Filed 7/18/13 P. v. Vargas CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B239488

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA087206)
         v.

MIGUEL ANGEL VARGAS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
James B. Pierce, Judge. Affirmed in part, reversed in part and remanded.


         Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.




                                                       ******
       Miguel Angel Vargas appeals from the judgment entered following a jury trial that
resulted in his convictions for assault on a peace officer with a semiautomatic firearm
(Pen. Code, § 245, subd. (d)(2); count 1),1 during which offense he personally used a
firearm (§§ 12022.53, subd. (b), 12022.5, subds. (a) & (d)) and discharged a firearm
(§ 12022.53, subd. (c)), and possession of a firearm by a felon (former § 12021,
subd. (a)(1); count 3)2 and court findings that he had suffered a prior serious felony
conviction (§ 667, subd. (a)(1)), which qualified as a strike under the “Three Strikes” law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d); counts 1 & 3).3
       He was sentenced to prison on count 1 to 39 years, consisting of 14 years, or
double the seven-year middle term for his strike, plus 20 years for the firearm
enhancements and five years for the prior serious felony enhancement. The trial court
imposed the two-year middle term as to count 3 but ordered this sentence to be served
concurrently with the sentence on count 1 pursuant to section 654.
       Appellant contends the evidence is insufficient to support his conviction on
count 1 for assault on Long Beach Police Officer Dedier Reyes with a semiautomatic
firearm and the findings that he personally and intentionally discharged a firearm. He
requested this court perform an independent review of the Pitchess4 hearing conducted by
the trial court to ensure all discoverable information had been disclosed.
       We invited the parties to address these issues: (1) Did the trial court commit
unauthorized sentencing error by failing to impose the mandated sentence under the
Three Strikes law; (2) If so, should the sentence on count 3 be reversed and the matter


1      All further section references are to the Penal Code.
2       As of January 1, 2012, section 12021 was repealed, and the offense of possession
of a firearm by a felon is set forth in section 29800, subdivision (a)(1). (Stats. 2010,
ch. 711 (Sen. Bill No. 1080), § 6, operative Jan. 1, 2012.)

3      During trial, the court granted a defense motion to dismiss count 2 (§ 1118.1).

4      (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
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remanded for resentencing on that count; (3) Is the multiple punishment bar of
section 654 inapplicable to a sentence under the Three Strikes law; (4) Is a consecutive
sentence mandated if that court determines the counts 1 and 3 offenses were “not
committed on the same occasion, and [did] not arise[] from the same set of operative
facts” (§ 667, subd. (c)(6)); and (5) If not, may the trial court exercise its discretion to
impose a consecutive or concurrent sentence on count 3? We have received their
responses.
       We conclude the trial court erred in sentencing appellant on count 3. The court
erred in imposing a concurrent sentence under section 654 and in failing to double the
two-year middle term for appellant’s strike to four years. We remand the matter to that
court with directions to determine whether a consecutive sentence on count 3 of
16 months, or one-third the middle term as doubled for his strike, is mandated under the
Three Strikes law and, if not, to exercise its discretion to impose a consecutive or
concurrent sentence. In all other respects, we affirm the judgment.
                                      BACKGROUND
       On October 16, 2010, appellant attended a birthday party on Cerritos Avenue in
Long Beach. Appellant’s brother, Gerardo, saw a black object bulging from appellant’s
pocket, which led him to believe appellant had a gun. A “couple days before the party,”
appellant had shown Gerardo his black semiautomatic handgun.
       About 7:30 p.m., Long Beach police responded to a report of someone with a gun
at a party in that vicinity. Sergeant Timothy Long and Detectives Jeffrey Conrad and
Richard Armond, who wore jackets marked “police,” parked their vehicle by an alley
close to that location. As they were proceeding on foot down the alley three individuals
approached from the other end. One of the individuals adjusted the clothing around his
waistband, which indicated to Detective Armond that the individual may have a weapon
in his waistband. Upon seeing the officers, the individual made a U-turn and began to
run. Detective Armond gave chase but lost him. He then heard about five or six shots.
Sergeant Long also heard about five to six shots.

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       After uniformed Long Beach Police Officers Dedier Reyes and Rudy Garcia
approached on foot to the intersection of Hellman Street and Cerritos, they received a
dispatch call that the armed person had left the party and he was running towards them.
Looking north on Cerritos, Officer Reyes noticed appellant, who matched the suspect’s
physical description. Appellant had his right hand in his waistband as he ran toward the
officers.
       After looking in the officers’ direction, appellant ran southwest diagonally across
Hellman. Officer Reyes yelled for him to stop and gave chase. Officer Garcia followed.
Appellant looked back at Officer Reyes but continued running until he turned south into
an alley. At the alley entrance, Officer Reyes saw a black gun in appellant’s right hand.
Officer Reyes became fearful when appellant began to turn right, with gun in hand,
towards him.
       After yelling a gun warning to Officer Garcia, Officer Reyes fired once, paused,
and fired again at appellant, who still held his gun. During the shooting, Officer Reyes
did not hear or see appellant fire his own gun at the same time. Officer Reyes believed
he was unable to differentiate the rounds fired, because his own rounds were “very loud”
and prevented him from doing so. Appellant, who no longer held his gun, fell to the
ground.
       After falling, appellant rolled. Turning back toward the officers, appellant reached
at his waistband and grabbed a black object. Officer Garcia yelled at him to turn onto his
stomach. When appellant raised his hand holding the object, Officer Garcia fired two
shots at him. Appellant threw the object further into the alley. Officer Garcia believed it
was a gun but in fact it was a black cell phone.
       After handcuffing appellant, the officers discovered a nine-millimeter casing under
appellant. Neither officer had a nine-millimeter handgun.
       Appellant’s black, semiautomatic nine-millimeter gun was found in the yard of a
house adjacent to the “pretty narrow” alley. Officer Reyes did not see appellant toss the
gun but he had turned away after firing the two shots at appellant. Six spent casings, of

                                             4
which four were .40-caliber and two were nine-millimeter, were recovered. The “‘RP’”
stamped nine-millimeter casing was recovered on a sidewalk near the alley while the
“‘FC’” stamped casing was found in the grass next to the alley. The six casings were
matched to three guns, each of which had been fired twice. The four .40 casings were
from the rounds fired by the officers’ guns. The two nine-millimeter casings were from
appellant’s gun. Appellant’s gun had a chambered round and the magazine contained one
Federal cartridge and four Remington Peters cartridges. To fire the gun, appellant had to
deactivate two safety mechanisms and exert six pounds of force.
       The prosecution’s firearm expert testified that in his experience, if he were the one
being shot at and if he were firing back, he might not hear any other shots because of his
focus on firing his gun and the echo from his own shots. He opined a person could save
his spent cartridges and have them refilled but people who did this usually were hunters
experimenting with specific types of gunpowder. He pointed out that cartridges cost only
$10 for 25 and less for those with reused casings in contrast to the cost of refilling
casings which required machinery costing hundreds of dollars in addition to the cost of
gunpowder and bullets.
       Detectives Gregory Krabbe and Mark McGuire, his partner, who investigated the
shooting, concluded Officers Reyes and Garcia had been shot at.
       Appellant presented evidence to show there were no signs of impact where
appellant’s gun had landed and that there was an absence of burn marks which would
have suggested appellant had fired a gun close to his clothing.
                                       DISCUSSION
I.     Substantial Evidence Supports Count 1 Conviction
       Appellant contends his count 1 conviction for assault with a semiautomatic
firearm on Officer Reyes (§ 245, subd. (d)(2)) is not supported by the evidence, because
“there was insufficient evidence that appellant did an act with a semiautomatic firearm
that by its nature would directly and probably result in the application of force to a
person.”

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       “The law applicable to a claim of insufficiency of the evidence is well settled:
‘“In reviewing [a claim regarding] the sufficiency of the evidence, we must determine
‘whether, after reviewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ [Citation.] ‘[T]he court must review the whole record in the light
most favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’
[Citation.] We ‘“presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.”’ [Citation.] If we determine that a rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt, the due process clause of the United States Constitution is satisfied
[citation], as is the due process clause of article I, section 15, of the California
Constitution [citation].’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
This standard applies to both direct and circumstantial evidence. (People v. Maury
(2003) 30 Cal.4th 342, 396.)
       Appellant suggests it is simply suspicion that he assaulted Officer Reyes with his
nine-millimeter gun, because Officer Reyes merely saw the gun in appellant’s hand and
did not see or hear him fire the gun. He contends Officer Reyes’s lack of perception
cannot be saved by “[t]he fact that two expended [nine-millimeter] casings were later
found, one beneath appellant and another some distance away in the yard of a house on
the other side of the alley not far from the gun” inasmuch as “[t]here are numerous other
plausible explanations for the expended rounds and the location of the gun” (italics
added). Appellant contends that while he was “running with the gun in hand when he
was shot [he] most likely involuntarily fired off a pair of rounds on being hit or as he
attempted to throw the gun away” (italics added).
       We are not persuaded. Appellant’s position is grounded in speculation, which is
not evidence (People v. Mendoza (2000) 24 Cal.4th 130, 174; People v. Kraft (2000) 23

                                               6
Cal.4th 978, 1035 [speculation and speculative inferences not evidence]), and appellant
invites this court to give credence to such speculation over the evidence believed by the
trier of fact.
        Initially, the record reflects that in order to fire the gun, appellant had to have
deactivated two safety mechanisms and exerted six pounds of force. The evidence
therefore refutes his supposition that his gun accidently fired.
        The jury was entitled to find appellant in fact had fired two shots at Officer Reyes
based on the circumstantial evidence of the locations of the two nine-millimeter casings
and appellant’s nine-millimeter gun, all of which were recovered in the general vicinity
of the shooting, and the fact that Sergeant Long and Detective Armond had heard five to
six shots, only four of which were attributable to the guns shot by Officers Garcia and
Reyes. The jury also was entitled to infer that Officer Reyes did not see or hear
appellant’s gun fire two shots, because his focus was on shooting appellant. Also, the
echo from his own shots distracted him from hearing the shots fired by appellant. The
fact that Officer Reyes did not perceive the gunshots fired by appellant does not dispel
the inference that appellant had fired two shots at Officer Reyes.
II.     Substantial Evidence Supports Discharge of Firearm Finding
        Appellant contends the evidence is insufficient to support the jury finding that he
personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). Essentially,
appellant renews his claims above as to why the evidence fails to support his conviction
for assault with a semiautomatic firearm on a peace officer (count 1). He contends
neither Officers Reyes nor Garcia saw or heard appellant fire his gun; the gun could have
accidentally discharged as appellant ran “with the gun in hand when he was shot [and]
most likely involuntarily fired off a pair of rounds on [his] being hit or as he attempted to
throw the gun away”; and “[t]here are numerous other plausible explanations for the
expended rounds and the location of the gun.”




                                                7
       We reject appellant’s contentions as based on improper speculation. Additionally,
substantial evidence, as recounted above, supports the finding that appellant both
personally and intentionally discharged his nine-millimeter gun at Officer Reyes.
III.   No Pitchess Violation Shown
       Appellant contends, and the People concede, he is entitled to review by this court
of the police personnel records to determine whether the trial court abused its discretion
by failing to turn over to the defense all discoverable materials in those records. No
abuse occurred.
       On April 8, 2011, the trial court conducted an in-camera hearing on appellant’s
Pitchess motion for discovery of any materials in the personnel records of Officer Reyes
pertaining to complaints of excessive force.5 Of the 16 reports reviewed, the trial court
ordered discovery as to six, because they pertained to “either excessive force or . . .
directly to falsifying official police records” and denied discovery as to the remaining
10 reports.
       “Trial courts are granted wide discretion when ruling on motions to discover
police officer personnel records. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795,
827.) “To obtain relief, . . . a defendant who has established that the trial court erred in
denying Pitchess discovery must also demonstrate a reasonable probability of a different
outcome had the evidence been disclosed. [Citations.]” (People v. Gaines (2009) 46
Cal.4th 172, 182–183.)
       We have reviewed the sealed in-camera Pitchess hearing transcript.6 Although the
personnel records are not before us, the trial court set forth sufficiently a summary of the



5      Appellant’s Pitchess motion directed at Officer Garcia was for complaints of
excessive force or false police reports. The trial court found none of the five reports
produced for Officer Garcia were relevant and declined to order any information
produced.

6      This court ordered the trial court to transmit to this court a copy of the sealed
reporter’s transcript of the in-camera Pitchess hearing and copies, under seal, of the peace
                                               8
10 records for which discovery was not ordered to enable this court to determine these
records are irrelevant to issues of excessive police force and falsifying official police
records. The trial court therefore did not abuse its discretion in denying discovery.
IV.    Reversal of Count 3 Sentence and Remand Warranted
       The jury found appellant guilty as charged in count 3 of possession of a firearm by
a felon (former § 12021, subd. (a)(1)). Appellant admitted, and the trial court found true,
the allegation that he had suffered a strike under the Three Strikes law as to count 3. The
court declined to exercise its discretion to dismiss the strike pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497.
       In sentencing appellant on count 3, the trial court selected the two-year middle
term and ordered that term to be served concurrently with the sentence imposed on
count 1 pursuant to section 654, because “it’s one and the same act of both possession
and using it in the assault on the peace officer in count one.”7
       Both appellant and the People agree the trial court committed unauthorized
sentencing error by failing to double appellant’s two-year term to four years for the strike
prior. We concur.
       The parties disagree regarding the applicability of the multiple punishment bar of
section 654. Appellant’ position is the multiple punishment bar for a single act under
section 654 is applicable, because the trial court found counts 1 and 3 were based on the

officers’ personnel records reviewed at the hearing if those records had been retained by
the trial court. We received only the sealed reporter’s transcript and have augmented the
record with this sealed transcript and the transcript of other proceedings on April 8, 2013.

7      A conflict in the record exists between the clerk’s transcript recital that the court
stayed the sentence on count 3 and the recitals in the reporter’s transcript that the court
ordered the sentence on count 3 to be served concurrently. The judgment consists of the
oral pronouncement of sentence. Unless the record clearly indicates the reporter’s
transcript does not in fact correspond to the sentence orally pronounced by the trial court,
the recitals in that transcript trump any contrary recitals in the clerk’s transcript. In this
instance, the recitals in the reporter’s transcript control. (See, e.g., People v. Lawrence
(2009) 46 Cal.4th 186, 194, fn. 4; People v. Harrison (2005) 35 Cal.4th 208, 226; People
v. Price (2004) 120 Cal.App.4th 224, 242.)
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same assaultive conduct and consecutive sentencing under the Three Strikes law is
mandated only where the underlying offenses were “not committed on the same occasion,
and not arising from the same set of operative facts” (§ 667, subd. (c)(6)).
       The People contend section 654 is inapplicable under the circumstances here,
because “where possession of a gun is ‘“antecedent [to] and separate” from’ its use in
assaulting a peace officer, section 654 does not apply” and point out the gist of Gerardo’s
testimony was that appellant already carried the gun at the party before he assaulted
Officer Reyes. 8
       Appellant and the People each concede on remand, if the trial court were to
determine that the offenses in counts 1 and 3 were committed on the same occasion or
arose from the same set of operative facts, then a consecutive sentence on count 3 is not
mandated under the Three Strikes law. (Cf. § 667, subd. (c)(6).) They also acknowledge
that if this were the case, the trial court retains discretion to impose a consecutive or
concurrent sentence on count 3. Appellant contends the court then may “employ
section 654 under that section’s own standard.”
       Initially, we conclude the trial court erred in imposing a concurrent sentence
pursuant to section 654. The appropriate procedure for applying the multiple punishment
bar of section 654 is to stay imposition of the sentence, not to impose a concurrent
sentence. (People v. Benson (1998) 18 Cal.4th 24, 38–40.)
       We further conclude the court erred in failing to determine whether a consecutive
sentence on count 3 is mandatory under the Three Strikes law, and, if not, to exercise its
discretion to impose a consecutive or concurrent sentence on that count. Under the Three
Strikes law, a consecutive sentence is mandatory if the felony offenses were “not
committed on the same occasion, and not arising from the same set of operative facts”
(§ 667, subd. (c)(6)). In contrast, “where a sentencing court determines that two or more

8      The People’s reliance is misplaced on Gerardo’s testimony that appellant showed
him the gun a couple of days before the assault on Officer Reyes. The jury found
appellant guilty of possession of a firearm by a felon as charged in count 3 of the
information, which alleged the date of possession to be the same date as the assault.
                                             10
current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from
the same set of operative facts’ . . . consecutive sentencing is not required under the
Three Strikes law, but is permissible in the trial court’s sound discretion.” (People v.
Lawrence (2000) 24 Cal.4th 219, 233; see generally, §§ 669, subd. (a), 1170.1, subd. (a).)
       It is incumbent on the trial court to decide whether the underlying felonies in
counts 1 and 3 were sufficiently separated in time and space such that they were not
committed “‘on the same occasion.’” We note appellant, a felon, possessed the gun
about two hours before the assault on Officer Reyes, and such possession was at a
location different from the location of the assault. Additionally, the court must decide
whether these felonies arose from “‘the same set of operative facts,’” which
determination involves an inquiry into whether or not the felonies share “common acts or
criminal conduct that serves to establish the elements of the current felony offenses” and
a weighing of “the extent to which common acts and elements of such offenses unfold
together or overlap, and the extent to which the elements of one offense have been
satisfied, rendering that offense completed in the eyes of the law before the commission
of further criminal acts constituting additional and separately chargeable crimes.”
(People v. Lawrence, supra, 24 Cal.4th 219, 229, 233; cf. People v. DeLoza (1998) 18
Cal.4th 585, 599; People v. Garcia (2008) 167 Cal.App.4th 1550, 1566–1567.) In this
regard, we observe the offense of possession of a firearm by a felon had been completed
before appellant assaulted Officer Reyes. The assault offense was additional to the
possession offense, and both offenses were separately chargeable. The commission of
these offenses did not “unfold” nor did they “overlap,” because appellant’s possession of
the gun at the party was wholly unconnected in time, space, and intent with his
possession of the gun in assaulting Officer Reyes.
       The parties do not address the matter of how the consecutive sentence, if
mandatory, is to be calculated. In making this calculation, we are guided by People v.
Nguyen (1999) 21 Cal.4th 197, in which our Supreme Court concluded, in the context of
a second striker, that the provision of section 1170.1, subdivision (a), which fixes the

                                             11
consecutive subordinate terms at one-third the middle term, applies to a mandatory
consecutive sentence under the Three Strikes law. Noting under the Three Strikes law,
“[t]here shall not be an aggregate term limitation for purposes of consecutive sentencing
for any subsequent felony conviction” (§§ 667, subd. (c)(1), 1170.12, subd. (a)(1)), the
Court explained this provision of section 1170.1 simply “defines the length of individual
subordinate terms” and thus, is not an aggregate term limitation. (People v. Nguyen,
supra, at pp. 205, 207.) Accordingly, the term of appellant’s consecutive sentence on
count 3, if mandated, shall be 16 months, or one-third of four years, which is double the
two-year middle term for his strike.
         Lastly, we conclude section 654 is inapplicable to appellant’s sentences under the
Three Strikes law. Section 654 proscribes multiple punishment for an indivisible course
of conduct which is incident to a single intent and objective (Neal v. State of California
(1960) 55 Cal.2d 11, 19). The trial court erroneously concluded such a situation existed
here because the same conduct underlies appellant’s conviction for possession of a
firearm by a felon and his conviction for assault with a semiautomatic firearm on Officer
Reyes. The record establishes that prior to assaulting Officer Reyes, appellant already
was in possession of the gun and he did not possess the gun simply for the purpose of
assaulting Officer Reyes. Section 654 therefore does not bar separate punishment for
these offenses. (See, e.g., People v. Bradford (1976) 17 Cal.3d 8, 22; People v. Mesa
(2012) 54 Cal.4th 191, 193–195; People v. Jones (2002) 103 Cal.App.4th 1139, 1142–
1149.)




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                                      DISPOSITION
       The sentence on count 3 is reversed and the matter is remanded to the trial court
with directions to resentence appellant on count 3 consistent with the views expressed in
this opinion. In all other respects, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                             _____________________, J. *
                                                    FERNS
We concur:




____________________________, P. J.
       BOREN


____________________________, J.
       CHAVEZ




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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