P. v. Jones

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Filed 12/10/09 P. v. Jones CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
JARVONNE FEREDELL JONES,
Defendant and Appellant.
C060376
(Super. Ct. No. 08F04254)
A jury convicted defendant Jarvonne Feredell Jones of three
firearms offenses and the trial court found he had served a
prison term. (Pen. Code, §§ 12021, subd. (a)(1), 12025, subd.
(b)(6), 12031, subd. (a)(2)(F), 667.5, subd. (b).)1 Defendant
was sentenced to prison for four years, and he timely appealed.
1 Hereafter, undesignated statutory references are to the Penal
Code.

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Defendant contends the trial court should have stayed the
sentences for two counts and that the abstract reflects jail
fees that were not orally pronounced at sentencing. The
Attorney General partly concedes the former claim. We shall
modify the sentence and otherwise affirm.
FACTS
In May 2008, the car defendant was driving was searched. A
loaded revolver, not registered to defendant, was found in a
door panel, and defendant, a convicted felon, said he bought the
gun three days earlier.
DISCUSSION
I.
Count Three Must be Stayed
Defendant was convicted of possession of a firearm by a
felon (count one, § 12021, subd. (a)(1)), carrying a readily
accessible concealed and unregistered firearm (count two,
§ 12025, subd. (b)(6)), and carrying an unregistered loaded
firearm in public (count three, § 12031, subd. (a)(2)(F)).
Defendant contends he committed one possessory act and
therefore multiple punishment is improper and the sentences for
counts two and three must be stayed. We agree in part.
“Section 654, subdivision (a), provides in pertinent part,
„[a]n act or omission that is punishable in different ways by
different provisions of law shall be punished under the
provision that provides for the longest potential term of

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imprisonment, but in no case shall the act or omission be
punished under more than one provision.‟ Section 654 therefore
„“precludes multiple punishment for a single act or for a course
of conduct comprising indivisible acts. „Whether a course of
criminal conduct is divisible . . . depends on the intent and
objective of the actor.‟ [Citations.] . . .
“Whether section 654 applies in a given case is a question
of fact for the trial court, which is vested with broad latitude
in making its determination. [Citations.] Its findings will
not be reversed on appeal if there is any substantial evidence
to support them.” (People v. Jones (2002) 103 Cal.App.4th 1139,
1142-1143 (Jones).)
The probation report recommended the upper term of three
years for count one. It recommended one-third the midterm on
counts two and three, “stayed, pursuant to Penal Code Section
654.” But a one-third midterm sentence is what is generally
imposed for consecutive determinate counts. (See § 1170.1,
subd. (a).) This page of the probation report contains
handwritten notes, presumably made by the trial court,
bracketing the paragraphs discussing counts two and three with
the notation “654” and indicating “3 yrs.”
At sentencing, the parties expressed no disagreement with
the recommendation that counts two and three should be stayed
pursuant to section 654, but contested whether defendant should
receive the upper or middle term. The trial court imposed the

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upper term of three years on each count, but ordered counts two
and three to be served concurrently. It did not mention section
654.
It may be that the trial court agreed with the probation
officer‟s recommendation regarding the applicability of section
654, but misapplied that statute. The correct way to implement
it is for the trial court to impose sentence on all counts of
which the defendant stands convicted, but then stay execution of
sentence as necessary to prevent improper multiple punishment.
(See People v. Deloza (1998) 18 Cal.4th 585, 591-592; People v.
Pearson (1986) 42 Cal.3d 351, 359-360.) Imposing concurrent
terms is not the correct method of implementing section 654. A
concurrent term is not a stayed term. In fact, imposing
concurrent terms is generally seen as an implied finding that
the defendant bore multiple intents or objectives, that is, a
rejection of the applicability of section 654. (See, e.g.,
People v. Garcia (2008) 167 Cal.App.4th 1550, 1564-1565 (Garcia)
[“implicit in the trial court‟s concurrent sentencing order is
that defendant entertained separate intentions”]; see Jones,
supra, 103 Cal.App.4th at p. 1147 [same].)
The Attorney General agrees that count three should be
stayed as between it and count two, because defendant committed
a single act when he possessed a loaded firearm in public and
possessed a concealable weapon. But the Attorney General argues
that as between counts one and two, no stay is required because

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those crimes were committed at different times or with different
intents or both. He relies on evidence that defendant, a
convicted felon, possessed a firearm for three days before his
arrest. We are not entirely persuaded by the Attorney General‟s
reasoning, but we agree with his contention that defendant may
be separately punished for possession by a felon of a firearm
and another offense.
The Attorney General‟s legal theory is that defendant
admitted possessing the gun three days before his arrest, a
felon commits a crime the moment she or he possesses a gun, and
therefore defendant‟s antecedent possession of the gun is
separately punishable. He relies on cases where a felon uses a
gun to commit some crime with the gun, such as assault or
robbery. In those cases, the rule is that where a felon
acquires the gun at the scene of the crime, such as in a
struggle, she or he may not be separately punished, but if the
felon arrives at the scene armed, separate punishment is
permitted. (See People v. Bradford (1976) 17 Cal.3d 8, 22-23
[felon took officer‟s gun during struggle, multiple punishment
barred]; People v. Venegas (1970) 10 Cal.App.3d 814, 821
[similar holding]; cf. Garcia, supra, 167 Cal.App.4th at
pp. 1564-1566 [felon kept gun after robberies and planned to use
it to avoid arrest, multiple punishment allowed]; People v.
Ratcliff (1990) 223 Cal.App.3d 1401, 1407-1410 [similar

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holding]; see generally Jones, supra, 103 Cal.App.4th at
pp. 1144-1146 [collecting and discussing cases].)
Defendant did not use his gun to commit a nonpossessory
crime. And the People did not argue defendant was guilty of
possession three days before his arrest: The prosecutor
mentioned defendant‟s admission that he bought the gun three
days before to bolster the theory that defendant knowingly
possessed the gun, not to base liability on possession before
the date of arrest. Accordingly, we question the theory of
antecedent possession in this case.
However, because of the purpose of the ban on felons
possessing firearms, we agree that multiple punishment is
appropriate as between count one (possession by a felon of a
firearm) and either counts two or three.
The purpose of section 12021 is to protect public welfare
by precluding the possession of guns by those who are more
likely to use them for improper purposes--felons (People v.
Pepper (1996) 41 Cal.App.4th 1029, 1037, citing People v. Bell
(1989) 49 Cal.3d 502, 544), and to provide a greater punishment
to an armed felon than to an unarmed felon (People v. Winchell
(1967) 248 Cal.App.2d 580, 597). “Section 654‟s purpose is to
ensure that punishment is commensurate with a defendant‟s
culpability. [Citations.] This concept „works both ways. It
is just as undesirable to apply the statute to lighten a just
punishment as it is to ignore the statute and impose an

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oppressive sentence.‟ [Citation.] Section 12021 uniquely
targets the threat posed by felons who possess firearms.”
(Jones, supra, 103 Cal.App.4th at p. 1148.)
In cases where a felon possessed a separately proscribed
firearm, that is, an inherently unlawful weapon, multiple
punishment has been barred. (People v. Perry (1974) 42
Cal.App.3d 451, 456 [“The possessor here happened to be one
previously convicted of a felony, whose possession of a
concealable firearm was punishable regardless of its being a
sawed-off rifle”]; see People v. Scheidt (1991) 231 Cal.App.3d
162, 170 [similar facts, following Perry].)
But here, defendant did not possess an inherently unlawful
firearm; he possessed his firearm in an unlawful way, that is,
beyond the unlawfulness inherent in a felon‟s possession of a
firearm. In this case defendant concealed the loaded firearm in
a vehicle that then he drove on a public street.
In People v. Harrison (1969) 1 Cal.App.3d 115, Harrison was
convicted of possession by a felon of a firearm and possession
of a loaded firearm on a public street. Multiple punishment was
upheld based on the following reasoning:
“In our case, appellant argues he possessed or controlled
but one object, the revolver, and yet was punished for two
crimes only because he was an ex-convict driving a car. We note
these distinctions: Penal Code section 12021 applies only to a
person previously convicted of a felony and who owns or has

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custody, control or possession of a concealable firearm, loaded
or unloaded and whether in a vehicle or not; so long as he owns
or has custody, control, or possession of it, such a weapon need
not be on his person or in his vehicle. The [misdemeanor]
offense proscribed by Penal Code section 12031, however, applies
to any person and to any firearm, concealable or not, but only
if it is loaded and he carries it either on his person or in a
vehicle. . . .
“The two statutes strike at different things. One is the
hazard of permitting ex-felons to have concealable firearms,
loaded or unloaded; the risk to public safety derives from the
type of person involved. The other strikes at the hazard
arising when any person carries a loaded firearm in public.
Here, the mere fact the weapon is loaded is hazardous,
irrespective of the person (except those persons specifically
exempted) carrying it.
“The „intent or objective‟ underlying the criminal conduct
is not single, but several, and thus does not meet another of
the tests employed to determine if Penal Code section 654 is
violated. [Citation.] For an ex-convict to carry a concealable
firearm is one act. But loading involves separate activity, and
while no evidence shows that appellant personally loaded the
pistol, there seem little distinction between loading and
permitting another to do so. Thus, two acts, not a single one,
are necessarily involved and bring our case outside the

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prohibition against double punishment for a single act or
omission. We therefore hold contrary to appellant‟s contentions
on this point.” (People v. Harrison, supra, 1 Cal.App.3d at
p. 122.)
Here, as stated, after defendant purchased the gun, he
concealed it in the car, or had someone conceal it for him.
Under the reasoning of Harrison just quoted, that act merits
separate punishment from mere possession. Accordingly, a
section 654 stay is not required as between counts one and two.
Defendant relies in part on In re Joseph G. (1995) 32
Cal.App.4th 1735. There, a minor carried a loaded, concealed,
gun to school, and the juvenile court sustained delinquency
allegations that he violated three separate statutes
proscribing, respectively, carrying a loaded firearm at school,
carrying a loaded firearm in public and carrying a concealed
weapon, and multiple punishment was precluded, although it was
an academic victory, since no sentence had been imposed, the
minor not having been removed from the home. (Id. at pp. 1743-
1744; see People v. Hurtado (1996) 47 Cal.App.4th 805, 807-808,
816 [defendant convicted of carrying a loaded weapon in a car
and carrying a concealed weapon in a car; court accepted
People‟s concession of applicability of section 654, citing
Joseph G.].) We agree Joseph G. supports application of section
654 as between counts two and three in defendant‟s case, but it
does not address the issue of defendant‟s status as a convicted

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felon. For the reasons stated above, that status merits
additional punishment in this case.
In conclusion, the concurrent sentence on count two is
proper, but the sentence on count three must be stayed.
II.
The Jail Fees were Properly Imposed
When a defendant is convicted, the county may recoup the
“actual administrative costs . . . incurred in booking or
otherwise processing arrested persons.” (Gov. Code, § 29550.2,
subd. (a); see People v. Rivera (1998) 65 Cal.App.4th 705.)
The probation report made six recommendations, including a
prison sentence, an $800 restitution fine and an equivalent,
stayed, parole revocation fine, and recommended the trial court
order defendant to “pay a court security surcharge fee” of $60,
“pay a $242.29 main jail booking fee” and “pay a $27.22 main
jail classification fee”, and both of the latter were “pursuant
to Section 29550.2 of the Government Code[.]”
After imposing concurrent upper-term prison sentences, the
trial court made the following orders: “Impose the restitution
fine of $200, a . . . parole revocation fine of $200 to be
stayed upon successful completion of parole; order that you pay
the court security surcharge, main jail booking fee and main
jail classification fees.”
The abstract and court minutes reflect the three fees in
the amounts recommended by the probation officer, a $60 court

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security fee, a $242.29 booking fee and a $27.22 jail
classification fee.
Defendant contends that because the trial court did not
recite the amount of the booking and jail classification fees,
they were not properly imposed. He does not raise a similar
challenge as to the $60 court security fee.
Defendant relies on the rule that “Where there is a
discrepancy between the oral pronouncement of judgment and the
minute order or the abstract of judgment, the oral pronouncement
controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
The abstract of judgment and court minutes must accurately
reflect what the trial court ordered, and the clerk, in
preparing those documents, lacks the power to add fines or fees
not imposed by the court. (Id. at pp. 386-390.)
But in this case, there is no discrepancy between the
abstract, the minutes and the trial court‟s order. Although the
trial court did not recite the amounts of the jail booking and
classification fees, the trial court ordered that they be paid.
The trial court was following the recommendations of the
probation officer in the order presented in the report, although
it disagreed with the sentence and the amount of the restitution
fines. The parties had the probation report and could follow
the trial court‟s orders. Defendant did not object to the
amount of the fees or to the failure to recite that amount. No
doubt this is because the amount—actual administrative costs was

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routinely calculated. For lack of objection, we presume the
amounts in the probation report reflect the correct
administrative costs incurred for booking and classifying
defendant into jail. (See People v. Bartell (2009) 170
Cal.App.4th 1258, 1262; People v. Evans (1983) 141 Cal.App.3d
1019, 1021.)
This is not like cases where a clerk adds some fee or fine
that was not actually imposed. The clerk accurately captured in
the minutes and the abstract the trial court‟s imposed judgment.
Although the trial court should have recited the amounts, we see
no basis for striking those two orders in this case.
DISPOSITION
The judgment is modified by staying execution of the
sentence on count three pursuant to section 654, and as so
modified is affirmed. The trial court is directed to forward a
new abstract of judgment to the Department of Corrections and
Rehabilitation
CANTIL-SAKAUYE , J.
We concur:
BLEASE , Acting P. J.
ROBIE , J.

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