People v. Upton CA1/2

Filed 11/19/15 P. v. Upton CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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