Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC150596A
RUVOLO, P. J.
I.
INTRODUCTION
Appellant Thomas Anthony Payne was convicted of three felony offenses, each based on identical facts occurring on November 15, 2006, during a parole search, where appellant was found to be in possession of a loaded.357 revolver. After a court trial, appellant was convicted of possessing a firearm by a person previously convicted of a violent felony (Pen. Code, § 12021.1, subd. (a) (count one)). A jury found appellant guilty of the remaining counts of possessing a firearm by a person previously convicted of a felony (§ 12021, subd. (a)(1) (count two)); and possessing ammunition by a person previously convicted of a felony (§ 12316, subd. (b)(1) (count three)).
All statutory references are to the Penal Code.
On appeal, appellant has briefed multiple issues stemming from alleged juror and prosecutorial misconduct. Specifically, appellant claims (1) several jurors committed prejudicial misconduct by performing an unauthorized reenactment of the events described at trial during a court-ordered view of the crime scene; (2) the prosecutor committed prejudicial misconduct by informing the jury during closing argument that appellant’s prior conviction was for a “violent” felony; and (3) the prosecutor committed prejudicial misconduct by questioning a witness about an experiment performed by law enforcement that had not been previously disclosed to the defense. We conclude that whatever prejudice may have resulted from any prosecutorial or juror misconduct was rendered harmless by the trial court’s prompt admonitions to the jury.
Appellant also claims that his count two conviction for possession of a firearm by a person previously convicted of a felony (§ 12021, subd. (a)(1)) must be reversed because it is a necessarily included offense of count one, possession of a firearm by a person previously convicted of a violent felony (§ 12021.1, subd. (a)). This claim has merit, as the Attorney General concedes. Accordingly, we will modify the judgment to reverse appellant’s conviction of the lesser included offense. In all other respects, the judgment is affirmed.
II.
FACTS AND PROCEDURAL HISTORY
On November 15, 2006, at approximately 3:45 p.m., officers Jack Martin and James Bellamy of the San Rafael Police Department made contact with appellant on the corner of Fourth and A Streets in downtown San Rafael. The officers knew appellant was subject to a parole search, and they had previously searched appellant with no problem. Once Officer Martin told appellant that he was going to be searched, appellant became annoyed, claiming harassment. Appellant pulled a small camera out of his pocket and claimed that was all he had. At that point, Officer Martin turned his attention to Officer Bellamy, who was dealing with a confrontational third party.
Appellant had been released from prison for about three months when he committed this offense.
When Officer Martin turned back to search appellant, appellant fled down a flight of stairs. He failed to comply with orders to stop. Officer Martin then saw appellant reach his right hand to his waist area and then make “a throwing motion” toward a planter box, which was about a foot or two away from appellant. Within seconds, Officer Martin ran down the stairs and located a Taurus.357 Magnum revolver loaded with six rounds of ammunition in the planter box. The loaded gun was the only foreign item in the planter box, which was free of debris. At that point, Officer Bellamy detained appellant at the end of the hallway; and he was arrested.
Jason Wright, a friend of appellant’s, testified for the defense. He witnessed the incident resulting in appellant’s arrest. He was standing at the bottom level of the stair landing where the planter was and had an unobstructed view of the planter and appellant. According to Wright, appellant did not throw anything into the planter, nor did appellant make any motion that even looked like a throwing gesture.
After the parties had presented their evidence, but before the case was submitted to the jury, appellant personally stipulated that the court, rather than the jury, could decide count one, which alleged possession of a firearm by a person previously convicted of a violent felony (§ 12021.1, subd. (a)). The reason for the stipulation was so the jury would not receive evidence that appellant’s prior conviction was for a “violent” felony. The court made it clear that the jury’s determination of appellant’s guilt or innocence on the other counts “would be very meaningful to me.” However, the court emphasized that it would retain the ultimate fact-finding power as to count one.
The jury found appellant guilty of count two, alleging possession of a firearm by a person convicted of a felony (§ 12021, subd. (a)(1)), and count three, possession of ammunition by a person convicted of a felony (§ 12316, subd. (b)(1)). Thereafter, the court found appellant guilty of count one.
The court also found all alleged priors to be proven beyond a reasonable doubt, including two prior convictions which qualified as “strike” offenses. Appellant received a total aggregate sentence of 26 years to life. The court used count one to impose a sentence of 25 years to life (§ 1170.12). The court also imposed a consecutive one-year enhancement (§ 667.5, subd. (b)). Each of the terms for count two and count three was stayed pursuant to section 654. This appeal followed.
III.
DISCUSSION
A. Juror Misconduct During Visit to the Scene
Appellant contends misconduct occurred when several jurors attempted to reenact tossing the gun into the planter box during a visit to the crime scene. Appellant claims he was prejudiced by this misconduct because it deprived him of an impartial jury and, therefore, of a fair trial. He further contends that the court erred in denying his motion for a new trial predicated on juror misconduct in that the misconduct was inherently prejudicial, requiring reversal of the judgment.
On May 17, 2007, at defense counsel’s request, the jury conducted an on-site view of the scene of the crime at the corner of Fourth and A Streets in San Rafael. Neither the judge nor defense counsel were present, but the prosecutor was in attendance.
Defense counsel sought the jury view, arguing that “it is critical that the jury be allowed the opportunity to see for themselves what the officers saw” because “no officer actually saw the weapon either in the possession of or leaving the possession of [appellant].”
Before the jury visited the scene, the court explained the purpose of their visit was to give them “a chance to review the scene and walk up and down the stairs.” The court expressly ordered the jurors not to “talk to each other,” “point things out,” or “conduct experiments.” Nevertheless, during the jury view of the stairway and the planter box where appellant allegedly threw the gun, the prosecutor saw jurors making tossing motions and she observed one juror remove an unidentified object from her purse and quickly toss it into the planter box. At the prosecutor’s request, the bailiff admonished the jurors not to throw anything or do anything besides just walk through and view the scene.
Once the trial resumed, the prosecutor immediately notified the court and defense counsel of the incident. Upon learning that the jury had been exposed to extra-judicial information, the trial court promptly admonished the jurors that the reenactments performed at the jury view were improper and were not evidence, that they were to “rely on the evidence presented in court,” and that they were not to use the reenactments “in the jury room during your deliberations because that is not evidence.” At the close of the evidence, the instructions given to the jury repeated that they were to rely solely on the evidence presented at trial. Additionally, the prosecutor emphasized in her closing argument that the jury was not to consider any reenactments while deliberating.
There is no dispute that certain jurors’ conduct during the visit to the crime scene was improper because the attempt to recreate the tossing of the gun into the planter box was conducted outside of deliberations, using items not introduced into evidence. (See, e.g., People v. Castro (1986) 184 Cal.App.3d 849, 852 [juror used own binoculars at home to test officer’s observations]; People v. Phillips (1981) 122 Cal.App.3d 69, 80-81 [juror experimented at home on solubility of sodium bicarbonate].) The question we must decide is whether the misconduct was prejudicial. That question is one for the appellate court’s independent determination. (People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)
By contrast, experimentation within the jury room with the evidence that was received in court is not misconduct, where the information that comes to light is within the scope of the evidence. (See, e.g., People v. Baldine (2001) 94 Cal.App.4th 773, 778 [turning on radio scanner to see if it malfunctioned as defendant claimed]; People v. Bogle (1995) 41 Cal.App.4th 770, 777-779 [testing keys in safe, both of which were admitted into evidence]; People v. Cumpian (1991) 1 Cal.App.4th 307, 314-315 [duplicating placement of duffle bag across the torso]; People v. Cooper (1979) 95 Cal.App.3d 844, 852-853 [reenactment of defendant’s throwing of bag of heroin].)
The Supreme Court has explained that the determination of prejudice is a two-step inquiry into (1) whether the extraneous material, viewed objectively, is inherently and substantially likely to have influenced one or more jurors or (2) whether it is substantially likely that one or more jurors were actually biased against the defendant. (In re Carpenter (1995) 9 Cal.4th 634, 652-653;accord, People v. Tafoya (2007) 42 Cal.4th 147, 192.) “The judgment must be set aside if the court finds prejudice under either test.” (In re Carpenter, supra, at p. 653.) The likelihood of bias under either test must be substantial. (Id. at p. 654.) “Jurors are not automatons. They are imbued with human frailties as well as virtues. If the [criminal justice] system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic.” (Id. at pp. 654-655; accord, People v. Danks (2004) 32 Cal.4th 269, 304.)
With respect to the first question, we look to the trial record to determine whether the extraneous information was so prejudicial that its introduction in the trial itself would have warranted reversal of the judgment. (In re Carpenter, supra, 9 Cal.4th at p. 653.) We conclude that, even if misguided, the results of the reenactment did not introduce new evidence into the jurors’ deliberations that was so prejudicial that it undermined the jury’s verdict and denied appellant a fair trial. The jurors who were involved in the misconduct based their actions on the testimonial and physical evidence presented at trial. However, nothing suggests that the average reasonable juror would believe that this reenactment, which involved an unidentified object with a different trajectory than the actual gun, provided objectively verifiable evidence. As the jurors certainly realized, the conditions and distances tested were not identical to the conditions under which appellant allegedly tossed the gun. Thus, it would be obvious to a reasonable juror that any conclusions or deductions arrived at after this reenactment would be potentially erroneous and unreliable. The presumption of prejudice is rebutted if the extraneous information is neutral or irrelevant as to the defendant’s guilt. (People v. Cabrera (1991) 230 Cal.App.3d 300, 305.) That is the case here.
With respect to the second step of our inquiry, the question is whether it is substantially likely from the nature of the misconduct and from the surrounding circumstances that one or more jurors were actually biased against the appellant. (In re Carpenter, supra, 9 Cal.4th at p. 654.) We conclude it is not. The repeated admonitions given to the jurors in this case that they were to decide this case based solely on the evidence introduced at trial without injecting outside information into deliberations further diminishes the possibility that the jurors were actually biased against appellant. “ ‘[T]he presumption of prejudice may be dispelled by an admonition to disregard the improper information... ’ [and] ‘[w]e generally presume that jurors observe such instructions.’ [Citation.]” (People v.Zapien (1993) 4 Cal.4th 929, 996.) Accordingly, we conclude that “ ‘ “there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” ’ [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 625, original italics.) Therefore, the trial court did not err in refusing to grant appellant’s motion for a new trial on the basis of juror misconduct.
B. Failure to Hold Evidentiary Hearing on Jury Misconduct
In a related contention, appellant faults the trial court for not questioning the jurors, arguing that “by failing to conduct any kind of evidentiary hearing or inquiry the trial court failed to learn the exact nature and extent of the misconduct and which jurors were actively participating in the misconduct and which ones merely observed the misconduct.”
“The trial court has the discretion to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. [Citation.] Defendant is not, however, entitled to an evidentiary hearing as a matter of right. Such a hearing should be held only when the court concludes an evidentiary hearing is ‘necessary to resolve material, disputed issues of fact.’ [Citation.] ‘The hearing should not be used as a “fishing expedition” to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred. [A]n evidentiary hearing will generally be unnecessary unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.’ [Citations.]” (People v. Avila (2006) 38 Cal.4th 491, 604).
We find no abuse of discretion in failing to conduct an evidentiary hearing. When the prosecutor brought the misconduct to the court’s attention and described what happened during the jury’s view of the scene, defense counsel did not indicate any need to further develop the facts. Instead, he relied upon the prosecutor’s representation of what had occurred and suggested a short admonition. Because defense counsel himself apparently did not deem it necessary to question the jurors about what happened during the jury’s visit to the scene, it is difficult to accept appellant’s characterization of the prosecutor’s summary as “too incomplete and too vague” to assess whether or not it prejudiced the jury.
In any event, appellant has offered nothing to suggest that further inquiry by the court into the misconduct claim would have been productive, especially because there does not appear to be any dispute as to what juror misconduct actually occurred during the jury view. (People v. Davis, supra, 46 Cal.4th at p. 625 [where there was no factual dispute regarding the misconduct, the trial court’s decision not to hold an evidentiary hearing was well within its discretion].) Under these circumstances, conducting an evidentiary hearing would have magnified the importance of the incident, informing all jurors about an incident that perhaps only a few of them actually observed. Rather than fleshing out the details of the juror impropriety, the trial court’s focus was properly directed to repeatedly admonishing the jury that its decision was to be based solely on the information presented at trial. As a result, we conclude that the trial court did not abuse its discretion by declining to pursue further investigation.
C. Ineffective Assistance of Counsel
Appellant contends his trial counsel rendered ineffective assistance in failing to attend the jury view, failing to request an examination of the jurors regarding the misconduct, failing to request removal of the offending jurors, and failing to make a motion for a mistrial because of juror misconduct.
A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. On appeal, the defendant has the burden of proving a claim of ineffective assistance. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) To meet this burden, he must show two things. First, he must show that his trial counsel performed at a level below an objective standard of reasonableness under prevailing professional norms. (People v. Hamilton (1988) 45 Cal.3d 351, 377.) Where, as here, the defendant challenges counsel’s failure to act, he must show that the failure was not a tactical choice. In the face of a silent record, we must reject the defendant’s claim unless counsel was asked for an explanation and failed to provide one or there could be no satisfactory explanation for the omission. (People v. Kelly (1992) 1 Cal.4th 495, 520.) Secondly, the defendant must show prejudice as a result of the deficient performance. (People v. Hamilton, supra, at p. 377.) Prejudice is shown where there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (In re Sixto (1989) 48 Cal.3d 1247, 1257.)
“ ‘It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citation.]’...” (People v. Fairbank (1997) 16 Cal.4th 1223, 1243, quoting Strickland v. Washington (1984) 466 U.S. 668, 689.)
Here, the record is silent as to why appellant’s trial counsel failed to attend the jury view, why he failed to request an examination of the jurors regarding the misconduct, why he failed to request the removal of the offending jurors, and why he failed to file a motion for a mistrial. If trial counsel’s omissions stemmed from an informed tactical choice that a reasonably competent attorney might make, appellant’s conviction must be affirmed. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Appellant first argues that his trial counsel was ineffective for failing to attend the jury view because “defense counsel’s presence might have minimized or prevented some of the misconduct.” Appellant’s claim in this regard is based on rank speculation, which is insufficient to establish ineffective assistance of counsel.
Appellant advances the identical argument under the rubric of his Sixth Amendment right to counsel. He claims his constitutional right to counsel was violated by defense counsel’s failure to attend the jury view. “[T]he federal constitutional right to counsel arises at critical stages of the prosecution or when necessary to assure a meaningful defense. [Citations.]” (People v. Carasi (2008) 44 Cal.4th 1263, 1299.) Appellant makes no serious attempt to develop this argument, and the record does not reveal the circumstances surrounding counsel’s failure to attend the jury view. (People v. Green (1979) 95 Cal.App.3d 991, 1001 [error is never presumed but must be affirmatively shown].) For example, we do not know whether counsel discussed the jury view with appellant, or whether counsel secured appellant’s waiver to his attendance. Moreover, as we have determined, any prejudice appellant suffered as a result of his counsel’s absence is purely speculative; and does not require reversal of his convictions. (People v. Santos (2007) 147 Cal.App.4th 965, 974.)
Furthermore, appellant has not made an affirmative showing that trial counsel’s response to the report of juror misconduct was ineffective. Absent evidence to the contrary, we must presume that counsel’s decision not to take more aggressive measures on appellant’s behalf was a matter of trial strategy based on his assessment that the court’s prompt curative instructions were sufficient to cure any harm. In the present case, this was a decision “ ‘within the range of reasonable competence’ ” which did not fall below an objective standard of reasonableness. (People v. Lewis (1990) 50 Cal.3d 262, 288.)
The second prong of an ineffective assistance of counsel claim, prejudice, requires proof of a reasonable probability that the result would have been different in the absence of counsel’s omissions. (People v. Lucas, supra, 12 Cal.4th at p. 436.) The prejudice component “ ‘focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 393, fn. 17.)
On the record before us, there is no showing that there is a reasonable probability that appellant would have obtained a more favorable determination if counsel had requested the jurors be questioned regarding the misconduct, if he had sought removal of the offending jurors, or if he had made a motion for a mistrial based on juror misconduct. (People v. Cudjo (1993) 6 Cal.4th 585, 615.) As we have already noted, the trial judge adequately addressed all of the concerns raised by the misconduct by immediately and properly giving curative instructions, and by repeated admonitions to disregard the out-of-court reenactment. By denying appellant’s motion for a new trial based on juror misconduct, the court implicitly found that appellant had failed to show that the jurors were influenced by the improper conduct during their deliberations. Consequently, appellant simply cannot show that there is a reasonable probability that if counsel had filed the motions or lodged the requests he claims should have been made, the result of the proceeding would have been different.
D. Prosecutorial Misconduct
Appellant contends the prosecutor committed prejudicial misconduct in two ways: (1) failing to disclose an out-of-court experiment to the defense; and (2) referring to appellant’s prior felony conviction as “violent” during her closing argument.
We set out the factual background with regard to appellant’s first claim of prosecutorial misconduct. During the prosecutor’s redirect examination of Officer Jack Martin, she elicited testimony that at some time prior to his appearance in court, he had placed the firearm allegedly possessed by appellant into the pocket of the jacket that was worn by appellant at the time of the incident. He stated that there was sufficient room in the jacket pocket so that the firearm could be concealed without creating a bulge. Both the firearm and jacket used in the experiment were in evidence. Defense counsel immediately made an objection, asking that Officer Martin’s testimony be stricken “for failure to provide discovery.” The court overruled the objection, indicating that the matter would be taken up later.
Later, outside the presence of the jury, appellant’s counsel claimed a discovery violation, stating that he had no notice that such an experiment had been conducted, and he moved to strike Officer Martin’s testimony. The prosecutor apologized and claimed that she simply “forgot to disclose it.” We note that the trial court indicated that it would entertain a request for a continuance by appellant’s counsel in order to meet this new evidence; however, no continuance was ever requested. The court denied the motion to strike. Instead, it gave a modified version of CALCRIM No. 306, which set forth the previously undisclosed information and authorized the jury to consider the effect, if any, of the late disclosure.
CALCRIM No. 306, as given to the jury, stated: “Both the People and the defense must disclose their evidence to the other side before, trial within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all other evidence to counter opposing evidence or to receive a fair trial. An attorney for the People failed to disclose that Officer Jack Martin placed the gun found on November 15, 2006, into the pocket of the jacket worn by [appellant] on that date, within the legal time period. In evaluating the weight and significance of that evidence, you may consider the effect, if any of that late disclosure.”
During closing argument, appellant’s counsel urged the jury to “give absolutely no credence” to Officer Martin’s testimony about the gun fitting concealed in the jacket pocket. He argued that Martin’s testimony was suspect “for the reason of late disclosure” and because the experiment “happened behind closed doors.” He asked, “Why don’t they bring that jacket in here and stick the gun in? Maybe they are afraid of what happens when it does not fit.”
Appellant also subsequently made a motion for new trial, arguing that the instruction was inadequate to cure the discovery violation, infringing his right to due process. The trial court denied the motion.
On appeal, appellant claims that the late disclosure of this evidence “was reprehensible” because it “ambushed defense counsel” with a “secret experiment that Martin conducted with the jacket and the revolver after trial had already begun.” Appellant also argues that he was prejudiced by the late disclosure of the evidence, claiming that the information was highly prejudicial to his case. “[A] court may make any order necessary to enforce the [discovery] provisions,... including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).) We review the remedy imposed for an abuse of discretion. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.)
We conclude that the trial court did not abuse its discretion in denying the motion to exclude this evidence; and instead, selecting a continuance and a curative instruction as the appropriate remedies for the discovery violation. However, although a continuance was offered, the defense apparently did not need any additional time to meet this new evidence. Also, a curative instruction was given authorizing the jury, in its consideration of the evidence, to “consider the effect, if any, of that late disclosure.” Under the circumstances, appellant cannot show prejudice from the late disclosure, and the court’s formulation of a remedy for this discovery violation does not constitute an abuse of discretion.
Appellant next claims that the prosecutor’s reference to appellant’s prior conviction for a “violent” felony, in violation of an order not to do so, was prejudicial, and requires that appellant receive a new trial.
In the prosecutor’s closing argument, she stated that she had to prove appellant was previously convicted of a “violent” felony, which appeared in the jury instructions for count one. The prosecutor quickly realized she had misspoken, retracted her statement and advised the jury that they were in no way to speculate as to the nature of the felony. Likewise, the court instructed the jury that the parties had stipulated that appellant had a prior felony conviction and directed the jury not to consider the nature of the prior felony.
In appellant’s motion for new trial, he did “not dispute the inadvertent nature” of the prosecutor’s mention of the word “violent.” However, it was submitted that “fault aside, this comment was so prejudicial so as to require a new trial....” The trial court, which was in the best position to assess how the jury would construe the prosecutor’s brief reference to a “violent” felony, determined that it did not result in incurable prejudice and denied appellant’s motion for a new trial.
It is clearly misconduct for a prosecutor to make remarks in opening statements or closing arguments that refer to evidence determined to be inadmissible in a previous ruling of the trial court. (People v. Crew (2003) 31 Cal.4th 822, 839.) “ ‘ “[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 284.) 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 that it makes the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) 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 attempt to persuade either the court or the jury. (Ibid.)
We reject the notion that the prosecutor’s momentary mention of the need to prove a “violent” felony rendered appellant’s trial so fundamentally unfair as to violate his constitutional right to a fair trial. This one momentary, inadvertent comment does not establish a pattern of misconduct or use of a deceptive or reprehensible method to persuade the jury. To the contrary, the prosecutor quickly corrected the comment and stated that she simply had to prove that appellant had been convicted of a felony. The jury was repeatedly admonished that they were not to contemplate what the prior felony was because that issue was not before them. Any harm flowing from the alleged misconduct was thereby cured. (See, e.g., People v. Szeto (1981) 29 Cal.3d 20, 34.)
E. Conviction for Necessarily Included Offense
In his last argument, appellant claims his conviction on count two, possession of a firearm by a person previously convicted of a felony (§ 12021, subd. (a)(1)) must be reversed because it is a necessarily included offense of count one, possession of a firearm by a person previously convicted of a violent felony (§ 12021.1, subd. (a)). This claim has merit, as the Attorney General concedes.
It is well settled that “[a] defendant... cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act. [Citation.]” (People v. Sanchez (2001) 24 Cal.4th 983, 987, disapproved on other grounds by People v. Reed (2006) 38 Cal.4th 1224, 1228; People v. Medina (2007) 41 Cal.4th 685, 701-702 [reaffirming rule].) The remedy when a defendant is convicted on both the greater and lesser offenses is reversal of the conviction on the lesser charge. (People v. Moran (1970) 1 Cal.3d 755, 763.) Under these circumstances, we reverse appellant’s conviction on count two, possession of a firearm by a person previously convicted of a felony (§ 12021, subd. (a)(1)), and direct the trial court to strike the stayed term imposed for that conviction.
IV.
DISPOSITION
The judgment is reversed as to appellant’s count two conviction for possession of a firearm by a person previously convicted of a felony (§ 12021, subd. (a)(1)). In all other respects, the judgment is affirmed.
We concur: REARDON, J., SEPULVEDA, J.