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Name: People v. Garcia
Case #: B205182
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 11/04/2008

In cases where multiple indeterminate terms are imposed, neither Penal Code section 1170.1 nor any other statute requires that a prior prison term enhancement (Pen. Code, sec. 667.5, subd. (b)) be applied only once. The enhancement cannot be imposed if it is also the subject of a mandatory prior serious felony enhancement (Pen. Code, sec. 667, subd. (a)); and if it is not imposed, the court must strike it pursuant to Penal Code section 1385. Appellant was convicted of numerous serious and non-serious felonies with accompanying serious felony and prior prison term enhancements (Pen. Code, secs. 667, subd. (a) and 667.5, subd. (b), respectively). The sentencing court imposed numerous indeterminate sentences but failed to impose or strike the prior prison term enhancements on all but two of the sentences. The appellate court ruled that the trial court had the discretion to impose the prior prison term enhancements for those counts where the prior was not also used for the mandatory serious felony enhancement, and that it had a duty to either impose or strike the enhancement pursuant to section 1385. (Compare People v. Williams (2004) 34 Cal.4th 397 [in cases where multiple indeterminate terms are imposed, all section 667, subd. (a) enhancements must be imposed on every count.].)
In cases involving firearms and multiple punishment issues, where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes is approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense (Pen. Code, sec. 654). (People v. Bradford (1976) 17 Cal.3d 8.) Here, the evidence indicated that appellant had the firearm when he committed two carjackings, one on January 19, 2006, and one on January 24, 2006, and the robberies on January 24, 2006, as well as when he was arrested on January 24, 2006. In addition to the other offenses, appellant was convicted of being a felon in possession of a firearm and sentenced to a concurrent term. Under this set of facts, the trial court could reasonably find that this was not a situation involving the fortuitous possession of a handgun only at the moment of the commission of a crime apart from the act of firearm possession by a felon and, thus, section 654 did not apply.
Under the “Three Strikes” law, consecutive sentences are not mandatory if the multiple current felony convictions are committed on the same occasion or arise from the same set of operative facts. (Pen. Code secs. 667, subd. (c)(6), and 1170.12, subd. (a)(6)). Appellant was sentenced to a concurrent indeterminate strike term for felon in possession of a firearm. Upholding the concurrent term, the court noted that the “same occasion” language in the context of the strike sentencing scheme refers to: (a) close temporal and spatial proximity between the acts underlying the current convictions, or (b) common acts or criminal conduct, i.e., a common instrumentality utilized to commit every other crime, as evidenced here, the use of the gun supporting the felon in possession, as well as in the commission of the other offenses.