Can a felon in possession of a firearm be punished separately for the possession and the crime in which the felon used the firearm?

California, United States of America


The following excerpt is from People v. Ortega, B278160 (Cal. App. 2017):

"An 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." ( 654, subd. (a).) In general, section 654 precludes multiple punishments for a single physical act that violates different provisions of law, although "what is a single physical act might not always be easy to ascertain. In some situations, physical acts might be simultaneous yet separate for purposes of section 654." (People v. Jones (2012) 54 Cal.4th 350, 358.) "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce

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from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Whether a felon in possession of a firearm may be punished separately for the possession and the crime in which he used the firearm "'depends upon the facts and evidence of each individual case. Thus, where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.' [Citation.]" (People v. Bradford (1976) 17 Cal.3d 8, 22.)

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