Filed 11/19/15 P. v. Upton CA1/2
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          A140733
         Plaintiff and Respondent,
                                                                     (Humboldt County
v.                                                                   Super. Ct. No. CR1302289)
STEVEN NICHOLAS UPTON,
         Defendant and Appellant.

         Following convictions on two felony counts arising from his possession of a
loaded handgun, Defendant Steven Upton was sentenced to two, concurrent two-year
sentences. He now appeals, contending that execution of one of his sentences should be
stayed under Penal Code section1 654, which prohibits multiple punishments for a single
act. The People agree. And so do we. Accordingly, we will stay the sentence on one of
his convictions, and as so modified affirm the judgment.
                                                 BACKGROUND
         On May 12, 2013, Upton was stopped by police for driving without a front license
plate. He was handcuffed and taken into custody in connection with an unrelated
criminal investigation, and in the ensuing search of his car, police discovered a loaded
handgun under the driver’s side seat.
         Upton had a prior felony conviction, and a jury subsequently convicted him of two
felony offenses: possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 1), and
possession of ammunition by a person prohibited from possessing a firearm (§ 30305,

         1
             All further statutory references are to the Penal Code.
                                                             1
subd. (a)(1)) (count 2). The trial court sentenced Upton to an aggregate prison term of
three years and eight months, which included two years for the firearm count, to be
served concurrently with two years for the ammunition count. His sentence also included
a one-year enhancement under section 667.5, subd. (b), not at issue here, and eight
months for an unrelated no contest plea in another case.
       Upton now appeals, arguing the trial court erred under section 654 by not staying
his punishment for either the firearm conviction or ammunition conviction.
                                      DISCUSSION
                                              I.
The Trial Court Violated Section 654 by Requiring Upton to Serve Multiple Sentences
               for His Unlawful Possession of a Single Loaded Firearm.
       In pertinent part, section 654 states: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (§ 654, subd. (a).) As we have
previously noted, this statute merely prohibits multiple punishments, not multiple
convictions. (People v. Ortega (2000) 84 Cal.App.4th 659, 666; see also People v. Sloan
(2007) 42 Cal.4th 110, 116.) Its purpose is to ensure that punishment is commensurate
with culpability. (People v. Perez (1979) 23 Cal.3d 545, 550–551.) In situations where
section 654 applies, “the accepted ‘procedure is to sentence defendant for each count and
stay execution of sentence on certain of the convictions to which section 654 is
applicable.’ ” (People v. Jones (2012) 54 Cal.4th 350, 353 (Jones), citing People v.
Miller (1977) 18 Cal.3d 873, 886, overruled on other grounds as recognized in People v.
Oates (2004) 32 Cal.4th 1048, 1067, fn. 8.)
       Proper application of section 654 in this case is both straightforward and
uncontested.2 The Supreme Court has held “a single possession or carrying of a single


       2
         This issue is reviewable on appeal even though Upton did not object to his
sentence under section 654 in the trial court. “Ordinarily, a section 654 claim is not
waived by failing to object below.” (People v. Hester (2000) 22 Cal.4th 290, 295; see
                                              2
firearm on a single occasion may be punished only once under section 654.” (Jones,
supra, 54 Cal.4th at p. 357.) Jones is controlling, and directly on point for all practical
purposes. Like Upton, the defendant in Jones was convicted of multiple offenses for
possessing a single loaded firearm: unlawful possession of a firearm by a felon, as in this
case, as well as carrying a concealed and unregistered firearm, and carrying an
unregistered loaded firearm in public. (See id. at p. 352.) The trial court did not stay any
of the sentences in Jones, and the Court of Appeal stayed only one which left the
defendant serving two sentences for his crimes. (Id.) The Supreme Court reversed. (Id.
at p. 360.) It held that section 654 prohibits multiple punishment for all three of the
defendant’s convictions, because it was improper to punish the defendant more than once
for his single physical act of carrying the loaded gun. (Id. at pp. 352–360.)
       Two earlier cases involving loaded guns and convictions identical to those in this
case are consistent with the rule announced in Jones. People v. Lopez (2004)
119 Cal.App.4th 132 (Lopez), which the Supreme Court tacitly approved in Jones (see
Jones, supra, 54 Cal.4th at pp. 357–358), held section 654 applicable to sentences for
unlawful possession of a firearm by a felon and unlawful possession of ammunition,
where the defendant, like Upton, had been convicted for possessing a loaded gun.
(Lopez, at pp. 134, 137–139 (applying former §§ 12021, subd. (e), 12316, subd. (b)(1)).)
People v. Sok (2010) 181 Cal.App.4th 88 (Sok), likewise found sentencing error under
section 654 for concurrent, unstayed sentences on these two offenses, and in that case all
of the ammunition had either been loaded into the defendant’s gun or had been fired from
it. (Id. at p. 100.)




also People v. Perez, supra, 23 Cal.3d at p. 550, fn. 3 [“Errors in the applicability of
section 654 are corrected on appeal regardless of whether the point was raised by
objection in the trial court or assigned as error on appeal”].)

                                              3
       Here, as in Jones, Lopez and Sok, Upton’s multiple convictions were based on the
unlawful possession of a single loaded firearm. Thus, we conclude section 654 prohibits
multiple punishment for his offenses. To their credit, the People concede this.3
                                                  II.
      Upton’s Two-Year Sentence on the Ammunition Conviction Should Be Stayed.
       Having concluded there was sentencing error under section 654, there remains the
question of an appropriate remedy. As noted, “the law is settled that the sentences must
be stayed to the extent that section 654 prohibits multiple punishment.” (Jones, supra,
54 Cal.4th at p. 353; see People v. Sloan, supra, 42 Cal.4th at p. 116.) And the statute on
its face addresses how courts must choose between them. It mandates punishment “under
the provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” (§ 654, subd. (a),
italics added; see also People v. Ortega, supra, 84 Cal.App.4th at p. 667 [“The
appropriate procedure is to eliminate the effect of the judgment as to the lesser offense
insofar as the penalty alone is concerned . . .”], citing People v. McFarland (1962)
58 Cal.2d 748, 762–763.)
       In Lopez, the Court of Appeal stayed the defendant’s sentence for the ammunition
count rather than the firearm count, albeit without discussion, because that was the
sentence the defendant contended should be stayed of the two (see Lopez, supra,
119 Cal.App.4th at pp. 134, 139); cf. Sok, supra, 181 Cal.App.4th at p.101 [vacating
sentence and remanding for resentencing].)
       A stay of Upton’s sentence on the ammunition count is appropriate here too; and
in that respect, our choice of remedy has been greatly aided by the parties. Upton states
the maximum potential sentence for both his firearm conviction and ammunition
conviction is identical. And in light of that, he initially asked us in his opening brief to


       3
         We commend Deputy Attorney General Masha Dabiza for conceding the
sentencing issue, which is not a close question. Her professional approach to this matter
has conserved resources and time for both the parties and the court, and in so doing also
benefits other litigants whose appeals have yet to be decided.
                                              4
remand the case and direct the trial court to decide which sentence to stay and to prepare
an amended abstract of judgment. However, the People have suggested we stay Upton’s
sentence on the ammunition count, as was done in Lopez. In response, Upton asks this
Court for “a stay or any other appropriate remedy”, and takes no issue with either the
appellate disposition in Lopez, nor the People’s suggestion we adopt it. With the case in
this posture, and in the interest of judicial efficiency, we see no reason to return this case
to the trial court. As in Lopez, we will stay Upton’s sentence for unlawful possession of
ammunition and affirm the judgment as so modified. (Lopez, supra, 119 Cal.App.4th at
pp. 134, 139.)
                                       DISPOSITION
       Upton’s two-year, concurrent sentence for count 2, unlawful possession of
ammunition (§ 30305, subd.(a)(1)), is stayed pending finality of the judgment and service
of sentence on count 1, such stay to become permanent upon completion of his sentence
on count 1. The superior court is ordered to prepare a further amended abstract of
judgment to show this modification and send it to the Department of Corrections. As so
modified, the judgment is affirmed.




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                           STEWART, J.



We concur.




RICHMAN, Acting P.J.




MILLER, J.




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People v.Upton (A140733)




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