1

Filed 11/19/12



## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE , ) ) Plaintiff and Respondent, ) ) S 191341
v. ) ) Ct.App. 5 F059287 MAURICE D. SANDERS , ) ) Kern County Defendant and Appellant. ) Super. Ct. No. BF126309A

________________________________ ____ )

Here we are called upon to ap ply two related but distinct concepts: (1) the rule prohibiting multiple convictions based on greater and necessarily included
offenses , and (2) Penal Code section 654‟s prohibition against multiple punishment when “[ a ] n act

. . . is punishable in differe nt ways by different provisions of law

. . . . ” 1 Defendant Maurice D. Sanders was convicted on two counts of possess ing a firearm after conviction of a felony (former § 12021, subd. (a)(1) , hereafter section 12021(a)(1) ), and two counts of possess ing a fi rearm after conviction of a specified violent offense ( former § 12021.1, subd. (a) , hereafter
section 12021.1(a) )

. 2 All four counts were based on his simultaneous possession

1 Further statutory references are to the Penal Code, unless otherwise indicated. 2 Former section 12021(a)(1) was repealed effective January 1, 2012, but its provisions were reenacted wit hout substantive change as section 29800, subdivision (a)(1). (See People v. Correa ( 2012 ) 54 Cal.4th 331, 334, fn. 1 ( Correa ); Stats. 2010, ch. 711, § 6 .) Former section 12021.1(a) was repealed and
(footnote continued on next page)2

of two firearms. We hold that neither section 12021.1(a) nor section 12021 (a)(1)
is a necessarily included offense of the other. Accordingly, under section 954,
defendant was properly convicted of both offenses . Applying our recent decision s in Correa , supra, 54 Cal.4th 331 , and People v. Jones ( 2012 ) 54 Cal.4th 350 , we further hold that defendant may be separately punished for two violation s of
section 12021(a)(1) and of section 12021.1(a) based on his simultaneo us possession of two firearms

. However, h e may not also be separately punished for violations of section 12021(a)(1) and section 12021.1(a) based on possession of
the same firearm

. Accordingly, we r everse the C ourt of Appeal, which reached
different conclusion s about the propriety of multiple convictions and mult iple punishments in this case.
I. BACKGROUND
Officers conduct ing a parole search of defendant‟s residence discovered

two o perable shotguns and ammunition

. Defendant was charged with two counts of possessing a firearm after conviction of a felony under section 12021(a)(1) ( offender in possession ) , based on felony co nvictions for making criminal threats (§ 422), discharg ing a firearm with gross neglige nce (§ 246.3), and kidnapping (§ 207). Based on the same convictions he was also charged with two counts under section 12021.1(a) , alleging gun possession by a person c onvicted of a

(footnote continued from previous page) reenacted as section 29900, subdivision (a)(1) without substantive change. (Stats. 2010, ch. 711, § 6

. ) Because defendant was convicted under the repealed statutes, and they were only renumbered without substantive change, we refer to former sections 12021(a)(1) and 12021.1(a) throughout this opinion for cla rity and convenience. For brevity, we will generally not use the word “former.”3

speci fied violent offense (violent offender in possession). 3 At trial defendant denied that he lived at the residence and claimed the two shotguns were not his. He stipulated that he previously was convicted of a felony within the meaning o f
sections 12021 and 12021.1. The jury convicted him of all four counts.
D efendant was also charged with various enhancements based on his prior felony convictions. He waived his right to a jury trial on the enhancements , and
the trial court found he had suffered four prior convictions that qualifie d him for sentencing under the Three S trikes law (§§ 667 , subds, (b)

- (i), 1170.12 , subds. (a)

- (d)) , and that he had served three prior prison terms (§ 667.5 , subd. (b))

. It
sentenced him to two concurrent term s of 25 years to life for his offender in possession counts under section 1 2021(a)(1). It imposed terms of 25 years to life
for his violent offender in possession counts under section 12021.1(a), but stayed
execution of those terms under section 654 . Fin ally, it struck punishment for the three prior prison terms pursuant to section 1385

. On appeal, defendant argued, and the Attorney General conceded, that
violent offender in possession under section 12021.1(a) is a necessarily included
offense of offender in possession under section 12021(a)(1). The Court of Appeal accepted the Attorney General‟s concession and reversed defendant‟s section

3 There are some anomalies in the charging document. For example, making criminal threats (§ 422) was listed as a qualifying violent offense in counts two and four charging a violation of section 12021.1(a). Making criminal threats, however, is not an offense that qualifies as a violent offense under the statute. (Former § 12021.1, subd. (b) , repealed and re numbered as § 29905 (hereafter section 12021.1(b).) In addition, a fourth prior conviction, assault with a firearm (§ 245, subd. (a)(2)) , was charged as a qualifying conviction under the “Three Strikes” law, but was not charged as a qualifying felony under sections 12021(a)(1) and 12021.1(a). None of these discrepancies is of any moment here.4

12021.1(a) convictions. The Court of Appeal also stayed defendant‟s concurrent sentence on the second section 12021( a)(1) conviction under section 654. We denied defendant‟s petition for review challenging the sufficiency of
the evidence. On our own motion, we ordered review limited to the following issues: “(1) Is possession of a firearm after conviction of a specifi ed violent offense ( Pen. Code § 12021.1 , subd. (a)) a necessarily included offense of possession of a firearm after conviction of a felony ( Pen. Code § 12021 , subd. (a)(1)) ?” and “ (2) Was defendant properly sentenced to concurrent terms for his
simultaneou s possession of two firearms in violation of Penal Code section 12021 , subdivision (a)(1)?”
II. DISCUSSION

A. Defendant’s Single Act of Possessing a Firearm Suppor ted Multiple Convictions Under S ections 12021 ( a )( 1 ) and 12021.1 ( a )
While section 654 prohib its multiple punishment , it is generally p ermissible

to convict a defendant of multiple charges arising from a single act or course of
conduct . (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692.) However, a

“ judicially created exception to this rule pr ohibits multiple convictions based on necessarily included offenses. [Citations.]” ( People v. Montoya (2004) 33 Cal.4th 1031, 1034 .)
When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict o n the greater offense, that conviction is controlling , and the
conviction of the lesser offense must be reversed

. ( People v. Moran (1970) 1
Cal.3d 755, 763 ; accord, People v. Milward (2011) 52 C al.4th 580, 589 ; People v.
Medina (2007) 41 Cal.4th 685, 701

- 702 .) If neither offense is necessarily
included in the other , the defendant may be convicted of both, “ even though under section 654 he or she could not be punished for more than one offense ar ising5

from the single act or indivisible course of conduct.” ( People v. Ortega , supra , 19
Cal.4th 686, 693.) As noted, d efendant was convicted on two counts of offender in possession (§ 12021(a)(1) ) and two counts of violent offender in possession (§ 1202 1.1(a) ) based on his simultaneous possession of two firearms. In light of the Attorney General‟s concession below, the Court o f Appeal held that section 12021.1(a) is a necessarily included offense of section 12021(a)(1) and reversed def endant‟s
convictio ns on counts two and four

. In this c ourt, d efendant and the Attorney General agree that the rule against multiple convictions based on necessarily included offenses bars sep a rate convictions under both sections for possession of the same gun. They disagre e, however, about which offense is necessarily included in the other. Defendant
argues that “section 12021, subdivision (a)(1), which applies to any felony conviction, is the „greater‟ offense, because by definiti on it includes all of the
enumerated felon ies in section 12021.1, subdivisi o n (a) .” Thus, he argues, violent offender in possession is a “lesser included” offense of offender in p ossession. Conversely, the Attorney General argues that offender in possession (§ 12021(a)(1)) is a necessarily inclu ded offense of violent offender in possession (§ 12021.1(a) ) because a person who possesses a firearm, having previously been convicted of one of the violent offenses listed in section 12021.1(b), will necessarily be a felon in possession of a firearm unde r section 12021(a)(1). Both arguments fail. Neither offense is necessarily included in the other.

“ In deciding whether multiple conviction is proper, a court should consider only the statutory elements. ” ( People v. Reed (2006) 38 Cal.4th 1224 , 1229 .)

“ Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” ( Id . at p. 1227.) In other words, “ „ [ i ] f a crime cannot be committe d6

without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.‟ ” ( Ibid ., quoting People v. Lopez (1998) 19 Cal.4th 282, 288.)
S ection 12021(a)(1) prohibited possession of a firearm by a person
convicted of (1) any felony or (2) an offense “ enumerated in subdivision (a), (b), or (d) of [former] Section 12001.6 , ” or (3) by a person addicted to a narcotic drug. 4 Although commonly referred to as “ felon in possession of a firearm, ” s ome of the offenses liste d in section 12001.6 were “wobbler” offenses that could result in either a felony or misdemeanor conviction. 5 In addition, subdivision (a)(2) of section 12021 banned firearm possession by a person convicted of two or more
misdemeanor violations of section 417, subdi vision (a)(2) (brandishing a firearm)

.

4 Former s ection 12021(a)(1) provided: “Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivis ion (a), (b), or (d) of Section 12001.6 , or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any fi rearm is guilty of a felony.” (Italics added.) Se e now section 29800, subdivision (a)(1). For ease of reference, we use the shorthand term possession to encompass the broader description set forth in the statute. Former section 12001.6, was repealed effective January 1, 2012, but its provisions were co ntinued without substantive change and renumbered as section 23515. We will refer to this provision as section 12001.6. As relevant here , section 12001.6 described offenses involving “the violent use of a firearm,” including: assaults with a firearm in violation of section 245, subdivisions (a)(2), (3), or (d) (§ 12001.6, subd. (a)); shooting at an inhabited dwelling in violation of section 246 (§ 12001.6, subd. (b)); and brandishing a firearm in the presence of a peace officer in violation of section 41 7, subdivision (c) (§ 12001.6, subd. (d)). On the element of drug addiction, see People v. Washington (1965) 237 Cal.App.2d 59, 65

- 68. 5 Sections 245, subd ivision (a)(2) , 246, and 417, subdivision (c), are all punishable as either a misdemeanor or a felo ny.7

On the other hand, section 12021.1(a) prohibited firearm possession by anyone who had been convicted of an enumerated “ violent offense. ” ( S ee § 12021.1 (b)

. ) 6 Most of the offenses listed in former section 12021.1 (b) are
felonies , but not all

. For example, l ike the offender in possession st atute, section
12021.1 included the wobbler offenses enumerated in section 12001.6, subdivisions (a), (b), and (d) (§ 12021.1(b)(27) ) , and two or more misdemeanor
violati ons of section 417, sub division (a)(2) (§ 12021.1(b)(29 )). In addition,

s ection 12021.1 (b)(24) included “[a]ssault with a deadly weapon or force likely to produce great bodily injury,” which is punishable as either a felony or a
misdemeanor. (§ 245, subd . (a)(1); see also People v. Feyrer (2010) 48 Cal.4th 426, 430.) 7 Comparing these statutory elements, violent offender in possession (§ 12021.1(a) ) is not a necessarily included offense of offender in possession (§ 12021(a)(1) ). It was possible to violate section 12021(a)(1) without necessarily violating section 12021.1(a). For example, a person could have violate d section 12021(a)(1) by possessing a firearm after having been convicted of a ny felony not

6 Former section 12021.1(a) provided : “Notwithstanding subdivision (a) of Section 12021, any person who has been previously convicted of any of the offenses listed in subdivision (b) and who owns or has in his or her possession or under his or her cu stody or control any firearm is guilty of a felony. A dismissal of an accusatory pleading pursuant to Section 1203.4a involving an offense set forth in subdivision (b) does not affect the finding of a previous conviction. If probation is granted, or if t he imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the defendant serve at least six months in a county jail.” See now section 29900, subdivision (a)(1)

- (3). Subdivision (b) of section 12021.1 enumerate d 29 violent offenses. See now section 29905. 7 Sections 12021 and 12021.1 both required that the possession be knowing. ( People v. Snyder (1982) 32 Cal.3d 590, 592.) Accordingly, that element is not a distinguishing factor for either offense.8

included in the list of violent offenses under secti on 12021.1(b) , or by possessing a firearm while addicted to a narcotic drug. (See People v. Sanchez (1989) 211 Cal.App.3d 477, 483 [rejecting the argument that §§ 12021.1 and 12021 apply to the “same group of individuals” because the latter section applie s to a person who is addicted to the use of narcotics or who has been convicted of a felony

“ regardless of whether the felony is a violent offense” ] [(italics added, fn.
omitted ) ].) Defendant urges us to consider the “factual situation presented in this ca se,” namely th at defendant‟s prior conviction was in fact included in the list of violent
offenses under section 12021.1, in order to conclude that violent offender in possession (§ 12021.1 ) is a necessarily included offense of offender in possession (§ 12 021(a)(1) )

. He reasons that , on the record here, he stands convicted of a qualifying felony under both statutes . He then maintains that section 12021(a)(1)
is thus the gr eater offense in the sense that it is the broader offense: it applied to
any felony conviction, including all of th e enumerated felonies in section
12021.1 (a).
Defendant ‟s argument applies the wrong standard. The statutory elements

test does not depend on which statute covers the broader range of conduct. Rather, we ask if the greater offense cannot be committed without also committing the
lesser offense. I n answering that question, we do not consider the underlying facts
of the case or the language of the accusatory pleading. ( People v. Reed , supra , 38 Cal.4th at pp. 1229

- 1230 [ decli ning to consider the language of the accusatory pleading in deciding whether one offense is necessarily included in another]; People v. Ortega , supra , 19 Cal.4th at p. 698 [declining to consider the evidence
adduced at trial in deciding whether one offense is necessarily included in
another ] ; see also People v. Sanchez (2001) 24 Cal.4th 983, 988 [the court
considers whether one offense is necessarily included in another “in the9

abstract”] .) Thus, for purposes of the rule barring multiple convictions o f

nec essarily included offenses, it is irrelevant that two of defendant‟s alleged prior felony convictions also potentially qualified as “violent offenses” under section 12021.1(b) , 8 or that defendant stipulated to having been “convicted of a felony
within the meaning of Penal Code Sections 12021 and 12021.1 .

. . .” Defendant‟s argument, that the general provisions of section 12021(a)(1) necessarily trump ed section 12021.1(a) to the extent the statutes overlap ped in a particular case, also contravenes the expre ss statutory language of section 12021.1(a) , that it was to apply “[n]otwithstanding s ubdivision (a) of section
12021. ” The Legislature‟s use of the term “notwithstanding” in this context meant that section 12021.1(a) applied without prevention or obstruc tion by section 12021(a)(1). (See People v. Palacios (2007) 41 Cal.4th 720, 728

- 729.) Defendant‟s contrary interpretation of the statute renders the Legislature‟s use of the word “notwithstanding” meaningless, and violates the principle that when interpr eting a statute, significance should be given to every word, phrase, and sentence where possible. (See People v. Black (1982) 32 Cal.3d 1, 5.)
I n the abstract , a person could have violate d section 12021(a)(1) without violating section 12021.1(a) . Accordi ngly , section 12021.1(a) is not an offense necessarily included within section 12021(a)(1)

. The Attorney General takes a different, but equally flawed posit ion : t hat
the broader section 12021(a)(1) prohibiting offender in possession is a necessarily
inclu ded offense of the more specific section 12021.1(a) prohibiting violent

8 Defendant‟s prior felony convictions for discharge of a firearm with gross negligence (§ 246.3) and kidnapping (§ 207) potentially qualified as “violent offense[s]” under section 12021.1(b)(8) (“any felony in which the defendant uses a firearm which us e has been charged and proven”) and 12021.1 (b)(19) (“Kidnapping”).10

offender in possession

. She posits that any person who possesse d a firearm, having been convicted of a qualifying violent of fense under section 12021.1(b ), “would have necessarily com mitted a felony and possessed a firearm, fulfilling the elements of section 12021, subdivision (a)(1).” We decline to accept this
concession because it is not supported by the statutory language . ( See Desny v.
Wilder (1956) 46 Cal.2d 715, 729 ; Bradley v. Clarke (1901) 133 Cal. 196, 209

- 210 .) 9 We can identify at least one circumstance in which a person could have
violate d the more narrow section 12021.1(a) without necessarily having violated section 12021(a)(1). S ection 12021.1 applied upon conviction of certain “violent offense [ s ],” not just violent felonies. (§ 12021.1( b ) , now § 29905 , italics added ; People v. Sanchez , supra , 211 Cal.App.3d at p p

. 481

- 483 [rejecting an argument
that § 12021.1(a) applied only to violent felony convictions]; see also 2 Wi tkin & Epstein, Cal. Criminal Law ( 4th ed. 2012 ) Crimes Against Public Peace and Welfare, § 238, p. 942 [“A felony conviction is not required to invoke the prohibition of [ s ection 12021.1(a)]; it is only necessary that the underlying conviction be for a „v iolent offense‟ specified in the statute.”].) As noted , several of the “violent offense[s]” set out in former section 12021.1(b) are either wobblers or straight misdemeanors. (See § 1202 1.1(b)(24), (27) & (29 ).) The Attorney General‟s argument that a pe rson falling under section 12021.1(b) “would have

neces sarily committed a felony” under section 12021(a)(1) is simply inaccurate.

9 Below, the Attorney General conceded the same position defendant advances here: that section 12021.1(a) is a necessarily included offense of section 12021(a)(1). Because the question i s one of law that is properly before us on our own motion (Cal. Rules of Court, rule 8.512(c)(2)), we are not bound by the Attorney General‟s concession in either forum ( Bradley v. Clarke , supra , 133 Cal. at pp. 209

- 210 ; People v. Randle (2005) 35 Cal.4th 987, 1001

- 1002, disapproved on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201).11

Moreover, although the two statutes overlap in thei r inclusion of several wobbler
or misdemeanor offenses , 10 only section 1202 1.1(a) could be satisfied by a misdemeanor violation of section 245, subdivision (a)(1). (See § 12021.1(b)(24).) 11 The second sentence of section 12021.1(a) further illustrates the point.
That sentence provide d , “A dismissal of an accusatory pleading purs uant to Section 1203.4a involving an offense set forth in subdivision (b) does not affect the finding of a previous conviction.” Section 1203.4a requires a trial court to dismiss misdemeanor or infraction convictions in certain circumstances, and has

no r elevanc e in cases involving felonies.

10 As noted, sections 12021(a)(1) and 12021.1(b)(27) both included additional offenses that were punishable as either a felony or a misdemeanor, by reference to a conviction for an “offense enumerated in subdivis ion (a), (b), or (d) of Section 12001.6.” Likewise, sections 12021(a)(2) and 12021.1(b)(2 9 ) both banned firearm possession by a person convicted of two or more misdemeanor violations of sectio n 417, subdi vision (a)(2). 11 Former section 12021, subdivision (c)(1) (re pealed and renumbered as § 29805) prohibited possession of a firearm by persons convicted of several enumerated misdemeanor violations, including a m isdemeanor violation of section 245 , subdivis ion (a)(1). That section applied only if the firearm possession occurred within 10 years of the misdemeanor conviction, and only if the defendant did not otherwise qualify for punishment under section 12021(a). (§ 12021 , subd. (c)(1) [“[ e]xcept as provid ed in” § 12021 (a) or § 12021, subd. (c)(2)]; accord, Rash v. Lungren (199 7) 59 Cal.App.4th 1233, 1238.) Neither party invites us to consider subdivision (c)(1) of section 12021 for purposes of applying the rule against multiple convictions for necessarily included offenses. Accordingly, we need not decide whether section 12021(a)(1) sho uld be considered in isolation or together with subdivision (c)(1) of that section a s constituting one crime. ( People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5; id . a t p. 170, fn. 19; see generally People v. Ortega, supra , 19 Cal.4th at pp. 694

- 699, [the traditional crime of theft includes both petty theft and grand theft]; People v. Ryan (2006) 138 Cal.App.4th 360, 364 [when the Legislature divided § 470, defining the traditional crime of forgery, into subdivisions, it described “different ways of committing a single offense, i.e., forgery”].)12

Consequently, a person convicted of a misdemeanor violation of section 245, subdivision (a)(1) would be barred from possessing a firearm under section 12021.1(a), while he or she would not be barred from possessing a f irearm under section 12021(a)(1). ( People v. Sanchez , supra, 211 Cal.App.3d at pp. 481

- 483 [ § 1 2021.1(a) applie d to a misdemeanor violation of § 245 , subd. (a)(1)] .) It
follows that offender in possession (§ 12021(a)(1) ) is not a necessarily included
off ense of violent offender in possession (§ 12021.1(a) ) becaus e a person could
have violate d section 12021.1(a) without necessarily violating sec tion 12021(a)(1). (Cf. People v. Williams (2009) 170 Cal.App.4th 587, 643

- 644 [ possession of specified controlle d substances (Health & Saf. Code § 11377 , subd. (a)) is not a necessarily included offense of possession of different list of controlled substances while armed (Health & Saf. Code § 11370.1 , subd. (a)) because the list of
controlled substances in each stat ute is not coextensive ] ; People v. Scheidt (1 991) 231 Cal.App.3d 162, 165

- 166 [possession of a sawed

- off shotgun (former § 12020 , subd. (a) , now § 33215 ) is not a necessarily included offense of possession of a firearm by a person convicted of a violent of fense (former § 12021.1(a) ) ] .) In sum, we conclude that neither section 12021(a)(1) nor section 12021.1(a)
is a necessarily included offense of the other, because it wa s possible to c ommit either offense without committing the other. ( People v. Ortega , su pra , 19 Cal.4th at p. 693.) Accordingly, the rule against multiple convictions for necessarily included offenses does not bar defendant‟s separate convictions for violating both
sections based on possession of the same weapon

. The Court of Appeal erred i n reversing defendant‟s convictions on counts two and four.13

B. Defendant Could B e Separa t ely Punished for Each Firearm H e Illegally Possessed
The trial court sentenced d efendant to concurrent terms of 25 years to life
for his two convictions for offende r in possession under section 12021(a)(1) . The Court of Appeal stayed one of the concurrent sentences pursuant to section 654 for
lack of evidence that defendant harbored a separate intent or objective in possessing the two firearms

. Our recent precedent compels the opposite result.
We held in Correa , supra , 54 Cal.4th 331 , that, “[b]y its plain language section 654 does not bar multiple punishment for multiple violations of the same
criminal statute. ” ( Id . at p. 334 .) Section 654 expressly applies only to “[a]n act or omission that is punishable in different ways by different provisions of
law

. . . .” (§ 654 , subd. (a), italics added.) In refusing to extend section 654‟s
reach beyond its plain language, we disapproved of dictum in Neal v. State of
Ca lifornia (1960) 55 Cal.2d 11 , 18, f ootnote 1, which stated : “ [a] lthough section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the same Penal Code section or to multiple violations of the criminal pr ovisions of other codes, it is settled that the basic principle it enunciates precludes double punishment in such cases also. [Citations.]” ( See Correa, at p p

. 334, 338 .) We observed that Neal ‟s interpretation of the statue undermines the purpose of sec tion 654, which is to ensure that the defendant‟s punishment will be commensurate with his culpability. ( Correa , at p p

. 341

- 343 .) Generally, a person
who violates the same statute multiple times is more culpable than a person who
violates the statute onl y once. ( Id

. at pp. 341

- 342 , citing People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
Correa , like defendant here, was convicted of multiple counts of offender in possession (§ 12021(a)(1)), based on his simultaneous possession of a cache of
weapons. In th at case, we announced, as a new rule, that section 6 54 does not bar14

multiple punishment for violations of the same provision of law . We held further
that this new rule c ould not apply retroactively to Correa under the protections of the ex post facto clau se. ( Correa , supra , 54 Cal.4th at p p

. 334, 344

- 345 .)
We also concluded, however, that the Legislature had specifically exempted section 12021(a)(1) from the application of section 654 in circumstances where a defendant is found in possession of several fi rearms. We reasoned: “ The Legislature, in enacting former section 12001, subdivision (k) in 1994, made it clear that the magnitude of a felon‟s culpability depends on the number of weapons he or she possesses. It p rovided that the possession of „ each fi rearm .

. . shall constitute a distinct and separate offense ‟ under, among other provisions,
section 12021. ” ( Correa , supra , 54 Cal.4th at p. 345 .) 12 Accordingly, we held that Correa‟s sentence “ did not violate section 654 because specific statutory
autho rity makes possession of each weapon a separate offense. (Former § 12001, subd. (k).) ” ( Correa , at p. 334 .)
Likewise here . D efendant‟s two convictions for violating section 12021(a)(1) , based on his simultaneous possession of two firearms , are exempt fr om section 654‟s application because the Legislature intended that the possession of “each firearm .

. . shall constitute a distinct and separate offense”
under that statute . (§ 12001 , subd. (k).) The same is true of defendant‟s two
convictions for viola ting section 12021.1(a). ( § 12001, subd. (k) .) Applying this

12 Former section 12001, subdivision (k), was repealed effective January 1, 2012, but its provisions were reenacted without sub stantive change and renumbered as section 23510. We will refer to this provision as section 12001. Section 12001, subdivision (k), provided: “For purposes of Sections 12021, 12021.1 [and other enumerated sections of the Pen. Code and Welf. & Inst. Code] , notwithstanding the fact that the term „any firearm‟ may be used in those sections, each firearm .

. . shall constitute a distinct and separate offense under those sections.”15

rule, which has been in existence since the 1994 amendment to section 12001,
raise s no ex post facto concerns. 13 Defendant, however, may not be separa tely punished for violations of
section s 120 21(a)(1) and 12021.1(a) based on his possession of the same firearm , even though multiple convictions for both offenses were proper

. In People v.
Reed , supra , 38 Cal.4th 1224 , we held that “ [w] hen section 954 permits multiple conviction, but section 654 p rohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited

. ” ( Id . at p. 1227.) We recently affirmed that principle in People v. Jones, supra , 54 Cal.4th 350

. Jones , a conv icted felon, was found in possession of
a loaded .38

- caliber revolver that was not registered to him. He was convicted of three crimes: po ssession of a firearm by a felon, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered loaded firearm in public. We concluded that “[b]ecause different provisions of law punish in

13 Defendant maintained at oral argument that it would be unfair to apply the h olding in Correa to him because he prevailed in the Court of Appeal under the binding authority of Neal , and he did not raise the multiple punishment issue in his petition for review. Although defendant couches his argument in terms of detrimental relianc e, he fails to provide either facts or legal authority to support that claim. Defendant was aware at the time he petitioned for review that this court had granted review in Correa to resolve the same issue of multiple punishment presented in his case, a f act he noted in the Court of Appeal briefing. Defendant was also on notice of this court‟s authority to order review on its own motion. (Cal. Rules of Court, rule 8.512(c).) Finally, it is well established that the appellate court can correct a legal er ror resulting in an unauthorized sentence (including a misapplication of § 654) at any time. ( People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.) Notably, the result we authorize here does not exceed the term of imprisonment originally imposed by the tr ial court and thus does not penalize defendant for exercising his appellate rights. (See People v. Hanson (2000) 23 Cal.4th 355, 365

- 367.)16

different ways defendant‟s single act,

. . . section 654‟s plain language prohibits punishment for more than one of those crimes. ” ( Id . at p. 352 .) Likewise, here,
defendant ‟s single act of possessing a firearm resulted i n felony convictions under
both section s 1 2021(a)(1) and 12021.1(a)

. Se ction 654 prohibits multiple punishment under this circumstance . ( People v. Jones , supra , 54 Cal.4th at p p

. 3 58

- 360 .) The question remains which of defendant‟s sentences must be stayed. The
trial court sentenced defendant on his prior conviction possessions (§ 12021(a)(1) ) , and stayed execution of sentence on his violent conviction possessions (§ 12021.1(a) ). W e conclude that t he plain language of section 654
and section 12021.1(a) compel the opposite result. As relevant, section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punis hed
under the provision that provides for the longest potential term of imprisonment , but in no case shall the act or omission be punished under more than one provision.” (Italics added; see also People v. Kramer (2002) 29 Cal.4th 720, 722

- 725 [ construing the term “longest poten tial term of imprisonment” in § 654].) The punishment for violating section 12021(a)(1) was 16 months, two, or three years. ( §§ 18 & 12021(a)(1) , now § 29800, subd. (a)(1)

. ) The punishment for violating section 12021.1(a) was like wise 16 months, two, or three years. ( § § 18 & 12021.1(a) , now § 29900, subd. (a)(1) .) S ection 12021.1(a) additionally provide d , however, that “[i]f probation is granted, or if the imposition or execution of sentence is suspended, it shall be a condition of the probation or suspension that the defendant serve at least six months in a county jail” except in unusual cases where the interests of justice warrant no jail time. ( See § 12021.1 , subd. ( d).) Accordingly, section 12021.1(a) provided for the longes t potential term of imprisonment , at least where a grant of probation was involved , because it17

impose d a mandatory minimum jail term in that circumstance

. (See § 2900.5 , subd. (c) [defining “term of imprisonment” to include “any period of imprisonment imp osed as a condition of probation”].) Sentencing defendant under section 12021.1(a) is also consistent with the
statute‟s express mandate that it wa s to apply “[n]otwithstanding subdivision (a) of
section 12021

. . . . ” As previously noted, the phrase “not withstanding” signals the Legislature‟s intent to have the statute apply without prevention or obstruction by s ection 12021(a)(1). (See People v. Palacios , supra, 41 Cal.4th at pp. 728

- 729 .) It would have contravene d legislative intent to stay execution of sentence on

a section 12021.1(a) conviction in favor of imposing sentence on a section 12021(a)(1) conviction

. (Cf. People v. Ahmed (2011) 53 Cal.4th 156, 163 [ courts must look to the language of the statutes themselves to see if they supply the

answer regarding whether or how multiple punishments may be imposed].) Accordingly, we hold that d efendant may be separately punished for two
violations of section 12021(a)(1) and of section 12021.1(a) based on his simultaneous possession of two firearms. T he Court of Appeal erred in concluding otherwise. However, we also hold that defendant may not be separately punished for violations of section s 12021(a)(1) and 12021.1(a) based on possession of the same firearm. While the trial court correctly recognized t his point, it incorrectly stayed execution of se ntence on the wrong offenses (§ 12021 .1(a)).18 II I . DISPOSITION
W e reverse the judgment of the Court of Appeal insofar as it reversed
def endant‟s convictions on counts two and four , vacated the sentences on t hose counts, and ordered that the sentence on count three be stayed

. In all other respects, we affirm the Court of Appeal judgment. We remand the matter to that court for further proceedings consistent with our opinion. CORRIGAN, J.
WE CONCUR: C ANTIL

- SAKAUYE, C.J. KENNARD, J. BAXTER, J. WERDEGAR, J. CHIN, J.1 CONCURRING OPINION B Y LIU, J.

The doctrine of lesser included offenses is, at its core, a doctrine about legislative intent. It “is part of the constitutional guarantee against double jeopardy.” ( Peop le v. Smith (1950) 36 Cal.2d 444, 448; People v. Kehoe (1949) 33 Cal.2d 711, 713.) “[O]nce a conviction on the lesser offense has been obtained,
„ “to .

. . convict of the greater would be to convict twice of the lesser.” ‟ [Citation.]” ( People v. Field s (1996) 13 Cal.4th 289, 306.) Importantly, double jeopardy principles do not bar a legislature from authorizing multiple conviction and multiple punishment for necessarily included offenses. ( Garrett v. United
States (1985) 471 U.S. 773, 779; Brown v. O hio (1977) 432 U.S. 161, 165.) Instead, the rule against multiple convictions of necessarily included offenses is a judicially created doctrine premised on the notion that the legislature “ordinarily does not intend to punish the same offense under two di fferent statutes. Accordingly, where two statutory provisions proscribe the „same offense,‟ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.” ( Whalen v. United States (1980) 4 45 U.S. 684, 692.)
Here , the legislative intent is clear on the face of the statute. Former Penal
Code s ection 12021.1 , subdivision (a) (hereafter section 12021.1(a)) expressly states that it applies “[n]otwithstanding subdivision (a) of section 12021.” This is a clear expression of the Legislature‟s intent that a defendant whose conduct2

violate s former Penal Code section 12021 , subdivision (a)(1) (hereafter section 12021(a)(1)) may also be convicted under section 12021.1(a). Accordingly, I agree that th e judgment of the Court of Appeal must be reversed insofar as it reversed defendant‟s convictions on cou n ts two and four

. I agree with the court‟s application of People v. Correa (2012) 54 Cal.4th
331 and People v. Jones (2012) 54 Cal.4th 350 to hold that defendant may be punished separately for two violations of section 1202(a)(1) and of section 12021.1(a) based on his simultaneous possession of two firearms, but that defendant may not be punished separately for violations of sections 12021(a)(1)
and 12021 .1(a) based on possession of the same firearm. LIU, J.See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Sanders

__________________________________________________________________________________ Unpublished Opinion XXX NP opn. filed 2/1/11

– 5th Dist. Original Appeal Original Proceeding Review Granted Rehearing Granted

__________________________________________________________________________________ Opinion No. S191341 Date Filed: November 19 , 2012

_________________________________________ _________________________________________ Court: Superior County: Kern Judge: Michael E. Dellostriitto

__________________________________________________________________________________ Counsel: Robert Navarro, under appointment by the Supreme Court, f or Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janet E. Neeley and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Re spondent.Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert Navarro 1295 North Wishon Avenue, Suite 3 Fresno, CA 93728 (559) 497

- 5341

Catherine Tennant Nieto Deputy Attorney General 1300 I Street, Suite 125 Sacramento, CA 94244

- 2550 (916) 323

- 6307