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Filed 12/2/15 P. v. Blunt CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. SEDDIE BLUNT , Defendant and Appellant. A142432
(Contra Costa County Super. Ct. No. 51400191 )

On January 13 , 20 14 , the Contra Costa District Attorney filed an information charging Seddie Blunt (Blunt or appellant ) with felony possession of a firearm by a violent offender (Pen. Code, § 29 900, subd. (a ) (1) ) ( Count 1 ) , f elon y possession of a
firearm by a felon (Pen. Code, § 29800, subd. (a)(1) ) ( Cou nt 2 ) , and felony possession of ammunition by a prohibited person (Pen. Code, § 30305, subd. (a)) (Count 3), all based
on his involvement in a December 2013 shooting incident outside of his home

. 1 The information additionally alleged that Blunt had a prior strike conviction (§§ 667, subds. (b)

- (i), 1170. 1 2) and a prison prior (§ 667.5, subd. (b) ) . On May 16, 2014, a jury found Blunt gu i l ty of a ll three substantive charges. At sentencing on June 20, 2014, the trial court found the enhancement allegations true; denied Blunt’s motion to strike the prior strike conviction; stayed the sentence for
Count 2 under section 654 ; sen tenced Blunt to two c oncurrent terms of two years and eight months in prison for Count 1 and Coun t 3 ; and added an additional year for the

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

prison prior, for a total sentence of three years and eight months

. Blunt argues on appeal
that the trial court committed error under In re Yurko (1974) 10 Cal.3d 857 ( Yurko ), requiring reve rsal of the finding as to his prior strike

. He also maintains that sentencing him for both possession of a firearm by a violent offender (Count 1) and possession of ammunition by a prohibited person (Co unt 3) was erroneous under section 654. We agree that Blunt’s concurrent sentence for Count 3 must be stayed pursuant to section 654, but otherwise affirm the judgment

. I. FACTUAL BACKGROUND On December 12, 2013, at approximately 10:20 a.m., Richmond Police Officer Canelo responded to a Shot Spotter alert near Blunt’ s residence. 2 When Officer Canelo arrived on the scene, Officer Vegas was already present and speaking to a witness, Ms. Woods. According to Woods, a man had fired a shot from the driveway of Blunt’ s residence

. Based on this information, the two officers walked to the nearby residence and observed Blunt standing near the open trunk of a silver Ford Taurus. Officer Veg as asked Blunt not to clo se the trunk, but Blunt closed it anyway

. Officer Canelo then asked Blunt to walk towards the officers, which he did. Officer Canelo told Blunt he was being detained and searched him for weapons. Officer Vegas asked Blunt why h e had closed the trunk and if there was somet hing in it. Blunt replied: “Yeah, my gun is in the trunk.” Blunt further admitted that the Ford was his car,
and th e officers retrieved the car keys from Blunt ’ s pants pocket. When the officers opened the tr unk, they recovered a 410

- g a u ge single

- barre l shotgun with a loaded shell and six loose shotgun shells. The shotgun appeared to be engraved with Blunt’ s initials

— SLB

. After the o fficers arrested Blunt and he waived his rights pursuant to Miranda v. Ariz ona (1966) 384 U.S. 436, Blunt explained that he had argued with Woods because he wanted to leave in his car and Woods was blocking his driveway with a cart

. When Blunt asked Woods to move, she was reportedly belligerent and called him names . Claiming he

2 The City of Richmond uses the Sh ot Spotter system to triangulate areas where loud noises occur or shots are fired.3

felt threatened, Blunt returne d to his apartment, where he viewed Woods flagging people down and pointing at his apartment and car. At some point, according to Blunt, Woods produced a knife. Again feeling threatened, Blunt retrieved his shotgun and fire d one shot into the air from his window. He claimed he was hoping to scare Woods and discourage her from returning. Blunt next unloaded the expended shell from his shotgun and placed another live
round in it. When he saw Woods return, he left his apart ment, walked to his car with the shotgun, and placed the shotgun in the trunk. The officers arrived while the trunk was still open. According to Blunt, he knew what he did was wrong, but he felt threatened by Woods and believed that firing the gun was t he only way to resolve the situation

. As a result of this incident, Blunt was charged as described above
, and a jury trial was
scheduled. Commission of a prior qualifying crime was an element of each of the three
substantive offenses with which Blunt was charged in this case: possession of a firearm by a violent offender; possession of a firearm by a felon; and possession of ammunition by a prohibited person. Prior to commencement of the jury trial, defense counsel agreed

to s tipulate to the existenc e of a prior conviction as an element of t he various offenses, stating: “ So I am thinking about the 1994 felony 211, Mr. Blunt and I would be willing to stipulate to that.” At the close of the People’s case, the trial court announced (and both parties c onfirmed) the stipulation to the jury as follows: “The two parties, the People and the defendant, have stipulated that prior to the time that the People allege a gun was found in the defendant’s possession, he had been convicted of the felony of robbery; and they have stipulated that under the Penal Code, that felony is designated as a violent felony.” According to the record, the parties did not discuss the separate prior strike allegation during the trial , no advisements were given to Blunt pursuant to Boykin
v. Alabama (1969) 395 U.S. 238 ( Boykin ) and In re Tahl (1969) 1 Cal.3d 122 ( Tahl ) , and Blunt did not expressly waive any of his trial rights with respect to the prio r strike. After the jury returned guilty verdicts for all three offenses, sentenci ng occurred
befor e the trial court on June 20, 2 0 1 4. Indicating that “we’re on for trial on the priors,”4

the trial court went on to state: “Because we have a stipulation to th e robbery, it appears

to me the only matter that the People need to prove that’ s relevant to the sentencing in any significant fashion is [the domestic violence conviction supporting the prison prior].” Nevertheless, the People thereafter submitted a certified copy of Blunt’s RAP sheet and prison packets from the Department of Corre ctions with respect to both the robbery and
the domestic violence conviction s , and these documents were received into evidence without objection for, as the court characterized it, “support of the determination of prior
convictions

. ” After both parties de clined to argue, the court found as follows: “ The Court finds that the defendant was convicted in 1994 in the Alameda County Superior
Court of a robbery , Penal Code Section 211, served a state prison term for that. That he was convicted, again in 2012, f or a . . . 245(a), domestic violence crime and received a

two

- year state prison sentence for that crime. [¶] The Court finds also that the various crimes enumerated in the probation report by the probation officer are established by the
evidence as the r ecord of the defendant. That will be the Court’s finding on the priors.” Thereafter, as stated above, the court imposed a total sentence of three years and eight months on Blunt, including one year for the prison prior and concurrent sentences of two ye ars and eight months with respect to Count 1 and Count 3

. The sentences for Count 1 and Count 3 were doubled due to Blunt’s prior strike conviction. Blunt’s timely notice of appeal brought the matter before this court.
I I. D ISCUSSION
A. Yurko Error “When a criminal de f

endant enters a guilty plea, the trial court is required to ensure that the plea is knowing and voluntary.” ( People v. Cross (2015) 61 Cal.4th 164, 170 ( Cross ).) As a part of this obligation, “the court must inform the defendant of th ree constitutional rights

— the privilege against compulsory self

- incrimination, the right to trial by jury, and the right to confront one’s accusers

— and solicit a personal waiver o f each.” ( Ibid. ; see Boykin
, supra , 395 U.S. at pp. 243

- 244; Tahl
, supra , 1 Cal.3d at

pp. 130

- 133.) T he California Supreme Court in Yurko
, supra , 10 Cal.3d 857, concluded
that the se Boykin

- Tahl “ requirements of advisement and waiver apply when a defendant5

admits the truth of a prior conviction allegation that subjects him to increased punishment.” ( Cross , supra , 61 Cal.4th at p. 170 [discussing Yurko ].) Specifically, the
Yurko Court held that “ ‘ Boykin and Tahl require, be fore a court accepts an accused’ s admission that he has suffered prior felony convictions, express and s pecific admonitions as to the constitutional rights waived by an admission. The accused must be told that an admission of the truth of an allegation of prior convictions waives, as to the finding that he has indeed suffered such convictions, the same cons titutional rights waived as to a finding of guilt in case of a guilty plea. ’ ” ( Cross , supra , 61 Cal.4th at p. 170, quoting
Yurko
, supra , 10 Cal.3d at p. 863.)
In fact , t he Yurko Court, in dealing with admissions related to previous convictions, actually went beyond the Boykin

- Tahl requirements. Under such circumstances, the Court concluded, “a defendant must also be advised of ‘the full penal effect of a finding of the truth of an allegation of prior convictions.’ ” ( Cross , supra , 61 Cal.4th at p. 170, quoting Yurko
, supra , 10 Cal .3d at p. 865.) Specifically, Yurko holds

“ ‘ as a judicially declared rule of criminal procedure ’ that an accused, before admitting a prior conviction allegation, must be advised of the precise increase in the prison term that might be imposed, the effect on parole eligibility, and the possibility of being adjudged a habitual criminal.” ( Cross , supra , 61 Cal.4th at pp. 170

- 171, quoting Yurko
, supra , 10 Cal.3d at p. 864 .)
T he California Supreme Court ha s subsequently clarified that Boykin
, Tahl , and
Yurko “do not apply to a stipulation of ‘ evidentiary facts, even facts crucial to a conviction,’ if the stipulation does not encompass ‘ all of the evidentiary facts necessary to imposi tion of the additional p enalty.’ ” ( Cross , supra , 61 Cal.4th at p. 171.) Thus, for example, in People v. Newman (1999) 21 Cal.4th 413 ( Newman ) , our high court held that Boykin and Tahl did not apply to the defendant’ s stipulation to his status as a felon during
trial because “no penal consequences flowed directly from the stipulation, and the prosecutor still was required to prove the remaining elements of the [felon in possession of a firearm] off

ense.” ( Newman , supra , 21 Cal.4th at pp. 421

- 422, disapproved on
anoth er ground in Cross
, supra , 61 Cal.4th at pp. 178

- 179.) Similarly, in this case, when6

Blunt stipulated to his prior robbery conviction during the jury trial on the substantive charges, Boykin and Tahl were not implicated because no penal consequences flowe d directly from the stipulation. Rather, the stipulation merely relieved the People of proving one element of each of the charge d offenses . (C f. Newman , supra , 21 Cal.4th at p. 422.) Thus, it was not error to fail to advise Blunt of his Boykin

- Tahl righ ts at that stage in the proceedings. However, when the trial court
, at the June 20 14 sentencing hearing, adopted Blunt’s previous stipulation for purposes of proving his prior strike conviction without giving the necessary advisements, it appears that Yurko error occu rred. Indeed, the trial

court expressly stated that there was “ a stipulation to t he robbery” and went on to explain
that , for sentencing purposes, the People need only prove Blunt’s other prior conviction
for domestic violence. Obviously, as the trial court recognized, Blunt’s stipulation admitted the truth of every fact necessary for imposition of additional punishment based on the prior strike conviction. It was tantamount to a plea of guilty insofar as the enhancement allegation was co ncerned. Thus
, Yurko advisements were warranted. (Cf. People v . Adams (1993) 6 Cal.4th 570, 580

- 583.) Indeed, t he People concede as much. The question before us, then, becomes whether, under the particular circumstances of this case, the Yurko error i dentified by Blunt requires reversal of the trial court’s prior
strike finding. Our high court has concluded that Yurko errors are not reversible per se. Rather, “the test for reversal is whether ‘the record affirmatively shows that [the guilty plea] is voluntary and intelligent under the totality of the circumstances.’ ” ( Cross , supra , 61 Cal.4th at p. 171, quoting People v. Howard (1992) 1 Cal.4t h 1 132 , 1175.) T he Supreme Court has also emp loyed a harmless error analysis when determining the consequences of Yurko error. Specifically
, in People v. Guzman (1988) 45 Cal.3d 915 ( Guzman ) , overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 , the defendant ad mitted that he had suffered two prior rape convictions. Although he was largely advised of his trial rights with respect to the admission, the trial court told the defendant that he had the right to “a hearing” on the prior convictions rather than the rig ht to a jury trial. ( Guzman , supra , 45 Cal.3d at p. 9 6 8.) Under these facts, the7

Guzman court concluded: “On this record there is no reasonable probability that, if the term ‘jury trial’ instead of ‘hearing’ had been used, defendant (i) would have denie d the priors and (ii) they would not have been found true. There is no dispute that defendant had suffered the priors and served prison terms therefor. We therefore conclude the error
was harmless. ” ( Ibid. ) In the present case, however, we need not a vail ourselves of either of these analytical constructs in concluding that reversal of the trial court’s finding with respect to Blunt’s prior strike conviction is unnecessary

. This is true because

— although the trial court informed the People that no furt her proof of the prior strike was required given Blunt’s s tipulation to the 1994 robbery

— the People chose to reject the stipulation and prove the strike anyway. Specifically, the People introduced into evidence without objection both the prison packet fro m the Department of Corrections with respect to the 1994 robbery and Blunt’s RAP sheet which confirmed the robbery conviction. The court found the evidence admissible “in support of the determination of prior convictions” and,
after both sides declined to argue the matter, found that “the defendant was convicted in 1994 in the Alameda County Superior Court of a robbery, Penal Code Section 211, [and] served a state prison term for that.” T he prior conviction records admitted into evidence in this case, including the records with respect to the 1994 robbery, “ were official government documents clearly describing the alleged convictions. As such, the fact of the convictions was presumptively established. ” ( See People v. Epps (2001) 25 Cal.4th 19, 29

- 30, citing Evid. Code, § 664.) Since the People chose not to rely on Blunt’s prior stipulation when proving the prior strike conviction and instead admitted uncontested evidence which overwhelmingly established the existence of that conviction, the stipulati on be came irrelevant for purposes of sentencing and therefore Yurko advisements were simply not required.
B

. Multiple Punishments Under Section 654
Blunt also contends that he was improperly sentenced for both C ount 1 (possession of a firearm by a viole nt offender ) and Count 3 (pos session of ammunition by a prohibited person ) in violation of section 654 , which prohibits multiple punishments for8

the same offense

. S ection 654 provides in relevant part : “ An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 prohibits multiple punishment for the same offense even when, as here, the trial court imposes concurrent sentences. ( People v. Jones (2012) 54 Cal.4th 350, 353 ( Jones ) .) Moreover, although Blunt did not raise this iss ue in t he trial court, “ ‘ [e] rrors 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.’ ” ( People v. Hester (2000) 22 Cal.4th 290, 295.) Recently , the Supreme Court in Jones confirmed that the “ ‘simultaneous possession of different items of contraband’ ”

— like the firearm and the amm unition in
this case

— constitute separate acts for purposes of section 654. ( Jones , supra , 54 Cal.4th at p. 358.) Ho wever, “ ‘ [ s ] ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than
one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a

c ourse of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” ( People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414 ( Dowdell ) .) Thus, section 654 would be implicated in this case if Blunt possessed both the firearm and the ammunition as part of an
indivisible course of conduct based on a single objective

.

“ ‘ Whether the facts and cir cumstances reveal a single intent and objective within the meaning of Penal Code section 654 is generally a factual matter .’ ” ( Dowdell
, supra , 227 Cal.A pp.4th at p. 1414.) We therefor e apply on appeal “ the substantial evidence
standa rd of review to the trial court’ s implied finding that a defendant harbored a separate intent and objective for each offense. ” ( Ibid .) In contrast, “ ‘ the dimension and meaning
of section 654 is a legal question,’ ” and thus subject to our de novo consideration.9

( Dowdell, supra , 227 Cal.App.4th at p. 1414 ; see People ex rel. Lockyer v. Shamrock
Foods Co. (2000) 24 Cal.4th 415, 432 .) Under similar, al though not identical
, circumstances, the Second District in People v. Lopez (2004) 119 Cal.App.4th 13 2 ( Lopez ) concluded that section 654 barred punishment for both unlawful possession of a firearm and un lawful possession of ammunition. ( Id

. at p. 138.) In that case, all of the ammunition at issue was loaded into
the prohibited weapon. ( I bi d

. ) N oting that the defendant’s “ob vious intent was to possess a loaded firearm,” the Lopez court opined: “ 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.” ( Ibid. ) In reaching this conclusion, the Lopez court emphasized that , when undertaking an analysis of the applicability of section 654, “the appellate courts should not ‘parse[] the objectives too finely.’ ” ( Ibid. , quoting People v. Britt (2004) 32 Cal.4th 944, 953.) Here, Blunt argues that the reasoning in Lopez bars punishment for both possessi on offenses because there are no facts in the record indica ting that he possessed
the shot gun shells found in the trunk next to the firearm at issue with a “ separate intent and objective.” Rather, he claims, he possessed both the shotgun and the extra shells as part of the same course of conduct and with the sole intent to possess a loaded shotgun to ward off a threatening trespasser. The People, in contrast, argue that Lopez is distinguishable because the ammunition in this case was not lo aded into the gun, the
record i s silent as to wh en the shells were placed in the trunk, and Blunt could have intended to give the shells away or use them to reload an empty shotgun for a separate criminal purpose. We find Blunt’s position to be the more persuasive. The six shotgun shells at
issue we re found loose in the trunk next to the single

- shot shotgun. Of course, because the shotgun only permitted a single round to be loaded at any given time, the shells could not all be physica lly contained within the gun. However, t hey were all of the type which10

cou l d be used to reload the gun , they were unexpended , and, as previously stated, they were found in close proximity to the shotgun

. Thus, this is not a case where different types of ammunition were found; where the ammunition was kept separately fr om the firearm; or where large amounts of stockpiled ammunition were recovered, all facts which might tend to support a finding of a separate criminal objective. Rather, the most reasonable inference from the evidence presented is that Blunt possessed bot h the shotgun and the extra shells with the single intent to possess a loaded shotgun (reloading as necessary) to respond to the perceived threat presented by Woods. In contrast, there is no substantial evidence supporting the People’s version of events. Under such circumstances, section 654 bars punishment for both possession offenses.
I II . D ISPOSITION
The 32

- month concurrent sentence for Count 3, unlawful possession of ammunition, is stay ed pursuant to section 654

. The superior court is ordered to prepare an amended abstract of judgment to reflect this modification and send it to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.11 _________________________ REARDON, J.

We concur:

_________________________ RUVOLO, P. J.

_________________________ STREETER, J.12

People v. Blunt A142432