Filed 8/8/13 P. v. Sult CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055060

v.                                                                       (Super.Ct.No. FSB1000973)

JAMES JESSE SULT,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Duke D. Rouse,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Marissa

Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       On March 26, 2010, the San Bernardino County District Attorney filed an

information charging defendant and appellant James Jesse Sult with second degree

robbery (Pen. Code, § 211, counts 1, 11-12, & 20), first degree residential robbery (Pen.

Code, § 211, counts 2 & 3), possession of a firearm by a felon with a prior conviction

(former Pen. Code, § 12021, subd. (a)(1) [now § 29800, subd. (a)(1) (Stats. 2010,

ch. 711, § 6)],1 counts 4, 8, 14, & 21)2, first degree burglary with a person present (Pen.

Code, § 459, counts 5, 13, & 15), attempted carjacking (Pen. Code, §§ 664/215, subd. (a),

count 6), assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 7), attempted first

degree residential robbery (Pen. Code, §§ 664/211, counts 9 & 10), unlawful driving or

taking of a vehicle (Veh. Code, § 10851, subd. (a), count 16), evading an officer (Veh.

Code, § 2800.2, subd. (a), count 17), assault upon a peace officer (§ 245, subd. (c), counts

18 & 19), and possession of a controlled substance (Health & Saf. Code, § 11377,

subd. (a), count 22). As to counts 1-3, 6, 9-12, and 20, the information alleged that

defendant personally used a firearm, within the meaning of Penal Code section 12022.53,

subdivision (b). As to counts 5, 7, 13, 15, and 16, the information alleged that defendant

personally used a firearm, within the meaning of Penal Code sections 1203.06,




       1   See People v. Jones (2012) 54 Cal.4th 350, 352.

       2 To be consistent with the parties’ briefs, and for the sake of clarity, we will
simply refer to former section 12021 as section 12021 in this opinion.


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subdivision (a)(1), and 12022.5, subdivision (a). The information also alleged that

defendant served two prior prison terms. (Pen. Code, § 667.5, subd. (b).)3

         Defendant pled guilty to all counts and enhancements. A trial court sentenced

defendant to a total sentence of 38 years 10 months,4 as follows: as to the principal term

in count 2, the upper term of six years, plus a consecutive 10 years for the firearm use

enhancement; as to count 1, a consecutive one year, plus a consecutive three years four

months on the firearm use enhancement; on count 6, a consecutive 10 months, plus three

years four months on the firearm use enhancement;5 as to count 9, a consecutive eight

months, plus three years four months on the firearm use enhancement; as to count 15, a

consecutive one year four months, plus one year four months on the firearm use

enhancement; as to count 18, a consecutive one year four months; and, as to count 20, a

consecutive one year, plus three years four months on the firearm use enhancement. As

to counts 3, 10-14, 19, 21-22 and their enhancements, the court imposed concurrent




         3   All further statutory references will be to the Penal Code, unless otherwise
noted.

         4The court announced that the total term imposed was 39 years 10 months.
However, the terms imposed actually added up to 38 years 10 months. We note that the
clerk’s transcript and the abstract of judgment correctly state that the total term imposed
was 38 years 10 months.

         5The court erroneously referred to the attempted carjacking conviction as count
3. It is count 6.



                                                3
terms. As to the remaining counts, the court imposed but stayed their sentences pursuant

to section 654.6 The court also imposed two 1-year terms for the prison priors.

       On appeal, defendant contends (1) the trial court abused its discretion in imposing

the upper term on count 2, and (2) the court should have stayed the sentence on count 14

under section 654. We affirm.

                              FACTUAL BACKGROUND

       Defendant pled guilty to all counts, thereby admitting that, from the period of

February 18, 2010 through March 9, 2010, he committed four counts of second degree

robbery (Pen. Code, § 211, counts 1, 11-12, & 20), two counts of first degree residential

robbery (Pen. Code, § 211, counts 2 & 3), four counts of possession of a firearm by a

felon with a prior conviction (Pen. Code, § 12021, subd. (a)(1), counts 4, 8, 14, & 21),

three counts of first degree burglary with a person present (Pen. Code, § 459, counts 5,

13, & 15), attempted carjacking (Pen. Code, §§ 664/215, subd. (a), count 6), assault with

a firearm (Pen. Code, § 245, subd. (a)(2), count 7), two counts of attempted first degree

residential robbery (Pen. Code, §§ 664/211, counts 9 & 10), unlawful driving or taking of

a vehicle (Veh. Code, § 10851, subd. (a), count 16), evading an officer (Veh. Code,

§ 2800.2, subd. (a), count 17), two counts of assault upon a peace officer (Pen. Code,

§ 245, subd. (c), counts 18 & 19), and possession of a controlled substance (Health &

Saf. Code, § 11377, subd. (a), count 22).


       6 We note that the court included counts 13 and 14 again when it announced the
counts to which it was going to apply section 654. The court apparently erred in doing
so. (See § II., post.)


                                             4
                                        ANALYSIS

             I. The Trial Court Properly Imposed the Upper Term on Count 2

        Defendant argues the court improperly imposed the upper term on count 2, since

the court relied on improper factors, and the aggravating factors did not outweigh the

mitigating factors. We conclude that the court properly sentenced defendant to the upper

term.

        A. Standard of Review

        “‘Sentencing courts have wide discretion in weighing aggravating and mitigating

factors [citations], and may balance them against each other in “qualitative as well as

quantitative terms” [citation] . . . . We must affirm unless there is a clear showing the

sentence choice was arbitrary or irrational.’ [Citation.]” (People v. Avalos (1996) 47

Cal.App.4th 1569, 1582.)

        B. Factual Background

        Defendant pled guilty to first degree residential robbery (§ 211) in count 2. The

victim of this offense was Dianne Crowther (the victim). She presented a victim impact

statement at the sentencing hearing. She said she was 66 years old, and her husband was

74 years old. On February 21, 2010, they sat down to watch television when their dogs

started to bark. They looked up to see a masked man (defendant) standing in their

bedroom about five feet away from them, pointing a large gun at them. Defendant

grabbed her by the arm, pulled her up, and held the gun behind her ear. He demanded

that she and her husband take him to their safe. Defendant continually pointed his gun at

the victim’s husband, directed him to take him to the safe, and asked him to show him


                                              5
where his wallet was. Defendant also held the gun at the victim’s temple while he took

money from her purse. Defendant held his gun to the victim’s head for over 15 minutes.

At one point, defendant took the victim and her husband to the closet and had them kneel

down. Defendant “put the gun to the top of [her] head,” and the victim thought he was

going to execute them.

       C. The Court Properly Considered the Factors

       At the sentencing hearing, the court stated numerous reasons for imposing the

upper term on count 2. The court found that the following aggravating factors applied:

(1) there was a threat of great bodily harm; (2) some of the victims were particularly

vulnerable, based upon their age and circumstances; (3) there was planning; (4) defendant

had prior convictions; (5) he had served prior prison terms; and (6) he was on parole

when the crimes were committed. “[A] court needs only one factor to impose the

aggravated term. [Citation.]” (People v. Kelley (1997) 52 Cal.App.4th 568, 581; see also

People v. Osband (1996) 13 Cal.4th 622, 730.) The court here listed not just one but

several factors that adequately supported the imposition of the aggravated term.

       Defendant asserts that the aggravating factors used by the court were: (1) the

threat of great bodily harm; (2) victim vulnerability; and (3) defendant’s prior

convictions. He neglects to mention the three other factors cited by the court. Defendant

proceeds to argue that the court should have disregarded the three factors he asserted. He

states that the first factor relied upon by the court (the threat of great bodily harm) was

based on the fact that he used a weapon during the commission of the robbery in count 2.

He claims the court improperly relied on this factor because he received a separate 10-


                                              6
year term on the firearm use. However, the court did not mention the use of a gun in

finding this aggravating factor. Moreover, the record shows that defendant threatened to

kill the victim if she “screw[ed] up” or did not do what he told her to do. Such direct

verbal threats supported the court’s use of the “threat of great bodily harm” aggravating

factor. (People v. Edwards (1981) 117 Cal.App.3d 436, 445-446.)

       Defendant next argues that the court improperly relied on victim vulnerability as

an aggravating factor. He claims that the court could not rely on the fact that defendant

committed the robbery against an older victim since “the victim’s age and status as a

robbery victim were already elements of the offense.” He asserts that “by definition, any

victim of a robbery offense is a particularly vulnerable victim.” Defendant cites People

v. Quinones (1988) 202 Cal.App.3d 1154 (Quinones), overruled in part by People v. Soto

(2011) 51 Cal.4th 229, 248, footnote 12, and People v. Alvarado (2001) 87 Cal.App.4th

178 (Alvarado) in support of his position. However, these cases are easily

distinguishable. The defendant in Quinones was convicted of committing a lewd or

lascivious act on a child under the age of 14. (Quinones, at p. 1159; § 288.) Thus, age

was an element of the offense. In Alvarado, the court imposed a sentence enhancement

for a specified offense against a person who was 65 years or older. (Alvarado, at p. 193;

§ 667.9, subd. (a).) Unlike these cases, the victim’s age and vulnerability here are not

elements of robbery. Section 211 only requires a finding of “the felonious taking of

personal property in the possession of another, from his person or immediate presence,

and against his will, accomplished by means of force or fear.”




                                             7
       Defendant further contends that the court improperly relied on the factor that he

had suffered prior offenses, since he received enhancements for his two prior prison

terms under section 667.5, subdivision (b). He appears to be claiming that the court made

an improper dual use of facts. However, California Rules of Court, rule 4.421(b)(2),

permits the court to use as an aggravating factor the fact that “[t]he defendant’s prior

convictions as an adult or sustained petitions in juvenile delinquency proceedings are

numerous or of increasing seriousness.” The record here reflects that, excluding the two

prison priors, defendant had suffered six other prior convictions. Thus, the court could

easily establish the aggravated sentence without the prison priors. (See People v.

Bejarano (1981) 114 Cal.App.3d 693, 706.) Moreover, absent an affirmative indication

in the record that the trial court included the prison priors as part of defendant’s criminal

pattern under California Rules of Court, rule 4.421(b)(2), we will not presume they were

so used. (Bejarano, at p. 706.)

       Furthermore, contrary to defendant’s contention that the court failed to adequately

consider the mitigating factors, the record reflects that the court took into consideration

all of the factors in aggravation and mitigation as contained in the probation reports,

recommendation report, and the sentencing memo filed on behalf of defendant. We also

note that the court heard and considered defense counsel’s argument regarding mitigating

circumstances.

       In view of the numerous aggravating factors, we cannot say that the court’s

decision to impose the upper term on count 2 was arbitrary or irrational. Thus, we must

affirm the court’s decision. (Avalos, supra, 47 Cal.App.4th at p. 1582.)


                                              8
                             II. Section 654 Does Not Apply

       The record shows that, when pronouncing judgment, the trial court imposed a

concurrent two-year term on count 14, the felon in possession of a firearm (§ 12021)

conviction. However, the court thereafter stated, “The following counts will be—

sentence will be imposed but stayed under Penal Code section 654.” The court went on

to list the remaining counts and included count 14 again. On appeal, the parties do not

mention that the court announced the sentence on count 14 twice. Rather, both parties

argue as if the court just imposed the term concurrently on count 14. Defendant points

out that the court imposed firearm use enhancements on counts 9 through 13.

(§§ 12022.53, subd. (b), 1203.06, subd. (a)(1), and 12022.5, subd. (a).) He then claims

that the evidence shows he possessed a firearm only in conjunction with counts 9 through

13. Thus, he avers that section 654 barred the sentence on the felon in possession of a

firearm conviction in count 14. The People respond that the court properly sentenced

defendant to the concurrent term on count 14 because it constituted a separate offense

under section 654. Assuming the court misspoke when it listed count 14 among the

sentences to which it applied section 654, as the parties appear to do, we disagree with

defendant that section 654 applied to bar the sentence on that count.7



       7 We note that the clerk’s transcript and the abstract of judgment reflect that the
court imposed a sentence on count 14 and ran it concurrent to the principal count. They
do not reflect that the court stayed the sentence on count 14 under section 654. We
further observe that the court similarly imposed the sentence on count 13 concurrently
and then apparently misspoke in listing count 13 among the sentences to which it applied
section 654. The clerk’s transcript and abstract of judgment reflect that the court ran the
                                                                 [footnote continued on next page]


                                             9
        Section 654, subdivision (a), provides in pertinent 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

precludes multiple punishments not only for a single act, but also for an indivisible

course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of this

statute is to prevent multiple punishment for a single act or omission, even though that act

or omission violates more than one statute and thus constitutes more than one crime.”

(People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 (Hutchins).)

        “The question whether section 654 is factually applicable to a given series of

offenses is for the trial court, and the law gives the trial court broad latitude in making

this determination. Its findings on this question must be upheld on appeal if there is any

substantial evidence to support them. [Citations.] ‘We must “view the evidence in a

light most favorable to the respondent and presume in support of the [sentencing] order

the existence of every fact the trier could reasonably deduce from the evidence.

[Citation.]” [Citation.]’ [Citation.]” (Hutchins, supra, 90 Cal.App.4th at p. 1312.)

        Section 12021, subdivision (a), forbids convicted felons from possessing any

firearm. “Whether a violation of section 12021 . . . constitutes a divisible transaction

from the offense in which he employs the weapon depends upon the facts and evidence of


[footnote continued from previous page]
sentence on count 13 concurrent to the principal count, as well. There is no issue on
appeal regarding count 13.



                                              10
each individual case. [Citation.] Thus where the evidence shows a possession distinctly

antecedent and separate from the primary offense, punishment on both crimes has been

approved. [Citations.] On the other hand, where the evidence shows a possession only in

conjunction with the primary offense, then punishment for the illegal possession of the

firearm has been held to be improper where it is the lesser offense. [Citations.]” (People

v. Venegas (1970) 10 Cal.App.3d 814, 821.)

       For example, in People v. Ratcliff (1990) 223 Cal.App.3d 1401 [Fourth Dist., Div.

Two], the defendant was convicted of two counts of robbery with the use of a firearm and

with being a felon in possession of a handgun. (Id. at p. 1404.) He argued that the

firearm use and being a felon in possession of a concealable firearm were “part of a

continuous transaction” and, as a result, the sentence on the felon in possession charge

should have been stayed pursuant to section 654. (Ratcliff, at pp. 1407-1408.) In

analyzing the existing authorities on the issue, this court “distill[ed] the principle that if

the evidence demonstrates at most that fortuitous circumstances put the firearm in the

defendant’s hand only at the instant of committing another offense, section 654 will bar a

separate punishment for the possession of the weapon by an ex-felon.” (Id. at p. 1412.)

This, however, was not such a case. Rather, the evidence showed the defendant used a

handgun to commit the robberies about an hour and a half apart, and that he possessed the

handgun when he arrived at the scene of the first robbery. When he was arrested half an

hour later, he still had the handgun in his possession. (Id. at p. 1413.) We concluded

section 654 did not preclude separate punishments because “[a] justifiable inference from

this evidence is that defendant’s possession of the weapon was not merely simultaneous


                                               11
with the robberies, but continued before, during and after those crimes.” (Ratcliff, at

p. 1413.)

       Here, there is substantial evidence in the record to support a finding that

defendant’s possession of the handgun was “distinctly antecedent and separate” from the

offenses he committed in counts 9-13. The police report states defendant told a police

detective he purchased a .45-caliber gun, extra magazine, and ammunition for $450 about

six weeks prior to March 6, 2010, the date on which he committed the offenses in counts

9-13. He said he bought the gun for protection. Thus, contrary to defendant’s claim, the

evidence does not show that he possessed the firearm “only in conjunction with” the

offenses in counts 9-13. Rather, it shows that he possessed a firearm for several weeks

before he committed those offenses.

       We conclude that the felon in possession offense was independent of and

separable from the offenses defendant committed in count 9-13. Thus, section 654 does

not preclude a separate punishment for this offense.




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                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                               HOLLENHORST
                                                             J.
We concur:


RAMIREZ
                    P. J.


MILLER
                       J.




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