P. v. Costa

Filed 2/21/07 P. v. Costa CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL SCOTT COSTA,
Defendant and Appellant.
H029681
(Santa Clara County
Super.Ct.Nos. CC238138 &
210852)
Defendant Michael Scott Costa appeals from a judgment entered following his
entry of pleas of nolo contendere and his admission of enhancement allegations. In
consolidated proceedings, defendant pleaded no contest to 17 counts, namely, 12 counts
of possession of a firearm by a felon (Pen. Code, § 12020, subd. (a)(1)),1 two counts of
possession of ammunition by a felon (§ 12316, subd. (b)), one count of perjury (§ 118,
subd. (a)), one count of conspiracy (§§ 182, subd. (a)(1), 12021, subd. (a)), and one count
of misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (c)). The
court sentenced defendant to 22 years, eight months in prison; the sentence included an
upper term sentence on the perjury conviction.
Defendant presents two challenges on appeal. First, he claims that the court erred
in imposing an upper term sentence for the perjury conviction (in superior court case
1 All further statutory references are to the Penal Code unless otherwise stated.

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number 210852) in violation of his Sixth Amendment right to a jury trial and his
Fourteenth Amendment right to due process. He claims that under Blakely v. Washington
(2004) 542 U.S. 296 (Blakely), he was entitled to have a jury determine beyond a
reasonable doubt any aggravating facts that were used as prerequisites to the imposition
of an upper term sentence. Second, he contends that the sentence for the ammunition-
possession conviction (count 6 in superior court case number CC238138) should have
been stayed pursuant to section 654.
We conclude, based upon a very recent controlling decision of United States
Supreme Court (see Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]
(Cunningham)), that there was Blakely error. We hold further that the sentence for the
ammunition-possession conviction did not violate section 654. We therefore reverse the
judgment and remand for resentencing in light of the holding in Cunningham.
FACTS
Since defendant pleaded nolo contendere to all charges, we present a summary of
the evidence relevant to the challenges on appeal based principally upon information
contained in the probation report:
I. Superior Court Case Number 210852
A. Indictment
In superior court case number 210852, defendant was charged by indictment filed
on January 23, 2004, with two counts, namely, perjury by filing a false application for a
driver’s license or identification card, a felony (§ 118, subd. (a)—count 1); and
possession of ammunition by a felon, a felony (§ 12316, subd. (b)—count 2).2
2 The indictment alleged further that defendant had suffered four prior “strike”
convictions (§§ 667, subds. (b)-(i), 1170.12).

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B. Underlying Facts
On October 12, 2000, defendant was cited for driving with a suspended license
and other Vehicle Code violations. Defendant’s vehicle was impounded and an inventory
search disclosed, among other things, one shotgun shell (count 2)
On February 16, 2001, defendant was again stopped for Vehicle Code violations.
He presented the officers with a California driver’s license with the name of Robert
Armstrong; the license contained a photograph of defendant. He was arrested and his
vehicle was impounded. In the course of the investigation, the police determined that on
October 13, 2000, defendant had submitted a false application for a driver’s license to the
Department of Motor Vehicles in the purported name of Robert Armstrong, stating that
he had made no previous applications for a California driver’s license or identification
card in a different name (count 1).
II. Superior Court Case Number CC238138
A. Information
In superior court case number CC238138, defendant was charged by information
filed September 12, 2003, with 15 counts, namely, 12 counts of possession of a firearm
by a felon (§ 12021, subd. (a)(1)); misdemeanor possession of more than 28.5 grams of
marijuana (Health & Saf. Code, § 11357, subd. (c)—count 5); possession of ammunition
by a felon, a felony (§ 12316, subd. (b)—count 6); and conspiracy to possess firearms as
a felon (§§ 182, 12021, subd. (a)(1)—count 15). Counts 1 through 4 charged defendant
with having possessed four different firearms between September 8, 2001, and October 9,
2001. Counts 7 through 9 charged defendant with possession of firearms (rifles) between
January 10, 2000, and December 31, 2000. He was charged with possession of a firearm
(Kimber pistol) in count 10, occurring between December 1, 1999, and October 9, 2001.
And defendant was charged in counts 11 through 14 with possession of four different

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handguns between January 1, 2001, and December 31, 2001.3 Many of the firearms were
registered in the name of defendant’s wife, Jessica Ann Costa (Jessica), or in the name of
one of defendant’s known associates.
B. Underlying Facts
Defendant was under surveillance by a task force (Santa Clara County Special
Enforcement Team [SCCSET]) for suspicion of marijuana trafficking. On October 2,
2001, a search of trash by officers yielded various notes and ledgers that evidenced
transactions involving money (hundreds of thousands of dollars) and marijuana, as well
as bubblewrap from Mailboxes, Etc. that contained marijuana residue. On the same date,
agents of the Internal Revenue Service (IRS) interviewed a former employee of
defendant, who stated that he had seen a number of guns, marijuana, and money at
defendant’s home.
On October 8, 2001, police officers in El Paso, Texas, interviewed defendant and
another suspect in an El Paso hotel room. The officers found in the hotel room a loaded
Smith and Wesson 10 mm. handgun registered to Jessica (count 1), ammunition for other
firearms, cocaine, and a small quantity of marijuana. Defendant possessed over $25,000
in cash. A search of defendant’s vehicle yielded, among other things, a loaded .45 caliber
Glock handgun (count 2), a loaded Kimber Pro Carry .45 caliber handgun (count 3), and
a loaded Mossberg shotgun (count 4). Defendant admitted that he had arranged a cocaine
transaction in Texas.
On October 9, 2001, SCCSET officers, having been informed about the events in
El Paso the previous day, obtained a search warrant for defendant’s home and vehicle.
They executed the search warrant and found, among other things, one and one-half
ounces of marijuana (count 5), a loaded Kimber .45 caliber firearm registered to Jessica
3 The information alleged further that defendant had suffered four prior “strike”
convictions (§§ 667, subds. (b)-(i), 1170.12).

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(count 10), “ammunition for several guns” (count 6), and receipts for over $17,000 worth
of guns purchased by defendant’s wife and a third party.4
On November 2, 2001—based upon receipts found during the prior search of
defendant’s residence—SCCSET officers interviewed a San Jose gun dealer. The dealer
provided transaction records for the seized receipts evidencing the purchase by Jessica of
approximately $13,000-worth of weapons, namely, five assault rifles, one handgun, and
one match grade rifle (count 15). Steven Bartnek, an associate of defendant, helped
Jessica select the weapons, and she reportedly said, “ ‘They were gifts for her husband’
(the defendant).”
A second search of defendant’s residence was conducted on April 10, 2002.
During the search, photographs were discovered depicting defendant and his associates
displaying various rifles (counts 7 through 9). This was consistent with information
SCCSET officers had learned previously concerning Jessica’s acquisition of rifles from
the San Jose gun dealer for her husband.
On December 11, 2002, SCCSET officers met with Adrienne Dell, the attorney for
defendant’s wife. Dell delivered to the officers a gun case that contained the guns found
in defendant’s custody and control in El Paso Texas on October 8, 2001, namely, a 10
mm. Smith and Wesson pistol registered to Jessica (count 1), a .45 caliber Glock pistol
registered to Michael Sprague, an associate of defendant (count 2), a .45 caliber Kimber
pistol registered to Bartnek (count 3), and a .12 gauge Mossberg shotgun registered to
Bartnek (count 4).5
4 The search also disclosed records of various narcotics and gun transactions, a
spreadsheet showing that defendant made monthly payments of over $48,000 for various
homes in the San Jose area, and a spreadsheet listing 22 vehicles.
5 The information concerning the weapons possession offenses charged in counts
11 through 14 does not appear in the probation report. We glean it from the
prosecution’s memorandum in opposition to defendant’s motion filed pursuant to People
v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

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PROCEDURAL BACKGROUND
On September 28, 2004, defendant entered a plea of nolo contendere to both
counts charged in the indictment in superior court case number 210852, and to all 15
counts charged in the information in superior court case number CC238138. Defendant
also admitted the allegations in both cases that he had suffered four prior “strike”
convictions. Defendant filed a motion to strike the prior “strike” allegations, pursuant to
Romero, supra, 13 Cal.4th 497. On October 25, 2005, the court granted the Romero
motion in part, striking three of the four “strike” convictions. Immediately thereafter,
defendant was sentenced to 22 years, eight months in state prison. He was sentenced to
eight years in prison in connection with the perjury conviction in superior court case
number 210852 (the upper term of four years for the offense, doubled because of his prior
“strike” conviction, pursuant to §§ 667, subds. (b)-(i) and 1170.12). Defendant was
sentenced to a consecutive one year, four month term for the count 2 conviction in that
case. In superior court case number CC238138, the court sentenced defendant to 10
consecutive prison terms of one year, four months for the convictions of the offenses
charged in counts 1, and 6 through 14. Defendant was sentenced to three separate
concurrent terms of four years for counts 2 through 4, and 10 days in county jail for the
count 5 misdemeanor conviction. Lastly, the court sentenced defendant to a four-year
term for the count 15 conviction, which it stayed pursuant to section 654. Defendant
filed a timely notice of appeal from the judgment.
DISCUSSION
I. Contentions On Appeal
Defendant asserts two challenges to the judgment. These claims of error are as
follows:
1. The court imposed an upper term sentence for the perjury conviction
(§ 118) that was based upon aggravating circumstances that were not part of a jury’s

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factual findings. Under Blakely, supra, 542 U.S. 296, this sentence violated defendant’s
right to a jury trial guaranteed under the United States and California Constitutions.
2. The court should have stayed punishment for the count 6 conviction
(possession of ammunition by a felon), because section 654 precluded the imposition of
separate punishment for both the ammunition-possession conviction and certain of the
weapons-possession convictions (counts 2, and 7 through 10).
We discuss both of these claims of error, post.
II. Claimed Blakely Violation
A. Contentions of the Parties
In superior court case number 210852, the trial court imposed the upper term of
four years provided in section 1266 for the count 1 conviction (perjury by filing a false
application for a driver’s license or identification card, violation of § 118, subd. (a)),
which was doubled based on his prior “strike” conviction, pursuant to section 667,
subdivisions (b)-(i) and section 1170.12.7 The court noted that it was imposing the upper
term after reviewing and balancing the factors in aggravation and mitigation. It noted the
following factors in aggravation: (1) defendant’s “prior prison commitment”; (2)
defendant was “in a position of authority and leadership”; (3) “there was planning [and]
sophistication”; (4) defendant acquired various weapons; (5) defendant was untruthful in
the driver’s application and he needed the driver’s license obtained through the false
application process “for illegal purposes”; and (6) defendant “[b]asically . . . led a life of
excessive criminality.”
6 “Perjury is punishable by imprisonment in the state prison for two, three or four
years.” (§ 126.)
7 “If a defendant has one prior felony conviction that has been pled and proved, the
determinate term or minimum term for an indeterminate term shall be twice the term
otherwise provided as punishment for the current felony conviction.” (§ 667, subd.
(e)(1).) Section 1170.12, subdivision (c)(1), has language identical to that found in
section 667, subdivision (e)(1).

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Defendant claims that under Blakely, supra, 542 U.S. 296, he was deprived of his
constitutional right to a jury trial when the trial court imposed an upper term sentence for
the perjury conviction. He asserts that because the court based this sentencing
determination on finding the existence of factors warranting imposition of the upper term
by a preponderance of the evidence, he was deprived of his constitutional right to a jury
trial and application of proof beyond a reasonable doubt.8
The Attorney General makes four arguments in response to defendant’s Blakely
challenge. First, defendant forfeited the challenge by failing to assert it below. Second,
defendant expressly waived any challenge to judicial fact-finding in sentencing at the
time he entered his plea of nolo contendere. Third, any Blakely challenge is substantively
without merit, based upon the California Supreme Court’s holding in People v. Black
(2005) 35 Cal.4th 1238 (Black). Fourth, assuming any error, it was harmless.
We address the parties’ contentions below.
B. Discussion of Blakely Challenge
1. Forfeiture
The Attorney General argues that defendant forfeited his claim of Blakely error by
failing to assert it below. Defendant responds that the claim was not forfeited because it
would have been futile for his counsel to have asserted that challenge in the trial court.
As we discuss, post, the holding of the California Supreme Court in Black, supra,
35 Cal.4th 1238, until very recently, compelled the conclusion that a criminal defendant’s
constitutional rights are not abridged when a court sentences him or her to the upper term
8 Defendant acknowledged implicitly that were we to follow the holding in Black,
we would find defendant’s Blakely challenge to be without merit. But he noted that after
Black was decided, the United States Supreme Court granted certiorari in Cunningham v.
California, No. 05-6551, certiorari granted, February 21, 2006, ___ U.S. ___, 126 S.Ct.
1329; defendant noted that it was his “expectation that Black will be overruled in
Cunningham.”

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under California’s determinate sentencing law (hereafter sometimes referred to as DSL).
Our Supreme Court decided Black on June 20, 2005, over four months before defendant’s
sentencing hearing. At that time, the trial court was compelled to follow Black.
Therefore, any Blakely objection that defense counsel might have made concerning the
trial court’s imposition of an upper term sentence would have been futile. Under these
circumstances, defendant’s Blakely challenge was not forfeited. (People v. Birks (1998)
19 Cal.4th 108, 116, fn. 6; People v. Turner (1990) 50 Cal.3d 668, 703-704.)
2. Express waiver
The Attorney General argues that during proceedings in which defendant entered
his plea of nolo contendere to all charges, defendant expressly waived his right to assert
any Blakely challenge to future sentencing by the trial court. Defendant responds that
there was no express waiver of his constitutional rights under Blakely and, specifically,
he did not waive the right to assert under Blakely that any factors used in aggravation to
impose an upper term sentence must be charged and proved beyond a reasonable doubt.
In assessing whether there has been an express waiver, “[i]t has been pointed out
that ‘courts indulge every reasonable presumption against waiver’ of fundamental
constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental
rights.’ ” (Johnson v. Zerbst (1938) 304 U.S. 458, 464, fns. omitted, overruled in part on
other grounds in Edwards v. Arizona (1981) 451 U.S. 477.) “To be enforceable, a
defendant’s waiver of the right to appeal must be knowing, intelligent, and voluntary.
[Citations.]” (People v. Panizzon (1996) 13 Cal.4th 68, 80.) “ ‘[T]he valid waiver of a
right presupposes an actual and demonstrable knowledge of the very right being waived.
[Citations.]’ [Citation.] . . . The burden is on the party claiming the existence of the
waiver to prove it by evidence that does not leave the matter to speculation, and doubtful
cases will be resolved against a waiver.” (People v. Vargas (1993) 13 Cal.App.4th 1653,
1662.)

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In the course of taking defendant’s plea of nolo contendere in both cases, the court
apprised him of his constitutional rights and the rights he would be waiving by entering
the no contest plea. During those proceedings, the court specifically mentioned that
defendant might have certain rights under Blakely. We have carefully reviewed the
transcript of those proceedings. While the record may establish that defendant waived
the right to a jury trial on the existence of factors used to impose an upper term
punishment, that waiver did not extend to the standard of proof that would be required to
establish those factors. There was no mention of defendant giving up the right to have
the factors in aggravation upon which an upper term sentence might be based proved—
either to a jury or the court sitting without a jury—beyond a reasonable doubt. We
therefore conclude that defendant did not waive his Blakely challenge because such
challenge was beyond the scope of any waiver obtained from defendant at the time of his
change of plea. (See, e.g., People v. Rosso (1994) 30 Cal.App.4th 1001, 1005-1007
[waiver of appeal rights not found where court, during taking of guilty plea, did not
advise the defendant of appellate rights, but only asked if the defendant gave up his right
to appeal].)
3. Merits of Blakely challenge
Defendant claims that, because the court reached its sentencing determination by
finding the existence of factors warranting imposition of the upper term by a
preponderance of the evidence, he was deprived of his constitutional right to a jury trial
and application of proof beyond a reasonable doubt. He cites the United States Supreme
Court’s decision in Blakely, supra, 542 U.S. 296, as authority compelling the conclusion
that the upper term sentence for the forgery conviction violated his constitutional rights.
In making this contention, however, defendant acknowledges that the California Supreme
Court, in Black, supra, 35 Cal.4th at p. 1244, held Blakely inapplicable to the imposition
of upper term sentences under California’s determinate sentencing law.

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In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States
Supreme Court held unconstitutional a New Jersey law that permitted an enhancement
that could have resulted in potentially double the maximum sentence for possession of a
firearm in the event that the judge determined by a preponderance of the evidence that a
hate crime had been committed. It concluded that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at
p. 490.) This principle, the court explained, derives from two constitutional rights,
namely, the right to trial by jury, and the prohibition against depriving a person of liberty
without due process of law. (Id. at pp. 476-477; see also Ring v. Arizona (2002) 536 U.S.
584, 603-609.)
In Blakely, supra, 542 U.S. 296, the Supreme Court considered Washington
determinate sentencing laws under which the trial court—after defendant had pleaded
guilty to a class B felony—determined that he “had acted with ‘deliberate cruelty’ ” (id.
at p. 298), and accordingly “imposed an exceptional sentence of 90 months—37 months
beyond the standard maximum.” (Id. at p. 300.) The defendant contended that the
Washington sentencing procedure deprived him of his federal constitutional right to a
jury trial to determine beyond a reasonable doubt all of the facts required for the sentence
imposed. (Id. at p. 301) The Supreme Court agreed, holding “that the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant.
[Citations.] In other words, the relevant ‘statutory maximum’ is not the maximum
sentence a judge may impose after finding additional facts, but the maximum he may
impose without any additional findings.” (Id. at pp. 303-304.) The judge had relied on a
fact not found by the jury or admitted by the defendant; accordingly the Supreme Court
concluded that the sentence in Blakely was invalid. (Id. at p. 304; see also United States

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v. Booker (2005) 543 U.S. 220 (Booker) [Blakely holding found applicable to Federal
Sentencing Guidelines].)
In Black, supra, 35 Cal.4th 1238, the California Supreme Court considered the
effect of Blakely and Booker on upper term sentencing under California’s determinate
sentencing law. After the defendant in Black was convicted of one count of continuous
sexual abuse of a child (§ 288.5), the court imposed an upper term sentence of 16 years.
(Black, supra, at p. 1245.) It based this sentencing decision on “ ‘the nature, seriousness,
and circumstances of the crime.’ ” (Ibid.) The defendant argued that Blakely rendered
California’s determinate sentencing procedure unconstitutional, inter alia, because the
procedure failed to “provide the defendant with a jury trial on the aggravating factors
relied upon by the judge in imposing an upper term sentence.” (Id. at p. 1248.)
The Black court noted that under California’s determinate sentencing law, “[t]hree
terms of imprisonment are specified by statute for most offenses.” (Black, supra, 35
Cal.4th at p. 1247.) The judge’s sentencing discretion is guided as follows: “When a
judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the court shall order imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime.” (§ 1170, subd. (b).) The court may select the
upper term “only if, after a consideration of all the relevant facts, the circumstances in
aggravation outweigh the circumstances in mitigation.” (Cal. Rules of Court, rule
4.420(b).) The California Supreme Court acknowledged under this scheme, “[t]he
sentencing judge retains considerable discretion to identify aggravating factors” (Black,
supra, 35 Cal.4th at p. 1247), and that he or she may base that decision “on aggravating
facts that have not been found true by the jury.” (Id. at p. 1248.)9 Circumstances in
9 Rule 4.421 of the California Rules of Court provides a nonexclusive list of 17
factors in aggravation that the sentencing judge may consider. The sentencing judge,
however, may consider any “additional criteria reasonably related to the decision being
made.” (Cal. Rules of Court, rule 4.408(a).)

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aggravation or mitigation need be proved to the sentencing judge only by a
preponderance of the evidence. (Cal. Rules of Court, rule 4.420(b).)
The Black court held that the imposition of an upper term sentence under
California’s determinate sentencing statute was not unconstitutional under Blakely. Our
high court reasoned: “[E]ven though section 1170, subdivision (b) can be characterized
as establishing the middle term sentence as a presumptive sentence, the upper term is the
‘statutory maximum’ for purposes of Sixth Amendment analysis. The jury’s verdict of
guilty on an offense authorizes the judge to sentence a defendant to any of the three terms
specified by statute as the potential punishments for that offense, as long as the judge
exercises his or her discretion in a reasonable manner that is consistent with the
requirements and guidelines contained in statutes and court rules. . . . [T]he upper term is
the ‘maximum sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict. . . .’ [Citation.]” (Black, supra, 35 Cal.4th at pp. 1257-1258, quoting
Blakely, supra, 542 U.S. at p. 303.)
The defendant in Cunningham, supra, 127 S.Ct. 856—like the defendant in
Black—received an upper term sentence of 16 years after his conviction under section
288.5, the sentencing judge having found six aggravating factors warranting the sentence.
(Cunningham, supra, at pp. 860-861.) The California Court of Appeal (First District)
rejected the defendant’s Blakely challenge, and the California Supreme Court denied
review, having decided Black nine days earlier. (Cunningham, supra, at p. 861.)
As a starting point for the court’s analysis, Justice Ginsburg, writing for the
majority in Cunningham, noted: “This Court has repeatedly held that, under the Sixth
Amendment, any fact that exposes a defendant to a greater potential sentence must be
found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a
preponderance of the evidence.” (Cunningham, supra, 127 S.Ct. at pp. 863-864.)
Accordingly, after discussing California’s determinate sentencing law, and its decisions
in Apprendi, Blakely, and Booker, the court concluded that “aggravating circumstances

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depend on facts found discretely and solely by the judge. In accord with Blakely,
therefore, the middle term prescribed in California’s statutes, not the upper term, is the
relevant statutory maximum. [Citation.] Because circumstances in aggravation are found
by the judge, not the jury, and need only be established by a preponderance of the
evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendi’s bright-
line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, at p. 868.) After
discussing Black at some length, the Cunningham court concluded that the California
Supreme Court’s reasoning was at odds with the principles of Apprendi and Blakely:
“Because the DSL allocates to judges sole authority to find facts permitting the
imposition of an upper term sentence, the system violates the Sixth Amendment. It is
comforting, but beside the point, that California’s system requires judge-determined DSL
sentences to be reasonable.” (Cunningham, supra, at p. 870.)
Cunningham’s holding disposes of defendant’s challenge. The sentencing
provision with which we are concerned here specifies that “[p]erjury is punishable by
imprisonment in the state prison for two, three or four years.” (§ 126.) Thus, under
Cunningham, the middle term of three years was the “statutory maximum” for Sixth
Amendment purposes under Blakely. (Cunningham, supra, 127 S.Ct. at p. 868.) We
therefore conclude that the court erred by imposing the upper term of four years as
provided in section 126 for the perjury conviction, which was doubled based on
defendant’s prior “strike” conviction (pursuant to §§ 667, subds. (b)-(i), and 1170.12).10
10 Cunningham was decided on January 22, 2007, nearly three months after the
submission of defendant’s reply brief. We are mindful of our obligations under
Government Code section 68081. The statute is inapplicable here, because our decision
is not “based upon an issue which was not proposed or briefed by any party to the
proceeding . . . .” (Gov. Code, § 68081.) The question of whether the upper term
sentence imposed by the trial court here violated defendant’s constitutional rights under
(continued)

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4. Prejudice
The Attorney General argues lastly that, assuming there was Blakely error, it was
harmless because defendant cannot establish prejudice. The Attorney General does not
identify the constitutional standard for prejudice, but we conclude that the Chapman11
standard of “harmless beyond a reasonable doubt” applies. In other words, Blakely error
does not warrant relief if the failure to obtain jury findings on the aggravating factors
resulting in the imposition of an upper term sentence was “harmless beyond a reasonable
doubt.” (See People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [Chapman test applied
to instructional error with regard to element of sentence enhancement].)
The Attorney General asserts that any Blakely error in this instance was harmless
beyond a reasonable doubt because the court based its sentencing decision, in part, on a
finding that defendant was previously confined to prison and had “led a life of excessive
criminality.” The implicit argument is apparently that a jury would have similarly found
true beyond a reasonable doubt one or more aggravating circumstances, had the issue
been submitted for its determination.
We reject this argument. There is little question that defendant served a prior
prison term. But we are unwilling to posit that the jury necessarily would have reached
the conclusion beyond a reasonable doubt that defendant “led a life of excessive
criminality,” another aggravating factor upon which the court relied. We simply cannot
say that a jury without question would have found aggravating circumstances true.
Blakely was fully briefed by the parties, and we are required to “pass upon and determine
all the questions of law involved in the case, presented upon such appeal, and necessary
to the final determination of the case.” (Code Civ. Proc., § 43; see also Westly v. Board
of Administration (2003) 105 Cal.App.4th 1095, 1113, fn. 14.) Since the United States
Supreme Court’s decision in Cunningham leaves no room for doubt that the imposition of
an upper term sentence here was unconstitutional, there is no need for further briefing on
that case’s impact to the issue raised by defendant and briefed by the parties.
11 Chapman v. California (1967) 386 U.S. 18, 24.

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Therefore, under the Chapman standard, the error under Blakely was not harmless
beyond a reasonable doubt.
III. Sentence For Ammunition Possession Conviction (Section 654)
A. Background and Contentions
In superior court case number CC238138, the court imposed a prison term of one
year and four months for the count 6 conviction (possession of ammunition by a felon).
It also imposed separate prison terms of one year and four months for the convictions of
the offenses charged in counts 7 through 10, and a concurrent four-year term for the
count 2 conviction—all five counts charging defendant with possession of firearms by a
felon. During sentencing, the court specifically concluded that the weapon-possession
offense charged in count 10—involving a weapon found the same date as the
ammunition—was separate and distinct from the ammunition-possession charge (count
6).
The ammunition-possession conviction (count 6) was based upon evidence seized
from various locations in defendant’s Saratoga home on October 9, 2001. That evidence
consisted of a loaded magazine for a .45 caliber Kimber handgun, a loaded magazine for
.45 caliber Glock handgun, and a magazine for a .223 caliber AR-15 style rifle. At the
time of that seizure, there was only one firearm found at the home—a loaded .45 caliber
Kimber handgun with a laser site located in a gun safe (count 10). The information
alleged that the ammunition possession took place on or about October 9, 2001. The
weapons-possession convictions relevant to defendant’s challenge under section 654 are
as follows: count 2 (possession of a .45 caliber Glock pistol between September 8, 2001,
and October 9, 2001); counts 7 through 9 (possession of unspecified rifles between
January 10, 2000, and December 31, 2000; and count 10 (possession of a Kimber pistol
between December 1, 1999, and October 9, 2001).
Defendant contends that the possession of the ammunition was related to the
weapons-possession charges because all charges involved the same criminal intent, i.e.,

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the possession of loaded firearms. Citing People v. Lopez (2004) 119 Cal.App.4th 132
(Lopez), defendant urges that the sentence for the count 6 conviction should have been
stayed pursuant to section 654. The Attorney General responds that Lopez is
distinguishable and that the record supported a finding that defendant possessed multiple
criminal objectives.
B. Penal Code Section 654
Section 654, subdivision (a), provides: “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 . . . .” The statute thus “precludes multiple
punishment for a single act or omission, or an indivisible course of conduct. [Citations.]”
(People v. Deloza (1998) 18 Cal.4th 585, 591.) The purpose of section 654 “is . . . to
ensure that punishment is commensurate with a defendant’s criminal culpability.
[Citations.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
As construed by the Supreme Court, “[w]hether a course of criminal conduct is
divisible and therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the offenses were incident to
one objective, the defendant may be punished for any one of such offenses but not for
more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) And as the high
court later emphasized, “[t]he initial inquiry in any section 654 application is to ascertain
the defendant’s objective and intent. If he entertained multiple criminal objectives which
were independent of and not merely incidental to each other, he may be punished for
independent violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.”
(People v. Beamon (1973) 8 Cal.3d 625, 639.)
In reviewing the propriety of the imposition of multiple punishments for separate
convictions under section 654 based upon a finding that the defendant held more than one

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objective in committing those crimes, we evaluate whether there was substantial evidence
to support that determination. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) The
question of whether the defendant entertained multiple criminal objectives being one of
fact for the trial court, we will sustain the court’s findings if there is substantial evidence
to support them. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) The trial court
“is vested with broad latitude in making its determination. [Citations.]” (People v. Jones
(2002) 103 Cal.App.4th 1139, 1143.) Our review of the court’s determination is made
“in the light most favorable to the respondent and [we] presume the existence of every
fact the trial court could reasonably deduce from the evidence.” (Ibid.) Each case is
decided in reference to its unique circumstances. (People v. Hutchins (2001) 90
Cal.App.4th 1308, 1312.)
C. Discussion of Claim of Error
At the outset, we note that defendant did not challenge the propriety of the
sentence for the count 6 conviction below. But this did not constitute a forfeiture of
defendant’s section 654 argument on appeal. “ ‘Errors 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.’ [Citation.]” (People v. Hester (2000) 22 Cal.4th
290, 295; see also Lopez, supra, 119 Cal.App.4th at p. 138.)
Defendant’s argument is that he cannot be subjected to multiple punishment for
both the weapons-possession convictions and the ammunition-possession conviction. He
links the specific ammunition found on October 9, 2001, with corresponding firearms. the
possession of which was charged in other counts, to assert that the ammunition-
possession conviction was part of a single criminal objective to possess loaded firearms.
He claims that Lopez, supra, 119 Cal.App.4th 132, is dispositive.
In Lopez, the defendant was convicted, inter alia, of unlawful possession of a
firearm (§ 12021, subd. (e)), and unlawful possession of ammunition (§ 12316, subd.
(b)(1)). (Lopez, supra, 119 Cal.App.4th at p. 134.) The convictions arose out of an arrest

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in which the defendant was found in possession of a loaded handgun. (Id. at p. 135.) He
received a six-year prison term for the firearm-possession conviction and a concurrent
six-year term for the ammunition-possession conviction. (Id. at p. 138.) The court in
Lopez concluded that section 654 prohibited punishment for both offenses: “To allow
multiple punishment for possessing ammunition in a firearm would, in our judgment,
parse the objectives too finely. . . . 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.)
Here, in contrast to the circumstances in Lopez, the weapons-possession and
ammunition-possession charges did not arise out of the seizure of loaded weapons; the
police did not seize one or more loaded weapons that resulted in defendant being charged
with separate weapons-possession and ammunition-possession offenses. Rather, each of
the three items of ammunition stood alone, and was not incorporated into a weapon. The
ammunition may (or may not) have been held by defendant for ultimate loading at
another time into weapons that he was charged with having possessed. Only one of the
items (the magazine for the .45 caliber Kimber handgun) was associated with a weapon
seized on October 9, 2001. The fact that the three items of ammunition may have been
compatible with certain weapons—the illegal possession of which defendant was charged
in other counts—does not mean that defendant’s possession of the ammunition could not
have been punished separately from possession of the weapons. (Indeed, defendant may
have had other weapons at his disposal as of October 9, 2001—the possession of which
was not subject to any charges—that could have been compatible with the ammunition.)
The crime of possession of ammunition by a felon (§ 12316, subd. (b)) is a crime separate
and distinct from possession of a firearm by a felon (§ 12021, subd. (a)(1)). (Cf. People
v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410 [noting that a number of cases have
rejected the argument that section 654 bars separate punishment for weapons possession
and another offense involving weapon].) The blanket conclusion that section 654 bars

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multiple punishments for violations of sections 12021 and 12316 would be tantamount to
a merger of those two offenses.
Furthermore, the court in Lopez, supra, did not suggest that section 654 would
prevent separate punishment for ammunition- and weapons-possession convictions under
the circumstances present here. To the contrary, the court emphasized that its holding
was based upon the fact that the defendant’s weapon- and ammunition-possession
offenses resulted from all of the ammunition having been loaded into the firearm.
(Lopez, supra, 119 Cal.App.4th at p. 138.) The court expressly noted: “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.” (Ibid.)
There was substantial evidence to support either an express or implied finding by
the court below that there were multiple objectives in the commission of the ammunition-
possession and weapons-possession crimes of which defendant was convicted. (See
People v. Blake (1998) 68 Cal.App.4th 509, 512 [trial court’s implied finding of
existence of separate criminal intents will not be disturbed if supported by substantial
evidence].) Lopez is distinguishable. The court therefore did not err by failing to stay the
consecutive prison sentence of one year and four months for the ammunition-possession
conviction (count 6).
DISPOSITION
The judgment is reversed and remanded to the trial court for limited purpose of
resentencing. Consistent with this opinion, Blakely, and Cunningham, the trial court shall

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resentence defendant with respect to the perjury conviction (count 1 in superior court
case number 210852).
Duffy, J.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
McAdams, J.

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