P. v. Smith

Filed 9/29/17 P. v. Smith CA
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA KANE SMITH,
Defendant and Appellant.
B278416
(Los Angeles County
Super. Ct. No. MA067421)
APPEAL from the judgment of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Affirmed as
modified.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Susan Sullivan Pithey and Heather B.
Arambarri, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * * * * * *

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A jury found defendant and appellant Joshua Kane Smith
guilty of multiple serious felonies, including torture, assault, and
causing injury to a spouse. The jury also found true special
allegations that defendant personally used a firearm and inflicted
great bodily injury. Defendant was sentenced to a state prison
term of 100 years to life, plus 44 years.
Defendant contends the trial court committed prejudicial
error in the admission of prior acts of domestic violence against a
former girlfriend, and abused its discretion in denying his motion
for a mistrial due to prosecutorial misconduct. We reject both
contentions. Defendant also raises three sentencing errors. We
conclude one has merit and strike one 5-year enhancement
imposed pursuant to Penal Code section 667, subdivision (a). We
otherwise affirm the judgment of conviction in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by amended information with
14 felony counts involving four separate victims: his wife
Charity K., his mother Betty S., his sister April D., and his
sister’s boyfriend Yasha P.1 The charges included four counts of
causing injury to a spouse (Pen. Code, § 273.5, subd. (a); counts 1-
3, 14; Charity); one count of torture (§ 206; count 4; Charity); one
count of filing a false police report (§ 148.5, subd. (a); count 5);
one count of elder abuse (§ 368, subd. (b)(1); count 6; Betty);
two counts of assault by force likely to produce great bodily injury
(§ 245, subd. (a)(4); counts 7-8; Betty and Yasha); two counts of
assault with a firearm (§ 245, subd. (a)(2); counts 9-10; Charity
and April); one count of making criminal threats (§ 422, subd. (a);
count 11; April); one count of possession of a firearm by a felon
1 We refer to the victims by their first names only to protect
their privacy.

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(§ 29800, subd. (a)(1); count 12); and one count of first degree
residential burglary (§ 459; count 13).
It was alleged as to counts 2, 3, 4 and 8 that defendant
inflicted great bodily injury in the commission of the offenses
within the meaning of Penal Code section 12022.7. As to
count 11, it was alleged defendant personally used a firearm
within the meaning of section 12022.5. It was further alleged
defendant suffered five prior convictions for serious or violent
felonies within the meaning of the Three Strikes law (§ 667,
§ 1170.12), and three prior prison terms (§ 667.5, subd. (b)).
The charges arose from a course of conduct that took place
over a period of approximately 16 months. Because defendant
has not raised a substantial evidence question, we have
summarized only those facts germane to our discussion.
Charity married defendant in June 2014. Within a month
of their marriage, defendant began subjecting Charity to violent
assaults, which often consisted of defendant punching her in the
face or, as defendant called it, “checking” her because of her
alleged “attitude.”
The first violent attack occurred on July 4, 2014 when she
and defendant were at the home of his mother, Betty. Several
other family members were also there to celebrate the holiday,
including April, Yasha, defendant’s brother Toby, and Toby’s
girlfriend.
Defendant started punching Charity, accusing her of
flirting with Yasha. He yelled at her and yanked and pulled her
by her hair, eventually pulling out clumps of hair. Charity
suffered a black eye and contusions to her mouth due to her
bottom teeth “punctur[ing]” her lip. She did not seek medical
attention because defendant apologized, told her he drank too
much, and said if she went to the hospital, a police report would
have to be filed. It was the first time he had assaulted her, so

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Charity believed his apology was sincere and did not report the
incident to the police.
By October 2014, they had moved to a different home in a
rural area of Lancaster. Betty lived with them as well, and April
and Yasha often stayed in the back guest house. On October 5,
defendant assaulted Charity in their bedroom after she disagreed
with him. She could not recall exactly how many times he hit
her, but she believed it was at least five punches to her face.
Defendant hit her so hard she saw “bright lights.” She was three
months pregnant at the time so she was trying to protect her
stomach, and was unable to block the blows to her head. At some
point, she lost consciousness. When she awoke, she was
disoriented and started yelling for defendant’s mother.
Defendant grabbed a curtain and started wrapping it around
Charity’s face and head, telling her to “shut the f--k up.”
Defendant ripped off her blouse. Charity had blood all over her.
After Betty came into the bedroom and yelled at defendant to
stop, he eventually did so and ordered Charity to clean herself up
in the bathroom. When she tried to get to the bathroom, she
could not put weight on her left ankle. Her face was swollen and
she was bleeding from her mouth and nose. Her right ear was
swollen and it was difficult to hear for awhile. She had numerous
scratches all over her chest.
Charity did not immediately seek medical help for her
injuries because she knew defendant would hurt her again.
However, her ankle continued to be painful, so she eventually
went to a doctor and was told her ankle was broken. Afraid to
report defendant, Charity told the doctor she had suffered the
injury in a bicycle accident.
Sometime in November 2014, Charity inherited a gun from
her mother, but it was not in working order. Defendant had the

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gun fixed and the ivory handle changed out to gold. After the gun
was fixed, defendant regularly fired the gun in the yard.
On the night of April 22, 2015, about a week after their
daughter was born, Charity was in bed nursing the baby.
Defendant barged into the room and started yelling and hitting
Charity. He hit her several times in the face. One punch nearly
hit the baby. The baby started to scream and cry. At that point,
Yasha came into the room and tried to get defendant to calm
down. Defendant turned on Yasha. He kicked, punched and
“headbutted” Yasha repeatedly. Defendant had known Yasha for
10 years and knew he had bad knees, so he repeatedly kicked and
hit him in the knees, knowing it was his “weak” spot. Charity
saw Yasha fall to the ground. He appeared to be unconscious.
Betty also pleaded with defendant to stop. Defendant
turned toward Betty, who was holding the phone, and said “You
want to call the f------g police?” He chased Betty into her room
and started punching her about the head and face. She tried to
block the blows with her arms crossed in front of her face. Betty
fell onto the bed. Defendant grabbed a coat hanger and started
hitting her with it. Yasha tried to intervene again, jumping on
defendant’s back, largely to no avail. Defendant picked up the
television and threw it across the room, and also smashed various
personal items and glass shelves in Betty’s room.
At some point, defendant turned on his sister, April.
Defendant had armed himself with a gun. April said he was very
angry and yelling about various things. He demanded that she
and Yasha move out of the house. From a window, Charity saw
April kneeling on the ground. Charity could not make out
defendant’s words, but she heard April say, in a pleading voice,
“please don’t.” Yasha saw defendant point a gun at April’s head
and threaten to kill her and her sons. Defendant then yelled for
Charity and demanded she come out. When Charity came out,

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still holding the baby, defendant pointed the gun at her and
started in her direction.
Charity ran into the back yard and tried to hide inside a
shed. Defendant yelled at Yasha to go get Charity. Yasha found
Charity hiding inside the shed, but pretended he did not see her.
Charity heard defendant yelling for her, and then heard their dog
barking and defendant firing the gun in the yard. The dog quit
barking and Charity was scared defendant had shot the dog.
Yasha eventually coaxed Charity back into the house, explaining
that defendant said he would not hurt her anymore.
On May 10, 2015, defendant assaulted Charity again
because he said she was ungrateful for the food, flowers and card
he had bought for her for Mother’s Day. Defendant punched her
in the face and she heard her jaw “crack.” There was a lot of
blood and her teeth were not aligned when she tried to close her
mouth. The next day she sought medical care, but again lied
about how the injury happened.
After Mother’s Day, the attacks became more frequent,
“almost once a week.” It was “normal” for Charity to have at
least one black eye. Defendant accused Charity of cheating on
him and told her he did not believe the baby was his. One time
defendant kicked open the bathroom door when Charity was
inside and then started hitting her with a piece of the wooden
door trim that had broken off. He caused a wound to her scalp
that bled profusely. Another time, defendant told her he would
kill her if she tried to leave.
In October 2015, defendant woke Charity up around
11:00 p.m. and ordered her to go to the grocery store to get beer
and cigarettes. He demanded she return in 45 minutes or she
would “pay for it.” Charity put her daughter in the car seat, and
grabbed her purse and a diaper bag. Once in the car, she made
the decision to leave defendant. She was normally not allowed to

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leave the house alone. After getting some assistance from family
members in Rosamond, Charity left the car in an Alberton’s
parking lot and mailed the key back to defendant because she did
not want him to know where she was. Charity filed for divorce.
During Yasha’s testimony, the prosecution played a pretrial
recorded statement Yasha gave to the investigating detectives.
The trial court had ruled the statement admissible but ordered
the prosecutor to redact the statement to omit any and all
references to defendant having previously served time in prison.
When the recorded statement was played for the jury, there was
one reference to defendant having been in “prison.” Defendant
moved for a mistrial on that basis. We reserve a more detailed
recitation of the relevant facts to part 2 of the Discussion below.
The prosecutor also presented the testimony of defendant’s
former girlfriend, Christine H.-G. Christine and defendant dated
when Christine was just 18 years old. In March 1991, Christine
was home with her one-month-old son. Defendant was the baby’s
father. Defendant called Christine on the phone and told her “if
you don’t f--k me, I’m going to f--k you up and then you’ll f--k me.”
Defendant came to her house later in the day and started yelling
at her. While Christine was holding the baby, defendant
punched her in the head several times with his fist. He also
broke several picture frames in her home. Christine put the baby
down in the playpen, and tried to get away. Defendant grabbed
her by the hair and dragged her to the back of the house.
Christine was not asked to describe how the incident ended.
Christine testified that several months later, in September,
she came home and found defendant there with her two
roommates. She could not recall exactly how the argument
started, but defendant became angry and shoved Christine into
the wall. He grabbed her by the throat and pushed her to the
ground. He choked her until she became unconscious. When she

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awoke she was in a different room, so she assumed he had
dragged her there. Defendant picked up a metal baseball bat and
hit her several times in the hip, torso, and at least one time in the
head. She tried to escape out the front door, but he grabbed her
arm and took her back inside. Defendant told her, “Bitch, you’re
not going to put me back in jail. I’ll kill you first.” Christine
suffered two black eyes, a swollen ear, and significant bruising all
over her torso, neck and hip.
Christine reported both incidents to the police.
Defendant stipulated he was a convicted felon for purposes
of count 12 (possession of a firearm by a felon). The stipulation
read to the jury provided: “The defendant and the people have
stipulated, or agreed, that the defendant was previously
convicted of a felony. This stipulation means that you must
accept this fact as proved.”
The jury found defendant guilty on all counts, except
count 13 (burglary). The jury also found true all of the special
allegations regarding defendant’s personal use of a firearm and
infliction of great bodily injury, except for the great bodily injury
allegation as to count 7 (assault of defendant’s mother, Betty).
Defendant waived jury on the prior allegations. After
presentation of evidence, the court found four of the five strike
priors to be true, and also found true the three prison priors.
The court sentenced defendant as a third-strike offender to
a state prison term of 100 years to life, plus 44 years. The
indeterminate term consisted of four terms of 25 years to life on
each of the following counts: count 4 (torture; Charity), which
was designated the base count, count 8 (assault with GBI;
Yasha), count 9 (assault with firearm; Charity), and count 11
(criminal threats; April). The determinate term of 44 years
consisted of the following: (1) four consecutive five-year
enhancements for the four strike priors; (2) a consecutive five-

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year great bodily injury enhancement on count 4; (3) a
consecutive four-year upper term, doubled due to the strikes, on
count 6 (elder abuse; Betty); (4) a three-year great bodily injury
enhancement on count 8; (5) two 4-year gun use enhancements on
each of counts 9 and 11; (6) a concurrent term of 180 days on
count 5 (false police report); and (7) a concurrent two-year
midterm, doubled due to the strikes, on count 12 (possession of
firearm by a felon). The court imposed and stayed the terms on
counts 1, 2, 3, 7, 10 and 14. The court struck the three 1-year
prison priors. Defendant was awarded 374 days of custody
credits.
This appeal followed.
DISCUSSION
1. The Admission of Prior Acts of Domestic Violence
Defendant contends the trial court committed prejudicial
error by admitting the testimony of his former girlfriend,
Christine, regarding two incidents of domestic violence that
occurred in 1991. We disagree.
Evidence Code section 1109, subdivision (a)(1), provides in
relevant part that “in a criminal action in which the defendant is
accused of an offense involving domestic violence, evidence of the
defendant’s commission of other domestic violence is not made
inadmissible by Section 1101 if the evidence is not inadmissible
pursuant to Section 352.” “By its incorporation of section 352,
section 1109, subdivision (a)(1) makes evidence of past domestic
violence inadmissible only if the court determines that its
probative value is ‘substantially outweighed’ by its prejudicial
impact. We review a challenge to a trial court’s decision to admit
such evidence for abuse of discretion.” (People v. Johnson (2010)
185 Cal.App.4th 520, 531 (Johnson), italics added, fn. omitted;
see also People v. Lewis (2001) 26 Cal.4th 334, 374-375 [trial

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courts are vested with broad discretion in determining the
admissibility of evidence under section 352].)
By enacting Evidence Code section 1109, the Legislature
created an express exception in cases involving domestic violence
to the general rule that prior criminal acts are inadmissible.
“ ‘[T]he California Legislature has determined the policy
considerations favoring the exclusion of evidence of uncharged
domestic violence offenses are outweighed in criminal domestic
violence cases by the policy considerations favoring the admission
of such evidence.’ [Citation.] Section 1109, in effect, ‘permits the
admission of defendant’s other acts of domestic violence for the
purpose of showing a propensity to commit such crimes.
[Citation.]’ [Citations.] ‘[I]t is apparent that the Legislature
considered the difficulties of proof unique to the prosecution of
these crimes when compared with other crimes where propensity
evidence may be probative but has been historically prohibited.’
[Citation.]” (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-
1233.)
Defendant objected to the prosecution’s request to present
the testimony of his former girlfriend. Defendant contends, as he
did below, that the prior acts were more than 20 years old and
therefore presumptively inadmissible under the statutory
scheme. He further argues Christine’s testimony about his use of
a baseball bat during one of the assaults was highly
inflammatory and unduly prejudicial.
Subdivision (e) of Evidence Code section 1109 provides that
“[e]vidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless the
court determines that the admission of this evidence is in the
interest of justice.” (Italics added.) Trial courts are vested with
broad discretion to consider the probative value of prior acts of
domestic violence that are more than 10 years old, and to

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conclude that such acts are nonetheless admissible in the
interests of justice. “Indeed, ‘[n]o specific time limits have been
established for determining when an uncharged offense is so
remote as to be inadmissible.’ [Citation.]” (Johnson, supra, 185
Cal.App.4th at p. 535; accord, People v. Branch (2001) 91
Cal.App.4th 274, 284 (Branch).)2
In People v. Culbert (2013) 218 Cal.App.4th 184 (Culbert),
the court rejected a defendant’s challenge to the admission of
evidence pursuant to Evidence Code section 1109. The defendant
was charged with making a criminal threat with the use of a
firearm against his minor stepson. The trial court allowed the
prosecution to present evidence that the defendant, 11 years
earlier, had threatened to kill his former wife, but had not used a
weapon in doing so. (Culbert, at pp. 187-188.)
Culbert held the prior incident was properly admitted,
despite being factually dissimilar and more than 10 years old.
The court explained the “prior offense had probative value.
Appellant threatened to kill [his stepson and his former wife].
Regardless of whether appellant was armed when he broke into
the apartment and made the threat, his conduct was relevant to
show his intent that his statements be understood as threats, his
propensity to make threats to family members and the
reasonableness of [his stepson’s] fear after the threat was made.”
(Culbert, supra, 218 Cal.App.4th at p. 192.) The court further
2 Cases discussing Evidence Code section 1108, the
analogous provision for admission of prior sexual offenses,
similarly have concluded there is no set time limit defining what
prior acts are too remote and that even a prior act from 20 years
earlier is not per se inadmissible. (See, e.g., People v. Waples
(2000) 79 Cal.App.4th 1389, 1394-1395.)

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explained that the prior incident was not unduly inflammatory as
it did not involve more extreme or violent conduct, there was no
risk the jury would be confused by the separate incident, and the
incident did not require a lengthy amount of testimony so there
would be no undue consumption of time. (Id. at pp. 192-193.)
Here, the trial court aptly noted that while the prior violent
crimes against Christine occurred in 1991, defendant had been in
custody for a significant portion of the time preceding the current
charges. Defendant had been convicted of the prior acts of
domestic violence against Christine (they were not mere
allegations), as well as other felonies thereafter. He had only
been free of custody for approximately six years before the
current charges. Defendant could not contend that the 1991 acts
were merely youthful indiscretions and that he had led a
blameless life since then.
More importantly, the probative value of the prior incidents
was strong given the striking similarity with the current charges.
“[I]f the prior offenses are very similar in nature to the charged
offenses, the prior offenses have greater probative value in
proving propensity to commit the charged offenses.” (Branch,
supra, 91 Cal.App.4th at p. 285.) Both Christine and Charity
were assaulted by defendant in a similar fashion. Defendant
punched both women with a closed fist about the head and face,
causing both to lose consciousness; he tried to choke or silence
both women; he dragged both women by their hair; he attacked
both women when they were holding their infant children.
We reject defendant’s contention that the 1991 incidents
were more egregious and inflammatory because Christine
testified that defendant hit her with a baseball bat. The
extensive testimony regarding the current charges involved equal
or more serious conduct, including threatening multiple victims

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with a gun, and breaking down the bathroom door and beating
Charity with a broken piece of the door frame.
Moreover, there was no risk of confusion of the issues or
undue consumption of time. Christine’s testimony took less than
30 minutes, consisting of just 16 pages of trial transcript.
The trial court acted well within its discretion in concluding
that the potential prejudice did not substantially outweigh the
probative value of the 1991 incidents, and the interests of justice
warranted their admission.
2. The Denial of the Motion for Mistrial
Defendant contends the trial court erred in denying his
motion for mistrial based on prosecutorial misconduct. We
disagree.
“A trial court should grant a mistrial only when a party’s
chances of receiving a fair trial have been irreparably damaged,
and we use the deferential abuse of discretion standard to review
a trial court ruling denying a mistrial.” (People v. Bolden (2002)
29 Cal.4th 515, 555.)
Here, the court and parties discussed at length outside the
presence of the jury the admission and use of a pretrial recorded
statement made by Yasha to the investigating detectives. The
court ruled the statement could be used, but the prosecution was
required to redact parts, including, as relevant here, any
reference to defendant having been in prison. The redactions
were made to the recording, as well as the written transcript that
was provided to the jury when the statement was played.
However, one reference to defendant previously being “in prison”
remained in the recording and the written transcript.
When the word “prison” was uttered during the playing of
the recorded statement to the jury, defendant, despite being
represented by counsel, immediately stood up and demanded a
mistrial three separate times, while the court admonished him to

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be quiet. The court advised the jury that a quick break in the
proceedings was necessary and they were to return to the jury
room. The transcripts that had been passed out were collected.
Once the jurors were gone, defense counsel moved for a
mistrial, arguing the reference to prison was unduly prejudicial
and its inclusion in the recording and transcript was in direct
violation of the court’s order regarding the admissibility of the
statement.
The prosecutor apologized for the error but emphasized it
was an error and she had endeavored to remove all references as
ordered by the court. She indicated she had provided copies of
the redacted statement to defense counsel in advance and defense
counsel never said there was a problem, and therefore either
missed it himself or did not preview the materials. The
prosecutor argued the brief reference was not unduly prejudicial.
After entertaining further argument, the court denied
defendant’s motion. The court found the prosecutor’s error to be
inadvertent, a point which defendant conceded. The court also
found that the brief one-word reference in a 20-page transcript
and a 23-minute video would not create unfair prejudice. The
court offered to admonish the jurors, but defendant declined. The
prosecutor provided corrected transcripts and a corrected
recording to be played to the jury when Yasha’s testimony was
resumed.
“ ‘ “ ‘ “A prosecutor’s . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct ‘so
egregious that it infects the trial with such unfairness as to make
the conviction a denial of due process.’ ” ’ [Citations.] Conduct by
a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it
involves ‘ “ ‘the use of deceptive or reprehensible methods to

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attempt to persuade either the court or the jury.’ ” ’ ” ’
[Citation.]” (People v. Peoples (2016) 62 Cal.4th 718, 792-793.)
The prosecutor’s error was plainly inadvertent, as found by
the court and conceded by defendant. There is no suggestion in
the record that the prosecutor intentionally violated the court’s
order or otherwise engaged in deceptive or reprehensible conduct.
The record further supports the court’s conclusion there
was no undue prejudice to defendant. First and foremost, this
was not a weak case. The evidence was strong and ample that
defendant engaged in repeated acts of violence against his wife,
and also attacked his 68-year-old mother, his sister and her
boyfriend.
Second, the jury was well aware that defendant had a
criminal history and had been in custody, based on evidence to
which no objection was interposed. Defendant stipulated that he
was a convicted felon for purposes of count 12 and that
stipulation was read to the jury. Defendant’s parole agent,
Ms. Gomez, also testified. The court had previously ordered she
was not to be identified as a parole agent, but she was identified
as an employee of the Department of Corrections and
Rehabilitation who regularly met with defendant during the
course of the year. She attested to seeing an injury on Charity
during one such meeting and that Charity contacted her after she
left defendant in October 2015.
Further, defendant’s sister April testified she became
friends with Charity before defendant “got out,” and that after
“he first got out,” he had a job working at the pound. Defendant’s
brother Toby made a similar reference during his testimony. The
jurors also heard from Christine about defendant’s assaults on
her in 1991 and her statement that defendant was angry with
her and said, “Bitch, you’re not going to put me back in jail.”
Defendant did not object to any of this testimony.

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The singular reference by Yasha that defendant had been
in prison could not have unfairly altered the jury’s view of
defendant or prejudiced them against him. Defendant has not
shown that the trial was rendered fundamentally unfair. The
court was well within its broad discretion in denying defendant’s
motion.
3. The Great Bodily Injury Enhancement on Count 4
Defendant argues it was error for the court to impose a
five-year great bodily injury enhancement pursuant to Penal
Code section 12022.7 on count 4 (torture) because great bodily
injury is an element of the substantive charge of torture.
Defendant’s contention disregards the statutory language making
clear the enhancement may be imposed when torture is
committed in the context of domestic violence.
Penal Code section 12022.7 contains numerous provisions
providing for the imposition of a sentence enhancement for the
infliction of great bodily injury under a variety of circumstances.
As relevant here, subdivision (e) provides that “[a]ny person who
personally inflicts great bodily injury under circumstances
involving domestic violence in the commission of a felony or
attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for three,
four, or five years.” (Italics added.)
The statute also expressly enumerates and delimits those
situations where the enhancement does not apply. Subdivision
(g) of Penal Code section 12022.7 provides that “[t]his section
shall not apply to murder or manslaughter or a violation of
Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not
apply if infliction of great bodily injury is an element of the
offense.” (Italics added.) Subdivision (g) does not exclude
subdivision (e), which requires imposition of the enhancement for
the commission of a crime involving domestic violence.

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The statutory language is clear and unambiguous. Where,
as here, a defendant inflicts great bodily injury under
circumstances involving domestic violence, the Legislature
intended for the enhancement to be imposed in addition and
consecutive to, the punishment prescribed for the substantive
offense, even if infliction of great bodily injury is an element of
that offense.
Defendant was specifically charged with inflicting bodily
injury on his wife Charity pursuant to subdivision (e) of Penal
Code section 12022.7. The record contains substantial evidence
demonstrating that defendant inflicted great bodily injury on
Charity under circumstances involving domestic violence. There
is no contention otherwise. The court therefore properly imposed
a consecutive five-year term on count 4.
Moreover, Penal Code section 654 does not dictate a stay of
the enhancement. When confronted with the interplay of
arguably conflicting sentencing statutes, our Supreme Court has
instructed that “courts should look first to the statutory language
concerning the enhancements to determine how they interact and
consider section 654 only if those statutes do not provide the
answer.” (People v. Ahmed (2011) 53 Cal.4th 156, 161.) As we
explained above, section 12022.7, the more specific statute,
provides the answer. The mandatory enhancement was properly
imposed and we need not consider application of section 654.
4. The Concurrent Term on Count 12
Defendant contends the concurrent term of four years
imposed on count 12 (felon in possession of a firearm) must be
stayed pursuant to Penal Code section 654. Defendant argues
the evidence showed only that his possession of a firearm was
incidental to, and simultaneous with, the primary offenses
involving gun use against Charity and April that arose from the
April 22, 2015 incident.

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Respondent argues there was evidence defendant had
possession of the firearm prior to, and after, the primary offenses
were committed and therefore imposition of a sentence on count
12 was proper.
“ ‘[Penal Code] [s]ection 654 precludes multiple punishment
for a single act or for a course of conduct comprising indivisible
acts.’ ” (People v. Spirlin (2000) 81 Cal.App.4th 119, 129.)
“Whether section 654 applies in a given case is a question of fact
for the trial court, which is vested with broad latitude in making
its determination. [Citations.] Its findings will not be reversed
on appeal if there is any substantial evidence to support them.
[Citations.] We review the trial court’s determination in the light
most favorable to the respondent and presume the existence of
every fact the trial court could reasonably deduce from the
evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143
(Jones).)
In arguing Penal Code section 654 applies here, defendant
relies heavily on People v. Bradford (1976) 17 Cal.3d 8 (Bradford)
and People v. Venegas (1970) 10 Cal.App.3d 814 (Venegas) which
both involved defendants charged with being a felon in possession
of a firearm and assault with a deadly weapon. Defendant’s
reliance is misplaced.
In Bradford, the defendant was stopped for speeding by a
highway patrol officer. Once stopped, the defendant confronted
the officer, wrested away the officer’s gun and shot him with it.
The Supreme Court concluded the possession was simultaneous
with the use of the firearm to shoot the officer, and therefore
Penal Code section 654 barred multiple punishment. (Bradford,
supra, 17 Cal.3d at pp. 22-23.) Venegas involved a similar factual
scenario where the defendant got into a bar fight. The evidence
suggested the defendant took the victim’s gun during the struggle

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and shot him with it. (Venegas, supra, 10 Cal.App.3d at pp. 818-
820.)
Where the evidence demonstrates, as in Bradford and
Venegas, that “ ‘fortuitous circumstances’ ” account for the
defendant’s possession of the firearm “ ‘only at the instant of
committing’ ” the primary offense, Penal Code section 654 plainly
applies. (Jones, supra, 103 Cal.App.4th at p. 1144.) But,
“multiple punishment is proper where the evidence shows that
the defendant possessed the firearm before the crime, with an
independent intent.” (Ibid.)
The crime of being a felon in possession of a firearm “ ‘is a
relatively simple crime to commit[.]’ ” (Jones, supra, 103
Cal.App.4th at p. 1145.) The crime is committed “whenever a
felon intentionally has the weapon in constructive or actual
possession.” (Id. at p. 1147.) And, it is not necessary for the
defendant to possess the weapon for a lengthy period of time. (Id.
at pp. 1147-1148.)
In Jones, the defendant went to the home of an ex-
girlfriend who had taken out a restraining order against him. He
sat in the front passenger seat of the car he had arrived in while
the driver went up to the door and asked if the ex-girlfriend was
home. A family member said no and the defendant and his friend
drove off. They returned in the same car about 15 minutes later
and defendant, still seated in the front passenger seat, fired
several shots at the home. (Jones, supra, 103 Cal.App.4th at
pp. 1141-1142.)
In concluding that Penal Code section 654 did not bar
multiple punishment for both the felon in possession charge and
the shooting at an inhabited residence charge, Jones explained
that “the evidence was not reasonably susceptible to a conclusion
that [the defendant] fortuitously came into possession of the gun

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at the moment he drove by [the victim’s] house the second time.”
(Jones, supra, 103 Cal.App.4th at p. 1148.)
Similarly, the evidence here is not reasonably susceptible to
a conclusion that defendant fortuitously stumbled upon the gun
somewhere in the family home on the evening of April 22, 2015,
immediately before he used it in the attacks on Charity and
April. Rather, the evidence showed that defendant, since as early
as November 2014, had a gun within his actual or constructive
possession in the family home to use at any time to threaten and
intimidate. Defendant chose to arm himself on April 22, 2015,
and thereafter, over the course of the evening, he chose to commit
several additional crimes.
Defendant argues the operative information stated the
firearm possession charge was alleged to have occurred on
April 22, 2015, and not on any prior date in November 2014 or
otherwise. Defendant contends the prosecution never argued
there was antecedent possession prior to the events of April 22,
2015, and therefore cannot now be allowed to argue that evidence
as the basis for count 12.
However, the record described above includes substantial
evidence that defendant’s possession was antecedent to and
independent of the other crimes committed on April 22, 2015.
The crime of being a felon in possession of a firearm “ ‘is complete
once the intent to possess is perfected by possession. What the
ex-felon does with the weapon later is another separate and
distinct transaction undertaken with an additional intent which
necessarily is something more than the mere intent to possess
the proscribed weapon.’ ” (Jones, supra, 103 Cal.App.4th at
p. 1146.) Penal Code section 654 does not apply.

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5. The Five-year Enhancements Pursuant to Penal
Code Section 667, Subdivision (a)
The trial court imposed four 5-year enhancements
pursuant to Penal Code section 667, subdivision (a) based on the
four qualifying priors the court found to be true. It is undisputed
that two of defendant’s qualifying priors, both 1991 assault
convictions, were charged and resolved together pursuant to a
guilty plea in case number MA003351. The trial court imposed
two separate five-year enhancements for those two assaults. As
respondent concedes, one of those five-year enhancements
imposed must be stricken. (See § 667, subd. (a) [providing for a
mandatory “five–year enhancement” only for each prior arising
from “charges brought and tried separately”]; People v. Jones
(2015) 236 Cal.App.4th 1411, 1415-1416.) We therefore strike
one of the five-year enhancements and modify defendant’s
judgment accordingly.
DISPOSITION
The judgment is modified as follows: one consecutive five-
year enhancement pursuant to Penal Code section 667,
subdivision (a) is stricken. The total determinate term is reduced
from 44 years to 39 years. The superior court is directed to
prepare and transmit a modified abstract of judgment to the
Department of Corrections and Rehabilitation in accordance with
this opinion.
The judgment of conviction is affirmed in all other respects.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. FLIER, J.

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