Filed 6/6/16 P. v. Huerta CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064835
v. (Super.Ct.No. FCH07061)
ALEJANDRO HUERTA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Linda M. Wilde
and Michael A. Smith, Judges. Affirmed as modified.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Retired judge of the San Bernardino Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Lise S.
Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Alejandro Huerta was charged by information with
attempting to remove a firearm from a police officer (Pen. Code,1 §§ 664, 148, subd. (c),
count 1), resisting an executive officer by force or violence (§ 69, count 2), being a felon
in possession of a firearm (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1), count
3), and being a felon carrying a loaded firearm (former § 12031, subd. (a)(1), now
§ 25850, count 4). It was further alleged that defendant had five prior strike convictions.
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
A jury was unable to reach a verdict on count 1 and a mistrial was declared on that
count. In count 2, the jury found defendant guilty of the lesser included offense of
resisting an officer in the performance of his duties, a misdemeanor. (§ 148, subd. (a).)
In counts 3 and 4, the jury found defendant guilty as charged. The court found the five
prior strike allegations true, and denied defendant’s motion to reduce his felony offenses
to misdemeanors for sentencing purposes and strike the prior strikes in the interest of
justice. The court sentenced defendant to 25 years to life, consisting of 25 years to life on
count 3 and a concurrent term of 25 years to life on count 4. He was sentenced to 365
days in local custody for his conviction in count 2. Defendant filed a petition to recall his
1 All further statutory references will be to the Penal Code, unless otherwise
indicated.
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sentence under section 1170.126 (Proposition 36). The court denied the petition on the
basis that defendant was statutorily ineligible, since he was armed with a firearm during
the commission of the offense. (§ 1170.12, subd. (c)(2)(C)(iii).)
On appeal, defendant contends that his sentence on count 4 should be stayed
pursuant to section 654. The People concede, and we agree. In all other respects, the
judgment is affirmed.
FACTUAL BACKGROUND2
Two police officers stopped defendant for a traffic violation. One of the officer’s
approached defendant’s car and asked him for his driver’s license. Defendant appeared
unusually nervous, so the officer asked him to keep his hands on the steering wheel.
Defendant initially complied, but then kept reaching toward his lap area. Defendant
eventually exited the car, at the officer’s request. Then he resisted both officers and tried
to grab one of the officer’s guns. Defendant was unsuccessful, but kept resisting the
officers. One officer noticed defendant focusing on something near his car. The officer
looked in that direction and saw a gun on the ground. It was a .32-caliber pistol that was
loaded and “cocked” with a round in the chamber. The officer shouted that defendant
had a gun and struck him in the forehead with his handheld radio.
2 On March 7, 2016, this court granted defendant’s request to take judicial notice
of our opinion in People v. Huerta (Feb. 18, 2009, E042901 [nonpub. opn.].) The factual
background is taken from that opinion.
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ANALYSIS
Defendant’s Sentence on Count 4 Should Be Stayed Pursuant to Section 654
Defendant argues that his concurrent sentence on count 4 for being a felon
carrying a loaded firearm (former § 12031, subd. (a)(1)) should be stayed pursuant to
section 654. The People correctly concede.
At the outset, we note that defendant’s appeal is from the denial of his Proposition
36 petition. However, his only claim is that his sentence on count 4 should have been
stayed. While the section 654 issue could have been raised in defendant’s original
appeal, “it is well established that the appellate court can correct a legal error resulting in
an unauthorized sentence (including a misapplication of § 654) at any time.” (People v.
Sanders (2012) 55 Cal.4th 731, 743, fn. 13.)
In People v. Jones (2012) 54 Cal.4th 350 (Jones), the defendant was a convicted
felon. The police searched his car and found a loaded .38-caliber revolver. (Id. at
p. 352.) A jury convicted him of three crimes: possession of a firearm by a felon (former
§ 12021, subd. (a)(1), count 1), carrying a readily accessible concealed and unregistered
firearm (former § 12025, subd. (b)(6), count 2), and carrying an unregistered loaded
firearm in public (former § 12031, subd. (a)(2)(F), count 3). (Ibid.) The superior court
sentenced him to state prison for the upper term of three years on each count, to be served
concurrently, plus a one-year enhancement for a prior prison term. (Ibid.) The California
Supreme Court held that the trial court erred, noting that, when arrested, the defendant
“was carrying, and thus possessing, a single firearm, which seem[ed] to be a single
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physical act.” (Id. at p. 353.) That act was “made punishable by three different
provisions of law, . . . Thus, by its terms, section 654 seem[ed] to preclude punishment
for more than one of those provisions.” (Ibid.) The Court then held that “a single
possession or carrying of a single firearm on a single occasion may be punished only
once under section 654.” (Id. at p. 357.)
In the instant case, defendant was convicted of two firearm offenses for “a single
possession or carrying of a single firearm on a single occasion.” (Jones, supra, 54
Cal.4th at p. 357.) Therefore, defendant’s sentence on count 4 (being a felon carrying a
loaded firearm) should be stayed pursuant to section 654. (Ibid.)
DISPOSITION
The judgment is modified to stay the term imposed on count 4 pursuant to section
654. In all other respects, the judgment is affirmed. The superior court is directed to
amend the abstract of judgment and its minute order to reflect this modification and to
forward a certified copy of the amended abstract of judgment to the Director of the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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