“exhibiting a deadly weapon as a gang offense,” and “[t]o prove this crime, the People
must prove that: 1. The defendant brandished a firearm. The definition and elements of
brandishing a firearm are contained in instruction #983 above; 2. The defendant
committed the crime for the benefit of, at the direction of, or in association with a
criminal street gang; AND 3. The defendant intended to assist, further, or promote
criminal conduct by gang members.”
       Because the jury was correctly advised of the elements the People were required to
prove to find defendant guilty of the brandishing offense as well as the section 186.22(d)
allegation, defendant suffered no miscarriage of justice from the error in the form of the
pleading.
       B.     Error in Instructing the Jury and Verdict Form
       Defendant also argues that the manner in which he was charged in count 3
“resulted in defective jury instructions” because the instructions did not make clear that

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the jury should first decide defendant’s culpability for the misdemeanor and then address
the penalty provision. Because defendant failed to object to the instructions he now
challenges, his claim of instructional error is forfeited on appeal unless the error resulted
in a miscarriage of justice. (People v. Battle (2011) 198 Cal.App.4th 50, 64-65.)
       We see no miscarriage of justice and no prejudicial error here. As we described
ante, the trial court instructed the jury regarding count 3 by reading CALCRIM No. 983
and CALCRIM No. 1401, as modified, seriatim. No. 1401 correctly directed the jury to
determine defendant’s guilt or innocence of the brandishing charge before considering
the other elements of the penalty provision. Defendant does not explain how the
instructions’ failure to further distinguish the requirements of the two separate Penal
Code sections from each other caused the jury to make any inappropriate determinations.
We shall not make his argument for him.8
       Similarly, although the verdict form tracked the charging document and repeated
its error, requiring the jury to find defendant “guilty” or “not guilty” of “EXHIBITING A
DEADLY WEAPON AND CRIMINAL STREET GANG, a violation of Section [sic]
417(a)(1) and 186.22(d) of the Penal Code, a Felony,” defendant does not argue how the
verdict form’s failure to separate the substantive offense from the penalty provision
prejudiced him. We see no prejudicial error.




8 Defendant argues that his conviction “may rest on an improper theory” as the jury
instructions and verdict form failed to accurately describe the substantive crime
(presumably because they combined the substantive offense with the penalty provision,
as we have described). Although he describes the doctrine, which we recognize, he does
not argue how it specifically applies to his case. As we decline to find prejudicial error in
the manner in which count 3 was charged and presented to the jury, we also disagree that
here the jury was presented with any “alternate theory” on which it could possibly have
based its decision to find defendant guilty.

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       C.     Lesser-Included Offense Instruction
       Defendant also contends that because the section 186.22(d) provision was charged
as an element of the brandishing offense, rendering it a felony charge, the trial court erred
in failing to instruct the jury sua sponte on the included offense of misdemeanor
brandishing. Although it is clear that misdemeanor brandishing was an included offense
in the brandishing offense as it was charged--as a hybrid of that very charge, modified
only to add the penalty provision--we see no basis to require its separate instruction.
       “[T]he trial court must instruct on a lesser offense necessarily included in the
charged offense if there is substantial evidence the defendant is guilty only of the lesser.”
(People v. Birks (1998) 19 Cal.4th 108, 118, emphasis added.) Here, the evidence at trial
established that defendant’s brandishing the shotgun would benefit the Norteño street
gang by “instilling fear in their rivals and instilling fear in their victims and witnesses.”
Further, a higher-profile crime of this nature would receive significant media coverage
which would also benefit the gang by scaring people. If the jury found defendant guilty
of brandishing the gun, which it did, then it necessarily would have found him guilty of
brandishing the gun for the benefit of the gang. There was simply no substantial
evidence that he brandished the gun for any reason other than to benefit the gang.9




9 Defendant points to the jury’s finding of not true on the gang allegations attached to
counts 1 and 2 as evidence that it should have been instructed on the lesser offense for
count 3. But finding defendant’s possession of the gun to benefit the gang is very
different than finding his brandishing of the gun to benefit the gang, particularly when,
as here, the evidence of the former was weak while the evidence of the latter was quite
compelling. In any event, it is well-settled that an acquittal on one charge does not
change the strength of the evidence on another, which might have been due to lenity or
other reasons. (See People v. Lewis (2001) 25 Cal.4th 610, 655–656; People v. Brown
(1985) 174 Cal.App.3d 762, 769; People v. Pahl (1991) 226 Cal.App.3d 1651, 1656–
1657.)

                                               8
                                               II
                              Ineffective Assistance of Counsel
       Defendant contends his trial counsel was constitutionally ineffective for failing to
call the trial court’s attention to the charging error in count 3 and the issues stemming
from that error. To establish ineffective assistance of counsel, defendant must establish
prejudice from the claimed deficiency. (In re Alvernaz (1992) 2 Cal.4th 924, 944-945.)
Because we have already determined that defendant suffered no prejudice from the
charging error in count 3 and the irregularities stemming therefrom, counsel was not
constitutionally ineffective for failing to seek correction of the error.
                                              III
                        Application of Section 654 to Counts 1 and 3
       Defendant contends the trial court violated section 654’s proscription against
multiple punishment when it failed to stay the sentences imposed on counts 1 (felon in
possession of a firearm) and 3 (exhibiting a deadly weapon). We agree as to count 1.
       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. . . .”
       A.     Count 1
       Counts 1 and 2 were based upon defendant’s possession only of the same shotgun
on a single occasion. In People v. Jones (2012) 54 Cal.4th 350 (Jones), our Supreme
Court held that section 654 prohibited multiple punishments for a defendant convicted of
“possession of a firearm by a felon, carrying a readily accessible concealed and
unregistered firearm, and carrying an unregistered loaded firearm in public.” (Jones,
supra, 54 Cal.4th at p. 352.) The court cited with approval People v. Perry (1974)
42 Cal.App.3d 451, which held that section 654 prohibited more than one punishment for
a defendant convicted of possession of a firearm by a felon and possession of an unlawful

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firearm, where possession was of the same weapon on a single occasion. (Jones, supra,
at p. 357.) Consequently, defendant’s sentence on count 1 must be stayed.
        B.     Count 3
        Citing Jones, among other cases, defendant argues his sentence on count 3 must
also be stayed under section 654. We are not persuaded.
        As we discussed ante, our Supreme Court recently held in Jones that “a single
possession or carrying of a single firearm on a single occasion may be punished only
once under section 654.” (Jones, supra, 54 Cal.4th at p. 357.) Here, the crimes of
conviction include brandishing as well as possession. As the applicable jury instructions
set forth, brandishing is different than mere “possessing” or “carrying”--it requires proof
that defendant drew or exhibited a firearm in a rude, angry, or threatening manner in the
immediate presence of someone else. Defendant did not merely possess or carry in this
case.
        Jones also clarified that “section 654 prohibits multiple punishment for a single
physical act that violates different provisions of law.” (Jones, supra, 54 Cal.4th at p.
358.) Here, clearly the evidence showed multiple physical acts. In Jones, the court
emphasized that the People had admitted in argument that the charges at issue constituted
“three different counts for the same exact conduct.” (Jones, supra, at p. 359.) In the
instant case, in contrast, the evidence showed and the People argued that defendant “was
walking around . . . carrying a shotgun . . . sometimes he’s walking around with [the gun]
. . . . Other times he’s confronting people with it out in front of him . . . .” Thus the
multiple physical acts pled and proven in this case further distinguish defendant’s
situation here from that of defendant’s situation in Jones.
        Under the facts of this case, it is clear that defendant possessed the shotgun both
before and after he brandished it, in a manner and time sufficiently separate and distinct
from his conduct in brandishing it, such that section 654 does not compel that his
sentence on count 3 be stayed. (See also People v. Jones (2002) 103 Cal.App.4th 1139,

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1142, 1144 [where defendant charged with felon in possession and shooting into an
inhabited dwelling, section 654 inapplicable where evidence shows the defendant arrived
at the scene of the primary crime already in possession of the firearm].)10
       Further, the evidence showed the offenses of possession and brandishing were not
incident to one intent and objective. (See Neal v. State of California (1960) 55 Cal.2d 11,
19.) “Multiple punishment is proper where the evidence shows that the defendant
possessed the firearm before the crime, with an independent intent.” (People v. Jones,
supra, 103 Cal.App.4th at p. 1144.) Here, as in People v. Jones, defendant’s possession
of the gun both before and after his brandishing of it suggests a separate intent than
simply to brandish it--much as the independent possession of the gun in People v. Jones
suggested a separate intent than simply to shoot into an inhabited dwelling. (See Kellett
v. Superior Court (1966) 63 Cal.2d 822, 824-825 [brandishing and possession of a gun
may properly be punished separately if the defendant has unrelated intent and objective
for committing the two crimes].)
                                      DISPOSITION
       The sentence on count 1 is stayed pursuant to Penal Code section 654. In all other
respects, the judgment is affirmed. The trial court is directed to prepare an amended
abstract of judgment reflecting the stay and correcting count 3 to reflect defendant’s
conviction pursuant to Penal Code section 417, subdivision (a)(2), and to forward a




10 Our Supreme Court clarified that it “did not intend to cast doubt” on cases such as
“People v Jones, supra, 103 Cal.App.4th 1139,” which involved the defendant’s
commission of a separate crime with a firearm he was not permitted to possess. (Jones,
supra, 54 Cal.4th at p. 358, fn. 3.)

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certified copy of the amended abstract to the Department of Corrections and
Rehabilitation.



                                                       DUARTE                 , J.



We concur:



           BLEASE                     , Acting P. J.



           MAURO                      , J.




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