PEOPLE v. CORREARespondent’s Answer Brief on the MeritsCal.October 16, 2008 IM OTHE SUPEEMECOURT OF THE STATE OF CALIPORNLA THE PROPLE OF THE STATE OF CALIPORSEA, Plant’ and Rearmonden, ¥, VROTOR CORREA, Defendant snd /Apedard Think Appellate District No, Cfase+B Sacramento County burerior Court No SLR: The Honorable Patricia C. Esero, hvige Atay EAMIINE C.. BROWERFP. Attorney General of the Sate of Califieran e Attorney Cenersi eneral TABLE OF CONTENTS ISSUE PRESENTED INTRODUCTION STATEMENT OF THE CASE STATEMENTOF FACTS Defense SUMMARY OF ARGUMENT ARGUMENT APPELLANT’S SENTENCES FOR BEING A FELON IN POSSESSION OF A_ FIREARM SHOULD NOTBE STAYED A. Procedural History B. Discussion CONCLUSION 26 TABLE OF AUTHORITIES Cases Bell v. United States (1954) 349 USS.81 Neal v. State of California (1960) 55 Cal.2d 11 People v. Beamon (1973) 8 Cal.3d 625 People v. Bell : (1989) 49 Cal.3d 502 People v. Bradford (1976) 17 Cal.3d 8 Peoplev. Britt (2004) 32 Cal.4th 944 People v. Butler (1996) 43 Cal.App.4th 1224 People v. Correa (2008) 161 Cal.App.4th 980 People v. Gonzalez (2008) 43 Cal.4th 1118 People v. Harrison (1989) 48 Cal.3d 321 People v. Hicks (1993) 6 Cal.4th 784 People v. Kirk (1989) 211 Cal.App.3d 58 People v. Mendoza (2000) 23 Cal.4th 896 il 15 13 14 12, 13 22 13 24 2, 16, 19 17 14 20, 21 14-16, 18 14 TABLE OF AUTHORITIES (continued) People v. Mills (1992) 6 Cal.App.4th 1278 People v. Pepper (1996) 41 Cal.App.4th 1029 People v. Ratliff (1990) 223 Cal.App.3d 1401 People v. Siko (1988) 45 Cal.3d 820 People v. Venegas (1970) 10 Cal.App.3d 814 Statutes Penal Code § 459 § 460 § 484e, subd.(c) § 496d, subd.(a) § 502.7, subd. (b)(1) § 654 § 654, subd.(a) § 667, subd. (b) through(i) § 667.6, subd. (c) § 1170.12. § 12001, subd.(k) § 12001, subd.(1) § 12020 § 12020, subd.(a) § 12021 § 12021, subd. (a) § 12021, subd. (a)(1) Vehicle Code § 10851, subd. (a) ili Page 22 11 17, 22, 23 19 22 14 14 24 2,8 24 1, passim 13 2,8 20, 21 2,8 7, 16, 17, 25 16, 17, 25 15 14, 15 7, passim 7,10, 14 2,8 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plainti laintiff and Respondent, S163273 V. VICTOR CORREA, Defendant and Appellant. ISSUE PRESENTED Wasdefendant properly sentenced on multiple counts of being a felon in possession of a firearm where he was discoveredin a closet with a cache of weapons? INTRODUCTION After barricading himself inside a home,appellant, a twice convicted felon, was discovered by SWATofficers hiding undera stairwell. Officers also discovered seven rifles and shotguns of various makes, models, calibers, and gauges. Appellant was convicted ofseven counts ofbeing a felon in possession ofa firearm and one count ofreceiving stolen property. At sentencing the court foundthat each of the weaponshad an individual purpose, declined to stay the sentences pursuant to Penal Code section 654 “, and imposed eight consecutive sentences of 25 years to life in prison. Appellant challenges six sentences for being a felon in possessionofa firearm alleging they must be stayed pursuant to section 654 because they were part of an individual transaction. 1. Unless otherwise designated all further references are to the Penal Code. STATEMENT OF THE CASE . On September 14, 2006, information number 06F01135 wasfiled in Sacramento County Superior Court charging appellant, Victor Correa,in counts I through IX, with being a felon in possession of a firearm (§ 12021, subd. (a)(1)), in count X, with unlawful taking of a motor vehicle (Veh. Code, § 10851, subd.(a)), and in counts XI through XIII, with receiving stolen property (§ 496d, subd. (a)). (1 CT 119-123.) The information further alleged that appellant had been convicted of three prior felonies within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. (I CT 122-123.) On that same day appellant pled not guilty and denied the enhancements. (I CT 124.) Jury trial commenced on September 11, 2006. (I CT 110.) On September 22, 2006, the jury found appellant guilty of counts I through VII, and XII. (I CT 203-209, 214.) Appellant was found not guilty of counts VIII through XI. (I CT 210-213.) The jury was unable to reach a verdict on count XII, and the court declared a mistrial. (I CT 221.) Appellant waivedjury trial on the prior felony conviction allegations. (I CT 221.) The People dismissedthe allegation of the first prior conviction, and the court found the remaining twoallegations true. (III RT 746-749.) On October 20, 2006, the court sentenced appellant to seven consecutive terms of 25yearsto life on counts I through VII, and an additional consecutive term of 25 yearsto life on count XII. (I CT 273-274; HI RT 763.) Appellant’s aggregate sentenceis eight consecutive termsof25 yearsto life. (III RT 763.) On December4, 2006, appellant filed a notice of appeal. (I CT 276.) On April 4, 2008, the Third District Court of Appeal affirmed appellant’s judgmentandsentence. (People v. Correa (2008) 161 Cal.App.4th 980.) On May6, 2008,appellant filed a petition for review in this Court. On July 9, 2008, the Court granted the petition for review. STATEMENT OF FACTS On February 4, 2006, at approximately 5:07 p.m. Sacramento Police Officer Kevin Howland wasdispatched to an address in Sacramento County regarding firearms being movedinto a residence. (I RT 106-108.) When he arrived there was a black “T-bird” in the driveway. (I RT 110.) Officer Howland saw a maninthe driver’s seat and blockedthe vehicle with his patrol car. (IRT 111.) Officer Howland told the man to put his handsin theair and stay where he was. (I RT 111.) He also saw two womeninthe driveway. (I RT 112.) Another man got out of a green Lexus that was parked nearby and went in the garage. (I RT 112-113.) The manin the driver’s seat did not comply with Officer Howland’s commandsandalso wentin the garage. (I RT 111-112.) | Officer Howland saw silver Nissan 300Z parked in the driveway. (I RT 118.) Another officer arrived on scene, and the man from the driver’s seat, Carlos Melgar, cameout ofthe garage and wastaken into custody. (I RT 119-120, 154-155.) Officer Howland also detained the two women in the driveway. (I RT 112.) Healso tried to identify the owner of the Lexus, and determined it was stolen. (I RT 120-121.) Eventually, another woman came out of the house, and Officer Howland detained heras well. (I RT 126.) Sacramento Police Officer William McCoinis assigned to the SWAT Team. (I RT 251-252.) On February 4, 2006, he was dispatched to the residence in responseto a barricaded suspect. (I RT 253.) When hearrived with other members ofthe SWATteam thefront door was closed and they saw a dog in the garage. (I RT 257-258.) At about 1:00 a.m. the incident commanderdecidedto use tear gas. (IRT 259.) Subsequently, Officer McCoin openedthe front door, and heard a muffled voice coming from inside. (I RT 260.) Officer McCoin and another officer yelled back and forth with the person inside the house. (I RT 262-263.) The voice sounded like it was coming from underthe stairwell. (I RT 263.) They entered the house and openedthe closet door. (I RT 264.) The person said he wasstuckin the closet, but they could not see him. (I RT 265.) Officer McCoin saw numerous long gun cases on the floor. (I RT 265.) He removed the gun cases and two guns that were not in cases. (I RT 266.) Officer McCointore a hole in the wall, and saw appellant lying on the floor. (I RT 268.) He appeared to be stuck. (I RT 269.) Theofficers pulled appellant out through the opening and detained him. (I RT 270.) OnFebruary 4, 2006, Sacramento City Police Detective Paul Schindler prepared a search warrantfor the residence. (I RT 183-185.) After the SWAT team entered the residence Detective Schindler and other officers started a search. (I RT 186.) They had to use gas masks because the SWATteam used tear gas to enter the residence. (I RT 187.) During the search Officer Schindler found two hard silver metal gun cases behind a couch. (I RT 195.) Inside the caseswere a .12 gauge shotgun and a .50 caliberrifle. (I RT 196.) In an upstairs bedroom he found a Lexus ignition key and somepaper work for the car. (I RT 198.) In another bedroom he found some Department of Motor Vehicles’ paperwork. (I RT 199.) Sacramento Police Detective Chou Vang also helped with the search. (II RT 367.) He took statements from some of the individuals that were detained, and then wentinside the residence. (II RT 368.) Detective Vang saw several gun cases in the hallway nextto the closet. (II RT 369.) He also found documents with appellant’s name. (II RT 379.) At about 7:30 p.m. on February 4, 2006, Sacramento Police Detective Denise Phillips assisted in the search of the residence. (II RT 393, 396.) Detective Phillips searched the garage and found shotgun shells andletters addressed to appellant inside a duffel bag. (II RT 396.) She also searched a bedroom and found some shotgunshells in another bag. (II RT 399-400.) On February 4, 2006, Sacramento Police Detective Emest Lockwood was dispatched to the residence to assist in the preparation of the search warrant. (II RT 315-316.) After they obtained the search warranthe helpedin the search. (IJ RT 317-318.) Officer Lockwoodwasassignedto log the items that other officers brought to him. (II RT 319.) Detective Vang brought him seven firearms and told him wherehelocated the items. (II RT 322.) Detective Vangalso brought him ammunition and documents. (II RT 340-344.) Detective Schindler brought Detective Lockwood twolarge guncases. (II RT 344-345.) There was a shotgun in onecase anda rifle in the other. (II RT 345.) Detective Schindler also brought him some documents and a Lexus car key. (II RT 349-351.) Edgar Smith is a part-time paid intern with the Sacramento Police Department. (II RT 465.) He is currently assigned to the evidence lab and processes evidence for latent prints. (II RT 466.) In this case he examined rifles, gun cases, and ammunition. (IJ RT 468-469.) The first six items he examined- all guns - did not have any prints. (II RT 470-471, 472-473, 474- 476.) He also examined some.22 caliber ammunition thatalso did not have any fingerprints. (II RT 477.) He did find twoprints on a guncase, and twoprints on a manualin another gun case. (II RT 479-480.) Finally, he examined four live shotgun roundsthat did not have any prints. (II RT 482.) Brian Mallory is a technician in the latent print unit of the Sacramento Police Department. (IT RT 520-521.) The latent prints he examinedinthis case did not belong to appellant. (II RT 526.) On February 4, 2006, Sacramento Police Sergeant Bruce Dubke was dispatched to the residence. (II RT 407-408.) Sergeant Dubke and another detective showeda picture of appellant to Officer Howland whosaid he thought it was the person he saw, but would be sure if he saw the tattoos. (II RT 410- 411.) He then took up a position as the secondary hostage negotiator. (II RT 411.) Sergeant Dubke was subsequently relieved, but was askedto return to assist in the investigation of the stolen cars. (II RT 412-413.) The records check on the Lexusindicated it was stolen. (II RT 413.) A silver Nissan and a primer gray Mustang were determined to bestolen as well. (II RT 413-415.) Kirsten Vogel was appellant’s neighbor from February 2005 until November 2005. (II RT 496.) Appellant lived in the house with his mother, brother, and brother’s girlfriend. (II RT 498.) Ms. Vogeltestified that she saw | appellantin possessionoffirearms. (II RT 500-501.) Thefirst time wasin her home,and appellant had rifle or shotgun. (II RT 501-502.) The second time she was waiting in the hallway of appellant’s home and saw a handgun on the floor of his bedroom. (II RT 502-503.) At the time appellant wasnotin the bedroom. (IJ RT 503.) Defense Caroline Correa is appellant’s mother. (III RT 571-572.) Appellant occupied the bedroom in the southwest corner ofthe house. (III RT 575.) Her son-in-law and his son occupied another bedroom. (III RT 575.) The day the police came she hadleft the house around 2:00 p.m. and goneto the hospital with her daughter. (III RT 583, 588.) “Bobbie” and appellant were at the house when sheleft. (IIJ RT 584.) The 1964 Ford car in the driveway belonged to her husband. (III RT 576.) The green Lexus belongedto her son Jessie’s girlfriend. (III RT 577.) Jessie had not been in the house for six or seven dayspriorto the police arresting appellant. (III RT 582.) There was a closet under the stairs that they kept clothes in. (III RT 578.) She never saw any gunsin the closet, and never saw any guncasesin the house. (III RT 578-579.) SUMMARY OF ARGUMENT Pursuantto section 12021, subdivision (a), any individual with a felony conviction, whopossessesa firearm is guilty of a felony. Further, pursuant to section 12001, subdivision (k), each firearm “shall constitute a distinct and separate offense” for purposes of section 12021. The Legislature has determined that felons represent a unique and dangerousrisk to the public and are prohibited from possessing firearms. Additionally, the culpability ofthe convicted felon,andthe risk he or she poses to the public, increases with each additional firearm possessed. Here, appellant, a twice-convicted felon, was in possession of seven rifles and shotguns. Finally, given the nature ofhow gunsarefired,it is logical to presume. that appellant could only use one firearm at a time. As result, appellant’s stockpile of weaponsrepresented a severerisk to the public, and it was proper for the court to conclude that each weapon hada different nefarious purpose. The court’s conclusion wasalso consistent with the Legislature’s intent that felons in possession of multiple firearms have violated section 12021, subdivision (a) multiple times and are deserving of punishmentfor each. ARGUMENT APPELLANT’S SENTENCES FOR BEING A FELON IN POSSESSION OF A FIREARM SHOULD NOTBE STAYED. Appellant claims that all seven of the convictions for being a felon in possession ofa firearm arose from “a single incident”and thatsix ofthe seven sentences on those counts should be stayed pursuantto section 654.2 (AOB 7.) Respondentsubmits that appellant’s separate sentences for eachofthe firearms is consistent with the Legislature’s intent that a felon’s possession of each firearm is a distinctly punishable offense. Further, appellant’s possession of each one of the seven firearms had a separate and individual purpose, and as such he could be punishedfor each possession. A. Procedural History Asnoted above, appellant was convicted of seven counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and one count of receiving stolen property (§ 496d, subd. (a)). (I CT 203-209, 214.) The court also found that appellant had been convicted of two prior felonies within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. (III RT 748-749.) The court sentenced appellant to seven consecutive termsof25 years to life on each of the convictions for being a felon in possession ofa firearm, and an additional consecutive term of 25 years to life for receiving stolen property. (I CT 273-274; HI RT 763.) Appellant’s aggregate sentenceis eight consecutive terms of 25 years to life. (III RT 763.) At sentencing the court stated: 2. People v. Rodriguez (S159497) is currently pending before the Court. Theissues presented to the Court are: (1) Does Penal Code section 654 apply to sentence enhancements that derive from the nature of the offense? (2) Did the trial court err in this case by imposing enhancementsfor personal use of a firearm (Pen. Code, § 12022.5, subs. (a)) and committing a crimefor the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b))? 8 So I should indicate thatit is the Court’s intended sentence to not follow exactly the probation report in the sense that the probation report calls for imposition ofthe 25 to life sentencein thefirst instance and then the other sentences concurrent and yet the Court believes that there is criteria in that report to warrant the Court imposing consecutive sentences and so I would like counsel to address that issue because it’s the Court’s intended sentence to sentence Mr. Correato 25 yearsto life in Count 1 and then consecutively as to each count, 2 through 7, 25 years to life and in Count 12 consecutively 25 years to life. The Court believes that this is warranted by the facts and the record that Mr. Correa has andthe significant numberofaggravating factors with it. The Court finds no mitigating factors. Andjust so counsel knowthat’s the Court’s intended sentence and you can now address the Court. (III RT 756.) The Court further stated: These aren’t 664's so there’s no way I can stay them. They are individual, in the Court’s view, separate crimes. So the only way a Court stays a sentence is if it qualifies under Penal Code Section 654, and then the Court would imposethe sentencebutstayit. In thiscase, I’m finding that each one of these is a separate and individual offense with a separate and individual purpose, and therefore, I’m notfinding 654. And, frankly, where that might apply and the only placeI thinkit would apply in thiscase,if it did at all, would be Counts 2 through 7 because that was — I guess you’dcallit, a cache, c-a-c-h-e, of weapons and so Counts 2 through 7 are each an individual weapon and — butthe Court is finding that each ofthose is an individual and separate weapon, each had its own ammunition, and in the Court’s view, there would be a different purpose and a different crime for each of those individual weaponsandthat’s how the Court is addressing it. Not to say that you might want to make a 654 argumentas to Counts 2 through 7, but my tentative ruling is I’m not going to do that. Or, mytentative sentence, rather, is that I am not. I am treating them individually and separately. (III RT 757-758.) B. Discussion In this claim appellant alleges that six of the seven sentences for his convictions for being felon in possessionofa firearm mustbe stayed pursuant 9 to section 654. (AOB 7.) Respondent disagrees. The Legislature intendedthat felons convicted of possessing firearms be subjected to separate punishments for each conviction. Further, the trial court’s determination that each firearm had a separate and individual purpose wasproper. Appellant was convicted of seven countsofviolation of section 12021, subdivision (a). Appellant’s arsenal of shotguns and rifles were madeup of a numberof different makes, models, calibers, and gauges.” It is difficult to conceive any reason why a convicted felon would feel compelled to stockpile such a broad variety of firearms unless he harbored separate criminal objectives for each gun. It is further difficult to imagine an individual whopresents a greater threat to society than appellant, an individual with an extensive and violent criminal history, who acquired an arsenal ofvarious powerfulfirearms. (1 CT 237-240.) Section 12021, subdivision (a) states in relevant part: Anyperson who has been convicted of a felony underthe laws ofthe United States, ofthe State ofCalifornia, or any other state. .. who owns, purchases, receives, or has in his or her possession or underhis or her custody or control any firearm is guilty of a felony. There are several factors that make appellant’s convictions for being a felon in possession of a firearm unique from other crimes of possession. As a 3. The makes, models, calibers, and gauges, of the firearms appellant was convicted of possessing are as follows: Count1, a Stevens .410 shotgun Count 2, a Marlin .22 caliber nfle Count 3, a Winchester .12 gauge shotgun Count 4, a Remington .22 caliber nifle Count 5, an 8 millimeter rifle Count 6, a Marlin .22 caliber nfle Count 7, a Master Mag .12 gauge shotgun (I CT 203-209.) 10 convicted felon, there is no lawful way for appellant to possess a firearm. Appellant cannot purchase weapons from a licensed dealer, and therefore the lawful owner of each of the weapons in appellant’s possession is a victim. Additionally,it is logical to presumethat only onefirearm can be usedat a time. It was therefore logical for the court to presumethat appellant had a different nefarious purposefor each of the firearmsin his possession. If appellant did not have a distinct purpose for each gun, one gun would have beensufficient and he would not have found it necessary to acquire such a large numberof different firearms. Finally, appellant, a convicted felon in possession ofa large numberof firearms, is inherently more dangerous than a convicted felon in possession ofa single firearm. As such, appellant’s culpability increased with each additional weapon he unlawfully possessed, and so should his sentence. The very purpose of section 12021 is to protect the public from individualslike appellant. The risk to the public, and appellant’s culpability increased with each additional weapon he possessed. As noted bythe court in People v. Pepper (1996) 41 Cal.App.4th 1029, 1037-1038: The purposeof this law is to protect public welfare by precluding the possession of guns by those who are more likely to use them for improperpurposes. [citation.] Due to the potential for death or great bodily injury from the improperuseoffirearms, public policy generally abhors even momentary possession ofguns by convicted felons who, the Legislature has found, are morelikely to misuse them. The purpose andintent of section 12021 has been summarized bythis Court as follows: Penal Code, section 12021, is part of the legislative schemeoriginally promulgated in 1917 (Stats. 1917, ch. 145, p. 221, §§ 1) and commonly knownas the Dangerous Weapons Control Act. ... The clear intent of the Legislature in adopting the weaponscontrolact wasto limit as far as possible the use of instruments commonly associated with criminal activity [citation] and, specifically, ‘to minimize the danger to public safety arising from the free access to firearmsthat can be used for crimes of violence.’ (People v. Scott, 24 Cal.2d 774, 782 [151 P.2d 517].)” ( 11 People v. Washington (1965) 237 Cal.App.2d 59, 66 [46 Cal.Rptr. 545].) The law presumes the danger is greater when the person possessing the concealable firearm has previously been convicted of felony, and the presumption is not impermissible. (People v. Dubose (1974) 42 Cal.App.3d 847, 849-850 [117 Cal.Rptr. 235].) (People v. Bell (1989) 49 Cal.3d 502, 544.) Here, appellant’s actions wentfar beyond “momentary possession.” The police respondedto appellant’s residence after being informedby the dispatcher there were suspicious circumstances regarding some firearms being movedinto a residence. (I RT 108.) Appellant’s neighbortestified that she had seen appellant with firearms “[t]wo or three times.” (IT RT 501.) She saidthe first time wasin the fall of 2005, months before his arrest, when he had a shotgun or rifle at her home. (II RT 501-502.) Finally, when discovered by SWAT officers under the stairwell, appellant had seven firearms of various makes, models, calibers, and gauges, capable of firing a broad range of ammunition and shells. (I CT 202-209; I RT 265-266, II RT 322.) Further, convicted felons are unique in the substantial risk they pose to the public whenthey possessfirearms. In fact, as this Court has recognized, the danger posed to the public by these individuals is so great that there are circumstance in which even a pardon by the Governor will not restore their privilege to possess a firearm. After release from prison, successful completion ofparole, and a lengthy additional periodofrehabilitation in this state during which the ex-felon must “live an honest and uprightlife,” “conduct himself with sobriety and industry,” and “exhibit a good moral character” (§§ 4852.05), he may petition the superior court for a certificate of rehabilitation (§§ 4852.07). If, after investigation by law enforcement authorities and a thorough hearing into the matter, the court finds that the petitioner has demonstrated “his rehabilitation and hisfitnessto exerciseall ofthe civil and political rights of citizenship,” it will issue a certificate of rehabilitation recommendingthat the Governorgrant a full pardon. (§§ 4852.13.) But even though such a pardonentitles the ex-felon thereafter to exercise all civil and political rights and privileges, specifically 12 including the right to ownorpossess any lawfulfirearm (§§ 4852.17), the legislation expressly declares that “this right shall not be restored, and Sections 12001 and 12021 of the Penal Codeshall apply, if the person wasever convicted of a felony involving the use of a dangerous weapon.”(Ibid.; see also §§ 4852 [pardon of prison inmates].) In short, the Legislature has determined that any adult convicted of a dangerous-weaponfelony should be forever subject to the bar of section 12021, regardless of how complete his rehabilitation. Even the Governor, vested with the pardoning powerby the Constitution (art. V, §§ 8), cannot restore such person’s privilege to carry a concealable firearm. (People v. Bell, supra, 49 Cal.3d at p. 545.) Appellant is not challenging any of his seven convictions for being a felon in possession ofa firearm,or his conviction for receiving stolen property. Rather, appellant claimsthatsix ofhis sentences for being a felon in possession of a firearm must be stayed pursuantto section 654. Penal Codesection 654, states in relevant part: An act or omission that is punishable in different ways by different provisionsoflaw shall be punished underthe provision that providesfor . the longest potential term of imprisonment, but in no case shallthe act or omission be punished under more than oneprovision. An acquittal or conviction and sentence under any onebars a prosecution for the sameact or omission underany other. (Pen. Code, § 654, subd.(a).) The general principles regarding Penal Code section 654, and its prohibition on multiple punishments are well recognized: Whethera course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning ofsection 654 depends on the intent and objective of the actor. If all ofthe 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. Britt (2004) 32 Cal.4th 944, 951-952, citing Neal v. State of California (1960) 55 Cal.2d 11, 19.) 13 In People v. Harrison (1989) 48 Cal.3d 321, the Court recognized the general principle, but went onto state: If, on the other hand, defendant harbored “multiple criminal objectives,” which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, “even though the violations shared commonacts or were parts of an otherwise indivisible course of conduct.” (People v. Harrison, supra, 48 Cal.3d at 335.) Further, Because of the manydiffering circumstances wherein criminal conduct involving multiple violations may be deemedto arise out of an "act or omission," there can be no universal construction which directs the properapplication of section 654 in every instance. (People v. Beamon (1973) 8 Cal.3d 625, 636, implicitly overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 908.) In the instant case appellant was found by members ofthe SWAT team undera stairwell. Officers also found seven rifles and shotguns of various makes and models. But appellant’s separate sentences for each ofthefirearms is consistent with the Legislature’s intent that a felon’s possession of each firearm is a distinctly punishable offense. Further, appellant’s possession of each one of the seven firearms had a separate and individual purpose, and as such he could be punished for each possession. A consideration of People v. Kirk (1989) 211 Cal.App.3d 58, and the subsequent amendments to the Penal Code designed to overrule it, are instructive. In Kirk, the defendant was convicted oftwo counts ofburglary (§§ 459, 460), and two countsofillegal possession of a sawed-offshotgun (former § 12020, subd. (a)). A panel of the Third District Court of Appealheld that defendant’s possessionat the same time and place of two sawed-off shotguns did not constitute two separate violations of then-existing section 12020, subdivision (a), and oneofthe convictions must be reversed. (People v. Kirk, 14 supra, 211 Cal.App.3d 58.) The court in Kirk analyzed the language of section 12020, subdivision (a) that existedat the time the defendant committed the crimes. Section 12020, subdivision (a), stated in relevantpart, “Any person ...who.. .possesses .. . any instrument or weaponof the kind commonly knownas a. . . sawed-off shotgun ... is guilty of a felony, ...” (People v. Kirk, supra, 211 Cal.App.3d at p. 60, citing Stats. 1984, ch. 1414, § 3, pp. 4972-4973, italics in original; Stats. 1984, ch. 1562, § 1.1, p. 5499.) The court observed that the word “any” had long been construed in criminal statutes as ambiguouslyindicating the singleor the plural. (People v. Kirk, supra, 211 Cal.App.3d at p. 62.) The court found the United States Supreme Court decision ofBell v. United States (1954) 349 U.S. 81, 82-83, and subsequentfederal decisions, to be persuasive authority that the Legislature’s use ofthe word “any” was ambiguousandprohibited convictions on more than one offense when the defendant simultaneously possesses or receives several weapons. (/d. at p. 63.) The court ultimately concluded that section 12020, subdivision (a) was ambiguous, andthat its use of the term “any”rather than “a” does not necessarily define the unit ofpossession in singular terms. (/d.at p. 65.) Because the defendant was entitled to the benefit of any statutory ambiguity he could not be convicted ofmultiple violations of section 12020 for his contemporaneouspossession of twoillegal weapons.” (Ibid) In its analysis the Court also noted: . Wehaveno doubtthe Legislature could,if it wanted to, make criminal 4. The defendantalso alleged section 654 prohibited punishmentfor any violation of section 12020 because the guns were part of the burglaries for which he waspunished. The court determined the weapons were modified after the burglaries and were possessed at a time and place remote from the burglaries. The defendant could therefore be punished for the violation of section 12020, subdivision (a). (Peoplev. Kirk, supra, 211 Cal.App.3d at p. 66.) 1s) and subject to separate punishment the possession of each and every sawed-offshotgun foundat the sametime and place. (See Bell v. United States (1954) 349 U.S. 81, 82-83 [99 L.Ed. 905, 910, 75 S.Ct. 620].) (People v. Kirk, supra, 211 Cal.App.3d at p. 62.) Andthatis precisely what the Legislature did. In 1994, the Legislature _ amendedsection 12001, subdivisions (k) and (1). Those amendmentsstated: (k) For purposes of Sections 12021, 12021 1, 12025, 12070, 12072, 12073, 12078, and 12101 of this code, and Sections 8100, 8101, and 8103 ofthe Welfare and Institutions Code, notwithstanding the fact that the term “any firearm” maybe usedin thosesections, each firearm or the frame or receiver of the same shall constitute a distinct and separate offense underthose sections.” (1) For purposes of Section 12020,a violation of that section as to each firearm, weapon,or device enumeratedtherein shall constitute a distinct and separate offense. Asnoted by the Court of Appeal in this case: In 1994,the Legislature stated: “The amendments to Section 12001 of the Penal Code madebythis act adding subdivision{[] (k) .. . thereto are intendedto overrule the holding in [Kirk, supra ], 211 Cal.App.3d 58, 259 Cal.Rptr. 44 [a 1989 case], insofar as that decision heldthat the use of the term ‘any’ in a weaponsstatute means that multiple weapons possessed at the same time constitutes the same violation. It is the further intent of the Legislature in enacting this act that where multiple weapons were made, imported,transferred, received, or possessed, each weapon shall constitute a separate and distinct violation.” (Legis. Counsel’s Dig., Sen. Bill No. 37, 5 Stats. 1994 (1993-1994 Ist Ex.Sess.) ch. 32, § 5, pp. 8657-8658;see hist. notes, 51D West’s Ann. Pen.Code (2008 supp.) foll. § 12001, p. 4.) (People v. Correa, supra, 161 Cal.App.4th at p. 986,fn. 4.) As a consequence, the Legislature has not only determined that 5. At the time of appellant's offense subdivision (k) of this section had been amended to add Penal Codesection 12801 to thelist of statutes. 16 convicted felons who possess weaponsrepresent a severe and uniquerisk to the public, but also that felons who possess multiple weapons have committed separate punishable offenses. As summarized by this Court in People v. Gonzalez (2008) 43 Cal.4th 1118, 1125-1126: Undersettled canonsofstatutory construction, in construing a statute we ascertain the Legislature’s intent in orderto effectuate the law’s purpose. (Dyna-Med,Inc. v. Fair Employment & Housing Com.(1987) 43 Cal.3d 1379, 1386-1387 [, 241 Cal.Rptr. 67, 743 P.2d 1323].) We must look to the statute’s words and give them their unusual and ordinary meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [, 7 Cal.Rptr.2d 238, 828 P.2d 140].) The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. (Green v. State of California (2007) 42 Cal.4th 254, 260, 64 Cal.Rptr.3d 390, 165 P.3d 118.) Ifthe wordsin thestatute do not, by themselves, providea reliable indicator of legislative intent, [s|tatutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes. (Woods v. Young (1991) 53 Cal.3d 315, 323 [, 279 Cal.Rptr. 613, 807 P.2d 455].) Here, the amendmentsto section 12001 , subdivisions(k) and(1) specify that each firearm shall constitute a “distinct and separate offense.” The Legislature’s amendment that each firearm shall constitute a “distinct and separate offense”clarifies the legislative intent that convicted felons can be convicted and punished for each firearm in their possession. A violation of section 12021, subdivision (a) is committed when a felon owns, possesses, or has custody or control of a firearm. As summarized bythe court in People v. Ratliff(1990) 223 Cal.App.3d 1401, 1414: Commission ofa crime under section 12021 is complete oncetheintent to possess is perfected by possession. What the ex-felon does with the weaponslater is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon. [Citations.] Here, appellant violated section 12021 each time he possessed oneofthe 17 guns. The Legislature has clarified that each of those possessions was a “distinct and separate offense.” Because they are “distinct and separate” offenses appellant is deserving of punishmentfor each conviction. Appellant attempts to distinguish Kirk and the subsequent amendments to the Penal Code by arguing that they addressed multiple convictions, not multiple punishments. Specifically, appellant claims: The gravitas driving the Legislative amendment was the inherent dangerousnessitself of each of the weapons encompassed bysection 12020, subdivision (a), (including the sawed-off shotgun the subjectin Kirk) that would naturally be increased with each additional weapon. In the instant case, that was not the case. Here the gravitas was merely appellant’s status as a felon; it had nothing to do with the nature or even numberof the weapons themselves. (AOB at p. 12.) Respondentdisagrees. An argumentthat a convicted felon in possession of a single weapon is as culpable as a convicted felon in possession of a stockpile of rifles and shotgunsis illogical. The Legislative amendment was directed at individuals just like appellant, a convicted felon in possession of multiple firearms. Appellant is simply more dangerous than a felon in possessionofa single firearm,andis therefore more culpable anddeserving of greater punishment. Appellant also arguesthat: In the limited context of the instant case, the gravitas of the offense of simple possession of a firearm was not enhanced bythe addition of a second,third, or even seventh firearm. Appellant had onlythe realistic potential ofbeing able to fire one weaponat a time. As a matter of law, there were no multiple criminal objectives. Thus, the trial court’s imposition of consecutive 25 years to life sentences on Counts Two through Seven violated Section 654 and should bestayed. (AOBat p. 11.) Appropriately, the Court of Appeal below rejected this argument, 18 stating: Wereject defendant’s argument that “the gravitas of the offense of simple possession ofa firearm was not enhancedbythe addition of the second,third, or even seventh firearm.” As the trial court noted, these were, “dangerous weapons,shotguns,rifles . . . [a]nd this was a very dangerouscrime.” (People v. Correa, supra, 161 Cal.App.4th at p. 987.) The Court of Appeal noted that the purpose of section 12021 was to protect the public by precluding possession of guns by those who are more likely to use them,and to provide greater punishmentto an armedfelon than to another. (People v. Correa, supra, 161 Cal.App.4th at p. 987.) The Court ofAppealalso rejected as unconvincing appellant’s claim that there were no multiple objectives as a matter oflaw because he was capable of firing only one weaponat a time,stating: A felon whopossesses multiple weaponsthat can be used to accomplish different objectives is inherently more dangerous than one who possesses only one. Defendant’s culpability increased with each additional weaponin his possession. (People v. Correa, supra, 161 Cal.App.4th at p. 987.) Petitioner also claimsthat, “[h]ad the Legislature mtended to removethe applicability of Section 654in the context ofPenal CodePart 4,Title 2, it could have doneso;butit did not.” (AOB 12.) Respondent submits that appellant’s conclusion shouldnot be accepted so readily. The Legislature is not necessarily required to specifically refer to section 654 to conveyits intent that felons in possession of multiple firearms are deserving of a sentence for each “distinct and separate ” offense. In People v. Siko (1988) 45 Cal.3d 820, 823, the defendant was convicted of forcible rape, forcible sodomy, and forcible lewd conduct with a child under the age of 14, and assault with forcelikely to producegreat bodily injury. He received a three-year term for assault and consecutive full-term 19 sentencespursuantto section 667.6, subdivision (c) for the sexual offenses.® The lewd conduct for which defendant was convicted consisted solely of the rape and the sodomy. (/bid.) This Court considered whetherthe consecutive full-term sentences imposed were subject to the limitation against multiple punishmentin section 654. (/bid.) The People argued that in adopting section 667.6, subdivision (c), the Legislature impliedly repealed the prohibition in section 654 on multiple punishmentfor violations basedon the sameact or omissions, “insofar as that prohibition might otherwise apply to the sex offenses listed in the subdivision.” (People v. Siko, supra, 45 Cal.3d at p. 824.) The Court rejected the People's argument and determined that 667.6, subdivision(c), did notcreate an implied exception to section 654 and allow a single act to be punishedtwice.(bid. at p. 825.) Subsequently, in People v. Hicks (1993) 6 Cal.4th 784, this Court again considered section 667.6, subdivision (c). In Hicks the defendant entered a bakery and committed numeroussex offenses against an employee. (Peoplev. Hicks, supra, 6 Cal.4th at p. 788.) The defendant was convicted of six counts of rape, two counts of forcible sodomy, two counts ofdigital penetration with a foreign object, and one count of burglary. (/d. at p. 787.) He was sentenced on the burglary count to the upper term of three years in prison and full consecutive terms of eight years on the remaining 10 counts. (/bid.) 6. At the time section 667.6, subdivision (c) states in relevantpart: In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of subdivision(2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289,or ofcommitting sodomyororal copulationin violation of Section 286 or 288abyforce, violence, duress, menace,or fear ofimmediate and unlawful bodily injury on the victim or another person whetheror not the crimes were committed during a single transaction. 20 This Court addressed the questionleft unresolved in Siko, namely, whether the Legislature, by enacting section 667.6(c), which authorizes consecutive full-term sentences for enumerated sexual offenses “whether or not the crimes were committed during a single transaction,” created an exception to section 654's prohibition against multiple punishmentfor separate acts committed during an indivisible course of conduct. (People v. Hicks, supra, 6 Cal.4th at p. 791 ) The Court noted that section 667.6, subdivision (c) did not mention section 654 directly, and its task was to determine whetherthe phrase, “whether or not the crimes were committed duringa single transaction,” used in section 667.6, subdivision (c), refers to section 654's prohibition of multiple punishmentfor separate acts committed during a single or indivisible course of conduct, and whether the phrase expressed a legislative intent to create an exception to 654. (People v. Hicks, supra, 6 Cal.4th at p. 791.) The Court determined that in context the words “single” and “indivisible” had nearly identical meanings,and there could be no question that had the Legislature used the term “indivisible transaction”rather than “single transaction’”’ it would have created an exception to section 654. (/d. at pp. 791-792.) The result was held to be just in Hicks because the purposeofsection 667.6, subdivision (c) was to allow enhanced punishmentof certain sexual offenders who commit multiple offenses. (People v. Hicks, supra, 6 Cal.4th at p. 796.) The Court foundthat such increased penalties are appropriate because a defendant who commits “a numberof base criminal acts on his victim is substantially more culpable than a defendant who commits only one suchact.” (Jbid, internal quotations andcitations omitted.) Similarly, a felon in possession of multiple firearms is more culpable than a felon in possession ofa single firearm. The Legislature has determined that felons with guns represent a unique and substantial risk to the public. Further, the Legislature has concluded that each gun represents a “distinct and 21 separate” offense. Becausepossession ofeach gunis separate anddistinct from possessionof another, section 654 does not prohibit the court from imposing multiple sentences. Appellant cannot claim that possession of the guns were part of an indivisible transaction when the Legislature has declared that possession of each weaponis a distinct and separate offense from another. Further, there was sufficient evidence supporting the trial court’s conclusion that appellant harbored multiple criminal objectives justifying punishmentfor each conviction. Appellant was convicted of seven counts of being a felon in possession ofa firearm. (§ 12021; I CT 203-209.) The offense is committed when a felon owns, possesses, of has custody or control of a firearm. (People v. Ratliffsupra, 223 Cal.App.3d at p.1414.) In People v. Bradford (1976) 17 Cal.3d 8, 22, the Court noted: Whethera violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, [7] constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus wherethe evidence showsa possession distinctly antecedent and separate from the primary offense, punishmenton both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishmentfor the illegal possession of the firearm has beenheld to be improper whereit is the lesser offense. (People v. Bradford, supra, 17 Cal.3d at p. 22, quoting People v. Venegas (1970) 10 Cal.App.3d 814,821, citations omitted.) In the instant case there was sufficient evidence from which the court could concludethat appellant harbored multiple criminalobjectives. The police respondedto appellant’s residenceafter being informed bythe dispatcher there were suspicious circumstances regarding somefirearms being movedinto a residence. (I RT 108.) Appellant’s neighbortestified that she had seen 7. Section 12021 has since been amendedto prohibit possession of any firearm by a felon. (People v. Mills (1992) 6 Cal.App.4th 1278, 1282.) 22 appellant with firearms “[t]wo or three times.” (IJ RT 501.) She saidthefirst time wasin the fall of 2005, months before his arrest, when he had a shotgun or rifle at her home. (II RT 501-502.) Further, when SWAT officers discovered appellant underthe stairwell Officer McCoin saw numerouslong gun cases on the floor. (I RT 265.) Officer McCoin removed the gun cases from the closet and two gunsthat were not in cases. (I RT 265-266.) Detective Vang entered the residence and found several gun casesin the hallway next to the closet and took each oneoutside and gaveit to Detective Lockwood. (II RT 369, 374-375.) Detective Lockwoodtestified that Detective Vang brought him seven firearms and told him where he found them.’ (II RT 322.) As noted above, commission ofa crime under section 12021 is complete once the intent to possessis perfected by possession. (People v. Ratliff, supra, 223 Cal.App.3d 1401.) Therefore, each violation occurred at the moment appellant possessed the gun. Appellant claims that he had “only the realistic potential of beingable to fire one weaponat a time.” Respondent agrees, but submits thatis indicative of appellant’s multiple criminal objectives. Because appellant could only use one weaponat a time, he logically harbored multiple criminal objectives as to each weapon. Appellant’s claim shouldberejected. Petitioner compares his possession of multiple firearms to cases of possessionofother items. (AOB 10-11.) For example, appellant comparesthis 8. Appellant was found not guilty of the being a felon in possession of a firearm as alleged in counts VIII and IX. (I CT 210-211.) The information alleged that the firearms in counts VIII and IX were a .12 gauge shotgun and a Connecticut Valley Arms .50 caliber rifle. (I CT 121.) Attrial People’s Exhibit 1OA and 11A were a .12 gauge shotgun and a .50 caliberrifle, respectively that Detective Schindler gave to Detective Lockwood. (II RT 345- 348.) Detective Schindlertestified that he found two metal gun cases behind a couch. (I RT 195-196.) One contained a .12 gauge shotgun, and the other contained a .50 caliber rifle. (I RT 195-196.) Respondent submits it is therefore reasonable to assumethat the guns foundin the closet were the ones that resulted in appellant’s convictions. 23 case to People v. Butler (1996) 43 Cal.App.4th 1224. In Butler, the defendant was convicted of two felony counts of receipt of an access card with intent to defraud (§ 484e, subd. (c)) and two misdemeanorcounts of possession of an instrument with the intent to avoid a lawful telephone charge (§ 502.7, subd. (b)(1)). (People v. Butler, supra, 43 Cal.App.4th at pp. 1229-1230.) The chargesall arose out of his possession of two clonedcellular phones. (Jbid.) The defendantalso admitted a prior conviction for robbery. (People v. Butler, supra, 43 Cal.App.4th at p. 1230.) He was sentenced to the middle term oftwo years in prison for counts one and two (§ 484, subd.(c)) and oneyear in county jail on the two misdemeanors(§ 502.7, subd. (b)(1)). (/bid.) The sentence was doubled to four years because of the prior strike conviction and remaining counts were ordered to run concurrently with count one. (/bid.) Amonghis arguments on appeal Butler claimed that pursuantto section 654 he was improperly sentenced on counts two,three, and four. In response the court stated: To the extent defendant is arguing that he could only be punished once even though he was apprehended using two phones because he possessed those phones at the same time, we dispense with that argumentin short moment. Defendant’s crimes were committed against two different victims, the lawful owners of the two cellular phone numbers. As such he can be punished separately for each crime. [citation.] (People v. Butler, supra, 43 Cal.App.4th at p. 1248.) . There is no lawful way for appellant to possess a firearm. He cannot purchase weaponsfrom a licensed dealer, and therefore the lawful owner of each of the weaponsin appellant’s possession is a victim. Additionally, only one firearm can be usedat a time, and it was therefore logical for the court to presume that appellant had a different purpose for each of the firearms. If appellant did not have a separate anddistinct purpose for each gun, one gun would have been sufficient and he would not have foundit necessary to acquire 24 such a large number. Finally, the very purpose of section 12021 is to protect the public from individuals like appellant. The risk to the public, and appellant’s culpability increased with each additional weapon he possessed. The amendmentto section 12001, subdivision (k) clarified that each possession of a firearm by appellant wasa distinct and separate offense. None of Appellant’s offenses were committed as a means to commit another, and none wasincidental to the commission of another. Appellant is deserving of punishmentfor each conviction because possession of one gunis distinct and separate from another. Further, there wassufficient evidence from which the court could conclude that appellant harbored multiple criminal objectives. Appellant’s culpability increased with each additional weapon he possessed and his punishment should as well. 25 CONCLUSION For the foregoing reasons, respondent respectfully submits that appellant’s sentence should be affirmed. Dated: October 16, 2008 SA2007301300 30566776.wpd oT . A 4 ‘, go VO ae f Gs n Respectfully submitted, EDMUNDG. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General CHARLESA. FRENCH \ f eeeAttorney General Ae ROBERT C. NASH Deputy Attorney General Attomeys for Respondent 26 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S ANSWERBRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 7967 words. Dated: October 16, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney“ofthe State ofcata | \ a“ > . \ \ eo+ f an ROBERT C. NASH Deputy Attorney General Attomeys for Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Correa No.: $163273 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member'sdirection this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On October1 x 2008, I served the attached RESPONDENT’S ANSWERBRIEF ON THE MERITSbyplacinga true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressedas follows: Conrad Dean Petermann County of Sacramento 323 East Matilija Street, Ste. 110 Gordon D. Schaber Downtown PMB 142 Courthouse Ojai, CA 93023-2769 Superior Court of California Attorney for Appellant - 2 copies 720 9" Street Sacramento, CA 95814-1398 The Honorable Jan Scully District Attorney Central California Appellate Program Sacramento County District Attorney’s 2407 J Street, Suite 301 Office Sacramento, CA 95816 P.O. Box 749 Sacramento, CA 95814-0749 Clerk of the Court California Court of Appeal Third Appellate District 900 N Street, Room 400 Sacramento, CA 95814 I declare underpenalty of perjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on October 1’, 2008, at Sacramento, California. | G Declarant
