PEOPLE v. SANDERS

Respondent's Opening Brief on the Merits

Cal.June 16, 2011

In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Petitioner, Vv. MAURICE DION SANDERS, Defendant and Respondent. Case No. $191341 SUPREME COURT FILED Fifth Appellate District Court, Case No. F059287 JUN 16 201 Kern County Superior Court, Case No. BF126309Krederick K. Ohirich Clark The Honorable Michael E. Dellostritto, Judge PETITIONER’S OPENING BRIEF ON THE MERITS ‘Denuty KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General JANET E. NEELEY Deputy Attorney General CATHERINE TENNANTNIETO Deputy Attorney General State Bar No. 179182 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 323-6307 Fax: (916) 324-2960 Email: Catherine.TennantNieto@doj.ca.gov Attorneysfor Plaintiffand Petitioner TABLE OF CONTENTS Page Issues Presented oc.eeeeccesseeeeeeeeteceesseeesseesseeeesscssueeeesseeeesecsaueueesscenseeseaes 1 Introduction oo... ee cceeescceneesseeseceeeeeacesscseesssesseeeseceeeseeeteneSeesaeersensesenccasssessasens 1 Statementof the CASE.eccescsecscssseesessseecsstsesssscsssissssssesssussssectsiesssetesavessseesesees 2 Summary Of Argument... ccecsessesceseesseeseeeeeseesecseccseecaetescsseeescasecseeasenes 3 ATQUMEN00... ccsceeeeeceseeccsseesseeeeecseseeecesaeesseesseeenseessaseccesssesseceseseessseeeateess 4 I. Possession ofa firearm after conviction of a specified violent offense is not a necessarily included offense of possession ofa firearm after conviction of a felony, but the reverse is true 0... eecccecsssessesseeessecessecsecsesessescsseesens 4 Il. The trial court properly sentenced appellant to concurrent termsfor his simultaneous possession of TWO FIPEATINS 000... eee eeeeeteecsecesseeeseeecseecsseecesseecesassrescssasscrsaseees 7 CONCIUSION 00... eee eeeeceeseeeeenetsseesevseeeeesecseeseeessessaessaeesseecsseecseesseesesensvessusenes 14 TABLE OF AUTHORITIES Page CASES In re Chapman (1954) 43 Cal.2d 385 oeccscenceeecerseeesteeenneccnneeseeeeceeeeeneeseeeneesierennes 12, 13 Neal v. California (1960) 55 Cal.2d 11 eeeeeceeeseeeereeeseeeeeeees Leveneeseeeeeeesneeertueraetereesspassim People v. Baird (1995) 12 Cal.4th 126occeecenecenettereneens veceeeneeteecsecteesseeaeeceeeaeeeseeees 6 People v. Barrick (1982) 33 Cal.3d 115 ceicececcceeeneeeseeeneeceeeseeeeeaeeeseeeeeecieesiresseeesieeeneeees 4 People v Birks (1998) 19 Cal.4th 108 oo. eeeceeseessceeceeeeeeeeeeeesseeeeseeeeneeeeeeseaeseneeesieessaeens 4 People v. Brown (1958) 49 Cal.2d 577 oociceeccccsccccceeseeseceneceeecseeseeeeaeesseessescecsaeeieeenseeaeranees 8,9 People v. Clemett (1929) 208 Cal.142 ooo ceceeneceneeseeeeeeeeeneceneeeeeeeeeaeeesneeseatensecneeeseaeenieeseaseed 9 People v. Cleveland (2001) 87 CalApp.4th 263 .....0......Ne eeeeeeeaeesceeuaeeesdaeeesecnevseaeersauessseeeseaneeeens 11 People v. Greer (1947) 30 Cal.2d S89 ooo cecceceeseeesneceeseceeeseeeeeaeceaeeenaeessseesesseeseeeseaeeesnaees 6 People v. Hopkins (1992) 10 Cal.App.4th 1699 oocecccsecssesseesseeeseseeceseeeeeneeseesteesreeeees 5 People v. Jones (2002) 103 CalApp.4th 1139 ooecessessestesssecerectesteesaeseeeseesaeesatees 11 People v. Kirk (1989) 211 Cal.App.3d 58 ooo. eccecceeeeeeereseesrenneeenseeneeeseeeeseeseesnees 10, 11 People v. Logan - (1953) 41 Cal.2d 279 oo ecccceccccseceseeseeseeteeeeseceaeeeseesssenaesssuaesssesseenees 12, 13 il People v. Nor Woods (1951) 37 Cal.2d 584 ooo ccceesesceseseseesseseecsesecsensssecsasseseesesesssessesseaessens 9, 10 People v. Pearson (1986) 42 Cal.3d 351 iecceceseesseceeeesecneesesestesstecseecseeesssssesasscssssessseass 6 People v. Ratcliff (1990) 223 Cal.App.3d 1401] ociccccsscseesesetsesecsscseseesesercscsscsesenseateees 14 People v. Reed (2006) 38 Cal.4th 1224 ooo eccccseesccscesecsesseesssscssscsscscssceesserenseraserens 4,6,7 People v. Roberts (1953) 40 Cal.2d 483 oiecececsecseesesssesessesseesesecsssesseseesecesecsesssestresaceeeares 9 People v. Rowland (1999) 75 Cal.App.4th 61 o.ccccccccccsessesecsececsecsssecsesscescscsescescecsssesnevereatees 11 People v. Sanchez (2001) 24 Cal.4th 983 ooo ceccseeesesecssesenesseessscesesecsssssssesescessssscestacesvasreats 7 People v Scheidt (1991) 231 Cal.App.3d 162 oo. cccccccccseesecscseerseeees beteeeeeeecsteseneteeseetenees 7 People v. Slobodion . (1948) 31 Cal.2d 555 oeccccssesssessessesseseseesesecsesecsesscsscsesssessesenscatvavrereats 13 STATUTES Health and Safety Code § LSOOLecececeeeneseetsenecsesseseesaeessssesseseeceessacsesseecsscsussavaevaserenears 9 Penal Code § OSescnseseeceeeceeeecsesecaenessesaceersesseseeeesesessecasssaseeecacsesnseraspassim § 654, SUD. (a)...cee ceceseeceeeeeseseesessesesessesevecsesaccasacsesesesecsceusasevecnetataees 8 § 667, SUBS. (8)-(€) oe eeeceeeeeeseseeseseesessesseateacstcecsesecsecsesscsscessvavsesartevatavacanes 2 § 667.5, subd.(b) 0...aseseeceseceseceeeenseceaueeseeseeesneeesecseeeeseseeseeesecssetsaenas 2 § 667.5, SUD. () oo ee eeecccceeescnseseseesseseessaccessececsesecsecsevscsseessavsesactavacuteeaees 2 SLDTODecece ceecsceceeceenetsssetacsssessessesscecsesascassscscseceseceuscsaevevecnreeteres 2 SB8Scece csecscneeseeseseeecseressesessesasersaceassevasssceessesescseseaseavsesereevarereataess 2 § 12001, subd. (k) ieee cecceceeseesescessecseseesesacsesseseseasececseesseeseseneens 3, 10, 11 § 12001, subds. (k) and (1) oo. ccceeccsecscsesssessseeesscsecscatsscsvensevsvsssavensataceasas 10 § 12020, Subd. (a)... ccccccessssseseseeseecsceseescescsecsessscsecsssasesssessceecareacsaeansees 10 § 12021, subd. (a)(1)oecccceeesseesseseceecsecsecseescssccsscsstsssssccarsaesseveseaspassim § 12021.1, SUDA. (a)...ee cccccscsssecseesecssvsscsscsecscesessevssesesasecevaesausaeeaspassim § 12021.1, SUB. (D) eeececcscsssesesesesesescssscsesresssesessessscessasavevevscavans 4,5,7 il ISSUES PRESENTED (1) Is possession of a firearm after conviction of a specified violent offense (Pen. Code § 12021.1, subd. (a)') a necessarily included offense of possession of a firearm after conviction of a felony (§ 12021, subd. (a)(1))? (2) Was appellant properly sentenced to concurrent termsfor his simultaneouspossession of two firearmsin violation of section 12021, subd. (a)(1))? INTRODUCTION After authorities found two shotguns in appellant’s closet, a jury found him guilty of two counts of being a felon in possession ofa firearm (§ 12021, subd.(a)(1)) and two counts of possessing a firearm after committing a specified violent offense (§12021.1, subd. (a)). On appeal, appellant asserted that the section 12021.1, subdivision (a), convictions must be reversed because they were necessarily included lesser offenses of the section 12021, subdivision (a)(1), counts. He also argued that the trial court erred in sentencing him to concurrent terms for his simultaneouspossession of two firearms. The Fifth Appellate District agreed with appellant. It reversed counts two and four (§ 12021.1, subd. (a)) as necessarily included offenses of counts one andthree (§ 12021, subd. (a)(1)). The Court of Appealalso determinedthat section 654 precluded imposition of separate punishment for appellant’s simultaneous possession of twofirearms. This Court granted review of both issues on its own motion. Hereafter, all statutory references are to the Penal Code, unless otherwise indicated. : STATEMENT OF THE CASE Based on the discovery by law enforcement of two shotgunsin appellant’s master closet, a jury found appellant guilty, in counts one and three, of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and in counts two and four, possessing a firearm after committing a specified violent offense (§ 12021.1, subd. (a)). (1 CT 287-290, 292-293; 4 RT 563-564.) In a bifurcatedcourt trial, the trial court found true the allegations that appellant had suffered four prior serious felony convictions (§§ 667, subds. (a)-(e), 1170.12) and three prior prison terms (§ 667.5, subd.(d)). (1 CT 292-293; 4 RT 587-590.) Thetrial court sentenced appellant to 25 years to life on counts one and three, with the term on count three to run concurrently with count one. The court stayed imposition of sentence on counts two and four pursuantto section 654.” (2 CT 343-345, 348-349; 4 RT 611-614.) Appellant appealed, arguing that the corpus delicti of the crimes were not established, counts two and four (§ 12021.1, subd. (a)) must be reversed as lesser included offenses of the violations of section 12021, subdivision (a)(1), and the concurrent term imposed for count three should have been stayed pursuantto section 654. The Fifth Appellate District found the corpusdelicti of the offenses was adequately proven. It agreed with appellant on the second two contentions. The court reversed counts two and four as necessarily included offenses of counts one andthree, andit determined that section 654 precluded imposition of separate punishment for appellant’s simultaneous possession of two firearms. (Opn.atpp.6, 9- 10.) * The court struck the three section 667.5, subdivision (b), enhancements pursuantto section 1385. (2 CT 343-345, 348-349; 4 RT 611-614.) Appellantfiled a petition for review in pro per, arguing that the evidence wasinsufficient to establish the firearm possession convictions. The Court denied appellant’s petition for review. On its own motion, however, the Court granted review on the issues set forth herein. SUMMARY OF ARGUMENT Becausethe statutory elements of possession ofa firearm after conviction of a specified violent offense (§ 12021.1, subd. (a)) includeall the elements of possession of a firearm after commission ofa felony (§ 12021, subd. (a)(1)), and one cannot commita violation of section 12021.1, subdivision (a), without committing a violation of section 12021, subdivision (a)(1), the latter is a necessarily included offense of section 12021.1, subdivision (a). Byits express terms, section 654 does not apply where an individual commits more than one violation of the sameprovision of law. Additionally, because appellant’s possession of one firearm was not “merely incidental to”or “the means by which”he possessed the second firearm (Nealv. California (1960) 55 Cal.2d 11, 20 (Neal)), section 654 does not apply to this case. Thetrial court’s imposition of a concurrent sentence for appellant’s unlawful possession of a second shotgunis consistent with the Legislature’s expressed intent that a felon’s possession of each firearm be deemed a “distinct and separate offense.” (§ 12001, subd.(k).) Appellant is more culpable than a felon who only possessed a single firearm, and his punishment should be commensurate with his culpability. ARGUMENT I. POSSESSION OF A FIREARM AFTER CONVICTION OF A SPECIFIED VIOLENT OFFENSEIS NOT A NECESSARILY INCLUDED OFFENSE OF POSSESSION OF A FIREARM AFTER CONVICTIONOFA FELONY, BUT THE REVERSEIS TRUE Petitioner submits that possession of a firearm after conviction of a specified violent offense (§ 12021.1, subd. (a)) is not a necessarily included offense of possession of a firearm after a conviction of a felony (§ 12021, subd. (a)(1)), but the reverseis true.” In People v Birks (1998) 19 Cal.4th 108, 117, this Court noted: The definition of a lesser necessarily included offense is technical andrelatively clear. Under California law, a lesser offense is necessarily includedin a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (Accord, People v. Barrick (1982) 33 Cal.3d 115, 133.) However, when determining if a defendant may be convicted of multiple offenses, only the elements test applies. (People v. Reed (2006) 38 Cal.4th 1224, 1229.) Section 12021.1, subdivision (a), provides that “any person who has been previously convicted of any of the offenses listed in subdivision (b) and who ownsorhasin his or her possession or underhis or her custody or control any firearm is guilty of a felony.” Subdivision (b) lists 26 “violent” offenses and enhancements.* Therefore, in order to violate section 12021.1 , * Petitioner took the reverse position in the proceedings below,but upon further consideration submits that section 12021, subdivision (a)(1),is a necessarily included offense of section 12021.1, subdivision (a). - * Section (b) provides: Asusedin this section, a violent offense includes any of the following: (1) Murder or voluntary manslaughter. (2) (continued...) subdivision (a), the following two elements must be met: 1) an individual must have been convicted of oneofthe felonieslisted in subdivision (b), and 2) he or she must ownorpossessa firearm. (See People v. Hopkins (1992) 10 Cal.App.4th 1699, 1704.) Section 12021, subdivision (a)(1), provides: (...continued) Mayhem. (3) Rape. (4) Sodomyby force, violence, duress, menace, or threat of great bodily harm. (5) Oral copulation by force, violence, duress, menace, orthreat of great bodily harm. (6) Lewdacts on a child under the age of 14 years. (7) Any felony punishable by death or imprisonmentin the state prison for life. (8) Any other felony in which the defendantinflicts great bodily injury on any person, other than an accomplice, that has been charged and proven,or any felony in which the defendantuses a firearm which use has been charged and proven. (9) Attempted murder. (10) Assault with intent to commit rape or robbery. (11) Assault with a deadly weapon or instrument on a peace officer. (12) Assault by a life prisoner on anoninmate. (13) Assault with a deadly weapon byan inmate. (14) Arson. (15) Exploding a destructive device or any explosive with intent to injury. (16) Exploding a destructive device or any explosive causing great bodily injury. (17) Exploding a destructive device or any explosive with intent to murder. (18) Robbery. (19) Kidnapping. (20) Taking ofa hostage by an inmate ofa state prison. (21) Attempt to commit a felony punishable by death or imprisonmentin the state prison for life. (22). Any felony in which the defendant personally used a dangerous or deadly weapon. (23) Escape from state prison byuse offorce or violence. (24) Assault with a deadly weaponorforce likely to produce great bodily injury. (25) Any felony violation of Section 186.22. (26) Any attempt to commit a crimelisted in this subdivision other than an assault. (27) Any offense enumerated in subdivision(a), (b), or (d) of Section 12001.6. (28) Carjacking. (29) Any offense enumerated in subdivision (c) of Section 12006.1 if the person has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417. Any person whohas been convicted of a felony under the laws of the United States, of 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 whois addicted to the use of any narcotic drug, who owns,purchases, receives, or has in his or her possession or underhis or her custody or control any firearm is guilty of a felony. In orderto violate section 12021, subdivision (a)(1), an individual must commit two elements: (1) he or she must have been convicted of a felony or be addicted to any narcotic drug, and (2) he or she must own, purchase, receive or possess a firearm. (People v. Baird (1995) 12 Cal.4th 126, 129.) When comparing the elements of possessing a firearm after committing a specified violent offense (§12021.1, subd. (a)), with being a felon in possession ofa firearm (§ 12021, subd. (a)(1)), it appears that all of the elements of the latter are included within a violation of the former, such that one cannot commita violation of section 12021.1, subdivision(a), without committing a violation of section 12021, subdivision (a)(1). (See People v. Reed, supra, 38 Cal.4th at pp. 1227-1228; People v. Pearson (1986) 42 Cal.3d 351, 355 [“‘Thetest in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense,’” quoting People v. Greer (1947) 30 Cal.2d 589, 596.].) One cannot commit a violation of section 12021.1, subdivision (a), without committing a violation of section 12021, subdivision (a)(1). For example, if one has committed a prior rape and possessesa firearm in violation of section 12021.1, subdivision (a), one would have necessarily committed a felony and possesseda firearm,fulfilling the elements of section 12021, subdivision (a)(1). However,the reverse is not true. If one previously committed the felony of grand theft and possesseda firearm in violation of section 12021, subdivision (a)(1), one could not be guilty under section 12021.1, subdivision (a), because grandtheft is not includedin the specified list of violent felonies contained in section 12021.1, subdivision (b). In People v Scheidt (1991) 231 Cal.App.3d 162, 170-171, the Court of Appeal noted: .... Itis manifest that a greater offense and all its statutorily included lesser offenses protect the identical interest. As to any given statute, for each act the Legislature presumably intended only that a defendant be convicted of the greatest offense proved or admitted, not every lesser offense as well. For example, conviction of assault vindicates the sameinterest in personal security as conviction of battery. Where a defendantis convicted of battery, vindication of the protected personal security interest does not require conviction of assault for the same act. Conviction of the assault would be superfluous. Accordingly, appellant’s convictions in counts one andthree for being a felon in possession of a firearm (§ 12021, subd. (a)(1)) should be reversed as lesser included offenses of the section 12021.1, subdivision (a), convictions in counts two and four. (People v. Sanchez (2001) 24 Cal.4th 983, 987 [“[a] defendant . . . cannot be convicted of both an offense and a lesser offense necessarily included withinthat offense, based uponhis or her commission of the identical act”], overruled on anotherpoint in People v. Reed, supra, 38 Cal.4th at pp. 1228-1229.) II. THE TRIAL COURT PROPERLY SENTENCED APPELLANT TO CONCURRENT TERMSFORHIS SIMULTANEOUSPOSSESSION OF TWO FIREARMS The Fifth Appellate District determinedthat the concurrent term imposedbythetrial court on countthree (§ 12021, subd. (a)(1)) should have been stayed pursuantto section 654 because the record contained no evidencethat appellant possessed independent criminal objectives in possessing the two shotguns. (Opn.at p. 9.) This decision was erroneous. Byits express terms, section 654 does not apply where an individual commits more than one violation of the same provision of law. Section 654, subdivision (a), provides: 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 statutory language thus pertains to “an act or omission thatis punishable in different ways by different provisions of law.” In contrast, this case concerns an act giving rise to more than one violation of the same provision of law. Thus, section 654 does not preclude separate punishment when an act gives rise to more than one violation of the same provision of law. In Neal, the Court expanded the reach of section 654, whenit stated: Althoughsection 654 does not expressly preclude double punishment whenanactgives rise to more than one violation of — the same Penal Code section or to multiple violations of the criminal provisions of other codes,it is settled that the basic principle it enunciates precludes double punishmentin such cases also. (People v. Brown, 49 Cal.2d 577, 591; see People v. Roberts, 40 Cal.2d 483, 491; People v. Clemett, 208 Cal.142, 144; People v. Nor Woods, 37 Cal.2d 584, 586 (italics added). (Neal, supra, 55 Cal.2d at p. 18, fn. 1 (“the footnote”).) This Court recently requested the parties in People v. Victor Correa (Correa), $163273,to respondto the question, “Does the authority cited in this footnote [in Neal] support the italized language?” Petitioner adopts the position taken by respondentin Correa that the authority cited in the footnote does not support the italicized language. In particular, the first case cited in the footnote, People v. Brown (1958) 49 Cal.2d 577, 590 (Brown), concerned the application of section 654 to convictions for second degree murder and performing an abortion on the victim. Brown doesnot address applying section 654 to multiple violations of the same Penal Code section. The second case cited, People v. Roberts (1953) 40 Cal.2d 483 (Roberts), also does not support the italicized language in the footnote. In Roberts, the defendant was convicted of conspiracy to violate Health and Safety Code section 11500, as well as three counts of violating that same section based on transporting,selling, furnishing and giving away, or possessing heroin “on or about April 3, 1951.” (/d. at p. 486.) At the time Roberts was decided, section 11500 of the Health and Safety Code provided: “Except as otherwise providedin this division, no person shall possess, transport, sell, furnish, administer or give away,or offer to transport, sell, furnish, administer, or give away,or attemptto transport a narcotic except upon the written prescription of a physician... .” (/bid.) The Roberts Court held that the defendant could only be convicted of conspiracy to violate Health and Safety Code section 11500 and one count of violating that code section. (/d. at p. 491.) People v. Clemett (1929) 208 Cal.142, 144 (Clemett) similarly does not support the language in the footnote in Neal. The statute in Clemett, like the statute in Roberts, listed a numberof acts—any one of which would constitute a violation of the same code section. The Court held that the _ defendant in Clemett therefore only committed a single offense, and his conduct only gaverise to one violation of the code section at issue. In People v. Nor Woods (1951) 37 Cal.2d 584, the last case cited in the footnote, the defendant was convicted of two counts of grand theft. The defendant, a car dealer, offeredto sell a 1949 Ford in exchange for another car and $1,183.14. (/d. at p. 585.) The defendant represented thattitle to the 1949 Ford wasclear exceptfor a lien of $1,183.14, which he promised to discharge with the cash payment. In reality the lien on the 1949 Ford was muchgreater than $1,183.14, and the defendantdid not discharge the lien with the victim’s paymentor the proceedsofthe sale of the victim’s car. (Ibid.) Under these facts, the Court determinedthat there was only one theft, as both the car and the money were taken at the same timeaspart of a single transaction, and “the fact that the sentences were ordered to run © concurrently does not cure the error.” (/d. at pp. 586-587.) Nor Woods thus does not address the scenario where a defendant’s conductresults in more than one conviction of the same provision of law,as in the instant case. Accordingly, as asserted by respondent in Correa, the authorities cited in footnote one of Neal do not support the italicized language of the footnote. This Court should reject footnote one as authority for expanding section 654 to preclude separate punishment when a defendant commits more than one violation of the same codeprovision. In 1994, when it amended section 12001, subdivisions (k) and(1), the Legislature madeclear that “each firearm” possessed in violation of sections 12021 and 12021.1 constitutes “a distinct and separate offense.” The Legislature’s amendments to section 12001 abrogated People v. Kirk (1989) 211 Cal-App.3d 58, 60 (Kirk), which had held that a defendant could not be convictedof two violations of former section 12020, subdivision(a), > The 1994 amendmentsto section 12001, subdivisions (k) and (1) provide: (k) For purposes of Sections 12021, 12021.1, 12025, 12070, 12072, 12073, 12078, and 12101 of this code, and Sections 8100, 8101, and 8103 of the Welfare and Institutions Code, notwithstanding the fact that the term “any firearm” may be used in those sections, each firearm or the frameor receiver of the same shall constitute a distinct and separate offense under those sections. (1) For purposesof Section 12020,a violation of that section as to each firearm, weapon, or device enumerated therein shall constitute a distinct and separate offense. 10 for his simultaneouspossession of two sawed-off shotguns. (See People v. Rowland (1999) 75 Cal.App.4th 61, 64-67.) In this case, the trial court’s imposition of a concurrent sentence for appellant’s unlawful possession of a second shotgunis consistent with the Legislature’s expressedintent that a felon’s possession of each firearm be deemed a “distinct and separate offense.” (§ 12001, subd. (k).) It would frustrate the purpose of the amendmentabrogating Kirk to allow multiple convictions, but not separate punishments, for each firearm illegally possessed by a felon. Moreover, to concludethat a felon could be convicted of multiple “distinct and separate”firearm offenses, but could not be punished commensurately withhis or her greater culpability is inconsistent with the purpose of section 654, whichis to insure that the defendant’s punishment is commensurate with his criminalliability. (Neal, supra, 55 Cal.2d at p. 20; accord, People v. Jones (2002) 103 Cal.App.4th 1139, 1148.) Finally, the Court of Appeal’s analysis misapplied the test governing the applicability of section 654 set forth in Neal andrepeated in People v. Cleveland (2001) 87 Cal.App.4th 263, 267. The Court of Appeal determined: ...[A]ppellant’s unlawful possession of each shotgun constitutes “a distinct and separate offense.” (§ 12001, subd. (k).) Yet, separate sentences must nonetheless be supported by substantial evidence ofindependentcriminal objectives. (§ 654; People v. Cleveland, supra, 87 Cal.App.4th at pp. 267-268). Here, the record lacks such evidence. The two shotguns were found next to each other in the master bedroom closet. The record does not contain any proofthat-appellant intended to use these weaponsin different crimesorto sell them to different people. Thereis also no proofthat appellant obtained the shotguns in separate transactions. There is no evidence the two weaponswere previously used in different crimes. In sum, the record lacks evidence from which the court could have inferred that appellant had a different criminal objective or 11 intent for each shotgun. Therefore, we conclude section 654 precludes imposition of separate punishment for count 3 and the concurrent term imposed for this count must be stayed. (Opn.at pp. 9-10, emphasis added.) The Court of Appeal erred in requiring evidence of independentcriminal objectives for appellant’s possession of two shotguns. In Neal, the seminal case governing the application of section 654, this Court held: Whether a course of criminal conductis divisible and therefore gives rise to more than oneact within the meaning of section 654 dependsonthe intent and objective of the actor. If all of the offenses were incidentto one objective, the defendant may be punishedfor any one of such offenses but not for more than one. (Neal, supra, 55 Cal.2d at p. 19) Following this pronouncement, the Neal Court provided several examples regarding whether section 654 applied in various situations. It noted that in People v. Logan (1953) 41 Cal.2d 279, 290 (Logan), defendant, who chose to commit robberybyfirst knocking out his victim with a baseball bat and then taking his valuables, was convicted of both robbery and assault. The Court reversed the assault conviction on the groundthat the double punishment violated section 654. (Neal, at pp. 19-20.) Neal next noted that in In re Chapman (1954) 43 Cal.2d 385, 387 (Chapman), the Court held that when the assault “is not a means of” perpetrating the robbery butis an act that follows after the robberyis completed, the defendant is guilty of two punishable acts. (Neal, supra, 55 Cal.2d at p. 20.) Neal further explained: Likewise in People v. Greer, 30 Cal.2d 589, 600 [184 P.2d 512], statutory rape and lewd and lascivious conduct were held to be one act since both offenses arose from a single act of sexual intercourse. In People v. Slobodion, 31 Cal.2d 555, 561-563 [191 P.2d 1], however, we sustained convictions for sex perversion and lewdandlascivious conduct, even though both 12 acts were closely connected in time and a part of the same criminal venture since the act giving rise to the lewd and lascivious conduct was separate and distinct and was not incidental to or the means by whichthe act of sex perversion was accomplished. (bid., emphasis added.) In Neal, where the petitioner threw gasoline into the bedroom ofthe victims and ignited it, resulting in the victims being severely burned, the Court found that petitioner’s convictions for both arson and attempted murder violated section 654, since the arson was “merely incidental to the primary objective of killing Mr. and Mrs. Raymond.” (Neal, supra, 55 Cal.2d at pp. 20-21.) However, the Court found that consecutive sentences for the two attempted murderswere proper because they were crimes of violence against separate victims. (/bid.) Appellant’s case is distinguishable from the cases discussed above. Unlike the facts of Neal, Chapman, and Logan, appellant did not engage “in a course of criminal conduct” that was divisible and gaverise to “more than one act within the meaning of section 654.” (Neal, supra, 55 Cal.2d at p. 19.) Appellant did not possess one firearm as “a means of” (Chapman, supra, 43 Cal.2d at p. 387) perpetrating his possession of the second firearm. Nor washispossession of one firearm “incidental to” or “the means by which”his possession of the second firearm was accomplished. (Neal, at p. 20, discussing People v. Slobodion (1948) 31 Cal.2d 555, 561- 563.) Likewise, appellant’s possession of one firearm wasnot “merely incidental to the primary objective” of possessing the second firearm. (/bid.) Rather, appellant committed two separate and distinct violations of section 12021.1, subdivision (a), by possessing two firearmsas a felon. | Appellant is more culpable than a felon who only possesseda single firearm, and his punishment should be commensurate with his culpability. This conclusionalso furthers the legislative goal of discouraging firearm 13 possession by felons. (People v. Ratcliff(1990) 223 Cal.App.3d 1401, 1409 [Section 12021 uniquely targets the threat posed by felons who possessfirearms].) For these reasons,thetrial court properly sentenced appellant to concurrent terms for his simultaneous possession of two firearms. CONCLUSION Appellant’s convictions in counts one and three for being a felon in possession ofa firearm (§ 12021, subd. (a)(1)) should be reversed as lesser included offenses of the section 12021.1, subdivision (a), convictions in counts two and four. Thetrial court’s imposition of concurrent sentences for appellant’s two felon in possession ofa firearm offenses should be affirmed. Dated: June 15, 2011 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General CARLOS A. MARTINEZ Supervising Deputy Attorney General eee 3 fo /‘ Lf, “ ae a j. NebatS ? nee c é} Puawe? ~ foes Lo fiZe CATHERINE TENNANT NIETO Deputy Attorney General Attorneysfor Plaintiffand Respondent CTN:sra SA2010301253 31275323 .doc 14 CERTIFICATE OF COMPLIANCE I certify that the attached PETITIONER’S OPENING BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 4,154 words. Dated: June 15, 2011 KAMALAD. HARRIS Attorney General of California CATHERINE TENNANT NIETO Deputy Attorney General Attorneysfor Plaintiffand Respondent DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Sanders No.: S$191341 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member's direction this serviceis made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. On June 15, 2011, I served the attached PETITIONER’S OPENING BRIEF ON THE MERITSbyplacing 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: Maurice D. Sanders, P-05429 Lisa Green Salinas Valley State Prison Kern Co. District Attorney P.O. Box 1050 1215 Truxtun Ave., 4th Floor Soledad, CA 93960 Bakersfield, CA 93301 Respondentin Pro Per Honorable Michael E. Dellostritto Fifth Appellate District Court Kern Co. Superior Court 2424 Ventura Street 1415 Truxtun Ave., Ste. 212 Fresno, CA 93721 Bakersfield, CA 93301 I declare under penalty of perjury underthe laws of the State of California the foregoing is true and correct and that this declaration was executed on June 15, 2011, at Sacramento, California. Declarant