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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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 This opinion has not been certified for publication 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 FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

MANUEL GUERRERO, 

 Defendant and Appellant. 

 B249729 

 (Los Angeles County 

 Super. Ct. No. PA074183) 

 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. 
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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. 
3 

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.