PEOPLE v. SANDERS

Respondent's Reply Brief on the Merits

Cal.September 27, 2011

wa Iu the Supreme Court of the State of Caltfornta ut THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. 8191341 v. MAURICE DION SANDERS, Defendant and Appellant. CFD ae VEE GE 2 Fifth Appellate District, Case No. BF126309A oe ee Kern County Superior Court, Case No. F059287.00 The Honorable MichaelE. Dellostritto, Judge eei PETITIONER’S REPLY BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General JANET E. NEELEY Deputy Attorney General CATHERINE TENNANT NIETO 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 Respondent TABLE OF CONTENTS Page I. Becauseit is impossible to commita violation of Penal Code section 12021.1 without also committing a violation of section 12021, the latter is a lesser Included OffeNSe 0...ce eeesseeeeeseceeceeeeeeeeseesecsesseesetesseessessees 1 Il. Thetrial court properly sentenced appellant to concurrent terms for his simultaneous possession of TWO FECATINS 00... ee ceeeeeseeeneeeeeseceseescecsesseeeeaestesaeeasesseeessnenes 2 COnCLUSION 00... eeseeseeseeeeeescecsnesseeseceeesenseanesesesereseseceeessseesesesesseeessecersenes 5 TABLE OF AUTHORITIES Page CASES Nealv. State (1960) 55 Cal.2d. 1 oieceecneeeseseeeneceseree cesses ceeneceseseesnessesaessetpeeseeteeeeey 2 People v. Hall (2000) 83 Cal.App.4th 1084 oo. eeececsececteeseenereeseeeenesesesnesensevenenseeneaees 2 People v. Harrison (1989) 48 Cal.3d 321eceeeeeeecereeneceecseecnesseenesieseesseesseteesetaeteseeeeeeeteeaees 3 People v. Milward (2011) 52 Cal.4th 580 oooeeeeeeere ene ceeeeeeeeesereeeaeseecseseseriesesesaeeeseenenens 1 People v. Perez . (1979) 23 Cal.3d 545 oieeseseesscneeeneteeeseeeseeeesetaeseeeseseeeseeseesaseesueneesgs 3,4 People v. Trotter (1992) 7 Cal.App.4th 363 oceee ceesenecneeecneensceesesscssceesssssesseseeeeeeseesens 3. STATUTES Penal Code § QODa ceeccecescceceeceeeeneeneeseeeceesceerseeseseeesensceeserensesecseesesecsesseseesesesesenseesaseceeneas 2 § 245, subd. ()(2) eee eeceeceeseeceeteeeneeseeecsseeseseseeeseseecseeeeeessseseeeesseesseeseeseesgs 2 § 417, SUDA. (C)..eeeceeesreeereeeseeeceaeeseeeccesscnssecssseessscessscsesseseeeneneceasereesags 2 § O54. eccccccsceececteeneeseceesceeeeeseneeeeeeseeseeesetaeseeeeaeseessesaesseensaseessensuseeeneenes 2,3,4 § 12001, subds. (k) and (1) oo... ceeenecneeseeeeeseteeeeeeaeseseeeseetseaeteeseeene 2,4 § 12020, subd. (a)(1) on. seeeecsceeecseceseesesetsecracsecseeesscneceeceseeesessesssseesetesens 2 § LQO2Z1 Lee eeececeeeeceeeeesneeeeenecnecensseessesseseesseceeeseseecneesecsesseeseseesseeeeeeetenegs 3 § 12021.1, subd. (8)...eeeeee eces eres eereeeneee lense creeeesssseneesesesneeeeeaeens 1,2,4 § 12021.1, SUBd. (D) oeeeeenreeeeeneceeetesceesaeceeesaeeaesecseeseeneeseeneeteenges 1,2 § 12021, subd. (a)(1) 0.eee ceeceeseeerereceneeeceeesnressaecnseeeenssereseseereseecnaeennes 1,2 i I. BECAUSEIT IS IMPOSSIBLE TO COMMIT A VIOLATION OF PENAL CODE SECTION12021.1 WITHOUT ALSO COMMITTING A VIOLATION OF SECTION12021, THE LATTERIS A LESSER INCLUDED OFFENSE Appellant asserts that petitioner’s analysis of the lesser included offense issue “appears to be correct as far as it goes.” He argues, however, that petitioner’s analysis does not apply to the specific facts of the instant case. Appellant maintains that Penal Code section 12021, subdivision (a)(1)' is the greater offense because,by definition,it includesall of the enumerated felonies in section 12021.1, subdivision (a). (AB’ 2.) This Court’s recent decision in People v. Milward (2011) 52 Cal.4th 580, 257 P.3d 748, 752, supports petitioner’s analysis of this issue. There the Court reiterated that “. . . a crime is a lesser offense necessarily included within a greater crime only if it is impossible to commit the greater crime without also committing the lesser.” (Ibid., emphasis added.) It is impossible to violate section 12021.1, subdivision (a), without also violating section 12021, subdivision (a)(1). The following examples buttress this conclusion. If an individual has been convicted of any of the violent offenses listed in subdivision (b) of section 12021.1, such as murder, mayhem,rape, sodomyby force, or attempted murder, and the individual possesses a firearm,all of the elements of section 12021, subdivision (a)(1), are satisfied. The reverse is not true. If one previously suffered a conviction for a nonviolent felony, such as embezzlement or possession for sale of a controlled substance, and the individual possessesa firearm, the elements ' Hereafter, all statutory referencesare to the Penal Code, unless otherwise indicated. * “AB”refers to appellant’s answering brief on the merits, which is mistitled as “Appellant’s Reply Brief on the Merits.” of section 12021.1, subdivision (a), would not be met because these nonviolent offenses are not included in section 12021.1, subdivision(b). Likewise, here, where appellant suffered prior convictions for kidnapping (§ 207) and assault with a firearm (§ 245, subd. (a)(2)) (1 CT 293; 4 RT 587-588)—both violentfelonies under section 12021.1, subdivision (b)— he could be convicted undereither section 12021.1, subdivision (a), or section 12021, subdivision (a)(1), for his possession of two shotguns. However, absentsuffering a violent felony conviction, appellant could not be convicted under section 12021.1, subdivision(a). Forthese reasons, section 12020, subdivision (a)(1) is a lesser included offense of section 12021.1, subdivision(a). Il. THE TRIAL COURT PROPERLY SENTENCED APPELLANT TO CONCURRENT TERMSFORHIS SIMULTANEOUSPOSSESSION OF TWO FIREARMS Appellant relies on People v. Hall (2000) 83 Cal.App.4th 1084 (Hall), to support his argumentthat the Court of Appeal correctly decided that imposition of sentence on count three should have been stayed pursuantto section 654. (AB 5-6.) In Hall, the court held that a violation of section 417, subdivision (c) (brandishing a firearm at a peace officer), did not fall within the multiple-victim exception to section 654 because the crime does not constitute an act of violence committed ‘“with the intent to harm more than one personor by a meanslikely to cause harm to several persons.’” (Id. at p. 1095, quoting Neal v. State (1960) 55 Cal.2d 11, 20.) In this case, petitioneris not relying on the multiple victim exception to section 654 as support for the trial court’s imposition of concurrent terms for appellant’s simultaneous possession of two firearms. Because this case does not involve multiple victims,the reasoning of Hallis inapplicable. Rather, petitionerrelies on the express language of section 654 and the Legislature’s 1994 amendmentto section 12001, subdivisions (k) and(1), as support for petitioner’s argumentthat each violation of section 12021.1 constitutes a distinct and separate offense supporting separate punishment for each additionalfirearm illegally possessed by a felon. By enacting section 654, the Legislature recognized that there could be instances where the same prohibited conduct violated more than one code section, andin those cases, the individual should only be subjectto one punishment. Section 654 therefore addressed a concern that an “act or omission”that givesrise to liability under different provisions of law would subject an individual to additional punishmentfor the same prohibited conduct. (See People v. Harrison (1989) 48 Cal.3d 321, 335 [“Thestatute itself literally applies only where [double] punishmentarises out of multiple statutory violations produced bythe ‘same act or omission.’ [Citation.]”].) That same concern does not exist when a person is properly convicted of multiple violations of the same provision of law. Whena personrepeatedly violates the same provision of law, he has, by definition, committed separate acts. (See People v. Trotter (1992) 7 Cal.App.4th 363, 368 [consecutive punishmentproperfor each shotfired at pursuing police officer].) In People v. Perez (1979) 23 Cal.3d 545 (Perez), the defendant committed a series of sexual acts on the victim during a single course of conduct. Thetrial court stayed imposition of multiple punishmentfor several criminalacts after finding the defendant’s sole intent and objective was to obtain sexual gratification, (/d. at p. 549-550.) This Court reversed, reasoning that [s]uch an intent and objective is much too broad and amorphous to determine the applicability of section 654. Assertion of a sole intent and objective to achieve sexualgratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishmentfor otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishmentwill be commensurate with his culpability. [Citation.] It would reward the defendant who has the greater criminal ambition with a lesser punishment. (Ud. at p. 552.) Consequently, section 654 should not apply to multiple valid convictions of the same provision oflaw. The Legislature has determinedthat each firearm a felon possessesis a separate violation of the Penal Code. (§ 12001, subds. (k) & (1).) Appellant’s illegal act of possessing two firearms should not be minimized . by applying section 654 to his case. Clearly a convicted felon in possession of multiple firearms is more dangerous and has engaged in more egregious conduct than a convicted felon in possession ofa single firearm. To achieve section 654’s goal of ensuring that appellant’s punishmentis commensurate with his culpability, appellant should be separately punished for each violation of section 12021.1, subdivision (a). For these reasons,the trial court properly sentenced appellant to concurrent termsforillegally possessing two firearms. CONCLUSION Accordingly,petitioner respectfully requests that the Court of Appeal’s judgmentbe reversed. Dated: September26, 2011 CTN:sra $A2010301253 31348750.doc Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General JANET E. NEELEY Deputy Attorney General tlor, teonneg Aly of CATHERINE TENNANT NIETO Deputy Attorney General Attorneysfor Plaintiffand Respondent CERTIFICATE OF COMPLIANCE I certify that the attached REPLY BRIEF ON THE MERITSusesa 13 point Times New Roman font and contains 1,153 words. Dated: September 26, 2011 KAMALAD. HARRIS Attorney General of Califomia Cea CATHERINE TENNANT NIETO Deputy Attorney General Attorneysfor Plaintiffand Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Sanders No.: $191341 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. ] am 18 years of age or older andnota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service that same day in the ordinary course of business. On September 26, 2011, I served the attached REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosedin a sealed envelope with postage thereon fully prepaid,in the internal mail collection system at the Office of the Attorney Generalat 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Robert Navarro Lisa Green Attorney at Law Kern Co. District Attorney P.O. Box 8493 1215 Truxtun Ave., 4th Floor Fresno, CA 93747 Bakersfield, CA 93301 Attorney for Appellant (2 copies) Fifth Appellate District Court Honorable Michael E. Dellostritto 2424 Ventura Street Kern Co. Superior Court Fresno, CA 93721 1415 Truxtun Ave., Ste. 212 Bakersfield, CA 93301 I declare under penalty of perjury underthe lawsofthe State of California the foregoingis true andcorrect andthat this declaration was executed on September 26, 2011, at Sacramento, California. Declarant