1

Filed 4/3/15 P. v. Lawhead 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES EARL LAWHEAD,

Defendant and Appellant.

C072151

(Super. Ct. No. 10F05982)

A jury convicted defendant James Earl Lawhead of second degree robbery (Pen. 

Code, § 211),1two counts of felon in possession of a firearm (§ 12021, subd. (a)(1)), 

receiving stolen property (a firearm) (§ 496, subd. (a)), and exhibiting a deadly weapon to 

a peace officer (§ 417.8), with an enhancement for personal use of a firearm (§ 12022.53, 

subd. (b)). The trial court found true five prior strike and serious felony allegations 

 

1

 Undesignated statutory references are to the Penal Code in effect at the time of the 

charged offenses.
2

(§§ 1170.12, 667, subds. (a), (b)-(i)) and sentenced defendant to 100 years to life plus 15 

years. 

On appeal, defendant contends the trial court’s denial of his Romero motion2 was 

an abuse of discretion and his sentence violates the state and federal constitutional 

prohibitions against cruel and/or unusual punishment. In a supplemental brief, he 

contends the sentence on either the receiving stolen property conviction (count four), 

which involved a stolen firearm, or felon in possession of a firearm (count six), which 

involved the same firearm, should be stayed pursuant to section 654. 

We remand for the trial court to stay sentence on count four or six, and in all other 

respects, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

Tifanee Blue was a shift manager at a Blockbuster store in Citrus Heights. On 

July 25, 2010, at around 10:45 a.m., Blue was walking through the parking lot to make a 

bank deposit when a dark purple PT Cruiser with “blue and ghost-like” iridescent flames 

cut her off and parked in a disabled parking spot. As Blue went around the PT Cruiser, a 

door opened and the driver said something to her. The driver had his left leg out of the 

car and held a small semiautomatic handgun. The man told her to “give me the bag.” 

Frightened, Blue gave him the deposit bag containing $1,157.75. The driver shut the 

door, quickly backed up, and drove away. Blue returned to the Blockbuster and called 

911. The responding officer who spoke with her observed that “[s]he was very shaken 

up.” Later, she was shown two photographic lineups, one including defendant’s DMV 

photograph and the other including defendant’s booking photograph after his arrest for 

 

2

 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
3

the charges in this case. Blue was unable to identify anyone in either photo lineup. The 

person who robbed her was wearing dark glasses and a baseball hat during the robbery. 

Law enforcement officers observed a purple PT Cruiser with flames on the side 

during surveillance in an unrelated case. They noted the license plate number and 

determined that as of July 25, 2010, the car was registered to defendant and Annette 

Dustin at a Sacramento address. Defendant’s name was taken off the registration on 

August 16, 2010. 

Jerry Riggs was defendant’s parole agent. Riggs last met with defendant in a 

parking lot on July 27, 2010. At that time, defendant told Riggs he had been evicted from 

his apartment and was trying to live with his stepfather. He did not plan to be at his new 

home for several days and would not give an address where he would be staying. Riggs 

had previously seen defendant in possession of a “maroon-purplish” PT Cruiser that had 

flames on the side. Defendant failed to appear at his mandatory meeting with Agent 

Riggs on August 4, 2010. 

On August 25, 2010, Eddie Cisneros, a bail agent, received a phone call from a 

person identifying himself as defendant. The person gave a date of birth and asked for a 

warrant check. Cisneros contacted the Sacramento County Sheriff’s Department and 

learned defendant had a no-bail warrant for robbery. Cisneros gave the information to 

the caller, who immediately hung up. 

On September 8, 2010, at around 6:00 a.m., Sacramento County Sheriff’s Deputy 

David Treat followed up on a tip and went to a location to arrest defendant. Within a few 

minutes of his arrival, Deputy Treat saw a Toyota Camry driven by a woman. There was 

also a passenger slumped down in the front seat with the bill of his hat over his face. 

Driving a marked patrol vehicle, Deputy Treat followed the car, which took no evasive 

action. Ultimately, there were three patrol vehicles following the Camry. The car 

eventually pulled into a McDonald’s parking lot and parked. 
4

Deputy Treat stopped his patrol car, turned on all of his lights, including the face 

forward red lamp, and started to exit. The driver raised her hands while the passenger, 

defendant, put a handgun into his mouth. Deputy Treat ordered the woman out of the car. 

After she complied, defendant left the car while still holding the gun. Defendant said he 

wanted law enforcement to kill him. Defendant repeatedly went in and out of the car. He 

eventually fashioned a sling to keep the gun in his mouth. 

During the standoff, defendant told a negotiator that “he did what he did” because 

he needed money. He had been kicked out of his home and had issues with his mother 

because of his methamphetamine use. Defendant said he did not want to go to prison. 

The standoff ended with defendant’s arrest at around 8:00 a.m. Deputies 

recovered a stolen .380-caliber Bersa handgun at the scene when they arrested defendant. 

The gun had been stolen in a burglary on September 5, 2010. During a recorded jail visit 

conversation with his grandmother, defendant admitted he knew that gun had been taken 

in a burglary. Defendant told his girlfriend in another recorded jail visit that “I did what I 

did [] because I made a promise to myself years ago that I would never be homeless 

again.” 

Defense Evidence

Defendant’s mother, Annette Dustin, was one of the registered owners of the PT 

Cruiser. The flame decals were removable. She testified that she saw someone other 

than defendant driving the car, but she did not recognize the driver. She told defendant’s 

parole agent about that sometime in May or June. Dustin removed defendant from the 

car’s registration on August 16, 2010. After defendant was arrested, she reported the car 

stolen because defendant did not have it and she wanted it back. 

Defendant was unemployed when he got out of prison but quickly got two jobs. 

Dustin got him an apartment and defendant was doing “fantastic” until he started using 

drugs, causing their relationship to go downhill. Dustin then evicted defendant from the 

apartment, telling him to vacate by July 24, 2010. 
5

Verdicts and Findings

The jury found defendant guilty of second degree robbery (§ 211), two counts of 

felon in possession of a firearm (§ 12021, subd. (a)(1)), receiving stolen property (a 

firearm) (§ 496, subd. (a)), and exhibiting a deadly weapon to a peace officer (§ 417.8). 

The jury also found true an enhancement for personal use of a firearm (§ 12022.53, 

subd. (b)). Defendant was acquitted of the burglary in which the stolen firearm had been 

taken.

After a court trial on the prior conviction allegations, the trial court found true 

allegations that defendant had sustained five prior strike and serious felony convictions. 

(§§ 1170.12, 667, subds. (a), (b)-(i).) 

Romero Motion

Defendant’s five prior strike convictions were all from a single proceeding in the 

state of Washington in January 1999. The convictions were robbery, two counts of 

assault, burglary, and theft of a firearm.3

According to the probation report, the facts of the prior convictions are as follows. 

On May 5, 1998, a woman stopped by her parents’ home to drop off some items. She 

became suspicious after seeing the doors wide open and no one home. The woman 

entered the home with her five-year-old son so she could use the phone to call her 

mother. Defendant, who was armed with a handgun, came up behind the woman as she 

entered. He pulled the slide back on the gun and ordered her to hang up the phone and 

get on the ground. The woman grabbed her son and placed her body over him, pleading 

with defendant to spare her life. Defendant held the barrel of the gun to her head, cut the 

cord to the phone, and then walked to the kitchen. 

 

3

 The trial court found all of the Washington priors were serious felonies because 

defendant used a firearm in the commission of all five offenses.
6

The woman heard defendant speaking to another person, and could hear one of 

them say the woman should be killed. Defendant planned to make the woman go with 

them until she begged him to leave her and her son alone. The burglars eventually drove 

off, taking her father’s truck from the residence. The burglars also took coins and 

collectables valued at $21,000 and a .45-caliber handgun. 

Defendant was convicted on the five counts and sentenced to 147 months in 

Washington state prison. On April 1, 2009, he requested a parole transfer from 

Washington to California. His discharge date was to be June 3, 2012. In preparing the 

presentence report, the probation department was not able to obtain defendant’s release 

date from the prison in Washington, but defense counsel told the trial court defendant 

was paroled on July 20, 2009. 

Defendant was born in January 1981. He had a California juvenile adjudication 

for misdemeanor vehicle theft in April 1995, juvenile adjudications in Washington for 

burglary and possession of a firearm in November 1995, a felony escape in April 1997, 

and possession of stolen property in October 1998. 

Defendant told the probation officer who wrote the presentence report that he was 

addicted to methamphetamine. He first used the drug when he was 17, but did not use it 

for the first six months out of prison. He had only recently started using it again. 

In his Romero motion, defendant argued that the Washington convictions were not 

actually strikes, but if they were, then the five prior strikes should be treated as a single 

strike conviction because they arose during a continuous course of conduct. He also 

argued that the trial court should dismiss the strike allegations in the interest of justice.

In ruling on the Romero motion, the trial court observed defendant was 

“respectful, articulate and well-behaved” during the court proceedings. But as the court 

observed, its focus was not on defendant’s demeanor and character during trial. Rather, 

“I’m judging what happened during the crimes both back in Washington and here in 

California.” The court acknowledged that when defendant uses methamphetamine, his 
7

“drug of choice,” defendant turns into a “different person.” Defendant had used 

methamphetamine within a year of getting out of prison in Washington, even though he 

promised his mother he would not use the drug as a condition of getting an apartment 

through her. The trial court found it was very easy for defendant to go from the 

respectful person he was when he was first paroled and the respectful person in court to 

the person who “engages in this criminal conduct” out in society, and the court had to 

protect the community from that person. 

Regarding the Washington priors, the trial court reasoned that the five prior strikes 

involved separate courses of conduct, including the entry into the home, taking the gun, 

and later threatening the woman and her son with the gun when they stumbled upon the 

burglary. The crimes involved different victims, different places in the house, different 

motives, and different actions. As with the Washington crimes, defendant’s current 

offense had a “level of cruelty” from the robbery at the video store “all the way until the 

weapon is drawn in the presence of law enforcement.” 

The trial court saw the video of the standoff, where the police “did everything they 

could” and it was “a short reach . . . to take the gun from his head and aim it at an 

officer.” The court reasoned that the person it saw in the video “and the person who 

engaged in these crimes” did not warrant the trial court granting the Romero motion. 

Summing up, the trial court said, “It kills me to put somebody at 31 years of age 

into a penitentiary for a very substantial period of his life, if not the remainder of his life. 

I hate that. That’s the toughest part of my job. But under these circumstances, I can’t see 

how I can avoid it.” Reiterating its finding that the prior strikes involved separate courses 

of conduct, the trial court denied the Romero motion. The court then proceeded to 

conduct the sentencing hearing. 

Defendant’s grandmother addressed the court in the sentencing hearing. 

Defendant’s father served an 11-year prison term for rape in 1980 and had very little 

contact with defendant. Defendant was in and out of juvenile hall growing up, as there 
8

were no programs available to teach troubled kids the difference between right and 

wrong. She believed the absence of his father had a profound effect on defendant. When 

he was released from prison in 2009, defendant was 28 1/2 years old, “but 18 streetwise.” “He is very smart, extremely funny and very loving. He has always been 

respectful and polite, and he loves children. [¶] That all changes when drugs are 

involved. [¶] He just doesn’t love himself enough to make the right choices.” 

In sentencing defendant, the trial court said it “spent a lot of time on this,” having 

“re-read these materials several times; late at night, at lunch hours and early in the 

morning trying to figure out what I can do, what should I do.” It found that “the problem 

is, is that the defendant himself has left me very few options here. I’m not sure that I 

have any options here.” Recognizing the many problems in defendant’s life, his father’s 

incarceration and his own drug use, the court said it did not “have a magic wand” to wave 

“and say all right. No more drugs.” Reiterating the danger defendant posed to the 

officers in the standoff, the trial court concluded, “I don’t have a lot of options available 

to me as much as I wish that I did.” The court then noted defendant was statutorily 

ineligible for probation, listed several circumstances in aggravation,4found that counts 

one, four, five, and six were predominantly independent of each other and then imposed 

 

4

 Regarding factors in aggravation, the trial court observed, “these crimes involved great 

violence . . . [the] threat of bodily harm. [¶] And . . . I believe that while it may not be 

the person that the family knows, the person who engaged in these criminal acts showed a 

high degree of cruelty and viciousness and . . . callousness. [¶] The crimes were 

committed in a manner showing planning, sophistication and a clear intent. [¶] 

[Defendant] has engaged in violent conduct before, and he certainly did again here 

indicating a very serious danger to society. [¶] His prior convictions as an adult and his 

sustained petitions in Juvenile Delinquency proceedings are numerous and of increasing 

seriousness. [¶] He served a prior prison term. As I pointed out a moment ago, had only 

been out of prison approximately one year when he then returned to the life of crime and 

. . . was on parole when the crimes were committed, showing us that his prior 

performance on parole [was] grossly unsatisfactory.” 
9

sentence on each count. The court sentenced defendant to 100 years to life plus 15 years. 

Defendant did not object to this sentence. 

DISCUSSION

I. Romero Motion

A. Applicable Law

Defendant contends it was an abuse of discretion for the trial court not to dismiss 

at least four of his five prior strike convictions as to all counts or dismiss four strike 

convictions as to the subordinate counts. We disagree.

A trial court has the authority to dismiss a strike conviction allegation in the 

interests of justice under section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at 

p. 504.) A trial court also has the discretion to dismiss strike allegations on a count-bycount basis. (People v. Garcia (1999) 20 Cal.4th 490, 499 (Garcia).) We review a trial 

court’s refusal to dismiss strike allegations under the deferential abuse of discretion 

standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) 

“In reviewing for abuse of discretion, we are guided by two fundamental precepts. 

First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the 

sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a 

showing, the trial court is presumed to have acted to achieve legitimate sentencing 

objectives, and its discretionary determination to impose a particular sentence will not be 

set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely 

because reasonable people might disagree. ‘An appellate tribunal is neither authorized 

nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ 

[Citations.] Taken together, these precepts establish that a trial court does not abuse its 

discretion unless its decision is so irrational or arbitrary that no reasonable person could 

agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)

In deciding whether to exercise its discretion to dismiss strike allegations, courts 

must determine whether the defendant should be deemed outside the spirit of the three 
10

strikes law and hence should be treated as though he had not previously been convicted 

of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 

148, 161 (Williams).) In making this determination courts must consider three 

circumstances: (1) the nature and circumstances of his present felony; (2) the nature and 

circumstances of his strike offense; and (3) the particulars of the defendant’s background, 

character, and prospects for the future. (Ibid.)

B. Analysis

Defendant asserts the trial court’s failure to dismiss four of the five strikes was an 

abuse of discretion because “the trial court did not consider all relevant sentencing factors 

which supported dismissing some of [defendant]’s prior strikes, and it also failed to 

consider viable sentencing alternatives.” According to defendant, the trial court did not 

consider that defendant’s adult criminal history consists entirely of the current offenses 

and all of the strikes “occurred during the same incident.” He claims the trial court did 

not consider that defendant was 17 when he committed the strikes, “more than a decade 

before the current offenses.” Defendant further claims the trial court’s statement, “I don’t 

have a lot of options available to me as much as I wish that I did” was wrong, as it could 

have dismissed four of the strikes on all counts or just the subordinate terms.

Defendant argues on appeal that dismissing all of his strikes produces a sentence 

of 22 years 4 months, and dismissing four of the five strikes leads to a sentence of 29 

years 8 months. Imposition of the latter sentence would mean he would not be eligible 

for parole until he was 55 and therefore unlikely to reoffend. Defendant also argues on 

appeal that the trial court could have sentenced defendant to 25 years to life by 

dismissing the strike allegations as to the subordinate terms. (See Garcia, supra, 20 

Cal.4th at p. 499.) Arguing that the robbery “was a relatively minor offense that resulted 

in the theft of less than $1,200” in which he made no explicit threats to use the gun 

against the victim and nobody was injured, defendant maintains that a sentence of 115 
11

years to life for a 29 year old based on the instant charges “exceeds the bounds of 

reason.” 

As our high court has noted, “any failure on the part of a defendant to invite the 

court to dismiss under section 1385 following Romero waives or forfeits his or her right 

to raise the issue on appeal. [Citation.]” (Carmony, supra, 33 Cal.4th at pp. 375-376.) 

Based on this, we hold that a defendant forfeits any claim that the trial should have found 

defendant partially outside the spirit of the three strikes law and dismissed strikes as to 

only some counts pursuant to Garcia, supra, 20 Cal.4th 490 if that request is not made in 

the trial court. Here, defendant did ask the trial court to treat all of the strikes as a single 

strike and further asked the court to dismiss strikes, but he never proposed the alternative 

of dismissing four strikes as to the subordinate terms. His contention that the trial court 

should have considered that option is forfeited. 

As for the option of dismissing strike allegations on all counts, contrary to 

defendant’s assertions, there is no indication that the trial court was unaware of its 

discretion to do so. Indeed, that was one of the two options defendant argued in the trial

court. And the prosecution opposed defendant’s request to dismiss strikes in its written 

opposition, arguing it was not in the interest of justice to do so under the analysis in 

Williams, supra, 17 Cal.4th 148. 

Defendant seizes upon the trial court’s statement, “defendant himself has left me 

very few options here. I’m not sure that I have any options here,” as evidence the court 

misunderstood its discretion under section 1385. The trial court’s statement that it did 

not have any options was not made when deciding the Romero motion. Rather, the court 

said that after the Romero motion was denied, well after the sentencing hearing had 

commenced, just before it imposed sentence. Examined in its proper context, this 

statement accurately reflects the law. Denial of the Romero motion meant defendant was 

to be sentenced under the three strikes law, which mandates consecutive sentences of 25 

years to life for each felony “not committed on the same occasion, and not arising from 
12

the same set of operative facts.” (§ 667, subd. (c)(6); People v. Lawrence (2000) 

24 Cal.4th 219, 222-223.) Once the trial court denied the Romero motion, it had to 

impose consecutive 25 years to life terms for all four of defendant’s felony convictions.

As for defendant’s age, the lapse of time between the strike offenses and the 

current offense, defendant’s substance abuse problem and the facts that defendant did not 

expressly threaten to shoot the victim here and nobody was hurt, the trial court was well 

aware of those circumstances. It reviewed the probation report and presided over the 

trial. Even when we factor the circumstances defendant highlights here into the threeprong analysis outlined by our high court in Williams (Williams, supra, 17 Cal.4th at 

p. 161), we conclude the court’s decision not to dismiss any strikes was not “so irrational 

or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th 

at pp. 376-377.) 

1. Nature and Circumstances of the Current Offense

The strike offense was violent and involved the use of a gun. It showed a level of 

planning and sophistication in that defendant targeted an individual who was on her way 

to make a deposit of store receipts. In light of the fear defendant caused, we conclude 

that any mitigation from the fact that he did not expressly threaten to use the gun and did 

not hurt the victim during this armed robbery was minimal. 

To make matters worse, defendant engaged in a lengthy public standoff with 

sheriff’s deputies, in an apparent attempt to induce the deputies to shoot him. The trial 

court correctly found that the situation defendant created posed a threat to public safety. 

The current offenses were not part of a single incident, but involved at least three 

separate criminal acts, all involving a firearm: obtaining the stolen gun, the armed 

robbery, and finally, the armed standoff with the police.

2. Nature and Circumstances of the Strike Convictions

The prior strike offenses were not non-violent; they involved a burglary turned 

home invasion. It seems defendant could have walked away from the burglary, but 
13

instead confronted the victim and her young son. Defendant pulled the slide of his gun 

back and pointed the gun at the victim’s head. The victim no doubt thought she and her 

son were going to be killed and she begged defendant to spare their lives. There is 

nothing mitigating about these offenses. Indeed, these offenses are extremely 

aggravating.

3. Defendant’s Background, Character, and Prospects for the Future

Defendant had a criminal history beginning when he was 14 years old. One of his 

five juvenile adjudications involved burglary and possession of a firearm. 

Defendant was 17 when he committed his prior strike offenses, but he was old 

enough and his crimes were sufficiently serious for him to be tried as an adult. The 11 

years between his strikes and the current offenses is not the result of some break in 

criminal activity. Defendant was incarcerated for most of that time, and committed the 

current offenses a little more than a year after his release from prison. 

Defendant’s life is one of almost continuous offending, a lengthy juvenile record 

including several felonies, followed by five strike convictions, and then the current 

offenses a relatively short time after his release from prison and while he was on parole. 

And it seems defendant was prepared to go on a crime spree. During a recorded jail visit 

conversation, defendant remarked, “It’s good that it happened the way it did. It’s good 

that it’s only three charges and not 50. Cause another month and it would have been 50.” 

Defendant’s current crimes and criminal history show that when he is not 

incarcerated, he is highly likely to commit violent offenses involving the use of firearms. 

It was not an abuse of discretion to deny his Romero motion.

II. Cruel and Unusual Punishment

Defendant contends his sentence of 100 years to life plus 15 years constitutes cruel 

and/or unusual punishment under the state and federal Constitutions. 

Defendant’s Romero motion did not include and is not a substitute for a claim that 

his sentence is cruel and unusual punishment. He likewise did not assert his sentence was 
14

cruel and unusual when the trial court imposed sentence. This forfeits his contention on 

appeal.5(People v. Norman (2003) 109 Cal.App.4th 221, 229 (Norman).) 

Defendant’s claim also fails on the merits. A punishment may violate the 

California Constitution if, although not “cruel or unusual” in its method, the punishment 

“is so disproportionate to the crime for which it is inflicted that it shocks the conscience 

and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 

424, fn. omitted.) Similarly, “an Eighth Amendment analysis requires a finding of ‘gross 

disproportionality’ between the offense and the offender and the punishment. 

[Citations.]” (Norman, supra, 109 Cal.App.4th at p. 230.)

Relying on a concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-

602, in which Justice Mosk opined that a sentence that is impossible to serve is per se 

cruel and unusual, defendant contends his 100 years to life plus 15 years sentence is 

disproportionate to the current offenses even considering the current offenses and his

criminal history. He further claims that a sentence which is “more than 85 years longer 

than the upper term second strike sentence that could be imposed for the same offenses 

and enhancements” is disproportionate to him as the offender and to his offenses. 

This court has previously rejected reliance on Justice Mosk’s concurrence. In 

People v. Retanan (2007) 154 Cal.App.4th 1219, 1231, this court wrote: “ ‘ “ [N]o 

opinion has value as a precedent on points as to which there is no agreement of a majority 

of the court. [Citations.]” [Citations.] Because no other justice on our Supreme Court 

joined in Justice Mosk’s concurring opinion [in Deloza], it has no precedential value.’ 

Accordingly, there is no authority for defendant’s argument.” We again reject the theory 

 

5

 Defendant’s section 1385 motion does not preserve the claim, as that motion does not 

substitute for litigation under the constitutional provisions prohibiting the imposition of a 

cruel and unusual sentence. (People v. Cole (2001) 88 Cal.App.4th 850, 868-869.)
15

that a sentence is cruel and unusual because it is impossible for a human being to 

complete.

Nor do the facts surrounding the commission of the offenses or an individualized 

assessment of the offender compel a different result. As noted above, we are well 

acquainted with the factors in mitigation applicable here, including defendant’s age and 

his problem with methamphetamine. These factors do not tip the scale. 

Defendant’s lengthy and near continuous criminal record beginning as a juvenile 

(except while incarcerated), and the violent nature of his current and past offenses show 

that defendant is a serious threat to public safety when he is not incarcerated. His lengthy 

sentence is neither disproportional to the offense or the offender, and does not violate the 

state or federal prohibitions against cruel and/or unusual punishment. 

III. Section 654

In a supplemental brief, defendant contends sentence should be stayed pursuant to 

section 654 on either count four, receiving stolen property (the firearm), or count six, 

felon in possession of a firearm.6 The People concede and we agree.

Section 654, subdivision (a), provides in pertinent part that “[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 imprisonment, but in no case 

shall the act or omission be punished under more than one provision.” In short, “section 

654 proscribes double punishment for multiple violations of the Penal Code based on the 

 

6

 Defendant filed his motion for leave to file a supplemental brief long after briefing had 

concluded. Our decision to grant the motion as to one issue raised in the supplemental 

brief should not be taken as an endorsement of filing supplemental briefs. Failure to raise 

an issue in appellant’s opening brief forfeits the contention on appeal. (Christoff v. Union 

Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.) We generally do not allow 

supplemental briefing so that an appellant can overcome this rule, but do here to avoid a 

claim of ineffective assistance of appellate counsel for failing to raise a contention with 

obvious merit. 
16

‘same act or omission.’ ” (People v. Siko (1988) 45 Cal.3d 820, 822.) If the crimes 

involve a course of conduct, “[w]hether [the] course of criminal conduct is divisible and 

therefore gives rise to more than one act within the meaning of section 654 depends on 

the intent and objective of the actor. If all of the offenses were incident to one objective, 

the defendant may be punished for any one of such offenses but not for more than one.” 

(Neal v. State of Cal. (1960) 55 Cal.2d 11, 19.)

Defendant was convicted of receiving stolen property in count four for receiving a 

stolen .380-caliber Bersa handgun, the same weapon that formed the basis of his 

conviction for felon in possession of a firearm in count six.7 Defendant argues, and the 

People concede, that he cannot be sentenced for receiving stolen property and felon in 

possession of a firearm when both crimes involve the same firearm. 

A panel of this court addressed this issue in similar circumstances in People v. 

Atencio (2012) 208 Cal.App.4th 1239 (Atencio), a case not cited by defendant in his 

supplemental brief. In Atencio, the defendant was convicted of grand theft of a firearm 

and felon in possession of a firearm after he took a pistol from the victim’s house, kept it 

for a day, and then abandoned it at another person’s house. (Id. at p. 1243.) This court 

concluded that both acts were committed pursuant to a single objective, possessing the 

gun. “To say that defendant’s objective on the first day was to take the gun, while his 

objective on the next day was to possess it is cutting the point too fine. The only point in 

taking the gun was to gain possession of it, so that he could then do with it what he 

pleased . . . . The fact that defendant kept possession of the gun for a period of 24 hours 

did not, without more, alter his intent and objective such that his course of criminal 

conduct can be deemed to consist of more than one act for purposes of section 654.” (Id. 

 

7

 The felon in possession offense in count two was based on possession of a different 

firearm, the unknown firearm defendant used to commit the robbery. The trial court 

imposed but stayed a sentence pursuant to section 654 on count two. 
17

at p. 1244.) Since the “defendant’s taking of the pistol was merely the means by which 

he gained possession of it,” defendant could be punished only once for both crimes. (Id. 

at p. 1245.) 

Atencio is dispositive here. As in that case, the defendant committed the crimes of 

receiving stolen property and felon in possession of a firearm in counts four and six with 

a single purpose, to possess that firearm. Like in Atencio, “what we have here is a course 

of conduct pursuant to one criminal objective—to possess the gun—and based on that 

there is but one act that can be punished under section 654.” (Atencio, supra, 208 

Cal.App.4th at p. 1245.)

When section 654 applies, the offense with the longest term is imposed. (§ 654, 

subd. (a).) Defendant received the same three-strikes sentence of 25 years to life on both 

counts and the base punishments for both crimes is the same (§§ 12021, subd. (a)(1), 496, 

subd. (a)). We shall remand the case for the trial court to select the count upon which to 

stay the sentence pursuant to section 654.
18

DISPOSITION

The case is remanded for the trial court to stay the sentence on count four or count 

six pursuant to section 654. In all other respects, the judgment is affirmed. The trial 

court is further directed to prepare an amended abstract of judgment reflecting the new 

sentence and to forward a certified copy to the Department of Corrections and 

Rehabilitation.

 MURRAY , J.

We concur:

 RAYE , P. J.

 MAURO , J.