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Name: People v. Atencio
Case #: C063710
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/01/2010
Subsequent History: rev. granted 3/16/11 (S189461)

Multiple punishment is not prohibited under Penal Code section 654 if the defendant had separate, although simultaneous, objectives. Appellant joined Vanessa at her mother’s home, which she was cleaning for money. Around noon, an acquaintance picked the two up, drove appellant to an intersection, and left him there. Appellant had a duffel bag in his possession at the time. Later that day, the husband of Vanessa’s mother discovered five guns missing from the residence, including a .45 caliber semi-automatic pistol. Appellant was arrested the next day at S.’s house, where he had gone to sell “something.” Prior to the arrest, S. saw appellant in possession of a plastic bag containing a handgun and jewelry. The following day, officers searched the residence and located the .45 caliber firearm. A jury convicted appellant of grand theft and felon in possession of a firearm, and the court sentenced him to consecutive terms for the offenses. Appellant argued that Penal Code section 654 barred the separate punishments, contending that because his unlawful possession of the firearm was physically simultaneous with the theft, the possession was incidental to only one objective. The court rejected the contention, holding that (1) because appellant’s dominion and control of the gun extended beyond the theft, it was reasonable to find that the unlawful possession was an offense separate from the theft, and (2) the intent to unlawfully possess a firearm was independent of the intent to deprive the owner of his property. The appellate court noted that this finding furthers the intent of section 654 to punish commensurate with the culpability for two offenses and, thus, the consecutive sentences were not an abuse of discretion.