People v. Ferdinand CA1/1

Filed 11/12/15 P. v. Ferdinand CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A143577 v. EDWARD D. FERDINAND, (San Francisco County Super. Ct. No. 216124) Defendant and Appellant.

In this case, appellant seeks reversal of his conviction for possession of a large- capacity magazine for a firearm (count 4). He argues the statute operative at the time of his commission of the crime, former Penal Code section 12020, subdivision (a)(2),1 did not penalize mere possession of such a magazine. Specifically, he contends the evidence was insufficient to convict him under this statute because the government failed to present any evidence he committed the conduct prohibited by the statute, and the jury was incorrectly instructed possession of the magazine was sufficient to sustain a conviction under the statute. The Attorney General acknowledges the evidence is insufficient to sustain a conviction under former section 12020, subdivision (a)(2), and, consequently, that conviction must be reversed. The Attorney General also contends there must be a modification of the sentencing minute order to conform it with the trial court’s oral pronouncement on count 5. We agree and otherwise affirm the judgment.

1 Unless otherwise stated, all statutory references are to the Penal Code.

STATEMENT OF THE CASE On August 5, 2011, the District Attorney of San Francisco filed an information charging appellant with felony possession of a firearm as a convicted felon, in violation of former section 12021, subdivision (a) (now section 29800, subdivision (a)(1) and count 1); felony concealment of a firearm in his vehicle as a felon, in violation of former section 12025, subdivision (a) (now section 25400, subdivision (a)(1) and count 2); felony carrying a loaded firearm in public as a felon, in violation of former section 12031, subdivision (a) (now section 25850, subdivision (a) and count 3); felony manufacturing, importing, giving, lending or possessing for sale a large-capacity magazine, in violation of former section 12020, subdivision (a)(2) (now section 32310 and count 4); felony possession of a firearm while being prohibited from doing so by a restraining order, in violation of former section 12021, subdivision (g)(2) (now section 29825, subdivision (b) and count 5); misdemeanor driving under the influence, in violation of Vehicle Code section 23152, subdivision (a) (count 6); and misdemeanor driving with a blood-alcohol level of at least .08 percent, in violation of Vehicle Code section 23152, subdivision (b) (count 7). On September 25, 2014, a jury found appellant guilty of counts 1 through 6 and not guilty of count 7. On November 7, 2014, the trial court suspended imposition of sentence and placed appellant on three years’ probation with respect to count 2, with one of the conditions of probation being that appellant serve nine months in the county jail. Regarding counts 1, 3, and 4, the trial court ordered the “same sentence,” but stayed the sentences. The trial court also ordered the “same sentence” regarding count 5, with the additional feature that the jail time connected with that count include only 100 days in custody.2 The trial court also sentenced appellant to 30 days in the county jail on count 6, to run concurrently with his sentence on count 2.