Opinion
G057743
03-09-2020
THE PEOPLE, Plaintiff and Respondent, v. KOAHUTLY LIONEL ALMANZA, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Michael Pulos, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17HF0857) OPINION Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey, Judge. Affirmed as modified. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Michael Pulos, Deputy Attorney General, for Plaintiff and Respondent.
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1. Introduction
This appeal presents a single issue: Whether execution of sentence on two counts should have been stayed pursuant to Penal Code section 654 (all code reference are to the Penal Code). We conclude execution of sentence should have been stayed and therefore modify the judgment accordingly.
A jury convicted Koahutly Lionel Almanza of second degree robbery (count 1, §§ 211, 212.5, subd. (c)), possession of a firearm by a felon (count 3, § 29800, subd. (a)(1)), possession of ammunition by a prohibited person (count 4, § 30305, subd. (a)(1)), possession of a firearm with identification numbers removed (count 5, § 23920), and vandalism (count 7, § 594, subds. (a) & (b)(2)(A).) The jury also found true allegations that Almanza committed the offenses for the benefit of a criminal street gang. (§ 186.22, subds. (b)(1) & (d).)
The trial court sentenced Almanza to a prison term of six years on count 1 with consecutive one year four month terms each on counts 3 and 7 for a total sentence of eight years eight months. The trial court sentenced Almanza to a concurrent term of one year four months on count 4 and a concurrent term of two years on count 5.
The trial court found prior strike and serious felony allegations to be true. For purposes of sentencing the court struck the prior serious felony enhancement and struck the gang enhancements as to counts 1, 3, and 4. --------
Almanza contends the trial court erred by failing to stay execution of sentence on count 4 (possession of ammunition by a prohibited person) and count 5 (possession of a firearm with identification numbers removed) pursuant to section 654 because those two counts are based on the same act as count 3 (possession of a firearm by a felon). The Attorney General filed a letter brief conceding the point and agreeing with Almanza the sentences on counts 4 and 5 should be stayed pursuant to section 654. 2. Execution of Sentence on Counts 4 and 5 Should Have Been Stayed`
Section 654, subdivision (a) provides in part: "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."
Almanza, a convicted felon, was found in possession of a fully loaded Smith and Wesson revolver with some of the serial numbers removed. The ammunition inside the revolver was the factual basis for finding Almanza guilty of possession of ammunition by a prohibited person (count 4). "Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment." (People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
Because the altered serial number is on the same firearm that is the basis for count 3, execution of sentence under count 5, possession of a firearm with identification numbers removed, must also be stayed. In People v. Jones (2012) 54 Cal.4th 350 the defendant, a convicted felon, carried a loaded and concealed firearm. For that act, he was convicted of three crimes: (1) possession of firearm by a felon, (2) carrying a readily accessible concealed and unregistered firearm, and (3) carrying an unregistered loaded firearm in public. (Id. at p. 352.) The California Supreme concluded the plain language of section 654 prohibited punishment for more than one of those crimes. (Ibid.) The court held that "a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654." (Id. at p. 357.) The defendant's guilt on all three charges was premised solely on having the gun in his car when arrested, and not on any other facts, and therefore involved but one punishable act. (Id. at pp. 359-360.)
The Attorney General states that applying the "bright-line" rule of Jones to this case, "[Almanza's] sentence for possession of a firearm with identification numbers removed (count 5) should be stayed because the court already sentenced him for possession of that firearm as [a] felon (count 3)." We agree.
3. Disposition
The judgment is modified to stay execution of sentence on counts 4 and 5. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. GOETHALS, J.