Error and/or relief
The defendant was convicted of being a felon in possession of a firearm and of being a felon in possession of ammunition. The trial court should have stayed punishment of the ammunition possession count under section 654 and the defendant deserves one more day of custody credit.
First Holding:
The trial court erred in imposing punishments for both counts 2 (felon in possession of a firearm) and 3 (felon in possession of ammunition). The only ammunition was that in the pistol, so possessing the firearm and possessing the ammunition inside were one act within the meaning of section 654. The trial court therefore should have imposed and then stayed the defendant’s sentence on count 3.
There is no indication that the court would exercise its overall sentencing discretion any differently had it stayed sentence on one of the counts. To correct the sentence and avoid the unnecessary expense of producing the defendant for a sentencing hearing that will not change his actual prison time, we exercise our authority to modify the judgment by staying the execution of the defendant’s sentence on count 3.
Authority:
PEN 1260
People v. Wright (2025) 113 Cal.App.5th 832, 846
People v. Lopez (2004) 119 Cal.App.4th 132, 138
People v. Alford (2010) 180 Cal.App.4th 1463, 1473
Second Holding:
The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.
Authority:
People v. Scott (2016) 3 Cal.App.5th 1265, 1271
Third Holding:
Section 654 precludes multiple punishments for a single act or indivisible course of conduct punishable under more than one criminal statute. When a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.
Authority:
People v. Cleveland (2001) 87 Cal.App.4th 263, 267
People v. Alford (2010) 180 Cal.App.4th 1463, 1466
Fourth Holding:
The defendant relies on the principal that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt. While that is a correct statement of a principle, that principle is inapplicable to the statutory prohibition on double punishment described in section 654.
Section 654 is not a sentencing enhancement. On the contrary, it is a sentencing reduction statute which, therefore, does not implicate the Sixth Amendment prohibition against judicial fact finding to increase criminal sentences.
Authority:
Erlinger v. United States (2024) 602 U.S. 821, 834
People v. Lynch (2024) 16 Cal.5th 730, 742
People v. Carter (2019) 34 Cal.App.5th 831, 846
Fifth Holding:
A court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. The circumstances justifying departure from the Three Strikes law must be extraordinary, and an abuse of discretion in this regard is even more extraordinary.
Authority:
People v. Carmony (2004) 33 Cal.4th 367, 374
People v. Vargas (2014) 59 Cal.4th 635, 641
Sixth Holding:
The defendant is entitled to one additional day of custody credit because the trial court did not award the defendant any credit for the day of sentencing. The abstract of judgment must therefore be amended to reflect that the defendant has two days of custody credits.
(Gary note: The court did not cite any authority for this order, most likely because it seems so obvious. But there is statutory and case authority the credit for time served includes the day of arrest and the day of sentencing, some of which I have provided below.)
Authority:
PEN 2900.5(a)
People v. Cardenas (2015) 239 Cal.App.4th 220, 235-236
People v. Morgain (2009) 177 Cal.App.4th 454, 469 [defendant is entitled to credit for the date of his arrest and the date of sentencing]
People v. Taylor (2004) 119 Cal.App.4th 628, 647
People v. Heard (1993) 18 Cal.App.4th 1025, 1027 [appellant is entitled to credit for both the date of his arrest and date of sentencing]
People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence custody credits even though it was only partial day]
In re Jackson (1986) 182 Cal.App.3d 439 [a partial day in custody counts as a day in custody]
Seventh Holding:
The defendant did not assert his Second Amendment claims in the trial court. Nonetheless, a defendant may raise a facial constitutional challenge for the first time on appeal, which we independently review.
Authority:
People v. Gomez (2025) 110 Cal.App.5th 419, 437
Eighth Holding:
The defendant’s as-applied constitutional challenge is forfeited. However, we will assess the defendant’s claim that the failure to raise the issue constituted ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.
(Gary note: the court went on to conclude that the firearm and ammunition possession charges were not unconstitutional as applied to him. I have not included the detailed discussion as it was basically a recitation of historical treatment of persons who were deemed “disarmed” by their prior conduct.)
Authority:
People v. Patton (2019) 41 Cal.App.5th 934, 946
People v. Hoyt (2020) 8 Cal.5th 892, 958
Ninth Holding:
When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction is consistent with the Nation’s historical tradition of firearm regulation. A court must ascertain whether the new law is relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.
Applying that standard in Anderson, the First District Court of Appeal found that sections 29800(a)(1) and 30305(a)(1) are facially valid under the Second Amendment. Several California courts of appeal have come to the same conclusion. We agree with the reasoning of these cases, and we reject the defendant’s claim that they were wrongly decided. Accordingly, the defendant’s facial challenge fails.
Authority:
United States v. Rahimi (2024) 602 U.S. 680, 681
People v. Anderson (2024) 104 Cal.App.5th 577, 586–600
People v. Richardson (2025) 108 Cal.App.5th 1203, 1212
People v. Gomez (2025) 110 Cal.App.5th 419, 439
People v. Bey (2025) 108 Cal.App.5th 144, 162
Tenth Holding:
The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.
Authority:
People v. Scott (2016) 3 Cal.App.5th 1265, 1271
