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The People v. Danny Lee Downing

May 10, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DANNY LEE DOWNING, SR., DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF10429)

The opinion of the court was delivered by: Mauro , J.

P. v. Downing

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Danny Lee Downing, Sr., of unlawfully possessing a firearm, unlawfully possessing ammunition, and unlawfully carrying a concealed weapon in his vehicle.

On appeal, defendant contends his convictions for unlawfully possessing a firearm and unlawfully carrying a concealed weapon in his vehicle arose from a single possessory act and the trial court should have stayed his sentence for carrying a concealed weapon pursuant to Penal Code section 654. The People agree, and so do we.

We will modify the judgment to stay the sentence on count 3 and affirm the judgment as modified.

BACKGROUND

When officers conducted a traffic stop to execute a search warrant on defendant's truck, they found a sock with several .22 caliber bullets on the front passenger floorboard and a pistol and holster under the driver's seat. Defendant told officers he worked as a night watchman and kept the gun for protection, although he knew (having previously been convicted of a felony) he should not possess a gun.

The jury found defendant guilty of unlawful possession by a felon of a firearm (former Pen. Code, § 12021, subd. (a)(1)*fn1 [now § 29800]*fn2 -- count 1), unlawful possession by a felon of ammunition (former § 12316, subd. (b)(1) [now § 30305]-- count 2), and carrying a concealed weapon in his vehicle (former § 12025, subd. (a)(1) [now § 25400] -- count 3). The trial court sentenced defendant to six years in prison on count 1 (three years, doubled for defendant's prior strike conviction), a concurrent sentence of one year four months on count 2, and a concurrent sentence of six years on count 3. The trial court declined to apply section 654 to stay the sentence in count 2.

DISCUSSION

Defendant contends the trial court should have stayed his concurrent sentence on count 3 pursuant to section 654. The People agree and so do we.

Section 654 prohibits punishment for multiple offenses that arise from the same act or from a series of acts that constitute an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) It does not allow any multiple punishment, including either concurrent or consecutive sentences. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) The purpose of section 654 "is . . . to ensure that punishment is ...


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