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Name: People v. Mason
Case #: D063793
Court: CA Court of Appeal
District 4 DCA
Opinion Date: 12/15/2014
Summary

There was insufficient evidence to support three of defendant’s four convictions for possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)) where there was no evidence that his possession of a single gun was interrupted. Mason used the same gun to commit a series of crimes, including a murder. Among other offenses, a jury convicted him of first degree murder, attempted murder, assault with a firearm, shooting at an inhabited dwelling, and four counts of possession of a firearm by a felon. Each of the four felon-in-possession counts specified a date of possession, corresponding to the dates of different crimes and the police chase that led to the discovery of the firearm. Mason appealed, arguing that multiple convictions for being a felon in possession were improper because he had been in continuous possession of the firearm. Held: Reversed in part. Possession of a firearm is a continuing offense. (People v. Warren (1940) 16 Cal.2d 103, 112.) “Only one violation occurs even though the proscribed conduct may extend over [an] indefinite period.” (People v. Keehley (1987) 193 Cal.App.3d 1381, 1385.) Here, although the evidence showed that Mason possessed the firearm on each date, there was no evidence that his possession was interrupted such that multiple separate offenses were committed. His crime continued as a single offense for as long as the same possession continued. The fact that the felon-in-possession counts were charged separately does not convert a single, continuing offense into multiple offenses. The court disagreed with the Attorney General’s argument that possession occurring at different times and places with various objectives supports multiple convictions.

Sentence of LWOP cannot be tripled pursuant to the Three Strikes law (Pen. Code, § 667, subd. (e)(2)). The court sentenced Mason to nine LWOP terms: one term for each of his first degree murder convictions, which the court tripled pursuant to the Three Strikes law (Pen. Code, § 667, subd. (e)(2)). On appeal, Mason argued that his LWOP sentences should not have been tripled under the Three Strikes law. Held: Sentence modified to a total of three LWOP terms. Section 667, subdivision (e)(2) provides in part that “the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction . . . .” The Court of Appeal, following People v. Coyle (2009) 178 Cal.App.4th 209, and disagreeing with People v. Hardy (1999) 73 Cal.App.4th 1429, reasoned that the tripling provision in section 667, subdivision (e)(2) cannot be applied to LWOP terms because LWOP has no minimum term to triple. An LWOP term does not specify a term of incarceration before the inmate is eligible for parole; it is an indeterminate sentence without a minimum term.