People v. Brumfield CA1/4 ( 2021 )

Filed 7/29/21 P. v. Brumfield CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
A160290
v.
MIKEL ALAN BRUMFIELD, (San Mateo County
Super. Ct. No. 19-NF-014246)
Defendant and Appellant.
Defendant Mikel Alan Brumfield was convicted of, among other
misdemeanor counts, five felony counts arising out of his unlawful possession
or carrying of a single firearm on a single occasion. On appeal, he contends
the court violated Penal Code1 section 654 by sentencing him to five
concurrent prison terms rather than imposing a single term and staying
execution of the sentence imposed on the remaining convictions. He also asks
that the abstract of judgment be amended to correct the improper designation
of his conviction for possession of ammunition as a violent felony. The
Attorney General concedes error. We agree. Accordingly, we shall modify the
judgment to stay execution of the sentences on counts two through five
pursuant to section 654, amend the abstract of judgment to delete the
1 All statutory references are to the Penal Code unless otherwise noted.
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designation of count five as a violent felony, and affirm the judgment in all
other respects.
Background
In February 2020, a jury convicted defendant of possession of a firearm
by a person previously convicted of a violent felony (§ 29900, subd. (a)(1),
count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1), count 2);
possession of a loaded firearm in public (§ 25850, subd. (c)(1), count 3);
possession of a concealed firearm in a vehicle by a felon (§ 25400, subd. (a)(1),
count 4); possession of ammunition by a prohibited person (§ 30305,
subd. (a)(1), count 5); misdemeanor possession of drug paraphernalia (Health
& Saf. Code, § 11364, count 6); and misdemeanor possession of heroin (Health
& Saf. Code, § 11350, subd. (a), count 8).2 Thereafter, the court found true the
allegation that defendant had suffered a prior strike conviction under
sections 667 and 1170.12.
Defendant was sentenced to an aggregate four-year prison term
calculated as follows: The court imposed the midterm of two years on count 1,
which was doubled because of the strike prior. The court imposed concurrent
four-year sentences on each of the remaining felony counts. Defendant was
credited with time served against his misdemeanor convictions.
Defendant timely filed a notice of appeal.
Discussion
Section 654, subdivision (a) provides 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
2Defendant was acquitted of the misdemeanor cocaine possession
(Health & Saf. Code, § 11350, subd. (a)) charged in count 7.
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imprisonment, but in no case shall the act or omission be punished under
more than one provision. . . .”3
Here, evidence was presented at trial that defendant was stopped by
police for driving a vehicle without a license plate and, in a subsequent
search of the vehicle, officers found a loaded revolver under one of the seats.
Expert testimony regarding the location of the gun under the seat and DNA
testing supported the jury’s finding that defendant had placed the gun under
the seat.
In People v. Jones (2012) 54 Cal.4th 350, 357, the court held, on nearly
identical facts, that a defendant who possesses a single firearm on a single
occasion commits a single physical act which may be punished only once
under section 654. As in Jones, supra, at page 359, defendant’s guilt in this
case was premised solely on his having the loaded gun in his car and the
prosecutor’s argument to the jury confirmed that his guilt on each count
rested solely on that act. The Attorney General concedes that there is no
basis to find that defendant possessed the ammunition on a separate occasion
before loading the gun. Section 654 requires that punishments falling under
its proscription be stayed, not imposed concurrently, as was done by the court
here. (Jones, supra, at p. 353.) Accordingly, we shall modify the judgment to
stay execution of the sentences imposed on counts two through five.
In addition, defendant is correct that his conviction under count five of
possession of ammunition is not a violent felony under section 667.5,
3 It does not appear from the record that defendant raised the
applicability of section 654 in the trial court. However, “ ‘the waiver doctrine
does not apply to questions involving the applicability of section 654. 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.’ ” (People v. Hester (2000) 22 Cal.4th 290, 295, quoting People
v. Perez (1979) 23 Cal.3d 545, 549–550, fn. 3.)
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subdivision (c). Accordingly, the abstract of judgment shall be amended to
delete the improper designation.
Disposition
The judgment is modified to stay execution of the sentences imposed on
counts two through five pursuant to section 654, and the abstract of
judgment is amended to delete the designation of count five as a violent
felony. As modified, the judgment is affirmed.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
TUCHER, J.
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