PEOPLE v. JONES

Respondent’s Answer Brief on the Merits

Cal.October 18, 2010

SUPREME COURT COPY. in the Supreme Court of the State of California THEPEOPLE OF THE STATE OF CALIFORNIA, Case No. $179552 | SUPREME COURT FILED JARVONNE FEREDELL JONES, Plaintiff and Respondent, OCT 18 2010 Defendant and Appellant.: Frederick K. Ohirich Clerk Third Appellate District, Case No. C060376 ~ Deputy Sacramento County Superior Court, Case No. 08F04254 The Honorable Jaime Roman, Judge ANSWERINGBRIEF ON THE MERITS EDMUND G.BROWN Jr. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General CARLOS A, MARTINEZ Supervising Deputy Attorney General JENNEVEE H. DE GUZMAN Deputy Attorney General State Bar No. 197817 © 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 327-1145 Fax: (916) 324-2960 Email: Jennevee.DeGuzman@doj.ca.gov Attorneysfor Respondent CO PY TABLE OF CONTENTS Page Tssue Presented ...........cccceescssscsseeseseeessceesaceeseceseeseneessnecsaeeseeuceeseeeaeseeseerseeeey | TntrOduction.,..........:cesesesssevesnersneecesneeseseceescnscecsueeceaeeenereseeseesaeecseaseceaeeraeessa Statement of the Case .........cccesccessevessesseessecseessecseesesenseeseecseaeeseneseeesaepeatens 1 Statement Of Facts... cececssecsssecceseeeseecsneeeseecsaeecsseeseesesaneesessceeeseeeeaeesees 2 Summary Of ArQument oo...eee eeeseceeseceseetseeeeeaeeseseesseereeneceessnessesessasensans 3 ARGUMENT....0....ccccsecccessceseeeseeeessserseeeaceesesensseseseeeneceeeesessaessesenesneesaeeey 4 THE TRIAL COURT PROPERLY IMPOSED CONCURRENT SENTENCES ON COUNTS ONE AND TWO A, General principles..........cccceesssceeccceseeesnenerersacereacenseseees 4 B. Thetrial court correctly imposed concurrent . sentences on counts one (unlawful possession of a firearm) and two (carrying a concealed WEAPON) 0... eeeeeesseeceeneesensceeeseeeceseseecesaeecesesenennersaeereeess 6 C. The Harrison Case ...ccccccceccccssccecscessecesseceeesseterseeneees 10 D. In re Hayes is Imstructive........ eee eeeeseeseeeceeeeeeeereneee 15 CONCIUSION 00... eeeeeecneeeesseeseeeescecestseeceaeeecseenseeesaceceseeseaeeeeeeseueeeeenreeneseaeees 19 Certificate of Compliance...ceceescssscsecesecsseeseeeneeeaeeeaeecseeeceeeeerenessetes 1 TABLE OF AUTHORITIES Page CASES In re Hayes (1969) 70 Cal.2d 604...esLaseveseeseevaveeeeserecererseaseasenes 15, 16, 17, 18 Miranda v. Arizona (1966) 384 U.S. 436 ooccesseseceneceseesersensesseeessseeseceeessteaesasesaeeseeseesseeeees 3 Nealv. State ofCalifornia (1960) 55 Cal.2d V1 ooecescesecsrscesecesseseseesssessecsseesatersteretensessesespassim County ofLos Angeles v. Workers' Comp. Appeals Ba. (1981) 30 Cal.3d 391oeeaccnecsserscstersereseressscseersseeeratsseseeseersteeeenees 15 People v. Andra (2007) 156 Cal.App.4th 638occeeeseceseessscecessceseesseeseesevsesseeeeesseeasereenes 9 People v. Beamon (1973) 8 Cal.3d 625 oeceecccccsersecesecsecesecsetestecsseeeesesseseesrecssersessesetaee 6,17 People v. Bell (1989) 49 Cal.3d 502 occccssereccesecsseceesesecesessesaecsesesesseesersecesseeraseareneeees 7 People v. Bradford (1976) 17 Cal.3d 8 voce ccceeseeceseesteesnerseesseeseeeeteesetesesseeseenesseesees 7,12, 13, 14 People v. Britt (2004) 32 Cal.4th 944oooccssecseecsecrecssesseesseenaessaesssssessessaeensspassim People v. Cleveland (2001) 87 CalApp.4th 2630.ccceecesssenecssscesresserscessecsesenssaveaserevseesssesevanens 5 People v. Cooper (1996) 43 Cal.App.4th 815oeeeceseccsessecesresscesecseessseseesseaesseeneessseseenees 15 People v. Escobar (1992) 3 Cal.4th 740occecsscesseessevseceeseeseversneeenessececeeesecsesasenseseeeees 15 People v. Garfield (1979) 92 Cal.App.3d 475 ...ccccccecesseseeeseeeerserneesteeseens piesenevenetaeeeseeesateneeseees 8 ii People v. Hairston (2009) 174 Cal.App.4th 231 oo. cceccecsecsreneesscesrsecneeseesseeseserserseseassaeeneeenees 4 People v. Harrison (1989) 48 Cal.3d 320 oo. ceecesseeeceeetececeeeeneenecssesseseeseeeesasseseseeeresseseaees 5 People v. Harrison (1969) 1 Cab.App.3d 115 occceecsccssesecesssessesseesecseesseeneseestsesensonntespassim People v. Herrera (1999) 70 CalApp.4th 1456 oo.cccsessereneeresesesseseessesssesenesseeteresaeenees 5 People v. Hodges (1999) 70 Cal.App.4th 1348 oo.eeessccessetenessesenersenssessesesevecsaesesesnesees 10 People y. Hutchins (2001) 90 Cal.App.4th 1308 oo... eseeescssscsenssteensesssesessesseseneeraeserereteeees 5 People y. Jones (2002) 103 Cal.App.4th 1139oceeeeeenerseeseteeesesaeeerserseeneeaee 5, 7, 8, 13 People vy. Killman (1975) 51 Cal.App.3d 951 cc cccccscscssersesecsecsecsecseeevsecsecescesceeceeseesrteeteeeas 7 People v. King (1993) 5 Cal.4th 59oones cscs secescsesasscsesceccecasesseeeseersepersseseeenenes 15 People v. Latimer (1993) 5 Cal4th 1203 ooo eeccecseceseeseseececsessesaeleaeesseeeneseseesvareens 4,6, 15 People v. Maestas (2006) 143 Cal.App.4th 247 ooo cccccesssscserscnenssssesecssnssecnsesecssssssecaenssnseenes 8 People v. Meeks (2004) 123 CalApp.4th 695 ooocecssecsereeenscsesecesessersecsereteeeeeseeeenees 18 People v. Osband (1996) 13 Cal4th 622 0... ecccecccecssceeeessesesesecscesceecsaeesesatesesesaesaeeaeenes 5,15 People v. Pepper (1996) 41 CalApp.4th 1029 oeseeeseeeesesneeeestesnecsnesnissneesnssnesensseeenenny 6 People v. Perez (1979) 23 Cal.3d 545 oooeseeeeseeenectscssensessescsensesesessesseressesaveeneenees 5,15 People v. Ratcliff (1990) 223 Cal.App.3d 1401]oeeseeseeseeeeneeceteresserseeessesenees 7, 8, 9, 13 ill People v. Ratcliffe (1981) 124 Cal.App.3d 808 ooo. cececeesecenseeseceevssesseesseeeseesseessesseeseeees 10 People v. Venegas (1970) 10 CalApp.3d 814oeeecccseeseeeseeeseccaeeneeseeeeesseeeseesanenes 7, 13,14 People v. Yang Vang (2010) 184 Cal.App.4th 912 0... eececseccsecsseetecsscesesseesseecenecseeeeneeseeenaes 10 STATUTES Penal Code § O54 veicceccccesssecssscesceessceereesseccsevenecseeveaeeceseeceseecesesesessneseaeeesateseueseneeeespassim § 654, Sub. (A)... eseeecceseeeseesseensetsrereeees sseaseenenenecneseacoessenceseesensrenenensneneess 4 § 667.5, SUD. (D)oeeececcescecececescenesesceeseeescecsersecseesseseeeenaeeessesesenseeseeanee 2 § 12021 oeeeececeseceeceeeeneccsecessecseesecesseceeeeaecescecseeseecsrersnaeeeseeertaeeespassim § 12021, subd. (a)1)....eeceecesesseceeeeenecsseecsecsarecetareseesaersaeceaeesaeeeaeenas 1,6 § 12025 ooo ecccescessetsensceseeneessersecsecseeeseessesscerseesaesnesacsersseseneesasesseenaseseetats 10 § 12025, subd. (b)(6) «0...eee eeessceeeseeneeenssseensssesassesesesesaesecsnscnseaesnsens 1,2 § 12031, subd. (a)(2)(f).... ccc seccseseesesecsecesececesseeseeseseeaeceseererseessevseeaeeeaseas 2 IV ISSUE PRESENTED Did the trial court properly impose concurrent sentences for being a felon in possession of a firearm (Pen. Code’ section 12021, subd. (a)(1)) and carrying a loaded, concealed firearm (Pen. Code section 12025, subd. (b)(6)) under the present circumstances? (See Pen. Code, § 654; People v. Harrison (1969) 1 Cal.App.3d 115, 121-122.) INTRODUCTION Police officers stopped a vehicle appellant was driving and found a loaded revolverin the front driver’s side door panel. Appellant admitted that he had purchased it three days prior for protection, keptit at his grandmother’s house, picked it up from her house, and placedit inside his car. Appellant was convicted of the unlawful possession of a firearm (count one), carrying a concealed weapon (count two), and carrying a loaded firearm in public (count three). The trial court sentenced appellant to four years in state prison, imposing concurrent sentences on counts two and three. On appeal, appellant argued counts two and three should have been stayed pursuant to section 654. The Court of Appeal agreed as to count three, but upheld the concurrent sentence imposed on count two. Appellant now challenges the imposition of the concurrent sentence on count two. STATEMENTOF THE CASE On September 25, 2008, the district attorney filed amended information number 08F04254 in Sacramento County Superior Court charging appellant Jarvonne Feredell Jones with the unlawful possession of a firearm (§ 12021, subd. (a)(1); count one), carrying a concealed weapon ' All further statutory referencesare to the Penal Code unless otherwise indicated. Roe RPHSEREINARIFEHeh 9 oo oe punkieet Sonedmice (§ 12025, subd. (b)(6); count two), and carrying a loaded firearm in public (§ 12031, subd. (a)(2)(f); count three). It was alleged that appellant had served a prior prison term within the meaning of section 667.5, subdivision (b). (CT 45-46.) Appellant waived formal arraignment and entered a not guilty plea. (CT 43.) . A jury was impaneledto try the case on September 25, 2008. (CT 43- 44.) The jury found appellant guilty as charged. (CT 54-56, 59-61.) On November5, 2008,the trial court sentenced appellant to four years in state prison as follows: count 1: upper term of three years; counts 2 and 3: upper term of three years, concurrent to the sentence imposedin count 1; and one year pursuant to section 667.5, subdivision (b). (SCT 1.) Appellant timely filed a notice of appeal on November 6, 2008. (CT 136-137.) On December | 1, 2009, the Third District Court of Appeal modified appellant’s sentence by staying the term imposed on count three and otherwise affirmed the judgment. On January 19, 2010, appellant filed a petition for review in this Court. On March 24, 2010, this Court granted the petition for review. STATEMENT OF FACTS On May26, 2008, at approximately 7:00 p.m., Sacramento Police Officer Bryan Weinrich stoppeda car at the corner of North 16th and North B Streets in Sacramentobecauseit did not have a rear license plate. (RT 19-22.) Appellant was the driver. (RT 23.) After the stop, Officer Weinrich conducted a search of the vehicle with the assistance of two other officers. (RT 22-23.) One officer found a loaded .38 caliber revolver on the front driver’s side door panel. (RT 25-26, 29-30, 72.) Officer Weinrich advised appellant of his Miranda’ rights, which he waived. (RT 27.) Appellant admitted that the gun washis, he had boughtit from a man on the street just three days before, and he boughtit for protection.’ (RT 27-28.) The parties stipulated that appellant was convicted of a prior felony on May 26, 2008, he was not the registered ownerofthe revolver, and an individual named Bobbie Richardson wasthe registered ownerofthe vehicle. (RT 87-88.) SUMMARY OF ARGUMENT Thetrial court properly imposed concurrent sentences on counts one and two because, underthe facts of this case, neither section 654 northe test as established in Neal v. State ofCalifornia (1960) 55 Cal.2d 11, 19 (Neal) barred the imposition of multiple punishment. Appellant committed twodistinct criminal acts, and each criminal act was committed with a different intent and objective. Thus, multiple punishment was warranted in this case. The Court of Appeal rejected this argument and instead upheld the concurrent sentences based on the rational andtest as set forth in People v. Harrison, supra, | Cal.App.3d at pp. 121-122. Respondent submits that the evidencein this case supported multiple punishment and that Harrison, to the extentit is consistent with Neal, also lends support for multiple punishment. * Mirandav. Arizona (1966) 384 U.S. 436. ; During cross-examination, Officer Weinrich testified that appellant further explained that he kept the gun at his grandmother’s house, but that he had picked it up from there and “that’s why the gun wasin the car.” (RT 60-61.) ARGUMENT 1. THE TRIAL COURT PROPERLY IMPOSED CONCURRENT SENTENCES ON COUNTS ONE AND TWO A. GeneralPrinciples Section 654, subdivision (a) provides in pertinentpart: An act or omission that is punishable in different ways by different provisions of law shall be punished underthe provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. The purposeof section 654 “is to insure that a defendant’s punishment will be commensurate with culpability.” (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Under the plain language of the statute, multiple punishment may not be imposedfor a single “act or omission.” (/bid.) However, “[c]ase law has expanded the meaning of section 654 to apply to more than one criminal act when there was a course of conductthat violates more than onestatute but nevertheless constitutes an indivisible transaction.” (People v. Hairston (2009) 174 Cal.App.4th 231, 240; see also Neal, supra, 55 Cal.2d at p. 19.)* Thus, “[w]hether a course of * The Court, in People v. Latimer, supra, 5 Cal.4th at p. 1211, was critical of the “intent and objective”test as set forth in Neal: Thesecriticisms have some merit. Byits language, section 654 applies only to “[a]n act or omission....” Nothing — in this language suggests the “intent or objective” test. As we have noted before, that test is a “judicial gloss” that was “engrafted onto section 654.” [Citation.] Whether it should have been is debatable.” This Court, however, more recently acknowledged: “[a] decade ago, wecriticized this test but also reaffirmedit as the established law ofthis state.” (People v. Britt (2004) 32 Cal.4th 944, 952.) criminal conductis divisible and therefore gives rise to more than one act within the meaning of section 654 dependsontheintent and objective of the actor.” (Neal, at p. 19; see also People v. Britt, supra, 32 Cal.4th at pp. 951-952; People v. Harrison (1989) 48 Cal.3d 321, 335.) If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. On the other hand,if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even thoughthe violations shared commonacts or were parts of an otherwise indivisible course of conduct. (Harrison, at p. 335, internal citations and quotations omitted.) Whethercrimes constitute an indivisible course of conduct is a question of fact for the trial court, and its findings will not be disturbed on appealif they are supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5; People v. Hutchins (2001) 90 Cal.App .4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) “We review the trial court’s determination in the light most favorable to the respondent and presumethe existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313; see also People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [trial court’s finding of 3339“separate intents’” reviewedfor sufficient evidence in light most favorable to the judgment].) Since Neal, the “test has generated a numberof refinements in the area wherethe test is applicable.” (People v. Beamon (1973) 8 Cal.3d 625, 638, fn. 10; see also People v. Latimer, supra, 5 Cal.4th at pp. 1211-1212 {cases decided since the Neal intent-and-objective rule have “limited the rule’s application in various ways,” including, in somecases, by “narrowly interpret[ing] the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment.”].) Consequently, there are “cases [that] have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted.” (Latimer, at pp. 1211-1212; see also People v. Britt, supra, 32 Cal.Ath at p. 952.) B. Thetrial court correctly imposed concurrent sentences on counts one (unlawful possession of a firearm) and two(carrying a concealed weapon) Section 12021, subdivision (a)(1), provides as follows: Any person who has been convicted of a felony under the laws of the United States, the State of California, or any otherstate, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony. The purpose of section 12021 is to protect the public by banning possession of firearms by those who are morelikely to use them for improper purposes. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1037.) “Penal Code, section 12021, is part of the legislative scheme originally promulgated in 1917 (Stats. 1917, ch. 145, p. 221, § 1) and commonly knownas the Dangerous Weapons Control Act.... (24a) The clear intent of the Legislature in adopting the weaponscontrol act wasto limit as far as possible the use of instruments commonly associated with criminalactivity [citation] and, specifically, 'to minimize the dangerto public safety arising from the free access to firearms that can be used for crimes of violence.’ [Citations.] The law presumesthe dangeris greater when the person possessing the concealable firearm has previously been convicted of felony, and the presumption is not impermissible. [Citation.]” (People v. Bell (1989) 49 Cal.3d 502, 544, internal citations omitted.) Whethera violation of section 12021 constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. (People v. Jones (2002) 103 Cal.App.4th 1139, 1144, citing People v, Bradford (1976) 17 Cal.3d 8, 22, People v. Venegas (1970) 10 Cal.App.3d 814, 821, internal quotations and footnote omitted.) “[WJhere the evidence showsa possession only in conjunction with the primary offense, then punishmentfor the illegal possession ofthe firearm has been held to be improper whereit is the lesser offense.” (Jones, at p. 1144, citing Bradford, at p. 22 [multiple punishment improper for assault with a deadly weapon upon a peaceofficer and possession of a firearm by an ex-felon convictions where defendant wrested away officer’s revolver and shotat the officer with it];see, e.g., Venegas, at pp. 818-819 [multiple punishment improper for possession of a firearm by an ex-felon and assault with a deadly weapon where no showing defendant had possessed the gun before the assault]). On the other hand, where the evidence showsa possession distinctly antecedent and separate from the primary offense, punishmenton both crimes has been approved. (People v. Jones, supra, 103 Cal.App.4th at p. _ 1144, citing People v. Killman (1975) 51 Cal.App.3d 951, 959 [defendant . “properly punished for his own personal possession of the gun before the robbery” where evidence demonstrated he purchased gun several months before robbery and had usedit for target practice]; see, e.g., People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412 [“. . . multiple punishment improper where evidence showsthat, at most, ‘fortuitous circumstances put firearm in defendant’s hand only at the instant of committing another offense.’”]; People v. Garfield (1979) 92 Cal.App.3d 475, 478 [defendant properly sentenced for burglary and possession of a weaponby a narcotics addict based uponhis possession ofa firearm stolen during the burglary; he had the weaponin his personal possession whenarrested six days after the burglary and had notstored it with the rest of the fruits of the burglary].) Thus, “[s]ection 654 is inapplicable when the defendantarrives at the crime scene already in possession ofthe firearm.” (People v. Maestas (2006) 143 Cal.App.4th 247, 255, citing People v. Jones, supra, 103 Cal.App.4th at p. 1141.) There, “it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime.” (/bid.) Once the intent to possess a firearm is perfected by the actual possession, the commission of a crime under section 12021 is complete. (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1414.) In the instant case, substantial evidence supports the trial court’s implicit finding that appellant’s possession of the firearm wasdistinctly antecedent and separate from the primary offense of concealingit in his car. (People v. Jones, supra, 103 Cal.App.4th at p. 1144.) It is undisputed that appellant had purchased the gun for protection three days before he was stopped by Officer Weinrich. (RT 27-28.) It is also undisputed that appellant had kept the gun at his grandmother’s house until he later decided to pick up the gun, which is why it was later found in the car. (RT 60-61.) Indeed, [c]ommission of a crime under section 12021 is complete once the intent to possess is perfected by possession. What the ex- felon does with the weaponlater 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. (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1414, citing People v. Harrison (1969) 1 Cal.App.3d 115; People v. Hudgins (1967) 252 | Cal.App.2d 174, 184-185.) Thus, appellant’s intent to possess the gun was perfected three days prior to the stop when he purchased the weapon, which he then kept at his grandmother’s house. (RT 27-28.) Appellant’s possession wasdistinctly antecedent and separate from his subsequent criminal act of physically taking the gun from his grandmother’s house and hiding it in the front driver’s side door panel. (RT 25-26, 29-30, 72.) Although the Court ofAppeal ultimately agreed that it was proper for appellant to be separately punished as between counts one and two,it rejected the above argument based on the following reasons: Defendant did not use his gun to commit a nonpossessory crime. Andthe People did not argue defendant was guilty of possession three days before his arrest: The prosecutor mentioned defendant’s admission that he bought the gun three days before to bolster the theory that defendant knowingly possessed the gun, not to base liability on possession before the date ofarrest. Accordingly, we question the theory of antecedent possession in this case. (Opinion, p. 6.) Appellant similarly relies on statements made by the prosecutor in support of his argument that multiple punishmentis barredin - this case. (AOB 20-21, 26-27.) He also similarly argues that he did not “use the gun to commit other crimes”and instead engaged in “passive conduct” in support of his argument that multiple punishment is barred in this case. (AOB 30-33.) Respondent submits that the prosecution’s decisions on how to charge the case or use the evidence are not factors to consider when determining whether multiple punishmentis barred pursuant to section 654. Rather, a defendant’s intent is a factual question. (People v. Andra (2007) 156 Cal.App.4th 638, 640.) It is well-settled that the trial court determines whether the defendant acted with a single, or multiple, criminal intents. (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 815.) Thus,its “findings _ will not be reversed on appealifthere is any substantial evidence to support them.” (People v. Yang Vang (2010) 184 Cal.App.4th 912, 916.) Consequently, the question of whether a defendant acted with a single or multiple criminal intents is determined by considering only the evidence producedattrial. Respondent further disagrees with the characterization that the crime of carrying a concealed weaponis always a “possessory” crime involving “passive” criminal conduct. Statutory terms are to be understood in their ordinary and usual meanings unless the context indicates otherwise. (Woosleyv. State ofCalifornia (1992) 3 Cal.4th 758, 775 [13 Cal.Rptr.2d 30, 838 P.2d 758].) To conceal is “1: to prevent disclosure or recognition of: avoid revelation of: refrain from revealing: withhold knowledge of: draw attention from:treat so as to be unnoticed .... 2: to place out of sight: withdraw from being observed: shield from vision or notice ....” (Webster's New Internat. Dict. (3d ed. 1993) p. 469.) (People v. Hodges (1999) 70 Cal.App.4th 1348, 1355; see also § 12025.) Underthese circumstances, the evidence demonstrated that appellant took the gun from his grandmother’s house, moved the guninto his car, and hid it on the passengerside door panel. (RT 26-27.) This is not “passive” criminal conduct. Even the Court of Appeal acknowledged asfollows: Here,as stated, after [appellant] purchased the gun, he concealed it in the car, or had someone concealit for him. Under the reasoning of Harrison just quoted, that act merits separate punishment from mere possession. Accordingly, a section 654 stay is not required as between counts one and two. (Opinion, p. 9.) Thus, as argued in moredetail above, appellant’s act of concealing the weaponin his car wasa separate anddistinct act involving an intent other than mere possession. C. The Harrison Case Relying on People v. Harrison (1969) 1 Cal.App.3d 115, the Court of Appealultimately held that multiple punishment wasappropriate as between count one and counts twoor three “because of the purpose of the 10 ban on felons possessing firearms... .” (Opinion, pp. 6-9.) In Harrison, officers recovered a loaded revolver from underneaththe right front seat of the vehicle defendant wasdriving. (Harrison, at pp. 118-119.) The defendant was convicted ofand received punishmentfor possession of a firearm by a felon and possession of a loaded firearm on a public street. (Ud. at pp. 117-118, 121-122.) The Harrison court found that the sentences did not violate section 654 and upheld the sentences imposed on both counts. Ud. at pp. 121-122.) Initially, the Harrison court noted the “lesser included offense”test was sometimes used to determine whether section 654 applied and that the test was not met in the case. (People v. Harrison, supra, 1 Cal.App.3d at p. 122.) More relevantto the instant case, the Harrison court then acknowledgedthat the “twostatutesstrike at different things.” (/bid.) It explained as follows: Oneis the hazard of permitting ex-felons to have concealable firearms, loaded or unloaded;the risk to public safety derives from the type ofperson involved. The otherstrikes at the hazard arising when any person carries a loaded firearm in public. Here, the mere fact the weapon is loaded is hazardous, irrespective of the person (except those personsspecifically exempted) carryingit. ([bid.) The Harrison court concludedas follows: The “intent or objective” underlying the criminal conductis not single, but several, and thus does not meet anotherofthe tests employed to determine if Penal Code section 654is violated. (Neal v. State ofCalifornia (1960) 55 Cal.2d 11, 19-20 [9 Cal.Rptr. 607, 357 P.2d 839], cert. denied (1961) 365 U.S. 823 [5 L.Ed.2d 700, 81 S.Ct. 708].) For an ex-convict to carry a concealable firearm is one act. But loading involves separate activity, and while no evidence showsthat appellant personally loadedthepistol, there seem little distinction between loading and permitting another to do so. Thus, twoacts, not a single one, are necessarily involved and bring our case outside the prohibition against double punishmentfor a single act or 11 omission. Wetherefore hold contrary to appellant’s contentions on this point. (Ibid.) Basedon the above Harrison rationale, the Court of Appeal reasoned as follows: Here,as stated, after [appellant] purchased the gun, he concealed it in the car, or had someone concealit for him. Under the reasoning ofHarrison just quoted, that act merits separate punishment from mere possession. Accordingly, a section 654 stay is not required as between counts one and two. (Opinion,p. 9.) For a numberofreasons, appellant argues that the Court of Appeal’s reliance on Harrison was misplaced and that Harrison should be disapproved. (AOB 12-22.) First, appellant contends that Harrison improperly created a section 654 “statutory purpose”test, which “is at odds with the Neal‘intent and objective’ test.” (AOB 11-12.) He further . contends that Harrison predates this Court’s decision in People v. Bradford (1979) 17 Cal.3d 8, and cannotbe reconciled with the rule adoptedin that case. (AOB 13-14.) Respondent disagrees. Mere consideration of the legislative purposeis not prohibited in a section 654 analysis. Recently, the Britt court acknowledged as follows: Section 654 turns on the defendant’s objective in violating both provisions, not the Legislature’s purpose in enacting them, but examining the overall purpose behind the notification requirements helps illuminate the defendant’s objective in violating them. (People v. Britt, supra, 32 Cal.4th at p. 952, emphasis added; see also People v. Jones, supra, 103 Cal.App.4th at p. 1145 [in considering “important policy consideration” in enacting section 12021, court noted that Ratcliffcourt also distinguished section 12021 from other weaponscharges, concludingthat “a conviction for firearm possession by a felon represents 12 ‘a unique circumstancein the minefield of section 654 casesin that this charge involve[d] an important policy consideration.’”.].) The Harrison courtcertainly considered the different statutory purposes behind the codesections. One section penalizes the unlawful possession of a firearm while the other penalizes the possession of a loaded firearm on a public street. (People v. Harrison, supra, 1 Cal.App.3d at p. 122.) However, after citing to Neal, it concluded that double punishment wasnot prohibited because the defendant had engagedin twoacts and not a single one. (People v. Harrison, supra, | Cal.app.3d at p. 122.) It reasoned that the two offenses required disparate intentions under the Nea/test, noting that the former offense required the separate act of loading the firearm. (/bid.) In Bradford, this Court adopted the rule set forth in Peoplev. Venegas, supra, 10 Cal.App.3d at p. 821, regarding the application of section 654 to cases involving the violation of section 12021. (People v. Bradford, supra, 17 Cal.3d at p. 22.) It stated as follows: “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 uponthe 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 punishment for the illegal possession of the firearm has been held to be improper whereit is the lesser offense.” (d., at p. 22, quoting Venegas, at p. 821.) Thus, in order for a section 12021 violation in conjunction with another crime to fall outside the ambit of section 654, Bradford requires that the evidence showa possession distinctly antecedent and separate from the primary offense. (People v. Bradford, supra, 17 Cal.3d at p. 22.) 13 While it is questionable whether Harrison’s possession of the revolver was distinctly antecedent and separate from his possession of a loaded firearm on a public street, the evidencein this case is clear. Again, appellant purchased the weaponthree daysprior to being stopped and had physically movedthe gun from his grandmother’s houseto the side pocket of the driver’s side door. (RT 27-28, 60-61.) Clearly, his initial possession of the firearm was antecedent and separate from when he concealedit in his car three days later. Thus, to the extent Harrison attempted to create a “statutory-purpose” test, it appears this Court has already rejected such a test in Britt. (People v. Britt, supra, 32 Cal.4th at p. 952.) In any event, it matterslittle in the instant case because, as discussed throughoutthisbrief, multiple punishment wasnot barred from either section 654 or Neal. Appellant also argues that the Legislature was fully aware of the Neal test and, rather than limit the application of section 654 in cases involving section 12021, it has instead taken an ex-felon’s status into consideration by increasing the wobbler offense to a felony. (AOB 15-18.) A similar argument wasrejected in Latimer: Wehave recognizedthat legislative inaction alone does not necessarily imply legislative approval. “The Legislature’s failure to act may indicate many things other than approvalofa judicial construction of a statute: the sheer pressure of other and more important business, political considerations, or a tendency to trust to the courts to correct their ownerrors....” (People v. Latimer, supra, 5 Cal.4th at p. 1213, quoting County ofLos Angeles v. Workers' Comp. Appeals Ba. (1981) 30 Cal.3d 391, 404, internal quotation marks omitted, quoted in People v. King, (1993) 5 Cal.4th 59, 75; see also People v. Escobar (1992) 3 Cal.4th 740, 750- 751.) While the | Legislature plainly intended to increase punishment from a wobbler offense to a felony if the crime was committed by a felon, it cannot be arguedthat 14 by doingso it has chosen notto limit the application of section 654. (AOB 18.) Indeed, [t]he California Legislature views the possession of a handgun by an ex-felon to be a serious offense. The intent underlying section 12021, subdivision (a) wasto limit the use of instruments commonly associated with criminal activity and to minimize the dangerto public safety ... [and] properly presumes the danger is greater when the person possessing the firearm has previously been convicted of a felony. (People v. Cooper (1996) 43 Cal.App.4th 815, 824-825 [holding that a sentence of 25 years to life for being a felon in possession of a handgunis not cruel and unusual punishmentunderstate or federal law].) Consequently, it remains that whether the unlawful possession of a firearm by a felon can be separately punished from the primary offense depends on the facts of each case. (People v. Osband, supra, 13 Cal.4th at p. 730; People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5.) D. Inre Hayesis instructive Appellant argues /n re Hayes (1969) 70 Cal.2d 604, is distinguishable and does not “mandate multiple punishment.” (AOB 22-27.) Respondent disagrees. Hayes is instructive. In Hayes, the defendant pleaded guilty to and was sentenced for driving with knowledge of a suspended license and while underthe influence of intoxicating liquor. (/n re Hayes, at p. 605.) Our Supreme Court held that section 654 did not proscribe imposition of sentence for both driving while intoxicated and with knowledgeof a suspendedlicense. (/d. at p. 611.) The Hayes court explained as follows: The proper approach,therefore, is to isolate the various criminal acts involved, and then to examine only those acts for identity. In the instant case the two criminal acts are (1) driving with a suspendedlicense and (2) driving while intoxicated; they are in no sense identical or equivalent. Petitioner is not being punished twice - because he cannot be punishedat all- for the “act of 15 driving.” He is being penalized once for his act of driving with an invalid license and once for his independentact of driving while intoxicated. (Ud. at p. 607.) The Court concludedas follows: Nor can we subscribe to a contention that because petitioner may have had only one “intent and objective”- driving - when he committed the two violations, he comes within the ambit of the test established in Neal v. State ofCalifornia (1960) supra, 55 Cal.2d 11. In Neal, the defendant had attempted murder by meansofarson (burning downthe victims’ housebyigniting gasoline therein). We viewed that circumstanceas an indivisible “course of criminal conduct,” the criminal act of arson being only the means toward an ultimate criminal objective of murder. Westated that where there wasonly a single “intent and objective” involved in such a course of criminal conduct, section 654 precluded multiple punishment. Here neither of the two violations can realistically be viewed as a “means” toward the other and as such a part of a single course of criminal conduct, in the sense that the arson in Neal was committed not to burn property but only as a means toward the single objective of murder. Moreover, the petitioner’s intent and objective to drive from one place to another isno morerelevant to our analysis than what he intended to do whenhearrived there. (See Jn re Ward (1966) supra, 64 Cal.2d 672, 676.) Just as it is the criminal “act or omission” to which section 654 refers, it is the criminal “intent and objective” that we established as the test in Neal. (E.g. In re Johnson (1966) supra, 65 Cal.2d 393, 395 [intent to sell heroin]; Jn re Ward (1966) supra, 64 Cal.2d 672, 676 [intent to rob].) In Nea/ we found to be crucial not the defendant’s possible intent and objective to acquire money,to gain revengeorto ignite gasoline, but only his intent and objective to commit murder. Although the absence of a single intent and objective does not necessarily preclude application of section 654 ..., it is clear that underthe instant circumstancesthis test ofNeal cannotbe of aid to defendant. (Id. at pp. 609-610.) Appellant argues Hayes is distinguishable because in “this case the concealment violation was ‘a means towards the objective of the 16 commission ofthe other’ offense.”” (AOB 24, emphasis in original, citing People y. Beamon, supra, 8 Cal.3d at p. 639.) In other words, appellant had to conceal the weaponto possessit for protection. (AOB 24.) Not so. Like Hayes, appellant engaged in twodistinct “criminalacts.” (In re Hayes, supra, 70 Cal.2d at pp. 606-607, emphasisin original.) He possessed the firearm and then concealedit three days later. (RT 25-26, 29- 30, 60-61, 72.) Moreover, “[j]ust as it is the criminal ‘act or omission’ to which section 654refers, it is the criminal ‘intent and objective’ that we established as the test in Neal.” (In re Hayes, supra, 70 Cal.2d at pp. 609- 610.) Again, as set forth in more detail above, appellant had separate criminal intents. His initial intent was to possess a weapon, which he fulfilled when he purchasedit three days prior to being stopped by Officer Weinrich. (RT 27-28.) His subsequent criminal intent was to then conceal the weapon in his car, which he completed whenhehid the revolver on the right, front, driver’s side door panel three days later. (RT 25-26, 29-30, 60- 61, 72.) As noted by the Hayes court, “[i]n Neal we found to be crucial not the defendant’s possible intent and objective to acquire money,to gain revenge or to ignite gasoline, but only his intent and objective to commit murder.” (/d. at pp. 609-610.) Thus, what is relevant is appellant’s criminalintent to possess and conceal, not his intent to protect himself as suggested by appellant. (See In re Hayes, at pp. 609-610, citing Jn re Ward, supra, 64 Cal.2d at p. 676 [““Moreover, the petitioner’s intent and objective to drive from one place to another is no more relevant to our analysis than what he intended to do when hearrived there.”’].) Appellant also relies on People v. Britt, supra, 32 Cal.4th 944,in support of his argument that Hayes is distinguishable. (AOB 24-25.) In Britt, the defendant was convicted and punishedfor failing to comply with two separate registration requirements. Specifically, he moved “once from one county to another within California without notifying the authorities in 17 either county, andhence violat[ed] both subdivisions (a) and (f) of section 290[.]” (Britt. at p. 949, italics omitted.) He violated subdivision (a) by failing to notify the authorities in the county he left, and he violated subdivision (f) by failing to notify the authorities in the county he entered. (Ud. at p. 952.) The Britt court approved multiple convictionsin this situation, but held that section 654 precluded multiple punishment because both of the violations had “the same objective - to prevent any law enforcementauthority from learning of[the defendant’s] current residence.” (Ud. at pp. 951-952.) In so holding, the Court emphasized that objective was achievedjust once, by the defendant’s act of changing residence on a single occasion. (/d. at p. 953.) This case is also distinguishable. Unlike Britt, “[t]his is not a case of a single act or course of conductthat results in multiple offenses. This matter involves separate triggering events giving rise to separate offenses.” (People v. Meeks (2004) 123 Cal.App.4th 695, 706.) Again, as set forth in moredetail above, appellant engagedin two separate criminal acts when he unlawfully possessed and then three dayslater concealed a firearm. (RT 25-28, 29-30, 60-61, 72.) He engagedin these acts with two separate criminal intents: first to possess and then to conceal. (dn re Hayes, supra, 70 Cal.2d at pp. 609-610.) In sum,the uncontroverted evidencein this case established that appellant not only engaged in twodistinct criminal acts, but that each act was committed with a different criminal intent. Thus, under the well- established rules and tests governing the applicability of section 654to unlawful firearm possession cases, the trial court properly imposed concurrent sentences on counts one and two. 18 CONCLUSION For the foregoing reasons, respondent respectfully submits that appellant’s sentence should be affirmed. Dated: October 15, 2010 SA2008306922 31115372.doc Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General CARLOS A. MARTINEZ Supervising Deputy Attorney General JENNEVEE H. DE GUZMAN Deputy Attorney General Attorneysfor Respondent 19 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT?’SBRIEFuses a 13 point ‘Times New Romanfont and contains 5,680 words. Dated: October 15, 2010 EDMUND G. BROWN JR. Attorney General of California Pa olYCITA MYa JENNEVEE H. DE GUZMAN ( , Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Jones No.: $179552 I declare: I am employedin the Office ofthe Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. ] am 18 years of age or older and nota party to this matter. I am familiar with the businesspractice 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, correspondence placedin 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 October 15, 2010, I served the attached ANSWERING BRIEF ON THE MERITSby placing a 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, addressed as follows: MorganH.Daly The Honorable Jan Scully Esq. Attorney at Law Sacramento County District Attorney P.O. Box 348 P.O. Box 749 Fairfax, CA 94978 Sacramento, CA 95814-0749 Attorney for Appellant - 2 copies Central California Appellate Program Clerk of the Superior Court 2407 J Street, Suite 301 Sacramento County Superior Court Sacramento, CA 95816 Gordon D. Schaber Downtown Courthouse California Court of Appeal 720 Ninth Street Clerk of the Court Sacramento, CA 95814 Third Appellate District 900 N Street, Room 400 Sacramento, CA 95814 I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on October 15, 2010, at Sacramento, California. Declarant $A2008306922 31121951 .doc ESR Piinted on Post-Consumer Recycled Papa