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Filed 11/19/15 P. v. Upton CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN NICHOLAS UPTON,

Defendant and Appellant.

 A140733

 (Humboldt County

 Super. Ct. No. CR1302289)

Following convictions on two felony counts arising from his possession of a 

loaded handgun, Defendant Steven Upton was sentenced to two, concurrent two-year 

sentences. He now appeals, contending that execution of one of his sentences should be 

stayed under Penal Code section1654, which prohibits multiple punishments for a single 

act. The People agree. And so do we. Accordingly, we will stay the sentence on one of 

his convictions, and as so modified affirm the judgment.

BACKGROUND

On May 12, 2013, Upton was stopped by police for driving without a front license 

plate. He was handcuffed and taken into custody in connection with an unrelated 

criminal investigation, and in the ensuing search of his car, police discovered a loaded 

handgun under the driver’s side seat. 

Upton had a prior felony conviction, and a jury subsequently convicted him of two 

felony offenses: possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 1), and 

possession of ammunition by a person prohibited from possessing a firearm (§ 30305, 

 

1 All further statutory references are to the Penal Code.
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subd. (a)(1)) (count 2). The trial court sentenced Upton to an aggregate prison term of 

three years and eight months, which included two years for the firearm count, to be 

served concurrently with two years for the ammunition count. His sentence also included 

a one-year enhancement under section 667.5, subd. (b), not at issue here, and eight 

months for an unrelated no contest plea in another case.

Upton now appeals, arguing the trial court erred under section 654 by not staying 

his punishment for either the firearm conviction or ammunition conviction. 

DISCUSSION

I.

The Trial Court Violated Section 654 by Requiring Upton to Serve Multiple Sentences 

for His Unlawful Possession of a Single Loaded Firearm.

In pertinent part, section 654 states: “An 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 imprisonment, but in no case shall the act or

omission be punished under more than one provision.” (§ 654, subd. (a).) As we have

previously noted, this statute merely prohibits multiple punishments, not multiple 

convictions. (People v. Ortega (2000) 84 Cal.App.4th 659, 666; see also People v. Sloan

(2007) 42 Cal.4th 110, 116.) Its purpose is to ensure that punishment is commensurate 

with culpability. (People v. Perez (1979) 23 Cal.3d 545, 550–551.) In situations where 

section 654 applies, “the accepted ‘procedure is to sentence defendant for each count and 

stay execution of sentence on certain of the convictions to which section 654 is 

applicable.’ ” (People v. Jones (2012) 54 Cal.4th 350, 353 (Jones), citing People v. 

Miller (1977) 18 Cal.3d 873, 886, overruled on other grounds as recognized in People v. 

Oates (2004) 32 Cal.4th 1048, 1067, fn. 8.)

Proper application of section 654 in this case is both straightforward and 

uncontested.2The Supreme Court has held “a single possession or carrying of a single 

 

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This issue is reviewable on appeal even though Upton did not object to his 

sentence under section 654 in the trial court. “Ordinarily, a section 654 claim is not 

waived by failing to object below.” (People v. Hester (2000) 22 Cal.4th 290, 295; see
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firearm on a single occasion may be punished only once under section 654.” (Jones, 

supra, 54 Cal.4th at p. 357.) Jones is controlling, and directly on point for all practical 

purposes. Like Upton, the defendant in Jones was convicted of multiple offenses for 

possessing a single loaded firearm: unlawful possession of a firearm by a felon, as in this 

case, as well as carrying a concealed and unregistered firearm, and carrying an 

unregistered loaded firearm in public. (See id. at p. 352.) The trial court did not stay any 

of the sentences in Jones, and the Court of Appeal stayed only one which left the 

defendant serving two sentences for his crimes. (Id.) The Supreme Court reversed. (Id. 

at p. 360.) It held that section 654 prohibits multiple punishment for all three of the 

defendant’s convictions, because it was improper to punish the defendant more than once 

for his single physical act of carrying the loaded gun. (Id. at pp. 352–360.)

Two earlier cases involving loaded guns and convictions identical to those in this 

case are consistent with the rule announced in Jones. People v. Lopez (2004) 

119 Cal.App.4th 132 (Lopez), which the Supreme Court tacitly approved in Jones (see

Jones, supra, 54 Cal.4th at pp. 357–358), held section 654 applicable to sentences for 

unlawful possession of a firearm by a felon and unlawful possession of ammunition,

where the defendant, like Upton, had been convicted for possessing a loaded gun. 

(Lopez, at pp. 134, 137–139 (applying former §§ 12021, subd. (e), 12316, subd. (b)(1)).)

People v. Sok (2010) 181 Cal.App.4th 88 (Sok), likewise found sentencing error under 

section 654 for concurrent, unstayed sentences on these two offenses, and in that case all 

of the ammunition had either been loaded into the defendant’s gun or had been fired from 

it. (Id. at p. 100.) 

 

also People v. Perez, supra, 23 Cal.3d at p. 550, fn. 3 [“Errors in the applicability of 

section 654 are corrected on appeal regardless of whether the point was raised by 

objection in the trial court or assigned as error on appeal”].) 
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Here, as in Jones, Lopez and Sok, Upton’s multiple convictions were based on the 

unlawful possession of a single loaded firearm. Thus, we conclude section 654 prohibits 

multiple punishment for his offenses. To their credit, the People concede this.3

II.

Upton’s Two-Year Sentence on the Ammunition Conviction Should Be Stayed.

Having concluded there was sentencing error under section 654, there remains the 

question of an appropriate remedy. As noted, “the law is settled that the sentences must 

be stayed to the extent that section 654 prohibits multiple punishment.” (Jones, supra,

54 Cal.4th at p. 353; see People v. Sloan, supra, 42 Cal.4th at p. 116.) And the statute on 

its face addresses how courts must choose between them. It mandates punishment “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.” (§ 654, subd. (a),

italics added; see also People v. Ortega, supra, 84 Cal.App.4th at p. 667 [“The 

appropriate procedure is to eliminate the effect of the judgment as to the lesser offense 

insofar as the penalty alone is concerned . . .”], citing People v. McFarland (1962) 

58 Cal.2d 748, 762–763.) 

In Lopez, the Court of Appeal stayed the defendant’s sentence for the ammunition 

count rather than the firearm count, albeit without discussion, because that was the 

sentence the defendant contended should be stayed of the two (see Lopez, supra, 

119 Cal.App.4th at pp. 134, 139); cf. Sok, supra, 181 Cal.App.4th at p.101 [vacating 

sentence and remanding for resentencing].)

A stay of Upton’s sentence on the ammunition count is appropriate here too; and 

in that respect, our choice of remedy has been greatly aided by the parties. Upton states

the maximum potential sentence for both his firearm conviction and ammunition 

conviction is identical. And in light of that, he initially asked us in his opening brief to 

 

3 We commend Deputy Attorney General Masha Dabiza for conceding the 

sentencing issue, which is not a close question. Her professional approach to this matter 

has conserved resources and time for both the parties and the court, and in so doing also 

benefits other litigants whose appeals have yet to be decided. 
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remand the case and direct the trial court to decide which sentence to stay and to prepare 

an amended abstract of judgment. However, the People have suggested we stay Upton’s 

sentence on the ammunition count, as was done in Lopez. In response, Upton asks this 

Court for “a stay or any other appropriate remedy”, and takes no issue with either the 

appellate disposition in Lopez, nor the People’s suggestion we adopt it. With the case in 

this posture, and in the interest of judicial efficiency, we see no reason to return this case 

to the trial court. As in Lopez, we will stay Upton’s sentence for unlawful possession of 

ammunition and affirm the judgment as so modified. (Lopez, supra, 119 Cal.App.4th at 

pp. 134, 139.)

DISPOSITION

Upton’s two-year, concurrent sentence for count 2, unlawful possession of 

ammunition (§ 30305, subd.(a)(1)), is stayed pending finality of the judgment and service 

of sentence on count 1, such stay to become permanent upon completion of his sentence 

on count 1. The superior court is ordered to prepare a further amended abstract of 

judgment to show this modification and send it to the Department of Corrections. As so 

modified, the judgment is affirmed.
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STEWART, J.

We concur.

RICHMAN, Acting P.J.

MILLER, J.
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People v.Upton (A140733)