Venegas

The information charged defendant in count I with an assault with a deadly weapon with intent to commit murder (Pen. Code, § 217) and count II with a convicted felon’s possession of a firearm (Pen. Code, § 12021). He waived jury trial and the court found him guilty on both counts. Motion for new trial and probation were denied. Defendant was sentenced to state prison on both counts, the sentences thereon to run concurrent with each other and concurrent with any other sentence, service of which defendant had not completed. He appeals from the judgment.

Defendant contends upon appeal; (1) imposition of sentence upon both counts I and II constituted a violation of section 654 of the Penal Code enjoining the imposition of multiple punishments for a single criminal act; (2) sentence on the violation of section 12021 of the Penal Code also violated the federal and state constitutional prohibitions against ex post facto laws; and (3) the trial judge’s admonition to the witness Rodriguez, the victim of the assault charged, concerning the laws of perjury during his examination as a witness constituted prejudicial misconduct.

Review of the record and applicable law leads us to…

I concur in Justice Aiso's opinion in all respects. This comment addresses itself only to a problem raised by Justice Reppy's partial dissent which would decide the divisibility of defendant's conduct by looking *Page 827 only to his intent and objective when he acquired possession of the gun at some point before the shooting. The problem arises from the fact that the applicability of the double punishment provisions of section 654 of the Penal Code often depends on which of several conflicting inferences, arising from the evidence introduced on the issue of guilt, is accepted by the trial court. Ironically, however, that evidence was never offered for the purpose of proving or disproving whether the defendant is subject to double punishment. Moreover, evidence which is relevant to that issue, may be inadmissible during the guilt phase of the proceeding, or may be intentionally withheld. Obviously a person who is fighting a robbery-rape charge with an alibi is not going to take the stand and testify to the full extent of his criminal objective. The trial record is therefore the wrong tool for intelligent factfinding with respect to the applicability of the relevant test under…

I concur in the affirmance of the convictions but I respectfully dissent from the reversal of the imposition of sentence for the assault with intent to commit murder. I do not feel that we can say as a matter of law (in opposition to the implied finding of the trial court to the contrary) that "the evidence shows a possession only at the time defendant shot Rodriguez"; that "the possession was incidental to only one objective, namely, to shoot Rodriguez." The record clearly is supportive of the inference that defendant took possession of the weapon when he dressed at his own home and that he had possession of it for general purposes when Rodriguez picked him up so that the two could enjoy an evening of sociability with their girl friends. Certainly defendant had possession of the gun for a number of hours with absolutely no intent to use it against his friend Rodriguez. Defendant would have had possession of the weapon for some time before Rodriguez picked him up. Then, two hours went by before the couples went to the "Plush Bunny" where the incident occurred, and, inferably, there was some table sitting and drinking there before the shooting. Defendant and Rodriguez were…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 816 OPINION The information charged defendant in count I with an assault with a deadly weapon with intent to commit murder (Pen. Code, § 217) and count II with a convicted felon's possession of a firearm (Pen. Code, § 12021 ). He waived jury trial and the court found him guilty on both counts. Motion for new trial and probation were denied. Defendant was sentenced to state prison on both counts, the sentences thereon to run concurrent with each other and concurrent with any other sentence, service of which defendant had not completed. He appeals from the judgment. Defendant contends upon appeal: (1) imposition of sentence upon both counts I and II constituted a violation of section 654 of the Penal Code enjoining the imposition of multiple punishments for a single criminal act; (2) sentence on the violation of section 12021 of the Penal Code 1 also violated the federal and state constitutional prohibitions against ex post facto laws; and (3) the trial judge's admonition to the witness Rodriguez, the victim of the assault charged, concerning the…