People v. Jones

• Decision Date: 21 June 2012
• Docket Number: No. S179552.,S179552.
• Citation: 54 Cal.4th 350,12 Cal. Daily Op. Serv. 6955,278 P.3d 821,2012 Daily Journal D.A.R. 8467,142 Cal.Rptr.3d 561
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jarvonne Feredell JONES, Defendant and Appellant.
• Court: California Supreme Court

54 Cal.4th 350

278 P.3d 821

142 Cal.Rptr.3d 561

12 Cal. Daily Op. Serv. 6955

2012 Daily Journal D.A.R. 8467

The PEOPLE, Plaintiff and Respondent,

v.Jarvonne Feredell JONES, Defendant and Appellant.

No. S179552.

Supreme Court of California

June 21, 2012.

Sandra Uribe and Deanna Lamb, Sonora, under appointments by the Supreme Court, and Morgan H. Daly, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jennevee H. De Guzman, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

Defendant Jarvonne Feredell Jones, a convicted felon, carried a loaded and concealed firearm. We must decide to what extent, if any, he may be punished separately for the crimes of possession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered loaded firearm in public. The question requires us to interpret Penal Code section 654,¹ which prohibits multiple punishment for “[a]n act ... that is punishable in different ways by different provisions of law.” Because different provisions of law punish in different ways defendant's single act, we conclude that section 654's plain language prohibits punishment for more than one of those crimes.

I. Factual and Procedural History

On May 26, 2008, police searched the car defendant, a convicted felon, was driving and found in a door panel a loaded .38–caliber revolver that was not registered to him. Defendant said he had bought the gun already loaded three days earlier “for protection.” He explained that he had kept the gun at his grandmother's house and had “just picked the gun up from there and that's why the gun was in the car.”

A jury convicted defendant of three crimes: possession of a firearm by a felon (former § 12021, subd. (a)(1) [now § 29800, subd. (a)(1) (Stats.2010, ch. 711, § 6) ]; count one), carrying a readily accessible concealed and unregistered firearm (former § 12025, subd. (b)(6) [now § 25400, subd. (c)(6) (as amended by Stats.2011, ch. 15, § 543) ]; count two), and carrying an unregistered loaded firearm in public (former § 12031, subd. (a)(2)(F) [now § 25850, subd. (c)(6) (as amended by Stats.2011, ch. 15, § 544) ]; count three). The superior court sentenced him to state prison for the upper term of three years on each count, to be served concurrently, plus a one-year enhancement for a prior prison term, for a total sentence of four years.

Defendant appealed. He argued that execution of the sentences for counts two and three had to be stayed under section 654. The Court of Appeal agreed that the sentence for either count two or three had to be stayed, but it held that multiple punishment is appropriate as between the first count and either of the other two counts. It modified the judgment to stay execution of the sentence on count three and affirmed the judgment as modified.

We granted defendant's petition for review to decide whether section 654 prohibits multiple punishment for his convictions.

II. Discussion

As relevant, section 654, subdivision (a), provides: “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.” We must decide how this provision applies to defendant's three convictions.

The trial court imposed concurrent sentences. But doing so is not correct if section 654 prohibits multiple punishment. “It has long been established that the imposition of concurrent sentences is precluded by section 654 [citations] because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.” ( People v. Miller (1977) 18 Cal.3d 873, 887, 135 Cal.Rptr. 654, 558 P.2d 552.) Instead, 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.” ( Id. at p. 886, 135 Cal.Rptr. 654, 558 P.2d 552; see also People v. Sloan (2007) 42 Cal.4th 110, 116, 64 Cal.Rptr.3d 137, 164 P.3d 568.) Accordingly, although there appears to be little practical difference between imposing concurrent sentences, as the trial court did, and staying sentence on two of the convictions, as defendant urges, the law is settled that the sentences must be stayed to the extent that section 654 prohibits multiple punishment. So the issue is squarely presented. Does section 654 prohibit multiple punishment in this case?

When arrested, defendant was carrying, and thus possessing, a single firearm, which seems to be a single physical act. Because defendant is a felon and the gun was both loaded and concealed, that act is made punishable by three different provisions of law, specifically, former sections 12021, subdivision (a)(1), 12025, subdivision (b)(6), and 12031, subdivision (a)(2)(F). Thus, by its terms, section 654 seems to preclude punishment for more than one of those provisions.

But the question is not so simple. Two four-decades-old decisions—one from the Court of Appeal that is almost directly on point, and an earlier four-to-three decision from this court—strongly support the Court of Appeal's conclusion that punishment for at least two of these provisions of law is permissible. (In re Hayes (1969) 70 Cal.2d 604, 75 Cal.Rptr. 790, 451 P.2d 430( Hayes );People v. Harrison (1969) 1 Cal.App.3d 115, 81 Cal.Rptr. 396( Harrison ).) Harrison 's holding, and the Court of Appeal's in this case, were reasonable in light of Hayes, although, as we will explain, the Hayes rationale would actually permit punishment for all three crimes, a conclusion that would run afoul of more recent Court of Appeal decisions.

We first examine exactly what the Court of Appeal did and why. It concluded that a felon who possessed or carried a single gun may not be punished separately if the gun is an inherently unlawful firearm, such as a sawed-off rifle. But a felon may be punished separately for possessing a gun in an unlawful way, such as having it loaded or concealed. Even then, such a felon may be punished only once even if, as here, the possession is unlawful in more than one way. The Court of Appeal based this conclusion on precedent. The court was reasonable to do so, as precedent supports all parts of its conclusion.

As the Court of Appeal explained, cases have held that section 654 precludes multiple punishment when a felon possesses an inherently unlawful firearm. ( People v. Scheidt (1991) 231 Cal.App.3d 162, 170, 282 Cal.Rptr. 228 [sawed-off shotgun]; People v. Perry (1974) 42 Cal.App.3d 451, 456, 116 Cal.Rptr. 853 [sawed-off rifle].) Additionally, cases not involving felons have precluded multiple punishment for possessing a single firearm in two unlawful ways. ( People v. Hurtado (1996) 47 Cal.App.4th 805, 808, 816, 54 Cal.Rptr.2d 853 [carrying a concealed and loaded firearm]; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1743–1744, 38 Cal.Rptr.2d 902 [carrying a loaded firearm in a public place and carrying a concealed weapon].) The Court of Appeal followed these cases.

But the Court of Appeal also followed an earlier decision that permitted separate punishment for (1) possession of a concealable firearm by a felon and (2) possessing a loaded firearm, even though both crimes involved the same firearm. ( Harrison, supra, 1 Cal.App.3d 115, 81 Cal.Rptr. 396.) The Harrison court explained that the “two statutes strike at different things. One is the hazard of permitting ex-felons to have concealable firearms, loaded or unloaded; the risk to public safety derives from the type of person involved. The other strikes at the hazard arising when any person carries a loaded firearm in public. Here, the mere fact the weapon is loaded is hazardous, irrespective of the person ... carrying it. [¶] The ‘intent or objective’ underlying the criminal conduct is not single, but several, and thus does not meet another of the tests employed to determine if Penal Code section 654 is violated. ( Neal v. State of California (1960) 55 Cal.2d 11, 19–20 [9 Cal.Rptr. 607, 357 P.2d 839].) For an ex-convict to carry a concealable firearm is one act. But loading involves separate activity, and while no evidence shows that appellant personally loaded the pistol, there seem [s] little distinction between loading and permitting another to do so. Thus, two acts, not a single one, are necessarily involved and bring our case outside the prohibition against double punishment for a single act or omission.” ( Harrison, supra, at p. 122, 81 Cal.Rptr. 396.)

As did the Court of Appeal, we could follow all of these cases and announce that when the defendant is convicted of multiple crimes for possessing or carrying a single firearm, including possession by a felon, the rule is that (1) he may be punished for possession by a felon, (2) he may not be punished separately for possessing an inherently unlawful firearm, (3) he may be punished separately for possessing a firearm in an unlawful way but only once, even if he possesses it in more than one unlawful way. Authority supports all components of this rule. But such a rule would make little, if any, sense. Why should separate punishment be prohibited for possessing an inherently unlawful firearm but permitted (although only once) for possessing a firearm in an unlawful manner? The Legislature has outlawed these various types of unlawful possession for separate reasons that “strike at different things,” to use Harrison 's phrase. ( Harrison, supra, 1 Cal.App.3d at p. 122, 81 Cal.Rptr. 396.)Harrison 's logic would seem to permit separate punishment for possessing an inherently dangerous weapon as well as possessing a firearm in an unlawful way, and also for each...