People v. Burnette CA3

Filed 1/5/22 P. v. Burnette CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C093139

Plaintiff and Respondent, (Super. Ct. No. 19CF02225)

v.

PAUL JOSEPH BURNETTE,

Defendant and Appellant.

Defendant Paul Joseph Burnette left his apartment in possession of cocaine and a loaded firearm. When approached by law enforcement officers, he ran away and, while running, ejected a fully-loaded magazine and a live round from the gun and tossed the gun and the ammunition away. A jury found defendant guilty of possession of cocaine for sale, possession of cocaine with a loaded firearm, possession of a firearm by a felon, and possession of ammunition by a prohibited person. On appeal, defendant argues his sentences for being a felon in possession of a firearm and possession of ammunition by a

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prohibited person should be stayed pursuant to Penal Code section 6541 because they arise from defendant’s single act of leaving his home with cocaine and a loaded firearm. The Attorney General concedes this argument. We agree the sentences on two of the counts should be stayed and will remand for resentencing consistent with this opinion. We affirm the judgment in all other respects. FACTUAL AND PROCEDURAL BACKGROUND A Butte County Interagency Narcotics Task Force team served a warrant to search defendant and his apartment in Chico. As the team was surveilling the area before serving the warrant, defendant walked out into the front yard of his apartment complex. One of the detectives drove up to defendant’s location, got out of an unmarked car, and walked up to him. When he got about 30 feet from defendant, the detective said, “Hi, Paul.” At that point, defendant looked up at the detective with a startled expression and yelled out, “Oh, fuck!” Defendant took off running. The detective pursued him. As he was running away, defendant put his hands in his waistband and pulled out a black semiautomatic handgun. The detective testified defendant’s actions were consistent with defendant removing the magazine from the gun. Defendant ran to a fence and put both hands over the fence and threw the gun over it. After he tossed the gun, defendant lay down on the ground in a prone position. The pursuing detective found the unloaded gun on the other side of the fence. The detective also found a loaded magazine a few feet from where the gun was located and a single bullet on the ground between the gun and the magazine. The detective found a total of 11 bullets, which is the capacity of the gun (10 rounds in the magazine and one in the gun’s chamber). The detective testified it is possible for a magazine to eject itself from a gun when it is tossed, but it would be difficult here because the magazine was