Filed 1/17/18 P. v. Hewitt 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JAMES EDWARD HEWITT III,

Defendant and Appellant.
C084095

(Super. Ct. No. MANCR20150015683)



A jury found defendant James Edward Hewitt III guilty of being a felon in possession of a firearm (count 1) and a felon in possession of ammunition (count 2). The trial court sentenced defendant to four years on count 1 and a concurrent four years on count 2.
Defendant now contends the trial court should have stayed the sentence on count 2 pursuant to Penal Code section 654. The People agree and so do we. We will modify the judgment to stay the sentence on count 2 and affirm the judgment as modified.
BACKGROUND
Detective David Bright and other police officers attempted to conduct a probation search at a house in 2015. Defendant, who also lived in the home, was outside the house working on a car with another individual when the officers approached. Defendant moved his hand toward his waistband, prompting Detective Bright to instruct defendant to keep his hands where they could be seen. Defendant turned towards the house and started walking to the front door. Detective Bright instructed defendant not to go into the house, but defendant proceeded into the house anyway, claiming he wanted to “go check on [the] dogs.”
After knocking and announcing their presence, Detective Bright and other officers entered the home. Detective Bright saw defendant walk into a hallway from the kitchen area. Detective Bright instructed defendant to wait with officers outside and defendant complied. Officers searched the house and discovered a loaded handgun inside the oven. It was later determined the firearm contained defendant’s DNA.
The jury convicted defendant of being a felon in possession of a firearm (§ 29800, subd. (a)(1) -- count 1) and a felon in possession of ammunition (§ 30305, subd. (a)(1) --count 2). In a bifurcated proceeding, the trial court found true prior strike allegations that defendant had previously been convicted of a serious and/or violent felony. (§§ 1170.12, subd. (b), 667, subd. (d).)
After denying defendant’s request to dismiss the prior strike allegation, the trial court denied probation and sentenced defendant to two years (the middle term) for count 1, doubled for the prior strike, plus a concurrent term of two years (the middle term) on count 2, doubled for the prior strike, for an aggregate term of four years in state prison.
DISCUSSION
Defendant contends, and the People agree, that the sentence imposed for being a felon in possession of ammunition (count 2) must be stayed pursuant to section 654 because that offense and the offense of felon in possession of a firearm (count 1) were part of an indivisible course of conduct motivated by a single criminal objective.
Section 654 proscribes multiple punishments for the same act. (§§ 654, 954; People v. Correa (2012) 54 Cal.4th 331, 337 (Correa).) Where a single physical act violates different provisions of law, section 654, by its plain language, prohibits multiple punishment. (People v. Jones (2012) 54 Cal.4th 350, 358, 360 (Jones).)
An “ ‘act’ ” can include a “ ‘ “course of conduct.” ’ ” (Correa, supra, 54 Cal.4th at p. 335.) When a course of conduct causes multiple offenses -- each capable of being independently committed -- section 654’s application turns on whether each conviction was based on a separate, divisible transaction. (Correa, at pp. 335-336.) Whether a course of conduct is divisible turns on the defendant’s intent and objective. (Id. at p. 336.) “ ‘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.’ ” (Ibid.)
Here, a single act, being a felon and possessing a loaded handgun, gave rise to both offenses. (Jones, supra, 54 Cal.4th at pp. 357-358, 360 [“a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654”]; People v. Lopez (2004) 119 Cal.App.4th 132, 138 [§ 654 precludes multiple punishment where “all of the ammunition is loaded into the firearm”].) Accordingly, section 654 expressly proscribes multiple punishment under these facts.
DISPOSITION
The judgment is modified to impose a concurrent term of four years (two years doubled for the prior strike) on the count 2 conviction for being a felon in possession of ammunition (§ 30305, subd. (a)(1)), with execution of that sentence stayed pursuant to section 654. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting the judgment as modified and to deliver a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.



MAURO , J.



We concur:



ROBIE , Acting P. J.



BUTZ , J.