Filed 12/2/14 P. v. Bonilla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL BONILLA,

Defendant and Appellant.

 B249622

 (Los Angeles County

 Super. Ct. No. BA399015)

APPEAL from a judgment of the Superior Court of Los Angeles County. Henry J. 

Hall, Judge. Affirmed with directions.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney 

General, Margaret E. Maxwell and Peggy Z. Huang, Deputy Attorneys General, for 

Plaintiff and Respondent.

_________________________
2

A jury convicted appellant Manuel Bonilla of six felony counts: First degree 

murder (Pen. Code, § 187, subd. (a), count 1);1possession for sale of methamphetamine 

(Health & Saf. Code, § 11378, count 2); possession for sale of cocaine (Health & Saf. 

Code, § 11351, count 3); possession for sale of cocaine base (Health & Saf. Code, 

§ 11351.5, count 4); and possession of a firearm by a felon (§ 29800, subd. (a)(1), counts 

5 & 6). The jury also found true the allegations in count 1 that appellant personally used 

and discharged a firearm causing great bodily injury and death within the meaning of 

section 12022.53, subdivisions (b), (c) and (d). 

Appellant was sentenced to a total of 57 years to life in state prison, calculated as 

follows: On count 1, 25 years to life for murder plus 25 years to life for the greatest 

firearm enhancement (§ 12022.53, subd. (d)); on count 2, a consecutive eight months; on 

count 3, a consecutive one year; on count 4, a consecutive four years; on count 5, a 

consecutive eight months; and on count 6, a consecutive eight months. 

Appellant contends (1) there was insufficient evidence to support some of his 

convictions, (2) the trial court erroneously instructed the jury; (3) section 654 precluded 

imposition of the consecutive sentence on count 5; and (4) he is entitled to one extra day 

of presentence custody credit. While we agree with the final contention, we find no merit 

to the others.

FACTS

Prosecution Case

The Murder

On May 8, 2012, between 12:45 a.m. and 1:00 a.m., the body of Rene Miranda 

(the victim) was found by a driver lying on the street at the corner of Normandie Avenue 

and 20th Street in Los Angeles. Autopsy reports revealed the cause of death was multiple 

gunshot wounds. The victim was shot in the right jaw, right upper back, and right hand.2

 

1 All further statutory references are to the Penal Code unless otherwise indicated.

2

Two of the three gunshot wounds were fatal. 
3

A large caliber bullet was recovered from his body.3The victim had marijuana and 

cocaine in his system, but the drugs did not contribute to his death.

Background Events 

Appellant was a drug dealer for the Harpys gang and the victim had a drug habit. 

During the month of January 2012, calls on appellant’s phones were wiretapped pursuant 

to a court order. Portions of recorded calls were played for the jury. In the first 

recording, the victim told appellant he would pay extra money on his drug debt.

Appellant demanded that he be paid immediately because he had not told “the homie,”

who thought the victim had already paid for the drugs. In the second recording, the 

victim told appellant that he had not paid because he got off work late. He agreed to pay 

extra and said it would be the last time appellant had to cover for him. In the third 

recording, the victim told appellant that he was fired from his job, but would go to 

appellant’s house to pay. 

The parties stipulated that on May 7, 2012, the day before the murder, appellant 

was at the Los Angeles Gun Range, a shooting range for target practice. All visitors were

required to complete a questionnaire about their firearm experience before being 

permitted to shoot at the range. Appellant completed the questionnaire. When a group of 

people came to the range together, their questionnaires were stapled together. One of the 

questionnaires stapled to appellant’s indicated that one of his companions bought 50 

rounds of .40-caliber bullets for a handgun. There was no requirement that bullets 

purchased at the range had to be fired at the range. 

The victim’s relatives testified that between April 28 and May 7, 2012, he acted 

nervous, kept looking over his shoulder, and asked to borrow $100. 

Investigation

The victim’s cell phone was recovered at the scene. His wife confirmed that a 

number on the phone belonged to appellant, who was known as “Chito.” Cell phone 

records for appellant’s cell phone number indicated that the victim called appellant’s cell 

 

3

The parties stipulated that the shell casings and expended bullets recovered at the 

scene and the bullet in the victim’s body were .40-caliber ammunition.
4

phone eight times between 12:33 a.m. and 12:43 a.m. on May 8, 2012, just before he was 

killed. Four of the calls were answered by voicemail and the remaining calls were 

unanswered. Appellant’s cell phone connected to the same tower for all eight calls and 

did not leave the tower’s mile and one-half range. The crime scene was within the range 

of the cell phone tower.

On the day of the murder, Los Angeles Police Department (LAPD) Detectives 

Matthew Gares and Herman Frettlohr went to appellant’s apartment. Detective Gares 

saw a shadow at the bottom of the door and heard what sounded like someone running 

through the apartment. Appellant’s girlfriend opened the door. Detective Gares saw 

drugs in the apartment and an open window. He looked out the window and saw 

appellant standing near a wooden ladder. When Detective Gares asked appellant to come 

inside the apartment, appellant said “yeah,” then fled. 

The detectives searched the area outside the apartment building and found a 

backpack with the “Angry Birds” logo on it. The backpack contained $368 in cash, a 

digital scale, and bags of drugs. The parties stipulated that the drugs recovered included 

117.7 net grams of methamphetamine; 1.9 net grams of powder cocaine consisting of 11 

individually wrapped bags; 78.4 net grams of crack cocaine consisting of nine 

individually wrapped bags; 1.4 grams of crack cocaine; 14.8 grams of powder cocaine; 

3.5 grams of methamphetamine; and 0.14 grams of methamphetamine. Detective 

Frettlohr explained that these were large quantities of methamphetamine, crack cocaine, 

and powder cocaine. A usable amount of methamphetamine and crack cocaine was 

dependent on a user’s tolerance, but could be less than 0.03 grams. The amount of drugs 

necessary for filing criminal charges was 0.03 grams.

Detective Timo Illig searched appellant’s apartment and found the following: a 

closed circuit surveillance monitor in the bedroom; a nine-millimeter handgun in the 

bedroom closet; a square plate with a razor blade; two scales, one of which contained 

white residue; a toiletry bag containing two bags of methamphetamine and a glass pipe;

three glass jars containing individual bags of marijuana; more than one cell phone; a 

binder with a calendar on the outside flap; and sheets of paper. One sheet of paper had 
5

numbers written on it and the words “paid” and “owe.” Another sheet had “I.O.U.” 

written on it with six names. The third name on the I.O.U. list was “Rana,” which was 

the victim’s nickname. The number 170 was crossed out next to his name, and the 

number 100 was written, followed by 870. Detective Illig agreed that the sheet of paper 

was a “pay owe” sheet in which a drug dealer kept a list of people who owed money. 

Appellant’s Admission

On May 31, 2012, Detectives Gares and Frettlohr interviewed Lorrie Rodriguez 

(Rodriguez) in custody. The interview was played for the jury.4She told the detectives 

she been staying with a friend for two months until May 2012, and appellant had also 

stayed in the apartment. Rodriguez told the detectives that appellant was a gang member 

and drug dealer who always had drugs on him, and that he was the gang’s “rent 

collector.” She remembered that appellant had a backpack with the Angry Birds logo on 

it and what appeared to be a nine-millimeter gun inside the backpack. 

Two days after the murder, Rodriguez was talking to her friend in the apartment, 

while appellant was about two steps away in the kitchen. Appellant was wearing a 

baseball hat, large glasses, and a Spider-Man backpack with a hoodie over his head. 

Rodriguez asked her friend why appellant was disguised like a little boy and acting

paranoid. Her friend responded that appellant was wearing a disguise because he shot 

and killed someone and was in hiding. Appellant did not say anything in response. 

Rodriguez turned and looked at appellant. He explained that he was involved in 

an argument two days earlier with someone who refused to pay “rent.” Appellant said, 

“We took care of it” and “We took care of business.” Rodriguez did not know to whom 

appellant referred when he said “we.” Appellant also said, “I’m claiming it. I did do it.” 

Appellant was smiling and said that he had a gun with him, the same one he used to shoot 

 

4 Rodriguez testified that she was under the influence of methamphetamine when 

she spoke to the detectives. Based on Detective Frettlohr’s training and experience in 

narcotics, it did not appear him to that Rodriguez was under the influence of drugs during 

their interview.
6

the victim. Rodriguez saw the gun. Appellant also said that he jumped out of the 

window when the police came to his apartment.

The detectives interviewed Rodriguez again in April 2013. This interview was 

also played for the jury. During the interview, Rodriguez told Detective Frettlohr that she

was being threatened by appellant from jail not to testify and that she had been “green 

lighted,” meaning that the gang could come after her.

Expert Testimony—Narcotics

LAPD Officer Will Lopez testified as a narcotics expert. He explained that a payowe sheet was a record kept by drug dealers which showed the amounts owed and paid 

by buyers as well as the drugs that were sold, and that dealers recorded I.O.U.s for 

recurring customers. He reviewed text messages on appellant’s cell phone from April 30, 

2012, to May 8, 2012. The messages used street names for drugs and indicated that

different people wanted to meet appellant for the purpose of buying drugs.

On May 8, 2012, at 12:42 a.m., a text message was sent from the victim’s cell 

phone to appellant’s cell phone, stating: “Whats up fool I need a 40 and I need to pay. 

Let me know. So I can get it somewhere else.” Officer Lopez explained that the 

message indicated the victim wanted to buy $40 worth of narcotics, if the drugs were 

unavailable he would go elsewhere, and he needed to pay his outstanding debt. At 

1:12 a.m., appellant’s cell phone received a text message stating: “Hey homie, just 

wanted to let u know that theres cops all around the area. B trucha . . . my boy. If U 

anything let me know.” Officer Lopez explained that the sender was warning appellant 

that police officers were around, and that the term “trucha” meant be aware, be careful, or 

be alert. 

Given a hypothetical based on the facts of this case, Officer Lopez opined that the 

totality of the evidence—the large amount of narcotics, the individual bags of narcotics, 

the scales, the cash, and the text messages—indicated that the narcotics were possessed 

for the purpose of sale. 
7

Expert Testimony—Gangs

LAPD Officer Gabriel Roybal testified as a gang expert. He was familiar with the 

Harpys gang, which claimed as its territory the area around the University of Southern 

California, including Normandie Avenue and 20th Street. The Harpys gang controlled 

the drug trade in this area. 

Officer Roybal had had seven to eight contacts with appellant. Each time 

appellant admitted his membership in the Harpys gang. Appellant also had numerous 

gang tattoos, which Officer Roybal described as photos were shown to the jury. 

Appellant had a tattoo above one eyebrow that said “Harpys.” Underneath his neck was a 

tattoo of a star with the letter H, which is the Houston Astro’s logo. Appellant had horns 

tattooed on the top of his head. The horn tattoos were significant because only a member 

with high status in the gang was permitted to have that tattoo. The horns would also 

instill fear in people. Appellant had the numbers “25” and “28” tattooed on his face,

which signified that he belonged to the 25th Street and 28th Street cliques within the 

gang. Appellant had “fuck gang unit” on the side of his head. He also had the Aztec 

symbol for 13 on his face, which signified allegiance to the Mexican Mafia. Officer 

Roybal explained that only certain gang members are allowed to have a tattoo as specific 

as the number 13, particularly on their face, which indicates that appellant had put in 

work for the gang and had earned the right to get the tattoo. A gang member with a tattoo 

on his face who had not received permission to get the tattoo would be physically 

assaulted by fellow gang members. Appellant had the initials “H.P.S” on the back of his 

head, which stand for Harpys, and had “Harpys” on the back of his neck. He had the 

initials “D.E.” tattooed below his lips, which stands for Dead End, another clique of the 

gang. Below that, appellant had a tattoo of a major league baseball logo, which is only 

given to a gang member with high status, “a so-called clean-up hitter” or “enforcer for the 

gang.” Appellant also had the initials “D.E.” and “H.P.S.” tattooed on his arm, “H.P.S.” 

on his chest, and “Harpys” in cursive on his chest. Appellant had his moniker “Chito” 

tattooed below his face. And he had a tattoo of a street sign on his back that signified the 
8

Dead End clique of the Harpys gang. The only nongang-related tattoo discussed was 

“your” underneath appellant’s right eye and “next” underneath his left eye.

Officer Roybal explained that only approved gang members were permitted to sell 

drugs, which was one of the ways the gang earned money. A gang member’s status was 

elevated when he had the approval and earned the trust to sell drugs. When a buyer failed 

to pay for the drugs, the amount owed would increase each day until paid. If the buyer 

did not pay, he would suffer physical consequences, including death. A gang member’s 

status would be reduced if he allowed a buyer not to pay a debt. Officer Roybal also 

explained that a gang member is not permitted to take credit for a crime committed by 

another member, because that would be stealing the other member’s respect. A gang 

member who took credit for someone else’s work would be physically assaulted by other 

members. 

Defense Case

On March 28, 2013, a defense investigator spoke to Rodriguez at the county jail. 

The conversation was not recorded. Rodriguez told the investigator she had lied to the 

detectives because she wanted to get out of jail. She was positive that appellant never 

told her about a murder. The investigator prepared a two-page document of her 

statement, which Rodriguez signed, after saying it was accurate. 

Daniel Laughlin testified as a gang expert. He is a certified intervention gang 

specialist. He was familiar with the Harpys gang, and the area of Normandie Avenue and 

20th Street, which is a known drug area. He has seen both Latino and African-American 

drug dealers at that location. Based on his experience with drug dealers and addicts, he 

testified that many addicts have more than one source for drugs, and that they often ask to 

borrow more money than the debt owed so they can buy more drugs. It is not unusual for 

hardcore drug addicts to ask for money by claiming that a drug dealer has threatened to 

hurt them. 

The manager of appellant’s apartment building testified that the fenced parking lot 

for tenants has a small door for which she has the only key. The gate to the lot is 
9

operated by tenants with a remote control. Appellant, whom she knows, did not have a 

remote control to the gate. 

DISCUSSION

I. Substantial Evidence Supports Appellant’s Convictions

Appellant contends the judgment must be reversed because the evidence was 

insufficient to prove that he (1) committed the charged murder with premeditation and 

deliberation or that he aided and abetted the murder; (2) personally discharged a firearm 

causing great bodily injury and death; and (3) possessed a firearm as a felon. 

A. Standard of Review

A defendant raising a claim that the evidence was insufficient to support his 

conviction bears a “massive burden” because this court’s “role on appeal is a limited 

one.” (People v. Akins (1997) 56 Cal.App.4th 331, 336.) “‘In assessing the sufficiency 

of the evidence, we review the entire record in the light most favorable to the judgment to 

determine whether it discloses evidence that is reasonable, credible, and of solid value

such that a reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in 

support of the judgment the existence of every fact that could reasonably be deduced 

from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Hoang

(2006) 145 Cal.App.4th 264, 275.) This standard applies whether direct or circumstantial 

evidence is involved. (People v. Thompson (2010) 49 Cal.4th 79, 113.) “[I]t is the 

exclusive province of the trial judge or jury to determine the credibility of a witness and 

the truth or falsity of the facts upon which a determination depends.” (People v. Maury 

(2003) 30 Cal.4th 342, 403.) Even when there is a significant amount of countervailing 

evidence, the testimony of a single witness can be sufficient to uphold a conviction. 

(People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) So long as the circumstances 

reasonably justify the trier of fact’s finding, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a contrary finding does not 

warrant reversal of the judgment. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v. 

Rodriguez (1999) 20 Cal.4th 1, 11.) Reversal is not warranted unless it appears “‘that 
10

upon no hypothesis whatever is there sufficient substantial evidence to support [the 

conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

B. Premeditated and Deliberate Murder

A “willful, deliberate, and premeditated killing” is murder of the first degree. 

(§ 189.) In People v. Anderson (1968) 70 Cal.2d 15, 26–27 (Anderson), the California 

Supreme Court set forth three categories of evidence it found to be sufficient to sustain a 

finding of premeditation and deliberation: planning activity, motive, and manner of

killing. “Contrary to defendant’s suggestion, Anderson does not require that these factors 

be present in some special combination or that they be accorded a particular weight, nor 

is the list exhaustive. Anderson was simply intended to guide an appellate court’s 

assessment whether the evidence supports an inference that the killing occurred as the 

result of preexisting reflection rather than unconsidered or rash impulse.” (People v. 

Pride (1992) 3 Cal.4th 195, 247; People v. Tully (2012) 54 Cal.4th 952, 1008, fn. 24.) 

Here, there was substantial evidence from which the jury could infer that the 

victim’s death was premeditated and deliberate. As to the first Anderson factor of 

planning, the evidence showed that the week prior to the murder the victim acted nervous 

and asked to borrow money. The victim called appellant eight times and sent a text to 

appellant just minutes before the murder, asking to meet him to buy more drugs and to 

pay his debt. Cell phone records showed that appellant was in the area of the victim’s 

death when the calls were made. Appellant was a high-ranking Harpys gang member 

who was authorized to sell drugs in the gang’s territory and to act as the gang’s enforcer 

in collecting “rent.” Appellant brought a loaded gun to meet the victim, a weapon 

specifically designed to kill. 

As to the second Anderson factor, appellant had a motive to kill because the victim 

owed money to appellant. The victim had a history of failing to pay his drug debt, and 

appellant had been covering for the victim by telling “the homie” that the victim had paid 

when he had not actually done so. As the gang’s enforcer, appellant had to get the money 

from the victim or kill the victim; otherwise, appellant would suffer negative 

consequences for letting the debt go unpaid.
11

Finally, as to the manner of killing, appellant used a gun to shoot the victim, who 

was unarmed, and fired multiple times at the victim’s head and neck. Appellant had 

earlier been at a shooting range doing target practice.

Additionally, the evidence showed that when police went to appellant’s apartment 

the day of the murder, he climbed out of the window and fled. He then wore a disguise 

and went into hiding. The evidence also showed that two days after the murder, appellant 

admitted to Rodriguez that he killed the victim, and showed Rodriguez the gun he used. 

The gang expert explained to the jury that a gang member cannot take credit for a crime 

he did not commit, because that would mean stealing the credit from another member, 

and there would be negative consequences. 

Viewing the evidence in the light most favorable to the prosecution and presuming 

all reasonable facts in support of the judgment, we conclude the jury could have 

reasonably inferred that the victim was unable to pay his drug debt and appellant killed 

him to avoid negative consequences from the gang for not collecting rent.

C. Aiding and Abetting Murder

The prosecutor proceeded on the dual theories that appellant either directly 

perpetrated the murder with premeditation and deliberation or aided and abetted the 

murder. The prosecutor conceded that the aiding and abetting theory was based on 

appellant’s use of the word “we” (“We took care of business,” “We took care of it”). 

“An aider and abettor who knowingly and intentionally assists a confederate to kill 

someone could be found to have acted willfully, deliberately, and with premeditation, 

having formed his own culpable intent. Such an aider and abettor, then, acts with the 

mens rea required for first degree murder.” (People v. Chiu (2014) 59 Cal.4th 155, 167.)

Appellant argues that the evidence was insufficient to prove that he aided and 

abetted the victim’s killing. Given our conclusion that substantial evidence supports the 

jury’s finding that appellant himself directly perpetrated the murder, we need not address 

whether the evidence also supports the prosecutor’s alternate theory of aiding and 

abetting.
12

D. Personal Use of a Firearm

Appellant argues that there was insufficient evidence to support the jury’s true 

findings that he personally used and discharged a firearm in the commission of the 

murder because there was no evidence that he had a .40-caliber gun on May 8, 2012.

“Whether the defendant was armed with and personally used a firearm are factual 

questions for the jury’s determination.” (People v. Jacobs (1987) 193 Cal.App.3d 375, 

380.) Here, a gun was used to kill the victim and appellant admitted that he committed 

the murder. Appellant showed Rodriguez the gun he used to kill the victim. On the day 

prior to the early morning murder, appellant fired a gun at the Los Angeles Gun Club and

one of his companions purchased 50 rounds of .40-caliber ammunition. The jury could 

reasonably infer from the evidence that appellant personally used and fired the gun in 

committing the murder.

E. Possession of a Firearm by a Felon

Appellant argues that there was insufficient evidence to support his conviction for 

possession of a firearm by a felon on May 7, 2012 (count 5). Specifically, he argues that 

his presence at the Los Angeles Gun Club on May 7, 2012, and the fact that someone in 

his group purchased .40-caliber rounds for a handgun, constitute insufficient evidence 

that he had possession of a firearm on that day.

Section 29800, subdivision (a)(1) provides in part: “Any person who has been 

convicted of a felony . . . or who is addicted to the use of any narcotic drug, and who 

owns, purchases, receives, or has in possession or under custody or control any firearm is 

guilty of a felony.” The jury was instructed with CALCRIM No. 2511 that “A person 

does not have to actually hold or touch something to possess it. It is enough if the person 

has control over it or the right to control it, either personally or through another person.” 

Here, appellant’s presence at the shooting range with a group of people on May 7, 

2012, was uncontroverted. Appellant completed the shooting range’s questionnaire, 

which was required for him to shoot a weapon at the range. A member of appellant’s

group purchased ammunition at the shooting range. Appellant stipulated that he suffered 
13

prior felony convictions. The jury could reasonably infer from this evidence that 

appellant was a felon who had possession of a firearm at the shooting range.

II. Instructional Error

Appellant contends: “The trial court committed reversible error by giving 

erroneous aiding and abetting instructions, which failed to instruct that the prosecution 

must prove appellant specifically intended to aid and abet premeditated and deliberate 

murder, which impermissibly lightened the prosecution’s burden of proof and, thus, 

violated appellant’s rights to due process of law under the Fourteenth Amendment and to 

trial by jury under the Sixth Amendment.” Specifically, appellant argues that the 

combination of the “natural and probable consequences” language in CALCRIM No. 520 

(murder instruction) and the instructions on aiding and abetting (CALCRIM Nos. 400 &

401) failed to inform the jury that appellant must specifically intend to aid and abet

premeditated and deliberated murder.

We need not address this contention for the simple reason that the jury did not find 

appellant guilty of murder on an aiding and abetting theory. We know this because the 

jury found that in committing the murder appellant personally and intentionally 

discharged a firearm causing great bodily injury and death. Because the jury found that 

appellant himself shot the victim, any argument regarding aiding and abetting jury 

instructions is moot.

III. Section 654 Did Not Preclude Imposition of Consecutive Sentences

Appellant contends that his consecutive eight-month sentence for possession of a 

firearm by a felon at the shooting range on May 7, 2012 (count 5), should have been 

stayed pursuant to section 654.

Section 654, subdivision (a) provides in part: “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.”

“It has long been held that section 654 bars multiple punishment for separate 

offenses arising out of a single occurrence where all of the offenses were incident to one 
14

objective.” (People v. Calderon (2013) 214 Cal.App.4th 656, 661.) “However, if the 

defendant harbored ‘multiple or simultaneous objectives, independent of and not merely 

incidental to each other, the defendant may be punished for each violation committed in 

pursuit of each objective even though the violations share common acts or were parts of 

an otherwise indivisible course of conduct. [Citations.]’” (People v. Jones (2002) 103 

Cal.App.4th 1139, 1143 (Jones).) “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.” (Id. at p. 1143.)

The Jones court “conclude[d] that section 654 is inapplicable when the evidence 

shows that the defendant arrived at the scene of his or her primary crime already in 

possession of the firearm.” (Jones, supra, 103 Cal.App.4th at p. 1145.) The court noted 

that a violation of section 29800 (formerly § 12021) is complete the instant a defendant

had the firearm within his control prior to the shooting. (Jones, supra, at p. 1144, citing 

People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410.) Thus, “it is clear that multiple 

punishment is proper where the evidence shows that the defendant possessed the firearm 

before the crime, with an independent intent.” (Jones, supra, at p. 1144.) 

Here, the evidence supported the inference that appellant harbored separate intents 

in the two crimes. At the shooting range on May 7, 2012, appellant possessed the gun 

with the intent of engaging in target practice. On May 8, 2012, appellant possessed the 

gun with the intent of killing the victim. “[Appellant’s] use of the weapon after 

completion of his first crime of possession of the firearm thus comprised a ‘separate and 

distinct transaction undertaken with an additional intent which necessarily is something 

more than the mere intent to possess the proscribed weapon.’ [Citation.]” (Jones, supra, 

103 Cal.App.4th at p. 1147.) That appellant may not have possessed the gun for a 

lengthy period before commission of the primary crime (murder) is not determinative. 

(Id. at p. 1148.)

We conclude that the trial court’s imposition of the eight-month consecutive 

sentence for count 5 did not violate section 654.
15

IV. Additional Day of Presentence Credit

Appellant contends, and the People agree, that he is entitled to 363 actual days of 

presentence custody credit rather than the awarded 362 days of custody credit. 

Appellant was arrested on June 20, 2012, and sentenced on June 17, 2013. 

Presentence credit includes all days in custody, including the day of sentencing and 

partial days in custody. (§ 2900.5, subd. (a); People v. Denman (2013) 218 Cal.App.4th 

800, 814; People v. Downey (2000) 82 Cal.App.4th 899, 920.) Because appellant was in 

actual custody for 363 days, the trial court is directed to amend the abstract of judgment 

to reflect 363 days of presentence custody credit. 

DISPOSITION

The trial court is directed to amend the abstract of judgment to reflect 363, rather 

than 362, days of actual presentence custody credit, and to forward an amended copy of 

the abstract to the Department of Corrections and Rehabilitation. In all other respects, the 

judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

ASHMANN-GERST

We concur:

_____________________________, P. J.

BOREN

____________________________, J.

CHAVEZ