People v. Lopez (2004)

In People v. Lopez (2004) 119 Cal.App.4th 132, police officers arrived after two men approached a woman in a threatening manner, one with a handgun. (Id. at p. 134.) Upon arrival, the woman pointed to three men. (Ibid.) When officers approached the defendant, he refused to identify himself and reached toward the front of his pants several times. (Id. at pp. 134-135.) An officer tried to pat him down for weapons, but the defendant rolled on his side to kick the officer and slid away. (Id. at p. 135.) The defendant, a second strike offender, was sentenced to six years for unlawful possession of a firearm and a concurrent six year term for unlawful possession of ammunition. The ammunition was in the firearm. The Court concluded that the sentence for unlawful possession of ammunition should have been stayed under section 654. The Lopez court concluded that the detention and patdown were reasonable and did not violate the Fourth Amendment. (Id. at p. 137.) The trial court sentenced the defendant to a six-year term in state prison for the firearm possession and imposed a concurrent six-year term for the ammunition possession. The defendant, citing section 654, argued that the sentence for unlawful possession of ammunition should be stayed because possession of the firearm and ammunition constituted an indivisible course of conduct. (Lopez, supra, 119 Cal.App.4th at p. 137.) In addressing what the court noted was an issue of first impression in California, Lopez held that section 654 prohibited multiple punishment for both offenses, noting: "To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objective of section 654 too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment." ( Lopez, supra, at p. 138.)The Court stated, "In resolving section 654 issues, our California Supreme Court has recently stated that the appellate courts should not 'parse the objectives too finely.' To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely." (Id. at p. 138.) The Court added, "While possession of an unloaded firearm alone can aid a person committing another crime, possession of ammunition alone will not. The former may be used as a club and a victim may be fearful that the firearm is loaded. While the latter may be thrown at a victim, it is extremely unlikely that possession of bullets alone would scare anyone but the most timid." (Ibid.) The Court evaluated the conflict between two alternative sentencing schemes due to true findings implicating both the one strike law and the habitual sexual offender law. The Court held that when sentencing enhancements "that otherwise would have to be either imposed or stricken [are] barred by an overriding statutory prohibition . . . the trial court can and should stay the enhancement." (Id. at pp. 364-365.) The Court held this because of the possibility of invalidation, as well as in the interest of the trial court clearly indicating that it was making its sentencing decision because it thought it must, not because it was "exercising its discretionary power under Penal Code section 1385." (Id. at p. 365.)