P. v. Mesa 7/13/10 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D056280

Case Date: 10/28/2010

Preview:Filed 7/13/10

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. TOMMY ANGEL MESA, Defendant and Appellant.

D056280

(Super. Ct. No. RIF137046)

APPEAL from judgments of the Superior Court of Riverside County, Helios J. Hernandez, Judge. Affirmed in part; reversed in part with instructions.

Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.1

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Cristin Morneau, a certified law student, presented oral argument.

In separate incidents, Tommy Angel Mesa, a gang member, shot and severely wounded two complete strangers. He used the same gun in both incidents, and later was found in possession of the gun and several rounds of ammunition. Mesa was convicted of two counts of assault with a firearm, three counts of being a felon in possession of a firearm, one count of being a felon in possession of ammunition, and two counts of actively participating in a criminal street gang. With respect to the assault convictions, the jury found true great bodily injury and personal firearm allegations. With respect to one of the assault convictions and one of firearm possession counts, the jury found gang participation allegations true. Mesa does not challenge his convictions on the substantive counts or the sufficiency of the evidence supporting the enhancements. Nonetheless, Mesa raises a number of sentencing issues. First, he contends, and the Attorney General agrees, that with respect to one of the assault convictions, the trial court erred in imposing the gang enhancement. As Mesa points out, Penal Code2section 1170.1, subdivsions (f) and (g), prevented the trial court from imposing the gang enhancement along with either the firearm enhancement or the great bodily injury enhancement. Secondly, he contends the trial court erred in imposing consecutive sentences on the three firearm possession convictions. He argues the record shows he had continuous possession of the firearm and that, in light of that continuous possession, section 654 required that imposition of sentencing be stayed on two of the firearm possession counts.

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All further statutory references are to the Penal Code unless otherwise specified. 2

We agree. A felon's continuous possession of a single firearm does not permit multiple punishments for violation of the statute that prohibits felons from possessing a firearm. Mesa also argues section 654 prevents separate punishments for assault and for participation in a criminal street gang. We disagree with this contention. The criminal street gang statute punishes conduct and intentions that are separate from the conduct and intentions that give rise to culpability for assault with a firearm. Finally, Mesa argues he should not have been punished for both possessing a firearm and possessing ammunition. We disagree with this contention as well. Where, as here, a felon has possession of both a firearm and ammunition that is not in the firearm, separate punishments may be imposed. Accordingly, we reverse Mesa's convictions in part and remand for further proceedings. FACTUAL BACKGROUND The record shows Mesa was a member of the Coroneros set of the Corona Varios Locos criminal street gang. On the evening of April 27, 2007, Ghalen W. was asleep next to his four-year-old son in the apartment in Corona where he lived with his two other sons and their mother. April 27 was prom night and Ghalen's oldest son Jeron was at home that evening with his prom date. At around 10 p.m., Jeron woke Ghalen up and asked him to go outside with him and his date so that they could meet his date's mother. Jeron told his father a group of guys were hanging around outside the apartment. 3

Ghalen went outside his apartment and saw a group of five or six Hispanic males, including Mesa. Ghalen told his son and his date to stay near the apartment while Ghalen went to see if the date's mother had arrived. As Ghalen walked toward the street, Mesa confronted him and said: "Why are you walking tough in my neighborhood, Holmes?" Ghalen believed this statement meant Mesa and the others were members of a gang and he was in their territory. Ghalen told Mesa he was not from the area, hoping that would satisfy Mesa. It did not. Mesa responding by saying: "But you're still walking tough in my neighborhood." Ghalen then explained he was just there for his son's prom; Mesa repeated the statement "You're still walking tough in my neighborhood." As Mesa continued walking towards Ghalen, Ghalen remembered one of the doors of his car, which was in front of him, was unlocked. Mesa pulled out a gun, pointed it at Ghalen and began shooting as Ghalen dove into his car. Ghalen heard three shots fired and felt severe pain. Mesa looked in the back window of the car and began running. Ghalen had been shot in the side and the bullet traveled through his body and exited on the left side of his torso. Two days after Ghalen was shot, on April 29, 2007, Alvin Pierre was riding his bike to a shopping center in Corona. As Pierre rode into the parking lot, he heard Mesa say: "What the fuck are you looking at?" Pierre rode past Mesa, got off his bike near a store and tried to ask Mesa what he had said. Before Pierre could complete a sentence, Mesa pulled out a gun and shot Pierre in the groin. The bullet entered Pierre's left leg, traveled through his scrotum, and exited from his right leg. Pierre's shattered left testicle had to be removed. 4

Police arrested Mesa in his home on May 30, 2007. Officers found Mesa, wearing a bullet proof vest, hiding in a closet. When Mesa was found, he was wearing an empty gun holster and had a .45 caliber magazine in his front pocket with 10 rounds of .45 caliber ammunition in it. The police also found a handgun in the closet; a ballistics expert testified shell casings found near the scene of the Ghalen and Pierre shootings had been fired from the handgun. Police also found a duffel bag in the closet, and in the duffel bag they found a .22 caliber rifle loaded with seven rounds of ammunition and 46 rounds of additional ammunition. TRIAL COURT PROCEEDINGS With respect to the Ghalen shooting, Mesa was charged with attempted murder, assault with a firearm, being a felon in possession of a firearm, and being a participant in a criminal street gang. (Counts 1-4.) With respect to the Pierre shooting, Mesa was charged with similar counts of attempted murder, assault with a firearm, being a felon in possession of a firearm, and being a participant in a criminal street gang. (Counts 5-8.) In addition, with respect to the circumstances which existed at the time of his arrest on May 30, 2007, Mesa was charged with an additional count of being a felon in possession of a firearm (count 9) and one count of being a felon in possession of ammunition (count 10). All three firearm possession counts identified a .45 caliber handgun as the firearm Mesa unlawfully possessed. The jury could not reach verdicts on either the Ghalen or Pierre attempted murder counts, and the trial court dismissed those counts pursuant to section 1385. 5

As to both the Ghalen and Pierre shootings, the jury found Mesa guilty of assault with a firearm, being a felon in possession of a firearm, and participating in a criminal street gang. With respect to his arrest, the jury found Mesa guilty on the third count of firearm possession and the ammunition possession count. In addition to the substantive crimes for which he was found guilty, the jury found true a number of special circumstance allegations. With respect to both assault convictions, the jury found Mesa had committed great bodily harm and had personally used a firearm. With respect to the Ghalen shooting and Mesa's possession of a firearm during the shooting, the jury found true gang enhancement allegations. Mesa admitted the truth of two prison sentences. The trial court imposed a total sentence of 39 years 8 months. The total term imposed included 23 years in consecutive sentences on the enhancements the jury found true with respect to the assault on Ghalen: three years for the great bodily injury enhancement, 10 years for the personal use of a firearm enhancement, and 10 years for the gang enhancement. Mesa was eligible for a full strength 10-year gang enhancement, rather than the otherwise applicable two-, three- or four-year enhancement, "only because he 'use[d] a firearm which use [was] charged and proved as provided in . . . Section 12022.5.' [Citation.]" (People v. Rodriguez (2009) 47 Cal.4th 501, 509.) With respect to the Ghalen felon in possession of a firearm count, the trial court imposed a consecutive sentence of eight months plus 16 months on the gang enhancement. The trial court imposed consecutive eight-month sentences on the remaining two firearm counts and an eight-month consecutive sentence on the 6

ammunition possession count. On the two gang participation counts, the court imposed consecutive eight-month sentences. DISCUSSION I In his first argument on appeal, Mesa contends and, as we indicated at the outset, the Attorney General agrees, the trial court erred in imposing sentence on all three enhancements found true with respect to the assault on Ghalen. In People v. Rodriguez, supra, 47 Cal. 4th at page 509, the court held that, where, as here, the 10-year enhancement for gang participation is based on a defendant's use of a firearm in commission of the underlying offense, the trial court may not also impose a separate enhancement for the personal use of a firearm under section 12022.5, subdivision (a). The court held that, under those circumstances, imposition of both enhancements is barred by section 1170.1, subdivision (f), which provides in pertinent part: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." (People v. Rodriguez, supra, 47 Cal.4th at p. 509.) As the court in People v. Rodriguez determined, given these circumstances, the proper remedy is "not to strike the punishment under section 12022.5 but to reverse the trial court's judgment and remand the matter for resentencing. [Citation.] Remand will give the trial court an opportunity to restructure its sentencing choices in light of our

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conclusion that the sentence imposed here violated section 1170.1's subdivision (f)." (Id. at p. 509.)3 II Next, Mesa contends the trial court erred in imposing consecutive sentences on all three felon in possession of a firearm convictions. We agree with Mesa. Section 654, subdivision (a), provides in 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 punishment for a single act or for a course of conduct comprising indivisible acts. 'Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.' [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.' [Citation.]" (People v. Evers (1992) 10 Cal.App.4th 588, 602.) In People v. Spirlin (2000) 81 Cal.App.4th 119, 130, the court found that where, as here, the evidence showed the defendant had the same handgun on three separate occasions, but there was no evidence which suggested he ever lost possession of the weapon, the defendant could only be punished once for violation of section 12021. In People v. Spirlin the defendant used a gun in two separate robberies committed within 3 As Mesa points out, section 1170.1, subdivision (g), provides a similar limitation when, as here, a great bodily injury enhancement has been found true. 8

one month. Six days after the last robbery, the defendant was arrested and found with the same gun. His wife told police he had the gun for a couple months before his arrest. In determining only one punishment could be imposed, the court stated: "The key inquiry here is whether defendant's objective and intent in possessing the handgun on all three occasions were the same, thus making the crime one indivisible transaction subject only to one punishment under section 654. [Citation.] Section 12021 does not require any specific criminal intent; general intent to commit the proscribed act is sufficient. [Citation.] The act proscribed by section 12021 is possession of a firearm by a convicted felon. [Citation.] Possession may be either actual or constructive as long it is intentional. [Citation.] 'The proof need not conform to the exact date laid in the information, it being sufficient to prove the commission of the offense at any time prior to the filing of the information within the statutory period--the commission of the act here charged is not the kind that does not constitute a crime unless committed on a specific date; time is not of the essence or a material ingredient of the offense . . . .' [Citation.]" (People v. Spirlin, supra, 81 Cal.App.4th at p. 130.) The court concluded the defendant completed the offense once he took possession of the gun, and in light of the fact there was no suggestion in the record he ever lost possession, he could not be said to have completed separate violations of section 12021 when he committed the robberies. While the court found that what the defendant did with the gun "i.e. commit the robberies, were 'separate and distinct transaction[s] undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon' [citation], the same cannot be said of his 9

continuous possession of the weapon. In other words, defendant's intent to possess the weapon as a felon did not change each time he committed a robbery or when he was arrested and the gun confiscated." (People v. Spirlin, supra, 81 Cal.App.4th at pp. 130131.) We agree with the holding and reasoning in People v. Spirlin. The conduct proscribed by section 12021, i.e. the actual or constructive possession of a firearm by a felon, is by its nature continuous. As the court in People v. Spirlin suggested, that being the case, where possession of a firearm has not been interrupted, there is no acceptable rationale by which such continuous possession can be divided so that separate intention or objectives can be identified. Thus, we decline the Attorney General's suggestion that we depart from People v. Spirlin. Here, as in People v. Spirlin, there is no evidence Mesa ever lost actual or constructive possession of the .45 caliber handgun which was the subject of his three convictions for violation of section 12021. Thus, under section 654 he may only be punished for one of those convictions. III Next, Mesa contends that under section 654 he could not be punished for both assaulting a victim with a firearm and participation in a criminal street gang. Accordingly, he contends the trial court erred in imposing consecutive eight-month sentences for the two criminal street gang convictions. We disagree with this contention.

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A. The California Street Terrorism and Prevention Act The California Street Terrorism and Prevention Act (the Street Gang Act), section 186.20 et seq. was enacted in 1988. (Stats. 1988, ch. 1242,

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