People v. Stout

251 Cal. Rptr. 3d 407, 38 Cal. App. 5th 669
CourtCalifornia Court of Appeal, 5th District
DecidedAugust 12, 2019
DocketC085360
StatusPublished
Cited by2 cases

This text of 251 Cal. Rptr. 3d 407 (People v. Stout) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Stout, 251 Cal. Rptr. 3d 407, 38 Cal. App. 5th 669 (Cal. Ct. App. 2019).

Opinion

MAURO, Acting P. J.

*408*670In case No. 16F4167, a jury convicted defendant Douglas Jeremiah Stout of attempted carjacking, attempted kidnapping, *671criminal threats, carrying a loaded firearm with the intent to commit a felony, possession of a firearm by a felon, assault with a semiautomatic firearm, and possession of ammunition by a felon. The jury also found true allegations that defendant personally used a firearm in the commission of specified felonies. The trial court found true prior prison term and on-bail enhancement allegations and imposed a total state prison term of 35 years 4 months, encompassing three different cases.

Defendant now contends (1) the trial court erred in instructing the jury that the prosecution did not need to prove the exact dates of the crimes, (2) his count 8 conviction for possession of a firearm by a felon must be reversed because he cannot be convicted of two such offenses where there was no break in possession, (3) the firearm use enhancement on the count 4 conviction for carrying a loaded firearm with the intent to commit a felony must be stricken, (4) the trial court should have stayed sentence for attempted carjacking, and (5) the trial court miscalculated defendant's sentence by two months. In supplemental briefing, defendant argues (6) the matter should be remanded for the trial court to exercise its discretion whether to strike the firearm use enhancements pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620).

In the published portion of this opinion, we agree with defendant and the Attorney General that the firearm use enhancement on the count 4 conviction for carrying a loaded firearm with the intent to commit a felony must be stricken. Penal Code section 25800, subdivision (a)1 punishes the passive or static act of carrying a firearm with the intent to commit a felony; the offense is complete when the firearm is carried with that intent. The fact that defendant used the firearm to commit other felonies does not mean he used it in the commission of the section 25800 felony.

In the unpublished portion of the opinion, we conclude the asserted instructional error was harmless, one of defendant's convictions for possession of a firearm by a felon must be reversed, we will remand to allow the trial court to exercise its discretion whether to strike the firearm use enhancements pursuant to Senate Bill 620, and we will direct the trial court on remand to stay sentence on the count 1 conviction for attempted carjacking and its associated firearm use enhancement, unless the trial court decides to strike the enhancement. We also identify a clerical error in the abstract of judgment. Because the trial court must recalculate the aggregate sentence on remand ( People v. Buycks (2018) 5 Cal.5th 857, 893, 236 Cal.Rptr.3d 84, 422 P.3d 531 ), we do not address defendant's fifth contention that the trial court miscalculated defendant's sentence.

*409*672BACKGROUND

A.N. testified that around 1:00 pm on June 28, 2016, she drove to a shopping mall in Redding to pick up medication at a pharmacy. Parking near the store entrance, A.N. saw a man (defendant) standing by the entrance and talking on a cell phone. She noticed his teeth were decayed. She passed defendant on her way into the store.

After getting her prescription, A.N. walked to her car. Feeling that someone was standing very close behind her, she turned and saw defendant less than a foot away. She asked him what he was doing, and he answered: "Get in your car or I will fucking kill you." He was pointing a black and silver semiautomatic handgun at her stomach. Fearing for her life, she said "The fuck you will," and pushed him away with one hand, causing him to stumble backward. Defendant departed east toward Water Works Park.

A.N. called 911. An officer took down her description of the suspect, which included his "poor teeth." The next day, she spoke to an investigator and identified defendant immediately from a photo lineup, calling her identification "very, very, very certain"; she mentioned that he had been wearing "cool-guy sunglasses" with amber lenses. She later identified him in a different photo lineup a defense investigator showed her.

In the early afternoon on June 28, Misty M. came home for lunch to her house near Water Works Park. A red Neon in front of her car slowed down as it approached her driveway. A man, later identified as defendant, ran down the driveway and jumped into the Neon. Thinking her house had been burglarized, Misty M. followed the Neon. She pulled alongside and slightly in front of the Neon to block it and repeatedly asked, "What the fuck are you doing in my driveway?" The driver said they were there to see an individual named Dave who lived in another house on the property. Misty M. saw defendant in the passenger seat. She photographed the Neon's license plate, the driver, and defendant before moving her car to let them leave.

Misty M. flagged down Redding Police Officer Rex Berry who had been dispatched to investigate the incident involving A.N. Misty M. described the incident at her premises and e-mailed Officer Berry her photographs of the Neon, along with a link to a photo of defendant. On June 29, officers spotted defendant and arrested him. A body search found a loaded silver and black semiautomatic handgun in his left shorts pocket.

Defendant did not testify at trial. He presented an alibi defense through Dannoll G., the manager of a sporting goods store in Redding.

According to Dannoll G., he encountered defendant (whom he might have seen in his store, but did not know well) at a barbecue event on June 28 or *673June 29; he was "pretty sure" it was the 28th. Six or seven people, including himself and defendant, were at the barbecue.

Around 1:00 or 2:00 p.m., they ended the barbecue because "thunderheads" were coming in. They went rafting and kayaking on the river. Dannoll G. remembered defendant was there in part because he was inept at kayaking and needed help. A thunderstorm, and possibly hail, hit them on the river. Defendant was with them when they got off the river, but Dannoll G. was not sure whether defendant returned to town with them.

Later, defendant called Dannoll G. more than once at work and asked if he remembered that defendant was with them that day. Dannoll G. originally answered that he remembered defendant was with them, but did not remember the date. Defendant *410also said he had a GMC truck available if Dannoll G. was looking for one; Dannoll G. assumed defendant was trying to sell the truck, not to offer it as a gift. Dannoll G.

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People v. Stout CA3
California Court of Appeal, 2024

Cite This Page — Counsel Stack

Bluebook (online)
251 Cal. Rptr. 3d 407, 38 Cal. App. 5th 669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-stout-calctapp5d-2019.