APPEAL from judgments of the Superior Court of Riverside County, Helios J. Hernandez, Judge. Affirmed in part; reversed in part with instructions. (Super. Ct. No. RIF137046).
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
In separate incidents, Tommy Angel Mesa, a gang member, shot and severely wounded two complete strangers. He used the same gun in both incidents, and later was found in possession of the gun and several rounds of ammunition. Mesa was convicted of two counts of assault with a firearm, three counts of being a felon in possession of a firearm, one count of being a felon in possession of ammunition, and two counts of actively participating in a criminal street gang.
With respect to the assault convictions, the jury found true great bodily injury and personal firearm allegations. With respect to one of the assault convictions and one of firearm possession counts, the jury found gang participation allegations true.
Mesa does not challenge his convictions on the substantive counts or the sufficiency of the evidence supporting the enhancements. Nonetheless, Mesa raises a number of sentencing issues. First, he contends, and the Attorney General agrees, that with respect to one of the assault convictions, the trial court erred in imposing the gang enhancement. As Mesa points out, Penal Code*fn2 section 1170.1, subdivsions (f) and (g), prevented the trial court from imposing the gang enhancement along with either the firearm enhancement or the great bodily injury enhancement.
Secondly, he contends the trial court erred in imposing consecutive sentences on the three firearm possession convictions. He argues the record shows he had continuous possession of the firearm and that, in light of that continuous possession, section 654 required that imposition of sentencing be stayed on two of the firearm possession counts.
We agree. A felon's continuous possession of a single firearm does not permit multiple punishments for violation of the statute that prohibits felons from possessing a firearm.
Mesa also argues section 654 prevents separate punishments for assault and for participation in a criminal street gang. We disagree with this contention. The criminal street gang statute punishes conduct and intentions that are separate from the conduct and intentions that give rise to culpability for assault with a firearm.
Finally, Mesa argues he should not have been punished for both possessing a firearm and possessing ammunition. We disagree with this contention as well. Where, as here, a felon has possession of both a firearm and ammunition that is not in the firearm, separate punishments may be imposed.
Accordingly, we reverse Mesa's convictions in part and remand for further proceedings.
The record shows Mesa was a member of the Coroneros set of the Corona Varios Locos criminal street gang.
On the evening of April 27, 2007, Ghalen W. was asleep next to his four-year-old son in the apartment in Corona where he lived with his two other sons and their mother. April 27 was prom night and Ghalen's oldest son Jeron was at home that evening with his prom date. At around 10 p.m., Jeron woke Ghalen up and asked him to go outside with him and his date so that they could meet his date's mother. Jeron told his father a group of guys were hanging around outside the apartment.
Ghalen went outside his apartment and saw a group of five or six Hispanic males, including Mesa. Ghalen told his son and his date to stay near the apartment while Ghalen went to see if the date's mother had arrived. As Ghalen walked toward the street, Mesa confronted him and said: "Why are you walking tough in my neighborhood, Holmes?" Ghalen believed this statement meant Mesa and the others were members of a gang and he was in their territory. Ghalen told Mesa he was not from the area, hoping that would satisfy Mesa. It did not. Mesa responding by saying: "But you're still walking tough in my neighborhood." Ghalen then explained he was just there for his son's prom; Mesa repeated the statement "You're still walking tough in my neighborhood." As Mesa continued walking towards Ghalen, Ghalen remembered one of the doors of his car, which was in front of him, was unlocked. Mesa pulled out a gun, pointed it at Ghalen and began shooting as Ghalen dove into his car. Ghalen heard three shots fired and felt severe pain. Mesa looked in the back window of the car and began running. Ghalen had been shot in the side and the bullet traveled through his body and exited on the left side of his torso.
Two days after Ghalen was shot, on April 29, 2007, Alvin Pierre was riding his bike to a shopping center in Corona. As Pierre rode into the parking lot, he heard Mesa say: "What the fuck are you looking at?" Pierre rode past Mesa, got off his bike near a store and tried to ask Mesa what he had said. Before Pierre could complete a sentence, Mesa pulled out a gun and shot Pierre in the groin. The bullet entered Pierre's left leg, traveled through his scrotum, and exited from his right leg. Pierre's shattered left testicle had to be removed.
Police arrested Mesa in his home on May 30, 2007. Officers found Mesa, wearing a bullet proof vest, hiding in a closet. When Mesa was found, he was wearing an empty gun holster and had a.45 caliber magazine in his front pocket with 10 rounds of.45 caliber ammunition in it. The police also found a handgun in the closet; a ballistics expert testified shell casings found near the scene of the Ghalen and Pierre shootings had been fired from the handgun. Police also found a duffel bag in the closet, and in the duffel bag they found a.22 caliber rifle loaded with seven rounds of ammunition and 46 rounds of additional ammunition.
With respect to the Ghalen shooting, Mesa was charged with attempted murder, assault with a firearm, being a felon in possession of a firearm, and being a participant in a criminal street gang. (Counts 1-4.) With respect to the Pierre shooting, Mesa was charged with similar counts of attempted murder, assault with a firearm, being a felon in possession of a firearm, and being a participant in a criminal street gang. (Counts 5-8.) In addition, with respect to the circumstances which existed at the time of his arrest on May 30, 2007, Mesa was charged with an additional count of being a felon in possession of a firearm (count 9) and one count of being a felon in possession of ammunition (count 10).
All three firearm possession counts identified a.45 caliber handgun as the firearm Mesa unlawfully possessed.
The jury could not reach verdicts on either the Ghalen or Pierre attempted murder counts, and the trial court dismissed those counts pursuant to section 1385.
As to both the Ghalen and Pierre shootings, the jury found Mesa guilty of assault with a firearm, being a felon in possession of a firearm, and participating in a criminal street gang. With respect to his arrest, the jury found Mesa guilty on the third ...