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Name: People v. Sanders
Case #: S191341
Court: CA Supreme Court
District CalSup
Opinion Date: 11/19/2012

Former Penal Code sections 12021, subdivision (a) (offender in possession of firearm) and 12021.1, subdivision (a) (violent offender in possession of a firearm) are not greater and lesser included offenses of each other and a defendant can be convicted of both offenses based on possession of the same weapon. During a parole search of appellant’s residence, officers found two shotguns and ammunition. At trial, he stipulated that he was previously convicted of a felony within the meaning of former sections 12021 and 12021.1 but claimed the shotguns were not his. A jury convicted appellant of two counts under section 12021(a)(1) and two counts under section 12021.1(a)(1) based on his simultaneous possession of the two firearms. Affirmed. Multiple convictions are prohibited for both a greater and a necessarily lesser included offense arising out of the same act or course of conduct. (People v. Montoya (2004) 33 Cal.4th 1031.) Under the statutory elements test, the two statutes here are not greater and lesser included offenses of each other. Violent offender in possession is not a necessarily included offense of offender in possession because it is possible to violate section 12021(a)(1) without necessarily violating section 12021.1(a). A person could violate section 12021(a)(1) by possessing a firearm after having been convicted of any felony not included in the list of violent offenses under section 12021.1, or while possessing a firearm while addicted to a narcotic. The fact that two of appellant’s alleged prior felony convictions qualified for both offenses was irrelevant under the statutory elements test. Additionally, section 12021(a)(1) is not a necessarily included offense of section 12021.1(a). Section 12021.1 applies to certain “violent offenses,” not just violent felonies. Although the two statutes overlap in their inclusion of several “wobbler” or misdemeanor offenses, only section 12021.1(a) can be satisfied by a misdemeanor violation of Penal Code section 245, subdivision (a)(1).

Appellant may be separately punished for two violations of section 12021, subdivision (a)(1) and of section 12021.1, subdivision (a) based on simultaneous possession of two firearms but he may not be separately punished for violations of these statutes based on possession of the same firearm. The trial court sentenced appellant to concurrent terms of 25 years to life for his two convictions for offender in possession under section 12021(a)(1). This was partly correct. Appellant’s two convictions for violating section 12021(a)(1), based on his simultaneous possession of two firearms, are exempt from Penal Code section 654’s bar against multiple punishment because the possession of each firearm constitutes a distinct and separate offense. (Pen. Code, § 12001, subd. (k); People v. Correa (2012) 54 Cal.4th 331, 344-345.) The same is true of appellants two convictions for violating section 12021.1(a). However, punishment for violations of both section 12021(a)(1) and 12021.1(a)(1), based on the same weapon, is prohibited, and only the greater punishment is permitted. (People v. Jones (2012) 54 Cal.4th 350.) Here, although both statutes provide for the same prison terms, because section 12021.1(a)(1) requires a mandatory minimum jail term if probation is granted, but section 12021(a)(1) has no such provision, the former has the greater punishment and execution of punishment for the latter must be suspended.