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Name: People v. Brown
Case #: D047721
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/21/2007
Subsequent History: Grant & Hold rev. gr. 6/13/07: S152225
Summary

Appellant was properly convicted of possession of ammunition where he possessed three bullets. Appellant was convicted of attempted murder, attempted robbery, assault with a deadly weapon, being a felon in possession of a firearm, and being a felon in possession of ammunition (Penal Code section 12316, subdivision (b)(1)). It was found true that he used a firearm to commit the attempted murder and robbery offenses, within the meaning of Penal Code section 12022.53, subdivisions (b)(c)(d), and 12022.5, subdivision (a). As to the assault with a deadly weapon, it was found true that appellant used a deadly weapon within the meaning of section 12022, subdivision (b)(1). He was sentenced to a term of 26 years to life plus 12 years. On appeal, he argued that the evidence was insufficient to support his conviction for being a felon in possession of ammunition, because the evidence was insufficient to prove he possessed “ammunition capable of being fired from a firearm with a deadly consequence.” (The ammo in question was three bullets found in a closet, which appellant said were “keepsakes.” No firearms were found in the house.) The appellate court rejected the argument and affirmed. “Ammunition” as defined in section 12316, subdivision (b)(2) is a very broad term and includes not just “live ammunition.” Section 654’s double punishment prohibition was not violated where attempted robbery was completed prior to the commission of assault and attempted murder. Appellant also argued that the trial court violated section 654 because it did not stay imposition of his sentence for attempted murder, attempted robbery, and assault with a deadly weapon. He contended that each of the crimes had a single objective, the commission of a robbery, and therefore he was liable for punishment for only one offense. The appellate court rejected the argument, concluding that the acts did not arise from a single objective. Although the first objective was to commit a robbery, the attempt ended when it was discovered that the victim had no money, and appellant searched him. The subsequent assault was then committed not to complete the robbery, but to hurt the victim. Appellant then shot the victim, not to hurt him, but to kill him. Further, there was no Cunningham/Blakely error because the court rather than the jury made the factual findings necessary for imposition of or staying terms within the meaning of section 654. The trial court also did not err when it imposed section 12022.53 firearm enhancements on both his conviction for attempted murder and attempted robbery. The court concluded that while the display of the gun took place during the robbery, the discharge was done after appellant no longer harbored that objective and solely as a means of killing the victim. Therefore, both enhancements were properly imposed.