PEOPLE v. JONES

Appellant’s Opening Brief on the Merits

Cal.July 19, 2010

: ‘ FILE COPY SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) S179552 | ) Plaintiff and Respondent, ) | ) v. ) | ) JARVONNE FEREDELL JONES, ) ) Defendant and Appellant. ) | ) Third Appellate District, No. C060376 Sacramento County Superior Court No. 08F04254 Honorable Jaime R. Roman, Judge .PPELLANT’S OPENIN: F ON THE MERIT CENTRAL CALIFORNIA _ APPELLATE PROGRAM SUPREME COURT GEORGE BOND FILED Executive Director JUL 19 2010 SANDRA URIBE Staff Attorney Frederick K. Ohitich Clerk California Bar No. 183369 a Deputy 2407 J Street, Suite 301 Sacramento, CA 95816 (916) 441-3792 Attorneys for Appellant JARVONNE FEREDELL JONES @ % TABLE OF CONTENTS Page APPELLANT’S OPENING BRIEF ON THE MERITS ISSUE PRESENTED..... 0.0.0...ee1 STATEMENT OF FACTS AND PROCEDURAL HISTORY .......... 2 A. The Underlying Facts ......... 0.0... cece eee eee eee 2 B. Procedural Facts 3 C. The Opinion of the Court of Appeal ................... 4 ARGUMENT APPELLANT’S SENTENCE FOR POSSESSING A CONCEALED WEAPON SHOULD HAVE BEEN STAYED PURSUANT TO PENAL CODE SECTION 654 .............. 6 A. Summary OfArgument ............ 0.00 e cece eee 6 B. The Multiple Punishment Bar of Section of 654 .......... 7 C. The Standard of Review ............. 0... e eee eee ee 7 D. The Section 654 Tests ........ 2.0... cc cece ee eee ees 8 E. The Court OfAppeal’s Reliance On Peoplev. Harrison (1969) 1 Cal.App.3d 115 Was Misplaced And Harrison Should Be Disapproved ........ 0... cece cee ec nee eens 12 F. In re Hayes, supra, 70 Cal.2d 604, Also Does Not Mandate Multiple Punishment ................... 22 a TABLE OF CONTENTS Page G. Applying either Neal or Bradfordto the Facts of this Case, the Sentence on Count Two Should Have Been Stayed ............ 0... cee ee eee ee eee 27 H. Should This Court Fashion A New Rule For Penal Code Section 654 Focusing On Legislative Purpose, It Should Not Be Applied Retroactively to Appellant ...............0......00.. 34 CONCLUSION ...... 0... cece cc ce eee cence ee en eens 36 “ji- a e TABLE OF AUTHORITIES Page FEDERAL CASES Bouie v. City of Columbia (1964) 378 U.S. 347, [84 S.Ct. 1697; 12 L.Ed.2d 894] 2.0...eeeeens 35 Toussie v. United States (1970) 397 US. 112, [90 S.Ct. 858] ......... 31 USS. v. Lanier (1997) 520 U.S. 25 2.keeee eee ee 35 STATE CASES Automobile Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 .. 33 In re Adams (1975) 14 Cal.3d 629... 0...eee 8,9,10 In re Chapman (1954) 43 Cal.2d 385 2.0...eee eee 8,24 In re Hayes (1969) 70 Cal.2d 604 .......... 0.00... 0 cee ee eee Passim Nealv. State of California (1960) 55 Cal.2d 11 ................ Passim People v. Bauer (1969) 1 Cal.3d 375 2.0.0...ceeeee 13 People v. Beamon (1973) 8 Cal.3d 625 ..............eee. Passim People v. Bell (1989) 49 Cal.3d 502.000.0000 cece eee eeeueeeeees 15 People v. Bradford (1976) 17 Cal.3d8 .............02 0200 000- Passim People v. Britt (2004) 32 Cal.4th 944 ............ 0.00. eee Passim People v. Coleman (1989) 48 Cal.3d 112 ....... 0.0... ccc eee eee eee 7 People v. Coronado (1995) 12 Cal.4th 145 2.0... 0. ........ 0.00000 16 People v. Garcia (2008) 167 Cal.App.4th 1550 ............. 0.00000. 30 -iii- u F TABLE OF AUTHORITIES | Page STATE CASES People v. Green (1996) 50 Cal.App.4th 1076 .................-006. 17 People v. Harrison (1969) 1 Cal-App.3d 115 ................... Passim People v. Hicks (1993) 6 Cal.4th 784 .......... 0... cece ee ee eee 16 People v. Johnson (1980) 26 Cal.3d 557 1.0... eee eee ee eee 7 People v. Jones (2002) 103 Cal.App.4th 1139...................04. 30 _ People v. King (1993) 5 Cal.4th 59 2.0... eceee eee 9,35 People v. Latimer (1993) 5 Cal.4th 1203 ....................0.. 7,8,34 People v. Manila (2006) 139, Cal.App.4th 589 ..................... 18 People v. Mesa (2010) = Cal.App.4th —_ [D056280, July 13, 2010] .... 28 People v. Miller (1977) 18 Cal.3d 873 ...............-02.. Lees 9 People v. Mills (1992) 6 Cal.App.4th 1278 .................00.. 15,19 People v. Norrell (1996) 13 Cal.4th 1] .............0.......0.8. 16,20,21 People v. Osband (1996) 13 Cal.4th 622 ......... 0... eee eee eee 7 People v. Perez (1979) 23 Cal.3d 545 2.0... .. cece cee ee 7,9,10 People v. Ratcliffe (1990) 223 Cal.App.3d 1401 ................ 30,31 People v. Reeves (2001) 91 Cal.App.4th 14 ..............0. 0.00005. 16 -iv- TABLE OF AUTHORITIES Page STATE CASES People v. Spirlin (2000) 81 Cal.App.4th 119..................2000. 28 People v. Vang (2010) 184 Cal.App.4th 912.2... 0.0. .....0..0..00.0.. 11 People v. Venegas (1970) 10 Cal-App.3d 814 ................... 10,29 Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489 2...eeeee ee 34 Wilkoff v. Superior Court (1985) 38 Cal.3d 345 .......0............ 16 Wright v. Superior Court (1997) 15 Cal.4th 521 .................... 31 STATE STATUTES Penal Code sec. 290, subd. (a) .......2. 0... cece eee eee 24,25 Penal Code sec. 290, subd. (f) ..02.2...24 Penal Code sec. 417 2.0...ceeeee een eens 21 Penal Codesec. 654 1... 2... ceceences Passim Penal Code sec. 667.6, subd. (C) 2... 0...eeeeens 16 Penal Code sec.12020 et seq ... 0.0...cece nen eens 21 Penal Code sec.12021] 2.2.0... eeecen Passim Penal Code sec. 12021, subd. (a)(1) ......... 02... cee ee eee 1,3 Penal Code sec. 12025, subd. (b)(4) 2.0.0.0... 20...een 17 Penal Codesec. 12025, subd. (b)(6) «00... 0... cece eee eee 1,3,25 Penal Code sec.12031 ....... 0... ceeeee eens 5 Penal Codesec. 12031, subd. (a)(2)(D) ......... 0... ccc eee 17 Penal Code sec. 12031, subd. (a)(2)(F) ........ 20... cece eee 3,26 Penal Code sec. 12101, subd. (a) 1.0.0... 2.ceeee 15 Vehicle Code sec. 14601 20... 0...ccccece ences 22 Vehicle Code sec. 23102 2.0... ccc ccc cette tenes 22 SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) S179552 ) Plaintiff and Respondent, ) ) V. ) ) JARVONNE FEREDELL JONES, ) ) Defendant and Appellant. ) ) ISSUE PRESENTED The Court has granted review of the following question: Didthetrial court properly impose concurrent sentences for being an ex-felon in possession ofa firearm (Pen. Code, § 12021, subd. (a)(1)) and carrying a loaded, concealed firearm (Pen. Code, § 12025, subd. (b)(6)) under the present circumstances? (See Pen. Code, § 654; People v. Harrison (1969) 1 Cal.App.3d 115, 121-122.) a s a e STATEMENT OF FACTS AND PROCEDURAL HISTORY A. The Underlying Facts. On May26, 2008, Sacramento Police Officer Weinrich stopped a car whichlacked a license plate. (RT 21.) Appellant, Jarvonne Feredell Jones, wasdriving the car, and his girlfriend was the sole passenger. (RT 22, 70.) The girlfriend informed the officer that the car belonged to her mother. (RT 87.) Officer Weinrich decided to search the car for contraband. (RT 24.) Officer Buno and an officer-in-training responded to Wienrich’s call for assistance. (RT 25, 65.) Weinrich searched the car twice, but found nothing. (RT 25, 49.) Then Officer Buno searched it and found a loaded .38 Smith and Wesson antique revolver. (RT 25-26, 44.) The revolver was hidden behind a quarter panel in the driver’s side door. (RT 76.) The panel had to be pried open for the gun to be removed. (RT 73.) It took some effort to removethe bullets from the chamber and render the gun safe. (RT 29-30, 34.) The officers were unfamiliar with that particular weapon becauseit dated back to 1898. (RT 34,44.) After the gun was discovered, Officer Weinrich questioned appellant. (RT 26-27.) Appellant stated that he purchased the gun three e s days earlier from a stranger who approached him asking whether he knew of anyoneinterested in buying a gun. (RT 28.) Appellant said that there were three bullets in the gun when he boughtit. (RT 29.) Appellant explained that he bought the gun for protection and had keptit at his grandmother’s house. It was in the car becausehe just picked it up from there. (RT 28, 61.) B. Procedural Facts. A jury convicted appellant ofpossession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1), count one), carrying a readily accessible concealed and unregistered firearm (Pen. Code, § 12025, subd. (b)(6), count two), and carrying an unregistered loaded firearm in public (Pen. Code, § 12031, subd. (a)(2)(F), count three). (CT 59-61.) The probation report recommended counts two and three be stayed pursuantto section 654. (CT 105; see also Opinion,p. 3.) At sentencing, neither party expressed disagreement with that recommendation. (Opinion, p. 4.) The only thing contested was whether the upper term should be imposed. However, the trial court ultimately imposed concurrent sentences on both counts.’ The four-year prison sentence imposed by the court ' The Court of Appeal observedthat it was possible thatthe trial court agreed with the recommendation ofthe probation report, but misapplied the statute. (Opinion,p.4.) 3 consisted of the upper term of three years on count 1, concurrent three-year terms on counts 2 and 3, and one year for the prison prior. (CT 5; RT 171.) Appellant timely appealed. (CT 136-137.) On appeal, appellant argued that the sentences on counts two and three should be modified on the ground that they violated the multiple-punishmentbar of section 654. C. The Opinion of the Court of Appeal. On December10, 2009, the Court of Appeal agreed in part and modified the Sacramento County judgment. It stayed the sentence on count three, accepting respondent’s concession that, as betweenit and count two, appellant committed a single act when he possesseda loaded firearm in public and possessed a concealed weapon. (Opinion,p. 4.) However, the Court of Appeal held that appellant could be separately punished for counts one and two “because of the purpose of the ban on felons possessing firearms.” (Opinion, p. 6.) The court reasoned appellant possessedthe firearm in an unlawful way separate and above the unlawfulness inherent in a felon's possession of a firearm, namely by concealing the loaded firearm in a vehicle that he then drove on a public street. (Opinion, p. 7.) The court found that appellant’s status as a convicted felon merited additional punishment. (Opinion,p. 10.) The court cited People v. Harrison (1969) 1 Cal.App.3d 115, which upheld multiple sentences for possession of a gun by an ex-felon (Pen. Code, §12021) and possession of a loaded firearm in public (Pen. Code, § 12031) because loading the weapon involvesa separate activity. (Opinion, p. 7-9; People v. Harrison, supra, | Cal.App.3d at p. 22.) Under the reasoning in Harrison, the Court ofAppeal concluded that appellant’s act of concealing the weapon, or allowing someoneto concealit for him, merited additional punishmentfrom the act ofmere possession because that was a Separate act. (Opinion,p. 9.) Appellant filed a petition for review on January 19, 2010, whichthis court granted on March25, 2010. ARGUMENT APPELLANT’S SENTENCE FOR POSSESSING A CONCEALED WEAPON SHOULD HAVE BEEN STAYED PURSUANT TO PENAL CODE SECTION 654. A. Summary OfArgument This case concerns the multiple-punishment bar of section 654 — specifically, whether despite that bar a defendant can be doubly punished for possessing a concealed weaponbecauseofhis status as a convicted felon. Underthe facts ofthis case, the correct answer to the above question is “no.” The Court ofAppeal erred in reaching the contrary conclusion. The Court of Appeal opinion conflates the criminal objectives of the defendant, whichis the focus of the section 654 analysis in Nealv. State of California (1960) 55 Cal.2d 11, with the legislative objectives of the statutes in a way that renders Neal meaningless. And while there are other tests that can be used to determine whethersection 654 should apply, because the record in this case contains evidence regarding appellant’s intent, the Neal test is the controlling test. But even if the Court finds that Nealshould not be applied to crimes of a continuing nature, such as possession offenses, multiple punishment wasnevertheless prohibited underthe test set forth by this Court in People v. Bradford (1976) 17 Cal.3d e s 8, which considered section 654 in the context of Penal Code section 12021. B. The Multiple Punishment Bar Of Section 654. Section 654 provides, in pertinentpart: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no caseshall the act or omission be punished under more than oneprovision. (§ 654, subd.(a).) This part of the statute ensures that a defendant’s punishmentis commensurate with his culpability and that he is not punished more than once for whatis essentially one criminal act. (People v. Latimer (1993) 5 Cal.4th 1203, 1211; People v. Perez (1979) 23 Cal.3d 545, 552.) C. The Standard Of Review. Whethersection 654 applies is a determination made from all the circumstancesofthe case and is primarily a question of fact for the trial court. The question on appeal becomes whetherthere is substantial evidence supporting the court’s finding. If so, the finding will be upheld on appeal. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Coleman (1989) 48 Cal.3d 112, 162.) Substantial evidence is defined as evidence whichis reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578.) D. The Section 654 Tests. “Because ofthe many differing 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 proper application of section 654 in every instance." (People v. Beamon (1973) 8 Cal.3d 625, 636; see also In re Adams (1975) 14 Cal.3d 629, 633.) This Court has adopted several tests which can be used to determine whether section 654 applies to a given case. They are not mutually exclusive. If section 654 is deemed to apply under any oneofthe tests, a contrary result under anothertest is irrelevant and multiple punishmentis barred. (dn re Hayes (1969) 70 Cal.2d 604, 606, fn.1.) In In re Chapman (1954) 43 Cal.2d 385, this Court enunciated a test to apply wherethere is a single act which overlaps essential elements of multiple crimes. According to Chapman, "when two offenses are committed by the sameact or when that act is essential to both [] they may not both be punished.” (/d. at p. 390.) The Chapman “overlapping elements” test has never been expressly disapproved. (People v. Latimer (1993) 5 Cal.4th 1203, 1209.) The most widely used test in applying section 654 is the “intent and objective” test stated in Neal v. State ofCalifornia, supra, 55 Cal.2d 11. It applies where there is a continuing course of criminal conduct that violates more than one statute. The Neal test focuses on the intent and objective of the defendant. (/d. at p. 19.) “If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (bid.)’ Since Neal, the Court has advised against both parsing the intent and objective of the defendant too finely (Peoplev. Britt (2004) 32 Cal.4th 944, 953-954 [failure to register in new jurisdiction and to notify former jurisdiction ofmove had single objective ofpreventing any law enforcement agency from learning of current residence]), as well as construing it too broadly (People v. Perez (1979) 23 Cal.3d 545, 552 [rejecting argumentthat multiple punishmentfor discrete sex offenses was impermissible based on the single objective of sexual gratification]). There have been refinements of the Neal “intent and objective test” for dealing with certain contexts. (People v. Beamon, supra, 8 Cal.3d 625, 638, fn. 10.) For example, in Jn re Adams, supra, 14 Cal.3d 629, the Court applied Neal to narcotic offenses. Recognizing one may possess or transport drugs for a variety of reasons, the Court held the application of Neal recognizes an exception for crimes ofviolence committed against multiple victims. (Neal, supra, 55 Cal.2d 11, 20-21; see also People v. Miller (1977) 18 Cal.3d 873, 885; People v. King (1993) 5 Cal.4th 59, 78.) section 654 is not necessarily based on the numberortypes of drugs, but rather on the motivation of the defendant. (/d. at pp. 635-636.) In the context of two Vehicle Code violations, Jn re Hayes (1969) 70 Cal.2d 604, added a requirement that the overlapping elements of two offenses committed at the same time share the same criminal purpose in orderto satisfy the Neal test. (Hayes, supra, 70 Cal.2d at pp. 607-611.) And in People v. Perez, supra, 23 Cal.3d 545, the Court applied Neal to cases dealing with multiple sex offenses against a single victim. For section 654 to apply to one of several self-contained sex offenses, it must be committed as a means of committing another, facilitate commission of another, or be incidental to the commission of any other. (/d. at pp. 553-554.) What all of these cases have in commonis the use of the intent and objective test initially set forth in Neal. Despite the refinements, cases subsequent to Neal continueto utilize this commontest to determine the application of section 654. As to Penal Code section 12021 convictions in particular, one of the crimes at issue here, in People v. Bradford (1976) 17 Cal.3d 8, this Court cited with approval the test applied in People v. Venegas (1970) 10 Cal.App.3d 814, and held that whether the possession constitutes a divisible transaction from the offense in which the felon employs the weapon 10 depends onthe facts and evidence of each individual case. Where the evidence showsa possession distinctly antecedent and separatefrom the primary offense, multiple punishmentis permitted. But where the evidence showspossession only in conjunction with the primary offense, then separate punishmentfor section 12021 is not allowed. (People v. Bradford, supra, 17 Cal.3d at pp. 22-23, emphasis added.) Some Courts of Appeal have devised a test focusing on the legislative intent of the underlying offenses; a “statutory purpose”type of evaluation. (See e.g., People v. Vang (2010) 184 Cal.App.4th 912, 917 [“the crimes of felon in possession of a firearm and possession of methamphetamine while armed address distinct dangers”].) The thinking is that if statutes have different public purposes directed at “distinct evils,” then a defendant who violates both statutes simultaneously should be doubly punished becauseheis infringing upon twosocietal interests. In sucha test, the defendant is supposedly not being doubly punished because the remedial target of each statute being violated differs, no matter what the intent and objective of the defendant. This approach can betraced to People v. Harrison (1969) 1 Cal.App.3d 115. And that wasthe rationale of the court in this case. But this “statutory purpose” approach has never been 11 u D approved by this Court and, as will be explained below,it is at odds with the Neal “intent and objective”test. E. The Court OfAppeal’s Reliance On People v. Harrison (1969) 1 Cal.App.3d 115 Was Misplaced And Harrison Should Be Disapproved. The Court of Appeal in this case concluded that convicted felons who simultaneously violate both sections 12021 and 12025 or 12031 necessarily possess two separate intents and objectives for purposes of section 654 because those lawstarget different statutory purposes. It relied on People v. Harrison, supra, | Cal.App.3d 115, to reach this conclusion. But the Harrison approachis flawed and should be disapproved. In Harrison, the defendant was convicted of one count of being a felon in possession of a firearm and one countof carrying a loaded firearm in a vehicle on a public street, based on one discrete event - a single traffic stop in which a loaded gun was found in the defendant’s car. (People v. Harrison, supra, 1 Cal.App.3d at p. 118.) The Court ofAppeal rejected the defendant’s contention that separate punishment for each conviction violated the prohibition of section 654. In upholding multiple punishments, the court gave three reasonsfor its conclusion. First the court observedthat one offense was not a lesser included offense of the other. (/d. at p. 122.) Second, the court noted that the two statutes addressed twodifferent 12 concerns: that of felons possessing concealed weapons, loaded or not, and that of anyone carrying a loaded gun in a public place. (Jbid.) Third, the court determined “‘the ‘intent and objective’ underlying the criminal conduct wasnot single, but several” because the gun was loaded. (/bid.) “For an ex-convict to a carry a concealable firearm is one act. But loading involves separate activity.” (lbid.) In concluding that section 654 does not apply when oneoffense is not a lesser included offense of the other, Harrison, appears to have confused merger with the application of section 654. This Court has clearly stated that the proscription against multiple punishmentofa single act is not limited to necessarily included offenses. (See Neal, supra, 55 Cal.2d at p. 18.) In fact, were one offense a lesser included of the other, the remedy would beto strike the lesser included offense, not simply stay punishment. (People v. Bauer, supra, | Cal.3d at p. 375.) Harrison predates this Court’s decision in Bradford which, as noted above, held that for a conviction of section 12021 to merit additional punishment, there must be possession distinctly antecedent and separate Jrom the primary offense. (People v. Bradford, supra, 17 Cal.3d at pp. 22- 23.) Harrison cannot be reconciled with the rule this Court adopted in Bradford. 13 The Harrison court found it important that the statutes at issue addressed two different societal evils. (People v. Harrison, supra, 1 Cal.App.3d at p. 122.) But, as this Court recently made clear, section 654 and the “divisible course of conduct” rule presuppose that the defendant has violated two statutes. It should make no difference, for purposes of applying section 654, that each ofthese offenses is supported bya different and distinct public policy. Section 654 is concerned with the defendant’s intent, not the Legislature’s purpose in enacting the offenses in question. (People v. Britt, supra, 32 Cal.4th at p. 952.) In fact, the effect of section 654 is to limit or prohibit multiple punishment for behavior that may violate different laws. Turning to the present case, the appellate court foundit significant that, after appellant purchased the gun, he concealedit in the car, or had someonehide it for him. (Opinion, p. 9.) The court then held that per Harrison, supra, | Cal.App.3d 122, that act merits separate punishment from mere possession. ([bid.) The Court of Appeal noted, “The purpose of section 12021 is to protect the public welfare by precluding the possession of guns by those whoare more likely to use them for improper purposes— felons [Citations], and to provide a greater punishment to an armed felon than to an unarmed 14 felon. [Citation.].”” (Opinion, p. 6, citations omitted.) Thus, the Court of Appealin this case suggests that multiple punishment is required, as a matter of law, for the single act of a felon possessing a firearm and carrying a loaded firearm or concealing it. The decision of the Court of Appeal improperly divests the trial court of its discretion to determine, based on the facts of the case, the intent and objective of the defendant.’ Andthatrationale ignores that the Legislature has already lowered the threshold for behavior by felons. Any possession of a firearm anywhere is prohibited. It is a fair assumption that felons’ guns would be loaded and concealed. (The original version of section 12021 even applied only to concealable firearms.) (See People v. Mills (1992) 6 Cal.App.4th 1278, 1282. Appellant acknowledges “The law presumes the dangeris greater whenthe person possessing the concealable firearm has previously been convicted of felony, and the presumption is not impermissible.” (People v. 3 Tt should be notedthat it is not only felons who would be automatically subjected to multiple punishment under the reasoning of Harrison, supra, | Cal.App.3d 122, and of the Court ofAppealin this case. If this logic is to be applied, then any minor who unlawfully possesses a weaponin violation Penal Code section 12101, subdivision (a) and committed another offense involving possession of a weapon, such as a violation of section 12031 or 12025, would also be subjected to multiple punishment simply becauseofhis or her age. And yet, most minors do not present a clear and present dangerto society. 15 t a Bell (1989) 49 Cal.3d 502, 544.) And the Legislature may provide for increased punishmentfor an offense that has more serious consequencesby, for instance, raising the statutory prison terms, adding enhancements, or upgrading the offense from a misdemeanorto a felony. (Wilkoffv. Superior Court (1985) 38 Cal.3d 345, 352.) The Legislature could have very easily limited the applicability of section 654 to section 12021, as it has done in other contexts. (People v. Norrell (1996) 13 Cal.4th 1, 5-6.) For example, Penal Code section 667.6, subdivision (c) provides an exception to allow imposition of multiple punishmentfor multiple acts of certain sex offenses that were committed during a single transaction. (See People v. Hicks (1993) 6 Cal.4th 784, 792 [the enactment ofPenal Code section 667.6, subdivision (c), created an exception to Penal Code section 654].) The Legislature could have provided a similar exception within section 12021 itself. Alternatively, had it wanted to, the Legislature could have converted section 12021 to a status enhancement which would not be subject to the section 654 prohibition. Since 1995, when this Court decided People v. Coronado (1995) 12 Cal.4th 145, it has been settled that Penal Code section 654 does not apply to status- type enhancements. (See also People v. Reeves (2001) 91 Cal.App.4th 14, 16 55-56.) The Legislature is presumed to know the existing case law. (People v. Green (1996) 50 Cal.App.4th 1076, 1090-91.) However, the Legislature has not chosento limit the application of section 654 in this context. Instead, what the Legislature has chosen to do is to upgrade the penalty for other weapon possession offenses in the Dangerous Weapons Control Act when the defendant is convicted under those sections andis also an ex-felon whois prohibited from possessing a weapon by virtue of that status. Two examplesare the very statutes at issue in this case, section 12025 and 12031. Penal Code section 12025, subdivision (b)(4) increases the punishmentfor carrying a concealed weapon in a car from a wobblerto a felony based on the defendant’s status as a felon. It provides: ““Where the personis not in lawful possession of the firearm, as definedin this section, or the person is within a class ofpersons prohibited from possessing or acquiring a firearm pursuant to Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony.” Similarly, Penal Code section 12031, subdivision (a)(2)(D) increases the punishment for carrying a loaded firearm in a public place from either a misdemeanoror a wobbler to a felony based on the defendant’s status as a felon. It provides: “Where the person is not in lawful possession of the 17 firearm, as definedin this section, or is within a class ofpersons prohibited from possessing or acquiring a firearm pursuant to Section 12021 or 12021.1 of this code ..., as a felony.” Thus, although the Legislature has been aware of the Neal“intent and objective” test for some time, it has chosen notto limit the application of section 654 whenthe offender has a prior felony conviction. So, the conclusions of both the Court of Appeal and the Harrison court that Penal Code section 654 should not apply merely because ofthe defendant’s status as an ex-felon is not sound. The Legislature has already taken that into consideration. Atleast one court has questioned whether the reasoning in Harrison is still persuasive. In People v. Manila (2006)139 Cal.App.4th 589, the court rejected an argumentthat the defendant, a convicted felon, could be charged with both a firearm-possession enhancement and with the violation of section 12021 for his possession of a firearm. Defendant in that case was primarily charged with narcotics possession. Respondent argued that section 654 did not proscribe the charging of both the weapon enhancementand the violation of section 12021 because the gun possession involved the multiple objectives of protection of the narcotics as well as protection of the defendant. However, the court rejected the argument, finding that such 18 a p reasoning "parsed the objectives too finely.” In so holding, the Manila court "declined to commenton the persuasivenessofth[e] reasoning,” given by the court in People v. Harrison, supra, 1 Cal.App.3d at page 122, to support its finding of multiple objectives for violations of sections 12021 and 12031. Ud. at p. 600.) In appellant’s case there is no evidence of multiple objectives. To find otherwise would similarly “parse the [appellant’s] objectives too finely.” Whetheror not Harrison was wrongly decided, the sentence for violating section 12025 should nevertheless have been stayed inthis case. The Harrison court concluded: “For an ex-convict to carry a concealable firearm is one act. But loading involves separate activity.” (Peoplev. Harrison, supra, | Cal.App.3d at p. 122.) Here, appellant is being doubly punished for his status as an ex-felon and for the separate act of concealment, not loading. When Harrison was decided, concealment was an element of section 12021. (/d. at p. 118.)* Thus, the act of concealment * Thestatute disallowed any person, previously convictedofa felony, to own, possess, or have “under his custody or control any... revolver ... capable of being concealed upon the person.” (/bid.) Section 12021 was amended in 1989, effective January 1, 1990, to prohibit possession of any firearm. (People v. Mills, supra, 6 Cal.App.4th at p. 1282.) 19 “0 wasconsidered part and parcel of the prohibited possession bythe felon. Instead, the Harrison court focused on the defendant’s separate act of loading. But, in this case, appellant did not load the weapon. Thereis undisputed evidence before the court that the weapon wasalready loaded whenappellant took possession of it. (RT 29.) Even under the expansive (and incorrect) reasoning of Harrison, punishmentfor the conduct of possessing and concealing the gun are precludedin appellant’s case. And even the Harrison court assumed that a defendant who wasa felon cannot be punished for both possessing and concealing a firearm, as concealment was part of the offense. Cases may not be considered authority for propositions not considered therein. (People v. Norrell, supra, 13 Cal.4th at p. 18.) The prosecutor himself recognized there wasbut a single act in this case. In closing argument the prosecutortold to the jury that the case involved “three different counts for the same exact conduct.” (RT 119, emphasis added.) The prosecutor explained: It’s not a situation where we’re trying to pile on and add extra punishment — there we go with that word again, something we’re not to consider — to Mr. Jones. What we want the jury to do is look at the facts, determine what the facts are, look at the law — and here we’ve got three specific laws that we’re talking about — and answerthe question did a violation of the law occur or not. Okay? 20 a s Andthen, if we find somebodyguilty, we turn it over to the judge whoultimately would have a chance to render a judgmentor sentence. Okay? Andit’s at that time thatall of the information would be before the judge as far as things that are helpful or not helpful in making the decision on the issue ofpunishment. So no one’s trying to stick it to Mr. Jones by putting three different counts togetherfor the same incident. That’sjust not what’s going on here.” (Ibid, emphasis added.) The prosecutor’s argument makes sense becausein reality, many if not most convicted felons who violate section 12021 will also violate another section in the Dangerous Weapons Control Act (Pen. Code, § 12020 et seq.). Most ex-felons whointend to violate section 12021 would presumably violate section 12025 at some point during their possession of the weapon. Since the ex-felon knowsheorsheis prohibited from possessing the weapon, concealment of the weapon would be the meansto successfully possessit.° "(Flew if any crimes, .. ., are the result of a single physicalact." (Neal, supra, 55 Cal.2d at p. 19.) In resolving section 654 issues, appellate courts should not parse the objectives too finely. (People v. Britt, supra, 32 Cal.4th 944, 953.) That is what the Court of Appeal did here, as did the ° Otherwise,ifthe ex-felon who possessesa firearm in violation of section 12021 did not also violate 12025, then he or she would likely commit the offense of brandishing a firearm (Pen. Code, § 417), and again automatically be subject to multiple punishment under the reasoning of the appellate court. 21 Harrison court. The reasoning ofHarrison should be disapproved because it strays from the plain language of section 654, and incorrectly applies the Neal“intent and objective” test by parsing the defendant’s objectives too finely. F. Inre Hayes, supra, 70 Cal.2d 604, Also Does Not Mandate Multiple Punishment. Although notcited by the Court of Appeal, Jn re Hayes, supra, 70 Cal.2d 604, does not compela different conclusion. As noted above, that case focuses on the criminality of acts, and not their essential elements. In Hayes, the defendant received separate sentences for driving under the influence (Veh. Code, § 23102) and driving while knowingly having a suspendedlicense (Veh. Code, § 14601). The crimes were based on the single act of driving 13 blocks withouta valid license and while intoxicated. This court, in a 4-3 opinion, upheld multiple punishments. (/n re Hayes, supra, 70 Cal.2d at p. 605.) | The majority recognized that the single act of driving was common to both crimes. (n re Hayes, supra, 70 Cal.2d at p. 606.) Nevertheless, relying on cases where the Courts ofAppeal had rejected the application of section 654 to the possessing of two different types of drug contraband, the Hayes majority found it paramountthat section 654 does not refer to any physical act or omission, but rather to criminal acts or omissions. (Jn re 22 c e Hayes, supra, 70 Cal.2d at pp. 606-607.) So, the analysis requires isolation of the various criminal acts, and review of those criminal acts for identity. (Ibid.) The majority reasoned that while the two crimes involved the same underlying act of driving, the mere act of driving is not made punishable by any statute. (/d. at pp. 607, 611.) The twodistinct criminal acts were unlicensed driving and drunk driving. (/d. at p. 607) One violation was not a “‘means’ toward the other.” (Id. at p. 609.)° The simultaneity of the offenses was “fortuitous” and did not reduce the defendant’s culpability. (Ud. at pp. 607-608.) It is “the criminal ‘act or omission’ to which section 654 refers.” (/d. at p. 610, emphasis in original.) Likewise, “‘it is the criminal‘intent and objective’ that [the Court] established asthetestin. Neal.” (Ibid., emphasis in original.) The criminality of the acts and their objectives were separate in Hayes. (/d. at p. 611.) Interestingly, the dissenters in Hayes would have applied section 654, finding it dispositive that the two offenses shared the same essential element of driving. (im re Hayes, supra, 70 Cal.2d at pp. 611-617 [‘there is no requirementthat the act commonto both crimes be punishable before ° In People v. Beamon (1973) 8 Cal.3d 625, The Court subsequently stresses this part of the Hayes holding. “[N]either of the Hayes violations, although simultaneously committed, was a means toward the objective of the commission of the other. (People v. Beamon, supra, 8 Cal.3d at p. 639.) 23 section 654 comesinto play.”]; and see Jn re Chapman, supra, 43 Cal.2d 385, 389-390 [the multiple-punishment bar of section 654 applies where two offenses share one or moreessential elements.].) Hayesis distinguishable from appellant’s case. Unlike in Hayes, in this case the concealmentviolation was “a means towardsthe objective of the commission ofthe other” offense. (See People v. Beamon, supra, 8 Cal.3d at p. 639.) Appellant intended to possess a weapon for protection. But, because appellant was an ex-felon who was prohibited from possessing such an item, logically, he needed to concealit. Onthis point, People v. Britt (2004) 32 Cal.4th 944,is instructive. Britt moved from one county to another and was convicted of two violations of section 290: failing to register his change of address with the county he left (Pen. Code, § 290, subd. (f)), and failing to register his address with the county into which he moved (Pen. Code, § 290, subd. (a).) (Id. at p. 949.) The Court ofAppeal had concluded multiple punishment was permissible because Britt had two objectives: “(1) to mislead law enforcement andthe residents of one community to believe that the sex offender remains there; and (2) to conceal from law enforcement and the residents of another community the fact that the sex offender is now residing in that community.” (/d. at p. 953.) This Court reversed and held 24 that while Britt could be prosecuted for violating both subdivisions of the statute, he could not be punished for both violations. (/d. at p. 954.). The Court found Britt engaged in only one course of criminal conduct for purposes of section 654. Both offenses were necessary to achieve his single objective -"to prevent any law enforcement authority from learning ofhis current residence." (/d. at p. 952.) The Court recognized “[t]hese are separate, albeit closely related, requirements.” (/d. at p. 951.) But "[s]ection 654 turns on the defendant's objective in violating both provisions, not the Legislature's purpose in enacting them." (/d. at p. 952, [italics in original].) In Britt, this Court rejected the respondent’s reliance on Hayes, supra, 70 Cal.2d 604, because “each failure to report was ‘a means toward the objective of the other.” (People v. Britt, supra, 32 Cal.4th at p. 953.) The same istrue in this case. Hayesis also distinguishable on a separate ground. In contrast to the Vehicle Code provisionsat issue in Hayes, as previously notedin the Deadly Weapons Control Act, the Legislature has accounted for the defendant’s status as a felon in possession of a weaponin related statutes by increasing punishmentforthe criminal actof illegal possession based on status. In this case, appellant was charged and convicted under Penal Code 25 section 12025, subdivision (b)(6), the unregistered-owner wobbler provision, instead of under subdivision (b)(4), the convicted-felon provision. (CT 8, 60.) But he received the same punishmentas he would have received had he been charged under subdivision (b)(4). Had he been charged under the equally-applicable, alternate subdivision, it would be clearer that appellant suffers multiple punishment if sentenced under section 12021 and section 12025. The sameis true of the other count of conviction in this case. Appellant was charged and convicted under Penal Code section 12031, subdivision (a)(2)(F) (unregistered owner), instead of under subdivision (a)(2)(D) (ex-felon). (CT 9, 61.) Had he been charged underthe alternate subdivision, it would be clear that appellant suffers multiple punishmentif sentenced undersection 12021, and section 12031. Asnoted above, the prosecutortold the jury that it was not seeking to “pile on and add extra punishment”for three counts involving the same exact conduct. (RT 119.) Given this argument, and given the fact that the prosecutor did not express disagreement with the recommendation made in the probation report that section 654 should be applied to two ofthe three counts of conviction (see Opinion,p. 4), it is quite likely the prosecutor mistakenly charged the wrong subdivision. Otherwise his argumentto the 26 a e jury would have been misleading. But in any event, unlike the statutes at issue in Hayes, the three statutes at issue here already take appellant’s status as a felon into consideration. Finally, it should be noted that Hayes, supra, 70 Cal.2d 604, provides no support for the Court ofAppeal’s conflation of criminalintent and legislative purpose in deciding whether to apply section 654. As noted in Chief Justice Traynor’s dissent, the respondent madea similar argument in Hayes. (In re Hayes, supra, 70 Cal.2d at pp. 613-614.) But the Hayes majority did not adopt, or even mention, this argument. Nor could it have without disapproving Nealitself. A legislative-purpose exception to the Nealrule, as used by the Court of Appeal, would effectively swallow it. Again, this point was clearly made recently in People v. Britt, supra, 32 Cal.4th 944, 952: “Section 654 turns on the defendant’s objective in violating both provisions, not the Legislature’s purpose in enacting them.”- (Emphasis inoriginal.) G. Applyingeither Neal or Bradford to the Facts of this Case, the Sentence on Count Two Should Have Been Stayed In this case, the court had before it uncontroverted evidence of appellant’s intent and objective. Appellant told police officers that he purchasedandcarried the gun for protection. (RT 28.) Consistent with that purpose, the weapon waseither in a residenceorin the car he occupied 27 during the time he possessed it. And, as the Court ofAppeal acknowledged, “Defendant did not use his gun to commit a nonpossessory crime.” (Opinion, p. 6.) Because there was evidence of appellant’s intent and objective before the court, the Neal “intent and objective” test should have been applied. Under Neal, the question was whether the appellant had a single intent and objective in committing the charged offenses. The answerto that question is, “yes” - self-protection. Thus, this single objective precludes multiple punishment. The analysis does not change because possession ofa firearm is viewed as a continuing offense. (People v. Mesa (2010) —_Cal-App.4th __ [D056280, July 13, 2010] 2010 DIDAR 10911; People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) Crimes of a continuing nature, such as possession offenses, may at times present a challenge with respect to the application of section 654 because the defendant’s intent and objective may change during the pendencyofthe crime. But that is not the case here. There was no evidence before the court that appellant’s intent in possessing the gun changed during the time he had control overit. The only evidence before the court wasthat he had the gun in his possession for protection. Because the Neal “intent and objective” test was satisfied here, the court should have applied section 654 to stay the sentence on count two. 28 K S & S q e F In addition to satisfying the Nealtest, this case also meets the Bradford test. In Bradford, supra, 17 Cal.3d 8, an officer pulled the defendant overfor a traffic violation. The defendant got out ofhiscar, approachedthe officer, wrestled the officer's weapon away from him, and shot him. (/d. at p. 13.) After the defendant was convicted of, inter alia, assault with a deadly weapon upon a peace officer and possession of a firearm by a felon, the court imposed concurrent sentences for these offenses. (/d. at pp. 19, 22.) As noted above, in determining whetherto apply section 654 to a section 12021 violation, this Court adoptedthe test used in People v. Venegas, supra, 10 Cal.App.3d 814: “Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where the evidence showsa possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence showsa possession only in conjunction with the primary offense, then punishmentfor the illegal possession of the firearm has been held to be improper whereit is the lesser offense.’” (People v. Bradford, supra, 17 Cal.3d at p. 22 [citations omitted].) The Court then concluded appellant’s possession of the revolver “was not ‘antecedent and separate’ from his use of the revolver in assaulting the officer.” (/d. at p. 22.) Imposition of sentence for the lesser crime -- 29 ex-felon in possession of a gun, was therefore prohibited by section 654. (Id. at pp. 22-23.) In this case, the appellate court rejected a theory of antecedent possession becausethe prosecutor did not argue appellant’s guilt stemmed from possession of the gun three days before his arrest. (Opinion,p.6.) Nevertheless, appellant anticipates respondent will argue, as was done in the appellate court, that possession in this case was antecedent and separate because appellant said he purchased the gun three days before it was found in the car. This position arguably finds support in a line of cases which hold that “if the evidence demonstrates at most that fortuitous circumstancesputthe firearm in the defendant’s hand only at the instant of committing another offense, section 654 will bar a separate punishmentfor the possession of the weapon by an ex-felon.” (See People v. Ratcliffe (1990) 223 Cal.App.3d 1401, 1412; see also People v. Jones (2002) 103 Cal.App.4th 1139, People v. Garcia (2008) 167 Cal.App.4th 1550, 1565- 1566.) This line of authority narrowly reads Bradfordto assert that application of section 654 should be limited to facts like those in Bradford, something the Court in Bradford never suggested. Had the Court intended application of section 654 only in the unusual circumstance wherethe ex- 30 a b felon fortuitously obtains possession of the weapon at the moment another offense is committed, the Court would havestated the rule differently. It would havebeen sufficient to say that section 654 barred multiple punishmentfor a section 12021 offense where the evidence showed antecedent possession alone. The Court need not have mentioned that the possession also had to be separatefrom the primary offense. The use of these words by the Court could not have been accidental, and the choice of phrasing makessense. Possession offenses are “instantaneous” crimes,in that they are complete as soon as the offender obtains possession of the controlled item. (See e.g., People v. Ratcliff(1990) 223 Cal.App.3d 1401, 1410.) But unlike most other instantaneous crimes, possession offenses are also “continuing” offenses in that each day brings “a renewalofthe original crime or the repeated commission ofnew offenses.” (Wright v. Superior Court (1997) 15 Cal.4th 521, 525-529, quoting Toussie v. United States (1970) 397 U.S. 112, 119 [90 S.Ct. 858].) All of appellant’s conduct in these continuous crimes was incident to one basic objective, despite the fact that the jury could have convicted him based on acts that spanned three days. “‘Neither clocks, calendars nor county boundaries convert one 999continuing course of conductinto a series of criminal acts.’” (/n re Hayes, 31 as supra, 70 Cal.2d at p. 609, fn. 8.) At anyrate, the jury could have just as likely convicted appellant based upon conduct occurring in a single day, as appellant told the officer he had just picked up the gun from his grandmother’s house and that is why it was in the car. (RT 61.) Thisis, after all, the argument the prosecutor advanced. (RT 119.) Section 654 thus prohibits separate punishment for each crime.’ Appellant is not arguing that whenever an ex-felon violates section 12021 by unlawfully possessing a weapon,he or she gets to commit another crime without the threat of additional punishment. But multiple punishment is prohibited when the other offenses consist of “passive” conduct, such as the commission of other possessory crimes involving the same weapon. On the other hand, if a defendant actively uses the firearm, such as by discharging it, brandishing it, or using it to commit a crime of violence, then that conduct is separate from the act of possession. In such an event multiple punishment for the various offenses may be proper. Applying section 654 in this manner would not render section 12021 a nullity 7 Andhad appellant’s car had been stopped by police immediately after he purchased the weapon from the man onthestreet, applying the rationale of the Court of Appeal, even underthose circumstances, appellant wouldstill be subject to multiple punishment because ofthe fact the gun wasconcealed. 32 e d wheneverthe ex-felon is convicted of another crime. But it would advance the purpose of section 654: insuring that the defendant’s punishmentis commensurate with his culpability. (Neal, supra, 55 Cal.2d at p. 20.) Here, appellant possessed the gun in violation of severalstatutes, but did not actually use the gun to commit other crimes. Nor washis intent and objective different as betweenthe statutes violated. Becauseall of his offenses were exclusively possessory, involving the same weapon,he should not suffer multiple punishment. The other twostatutes at issue already accounted for appellant’s status as a convicted felon by containing an enhanced sentence. As shownabove,section 654 applies under twoofthe tests delineated by this Court. Both Neal and Bradford were binding on the appellate court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Under either of those decisions count two should have been stayed.* If the Court were to adopt the Court of Appeal’s position, it would have to overrule not only Neal, but also Bradford and Britt. Instead, this 8 Aslongas section 654 applies under any onetest, a contrary result underanothertest is irrelevant, and multiple punishment is barred. (dn re Hayes, supra, 70 Cal.2d at p. 606, fn.1.) 33 Court should disapprove Harrison, supra, 1 Cal.App.3d 115, which ignores the plain meaning of section 654 andfails to follow the intent and objective tests set forth in Neal. Seventeen years ago in People v. Latimer, supra, 5 Cal.4th 1203, the Court considered the on-going validity ofNeal, which wasat that time 30- year-old precedent, and decided to uphold it. This Court has recognized that it should not lightly set aside its own well-established precedent. (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 503.) Now Neal has been precedent for nearly 50 years, and Bradford has been on the books for 34 years. “At this time, it is impossible to determine whether, or how, statutory law might have developed differently had this court’s interpretation of section 654 been different.” (People v. Latimer, supra, 5 Cal.4th at p. 504.) It is now up to the Legislature to make such changes. (/d. at p. 1216.) G. Should This Court Fashion A New Rule For Penal Code Section 654 Focusing On Legislative Purpose, It Should Not Be Applied Retroactively to Appellant. If this Court decides to adopt a new “statutory-purpose”test for the application of Penal Code section 654, it should not be applied to appellant. “Tf a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressedprior to the 34 a e 999conductin issue,” it must not be given retroactive effect.’” (People v. King (1993) 5 Cal.4th 59, 79-80, quoting Bouie v. City ofColumbia (1964) 378 USS. 347, 354 [84 S.Ct. 1697, 1702-1703, 12 L.Ed.2d 894].) To do so would violate due process. (U.S. v. Lanier (1997) 520 U.S. 259, 266 |.) A “statutory-purpose”test for interpreting section 654 would be both unexpected and unforeseeable becauseit is not only completely at odds with Neal, but also with the legislative purpose of section 654itself- to ensure the defendant’s punishment is commensurate with his culpability. Due process requires appellant’s case be consideredin light of this Court’s precedentat the time. 35 CONCLUSION The reasoning of the appellate court in the case, as well as that of the Harrison court confuses the perpetrator’s intent, which is the inquiry under Neal, with the intent of the Legislature in enacting the laws. In effect, the Court of Appealtried to judicially amend thestatute and ignoredthe. principles enunciated by this Court in Neal and Bradford. Therefore, the decision of the Court of Appeal for the Third Appellate District should be reversed to the extent that it upheld concurrent sentences on counts one and two. Dated: July 16, 2010 36 Respectfully Submitted, CENTRAL CALIFORNIA APPELLATE PROGRAM GEORGE BOND Executive Director SANDRA URIBE Staff Attorney SBN 183369 2407 J Street, Suite 301 Sacramento, CA 95816 (916) 441-3792 Attorney for Appellant CERTIFICATE OF LENGTH I, Sandra Uribe, counsel for appellant, certify pursuant to the California Rules of Court, that the word count for this document is 7986 words, excluding the tables, this certificate, and any attachment permitted underrule 8.360(b)(1). This brief therefore complies with the rule which limits a computer-generated brief to 25,500 words. This document was prepared in Word Perfect, and this is the word count generated by the program for this document. I certify under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed, at Sacramento, California, on July 16, 2010. Sandra Uribe Attorney for Appellant 37 3 DECLARATION OF SERVICE I, the undersigned, declare as follows: I am citizen of the United States, over the age of 18 years and not a party to the within action; my business address is 2407 J Street, Suite 301, Sacramento, CA 95816. On July 16, 2010, I served the attached APPELLANT’S OPENING BRIEF ON THE MERITS by placing a true copy thereof in an envelope addressed to the person(s) named belowat the address(es) shown,and by sealing and depositing said envelope in the United States Mail at Sacramento, California, with postage thereonfully prepaid. There is delivery service by United States Mail at each ofthe places so addressed,or there is regular communication by mail between the place of mailing and each of the places so addressed. Office of the Attorney General Court ofAppeal P.O. Box 944255 Third Appellate District Sacramento, CA 94244-2550 621 Capitol Mall, 10" Floor Sacramento, CA 95814 Jarvonne F. Jones V-66069 P.O. Box 600 (DVI) Tracy, CA 95378 Sacramento County District Attorney 901 G Street Sacramento, CA 95814 Sacramento County Superior Court 720 9" Street Sacramento, CA 95814 I declare under penalty of perjury that the foregoing is true and correct. Executed on July 16, 2010, at Sacramento, California. DECLARANT