Filed 1/9/20 P. v. Navarro CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

GABRIEL GARCIA NAVARRO,

Defendant and Appellant.

C087044

(Super. Ct. No. 17CR002846)

Defendant Gabriel Garcia Navarro pleaded guilty to the misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377) and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)), with two strikes (Pen. Code, §§ 667, subds. (b)-(i), 1170.12; unless otherwise stated, statutory section references that follow are to the Penal Code) and a prior prison term (§ 667.5, subd. (b)). Following a jury trial, defendant was convicted of being a felon in possession of a firearm (§ 29800, subd. (a)) and unlawful possession of ammunition (§ 30305, subd. (a)). The trial court sentenced defendant to a seven-year state prison term.

On appeal, defendant contends the sentences for felon in possession of ammunition and possession of drug paraphernalia should have been stayed pursuant to section 654. In a supplemental brief, he claims the prison prior must be stricken pursuant to Senate Bill 136. We shall remand for resentencing with directions to strike the prior prison term enhancement and stay execution of the sentence on the unlawful possession of ammunition count, and affirm the judgment in all other respects.

FACTS AND LEGAL PROCEEDINGS

On October 10, 2017, parole agent Steven Grace visited the home of defendant, a parolee he had recently been assigned to supervise. Agent Grace found a round of .22-caliber ammunition near a windowsill in a detached shop building on the property. He told defendant to throw the round away.

Agent Grace returned to defendant’s home on October 18 and conducted another search. During a search of the shop building, he saw the same round of ammunition in the same place he saw it before. Agent Grace also saw a rifle case in the building and asked defendant if he had any firearms on the property. Defendant replied there was a .22-caliber rifle disassembled into two pieces that was near a workbench and saw.

Parole agent Justin Benson took possession of the firearm, a .22-caliber rifle, from the area where defendant told him to look. It was in two pieces, with the stock separated from the barrel and receiver. The rifle was functional, as the two pieces could be attached with a single screw.

Testifying for the defense, defendant’s sister Veronica Garcia stated that she lived on the same 18-acre property as defendant during Agent Grace’s visits. Other residents included her grandson, defendant’s mother, brother, sister Yolanda, and Yolanda’s nephew. Numerous other family members used the shop building for storage. It was messy due to all of the items stored there, and no one had control over all of the property.

Defendant stipulated to the factual basis of the plea when he pleaded guilty to the drug possession and drug paraphernalia offenses. We take the facts of those crimes from the probation report.

After seizing the firearm and ammunition from defendant, Agents Grace and Benson returned to his home and arrested him. Defendant was in possession of a methamphetamine smoking pipe and 2.57 grams of methamphetamine at the time of his arrest.

DISCUSSION

I

The trial court designated the firearm offense as the principal term and imposed concurrent terms for the remaining offenses. Defendant contends sentence should have been stayed pursuant to section 654 on the unlawful possession of ammunition and possession of drug paraphernalia counts. The Attorney General concedes the point on the possession of ammunition but disagrees as to the drug paraphernalia count. We agree with the Attorney General.

Section 654 provides in pertinent part: “(a) 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.” (§ 654, subd. (a).) The statute does not prohibit multiple convictions for the same conduct, only multiple punishments. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) “In such a case, the proper procedure is to stay execution of sentence on one of the offenses. [Citation.]” (Ibid.)

“In any section 654 inquiry, the court must initially ascertain the defendant’s objective and intent. [Citation.] ‘ “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.” ’ [Citation.] ‘Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.’ ” (People v. Tom (2016) 22 Cal.App.5th 250, 261.)

Courts have found section 654 prohibited punishing a defendant for both felon in possession of a firearm and unlawful possession of ammunition when all of the ammunition in question was loaded into the firearm or had been fired from it. “To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. 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. 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.” (People v. Lopez (2004) 119 Cal.App.4th 132, 138; see also People v. Sok (2010) 181 Cal.App.4th 88, 100, fn. omitted [“trial court erred in failing to stay the sentences for . . . unlawful possession of ammunition . . . pursuant to section 654 because the ammunition at issue . . . was either loaded into Sok’s handgun or had been fired from that gun”].)

This case differs from those cases as the single round of ammunition was neither loaded into or fired from the firearm. It is a distinction without a difference in the context of these facts. “While possession of an unloaded firearm alone can aid a person committing another crime, possession of ammunition alone will not. The former may be used as a club and a victim may be fearful that the firearm is loaded. While the latter may be thrown at a victim, it is extremely unlikely that possession of bullets alone would scare anyone but the most timid. In combination, however, the mixture is lethal and that is why criminals have a penchant for loaded firearms.” (People v. Lopez, supra, 119 Cal.App.4th at p. 138.) The firearm in this case was found disassembled into two parts and was not useful either as a club or as an unloaded weapon in its current state. It would be useful when assembled and with the single round of ammunition in the area loaded into it. Possession of the firearm and the ammunition had a single criminal purpose, and execution of sentence should have been stayed pursuant to section 654. Since the case is being remanded for resentencing, we shall instruct the court to stay execution pursuant to section 654 on remand.

The drug counts are another matter. Methamphetamine does not have to be smoked to be used. (See, e.g., People v. Dalton (2019) 7 Cal.5th 166, 184 [witness testified to daily use of methamphetamine by snorting, injecting, or eating it].) Likewise, a methamphetamine pipe need not be possessed to smoke just the drugs found on the person, but can be possessed before the drugs were possessed, as with long term use of the drug. Such is the case here. According to the probation report (see People v. Ross (1988) 201 Cal.App.3d 1232, 1239 [“a trial court may appropriately pursue a section 654 inquiry beyond the record presented at the time of plea”]; People v. Rosenberg (1963) 212 Cal.App.2d 773, 777 [discussing facts gleaned from the probation report and concluding that section 654 precluded punishment for grand theft and forgery]), defendant said he first used methamphetamine 10 years ago. Defendant’s methamphetamine use gradually increased until he was using it four days a week. He had been clean since his release from prison, but started using again days before his arrest. The drug helps him work and not feel his back pain. Substantial evidence supports the trial court’s implied finding that the possession of methamphetamine and drug paraphernalia offenses had separate purposes.

II

In the supplemental briefings, the parties addressed the recent amendment to section 667.5, subdivision (b) pursuant to Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) (Senate Bill 136). On October 8, 2019, the Governor signed Senate Bill 136 into law. Effective January 1, 2020, Senate Bill 136 amends section 667.5, subdivision (b), to remove the one-year enhancement for prior prison terms, except when the offense underlying the prior prison term was a sexually violent offense. (See § 667.5, subd. (b) [“Where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code”].)

Since Senate Bill 136 reduces sentences for a crime it applies retroactively to convictions not final on appeal absent evidence of a contrary legislative intent. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745.) Senate Bill 136 therefore applies to this case.

The prior conviction for recklessly evading an officer that supports the enhancement does not qualify under the amended statute as it is not a not sexually violent felony, so the enhancement cannot stand. Defendant contends the matter should be remanded for resentencing with directions to strike the enhancement. We agree. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ ”].)

DISPOSITION

The matter is remanded for resentencing. On remand, the trial court is directed to stay execution of sentence for unlawful possession of ammunition and to strike the prior prison term enhancement. Following resentencing, the trial court is directed to prepare a new abstract of judgment, and to forward a certified copy to the California Department of Corrections and Rehabilitation.

HULL, Acting P. J.

We concur:

BUTZ, J.

HOCH, J.