Filed 6/25/14 P. v. Guerrero CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR




THE PEOPLE,                                                             B249729

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. PA074183)
         v.

MANUEL GUERRERO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
David W. Stuart, Judge. Affirmed.
         Joy A. Maulitz, 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, Chung Mar and Jessica C. Owen,
Deputy Attorneys General, for Plaintiff and Respondent.
                                   INTRODUCTION


       A jury convicted defendant Manuel Guerrero of discharging a firearm with gross
negligence (Pen. Code, § 246.3, subd. (a)1 (count 1), carrying a loaded firearm (§ 25850,
subd. (a)) (count 2), and possession of a firearm by a felon with prior convictions
(§ 29800, subd. (a) (count 3). Guerrero admitted five prior conviction (alleged pursuant
to § 667.5, subd. (b)). The court sentenced Guerrero to a total of seven years and eight
months in state prison, consisting of seven years as to count 1 (a three-year base term
plus one year for each of the prior convictions, with two prior convictions merging into
one for sentencing purposes (§ 667.5, subd. (b)); plus an eight-month sentence on count
2, to run consecutively to the sentence in count 1. The court imposed a 16-month
sentence on count 3 but ordered the sentence stayed pursuant to section 654.
       On appeal, Guerrero contends that there was insufficient evidence to support his
conviction on count 2 of carrying a loaded firearm, and that even if we disagree, the
sentence on count 2 should be stayed pursuant to section 654 because there was no
evidence of possession of a gun separate from his discharging a gun. Because we
disagree with both contentions, we affirm.


                 FACTUAL AND PROCEDURAL BACKGROUND


       Rosalinda Fuentes and her boyfriend, Pedro Lopez, rented one bedroom in a
five-bedroom house in Arleta. About 15 other people occupied the home. On the
evening of July 27, 2012, one of their housemates, Brenda Nuñez, was having a party in
the back of the house and the backyard. Fuentes and Lopez were in their room along
with their young daughter. Sometime after midnight, Fuentes and Lopez looked out their
window, which faced out the front of the house, and saw several people leaving the party.
A moment later, they saw Nuñez, Guerrero, and a woman named Brittany walking out of
the front of the house to the end of the driveway. The three stood talking for a moment,

1      All further statutory references are to the Penal Code.

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then Guerrero “pulled out” or “brought out” a gun and fired it three times off to the side.
Fuentes grabbed her daughter and threw herself onto the ground. Lopez called the police.
       The police arrived about 10 to 15 minutes later. Los Angeles Police Officer Keith
Crawford, assigned to the Mission Division’s Gang Enforcement Detail, searched the
scene for evidence. He found three spent bullet casings in the area where Guerrero had
been standing when he fired the gun. Lopez identified Guerrero as the shooter at the
scene that night.
       The police showed Lopez a photographic six-pack lineup two days after the
incident. He chose Guerrero’s photograph but said he was not positive that the
photograph depicted the shooter.
       Dr. Mitchell Eisen testified as an expert on eyewitness identification for the
defense.
       This timely appeal followed.


                                      DISCUSSION


I.     Substantial Evidence Supported the Conviction of Carrying a Loaded
       Firearm
       A.     Standard of Review
       “In reviewing a claim of insufficiency of the evidence, we review the record to
determine whether it contains substantial evidence from which a reasonable trier of fact
could conclude that the defendant was guilty beyond a reasonable doubt. (People v.
Johnson (1980) 26 Cal.3d 557, 578.) The test is whether the trier of fact’s conclusions
are supported by substantial evidence, i.e., evidence that is reasonable in nature, credible,
and of solid value. (Id. at p. 577.) We consider the evidence in a light most favorable to
the judgment and draw reasonable inferences in support of the judgment. (People v.
Pensinger (1991) 52 Cal.3d 1210, 1236-1237.)” (People v. McElroy (2005) 126
Cal.App.4th 874, 881.)




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       B.     Analysis
       Guerrero contends that there was no substantial evidence introduced at trial to
establish that he “carried” a firearm as required to satisfy the elements of count 2,
carrying a loaded firearm. (§ 25850, subd. (a).) He argues there was “no evidence that
he transported it from one place to another, even for one step.”
       Section 25850, subdivision (a) provides in relevant part that “[a] person is guilty
of carrying a loaded firearm when the person carries a loaded firearm on the person or in
a vehicle while in any public place or on any public street.” Guerrero contends that there
was no evidence that he had the gun on his person before he fired it. He speculates that
“[w]hile the gun may have been in appellant’s clothing before he ‘pulled it out,’ it is
entirely possible that it was in his backpack or some other type of bag, or in Nuñez’s or
Brittany’s hand or bag, or elsewhere. [Citation.] There simply was no proof that the
firearm was on appellant’s person when he pulled it out to fire it.” We disagree.
       “‘“An appellate court must accept logical inferences that the jury might have
drawn from the evidence even if the court would have concluded otherwise.
[Citations.]”’ (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)” (People v. Solomon
(2010) 49 Cal.4th 792, 811-812.) Fuentes and Lopez testified they watched Guerrero
walk out of the house and, as he talked with the others, he “pulled out” a gun. The jury
naturally would have drawn the inference from the testimony that Guerrero “pulled out”
or “brought out” a gun from his person. Indeed, it would be entirely speculative to infer
otherwise. There was substantial evidence to support Guerrero’s conviction on count 2,
and we therefore affirm the conviction.


II.    The Court Was Not Required to Stay the Sentence on Count 2
       Guerrero further contends that his sentence on count 2 should have been stayed
pursuant to section 654 “because the carrying of the loaded firearm was not distinctly
separate from and antecedent to the discharge of the firearm already punished in
Count 1.” We disagree.



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       Section 654, subdivision (a) provides in relevant part that “[a]n 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.”
       “It is established law that section 654 does not interdict multiple prosecutions
where a single act may constitute more than one crime; however, it does forbid the
imposition of multiple punishment on convictions growing out of a single criminal act.
[Citations.] ‘“Section 654 has been applied not only where there was but one ‘act’ in the
ordinary sense . . . but also where a course of conduct violated more than one statute and
the problem was whether it comprised a divisible transaction which could be punished
under more than one statute within the meaning of section 654.” [Citation.] [¶] Whether
a course of criminal conduct is divisible and therefore gives rise to more than one act
within the meaning of section 654 depends on the intent and objective of the actor. If all
of the offenses were incident to one objective, the defendant may be punished for any one
of such offenses but not for more than one.’ (Neal v. State of California (1960) 55 Cal.2d
11, 19, cert. denied 365 U.S. 823; accord People v. Bauer (1969) 1 Cal.3d 368, 376, and
cases cited.)” (People v. Venegas (1970) 10 Cal.App.3d 814, 820-821 (Venegas).)
       Guerrero argues that the evidence here supports only a finding of a single criminal
act, his firing the gun, and that there was no evidence of his possessing the gun at any
other time, or of his carrying the gun for a different purpose. Relying on the recent
Supreme Court case of People v. Jones (2012) 54 Cal.4th 350, Guerrero argues that “[i]n
cases like this one, in which there is no evidence of ‘a possession distinctly antecedent
and separate from the primary offense,’ and there is no evidence that there was any
objective for the carrying of the gun other than the firing already punished under another
count, multiple punishment is improper under section 654.” In Jones, the Supreme Court
held “that a single possession or carrying of a single firearm on a single occasion may be
punished only once under section 654.” (Id. at p. 357.) The court explained: “Section
654 prohibits multiple punishment for a single physical act . . . . [¶] We recognize that
what is a single physical act might not always be easy to ascertain. In some situations,


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physical acts might be simultaneous yet separate for purposes of section 654.” (Id. at
p. 358.) In Jones, the court found that the defendant had been erroneously convicted of
and sentenced for three crimes (possession of a firearm by a felon, carrying a readily
accessible concealed and unregistered firearm, and carrying an unregistered loaded
firearm in public), due to his being caught with a loaded and concealed gun in his car on
one occasion, not due to any antecedent possession. (Id. at pp. 359, 360.) The court
noted that one Penal Code statute criminalized possessing the firearm, while the two
others criminalized carrying it; however, under the facts of that case, the possession and
the carrying were the same act. (Id. at p. 359.)
       Guerrero acknowledges that “[p]ossession of a gun distinctly antecedent and
separate from the primary offense committed with that gun justifies punishment on both
crimes. (People v. Ratcliff [(1990)] 223 Cal.App.3d [1401,] 1408.) Section 654 does not
apply, and double punishment is allowed, therefore, where evidence shows that the
defendant arrived at the scene of his or her primary crime already in possession of the
firearm. (People v. Jones [(2002)] 103 Cal.App.4th [1139,] 1145.)” However, he argues
that the present situation is instead one involving multiple punishment in contravention of
section 654 for possession of a gun and an offense involving the firing of the gun, as
occurred in Venegas, supra, 10 Cal.App.3d 814. There, witnesses heard shots, and then
saw the defendant holding a gun. The court found that “the evidence show[ed] a
possession only at the time defendant shot [the victim]. Not only was the possession
physically simultaneous, but the possession was incidental to only one objective, namely
to shoot [the victim].” (Id. at p. 821.)
       Guerrero asserts that “[a]s in Venegas, there was no evidence in the present case
that appellant carried the gun before he shot it, nor any evidence that he had any objective
other than the shooting already punished in the sentence on Count 1. No one testified
that appellant brought the gun to the party or to the house, or that he had it prior to the
moment that he shot it. There was no evidence that he physically carried the gun from
one location to another.” He argues that “[t]here is no inference to be made, from the



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evidence here, that appellant’s carrying of the gun continued before and/or after the
shooting.”
       We conclude, however, that the jury was free to infer from the evidence that
Guerrero had been carrying the gun on his person before he fired it, and continued to
carry the gun after he fired it. The witnesses saw him walk out from the house, down the
driveway, then “pull out” the gun and fire it. Punishment for counts 1 and 2 was
therefore appropriate. (See People v. Jones, supra, 103 Cal.App.4th at p. 1145 [double
punishment allowed where evidence shows defendant arrived at scene of his or her
primary crime already in possession of firearm].)


                                     DISPOSITION


       The judgment of conviction is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EDMON, J.*

We concur:




       EPSTEIN, P. J.




       MANELLA, J.


*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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