Filed 3/18/16 P. v. Knight 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----


THE PEOPLE,                                                                                  C078561

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF127439A,
                                                                                        SF127439B)
         v.

LEONARD ANGELO KNIGHT,

                   Defendant and Appellant.




         A jury found defendant Leonard Angelo Knight guilty of one count of being a
felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)),1 one count of
unlawfully carrying a loaded firearm within a vehicle in a public place (§ 25850, subd.
(c)(4)), one count of carrying a loaded firearm within a vehicle in a public place while not
the registered owner of the firearm (§ 25850, subd. (c)(6)), and one count of possession
of marijuana (Health & Saf. Code, § 11357, subd. (c)). In a bifurcated proceeding, the
trial court found true the special allegations that defendant had a prior strike conviction



1   Undesignated statutory references are to the Penal Code.

                                                             1
(§§ 667, subd. (d), 1170.12, subd. (b)). The trial court sentenced defendant to four years
in prison.
       On appeal, defendant contends he was improperly convicted and sentenced under
the penalty provisions of section 25850, subdivision (c)(4) and (6). We agree and shall
reverse with directions to the trial court to vacate defendant’s conviction for violating
section 25850, subdivision (c)(6). In all other respects, the judgment is affirmed.
                                      I. DISCUSSION2
       Relying on People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon), defendant
contends that he was improperly convicted and sentenced for unlawfully carrying a
loaded firearm within a vehicle in a public place (§ 25850, subd. (c)(4)) and for carrying
a loaded firearm within a vehicle in a public place while not the registered owner of the
firearm (§ 25850, subd. (c)(6)). The People concede the point, and we agree.
       Ramon involved section 12031, which is the predecessor to section 25850.3 In
Ramon, the appellate court explained: “Section 12031, subdivision (a)(1) sets forth the
elements of the crime of carrying a concealed firearm: ‘when he or she carries a loaded
firearm on his or her person or in a vehicle while in any public place or on any public
street in an incorporated city or in any public place or on any public street in a prohibited
area of unincorporated territory.’ [¶] Subdivision (a)(2) of section 12031 establishes the
penalty for violation of subdivision (a)(1) of section 12031, depending on the
circumstances surrounding the offense or the offender. If the defendant has a previous
felony conviction, or a previous conviction of this chapter, a violation of subdivision
(a)(1) is a felony. (Id., subd. (a)(2)(A).) If the firearm is stolen, then a violation of



2 We dispense with a recitation of the facts because they are unnecessary to the
resolution of this appeal.
3 Effective 2012, section 12031 was renumbered to section 25850. (Stats. 2010, ch. 711,
§ 6.) The minor changes made to the statute when renumbered are not relevant here.

                                               2
subdivision (a)(1) is a felony. (Id., subd. (a)(2)(B).) If the defendant is a member of a
criminal street gang, a violation of subdivision (a)(1) is a felony. (Id., subd. (a)(2)(C).)
Where the defendant does not lawfully possess the firearm, or is prohibited from
possessing a firearm by statute, a violation of subdivision (a)(1) is a felony. (Id., subd.
(a)(2)(D).) If the defendant has certain specified prior convictions, then a violation of
subdivision (a)(1) is a wobbler, punishable as either a felony or a misdemeanor. (Id.,
subd. (a)(2)(E).) If the defendant is not the registered owner of the firearm, then a
violation of subdivision (a)(1) is a wobbler, punishable as either a felony or a
misdemeanor. (Id., subd. (a)(2)(F).) If the defendant does not fit within any of the above
categories, the crime is punishable as a misdemeanor. (Id., subd. (a)(2)(G).) [¶]
Therefore, a violation of section 12031, subdivision (a)(1) is a crime, and subdivision
(a)(2)(A) through (G) of section 12031 simply establishes the penalty based on the
circumstances of the offense and the offender. The trial court erred, therefore, when it
entered judgment for violation of section 12031(a)(2)(C) and (a)(2)(F). Under the facts
of this case, Ramon violated section 12031, subdivision (a)(1) only once and can be
convicted only once of this crime.” (Ramon, supra, 175 Cal.App.4th at pp. 857-858.)
       Here, because defendant violated section 25850, subdivision (a)(1) only once, he
can only be convicted and sentenced under one of the penalty provisions of that statute.
The separate penalty provisions of section 25850 are not separate substantive offenses.
Rather, they provide the appropriate penalty when the substantive offense defined in
section 25850, subdivision (a) has been committed. Therefore, it was error for the trial
court to enter judgment for a violation of section 25850, subdivision (c)(4) and
subdivision (c)(6). (See Ramon, supra, 175 Cal.App.4th at pp. 857-858.)
       The remaining question is the proper remedy. The People and defendant agree
that the conviction under section 25850, subdivision (c)(6) should be vacated because it is
a wobbler (i.e., punishable as either a felony or a misdemeanor), while a conviction under
section 25850, subdivision (c)(4) is a felony. (§ 25850, subd. (c)(4) & (6).) We agree.

                                              3
Appellate courts that have confronted this issue have determined that the conviction for
the less serious crime should be vacated. (See Ramon, supra, 175 Cal.App.4th at
pp. 857-858; People v. Muhammad (2007) 157 Cal.App.4th 484, 489-490, 494.)
Accordingly, we will direct the trial court to vacate the conviction for violation of section
25850, subdivision (c)(6). Because imposition of sentence on that offense was stayed
pursuant to section 654, remand for resentencing is unnecessary.
                                    II. DISPOSITION
       We reverse with directions to the trial court to vacate defendant’s conviction for
violating section 25850, subdivision (c)(6). The trial court shall prepare an amended
abstract of judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.



                                                           /S/

                                                  RENNER, J.



We concur:


        /S/

ROBIE, Acting P. J.


         /S/

BUTZ, J.




                                              4
