Filed 1/5/16 P. v. Turner CA2/8
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                DIVISION EIGHT


THE PEOPLE,                                                            B259916

         Plaintiff and Respondent,                                     (Los Angeles County
                                                                       Super. Ct. No. TA132992)
         v.

STEVEN DEON TURNER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Paul A. Bacigalupo, Judge. Affirmed.


         Jerome McGuire, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Taylor Nguyen and
Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.


                                                      ******
       Defendant Steven Deon Turner (also known as Steven Deon Turner, Jr.)
challenges his convictions for shooting at an occupied motor vehicle, possession of a
firearm by a felon, possession of ammunition, and resisting a peace officer. A deputy
sheriff observed defendant’s crimes. Defendant represented himself, and his only
defense was mistaken identity. On appeal, defendant demonstrates no prejudicial
error, and we affirm.
                                        FACTS
       On April 20, 2014, during Deputy Sheriff John Hunziker’s routine patrol, he
heard gunshots. Then he observed defendant shooting into a blue vehicle. When
Hunziker observed him, defendant was standing in front of a gold Honda Accord
“shooting into another blue vehicle . . . .” Hunziker activated his siren. Defendant
returned to the passenger seat of the Honda from which he had exited, and his driver
sped away, eventually hitting a curb. Once the vehicle stopped, defendant fled on foot.
After observing defendant throw a silver revolver to the ground, Hunziker pursued
defendant.
       Almadeo Sanchez Ayala also observed the shooting. Ayala was washing his
car when a car stopped, and the driver or passenger asked Ayala for directions.
Shortly afterwards defendant’s vehicle approached, and Ayala saw the passenger
(defendant) shooting at the occupants in the blue car. Ayala heard about seven shots.
Ayala was not able to identify defendant at trial.
       Deputy Sheriff Edgar Bonilla assisted Hunziker in arresting defendant. Bonilla
observed defendant running away from Hunziker. Defendant ran into an apartment,
and when he exited it, Bonilla apprehended him. Bonilla tested defendant’s hands for
gunshot residue. Test results showed 13 particles consistent with gunshot residue.
The gunshot residue indicated defendant had fired a gun, handled a gun, or was next to
someone who had fired a gun.
       Shortly after he pursued defendant, Hunziker returned to the location where
defendant had thrown the revolver and retrieved it. One bullet remained in the gun.



                                            2
Five casings were found at the scene of the shooting. No fingerprints were found on
the gun.
                                     PROCEDURE
       Defendant was charged with shooting at an occupied motor vehicle, possession
of a firearm by a felon, possession of ammunition and resisting a peace officer. It was
alleged that defendant had been convicted of six prior felonies including one serious or
violent felony. It was further alleged that defendant served five prior prison terms.
       Defendant represented himself and was tried by jury.
       Just before trial, defendant argued that the charges should be dismissed because
the prosecutor did not timely provide discovery. He also argued that the court should
exclude the belatedly provided evidence. That evidence included photographs of the
crime scene, which the prosecutor gave defendant on the date of trial. The
photographs depicted defendant’s gun on the street and the car in which defendant was
a passenger. At the same time the prosecutor gave defendant the results of the gunshot
residue test, a disc of an interview of defendant (which had not been transcribed
because the prosecutor did not intend to use it), and a report stating that no fingerprints
had been found on the gun.1 Defendant also informed the court that he just received
the prosecutor’s witness list. The court afforded defendant numerous opportunities to
identify prejudice from the late discovery as the following colloquy illustrates:
       “THE COURT: . . . I’m trying to determine what prejudice you have sustained
or may suffer as a result of it.
       “DEFENDANT TURNER: First of all, these are not the full photos of the
scene, Your Honor, where the crime took place.
       “THE COURT: I’m just asking you, what she has turned over to you, what
prejudice do you have to these photos?
       “DEFENDANT TURNER: The due process, first and foremost.


1      The test of the gun for fingerprints was being conducted at defendant’s request,
and the prosecutor did not have the results when defendant initially requested them.


                                             3
       “THE COURT: No. What prejudice?
       “DEFENDANT TURNER: Prejudice, I can’t use these. These are not the
whole scenes. This is part of the street. This is not the full street where it took place.
       “THE COURT: Sir, these are photos that the people intend to use. What
prejudice do you have if they present these photos?
       “DEFENDANT TURNER: Objection. The prejudice I have is a violation of
[Penal Code section] 1054.7.
       “THE COURT: No, sir. Besides that, what actual prejudice?
       “DEFENDANT TURNER: Well, besides where—I can refer to as far as Brady
versus Maryland in a time constraint, constitutional rights—
       “THE COURT: I understand your claim in timeliness. I’m asking what actual
prejudice do you suffer if the people present these photographs?
       “DEFENDANT TURNER: What actual prejudice do I suffer? Let me get that
for you. [¶] The actual prejudice that I will suffer, Your Honor, with respect to the
court and the law, I would like to verbally invite this court to dismiss this case under
[Penal Code section] 1385, section (a), for the prejudice, right, the prosecution
delayed. Blatant admission is not having none of the evidence I requested with due
diligence and a violation of my constitutional right to a speedy trial, Your Honor. So
that’s the actual prejudice that I have with the D.A. using any of this evidence or these
photos.”
       With respect to the gunshot residue, the defendant stated that he did not have
time to prepare for trial, but did not identify any preparation he would need. Nor did
he request a continuance. With respect to the interview of him, defendant stated that
“[a]gain, Your Honor, all of it falls under [Penal Code section] 1385, [subdivision] (a),
in the furtherance of justice that the—the blatant—the blatant—the blatant delay, Your
Honor, is showing that the D.A. had knowledge of this information and withheld it,
which makes it a Brady versus Maryland violation as well.”




                                             4
       The court reiterated that it “need[ed]” defendant “to lay out a factual basis”
“upon which you claim there may be any prejudice.” Defendant stated, “the only thing
I have” is the “actual law.”
       The court asked again: “Please set forth factually any actual prejudice that
you’re claiming with respect to the discovery item that you claim was provided to you
in an untimely fashion.” When defendant failed to identify any prejudice, the court
found “no claim for actual prejudice.” Although the colloquy continued after the
court’s ruling, defendant never identified any prejudice; nor did he request a
continuance.
       Prior to voir dire, the trial court instructed defendant to remain seated during the
proceedings, and defendant objected, requesting the opportunity to stand. The court
denied defendant’s request, and later explained that it was concerned that defendant
had been charged with carrying a concealed weapon while incarcerated and believed
that defendant needed to remain seated for courtroom security. The court assured
defendant he would be able to display exhibits. (On appeal defendant acknowledges
that he received a prison sentence of two years for possession of a weapon by an
inmate.)
       During trial, defendant stipulated that he had been convicted of a felony within
the last 10 years.
       Defendant did not testify and presented no evidence in his defense.
       At a discussion on instructions, defendant explained that his theory of the case
was that he was not present at the scene of the shooting. He described this case as an
identification case and claimed to have been falsely identified. Consistent with that
defense, defendant argued to jurors that Hunziker lied and falsely identified him.
       Defendant was convicted as charged, and the court found the prior conviction
allegations to be true including the prior prison term allegations. Defendant then
requested an attorney, and the trial court granted his request. Defendant later
requested to return to pro. per. status with the assistance of an investigator, and the



                                             5
court granted his requests. After continuing sentencing numerous times, the court
ultimately sentenced defendant to a total prison term of 20 years eight months.
                                     DISCUSSION
       Defendant argues: (1) the trial court’s requirement that he remain seated
throughout trial prejudiced him; (2) he was denied due process because the prosecution
did not timely provide discovery; (3) he suffered prejudice when jurors spoke to a
prosecution witness in the hallway; (4) the trial court should have instructed jurors on
the lesser included offense of grossly negligent discharge of a firearm; (5) defendant
should have been granted an additional posttrial continuance; and (6) pursuant to Penal
Code section 654 the court erred in imposing sentence on both shooting at an occupied
vehicle and being a felon in possession of a firearm. We discuss defendant’s
arguments seriatim.
1. Requiring Defendant Remain Seated Does Not Require the Reversal of His
Conviction
       Defendant first argues that he was prejudiced by the court’s order that he
remain seated throughout the proceedings. Defendant argues that the following
colloquy demonstrates prejudice:
       “PROSPECTIVE JUROR NO. 11: Why is it he cannot get up? Is it physical
or—
       “THE COURT: You’re not to speculate as to why on that situation.”
       The court then instructed defendant to ask his questions regarding an exhibit
that the prosecutor had displayed to jurors. Defendant stated that he had difficulty
seeing the exhibit while it was being shown to jurors. Defendant eventually asked a
question about his location when Hunziker first saw him.
       On appeal, defendant demonstrated neither error nor prejudice from the
requirement that he remain seated throughout his questioning. The trial court may
restrict the movement of a defendant representing himself. (People v. Clark (1992) 3
Cal.4th 41, 146, overruled on other ground in People v. Pearson (2013) 56 Cal.4th
393, 462.) Even if the restriction in this case was greater than that in Clark, defendant


                                            6
fails to show the court erred in concluding that such restriction was required for
courtroom security.
       Defendant’s focus on the court’s denial of his right to represent himself is not
persuasive because the court simply limited his movement; not his right to represent
himself. The trial court did not limit defendant’s ability to present evidence or cross-
examine witnesses but instead simply required him to remain seated while conducting
those tasks. The fact that defendant was required to seek assistance in displaying an
exhibit did not hinder his defense as he was able to display the exhibit with the
assistance of the prosecutor. While defendant argues that he was not able to ask about
whether there were pictures from security cameras, he fails to show that he was
prohibited from asking such question or that any additional photographs would have
assisted him. In short, defendant demonstrates no connection between the order he
remain seated and his ability to present a defense.
       Nor is there any record support for defendant’s claim that jurors must have
speculated that he was dangerous. One juror asked if defendant had a disability,
suggesting that that juror questioned defendant’s mobility. Nothing in the record
suggested that the jurors were led to believe that defendant was dangerous. In
answering the juror’s question, the trial court did not refer to any characteristic of
defendant. Even assuming the court erred in requiring defendant to remain seated, the
error was harmless beyond a reasonable doubt.2
2. Late Discovery Did Not Deny Defendant Due Process
       As described above, defendant was not timely provided all of the discovery
items he requested. On appeal, he argues that the late discovery violated his right to


2      Defendant’s reliance on Wilson v. Superior Court (1978) 21 Cal.3d 816 is
misplaced. Wilson concerned a defendant’s “in-jail” privileges. (Id. at p. 819.) The
defendant’s privileges were unilaterally restricted by the local sheriff’s department and
then they were subsequently limited by the court. (Id. at p. 820.) The appellate court
held that the defendant’s privileges should not have been restricted without notice and
a hearing. (Id. at p. 822.) Wilson did not involve a defendant’s ability to stand while
representing himself and does not assist in evaluating defendant’s argument.


                                             7
due process. As we explain, he fails to demonstrate any due process violation and fails
to show any prejudice requiring the reversal of his conviction.
       “‘The prosecution has a duty under the Fourteenth Amendment’s due process
clause to disclose evidence to a criminal defendant [citation] [¶] . . . [that is] both
favorable to the defendant and material on either guilt or punishment. [Citation.] [¶]
Evidence is “favorable” if it either helps the defendant or hurts the prosecution, as by
impeaching one of its witnesses. [Citation.] [¶] Evidence is “material” “. . . if there is
a reasonable probability that, had [it] been disclosed to the defense, the result . . .
would have been different.”’” (People v. Gutierrez (2013) 214 Cal.App.4th 343, 348.)
       Here, the only evidence that was favorable to defendant was that his
fingerprints were not found on the revolver Deputy Sheriff Hunziker recovered from
the location defendant threw it. Jurors heard evidence that “there were no prints” on
the gun. Defendant elicited testimony that the gun was not processed until July 17, the
day voir dire started. Defendant also elicited testimony that “there’s no fingerprints on
the gun.” Therefore, the favorable material evidence was provided to defendant and
presented to jurors. Defendant does not show his due process rights were violated.
       To the extent defendant is arguing that he was not ready to present a defense
because he did not receive other discovery earlier, defendant failed to request a
continuance and failed to show that he would suffer any prejudice from the delayed
discovery. As described above in detail, the trial court afforded defendant numerous
opportunities to identify prejudice from the delay in providing the evidence, and
defendant identified none. There was good reason for defendant’s failure to identify
prejudice. He was aware of the scene of the shooting depicted in the photographs
because he was there. He was aware of his interview because he was the person
interviewed. Although defendant was not aware of the result of the gunshot residue
test, in another portion of his brief, defendant states that he “questioned GSR expert
Cavaleri at length and cross-examined the officer who performed the GSR test.”
       On appeal, defendant also fails to demonstrate any prejudice. Although
defendant argues that his defense was impeded, he provides no explanation of how the


                                              8
late discovery impeded his defense. His “generalized statements are insufficient to
demonstrate prejudice.” (People v. Verdugo (2010) 50 Cal.4th 263, 282.) Defendant
also argues that the court should have instructed the jurors to “consider the late
discovery in weighing the prosecution’s case,” but he did not request such instruction
in the trial court.3 Nor does he provide any legal basis for concluding such an
instruction should have been given in this case. Finally, no showing is made that the
instruction would have had any impact on the verdict, and therefore even if the
instruction should have been given reversal is not warranted. (Cf. People v. Riggs
(2008) 44 Cal.4th 248, 311.)
3. The Jurors Brief Conversation with a Prosecution Witness Does Not Require
Reversal of Defendant’s Conviction
       Defendant next argues that jurors were improperly influenced by a prosecution
witness who they spoke to in the hallway. As we shall explain, although the jurors
should not have spoken to the witness, defendant demonstrates no improper influence.




3      CALCRIM No. 306 provides:
        “Both the People and the defense must disclose their evidence to the other side
before trial, within the time limits set by law. Failure to follow this rule may deny the
other side the chance to produce all relevant evidence, to counter opposing evidence,
or to receive a fair trial.
      “An attorney for the (People/defense) failed to disclose: ________ <describe
evidence that was not disclosed> [within the legal time period].
       “In evaluating the weight and significance of that evidence, you may consider
the effect, if any, of that late disclosure.
       “[However, the fact that the defendant’s attorney failed to disclose evidence
[within the legal time period] is not evidence that the defendant committed a crime.]
       “<Consider for multiple defendant cases>
       “[You must not consider the fact that an attorney for defendant ________
<insert defendant’s name> failed to disclose evidence when you decide the charges
against defendant[s] ________ <insert names of other defendant[s]>.]”


                                            9
A. Additional background
       Joseph Cavaleri, a chemist in the trace evidence section of the Los Angeles
County Sheriff’s Department testified for the prosecution. He explained that when a
gun is fired, gunshot residue particles emanate off the gun. Persons firing the gun may
have gunshot residue on their hands or their clothing. Gunshot residue also may be
deposited on a person standing next to someone firing a gun.
       In this case, Cavaleri found defendant’s hands had 13 particles consistent with
gunshot residue. He concluded defendant “could have fired a gun, handled a gun,
been next to somebody who fired a gun, or otherwise touched a surface that had
gunshot residue on it . . . .”
       On cross-examination, Cavaleri acknowledged that fireworks may generate the
same particles found in gunshot residue. He could not opine with certainty that
defendant fired a gun. Cavaleri did not receive photographs of defendant’s hands and
never received such photographs when he analyzed gunshot residue. Defendant’s
clothing was not tested. Cavaleri testified that if one of the jurors fired a gun it was
likely the two jurors seated next to the juror who fired the gun also would have
gunshot residue on their persons.
       After Cavaleri testified, some of the jurors spoke to him in the hallway. One
said, “Nice to have people like you.” Another said, “I learned a lot today.” Someone
also said, “You’re the man.” The court indicated that it would admonish the jurors to
refrain from communicating with any witnesses or parties in the case. Defendant did
not raise any objection or request a mistrial. Defendant reminded the court to
admonish jurors, and the court instructed jurors: “[L]et me remind you that you are to
have no conversation whatsoever with any witnesses or any parties or any of the
lawyers associated with this case. That means don’t say, ‘hello.’ Don’t say any
comment whatsoever to anyone.”
       On appeal defendant argues that “[t]he jurors’ misconduct—although clearly
not malevolent—was prejudicial, as it clearly appears that numerous jurors did not
remain neutral after contacting Cavaleri outside the courtroom.”


                                            10
B. Analysis
       Although it is hard to imagine why the trial court did not make inquiry of the
jurors to ascertain whether any of the comments reflected juror bias or prejudging the
case, we find on this record and in light of defendant’s failure to object or make any
request that reversal is not required. Our Supreme Court has “held that trivial
violations of th[e] rule [that jurors do not speak to anyone connected to the case] do
not require reversal because no prejudice to the defendant resulted.” (People v. Wilson
(2008) 44 Cal.4th 758, 839.) Here, defendant fails to show that the “‘“nature and
seriousness of the misconduct”’” demonstrated actual prejudice. (Ibid., italics
omitted.) Jurors spoke only briefly to Cavaleri. Deputy Sheriff Hunziker, not
Cavaleri, was the critical witness because he first hand observed defendant’s crimes,
called for assistance, and retrieved defendant’s firearm. Cavaleri simply supported
Hunziker’s testimony. In short, although jurors should not have spoken to Cavaleri,
defendant fails to show that reversal of his conviction is required.
4. The Trial Court Was Not Required to Instruct Jurors on Negligent Discharge of
a Firearm
       Defendant next argues that the trial court had a sua sponte duty to instruct jurors
on negligent discharge of a firearm. Negligent discharge of a firearm is a lesser
included offense of shooting at an occupied vehicle. (People v. Overman (2005) 126
Cal.App.4th 1344, 1360.)
       A trial court has a sua sponte duty to instruct on lesser included offenses when
substantial evidence supports the instruction. (People v. Cunningham (2001) 25
Cal.4th 926, 1008.) “‘“Substantial evidence is evidence sufficient to ‘deserve
consideration by the jury,’ that is, evidence that a reasonable jury could find
persuasive.”’” (Ibid.)
       Here, the instruction was not warranted because no evidence supported the
theory that defendant negligently discharged a firearm. Defendant did not testify and
the only evidence was that defendant shot at the occupants of a vehicle who had
stopped to ask for directions. Additionally, defendant made clear that this case was


                                            11
solely about identity. Contrary to defendant’s argument, the record contains no
evidence from which a reasonable juror could have concluded defendant did not fire at
an occupant of the other vehicle.
5. Continuance
       The trial court granted defendant numerous posttrial continuances. On appeal,
defendant argues that the court should have granted him an additional posttrial
continuance so that he could have further investigated the person who was shot in the
other vehicle. Based on the appellate record, defendant demonstrates neither good
cause for an additional continuance nor prejudice.
A. Background
       Defendant was convicted July 23, 2014, and on the same day the court found
the alleged priors true. Defendant then requested an attorney. The court expressed
concern that appointing counsel would cause a delay in sentencing. Defendant assured
the court that there would be no significant delay because it would “be no problem
with me informing him of what took place . . . .”
       The next day, the court granted defendant’s request, and a deputy alternate
public defender appeared to represent defendant. The court continued the case to
August 6, 2014.
       When defendant appeared on August 7, he requested a Marsden hearing.
(People v. Marsden (1970) 2 Cal.3d 118.) Defendant expressed concern that his
counsel would not raise grounds defendant believed should be raised. He requested to
represent himself. The court restored defendant’s pro. per. status. Defendant indicated
that he wanted to file a new trial motion based on jury misconduct, judicial
misconduct, and vouching for witnesses. Additionally, defendant requested a 60-day
continuance, arguing that he had new evidence with respect to the victim. Defendant
requested an investigator in order to summon the victim to court. Defendant did not
know whether the victim would help him. He stated, “. . . I don’t know. I’ve got to
send investigators out there to see what they’re saying and whatnot.” The court
continued the matter to September 8, 2014.


                                          12
       On September 8, 2014, the court denied defendant’s request for trial transcripts.
The court ordered defendant to file his motion for new trial 10 days before the next
court date. The court continued the sentencing hearing to October 6, 2014.
       On October 6, 2014, defendant argued that he did not timely receive discovery.
Defendant stated that he was trying to get the victim to participate in this case. The
court indicated that it had approved defendant’s first request for an investigator and
defendant was requesting a different person. Defendant responded that he was unable
to obtain the necessary form for the first investigator because it was not available to
him. Defendant argued he could not file his motion for new trial without an
investigation. Defendant argued he needed an investigator to prepare an “affirmative
defense.” The court denied defendant’s requested additional continuance. The court
ordered defendant to file a sentencing memorandum by October 10, 2014, if he
intended to file one.
       On October 10, defendant again requested a continuance. Defendant stated that
he had contact with the victim and was trying to locate him. Defendant raised a new
trial motion, arguing among other things that the victim came forward during trial.
The court denied the new trial motion and sentenced defendant.
B. Analysis
       A trial court has broad discretion to grant a continuance when good cause exists
for a continuance. (People v. Alexander (2010) 49 Cal.4th 846, 934.) “Whether a
defendant has affirmatively demonstrated that justice requires a continuance is a
factual matter and, in the absence of an abuse of discretion, the trial court’s
determination will not be disturbed on appeal.” (People v. Weston (1981) 114
Cal.App.3d 764, 777.) “‘Particularly, when the party seeks a continuance to secure a
witness’s testimony, the party must show that he exercised due diligence to secure the
witness’s attendance, that the witness would be available to testify within a reasonable
time, that the testimony was material and not cumulative.’” (People v. Johnson (2013)
218 Cal.App.4th 938, 942.)



                                            13
       Here, the trial court did not abuse its broad discretion. Defendant was afforded
a reasonable time—over two months—to prepare his new trial motion. (See People v.
Alexander, supra, 49 Cal.4th at p. 934.) Defendant made no showing that he had
exercised diligence to secure the victim’s attendance; he made no showing that the
victim would testify within a reasonable time; or most significantly that the victim
would provide material evidence. When asked what evidence the victim would
provide, defendant responded that he did not know. The court continued sentencing
for over two months, and defendant still had not produced any evidence that the victim
would testify favorably to him. Under these circumstances, defendant failed to
demonstrate good cause for an additional continuance. The trial court properly denied
his request.
       Even if the court abused its discretion in denying defendant an additional
continuance, he demonstrated no prejudice. The record contains no exculpatory
evidence from the alleged victim. The trial court had granted defendant numerous
continuances, and he failed to obtain any exculpatory evidence. Even if defendant had
obtained exculpatory evidence, he fails to demonstrate a new trial would have been
warranted. A new trial motion based on newly discovered evidence requires a
showing that the evidence could not with reasonable diligence have been produced at
trial and that a different result is probable upon retrial. (People v. Cua (2011) 191
Cal.App.4th 582, 608.) The record does not support either element.
       Most significantly, the record does not support the conclusion that a different
result is probable upon retrial. Even assuming the victim would testify that defendant
did not shoot at him, defendant fails to show that a different result is probable. The
evidence in this case was overwhelming. Deputy Sheriff Hunziker observed defendant
shooting into the occupied vehicle. In addition to Hunziker, another eyewitness
observed the shooting. Hunziker observed defendant throw the gun and then attempt
to flee on foot. Defendant was observed by other deputies and apprehended.
Defendant’s sole defense—mistaken identity—was especially weak given that he was
observed the entire time from the shooting until he was apprehended.


                                           14
6. Penal Code Section 654 Does Not Prohibit Consecutive Sentences for
Defendant’s Shooting at an Occupied Vehicle and Being a Felon in Possession of a
Firearm
       The trial court sentenced defendant to the high term for shooting at an occupied
vehicle. It imposed a consecutive term of 16 months for being a felon in possession of
a firearm. On appeal, defendant argues that the court should have stayed the sentence
for possession of a firearm because his possession was indivisible from his shooting at
an occupied vehicle.4 As we shall explain, we find no error.
       Penal Code section 654, subdivision (a) provides: “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.” Section 654
“prohibits multiple punishment for a single physical act that violates different
provisions of law.” (People v. Jones (2012) 54 Cal.4th 350, 358.)
       An ex-felon who “owns, possesses, or has custody or control of a firearm
commits a felony. Implicitly, the crime is committed the instant the felon in any way
has a firearm within his control.” (People v. Ratcliffe (1990) 223 Cal.App.3d 1401,
1410.) Penal Code section 654 bars multiple punishment for possession of a weapon
by an ex-felon and a shooting offense when the evidence shows “that fortuitous
circumstances put the firearm in the defendant’s hand only at the instant of committing
another offense . . . .” (Ratcliffe, at p. 1412.) In People v. Jones (2002) 103
Cal.App.4th 1139, 1141, the court concluded that “when an ex-felon commits a crime
using a firearm, and arrives at the crime scene already in possession of the firearm, it
may reasonably be inferred that the firearm possession is a separate and antecedent
offense, carried out with an independent, distinct intent from the primary crime.




4     Defendant also argues the court should have stayed his sentence for possession
of ammunition, but the record indicates the court stayed that sentence.


                                            15
Therefore, section 654 will not bar punishment for both firearm possession by a felon
[citation] and for the primary crime of which the defendant is convicted.”
       Here, there was no evidence that defendant possessed the gun only
simultaneously with his shooting at the occupied vehicle. Defendant must have
possessed the weapon before because he exited the vehicle and immediately began
shooting. Ayala described the shooter as exiting the car and shooting at a person in the
other car. In order for defendant to immediately shoot at the occupant of the other
vehicle who had just stopped to ask directions, the only reasonable inference is that he
possessed the gun prior to the shooting. Moreover, it cannot be disputed that
defendant possessed the gun after the shooting as he threw it to the ground when he
attempted to flee. Deputy Sheriff Hunziker observed defendant throw the gun to the
ground, and no contrary evidence was presented.
                                    DISPOSITION
       The judgment is affirmed.




                                                 FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




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