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Filed 10/13/22 P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TOMMY LEE SMITH,

Defendant and Appellant.

C095332

(Super. Ct. No. MAN-CR-FE2020-0012362)

Defendant Tommy Lee Smith appeals the trial court’s aggregate prison sentence 

of 16 months following his conviction by jury for unlawful possession of a firearm and 

ammunition, as well as misdemeanor possession of methamphetamine. He complains the 

trial court prejudicially erred in: (1) failing to clarify in its limiting instruction that 

defendant’s prior felony conviction could not be used to show he was dangerous or was a 

person of bad character, and (2) imposing concurrent sentences for the possession of a 
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firearm and possession of ammunition counts in violation of Penal Code section 654.

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Finally, defendant requests the $30 surcharge not orally imposed at sentencing, but 

reflected on the abstract of judgment, be stricken. We conclude defendant’s section 654 

claim has merit and will further modify the judgment to correct certain errors identified 

within the defendant’s fines and fees. We will affirm the judgment as modified.

BACKGROUND

Defendant was tried by jury, who found him guilty of being a felon in possession 

of a firearm (§ 29800, subd. (a)(1); count 1), unlawfully possessing ammunition 

(§ 30305, subd. (a)(1); count 2), and possessing methamphetamine (Health & Saf. Code, 

§ 11377, subd. (a); count 3).

At trial, the People presented evidence defendant drove a truck that was pulled 

over because the registration was suspended. Dispatch advised that defendant’s license 

was suspended and he was on searchable probation. Officer Dylan Noel searched 

defendant, finding 2.9 grams of methamphetamine in his pocket. Defendant was 

detained, and a search of the truck revealed a loaded handgun in a leather bag within the 

engine compartment. The parties stipulated defendant had been convicted of a felony 

within the past 10 years.

In his defense, defendant’s best friend, Richard Lott, testified to placing the loaded 

gun in the engine compartment of defendant’s truck for safekeeping, but did not think

defendant would drive the truck because it was normally used by defendant’s son. Lott

was alone when he stowed the gun and did not tell defendant he put the gun in the truck, 

but had told defendant’s son and asked that he remove it. Lott conceded on crossexamination that he did not go to the authorities when he learned of defendant’s arrest.

1 Undesignated statutory references are to the Penal Code.
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The trial court refused defendant’s request for probation and sentenced him to the 

low term of 16 months in state prison that comprised of 16 months for count 1, 16 months 

concurrent for count 2, and one year concurrent for count 3 with custody credit for a total 

of eight days. The court further imposed a $300 restitution fine (§ 1202.4), a $300 stayed

parole revocation restitution fine (§ 1202.45),2 a $40 court operations assessment fee

(§ 1465.8), and a $30 conviction assessment fee (Gov. Code, § 70373). Defendant timely 

appealed, and the appellate briefing in this case was completed on July 22, 2022.

DISCUSSION

A. The Jury Instructions

Defendant complains the trial court prejudicially erred in failing to provide a 

narrower limiting instruction advising that defendant’s prior conviction could not be used 

to show he was dangerous or had a bad character. Alternatively, defendant argues that if 

this issue is forfeited by his failure to object to the instructions as given, his counsel 

provided ineffective assistance. We disagree.

Here, the trial court instructed the jury, in pertinent part, with CALCRIM No. 303, 

stating: “During the trial, certain evidence was admitted for a limited purpose. You may 

consider that evidence only for that purpose and for no other.” The court further 

instructed the jury in the elements required to show unlawful possession of a firearm and 

of ammunition. (See CALCRIM Nos. 2511 & 2591.) These instructions included that 

“[t]he defendant had previously been convicted of a felony” and that “[t]he defendant and 

the People have stipulated, or agreed, that the defendant was previously convicted of a 

felony. This stipulation means that you must accept this fact as proved.” However, 

defendant did not request and the court did not give the optional supplemental 

2 The trial court misspoke when it identified the statutory authority for this fine as 

section 1202.44, which applies to probation revocation restitution fines. We will modify 

the judgment to correct this clerical error.
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instructions provided within CALCRIM Nos. 2511 and 2591, that the jury should “not 

consider this fact for any other purpose” or “speculate about or discuss the nature of the 

conviction.” Nor did defendant object to the giving of CALCRIM No. 303 itself.

“A trial court must instruct the jury, even without a request, on all general 

principles of law that are ‘ “closely and openly connected to the facts and that are 

necessary for the jury’s understanding of the case.” ’ ” (People v. Burney (2009) 

47 Cal.4th 203, 246.) Nonetheless, “ ‘the trial court ordinarily has no sua sponte duty to 

instruct the jury as to the admissibility or use of other crimes evidence.’ ” (People v. 

Cottone (2013) 57 Cal.4th 269, 293.) 

Recognizing the court had no sua sponte duty to give a limiting instruction,

defendant argues that because the trial court gave CALCRIM No. 303, it was also 

required to clarify that instruction by providing the optional clarifying language directing

the jury not to speculate as to the nature of the defendant’s prior conviction, nor use that 

conviction as supporting a propensity to commit serious crimes. (See CALCRIM Nos.

2511 & 2591.) However, defendant has not shown that CALCRIM Nos. 303, 2511, and 

2591 were incorrect statements of law as given and thus, a timely objection was required 

in order to preserve defendant’s claim for appeal.3 (People v. Lang (1989) 49 Cal.3d 

991, 1024 [“A party may not complain on appeal that an instruction correct in law and

responsive to the evidence was too general or incomplete unless the party has requested 

appropriate clarifying or amplifying language”], abrogated on other grounds in People v. 

Diaz (2015) 60 Cal.4th 1176, 1190; People v. Lee (2011) 51 Cal.4th 620, 638

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 This failure is not forgiven by defendant’s reliance on section 1259. While a defendant 

may generally raise a claim of “instructional error affecting his or her substantial rights” 

on appeal without objecting below, this does not apply to an argument that the 

instruction, which was “correct in law[,] was too general or incomplete.” (People v. 

Buenrostro (2018) 6 Cal.5th 367, 428.) Such claim must be presented below or is 

forfeited on appeal. (Ibid.)
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[defendant’s failure to request clarification of an instruction reflecting a correct statement 

of law forfeits appellate claim based on court’s failure to revise that instruction].) 

Moreover, defendant has not established that his counsel was ineffective in failing 

to request a clarifying instruction. To prevail on a claim of ineffective assistance of 

counsel, a defendant must show “that counsel’s representation fell below an objective 

standard of reasonableness under prevailing professional norms, and that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result would have 

been different. [Citations.] [¶] Generally, failure to object is a matter of trial tactics as 

to which we will not exercise judicial hindsight. [Citation.] ‘When a defendant makes an 

ineffectiveness claim on appeal, the appellate court must look to see if the record contains 

any explanation for the challenged aspects of representation. If the record sheds no light 

on why counsel acted or failed to act in the manner challenged, “unless counsel was 

asked for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation” [citation], the contention must be rejected.’ [Citation.] A 

reviewing court will not second-guess trial counsel’s reasonable tactical decisions. 

[Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) “ ‘[E]ven “debatable trial 

tactics” do not “constitute a deprivation of the effective assistance of counsel.” 

[Citation.]’ ” (People v. Weaver (2001) 26 Cal.4th 876, 928.) 

Here, we conclude defendant has not shown there is no satisfactory explanation 

for his trial counsel’s failure to request the clarifying instruction. (People v. Kelly, supra,

1 Cal.4th at p. 520; People v. Weaver, supra, 26 Cal.4th at p. 928.) Instead, our review of 

the record has disclosed at least one reasonable explanation. In closing argument, 

defendant’s counsel focused on Lott’s testimony and whether the People had established 

that defendant knew the loaded gun was in the truck. With regard to the stipulated prior 

conviction, counsel told the jury that they could not use the stipulated prior conviction to 

convict defendant of the charged crimes and explained that the prior conviction was 
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limited to establishing just two of the elements the People were required to prove.

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 Thus, 

the record supports that defendant’s counsel may have made a reasonable tactical 

decision to rely on the instruction given by the court and counsel’s explanation as 

sufficient to describe the jury’s duty regarding his stipulated prior conviction. 

Accordingly, we reject this claim.

B. Concurrent Sentences on Counts 1 and 2

Defendant argues the trial court erred in imposing concurrent sentences for 

counts 1 and 2 in violation of section 654 because defendant committed a single act of 

unlawfully possessing a loaded gun. We agree.

Under section 654, a defendant who violates multiple laws in a single course of 

action may be charged with, and convicted of, distinct crimes but sentenced for only one 

offense. The sentence on the other offenses is imposed but stayed. (People v. Sek (2022) 

74 Cal.App.5th 657, 673; People v. Mendoza (2022) 74 Cal.App.5th 843, 853-854.) 

Included within this prohibition, the California Supreme Court held in People v. Jones

(2012) 54 Cal.4th 350, 357 that “a single possession or carrying of a single firearm on a 

single occasion may be punished only once under section 654.” (See also People v. 

Lopez (2004) 119 Cal.App.4th 132, 138 [§ 654 prohibits punishment for both unlawful

possession of a gun and unlawful possession of ammunition loaded within the gun].) 

There is no suggestion in the record that defendant separately possessed the gun and the 

4 Counsel stated: “The last instruction that was just printed out is about limited purpose 

evidence. The only limited purpose evidence that I believe we have in this case -- well, 

there is a couple of things. The only one that really matters is what I talked to you about 

in jury selection and what we stipulated to which is the fact that he has a felony 

conviction. You cannot use that felony conviction to convict him of the crimes he’s 

charged of, that is not evidence of the crime. It does fill two of the elements, that’s fine. 

Because remember what we talked about, all of the elements have to be proved beyond a 

reasonable doubt, not the ones you think are more important, not two out of three or three 

out of four, all of them.”
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ammunition, which was loaded within the magazine of the weapon when seized. 

Accordingly, section 654 requires the staying of one of these counts. (Jones, at p. 357; 

Lopez, at p. 138.)

Former section 654 required the trial court to impose a sentence based on the 

offense with the longest prison term. (People v. Mendoza, supra, 74 Cal.App.5th at 

p. 862; People v. Sek, supra, 74 Cal.App.5th at p. 673.) Assembly Bill No. 518 (2021-

2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1), which went into effect during the pendency 

of this appeal, amended section 654 to “remove[ ] the requirement to impose the longest 

prison term” (Sek, at p. 673) in order “to give trial courts discretion in selecting the 

punished offense for conduct punishable under multiple provisions of law.” (Mendoza, at 

pp. 861-862, fn. omitted.) Section 654, subdivision (a) now provides: “An act or 

omission that is punishable in different ways by different provisions of law may be 

punished under either of such provisions, but in no case shall the act or omission be 

punished under more than one provision.” However, because the trial court imposed 

identical concurrent terms of 16 months for counts 1 and 2, we do not need to remand the 

matter for the trial court to select which term to stay. Instead, we will modify the 

judgment to stay the 16-month term imposed on count 2. 

C. The $30 Surcharge

Defendant requests and the People agree that the $30 surcharge not orally imposed 

at sentencing, but reflected on the abstract of judgment, must be stricken. We conclude

this surcharge should be stricken from both the sentencing minute order and abstract of 

judgment. (People v. Delgado (2008) 43 Cal.4th 1059, 1070 [court’s oral pronouncement 

of the judgment prevails over any conflicting language in the abstract judgment].) 

However, our review of the record has disclosed the trial court did not impose the $40 

court operations assessment fee (§ 1465.8), and a $30 conviction assessment fee (Gov. 

Code, § 70373) per count as required. (People v. Castillo (2010) 182 Cal.App.4th 1410, 

1415, fn. 3 [Gov. Code, § 70373]; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-
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866 [§ 1465.8].) We can and will correct this omission. (See People v. Smith (2001) 

24 Cal.4th 849, 853-854 [Court of Appeal may correct errors associated with mandatory 

sentencing choices without the need to remand for further proceedings]; People v. 

Knightbent (2010) 186 Cal.App.4th 1105, 1111-1113 [correcting the amount imposed for 

the mandatory assessments under Gov. Code, § 70373].)

DISPOSITION

The judgment is modified to stay the 16-month sentence imposed on count 2 in 

accordance with section 654. The judgment is further modified to reflect three $40 court

operations assessment fees (§ 1465.8) and three $30 conviction assessment fees (Gov. 

Code, § 70373). Finally, the judgment is modified to reflect that the $300 parole 

revocation restitution fine was imposed pursuant to section 1202.45, not section 1202.44. 

The trial court is directed to prepare an amended abstract of judgment and minute order 

reflecting these changes, as well as striking the $30 surcharge formerly reflected in these 

documents but not orally imposed at sentencing, and to forward a certified copy of the 

amended abstract of judgment to the Department of Corrections and Rehabilitation. The 

judgment is affirmed as modified.

 /s/

HOCH, J.

We concur:

 /s/

MAURO, Acting P. J.

 /s/

DUARTE, J.