Filed 12/23/19 P. v. Awalt 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

LOGAN MICHAEL AWALT,

Defendant and Appellant.

C088397

(Super. Ct. Nos. 18CF01634, 18CF02717)

Charged with numerous offenses in two cases, defendant Logan Michael Awalt pled no contest to being a felon in possession of a firearm, being a felon in possession of ammunition, three counts of resisting a peace officer, and making criminal threats; he also admitted an on-bail enhancement. The court placed defendant on five years’ formal probation. After violating probation, the trial court terminated probation and sentenced defendant to eight years four months in state prison, including a three-year upper term for the possession of a firearm offense and a consecutive eight-month term for the possession of ammunition offense.

On appeal, defendant contends the trial court erred by not staying the eight-month consecutive sentence on the possession of ammunition offense under Penal Code section 654. Based on the record, the People concede. We conclude the sentence on the possession of ammunition offense should have been stayed under section 654. We shall modify the judgment accordingly and affirm.

I. BACKGROUND

In March 2018, Butte County Sheriff deputies served a domestic violence restraining order on Natalie S. at her home. Defendant was with Natalie at the time. While moving her things out of the house, a deputy saw her carrying a gun case; the deputy reminded her that she was prohibited from possessing a firearm under the terms of the restraining order. Natalie handed the gun case to defendant, who said, “It’s mine anyway.” He claimed a friend had given the gun to him several years earlier. After learning that defendant had two prior felony convictions that prohibited him from possessing firearms, the deputies collected a shotgun and eight rounds of shotgun shells from defendant.

Two months later, defendant was arrested following a domestic dispute with Natalie. During the incident, defendant resisted and threatened the responding officers.

Charged with numerous offenses in two cases, defendant subsequently pled no contest to several charges, including being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and being a felon in possession of ammunition (§ 30305, subd. (a)(1)). In July 2018, he was placed on five years’ formal probation.

Two months later, in September 2018, the probation officer filed a petition for violation of probation alleging defendant had tested positive for methamphetamine and alcohol. After he failed to appear for arraignment on the petition, the probation officer filed a first amended petition alleging the positive drug test and failure to appear as probation violations.

In October 2018, defendant admitted the probation violations. The next month, the trial court terminated probation and sentenced defendant to an aggregate term of eight years four months in prison. The sentence included a three-year term for the felon in possession of a firearm offense and a consecutive eight-month term for the felon in possession of ammunition offense. Defendant timely appealed.

II. DISCUSSION

Defendant contends, and the People concede, that the consecutive eight-month term imposed for the felon in possession of ammunition offense must be stayed under section 654. After examining the record, we agree.

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.” The statute does not prohibit multiple convictions for the same conduct, only multiple punishments. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) “In such a case, the proper procedure is to stay execution of sentence on one of the offenses.” (Ibid.)

“Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective.” (People v. Corpening (2016) 2 Cal.5th 307, 311.) We first consider whether the different crimes were completed by a “ ‘single physical act.’ ” (Ibid.) “If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.” (Ibid.)

“The divisibility of a course of conduct depends upon the intent and objective of the defendant.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) If each criminal act is incidental to, or accomplished with a single objective, the defendant may be found to harbor a single intent. If the defendant harbored multiple criminal objectives independent of one another, he may be punished for each statutory violation even if they were part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) We apply the substantial evidence standard of review to the trial court’s implied finding that a defendant harbored a single intent and objective for each offense. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.)

Citing People v. Lopez (2004) 119 Cal.App.4th 132 and People v. Sok (2010) 181 Cal.App.4th 88, defendant argues he may not be punished for both possession of the firearm and possession of the ammunition. In Lopez, the court held section 654 barred multiple punishment for the defendant’s convictions for unlawful possession of a firearm and unlawful possession of ammunition based on his possession of a single loaded firearm. (Lopez, supra, at pp. 137-138 [“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”].) The court reasoned that possession of an unloaded firearm can, by itself, assist a person in committing another crime, because the gun can be used to frighten or club the victim. (Id. at p. 138.) But ammunition alone could not be used in a similar fashion. (Ibid.) The court therefore found that defendant’s single intent was to possess a loaded firearm. (Ibid.) Sok reached a similar result. (Sok, supra, at p. 100.) There, the court found that punishment for possession of ammunition should have been stayed because the ammunition was either loaded in the defendant’s gun or had been fired from it. (Ibid.)

Here, the presentence probation report states that defendant was with Natalie when she removed her belongings from a residence, including a gun case, which presumably contained a shotgun. She handed the gun case to defendant, who claimed it as his own. After learning that defendant had two prior felony convictions that barred him from possessing a firearm, a deputy confiscated the shotgun and eight rounds of 12-gauge ammunition. The sheriff’s report, as the probation officer noted, did not specify whether the shotgun was loaded at the time it was confiscated.

The complaint described the shotgun as a Savage Arms 12-gauge shotgun. It did not specify the caliber or kind of ammunition defendant was alleged to have possessed, but it did allege that he unlawfully possessed the ammunition on March 9, 2018—the same date that it was alleged he unlawfully possessed the Savage Arms 12-gauge shotgun. While it is unclear whether the shotgun was loaded with any of the shotgun shells when confiscated, as the parties agree, whether the ammunition was physically loaded into the gun is immaterial. The shells could be fired from the shotgun and were found at the same location and at the same time the gun was seized by law enforcement.

The trial court did not articulate its reasoning for imposing a consecutive subordinate term for the possession of ammunition offense. Based on the present record, however, there is no substantial evidence to support even an implied finding that defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other to justify a consecutive subordinate term for count 2. The sentence on count 2 should have been stayed under section 654.

III. DISPOSITION

The judgment is modified to stay the eight-month consecutive sentence on count 2, the felon in possession of ammunition offense, pursuant to section 654. As modified, the judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

HULL, Acting P. J.

/S/

MAURO, J.