Opinion
C081630
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON MAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F06134)
Defendant Jason Marez requests we reverse one of his two convictions for being a felon in possession of a firearm on different days because the crime is a continuous offense. The People concede the issue; we shall reverse judgment on one of the possession counts.
FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 2013, defendant brandished and fired a .38-caliber revolver from a car at a nearby car occupied by two individuals. On September 18, 2013, police detained defendant and found in his possession a loaded .38-caliber revolver.
A jury convicted defendant of assault with a firearm (Pen. Code, § 245, subd. (a)(2)—counts one & two), attempted murder (§§ 664, 187, subd. (a)—count three), discharge of a firearm at an occupied motor vehicle (§ 246—count four), being a felon in possession of a firearm on September 15, 2013 (§ 29800, subd. (a)(1)—count five), and being a felon in possession of a firearm on September 18, 2013 (§ 29800, subd. (a)(1)—count six). With respect to counts one through four, the jury also found true firearm enhancements. (§§ 12022.5, subd. (a), 12022.53, subd. (c).) With respect to counts five and six, the jury also found true defendant committed each offense for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court found that defendant had a prior strike, a prior serious felony, and two prior prison terms. (§§ 667, subds. (a)-(i), 1170.12, 667.5, subd. (b).)
Undesignated statutory references are to the Penal Code. --------
The trial court sentenced defendant to an aggregate state prison term of 60 years four months, as follows: for count one, one year, doubled due to the strike, plus three years four months for the firearm enhancement; for count two, one year, doubled due to the strike, plus three years four months for the firearm enhancement; for count three (the principal term), nine years, doubled due to the strike, plus 20 years for the firearm enhancement; for count four, one year eight months, doubled due to the strike and stayed per section 654; for count five, eight months, doubled due to the strike, plus one year for the gang enhancement; for count six, eight months, doubled due to the strike, plus one year for the gang enhancement; plus seven years for the prior prison terms.
DISCUSSION
1.0 Reversal of Count Six
Possession of a firearm by a felon is a continuing offense. (People v. Mason (2014) 232 Cal.App.4th 355, 364-365 & fn. 11 [analyzing former § 12021, subd. (a)(1), which was repealed and recodified without substantive change as § 29800, subd. (a)(1)] (Mason).) " '[O]rdinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.' [Citations.] Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. 'The crime achieves no finality until such time.' " (Wright v. Superior Court (1997) 15 Cal.4th 521, 525-526.) A defendant violates a continuing offense only once, even if the proscribed conduct extends over an indefinite period. (Mason, at p. 365.)
For example, in Mason, the appellate court overturned three of the defendant's four convictions for possessing the same firearm on four different dates, months apart. (Mason, supra, 232 Cal.App.4th at pp. 366-367.) There was no evidence the defendant's possession of the firearm was interrupted or that the defendant relinquished the gun during the specified dates. (Id. at p. 366.) The court reasoned that the "crime was complete at the time he first possessed the gun because he violated the duty imposed by the statute not to do so," and that "the crime continued—as a single offense—for as long as the same possession continued, i.e., so long as [the defendant] continued to violate his duty under the statute." (Ibid.)
Similar to Mason, defendant was convicted of possessing the same gun on two separate dates without any indication that defendant had relinquished the gun between the two dates. Indeed, the prosecutor argued the gun used in the assault on September 15 was the same gun recovered by the police on September 18. Because there was no evidence that defendant's possession of the gun in question was interrupted, defendant committed a single crime and we must reverse the conviction on count six. (Mason, supra, 232 Cal.App.4th at pp. 366-367.)
2.0 Correction to the Abstract of Judgment
We note the abstract of judgment omits the name of the sentencing judge, the Honorable Ernest W. Sawtelle. As the abstract will require amendment to reflect the reversal of count six, we will direct the trial court to also correct this omission.
DISPOSITION
The conviction on count six is reversed. The trial court is directed to prepare an amended and corrected abstract of judgment that includes the name of the sentencing judge and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
BUTZ, Acting P. J. We concur: MAURO, J. DUARTE, J.