Filed 6/17/15 P. v. Torres 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                          B256103

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA123230)
         v.

JOSEPH R. GUEVARA TORRES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Henry J.
Hall, Judge. Affirmed.


         Kevin D. Sheehy, 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, Paul M. Roadarmel, Jr. and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Joseph R. Guevara Torres appeals from a judgment which sentences him to 25
years in state prison for two counts of assault with a firearm upon a peace officer and one
count of possession of a firearm by a felon. Torres contends the sentence as to the
possession charge should have been stayed pursuant to Penal Code1 section 654 because
his possession of the firearm constituted a single act with the assault with a firearm. The
evidence supports a finding that Torres’ possession of the firearm preceded and was
separate from his use of it to assault the officers. We affirm the judgment.
                                         FACTS
       On December 28, 2011, Deputies Victor Fernandez and Joseph Esqueda of the Los
Angeles County Sheriff’s Department were patrolling in the city of Bellflower in separate
vehicles when they each received a call at 4:00 p.m. regarding a “suspicious” person
looking into parked vehicles on Pimenta Avenue. The suspect was described as a male
Hispanic in his 20’s wearing a gray hooded sweatshirt with tan shorts. Deputy Esqueda
spotted someone—later identified as Torres—fitting that description standing on the front
lawn of a property on Pimenta Avenue. He stopped his patrol car to investigate. When
he asked Torres to approach the car, Torres grabbed his left eye and told him someone
had taken his eye. Torres then fled towards Lakewood Boulevard, cutting through an
adjacent parking lot. Deputy Esqueda immediately followed him in the patrol car on to
Lakewood Boulevard, but lost sight of Torres when he ran down a driveway.
       Deputy Esqueda continued his search and eventually saw Torres standing on the
porch of another home on Pimenta Avenue. Deputy Esqueda recognized Torres, even
though he had taken off the gray hooded sweatshirt. Deputy Esqueda radioed for backup
and Deputy Fernandez responded. Torres again fled when Deputy Fernandez arrived on
the scene. Deputy Fernandez chased him on foot and Deputy Esqueda drove after him.
       Shawn Mauinatu lives on the corner of Oak Street and Pimenta Avenue. He saw
Torres running on Pimenta Avenue, carrying a “silver and black” gun in his right hand.
Mauinatu saw Torres run behind a parked van. Because his dog was barking and “getting

1      All further section references are to the Penal Code unless otherwise specified.

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crazy,” Mauinatu took him into the house. When he walked back outside, he heard
multiple gunshots.
       Deputy Fernandez also noticed Torres had a gun as he chased him on foot and
immediately took cover behind a van. Deputy Fernandez opened fire when he saw
Torres point the weapon at him. Meanwhile, Deputy Esqueda passed Torres in his patrol
car and demanded he stop. Torres ignored him and Deputy Esqueda saw him hold a gun
in his right hand. Deputy Esqueda fired at Torres. Believing Torres returned fire, Deputy
Esqueda continued to shoot at Torres until he fell backwards and no longer posed a
threat. Torres sustained gunshot wounds to his left arm, left buttock, left knee, thigh,
finger, and left heel. Bullet fragments were also found in his spine.
       A glove containing 10 live .38 Special rounds was found inside Torres’ right
pocket. A gun was found approximately five to eight feet from him. The gun was
identified as a .38 Special revolver with a capacity of five rounds, three of which had
been fired. A bullet recovered from the scene was determined to have been fired from
Torres’ gun.
       Torres was charged with two counts of attempted murder of a peace officer
(counts 1 & 2; §§ 664/187, subd. (a)), two counts of assault with a firearm upon a peace
officer (counts 3 & 4; § 245, subd. (d)(1)), and one count of possession of a firearm by a
felon (count 5; § 12021, subd. (a)(1)). It was further alleged as to counts 1 through 4 that
Torres personally and intentionally discharged a firearm and personally used a firearm.
(§ 12022.53, subds. (b)-(c).)
       Trial began on April 5, 2013, which ended in a mistrial on the first four counts due
to a hung jury. The jury returned a guilty verdict on count 5. In a retrial, the jury
returned guilty verdicts on counts 3 and 4, but deadlocked on the attempted murder
charges. The jury further found true the allegation that Torres personally used a firearm
within the meaning of sections 12022.53, subdivision (b) and 12022.5, subdivisions (a)
and (d), but found not true the allegation that Torres personally and intentionally
discharged a firearm within the meaning of section 12022.53, subdivision (c). The



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attempted murder charges were dismissed by the trial court and the People chose not to
retry them.
       At sentencing, the trial court denied probation and sentenced Torres to 24 years in
state prison consisting of: the upper term of eight years on count 3 plus 10 years pursuant
to section 12022.53, subdivision (b); two years (one-third the midterm of six years) on
count 4, plus three years four months pursuant to section 12022.53, subdivision (b) (one-
third the midterm of 10 years); and eight months for count 5. Additional fines and
assessments were imposed and Torres was awarded 967 days of custody credit. Torres
timely appealed.
                                      DISCUSSION
       Torres argues on appeal the sentence for the possession charge should be stayed
under section 654 because it is an impermissible double punishment to the firearm-
enhanced sentences for the assault charges. We disagree.
       Section 6542 forbids multiple punishment of the same act. Punishment for an act
is limited to the sentence that provides the longest potential imprisonment. Section 654
“is intended to ensure that defendant is punished ‘commensurate with his culpability.’ ”
(People v. Harrison (1989) 48 Cal.3d 321, 335.) Thus, section 654 applies where a
single act underlies the charged crimes and “has been extended to cases in which there
are several offenses committed during ‘a course of conduct deemed to be indivisible in
time.’ ” (Ibid.) “It is defendant’s intent and objective, not the temporal proximity of his
offenses, which determine whether the transaction is indivisible.” (Ibid.) If the
defendant had only a single intent and all of the offenses were incidental to that one
objective, he may be punished only once. If, on the other hand, he harbored multiple
criminal objectives, he may be punished for each statutory violation “ ‘even though the




2      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. . . .”

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violations shared common acts or were parts of an otherwise indivisible course of
conduct.’ ” (Ibid.)
        “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.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v.
Petronella (2013) 218 Cal.App.4th 945, 963-964.) The accepted “procedure is to
sentence defendant for each count and stay execution of sentence on certain of the
convictions to which section 654 is applicable.” (People v. Miller (1977) 18 Cal.3d 873,
886.)
        A number of cases have addressed substantially similar facts. In People v. Jones,
supra, 103 Cal.App.4th 1139, for example, the defendant fired several gunshots at his ex-
girlfriend’s home. The trial court imposed sentences for both shooting at an inhabited
dwelling and for possession of a firearm by a felon. (Id. at p. 1142.) The defendant
challenged his sentence on the ground his possession of the gun was incidental to and
simultaneous with the primary offense of shooting at an inhabited dwelling. The
appellate court disagreed, holding, “[w]hen 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. Therefore, [Pen. Code] section
654 will not bar punishment for both firearm possession by a felon [Pen. Code,] (§
12021, subd. (a)(1)) and for the primary crime of which the defendant is convicted.”
(People v. Jones, supra, 103 Cal.App.4th at p. 1141; see also People v. Garcia (2008)
167 Cal.App.4th 1550; People v. Ratcliff (1990) 223 Cal.App.3d 1401.)
        In reaching its decision, the court explained, “ ‘ “Whether a violation of section
12021, forbidding persons convicted of felonies from possessing firearms concealable
upon the person, constitutes a divisible transaction from the offense in which he employs
the weapon 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,

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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.” ’ ” (People v. Jones, supra, 103 Cal.App.4th at p. 1143, fn. omitted.)
       We are persuaded by the analysis in People v. Jones. Substantial evidence
supports an inference that Torres’ possession of the firearm was distinctly antecedent to
and separate from his assault on the deputies. It is reasonable to infer from the fact that
Torres attempted to flee that Torres already had the gun when Deputy Esqueda first
attempted to detain him. There is no evidence he retrieved the gun afterwards. Deputy
Esqueda testified he did not observe Torres dispose of anything other than the gray
sweatshirt and he never saw Torres discard anything. Both officers and Mauinatu saw
Torres with a gun in his hand. The gun was later determined to have been fired at least
three times, with one of the bullets found nearby. Live ammunition was found inside
Torres’ pockets. This is not a case where the evidence clearly shows the defendant’s
possession of the gun was simultaneous to its use. (See e.g., People v. Venegas (1970) 10
Cal.App.3d 814 [defendant obtained the gun during a struggle moments before the
shooting]; People v. Bradford (1976) 17 Cal.3d 8 [defendant wrested the gun away from
a police officer].)
       Nonetheless, Torres contends there is no evidence he possessed a firearm “until
after he had discarded his hooded sweatshirt in the bushes at, and left the porch of, 16602
Pimenta and had run to the corner of Pimenta and Oak Street where civilian Mauinatu
saw him running and holding a firearm; neither Deputy Fernandez nor Deputy Esqueda
saw appellant holding a firearm until later . . . .” Further, the jury found not true the
additional allegation that Torres personally and intentionally discharged a firearm.
Instead, the jury merely found Torres had personally used a firearm while committing
these offenses. The trial court defined the phrase “personally uses” to the jury as either
displaying the weapon in a menacing manner, hitting someone with the weapon, or firing
the weapon. Torres argues the jury’s findings inevitably lead to the conclusion that
Torres “personally use[d]” the firearm by displaying it in a menacing manner. Thus,

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Torres asserts the single act of possessing the firearm underlies all three counts and
warrants application of section 654.
       Torres relies on the California Supreme Court’s decision in People v. Jones (2012)
54 Cal.4th 350 (Jones), to support his argument. There, the high court concluded section
654 prohibited multiple punishment for possession of a firearm by a felon, carrying a
readily accessible concealed and unregistered firearm, and carrying an unregistered
loaded firearm in public. (Id. at p. 352.) Although there was evidence that the defendant
had the gun three days prior to his arrest, the jury clearly convicted the defendant of each
crime due solely to his possession of the gun in his car when arrested, not on any
antecedent possession. Defendant had the gun in his car when he was arrested, which
meant he both carried it and possessed it. (Id. at p. 353.)
       The facts presented to the California Supreme court in Jones are distinguishable
from the facts in this case, however. Indeed, the California Supreme Court cited to the
Court of Appeal decision in People v. Jones, supra, 103 Cal.App.4th at p. 1139, and
noted that such “cases concerning how section 654 applies to a defendant who is
convicted of possession of a firearm by a felon and of committing a separate crime with
that firearm” “concern a very different situation, and we do not intend to cast doubt on
them.” (Jones, supra, 54 Cal.4th at p. 358, fn. 3.)
       As discussed above, this is not a case where Torres’ possession of the gun
constituted a single act with his use of it. A reasonable inference can be made from the
circumstances surrounding his initial encounter with Deputy Esqueda that he possessed
the gun prior to his use of it to assault the officers. That no one saw him with the gun
prior to Mauinatu is not dispositive. Neither is the jury’s finding that Torres did not
personally and intentionally discharge a firearm dispositive of, or even relevant to,
whether Torres possessed the firearm prior to the gun battle with the deputies. Even if
we accept Torres’ interpretation of the jury’s findings, that he only displayed the firearm
in a menacing manner, that finding does not address his prior possession of the firearm.




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                                 DISPOSITION
     The judgment is affirmed.


                                               BIGELOW, P.J.
We concur:


                  FLIER, J.




                  GRIMES, J




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