PEOPLE v. INFANTE

Respondent’s Opening Brief on the Merits

Cal.March 27, 2013

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, SupremeCt. No. 8206084 Plaintiff and Respondent, Court of Appeal No. G046177 V. Superior Court DANIEL INFANTE, No. 10NF1137 Defendant and Appellant. N e w N e n e m e e e e e N e e N o e N e n e e m c e e e e e e ” APPEAL FROM THE SUPERIOR COURT OF ORANGE COUNTY Honorable Richard W.Stanford, Judge SUPREME COURT APPELLANT’S OPENING BRIEF MAR 27 2013 Frank A. McGuire Clerk Stephen M.Hinkle, Attorney at Law SBN 124407 Deputy 11260 Donner Pass Road, C-1 PMB 138 Truckee, CA 96161 (530) 553- 4425 Attorney for Appellant By appointmentofthe California Supreme Court IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, ) SupremeCt. ) No. 8206084 ) Plaintiff and Respondent, — ) Court of Appeal ) No. G046177 V. Superior Court DANIEL INFANTE, No. LONF1137 Defendant and Appellant. 4 a a APPEAL FROM THE SUPERIOR COURT OF ORANGE COUNTY Honorable Richard W.Stanford, Judge APPELLANT’S OPENING BRIEF Stephen M. Hinkle, Attorney at Law SBN 124407 11260 Donner Pass Road, C-1 PMB 138 Truckee, CA 96161 (530) 553- 4425 Attorney for Appellant By appointmentofthe California Supreme Court Table of Authorities ...ccc.cccccccccsesesssscsscesesecssssseceeceeesseaeneeaseeeseeeecessneseenaneeaeeess i ISSUES PRESENTED. .....c:cccsccessccesceessnsceseceessseeenecneeestesesssasseesensseseaeenages 1 STATEMENT OF THE CASE.Q....ccccecccccecseseeeesnesseesteeeseesennenenneneeneeeseeey 1 STATEMENTOFFACTS.....eeecccccccccsssesceseeneeesesssecneenaererseneeseesreasseneneenaes 3 ARGUMENTu.ucccccccccccssccesseccsscceeseeesseecseassseenseecsseeenseesseectseseesauesnegassasesseecnas 3 J. THE EVIDENCE DOES NOT SHOW THAT APPELLANT COMMITTEDDISTINCT INDEPENDENT FELONIOUS CRIMINAL CONDUCT SEPARATE FROM HIS POSSESSION OF A GUN... 3 A. Introduction. .occccccccccccccsseseccceneeceneceseeesseeesasensecessecssseesssesesteeeesseessneeanees 3 B. The Standard of REVicW. .....cccceccceeessessssscssssessesseeesseeseeerseestaesesteesenenees 5 C. The People Must Show Felonious Conduct Distinct From Appellant’s Otherwise Misdemeanor Possession Of @ GUM.........cccscesceeseeteeeeeeteeseeeneees 5 CONCLUSIONuececccccccccccesccssesesseceececeeseseeesassscseesseeseeecseassesouasseeseaseaesaneneaes 20 CERTIFICATE OF COMPLIANCE.......ccccsessecssesseerseeneseeeeseeenereseseneaeans 21 DECLARATION OF SERVICE).......ccceccsessessesseseeeseesseeeneesneeeseeseseeenenseasens 22 Table of Authorities Cases In re Hayes (1969) 70 Cal.2d 604 .....cccceeceeeeesenseseseesesessseeeersneneseeeeatans 17 Inre Jorge P. (2011) 197 Cal.App.4th 628 .....ccsssseeeeseeetenerensene 8, 12, 13 Neal y. State ofCalifornia (1960) 55 Cal.2d 11 ce cecsesesseesenetesseeneeenes 18 People v. Briceno (2004) 34 Cal.4th 451... seseeeessnseeneneneteteneneteeireseees 11 People v. Correa (2012) 54 Cal.4th 331 ooo eesseesesserseeeseeeeeeeveneeeeenates 18 People v. Cromer (2001) 24 Cal.4th 889 ooccsceesserceseeseneeeeneeeeseeeeeens 5 People v. Deloza (1998) 18 Cal.4th 585 occeescsseeseecsecsareeseesseeenreeseateees 15 People v. Haendiges (1983) 142 Cal.App.3d Supp. 9 oo... eeeeeseeseeeeeeees 15 People v. Harrison (1969) 1 Cal.App.3d 115eeeccseeesseseseeeenseeee 17, 18 People v. Jones (2012) 54 Cal.4th 350 oo. eeeecesssesrerseeeenees 15, 16, 18, 19 People v. Lamas (2007) 42 Cal.4th 516............. 4,6, 7, 8, 10, 11, 13, 19, 20 People v. Robles (2000) 23 Cal.4th 1106.0... eeeesseeeesseeeeeeeeeeees 5, 6, 16 Statutes Penal Code section 186.22 .........cccccescsccsesesssseececeresssssesneeeevesseees 4,11, 12,16 Penal Code section 186.22, subdivision (a).............. 1,2, 4, 6, 9, 14, 16, 19 Penal Code section 186.22, subdivision (D)(1) ......cccsccccssssscceecssssseeesererees 11 Penal Code section 654 .........cccccscsessesscescssscneeeeeeeteceeetenseueeeeeeseneneenea 16, 17, 18 Penal Code section 654, subdivision (€) .......:ceeceeseeseeetseeteeneesenneeeeeeeneatens 15 Penal Code section 667.5, subdivision (b) 0... eieeseeseeseesereerteeeteeeeesetenees 2 Penal Code section 954 oo... ceeccescccscseessesesesetsseneesesesseeeseatecsaueessaeseneeeeesaeeenas 3 Penal Code section 995 0... eeccesecesescessecsseeeeseeeseeescesnaceseseesseaeseaeeesaneeeseaeeeeas 2 Penal Code section 1192.7, subdivision (C)(28) .......cscesseseseesesteeeteeers 11, 16 Penal Code section 12021, subdivsion (2)........ccesscecessesteeeeersstseeeeeeeerees 13 Penal Code section 12021, subdivision (a)(1) .............8 2, 3, 4,9, 13, 14, 19 Penal Code section 12025 ooo... eeeeeesceessneesseeeesesesesssecesseeesecatsesssssseeees 13 Penal Code section 12025, subdivision (€)(1) .........ccscecccessserteeeesesneneeaes 5, 14 il Penal Code section 12025, subdivision (2)(1)(D)(3) ....sesecceereeerereereees 2,3 Penal Code section 12025, subdivision (b)(3) ......sessesseereees 4,5, 14, 16, 19 Penal Code section 12025, subdivision (D)(7) .....scccsecssceseeteeteeteeteeenereenees 4 Penal Code section 12031 .....cceeceeeessesssessseeseseeeresseeeeeessessseerseessaeessessensans 13 Penal Code section 12031, subdivision (a)(1) ........ 5, 7, 8, 10, 12, 14, 19, 20 Penal Codesection 12031, subdivision (a)(1)(a)(2)(C))....eee2,3 Penal Code section 12031, subdivision (€)(2) .....ccecseeesesseseecetteretesereeneeens 6 Penal Code section 12031, subdivision (a)(2)(C).4,5, 6, 7, 9, 14, 15, 16, 19 Penal Code section 12031, subdivision (a)(2)(G) .......cccesscenereeeterreeenees 4 Other Authorities CALCRIM No. 1400 ...ccccccccccscccssesseecseeeeecseeessecnsssssseeseecseesseesesesneerneeatease 6 California Rules of Court, rule 8.516 (a)(1)..cccccscsceseseteeteetetreteerientenees 1 ill IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, ) SupremeCt. ) No. $206084 ) Plaintiff and Respondent, ) Court of Appeal ) No. G046177 V. ) ) Superior Court DANIEL INFANTE, ) No. 1ONF1137 ) Defendant and Appellant. ) ) APPEAL FROM THE SUPERIOR COURT OF ORANGE COUNTY Honorable Richard W. Stanford, Judge APPELLANT’S OPENING BRIEF ISSUE PRESENTED (California Rules of Court, rule 8.516 (a)(1) Did the Court of Appeal correctly determine that defendant committed independent felonious conductthat elevated his otherwise misdemeanorfirearm possession to a felony and supported the charge of being an active participant in a criminal street gang in violation of Penal Code’ section 186.22, subdivision (a)? STATEMENT OF THE CASE An information filed on June 3, 2010, charged appellant Daniel ' All further references are to the Penal Code, unless noted. Infante in count one with having a concealed firearm in a vehicle as an active participant in a criminalstreet gang (§ 12025, subd. (a)(1)(b)(3)); in count two with carrying a loadedfirearm in public as an active participant in a criminalstreet gang (§ 12031, subd. (a)(1)(a)(2)(C)); in countthree with possessionofa firearm by a felon (§ 12021, subd, (a)(1))’; and in count four with street terrorism. (§ 186.22, subd. (a).) Appellant was further charged with three prison priors. (§ 667.5, subd. (b).) (1CT pp. 173-175.) On October 25, 2011, appellant filed a motion to dismiss counts one, two, and four, pursuantto section 995. (1CT p. 219.) On November4, 2011, the court granted the motion as to counts one and two, and dismissed counts one and two’. (1CT pp. 252-254.) The People filed a notice of appeal from the dismissal of counts one and two on December5, 2011. (1CT p. 232.) On January 27, 2012, the People andappellant entered into a plea agreement where appellant pled guilty to counts three and four, and admittedall priors, in exchange for a stipulated prison sentence of twoyears. (Supp ICTpp.3, 7-8, Supp 1RTp. 3.) On October 2, 2012, the Court of Appealissued a published opinion 2 After this case wasfiled, sections 12021, 12031, and 12025 were renumbered without substantive changesas sections 29800, 25850, and 25400, respectively. As the recordrefers only to the prior sections, appellant will continue to refer to sections 12021, 12031, and 12025. 3 The court originally reduced both counts to misdemeanors. (1RT p. 11.) At the later request of the prosecution the court agreed to dismiss both counts. (IRT pp. 14-15.) reversing the trial court. On January 16, 2013, this court granted review. STATEMENTOF FACTS’ On April 1, 2010, appellant was driving a car with a fellow gang member and wasstoppedbythe police. (1CT pp. 9-12.) A search ofthe car revealed two loaded firearms in a hidden compartment. (1CT pp. 20-21.) Appellant was a convicted felon and, it was argued, an active participant in a criminal street gang. (ICT pp. 61-65, 152-153.) ARGUMENT I. THE EVIDENCE DOES NOT SHOW THAT APPELLANT COMMITTED DISTINCT INDEPENDENT FELONIOUS CRIMINAL CONDUCT SEPARATE FROM HIS POSSESSION OF A GUN. A. Introduction. Appellant committed one physicalact, that of possession of a firearm. Under section 954 that one act may be charged, depending on the circumstances, as multiple crimes. That was done so here with appellant being charged in count one with having a concealed firearm in a vehicle as an active participant in a criminal street gang (§ 12025, subd. (a)(1)(b)(3)); in count two with carrying a loaded firearm in public as an active participant in a criminal street gang (§ 12031, subd. (a)(1)(a)(2)(C)); and in count three with possession ofa firearm by a felon (§ 12021, subd, (a)(1).) * Taken from the preliminary hearing. (1CT pp. 173-175.) Violations of sections 12025 and 12031 are normally deemed misdemeanors. (§§ 12025, subd. (b)(7), 12031, subd.(a)(2)(G).) However, each section contains a provision elevating the offense to a felony when the defendantis proved to be “anactive participant in a criminalstreet gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act....” (§§ 12025, subd. (b)(3), 12031, subd. (a)(2)(C).) In this case the Court of Appeal held that the felony offense of felon in possession of a gun (§ 12021, subd., (a)(1)) was sufficient to establish the substantive gang charge as well as elevate the other nominally misdemeanoroffensesinto felony offenses. This court has held, however, in People v. Lamas (2007) 42 Cal.4th 516, that whatis required is felonious conductthat is distinct from the otherwise misdemeanorpossessionofthe firearm. In defining the issuein this case, this court clarified that the question was whether “defendant committed independentfelonious conduct that elevated his otherwise misdemeanor firearm possessionto a felony and supported the chargeofbeing an active participant in a criminal street gang in violation of section 186.22, subdivision (a).” (emphasis added). Appellant’s position is that since all three of these offenses occurred during a single physical act, appellant did not commit independent felonious conduct that would allow his misdemeanorfirearm possessionsto be elevated to felonies by the same felony that was usedto establish the substantive gang offense. B. The Standard of Review. The issue presents a pure question of law, and is reviewed de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894.) C. The People Must Show Felonious Conduct Distinct From Appellant’s Otherwise Misdemeanor Possession of a Gun. As noted above,both the offense in count one, having a concealed firearm in a vehicle (§ 12025, subd. (a)(1), and the offense in count two, carrying a loaded firearm in public (§ 12031, subd. (a)(1) are nominally misdemeanor offenses. Both offenses are elevated to felonies when the defendantis an active participant in a criminal street gang. (§ 12025, subd. (b)(3), § 12031, subd. (a)(2)(C).) In People v. Robles (2000) 23 Cal.4th 1106, the defendant was charged with possession of a loaded firearm in public as a felony under subdivision (a)(2)(C) of section 12031. As this court noted, “That subdivision elevates from a misdemeanorto a felony the offense of carrying a loaded firearm in public when committed by ‘an active participant in a criminalstreet gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act.’ [Citation.]” (Ud. at p. 1109.) The Robles court stated its task was “‘to ascertain what the Legislature meant by [an active participant in a criminal street gang, as defined in section 186.22(a)].” (bid. ) This court construed the languagein section 12031, subdivision (a)(2) “as referring to the substantive gang offense defined in section 186.22(a).” (People v. Robles, supra, 23 Cal.4th at p. 1115.) As a result, this court concluded possessionof a loaded firearm in public is punishedas a felony undersection 12031, subdivision (a)(2)(C) “when a defendant satisfies the elements of the offense described in section 186.22(a). Those elements are [1] ‘actively participat[ing] in any criminal street gang [2] with knowledgethat its members engage in or have engagedin a pattern of criminal gangactivity’ and [3] ‘willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by membersofthat gang.’ [Citation.]” (People v. Robles, 23 Cal.4th at p. 1115; see CALCRIM No. 1400.) In other words, a violation of section 186.22, subdivision(a) isa prerequisite to elevating a violation of section 12031 from a misdemeanor to a felony under subdivision (a)(2)(C) ofthe latter section. In People v. Lamas, supra, 42 Cal.4th 516, this court again confronted the interplay betweensection 186.22, subdivision (a) and section 12031, subdivision (a)(2)(C). This time the issue was whether possessionof a loaded firearm in public — again, normally a misdemeanor — could serve asthe felonious criminal conductnecessary to fulfill the third element ofa section 186.22, subdivision (a) violation. (/d. at pp. 519- 520.) In connection with the gang charge, the jury in Lamas had been oeinstructed, in pertinent part: ““‘[f]elonious criminal conduct includes carrying a loaded firearm in a public place by a gang member... or... carrying a concealed firearm by a gang member.’” (/d. at pp. 521-522, italics and fn. omitted.) The problem with this instruction was evident.It used a misdemeanoroffense as the felonious criminal conduct necessary to prove the defendant violated the gang statute, a clear example of bootstrapping. This court corrected the situation by holding that “ al/ of section 186.22(a)’s elements must besatisfied, including that defendant willfully promoted, furthered, or assisted felonious conduct by his fellow gang members before section 12031(a)(2)(C) applies to elevate defendant’s section 12031, subdivision (a)(1) misdemeanoroffense to a felony. Stated conversely, section 12031(a)(2)(C) applies only after section 186.22(a) has been completely satisfied by conduct distinctfrom the otherwise misdemeanor conduct of carrying a loaded weaponin violation of section 12031, subdivision (a)(1).” (People v. Lamas, supra, 42 Cal.4th 516, 524, italics original.) This court concluded, “defendant’s misdemeanor conduct—being a gang memberwhocarries a loaded firearm in public— cannot satisfy section 186.22(a)’s third element, felonious conduct, and then be used to elevate the otherwise misdemeanoroffense to a felony.” ([bid.) Left unanswered wasthe following: “[w]e do not address the issue raised in briefing regarding whether the felonious conduct requirementin section 186.22(a) can besatisfied with conductthat occurs contemporaneously with otherwise misdemeanor gun offenses because the record does not contain evidence that defendant [Lamas] engaged in any felonious conduct, either concurrently with, or prior to, his misdemeanorgun offenses.”(People v. Lamas, supra, 42 Cal.4th at p. 526, fn. 9.) This issue was addressed in Jorge P., whether a felony offense, based on the same conduct as the misdemeanoroffense, can support the section 186.22, subdivision (a) violation and by extension elevate the misdemeanorto a felony.(In re Jorge P. (2011) 197 Cal.App.4th 628, 635.) The court in Jorge P. held: “We concludethe prosecution must prove felonious conduct distinct from the conduct that underlies the 1203 1(a)(1) offense, notwithstandingthe possibility that a separate felony offense may be charged based on the same underlying conduct. Misdemeanor conductthat would be impermissibly used to support the gang allegation in count 1 under Lamas cannot be transformedinto viable felonious conduct simply by charging a different offense.” (dn re Jorge P., supra, 197 Cal.App.4th 628, 637,italics added.) The Court of Appealin the present case disagreed with the holding in Jorge P., stating: “We respectfully disagree with our colleagues in the Fifth Appellate District. It appears to us the rationale implicit in both Robles and Lamas wasto preclude the prosecution from bootstrapping what would otherwise be misdemeanor conductinto the “felonious criminal conduct” required to find a violation of section 186.22(a), and then having purportedly established a violation of that section, using that violation to elevate misdemeanorfirearm possession into a felony in a nuncpro tunc- like fashion. Bootstrapping is not present when,as in the present case, possession of the firearm is independently punishable as a felony under anotherpenal statute. In such a case, a violation of section 186.22(a) rests on the felonious criminal conduct of the defendant, not conduct punishable only as a misdemeanorwntil a violation of section 186.22(a) has been established. When possession ofthe firearm is independently punishable as a felony under someother statutory provision, such as it is in this case under section 12021, subdivision (a)(1) (convicted felon in possession of a firearm), that possession may beusedas the felonious criminal conduct necessary to establish a violation of section 186.22(a).” (Court of Appeal opinion at pp. 3-4.) The flaw in this reasoningis that the identical conduct is being used by the Court of Appeal to elevate the misdemeanorgun chargeinto a felony on the basis of that conduct being independently punishable as a felony. This court stated “section 12031(a)(2)(C) applies only after section 186.22(a) has been completely satisfied by conductdistinctfrom the otherwise misdemeanor conduct of carrying a loaded weapon in violation of section 12031, subdivision (a)(1).” (People v. Lamas, supra, 42 Cal.4th 516, 524,italics original.) The charge to counsel in this case was defined as whether“defendant committed independent felonious conductthat elevated his otherwise misdemeanorfirearm possessionto a felony and supported the charge of being an active participantin a criminalstreet gang in violation of section 186.22(a).” It would therefore appearthat this court is equating the term “distinct” criminal conduct with “independent” criminal conduct, an interpretation that is consistent with case law. The conductorthe physicalact in this case - that of having a loaded weapon or having a concealed weapon - is the identical conduct or physical act to possession of a gun by a felon. Theonlydifference between what would be a misdemeanorcharge and what would be a felony chargeis appellant’s status as a felon. This is therefore not felony conduct distinct or independent from the otherwise misdemeanor conduct, butis the identical conduct. The court in Jorge P. based its decision on the distinction between felony conduct, and a felony offense. Section 186.22, subdivision (a)states, in relevant part: “Any person whoactively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or 10 assists in any felonious criminal conduct by membersofthat gang...(italics added.) Jorge P. stated: “If the Legislature desired to specify felonious criminal offenses, or expand the scope of the conduct required, it had ample opportunity and ability to do so. (Compare § 186.22, subd. (b)(1) [‘any person whois convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members...” (italics added) | with § 1192.7, subd. (c)(28) [making ‘any felony offense, which would constitute a felony violation of Section 186.22’ a serious felony (italics added) ]; People v. Briceno (2004) 34 Cal.4th 451, 458-459.) Thus, ‘conduct’ and ‘offense’ are not synonymousfor purposes of a section 186.22(a) analysis.” (/n re Jorge P., supra, 197 Cal.App.4th 628, 636.) This court in Lamasalluded to the distinction between conduct and offenses as well. It noted, “ ‘misdemeanor convictions do not constitute 95 °9°99“felonious criminal conduct[,] and that “[i]t logically follows that misdemeanor conductsimilarly cannot constitute ‘felonious criminal conduct’ within the meaning of section 186.22.” (People v. Lamas, supra, 42 Cal.4th at p. 524.) In this case the single physical act required ofall three firearm offenses was the possession or carrying of the gun. Appellant’s behavior, actions and omissions constituted a single course of conduct from whichall 11 three offenses arose. As the court in Jorge P. stated: “We conclude the prosecution mustprove felonious conduct distinct from the conductthat underlies the 12031(a)(1) offense, notwithstanding the possibility that a separate felony offense may be charged based on the same underlying conduct. Misdemeanor conduct that would be impermissibly used to support the gangallegation in count 1 under Lamas cannotbe transformed into viable felonious conduct simply by charging a different offense.” (Jn re Jorge P., supra, 197 Cal.App.4th 628, 637.) Therationale behind Jorge P. is well reasoned, and consistent with this court’s holding in Lamas. Thelegislature in specifically referring to criminal conductin section 186.22 as opposedto criminaloffenses, is requiring distinct or independentcriminal conduct on the part of an individual to elevate what would otherwise be a misdemeanorto a felony. Thelegislature is well aware that one act of criminal conduct may be charged asdifferent offenses under section 954, and by specifying conduct in section 186.22 is impliedly rejecting the use of a single physical act to bootstrap a misdemeanorinto afelony. The Court of Appealin this case noted another issue with the holding in Jorge P. It stated “the Lamascourt stated the prosecution’s obligation to prove felonious criminal conductdistinct from a defendant’s otherwise misdemeanor conductofcarrying a loaded or concealed weapon in public “applies to the substantive charge that defendantis an active 12 participant ofa criminal street gang (§ 186.22(a)) and to the gun offenses that elevate to felonies only upon proofthat defendantsatisfied Robles’s requirements under section 186.22(a).” (People v. Lamas, supra, 42 Cal.4th at p. 520, italics added.) Although /n re Jorge P. did not involve a charge of 186.22(a) Un re Jorge P. supra, 179 Cal.App.4th at p. 630), the reasoning and conclusion reached therein would appear to prohibit a defendant from being convicted of violating section 186.22(a) where the underlying felonious criminal conduct involved a convicted felon’s possession ofa firearm (§ 12021, subds. (a)(1), (2)) if the firearm was possessed in public and was loaded or concealed on the defendant’s person, even if the defendant was not charged with violating section 12025 or 12031. This would be true because (1) under Jorge P., such felonious conduct would not be considered distinctfrom the otherwise misdemeanor conduct of possessing a loaded or concealed firearm in public Un re Jorge P., supra, 197 Cal.App.4th at p. 638), and (2) under Lamas, the rule that the felonious criminal conduct necessary to find a violation under section 186.22(a) must be distinct from a defendant’s otherwise misdemeanor conduct of possessing a loaded firearm in public applies to the substantive gang charge, as well as to misdemeanorfirearm offenses elevated to felony status upon proof the defendant violated section 186.22(a) (People v. Lamas, supra, 42 Cal.4th at p. 524). We do not think the Legislature or our Supreme Court intended such a result.” (Court of Appeal opinion at pp. 12- 13 13.) Theflaw in this reasoningis that nothing prevents a defendant from being convicted of violating section 186.22, subdivision (a), where the underlying felonious criminal conduct involved a convicted felon’s possessionofa firearm. (§ 12021, subds. (a)(1).) The error would come about if the prosecution attempted to bring additional charges of havinga concealedfirearm in a vehicle (§ 12025, subd. (a)(1), and carrying a loaded firearm in public (§ 12031, subd. (a)(1), nominally misdemeanor offenses, and then attempting to elevate both offenses to felonies (§ 12025, subd. (b)(3), § 12031, subd. (a)(2)(C)) based on the identical physical act charged as a felon in possessionofa firearm. (§ 12021, subd. (a)(1).) Based on the reasoning advanced here,those additional charges could be brought, but only as misdemeanors. The Court of Appealis correct in stating that the felony possession offense is not conduct distinct from the misdemeanor possession offenses, but the distinct conductis not at issue in using the felony possession offense to establish the substantive gang offense. Distinct or independent conductis only required if the prosecution has used the felony possession offense to establish the substantive gang offense and also seeks to use the same felony possession offense to elevate the misdemeanor possession offenses to felonies. While the specific issue before this court has only been addressedin published opinions in Jorge P. andthe instant case, there is a voluminous 14 history of decisions addressing the interplay between single physical acts of criminal conduct and multiple criminal offenses, and when additional punishment can be imposed for multiple criminal offenses, and that is with regard to section 654. Section 654, subdivision (a) states, in part: “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 oneprovision....” (§ 654, subd. (a).) This provision prohibits multiple punishments for: (1) a single act; (2) a single omission; or (3) an indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted of two offenses falling within the ambit of section 654, the execution of one of the sentences must be stayed. (People v. Deloza, supra, 18 Cal.4th 585, at p. 592.) While appellant is not facing an additional sentence for elevating the two misdemeanoroffenses to felonies (People v. Jones (2012) 54 Cal.4th 350, 352), appellant would certainly experience an additional adverse consequence from the elevation of the two misdemeanoroffensesto felonies. A conviction for a misdemeanor makesthat crime, by definition, less serious than those convicted of a felony. (See, e.g., People v.. Haendiges (1983) 142 Cal.App.3d Supp. 9, 24.) It follows that a conviction for a felony is more serious than a conviction for a misdemeanor.Further, a violation of section 12031, subdivisions (a)(2)(C) includes a substantive 15 violation of section 186.22, subdivision (a). (People v. Robles, 23 Cal.4th at p. 1115.) Therefore, a conviction ofviolating section 12031, subdivision (a)(2)(C)(or a violation of 12025, subd. (b)(3)), constitutes a conviction of a “felony offense[ ] which would... constitute a felony violation of Section 186.22” within the meaning of section 1192.7, subdivision (c)(28), i.e., a serious felony. The prospect of two additional strike convictions is a serious adverse consequence. The rationale behind the application of section 654 should therefore apply in this case. This court’s recent decision in People v. Jones, supra, 54 Cal.4th 350, interpreting section 654, contains an extensive analysis ofjust why a single physical act cannot be punished under multiple criminalstatutes. In Jones, the defendant was driving with a loaded .38—caliber revolver. (People v. Jones, supra, 54 Cal.4th 350, 352.) The defendant was convicted of three crimes: (1) possession ofa firearm by a felon; (2) carrying a readily accessible concealed and unregistered firearm; and (3) carrying an unregistered loaded firearm in public. (/bid.) He was sentenced to concurrentthree-year prison terms on eachof the three counts, plus a one- year enhancement. (Jbid.) The defendant appealed, arguing that execution of his sentences on two ofthe counts hadto be stayed undersection 654. (People v. Jones, supra, 54 Cal.4th 350, 352.) This court agreed, holding that a single physical act which violates multiple provisions of law may only be 16 punished once undersection 654. (People v. Jones, supra, 54 Cal.4th 350, 352.) In so doing this court reversed Jn re Hayes (1969) 70 Cal.2d 604 and disapproved People v. Harrison (1969) 1 Cal.App.3d 115. In Hayes, the defendant drove while intoxicated and withouta valid license. Un re Hayes, supra, 70 Cal.2d 604, 605.) He pled guilty to the separate offenses of driving with knowledge of a suspended license and while under the influence of intoxicating liquor. (/bid.) He was sentenced for both offenses. Ibid.) The Hayes court held that the sentencing on both violations did not run afoul of section 654. Un re Hayes, supra, 70 Cal.2d 604, 605.) Hayes recognized that the crucial inquiry in section 654 cases is determining whetherthere is a “single act” being punished. (In re Hayes, supra, 70 Cal.2d 604, 605-606.) The Hayes court held that the appropriate mode of analysis was to examineonly the criminal acts at issue (e.g., driving with a suspended license and driving while intoxicated), not the noncriminal acts (e.g., driving), to determine if there was a “single act.” (/d. at pp. 607— 608.) Hayes rejected the contention that because both violations were predicated on the singularact of driving, they can only be punished once. ([bid.) In Harrison, the defendant was convicted of possession of a revolver by a felon and carrying a loaded firearm in a vehicle on a public street. (People v. Harrison, supra,1 Cal.App.3d 115, 118.) Relying on Hayes, 17 the Harrison court held that the defendant’s sentence did not violate section 654. (Id. at p. 122.) The Harrison decision added an additional component to its reasoning by describingthe distinct goals of the twoviolated statutes: eliminating the potential hazard posed by an ex-felon’s possession of firearms (whether loaded ornot); and eliminating the potential hazard posed by any person carrying a loaded firearm in public (whether a felon or not). (Ibid.) Citing Neal v. State ofCalifornia (1960) 55 Cal.2d 11, 19-20, disapproved on other grounds by People v. Correa (2012) 54 Cal.4th 331, the Harrison court concludedthatthe “intent or objective” underlying the criminal conduct wastherefore not singular, but several. (People v. Harrison, supra,\ Cal.App.3d 115, 122.) This court, in rejecting the holdings in Hayes and Harrison, succinctly held: “Section 654 prohibits multiple punishmentfora single physicalact that violates different provisions of law.” (People v. Jones, supra, 54 Cal.4th 350, 358.) The court further specifically rejected the Harrison court’s analysis of the distinct goals of the individual statutes noting that the legalrules it logically engenders are inconsistent with section 654's actual language. (People v. Jones, supra, 54 Cal.4th 350, 355.) Jones stands for two points of law in the context of a section 654 analysis that are particularly relevanthere. First, the courts lookat whether a single physical act is being punished, not whetherdistinct criminalacts 18 are being punished. (People v. Jones, supra, 54 Cal.4th 350, 355-357.) Second, the courts do not look to whether the statutes that a defendant violated have distinct purposes. (/d. at p. 355.) Therationale ofJones should apply here. Appellant was charged with the felony offense of being a felon in possession of a gun (§ 12021, subd., (a)(1)), and that same felony offense was used to establish the substantive gang offense. (§ 186.22, subd. (a).) The issue is whetherthat same felony offense for being a felon in possession of a gun can also be used to elevate two misdemeanoroffense into felony offenses. (§§ 12025, subd. (b)(3), 12031, subd. (a)(2)(C).) This court stated “section 1203 1(a)(2)(C) applies only after section 186.22(a) has been completely satisfied by conduct distinctfrom the otherwise misdemeanor conductof carrying a loaded weaponin violation of section 12031, subdivision (a)(1).” (People v. Lamas, supra, 42 Cal.4th 516, 524,italics original.) This court further clarified the term “distinc?” in posing the issue in this case: “whether “defendant committed independent felonious conduct that elevated his otherwise misdemeanorfirearm possession to a felony and supported the charge of being an active participant in a criminal street gang in violation of section 186.22, subdivision (a).” (emphasis added.) Only a single physical act occurs by virtue of possessing a gun, regardless of how many intentions the possessor may havefor the object. (See e.g., People v. Jones, supra, 54 Cal.4th 350, 353.) It therefore follows 19 that a single physical act is only one course of conduct. (Id. at p. 352.) This one course of conduct is therefore not “conduct distinctfrom [or independent from] the otherwise misdemeanor conduct of carrying a loaded weaponin violation of section 12031, subdivision (a)(1).” (People v. Lamas, supra, 42 Cal.4th 516, 524,italics original, comment added.) CONCLUSION Appellant’s behavior, actions and omissions constituted a single course of conduct, a single physicalact, from which all three offenses arose. Therefore appellant did not engage in felonious conduct that was distinct or otherwise independentfrom his misdemeanor conduct, andhis misdemeanor gun offenses maynotbeelevatedto felonies by use of the same physical act of possession of a gun. Dated: March 20, 2013 Respectfully submitted, Stephen M. Hinkle Attorney for Appellant 20 CERTIFICATE OF COMPLIANCE WITH CALIFORNIA RULES OF COURT, RULE8.360. Case Name: People v. DANIEL INFANTE Supreme Court No. 8206084 I, Stephen M.Hinkle, certify under penalty of perjury under the laws of the State of California that the attached APPELLANT’S OPENING BRIEFcontains 4912 words as calculated by Microsoft Word 2003. Dated: March 20, 2013 Stephen Hinkle 21 Stephen M. Hinkle SUPREME COURT CASENO. 8206084 Attorney at Law SUPERIOR COURT CASE NO. 10NF1137 11260 DonnerPass Rd., C1 PMB 138 Truckee, CA 96161 People v. DANIEL INFANTE DECLARATION OF SERVICE I, the undersigned, say: I am over 18 years of age, employedin the County of Nevada, California, in which county the within-mentioned delivery occurred, and not a party to the subject cause. My business address is 11260 Donner Pass Rd., Cl PMB 138, Truckee, CA.I served the following document: APPELLANT’S OPENING BRIEF of whicha true copy of the documentfiled in the causeis affixed, by placing a copy thereofin a separate envelope for each addressee names hereafter, addressed to each addressee respectively as follows: Attorney General Appellate Defenders, Inc. Served electronically at Attn: Anita Jog ADIEService@doj.ca.gov and a hard Served electronically at copy at: P.O. Box 85266 eservice-criminal@adi-sandiego.com San Diego, CA 92186-5266 Office of the District Attorney Fourth District Court of Appeal Attn: Brian Fitzpatrick Division Three P.O. Box 808 601 W. Santa Ana Blvd. Santa Ana, CA 92702 Santa Ana, CA 92701 Clerk of the Court Daniel Infante AL-5636 Superior Court of Orange County Kern Valley State Prison 1275 N. Berkeley Ave. P.O. Box 3130 Fullerton, CA 92832-1206 Delano, CA 93216 Attn: Hon. Richard W. Stanford, Judge Each envelope wasthen sealed and with the postage thereon fully prepaid deposited in the United States mail by meat Truckee, California, on March 25 2013. I declare under penalty of perjury that the foregoing is true and correct. Executed on March 25, 2013, at Truckee, California. Stephen Hinkle 22