Filed 3/8/16 P. v. Bland CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA DAVIS BLAND,

Defendant and Appellant.

F069496

(Fresno Super. Ct. No. F12909340)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. 

Harrell, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter 

W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
2.

Defendant Joshua Davis Bland was convicted of one count of possession of child 

pornography and one count of possession of child pornography with a prior conviction, 

which required him to register as a sex offender. Numerous prior convictions were found

true resulting in two consecutive sentences of 25 years to life. 

Defendant’s only argument is the trial court erred when it imposed consecutive 

sentences, instead of concurrent sentences. We find no error and affirm the judgment.

The Information

The consolidated information charged defendant with one count of possession of 

child pornography in violation of Penal Code section 311.11, subdivision (a),1 and one 

count of possession of child pornography with a prior conviction for an offense that 

requires registration under the Sex Offender Registration Act in violation of section 

311.11, subdivision (b). The information also alleged defendant had suffered seven prior 

convictions that constituted strikes within the meaning of section 667, subdivisions 

(b)(i).

The Testimony

Six witnesses testified at trial, all police officers at Coalinga State Hospital.2 On 

July 6, 2012, Officer Samuel Hall participated in a search of defendant’s room at the 

hospital. Hall located a digital media player that can be connected to a television and 

which will then display images or music that had been stored on a memory card. Such 

devices are common in the hospital. There was a thumb drive in the digital media player 

that appeared to contain music files. Hall located a memory card underneath the portable 

player. These items were confiscated from defendant’s room.

 

1 All statutory references are to the Penal Code unless otherwise stated.

2 The issue in this case requires us to summarize only the testimony of five of the 

officers.
3.

Officer Michael Clark also participated in search of defendant’s room on July 6, 

2012. During that search Clark found a sheet of paper with a list of what appeared to be 

child pornography websites, although Clark did not view the websites to verify their 

content. Clark also found four compact disks. Each of the items were confiscated. 

Officer Juan Ibarra documented where confiscated items were located during the July 6, 

2012, search of defendant’s room, took photographs of those items, and booked the 

confiscated items into evidence.

Officer Lisandro Galvan conducted a search of defendant’s room on November 

19, 2012. He located a digital media player, some memory cards, two thumb drives, a 

hard drive, some compact disks, and an MP3 player. Galvan confiscated the items and 

booked them into evidence.

Sergeant Jerry Duvall instructed the officers to search defendant’s room on July 6, 

2012. He then interviewed defendant. The recording of the interview was played for the 

jury. He also searched the media storage devices confiscated from defendant’s room. On 

the memory card he located approximately 765 images and 137 videos depicting child 

pornography. The other media storage devices contained pictures depicting children in 

erotic poses, but did not contain child pornography. After completing his review of the 

media storage devices, Duvall again interviewed defendant, this time on August 16, 2012. 

A recording of the interview was played for the jury.

After defendant’s room was searched in November, Sergeant Duvall inspected the 

media storage devices confiscated from the room. One memory card had over 7,000 

images depicting child pornography. Another memory card had over 5,000 images and 

over 400 videos depicting child pornography.

The final item of evidence introduced by the prosecutor was a certified record of 

defendant’s prior conviction for violating section 288, subdivision (a). 
4.

Closing Argument, Verdict and Sentencing

The prosecutor argued the evidence established defendant’s guilt. Defense 

counsel admitted the confiscated items contained child pornography, but argued there 

was insufficient evidence that defendant possessed those items since defendant had four 

roommates in the first room that was searched, and both the first and second rooms were 

easily accessible to any of the patients at the hospital. 

The jury found defendant guilty as charged. In a bifurcated trial, the trial court 

found each of the enhancements true. The trial court denied defendant’s invitation to 

strike his prior convictions pursuant to section 1385 and People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497, and sentenced defendant to two consecutive third strike 

terms of 25 years to life.

DISCUSSION

Defendant argues the trial court abused its discretion when it imposed consecutive 

sentences for the two convictions. Defendant bases his argument on section 667, 

subdivision (c)(6) (hereafter subdivision (c)(6)), which provides, “If there is a current 

conviction for more than one felony count not committed on the same occasion, and not 

arising from the same set of operative facts, the court shall sentence the defendant 

consecutively on each count pursuant to subdivision (e).” The Supreme Court has 

interpreted this provision to mean that consecutive sentences are not mandatory if the 

multiple felony convictions are committed on the same occasion or arise from the same 

set of operative facts. (People v. Deloza (1998) 18 Cal.4th 585, 591(Deloza).) 

Defendant argues his two convictions arose from the same set of operative facts, and thus 

the trial court was not obligated to impose consecutive sentences. We disagree.

People v. Lawrence (2000) 24 Cal.4th 219 (Lawrence) is instructive. Lawrence 

stole a bottle of brandy from a market and ran from the premises when confronted by 

store employees. He took a commonly used short cut to enter a gated community. This 

short cut required him to jump over a fence into the back yard of a private residence. He 
5.

was confronted in the back yard by the homeowner (Rojas) and his fianceé (LaVastida). 

A struggle ensued, with Lawrence using the bottle of brandy as a weapon. At one point 

he struck the homeowner’s fianceé in the head with the bottle, causing her to collapse and 

nearly rendering her unconscious. Lawrence was convicted of several crimes including, 

as relevant here, felony petty theft with a prior conviction, and felony assault with a 

deadly weapon or with force likely to produce great bodily injury. (Id. at p. 225.) 

Several prior convictions which constituted strikes were also found true. The trial court 

concluded it was obligated to impose consecutive three strike sentences on the two felony 

counts. (Ibid.)

The issue before the Supreme Court was whether the trial court had discretion to 

impose concurrent sentences pursuant to subdivision (c)(6). It began its analysis with 

Deloza, and confirmed that for the purposes of subdivision (c)(6), the phrase “committed 

on the same occasion” refers “ ‘ “to at least a close temporal and spatial proximity 

between two events, although it may involve other factors as well....” ’ ” (Lawrence, 

supra, 24 Cal.4th 219 at p. 226, italics added in original.) It then explained Deloza

concluded the crimes before it were committed on the same occasion within the meaning 

of the statute when Deloza entered a store, robbed four victims within that store, then left. 

“ ‘His robberies were committed in one location, and were apparently brief in duration. 

They were committed essentially simultaneously against the same group of victims, i.e., 

persons in the furniture store. While [the patron whose purse was stolen] approached 

defendant, his criminal activity was not thereby interrupted, but merely continued with 

her as an additional victim. Nor was there any other event that could be considered to 

separate one “occasion” of robbery from another. Given the close temporal and spatial 

proximity of defendant’s crimes against the same group of victims, they were clearly 

committed on the “same occasion,” regardless of what additional factors may be found 

relevant in defining the precise parameters of this phrase in future cases.’ ” (Lawrence, 

supra, at p. 227.) 
6.

Turning to Lawrence’s crimes, the Supreme Court reached the opposite 

conclusion. 

“Here, in contrast, defendant fled the scene of his first crime, the 

theft of a bottle of brandy from a market. He was seen running across the 

street and through a gas station. He likely followed the shortcut through the 

vacant lot, over the wall behind the Rojas/LaVastida house, and into their 

fully enclosed backyard. There was testimony it would have taken 

defendant two or three minutes to walk that distance, though he 

undoubtedly traveled the route at a quickened pace. The facts taken as a 

whole support an inference that defendant committed his second offense at 

the Rojas/LaVastida home, a one to three-block distance from the site of his 

first crime (depending on whether he took the shortcut or followed the city 

streets), and most likely within two or three minutes of his theft from the 

market. Although he was fleeing from the first crime scene and may have 

been following a known neighborhood shortcut, he nonetheless chose to 

trespass into the Rojas/LaVastida house’s fully enclosed backyard. At the 

point at which he entered the backyard, defendant was no longer being 

pursued by any store personnel (although we do not know whether he was 

aware of that). In theory, he could have fled along a public street or 

thoroughfare and possibly escaped apprehension. Instead, he chose to 

commit new and separate crimes during his flight. The instant case thus 

involves additional factors not present in Deloza and [People v. Hendrix

(1997) 16 Cal.4th 508]: two separate locations (a market and a residence 

one to three blocks away), and two entirely separate groups of victims (the 

employees and a patron of the market, and Rojas and LaVastida, who had 

no connection to the first crime). Nor can it be said that defendant’s crimes 

were committed simultaneously (cf. Deloza, supra, 18 Cal.4th 585) or 

through the same criminal act directed against multiple victims (cf. 

Hendrix, supra, 16 Cal.4th 508).” (Lawrence, supra, 24 Cal.4th 219 at 

p. 228.)

The Supreme Court next considered the phrase “same set of operative facts” and 

concluded the phrase refers to two crimes that share common acts or common criminal 

conduct. (Lawrence, supra, 24 Cal.4th 219 at p. 233.) It then rejected Lawrence’s claim 

that his two felony convictions arose from the same set of operative facts. 

“Defendant’s initial crime was the shoplifting theft of a bottle of brandy 

from a market. Although still in flight from the crime scene, he thereafter 

chose to commit new and different offenses: the trespass into the 

Rojas/LaVastida backyard, and the ensuing assaults against Rojas and 
7.

LaVastida. The first crime involved an act of theft directed at one group of 

victims, the second involved assaultive conduct directed at an unrelated 

pair of victims. The two criminal episodes were separated spacially by at 

least one to three city blocks, and temporally by two to three or more 

minutes (from the time defendant stole the brandy from the market until the 

point he committed the aggravated assault upon LaVastida after having fled 

from the first crime scene, trespassed into the Rojas/LaVastida backyard, 

and fled again, chased by Rojas out of the yard and down a long driveway 

to the street, where he hit LaVastida with the bottle before being subdued).

“On these facts we conclude that defendant’s felony assault upon 

LaVastida did not arise out of the ‘same set of operative facts’ as the theft 

from the market. Because defendant’s multiple current felony convictions 

neither were committed on the same occasion within the meaning of Deloza

nor arose from the same set of operative facts, the trial court correctly 

concluded it was mandated by subdivision (c)(6) to sentence 

consecutively.” (Id. at pp. 233234.)

The above quotes are from the lead opinion, which was signed by three justices. 

Justice Mosk wrote a concurring opinion which concluded the key to interpreting the 

above phrases was whether the perpetrator had a reasonable opportunity for choice when 

committing the two crimes. (Lawrence, supra, 24 Cal.4th 219 at pp. 237238 (conc. opn. 

of Mosk, J.).) “I conclude that a perpetrator convicted of multiple felonies committed his 

felonies on the ‘same occasion’ when, and only when, he committed them within a period 

of time that denied him a reasonable opportunity for choice in the interim. I likewise 

conclude that his felonies arose out of the ‘same set of operative facts’ when, and only 

when, they arose out of a single group of common facts, whose commonality denied him 

a reasonable opportunity for choice in the interim by denying him any ‘interim’ within 

which to choose.” (Id. at pp. 238239.) Justice Mosk then concluded that mandatory 

consecutive sentences were required for Lawrence.

“I believe that the facts establish that appellant did not commit his 

felonies on the ‘same occasion.’ On one, he engaged in petty theft against 

the Stater Brothers market, having previously suffered a theft-related 

conviction. On another, he assaulted Elizabeth LaVastida with a deadly 

weapon. It is true that he did the one and then the other one close in time. 
8.

But he had a reasonable, albeit not an extensive, opportunity for choice in 

the interim.

“I also believe that the facts establish that appellant’s felonies did 

not arise from the ‘same set of operative facts.’ It is not the case that there 

was a single group of common facts for both the theft and the assault. 

Hence, it is not the case that there was a commonality of facts that denied 

him a reasonable opportunity for choice in the interim by denying him any 

‘interim’ within which to choose. Rather, as stated, he did indeed have the 

requisite reasonable, if not extensive, opportunity.” (Id. at p. 239.)

Regardless of the approach used, it is clear that defendant’s crimes did not arise 

from the same set of operative facts. The first crime occurred when defendant’s room 

was searched on July 6, 2012. The testimony suggests all media storage devices in 

defendant’s room were confiscated at that time.3 Defendant was sometime thereafter 

moved to a different room. When this room was searched four months later different 

media storage devices were located, giving rise to the second charge. While each search 

resulted in essentially the same charge, the two charges were based on different media 

storage devices, found in searches conducted four months apart, and found in different 

rooms at Coalinga State Hospital. In other words, the two crimes were separated by time 

and space, and did not have any common acts. Under no reasonable construction can the 

phrase “same set of operative facts” include the facts of this case. Although the two 

criminal acts were the same, possession of child pornography, the two charges related to 

separate and distinct conduct. There was not a single group of common facts for both 

charges, and defendant had a reasonable opportunity for choice between obtaining the 

two sets of media storage devices. Accordingly, we reject defendant’s argument, and 

 

3 Although the question was not directly asked, the testimony established that the 

officers conducting the search were instructed to confiscate media storage devices, and 

since none were examined for possible pornography until later, the only reasonable 

inference is that all media storage devices were confiscated. The testimony established, 

however, that the media storage devices containing child pornography found in the 

November search were not the same media storage devices containing child pornography 

found in the July search.
9.

subdivision (c)(6) required the trial court to impose consecutive sentences for the two 

felony convictions. 

The cases cited by defendant are inapposite. In Wright v. Superior Court (1997) 

15 Cal.4th 521 (Wright), the defendant was charged with felony failure to register as a 

sex offender pursuant to section 290, subdivisions (a) and (f). The relevant facts 

indicated he originally had registered, but in November 1994, he moved and failed to 

report his new address. In March 1995, officials discovered the defendant had moved, 

and charges were brought. In 1994, failure to register as a sex offender was a 

misdemeanor, but effective January 1, 1995, the legislature reclassified the crime as a 

felony. The defendant was charged with a felony, but argued he should be charged with a 

misdemeanor because he violated the statute when he moved in November 1994. The 

issue was whether the failure to register as a sex offender was a continuing offense. 

The portion of this opinion on which defendant relies is contained in the following 

quote. “Most crimes are instantaneous since they are committed as soon as every 

element is satisfied. Some crimes, however, are not terminated by a single act or 

circumstance but are committed as long as the proscribed conduct continues. Each day 

brings ‘a renewal of the original crime or the repeated commission of new offenses.’ 

[Citation.]” The distinction is critical because it determines the application of many legal 

principles such as the statute of limitations period, venue, jurisdiction, sentencing, double 

jeopardy, and, as here, the prohibition against ex post facto laws.” (Wright, supra, 15 

Cal.4th at p. 525.)

This quote does not assist defendant. It may be true that the media storage devices 

found in defendant’s possession in July resulted in a continuing offense from the time he 

obtained them until they were confiscated. However, when those media storage devices 

were confiscated the crime ended. A second and distinct crime occurred because 

defendant possessed different media storage devices that contained child pornography. 

Wright is not implicated. 
10.

Nor does People v. Garcia (2008) 167 Cal.App.4th 1550 assist defendant. Garcia 

was convicted of numerous crimes including robberies, carjacking, and vehicle related 

theft. In each of these crimes he used a firearm. He was also convicted of possession of 

a firearm by a felon. The issue was whether the possession of a firearm count arose out 

of the same set of operative facts within the meaning of subdivision (c)(6). The appellate 

court concluded it did because the firearm on which the possession charge was based was 

also used in the other crimes. Thus, according to the appellate court, “every other count 

shares common acts or criminal conduct  possession of what the trial court could 

reasonably find was the same firearm by the same previously arrested felon. As a result, 

the trial court possessed the discretion to impose a concurrent sentence.” (Id. at p. 1567.) 

Defendant was convicted of possessing child pornography on two separate 

occasions. The images were stored on different media storage devices. While some of 

the images found in the first search may have been the same or similar to images found in 

the second search, because there were thousands more images found in the second search 

there must have been images found in the second search which were not found in the first 

search. Therefore, to the extent defendant is arguing the crimes arose from the same set 

of operative fact because the images found in both searches were the same, we reject the 

argument. 

DISPOSITION

The judgment is affirmed.