*1 S191341. Nov. [No. 2012.] PEOPLE,
THE Plaintiff Respondent, SANDERS,
MAURICE D. Defendant and Appellant.
Counsel Navarro, Court, Robert appointment by for Defendant and Supreme Appellant. Harris, General, Gillette,
Kamala D. Dane R. Chief Attorney Assistant General, Farrell, General, Michael P. Attorney Assistant E. Janet Nieto, General, Neeley Catherine Tennant for Plaintiff Deputy Attorneys and Respondent.
Opinion related but distinct
CORRIGAN,
called
two
Here weare
upon
apply
J.
on
greater
convictions based
the rule
concepts:
prohibiting
offenses,
section 654’s
prohibition
Penal Code
included
in different
. . . is
when
act
against multiple punishment
“[a]n
,”1
Maurice D. Sanders
of law . . .
Defendant
different
ways by
conviction of a
a firearm after
two counts of possessing
was convicted on
12021(a)(1)), and two
(a)(1); hereafter section
(former
§
violent offense
after conviction of
specified
a firearm
counts of possessing
12021.1(a)).2 All four counts
(former
(a);
hereafter
firearms. We hold
of two
on his simultaneous possession
were based
12021(a)(1) is a
nor section
neither section
954, defendant was properly
offense of the other.
Correa,
decisions in
our recent
of both offenses. Applying
convicted
v. Jones
(2012)
I. BACKGROUND discovered defendant’s residence search of conducting parole
Officers with two Defendant was charged and ammunition. shotguns two operable under section a felony after conviction of a firearm counts of possessing making for felony based on (offender in 12021(a)(1) possession), negligence a firearm with 422), gross (§ discharging criminal threats also he was the same convictions (§ 207). Based on 246.3), and kidnapping 12021.1(a), alleging gun possession under counts with two charged Code, otherwise indicated. Penal unless statutory references are to the Further 1, 2012, but its 12021(a)(1) January operative repealed was Former (a)(1). (See People change as section without substantive were reenacted (Correa); 331, 334, Stats. Correa 809] fn. 1 [142 54 Cal.4th 12021.1(a) as section 6.) repealed and reenacted was Former section ch. §§ 6.) Because (Stats. change. §§ ch. (a)(1) without substantive statutes, without only renumbered they were repealed under defendant was convicted throughout this to former sections change, we refer substantive the word “former.” generally not use brevity, we will clarity For and convenience. opinion (violent convicted of a offender in violent offense specified posses- sion).3 At trial defendant denied that he lived at the residence and claimed the two shotguns were not his. He that he was convicted of stipulated previously a felony within the of sections 12021 and 12021.1. The meaning jury convicted him of all four counts.
Defendant was also with charged various enhancements based on his prior enhancements, convictions. He waived his to a trial on the right jury and the trial court he had found suffered four convictions that prior qualified (§§ him for under the Three sentencing (b)-(i), Strikes law subds. 1170.12, (a)-(d)), subds. and that he had served three terms prior prison (b)). It sentenced him to two concurrent terms of 25 years life for his offender in under 12021(a)(1). counts It terms of 25 imposed to life for his violent offender in years counts 12021.1(a), under section but execution of stayed those terms under section 654. it struck Finally, for the three terms punishment prior prison pursuant section 1385. conceded,
On defendant and the appeal, argued, General violent offender is a necessarily included offense of offender 12021(a)(1). Court of Appeal Attorney General’s concession and reversed accepted defendant’s section 12021.1(a) The Court convictions. also stayed defendant’s concurrent sentence on the second section conviction under section 654.
We denied defendant’s for review petition challenging sufficiency motion, the evidence. On our own we ordered review limited to the following “(1) issues: Is of a firearm after possession conviction of violent specified 12021.1, (Pen. offense Code (a)) subd. a necessarily included offense of § 12021, of a (Pen. firearm after conviction of a possession Code § (a)(1))?” and “(2) Was defendant sentenced to concurrent properly for terms his simultaneous of two firearms in violation of Penal (a)(1)?” Code section 3 charging There are example, making some anomalies in the document. For criminal threats (§ 422) a qualifying charging was listed as violent in two and offense counts four a violation of 12021.1(a). threats, however, Making criminal qualifies is not an offense that as a (Former (b), violent offense under the repealed statute. § renumbered as addition, (hereafter 12021.1(b).) conviction, 29905 In prior fourth assault with a (a)(2)), charged qualifying firearm was as a conviction under the “Three Strikes”
law, 12021(a)(1) charged qualifying felony but was not as a under sections discrepancies any None of these is of moment here. 736
II. DISCUSSION a Firearm Supported Multiple Act Single Possessing A. Defendant’s Sections Convictions Under multiple punishment, is generally While section 654 prohibits to convict from a arising single a defendant of multiple charges permissible v. People Ortega 954; Cal.4th 692 conduct. act or course of However, created 48].) exception P.2d “judicially Cal.Rptr.2d [80 based on included necessarily convictions to this rule prohibits multiple 1031, 1034 Montoya (People (2004) 33 Cal.4th [16 offenses. [Citations.]” 1098].) 94 P.3d Cal.Rptr.3d lesser necessarily and a greater a defendant is found of both guilty
When conduct, and the the same act or course included offense out of arising offense, that conviction is the verdict on the greater evidence supports reversed. offense must be and the conviction of the lesser controlling, 763]; v. Moran P.2d (People (1970) 1 Cal.3d Cal.Rptr. Milward accord, 52 Cal.4th v. Medina (2007) 41 Cal.4th 748]; If neither offense both, other, though be convicted of “even the defendant may offense from arising for more than one he or she could not be Ortega, supra, of conduct.” act or indivisible course single 686, 693.) noted, of offender convicted on two counts defendant was
As offender in possession counts of violent (§ 12021(a)(1)) and two In light of two firearms. (§ 12021.1(a)) based on his simultaneous below, held that the Court General’s concession Attorney included offense is a and four. on counts two defendant’s convictions and reversed court, against that the rule General agree defendant and In this bars included offenses separate based on necessarily convictions They of the same gun. under both sections *6 the other. however, included in is necessarily about which offense disagree, 12021, (a)(1), which applies subdivision that “section Defendant argues offense, definition conviction, because by any the ‘greater’ felony 12021.1, (a).” subdivision in section the "enumerated felonies includes all of offense included” Thus, is a “lesser offender in possession he violent argues, argues General Conversely, of offender in possession. offense of included 12021(a)(1)) necessarily is a (§ in possession offender who 12021.1(a)) because a person possesses violent offender possession
737 offenses of the violent firearm, of one been convicted a having previously aof in 12021.1(b), necessarily will listed in section felon offense is fail. Neither 12021(a)(1). Both arguments firearm under section in the other. consider a court should conviction is proper, “In whether deciding 1224, Cal.4th 1229 (2006) Reed 38 elements.” only statutory test, statutory if the the elements 184].) P.3d “Under elements statutory all of the offense include elements of greater (Id. at offense, included in the former.” is necessarily the latter lesser “ without also words, cannot be committed a crime 1227.) In other ‘[i]f offense, included offense the latter is a lesser a lesser committing ” (1998) (Ibid., Lopez within former.’ quoting con- of a firearm a by person Section prohibited possession (b), (a), an “enumerated in subdivision (1) (2) or offense any felony victed 12001.6,” a narcotic (3) addicted to (d) of Section or by person or [former] firearm,” of a referred to as “felon in commonly drug.4 Although “wobbler” offenses in section 12001.6 were some of the offenses listed addition, conviction.5 In could result in either a or misdemeanor felony aby banned firearm (a)(2) subdivision of section 12021 violations of section of two or more misdemeanor convicted (a)(2) firearm). (brandishing subdivision hand, firearm
On the other prohibited offense.” of an enumerated “violent who had been convicted anyone “Any been convicted of provided: person who has Former section state, States, California, any government, or the State of or other under the laws of the United 12001.6, or (a), (b), (d) who country or of an offense enumerated in subdivision or of Section owns, receives, in his or any drug, purchases, or has is addicted to the use of narcotic and who (Italics guilty felony.” custody any firearm is possession or under his or her or control her reference, (a)(1). added.) we use the shorthand subdivision For ease See now section in the description the broader set forth statute. “possession” encompass term 1, 2012, January but its were operative repealed Former section 12001.6 was to this 23515. We will refer change and renumbered as section continued without substantive here, involving 12001.6 described offenses As relevant provision as section 12001.6. firearm,” of section including with a firearm in violation “the violent use of a assaults 12001.6, dwelling in (a)(2), (d) (§ (a)); shooting at an inhabited subdivision or 12001.6, (b)); of a brandishing presence a firearm in the violation (d)). (c) (§ officer in violation of section subdivision peace addiction, People Washington Cal.App.2d drug On the element of see 545], Cal.Rptr. (c), (a)(2), as either are all Sections felony. a misdemeanor or a *7 738 12021.1(b).)6 Most of the offenses listed in 12021.1(b) former section are
felonies, statute, but not all. For like the offender in example, possession 12001.6, section 12021.1 included the wobbler offenses enumerated in section (a), (b), (d) (§ subdivisions 12021.l(b)(27)), and two or more misde- meanor (a)(2) (§ violations of section subdivision 12021.l(b)(29)). In addition, 12021.l(b)(24) with a deadly or weapon “[a]ssault force likely great which is either a produce bodily injury,” as or a felony (a)(1); misdemeanor. (2010) see 48 People Feyrer 998].)7 elements, these Comparing statutory violent offender in possession (§ 12021.1(a)) is not a included offense of offender in possession (§ 12021(a)(1)). It 12021(a)(1) was to violate section without possible neces- sarily violating For could have violated example, person a firearm by after been convicted of possessing having not included in the any felony list of violent offenses under section 12021.1(b), or a firearm while addicted to narcotic possessing drug. Cal.App.3d Cal.Rptr. Sanchez 294] that 12021.1 and [rejecting argument to the “same apply group §§ of individuals” because the latter section to a who is addicted applies person to the use of narcotics or who has been convicted of a felony “regardless added, (italics omitted)].) whether the is a violent offense” fn. Defendant us to the “factual urges consider situation in this presented case,” that namely defendant’s conviction was in included in the list prior fact of violent offenses under section in order to conclude that violent (§ 12021.1) offender in ais included offense of that, here, (§ 12021(a)(1)). offender in He reasons on the record he stands convicted of a under both statutes. He then maintains qualifying felony is thus the offense in the sense that it is the greater conviction, broader offense: it all of the any felony including applied 12021.1(b). enumerated felonies in section (a) “Notwithstanding provided: Former section of Section (b) any any previously who has been convicted of of the offenses listed in subdivision custody any and who owns or in his or her or under his or her or control has guilty felony. accusatory pleading pursuant firearm is A dismissal of an to Section 1203.4a (b) involving finding a previous an offense set forth in subdivision does not affect probation granted, suspended, conviction. If execution sentence is imposition or if or probation suspension it shall be a condition of the or that the defendant serve least six (a)(1)—(3). (b) county jail.” months in a See now section Subdivision enumerated section 12021.1 29 violent offenses. See now section 29905. knowing. required and 12021.1 both Sections 12021
Snyder Cal.Rptr. that element 32 Cal.3d distinguishing is not a factor for either offense. *8 elements statutory The the standard. wrong argument applies
Defendant’s of conduct. range the broader statute covers not on which test does depend without also be committed Rather, offense cannot if the greater we ask consider we do not that answering offense. In question, the lesser committing accusatory of the pleading. the case or the language facts of underlying the Reed, to consider [declining Cal.4th at 1229-1230 v. one offense is whether deciding in accusatory language pleading the Cal.4th at Ortega, supra, another]; People included in necessarily whether one adduced at trial in deciding the evidence to consider [declining (2001) 24 another]; see People Sanchez included necessarily offense court considers 16 P.3d 118] [the 988 [103 abstract”].) in another “in the included necessarily whether one offense is Thus, necessarily convictions of the rule barring multiple for purposes offenses, alleged felony that two of defendant’s prior it is irrelevant offenses” under section as “violent convictions also qualified potentially of a been “convicted having defendant to 12021.1(b),8 or that stipulated . . . .” and 12021.1 of Penal Code Sections 12021 within the felony meaning that the general Defendant’s argument, the extent the statutes 12021.1(a) section to 12021(a)(1) necessarily trumped case, lan statutory in a also contravenes express overlapped particular “[notwithstanding 12021.1(a), it was apply section guage of the term “not The use (a) Legislature’s of Section 12021.” that section without applied in this context meant withstanding” v. Palacios 12021(a)(1). (See section by or obstruction prevention 519].) (2007) 41 Cal.4th renders the Legisla of the statute Defendant’s contrary interpretation and violates “notwithstanding” meaningless, ture’s use of word statute, should be given that when a significance interpreting principle Black word, and sentence where every phrase, possible. 32 Cal.3d Cal.Rptr. abstract, 12021(a)(1) without section
In the could have violated 12021.1(a) is not an of- section violating 12021(a)(1). included within section necessarily fense flawed, different, but equally position: General takes is a offender the broader prohibiting the more prohibit- included offense of specific who possessed She that any person violent offender in possession. posits ing negligence gross with felony discharge of firearm prior Defendant’s (§ 207) “violent (§ 246.3) potentially qualified offense[s]” as kidnapping and charged use has been 12021.1(b)(8) uses a firearm which (“any felony in which the defendant 12021.l(b)(19) (“Kidnapping”). proven”) firearm, been convicted having of a violent qualifying offense under section 12021.1(b), “would have committed a possessed firearm, the elements of fulfilling (a)(1).” We decline to this concession accept because it is not supported statutory *9 Desny v. Wilder (See 715, language. (1956) 257]; Cal.2d 46 729 [299 Bradley v. Clarke 196, (1901) 133 395].)9 Cal. P. 209-210
We can at least one circumstance identify in which a could have violated the 12021.1(a) more narrow section without necessarily having 12021(a)(1). violated section Section 12021.1 conviction of applied upon offense[s],” certain “violent not (§ 12021.1(b), violent felonies. just now Sanchez, 29905, added; v. People italics supra, § 211 at Cal.App.3d 481-483 an that pp. [rejecting argument 12021.1(a) to violent applied only § convictions]; see 2 felony Wittin & Cal. (4th Criminal Law ed. Epstein, 2012) Welfare, 238, Crimes Public Peace and Against felony § [“A conviction is not to invoke the section required prohibition 12021.1(a)]; [of is that the only necessary conviction be for a underlying ‘violent offense’ noted, statute.”].) in the specified As several of the “violent set out offense[s]” 12021.1(b) former section are either wobblers or straight misdemeanors. 12021.1(b)(24), (27) (29).) & General’s that a Attorney argument § 12021.1(b) under section person falling “would have committed a necessarily Moreover, felony” 12021(a)(1) section is inaccurate. simply although the two statutes in their inclusion of several wobbler or overlap misdemeanor offenses,10 12021.1(a) section could be only satisfied a misdemeanor by 245, violation of section (a)(1). (See 12021.l(b)(24).)11 subdivision § 9 Below, Attorney General conceded the same position defendant advances here: that 12021(a)(1). is a included offense of section Because the Court, question (Cal. is one properly of law is before us on our own motion Rules of rule 8.512(c)(2)), by are (Bradley we not bound General’s concession in either forum Clarke, 209-210; 987, 1001-1002 supra, (2005) pp. 133 Cal. at v. Randle 35 Cal.4th 987], Cal.Rptr.3d disapproved ground 111 P.3d on another v. Chun 425]). noted, 12021(a)(1) 12021.1(b)(27) As sections and both included additional offenses that misdemeanor, were a by as either or a reference to a conviction for an Likewise, (a), (b), (d) “offense enumerated in subdivision or of Section 12001.6.” sections 12021.1(b)(29) possession by person both banned firearm a convicted of two (a)(2). or more misdemeanor violations subdivision (c)(1) 29805) (repealed Former section subdivision and renumbered prohib as § ited persons firearm convicted of several enumerated misdemeanor violations, (a)(1). including a misdemeanor violation of section That section conviction, only applied years if the firearm occurred within 10 of the misdemeanor 12021(a). only if the defendant qualify punishment did not otherwise accord, (c)(1) 12021(a) (c)(2)]; [“[e]xcept provided as in” or § § Lungren Rash Cal.App.4th 1238 [69 (c)(1) party Neither us to purposes invites consider subdivision of section 12021 for applying against multiple the rule convictions for included offenses. together we need not decide whether section should be considered in isolation or That 12021.1(a) further illustrates the point.
The second of section sentence Section accusatory “A dismissal an pleading pursuant sentence provided, (b) does not affect set forth in subdivision 1203.4a an offense involving trial court to 1203.4a requires of a conviction.” Section finding previous circumstances, in certain or infraction dismiss misdemeanor no felonies. involving has relevance in cases convicted of a misdemeanor violation
Consequently, person from a firearm under (a)(1) would barred possessing he or she not be barred from 12021.1(a), possessing while would Sanchez, 12021(a)(1). Cal.App.3d firearm under to a misdemeanor violation applied [§ not (a)(1)].) 12021(a)(1)) It follows offender in possession *10 12021.1(a)) of in necessarily possession included offense violent offender necessarily because a have violated section without could (Cf. 12021(a)(1). (2009) v. Williams violating People Cal.App.4th sub- 643-644 of controlled specified Cal.Rptr.3d [possession 401] [88 Code, 11377, included (Health (a)) subd. is not a necessarily stances & Saf. § while armed offense of of different list of controlled substances Code, & of controlled (Health (a)) Saf. because the list § coextensive]; (1991) not substances each statute is v. Scheldt of a sawed-off 165-166 Cal.App.3d Cal.Rptr. [possession [282 228] 33215) (former (a), necessarily is not a shotgun now § § a violent firearm a convicted of by person offense (former 12021.1(a))].) offense § sum,
In nor section we conclude neither section other, 12021.1(a) is of the because it was included offense to offense the other. committing (People commit either without possible at 693.) Accordingly, against multiple Cal.4th rule Ortega, supra, p. does not defendant’s sepa convictions for included offenses bar both based on same violating rate convictions for sections defendant’s convictions on Court of erred in reversing weapon. counts two and four. v. Breverman (c)(1) constituting that section as one crime.
with 19; 142, 154, 1094]; id. at p. generally fn. see fn. 5 People Ortega, supra, pp. at traditional crime of theft includes both 19 Cal.4th [the Ryan theft]; grand Cal.App.4th theft and petty forgery, Legislature defining divided the traditional crime of into 277] [when offense, i.e., subdivisions, ways committing single forgery”].) it “different described Could Be B. Punished Each Separately Firearm He Illegally Defendant Possessed for The trial court sentenced defendant to concurrent terms of 25 years to life for his two convictions for offender in 12021(a)(1). The Court of one of the Appeal stayed concurrent sentences pursuant section 654 for lack of evidence that defendant harbored a intent or separate objective the two possessing firearms. Our recent precedent compels result. opposite Correa,
We that, held in 54 Cal.4th its “[b]y plain section 654 language does not bar multiple punishment violations multiple (Id. of the same criminal 334.) statute.” at Section 654 expressly applies act or only omission that is in different ways by “[a]n different of law . . . .” provisions (a), added.) italics In to extend refusing section 654’s reach its beyond we plain language, of dictum in disapproved Neal v. State 11, 18, (1960) 55 Cal.2d footnote 1 Cal.Rptr. of California stated; 839], which section 654 does not “[although expressly double preclude when an act punishment rise to more than gives one violation of the same Penal Code section or to violations codes, criminal of other it is settled that the basic principle enunciates double precludes in such-cases punishment also. [Citations.]” Correa, Neal’s 338.) We observed that of the statute interpretation *11 654, the undermines which is to ensure that the purpose defend ant’s (Correa, will be commensurate punishment with his at culpability. 341-343.) pp. a who the Generally, violates same statute person multiple times is more than a who violates the statute culpable once. at only {Id. 341-342, v. Latimer 1203, citing People pp. 5 Cal.4th 1211 [23 Correa, here, like defendant was convicted of counts of offender multiple (§ 12021(a)(1)), in possession based on his a simultaneous of possession case, announced, rule, cache of In that we as a new that section weapons. does not bar for violations of the same of multiple punishments provision law. We held further that this new rule could not to Correa apply retroactively {Correa, under the of the ex supra, facto clause. 54 Cal.4th at protections post 334, 344-345.) concluded, however, We also that the had Legislature specifically section from the in exempted of section 654 circum application stances where a defendant is found in of several firearms. We possession reasoned: “The in former section Legislature, enacting (k) subdivision made it clear that the of a on magnitude felon’s culpability depends the number of he or she It that the weapons possesses. provided possession under, offense’ . . . constitute a distinct separate
‘each firearm shall (Correa, supra, at section 12021.” other among provisions, not section sentence “did violate 345.)12 we held that Correa’s p. of each weapon makes statutory authority possession 654 because specific (k).)” (Correa, at p. 334.) (Former offense. separate violating here. convictions for Likewise Defendant’s two firearms, two are 12021(a)(1), based on his simultaneous because the intended Legislature from section 654’s application exempt distinct and firearm . . . shall constitute separate “each true of (k).) same is offense . . .” under that statute. for violating defendant’s two convictions rule, has been in existence since the 1994 (k).) this which Applying ex concerns.13
amendment
raises no
facto
post
Defendant, however,
may not be separately for violations
of the same
based on
sections
his possession
firearm,
were
In
though
even
both offenses
multiple
proper.
Reed,
supra,
38 Cal.4th
we held that
section 954
“[w]hen
conviction, but section 654
permits
prohibits multiple
punishment,
must
trial court
execution of sentence on the convictions
for which
stay
(Id.
1227.)
recently
We
affirmed
multiple punishment
prohibited.”
Jones,
Jones,
felon,
As section (a), “An act or provides: omission that is different ways by different of law shall be under the punished that provision provides term longest potential for but imprisonment, in no case shall the act or omission be more than (Italics added; one provision.” see v. Kramer (2002) 29 Cal.4th [construing 738] term “longest term potential in 654].) imprisonment” §
The for punishment months, two, section violating 12021(a)(1) was 16 or (§§ three years. 12021(a)(1), now (a)(1).) subd. § punishment violating 12021.1(a) months, two, was likewise 16 or three years. (§§ 12021.1(a), now (a)(1).) Section 12021.1(a) § addition- however, ally provided, probation granted, or if the or “[i]f imposition execution of sentence is it shall be a suspended, condition of the or probation that the suspension defendant serve at least six in a months county jail” in unusual cases except where the interests of warrant no justice jail time. (See 12021.1, (d).) § for the provided longest term of potential where imprisonment, least grant probation involved, was because it minimum term in imposed mandatory jail circumstance. (c) “term of [defining imprisonment” include “any period imprisonment condition of imposed probation”].) as. defendant under
Sentencing is also consistent with the statute’s mandate that it express was to apply “[notwithstanding (a) noted, of Section 12021 . . . .” As previously phrase “notwithstanding” signals the Legislature’s intent to have the statute without or apply prevention Palacios, obstruction 12021(a)(1). (See *13 728-729.) It would have contravened intent to execu- legislative stay tion of sentence on a conviction favor of imposing
745 (2011) 53 (Cf. v.Ahmed conviction. on section sentence to the P.3d must look 264 Cal.4th 163 822] [courts [133 regarding the answer they themselves to see if supply of the statutes language be may imposed].) whether or how punishments for two bemay we hold that defendant separately 12021.1(a) based on his 12021(a)(1) and of section violations of section erred Appeal of two firearms. The Court simultaneous possession However, hold that defendant not may otherwise. we also concluding for violations sections separately punished the trial court correctly based on of the same firearm. While on the execution of sentence incorrectly stayed this recognized point, 12021.1(a)). offenses wrong
III. DISPOSITION as insofar it reversed We reverse the of the Court judgment four, vacated the sentences on defendant’s on counts two and convictions counts, on three be In all stayed. those and ordered the sentence count the We remand the other we affirm Court of respects, Appeal judgment. matter to that consistent with our opinion. court for further proceedings Kennard, J., Baxter, J., J., Chin, J., J.,C. Werdegar,
Cantil-Sakauye, concurred. core, is,
LIU, at its J., The doctrineof lesser included offenses Concurring. It legislative guarantee doctrine about intent. “is constitutional part 444, 448 (1950) v. Smith 36 Cal.2d double against jeopardy.” (People [224 321].) 719]; Cal.2d P.2d (1949) see Kehoe 33 713 People v. [204 ‘ obtained, . the been “to . . conviction on lesser offense has “[0]nce ’ twice convict of would be to convict lesser.” greater [Citations.]” (1996) v. Fields [52 832].) legislature do not bar a from double Importantly, jeopardy principles for necessarily authorizing multiple multiple punishments (Garrett (1985) 471 U.S. included offenses. United States 2407]; U.S. L.Ed.2d S.Ct. Brown v. Ohio Instead, 2221].) rule convictions of L.Ed.2d S.Ct. against multiple on the created doctrine judicially premised included offenses is the same notion that the does not intend to legislature “ordinarily punish where two statutory provi offense under two different statutes. Accordingly, offense,’ not authorize are construed they sions ‘same proscribe contrary in the absence of clear indication of cumulative punishments (Whalen v. 445 U.S. intent.” United States legislative L.Ed.2d 100 S.Ct.
Here, the intent is clear on the of legislative face the statute. Former Penal (a) Code section (hereafter 12021.1(a)) subdivision ex- states that pressly “[Notwithstanding (a) applies Section . . . .” This is a clear intent that a expression Legislature’s defendant whose conduct violates former Penal Code section (a)(1) (hereafter 12021(a)(1)) also be convicted may section I that the agree Court judgment be must reversed insofar as it reversed defendant’s convictions on counts two and four.
I Correa with the court’s agree application Jones 809] Cal.4th 350 hold defendant may 821] for two violations of punished separately firearms, on based his simultaneous of two but defendant not be may violations of sections separately 12021(a)(1) and 12021.1(a) based on of the same firearm.