Error and/or relief
A jury found the defendant guilty of one count of murder, two counts of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The trial court sentenced him on each count of conviction and did not stay the sentence on any count. The court improperly sentenced him on two counts of being a felon in possession of a firearm when he had only committed a single violation of that crime. The court erred when it sentenced him for being both a felon in possession of a firearm and a felon in possession of ammunition. We vacate defendant’s conviction on one count of being a felon in possession of a firearm and stay his sentence for being a felon in possession of ammunition. The abstract of judgment incorrectly marks trhe determinate term on count 2 as “M” for middle term rather than “H” to reflect the high term that was actually imposed, and must be corrected.
First Holding:
Possession of a firearm by a felon is a continuing offense. In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. The crime of possession of a firearm by a felon continues for as long as the possession of the firearm continues and is not completed until the possession has ceased. Therefore, where there is no evidence that the defendant relinquished his possession of a firearm, or that his possession was interrupted for a time, he can be convicted of only one count of that offense. The defendant possessed the same firearm on both dates charged in the information. The People did not present any evidence to show that the defendant ceased his possession of that firearm at any time between the murder and the arrest. We therefore vacate defendant’s conviction on count 4.
Authority:
People v. Mason (2014) 232 Cal.App.4th 355, 365, 366-367
Wright v. Superior Court (1997) 15 Cal.4th 521, 525, fn. 1
People v. Warren (1940) 16 Cal.2d 103, 112
Second Holding:
Section 654 provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. The statute bars multiple punishment for separate offenses arising out of a single occurrence when all of the offenses were incident to one objective. It prohibits punishment for both unlawful possession of a firearm and unlawful possession of ammunition when the only ammunition at issue was either found inside or fired from the firearm.
Authority:
People v. Cowan (2010) 50 Cal.4th 401, 498
People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923
People v. Sok (2010) 181 Cal.App.4th 88, 100
People v. Lopez (2004) 119 Cal.App.4th 132, 138
Third Holding:
Where multiple punishments have been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. Here, the trial court should have stayed the punishment on count 3, the lesser term. We will therefore modify the judgment to stay the sentence on that count.
Authority:
People v. Spirlin (2000) 81 Cal.App.4th 119, 131
People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923
People v. Sok (2010) 181 Cal.App.4th 88, 100
People v. Lopez (2004) 119 Cal.App.4th 132, 138
Fourth Holding:
The abstract of judgment for the determinate term on count 2 be modified to reflect that the defendant was sentenced to the high term (“H”), rather than the mid-term (“M”).
Authority:
People v. Mitchell (2001) 26 Cal.4th 181, 187