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The People v. Maurice D. Sanders

November 19, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MAURICE D. SANDERS, DEFENDANT AND APPELLANT.



Court: Superior County: Kern Judge: Michael E. Dellostriitto Ct.App. 5 F059287 Super. Ct. No. BF126309A

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

Kern County

Here we are called upon to apply two related but distinct concepts: (1) the rule prohibiting multiple convictions based on greater and necessarily included offenses, and (2) Penal Code section 654's prohibition against multiple punishment when "[a]n act . . . is punishable in different ways by different provisions of law . . . ."*fn1 Defendant Maurice D. Sanders was convicted on two counts of possessing a firearm after conviction of a felony (former § 12021, subd. (a)(1), hereafter section 12021(a)(1)), and two counts of possessing a firearm after conviction of a specified violent offense (former § 12021.1, subd. (a), hereafter section 12021.1(a)).*fn2 All four counts were based on his simultaneous possession of two firearms. We hold that neither section 12021.1(a) nor section 12021(a)(1) is a necessarily included offense of the other. Accordingly, under section 954, defendant was properly convicted of both offenses. Applying our recent decisions in Correa, supra, 54 Cal.4th 331, and People v. Jones (2012) 54 Cal.4th 350, we further hold that defendant may be separately punished for two violations of section 12021(a)(1) and of section 12021.1(a) based on his simultaneous possession of two firearms. However, he may not also be separately punished for violations of section 12021(a)(1) and section 12021.1(a) based on possession of the same firearm. Accordingly, we reverse the Court of Appeal, which reached different conclusions about the propriety of multiple convictions and multiple punishments in this case.

I. BACKGROUND

Officers conducting a parole search of defendant's residence discovered two operable shotguns and ammunition. Defendant was charged with two counts of possessing a firearm after conviction of a felony under section 12021(a)(1) (offender in possession), based on felony convictions for making criminal threats (§ 422), discharging a firearm with gross negligence (§ 246.3), and kidnapping (§ 207). Based on the same convictions he was also charged with two counts under section 12021.1(a), alleging gun possession by a person convicted of a specified violent offense (violent offender in possession).*fn3 At trial defendant denied that he lived at the residence and claimed the two shotguns were not his. He stipulated that he previously was convicted of a felony within the meaning of sections 12021 and 12021.1. The jury convicted him of all four counts.

Defendant was also charged with various enhancements based on his prior felony convictions. He waived his right to a jury trial on the enhancements, and the trial court found he had suffered four prior convictions that qualified him for sentencing under the Three Strikes law (§§ 667, subds, (b)-(i), 1170.12, subds. (a)-(d)), and that he had served three prior prison terms (§ 667.5, subd. (b)). It sentenced him to two concurrent terms of 25 years to life for his offender in possession counts under section 12021(a)(1). It imposed terms of 25 years to life for his violent offender in possession counts under section 12021.1(a), but stayed execution of those terms under section 654. Finally, it struck punishment for the three prior prison terms pursuant to section 1385.

On appeal, defendant argued, and the Attorney General conceded, that violent offender in possession under section 12021.1(a) is a necessarily included offense of offender in possession under section 12021(a)(1). The Court of Appeal accepted the Attorney General's concession and reversed defendant's section 12021.1(a) convictions. The Court of Appeal also stayed defendant's concurrent sentence on the second section 12021(a)(1) conviction under section 654.

We denied defendant's petition for review challenging the sufficiency of the evidence. On our own motion, we ordered review limited to the following issues: "(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 (Pen. Code § 12021, subd. (a)(1))?" and "(2) Was defendant properly sentenced to concurrent terms for his simultaneous possession of two firearms in violation of Penal Code section 12021, subdivision (a)(1)?"

II. DISCUSSION

A. Defendant's Single Act of Possessing a Firearm Supported Multiple Convictions Under Sections 12021(a)(1) and 12021.1(a)

While section 654 prohibits multiple punishment, it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct. (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692.) However, a "judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]" (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)

When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763; accord, People v. Milward (2011) 52 Cal.4th 580, 589; People v. Medina (2007) 41 Cal.4th 685, 701-702.) If neither offense is necessarily included in the other, the defendant may be convicted of both, "even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct." (People v. Ortega, supra, 19 Cal.4th 686, 693.)

As noted, defendant was convicted on two counts of offender in possession (§ 12021(a)(1)) and two counts of violent offender in possession (§ 12021.1(a)) based on his simultaneous possession of two firearms. In light of the Attorney General's concession below, the Court of Appeal held that section 12021.1(a) is a necessarily included offense of section 12021(a)(1) and reversed defendant's convictions on counts two and four.

In this court, defendant and the Attorney General agree that the rule against multiple convictions based on necessarily included offenses bars separate convictions under both sections for possession of the same gun. They disagree, however, about which offense is necessarily included in the other. Defendant argues that "section 12021, subdivision (a)(1), which applies to any felony conviction, is the 'greater' offense, because by definition it includes all of the enumerated felonies in section 12021.1, subdivision (a)." Thus, he argues, violent offender in possession is a "lesser included" offense of offender in possession. Conversely, the Attorney General argues that offender in possession (§ 12021(a)(1)) is a necessarily included offense of violent offender in possession (§ 12021.1(a)) because a person who possesses a firearm, having previously been convicted of one of the violent offenses listed in section 12021.1(b), will necessarily be a felon in possession of a firearm under section 12021(a)(1). Both arguments fail. Neither offense is necessarily included in the other.

"In deciding whether multiple conviction is proper, a court should consider only the statutory elements." (People v. Reed (2006) 38 Cal.4th 1224, 1229.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Id. at p. 1227.) In other words, " '[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' " (Ibid., quoting People v. Lopez (1998) 19 Cal.4th 282, 288.)

Section 12021(a)(1) prohibited possession of a firearm by a person convicted of (1) any felony or (2) an offense "enumerated in subdivision (a), (b), or (d) of [former] Section 12001.6," or (3) by a person addicted to a narcotic drug.*fn4 Although commonly referred to as "felon in possession of a firearm," some of the offenses listed in section 12001.6 were "wobbler" offenses that could result in either a felony or misdemeanor conviction.*fn5 In addition, subdivision (a)(2) of section 12021 banned firearm ...


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