Filed 7/18/13 P. v. Vargas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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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. 

MIGUEL ANGEL VARGAS, 

 Defendant and Appellant. 

 B239488 

 (Los Angeles County 

 Super. Ct. No. NA087206) 

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

James B. Pierce, Judge. Affirmed in part, reversed in part and remanded. 

Murray A. Rosenberg, 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, Shawn McGahey Webb and 

David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * * * * 
2 

 Miguel Angel Vargas appeals from the judgment entered following a jury trial that 

resulted in his convictions for assault on a peace officer with a semiautomatic firearm 

(Pen. Code, § 245, subd. (d)(2); count 1),1 during which offense he personally used a 

firearm (§§ 12022.53, subd. (b), 12022.5, subds. (a) & (d)) and discharged a firearm 

(§ 12022.53, subd. (c)), and possession of a firearm by a felon (former § 12021, 

subd. (a)(1); count 3)2 and court findings that he had suffered a prior serious felony 

conviction (§ 667, subd. (a)(1)), which qualified as a strike under the “Three Strikes” law 

(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d); counts 1 & 3).3

 He was sentenced to prison on count 1 to 39 years, consisting of 14 years, or 

double the seven-year middle term for his strike, plus 20 years for the firearm 

enhancements and five years for the prior serious felony enhancement. The trial court 

imposed the two-year middle term as to count 3 but ordered this sentence to be served 

concurrently with the sentence on count 1 pursuant to section 654. 

 Appellant contends the evidence is insufficient to support his conviction on 

count 1 for assault on Long Beach Police Officer Dedier Reyes with a semiautomatic 

firearm and the findings that he personally and intentionally discharged a firearm. He 

requested this court perform an independent review of the Pitchess4 hearing conducted by 

the trial court to ensure all discoverable information had been disclosed. 

 We invited the parties to address these issues: (1) Did the trial court commit 

unauthorized sentencing error by failing to impose the mandated sentence under the 

Three Strikes law; (2) If so, should the sentence on count 3 be reversed and the matter 

 

1 All further section references are to the Penal Code. 

2 As of January 1, 2012, section 12021 was repealed, and the offense of possession 

of a firearm by a felon is set forth in section 29800, subdivision (a)(1). (Stats. 2010, 

ch. 711 (Sen. Bill No. 1080), § 6, operative Jan. 1, 2012.) 

3 During trial, the court granted a defense motion to dismiss count 2 (§ 1118.1). 

4 (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) 
3 

remanded for resentencing on that count; (3) Is the multiple punishment bar of 

section 654 inapplicable to a sentence under the Three Strikes law; (4) Is a consecutive 

sentence mandated if that court determines the counts 1 and 3 offenses were “not 

committed on the same occasion, and [did] not arise[] from the same set of operative 

facts” (§ 667, subd. (c)(6)); and (5) If not, may the trial court exercise its discretion to 

impose a consecutive or concurrent sentence on count 3? We have received their 

responses. 

 We conclude the trial court erred in sentencing appellant on count 3. The court 

erred in imposing a concurrent sentence under section 654 and in failing to double the 

two-year middle term for appellant’s strike to four years. We remand the matter to that 

court with directions to determine whether a consecutive sentence on count 3 of 

16 months, or one-third the middle term as doubled for his strike, is mandated under the 

Three Strikes law and, if not, to exercise its discretion to impose a consecutive or 

concurrent sentence. In all other respects, we affirm the judgment. 

BACKGROUND 

 On October 16, 2010, appellant attended a birthday party on Cerritos Avenue in 

Long Beach. Appellant’s brother, Gerardo, saw a black object bulging from appellant’s 

pocket, which led him to believe appellant had a gun. A “couple days before the party,” 

appellant had shown Gerardo his black semiautomatic handgun. 

 About 7:30 p.m., Long Beach police responded to a report of someone with a gun 

at a party in that vicinity. Sergeant Timothy Long and Detectives Jeffrey Conrad and 

Richard Armond, who wore jackets marked “police,” parked their vehicle by an alley 

close to that location. As they were proceeding on foot down the alley three individuals 

approached from the other end. One of the individuals adjusted the clothing around his 

waistband, which indicated to Detective Armond that the individual may have a weapon 

in his waistband. Upon seeing the officers, the individual made a U-turn and began to 

run. Detective Armond gave chase but lost him. He then heard about five or six shots. 

Sergeant Long also heard about five to six shots. 
4 

 After uniformed Long Beach Police Officers Dedier Reyes and Rudy Garcia 

approached on foot to the intersection of Hellman Street and Cerritos, they received a 

dispatch call that the armed person had left the party and he was running towards them. 

Looking north on Cerritos, Officer Reyes noticed appellant, who matched the suspect’s 

physical description. Appellant had his right hand in his waistband as he ran toward the 

officers. 

 After looking in the officers’ direction, appellant ran southwest diagonally across 

Hellman. Officer Reyes yelled for him to stop and gave chase. Officer Garcia followed. 

Appellant looked back at Officer Reyes but continued running until he turned south into 

an alley. At the alley entrance, Officer Reyes saw a black gun in appellant’s right hand. 

Officer Reyes became fearful when appellant began to turn right, with gun in hand, 

towards him. 

 After yelling a gun warning to Officer Garcia, Officer Reyes fired once, paused, 

and fired again at appellant, who still held his gun. During the shooting, Officer Reyes 

did not hear or see appellant fire his own gun at the same time. Officer Reyes believed 

he was unable to differentiate the rounds fired, because his own rounds were “very loud” 

and prevented him from doing so. Appellant, who no longer held his gun, fell to the 

ground. 

 After falling, appellant rolled. Turning back toward the officers, appellant reached 

at his waistband and grabbed a black object. Officer Garcia yelled at him to turn onto his 

stomach. When appellant raised his hand holding the object, Officer Garcia fired two 

shots at him. Appellant threw the object further into the alley. Officer Garcia believed it 

was a gun but in fact it was a black cell phone. 

 After handcuffing appellant, the officers discovered a nine-millimeter casing under 

appellant. Neither officer had a nine-millimeter handgun. 

 Appellant’s black, semiautomatic nine-millimeter gun was found in the yard of a 

house adjacent to the “pretty narrow” alley. Officer Reyes did not see appellant toss the 

gun but he had turned away after firing the two shots at appellant. Six spent casings, of 
5 

which four were .40-caliber and two were nine-millimeter, were recovered. The “‘RP’” 

stamped nine-millimeter casing was recovered on a sidewalk near the alley while the 

“‘FC’” stamped casing was found in the grass next to the alley. The six casings were 

matched to three guns, each of which had been fired twice. The four .40 casings were 

from the rounds fired by the officers’ guns. The two nine-millimeter casings were from 

appellant’s gun. Appellant’s gun had a chambered round and the magazine contained one 

Federal cartridge and four Remington Peters cartridges. To fire the gun, appellant had to 

deactivate two safety mechanisms and exert six pounds of force. 

 The prosecution’s firearm expert testified that in his experience, if he were the one 

being shot at and if he were firing back, he might not hear any other shots because of his 

focus on firing his gun and the echo from his own shots. He opined a person could save 

his spent cartridges and have them refilled but people who did this usually were hunters 

experimenting with specific types of gunpowder. He pointed out that cartridges cost only 

$10 for 25 and less for those with reused casings in contrast to the cost of refilling 

casings which required machinery costing hundreds of dollars in addition to the cost of 

gunpowder and bullets. 

 Detectives Gregory Krabbe and Mark McGuire, his partner, who investigated the 

shooting, concluded Officers Reyes and Garcia had been shot at. 

 Appellant presented evidence to show there were no signs of impact where 

appellant’s gun had landed and that there was an absence of burn marks which would 

have suggested appellant had fired a gun close to his clothing. 

DISCUSSION 

I. Substantial Evidence Supports Count 1 Conviction 

 Appellant contends his count 1 conviction for assault with a semiautomatic 

firearm on Officer Reyes (§ 245, subd. (d)(2)) is not supported by the evidence, because 

“there was insufficient evidence that appellant did an act with a semiautomatic firearm 

that by its nature would directly and probably result in the application of force to a 

person.” 
6 

 “The law applicable to a claim of insufficiency of the evidence is well settled: 

‘“In reviewing [a claim regarding] the sufficiency of the evidence, we must determine 

‘whether, after reviewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.’ [Citation.] ‘[T]he court must review the whole record in the light 

most favorable to the judgment below to determine whether it discloses substantial 

evidence—that is, evidence which is reasonable, credible, and of solid value—such that a 

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ 

[Citation.] We ‘“presume in support of the judgment the existence of every fact the trier 

could reasonably deduce from the evidence.”’ [Citation.] If we determine that a rational 

trier of fact could have found the essential elements of the crime proven beyond a 

reasonable doubt, the due process clause of the United States Constitution is satisfied 

[citation], as is the due process clause of article I, section 15, of the California 

Constitution [citation].’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 1114, 1156.) 

This standard applies to both direct and circumstantial evidence. (People v. Maury

(2003) 30 Cal.4th 342, 396.) 

 Appellant suggests it is simply suspicion that he assaulted Officer Reyes with his 

nine-millimeter gun, because Officer Reyes merely saw the gun in appellant’s hand and 

did not see or hear him fire the gun. He contends Officer Reyes’s lack of perception 

cannot be saved by “[t]he fact that two expended [nine-millimeter] casings were later 

found, one beneath appellant and another some distance away in the yard of a house on 

the other side of the alley not far from the gun” inasmuch as “[t]here are numerous other 

plausible explanations for the expended rounds and the location of the gun” (italics 

added). Appellant contends that while he was “running with the gun in hand when he 

was shot [he] most likely involuntarily fired off a pair of rounds on being hit or as he 

attempted to throw the gun away” (italics added). 

 We are not persuaded. Appellant’s position is grounded in speculation, which is 

not evidence (People v. Mendoza (2000) 24 Cal.4th 130, 174; People v. Kraft (2000) 23 
7 

Cal.4th 978, 1035 [speculation and speculative inferences not evidence]), and appellant 

invites this court to give credence to such speculation over the evidence believed by the 

trier of fact. 

 Initially, the record reflects that in order to fire the gun, appellant had to have 

deactivated two safety mechanisms and exerted six pounds of force. The evidence 

therefore refutes his supposition that his gun accidently fired. 

 The jury was entitled to find appellant in fact had fired two shots at Officer Reyes 

based on the circumstantial evidence of the locations of the two nine-millimeter casings 

and appellant’s nine-millimeter gun, all of which were recovered in the general vicinity 

of the shooting, and the fact that Sergeant Long and Detective Armond had heard five to 

six shots, only four of which were attributable to the guns shot by Officers Garcia and 

Reyes. The jury also was entitled to infer that Officer Reyes did not see or hear 

appellant’s gun fire two shots, because his focus was on shooting appellant. Also, the 

echo from his own shots distracted him from hearing the shots fired by appellant. The 

fact that Officer Reyes did not perceive the gunshots fired by appellant does not dispel 

the inference that appellant had fired two shots at Officer Reyes. 

II. Substantial Evidence Supports Discharge of Firearm Finding 

 Appellant contends the evidence is insufficient to support the jury finding that he 

personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). Essentially, 

appellant renews his claims above as to why the evidence fails to support his conviction 

for assault with a semiautomatic firearm on a peace officer (count 1). He contends 

neither Officers Reyes nor Garcia saw or heard appellant fire his gun; the gun could have 

accidentally discharged as appellant ran “with the gun in hand when he was shot [and] 

most likely involuntarily fired off a pair of rounds on [his] being hit or as he attempted to 

throw the gun away”; and “[t]here are numerous other plausible explanations for the 

expended rounds and the location of the gun.” 
8 

 We reject appellant’s contentions as based on improper speculation. Additionally, 

substantial evidence, as recounted above, supports the finding that appellant both 

personally and intentionally discharged his nine-millimeter gun at Officer Reyes. 

III. No Pitchess Violation Shown 

 Appellant contends, and the People concede, he is entitled to review by this court 

of the police personnel records to determine whether the trial court abused its discretion 

by failing to turn over to the defense all discoverable materials in those records. No 

abuse occurred. 

 On April 8, 2011, the trial court conducted an in-camera hearing on appellant’s 

Pitchess motion for discovery of any materials in the personnel records of Officer Reyes 

pertaining to complaints of excessive force.5 Of the 16 reports reviewed, the trial court 

ordered discovery as to six, because they pertained to “either excessive force or . . . 

directly to falsifying official police records” and denied discovery as to the remaining 

10 reports. 

 “Trial courts are granted wide discretion when ruling on motions to discover 

police officer personnel records. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 

827.) “To obtain relief, . . . a defendant who has established that the trial court erred in 

denying Pitchess discovery must also demonstrate a reasonable probability of a different 

outcome had the evidence been disclosed. [Citations.]” (People v. Gaines (2009) 46 

Cal.4th 172, 182–183.) 

 We have reviewed the sealed in-camera Pitchess hearing transcript.6 Although the 

personnel records are not before us, the trial court set forth sufficiently a summary of the 

 

5 Appellant’s Pitchess motion directed at Officer Garcia was for complaints of 

excessive force or false police reports. The trial court found none of the five reports 

produced for Officer Garcia were relevant and declined to order any information 

produced. 

6 This court ordered the trial court to transmit to this court a copy of the sealed 

reporter’s transcript of the in-camera Pitchess hearing and copies, under seal, of the peace 
9 

10 records for which discovery was not ordered to enable this court to determine these 

records are irrelevant to issues of excessive police force and falsifying official police 

records. The trial court therefore did not abuse its discretion in denying discovery. 

IV. Reversal of Count 3 Sentence and Remand Warranted

 The jury found appellant guilty as charged in count 3 of possession of a firearm by 

a felon (former § 12021, subd. (a)(1)). Appellant admitted, and the trial court found true, 

the allegation that he had suffered a strike under the Three Strikes law as to count 3. The 

court declined to exercise its discretion to dismiss the strike pursuant to People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497. 

 In sentencing appellant on count 3, the trial court selected the two-year middle 

term and ordered that term to be served concurrently with the sentence imposed on 

count 1 pursuant to section 654, because “it’s one and the same act of both possession 

and using it in the assault on the peace officer in count one.”7

 Both appellant and the People agree the trial court committed unauthorized 

sentencing error by failing to double appellant’s two-year term to four years for the strike 

prior. We concur. 

 The parties disagree regarding the applicability of the multiple punishment bar of 

section 654. Appellant’ position is the multiple punishment bar for a single act under 

section 654 is applicable, because the trial court found counts 1 and 3 were based on the 

 

officers’ personnel records reviewed at the hearing if those records had been retained by 

the trial court. We received only the sealed reporter’s transcript and have augmented the 

record with this sealed transcript and the transcript of other proceedings on April 8, 2013. 

7 A conflict in the record exists between the clerk’s transcript recital that the court 

stayed the sentence on count 3 and the recitals in the reporter’s transcript that the court 

ordered the sentence on count 3 to be served concurrently. The judgment consists of the 

oral pronouncement of sentence. Unless the record clearly indicates the reporter’s 

transcript does not in fact correspond to the sentence orally pronounced by the trial court, 

the recitals in that transcript trump any contrary recitals in the clerk’s transcript. In this 

instance, the recitals in the reporter’s transcript control. (See, e.g., People v. Lawrence

(2009) 46 Cal.4th 186, 194, fn. 4; People v. Harrison (2005) 35 Cal.4th 208, 226; People 

v. Price (2004) 120 Cal.App.4th 224, 242.)
10 

same assaultive conduct and consecutive sentencing under the Three Strikes law is 

mandated only where the underlying offenses were “not committed on the same occasion, 

and not arising from the same set of operative facts” (§ 667, subd. (c)(6)). 

 The People contend section 654 is inapplicable under the circumstances here, 

because “where possession of a gun is ‘“antecedent [to] and separate” from’ its use in 

assaulting a peace officer, section 654 does not apply” and point out the gist of Gerardo’s 

testimony was that appellant already carried the gun at the party before he assaulted 

Officer Reyes. 8

 Appellant and the People each concede on remand, if the trial court were to 

determine that the offenses in counts 1 and 3 were committed on the same occasion or 

arose from the same set of operative facts, then a consecutive sentence on count 3 is not 

mandated under the Three Strikes law. (Cf. § 667, subd. (c)(6).) They also acknowledge 

that if this were the case, the trial court retains discretion to impose a consecutive or 

concurrent sentence on count 3. Appellant contends the court then may “employ 

section 654 under that section’s own standard.” 

 Initially, we conclude the trial court erred in imposing a concurrent sentence 

pursuant to section 654. The appropriate procedure for applying the multiple punishment 

bar of section 654 is to stay imposition of the sentence, not to impose a concurrent 

sentence. (People v. Benson (1998) 18 Cal.4th 24, 38–40.) 

 We further conclude the court erred in failing to determine whether a consecutive 

sentence on count 3 is mandatory under the Three Strikes law, and, if not, to exercise its 

discretion to impose a consecutive or concurrent sentence on that count. Under the Three 

Strikes law, a consecutive sentence is mandatory if the felony offenses were “not 

committed on the same occasion, and not arising from the same set of operative facts” 

(§ 667, subd. (c)(6)). In contrast, “where a sentencing court determines that two or more 

 

8 The People’s reliance is misplaced on Gerardo’s testimony that appellant showed 

him the gun a couple of days before the assault on Officer Reyes. The jury found 

appellant guilty of possession of a firearm by a felon as charged in count 3 of the 

information, which alleged the date of possession to be the same date as the assault. 
11 

current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from 

the same set of operative facts’ . . . consecutive sentencing is not required under the 

Three Strikes law, but is permissible in the trial court’s sound discretion.” (People v. 

Lawrence (2000) 24 Cal.4th 219, 233; see generally, §§ 669, subd. (a), 1170.1, subd. (a).) 

It is incumbent on the trial court to decide whether the underlying felonies in 

counts 1 and 3 were sufficiently separated in time and space such that they were not 

committed “‘on the same occasion.’” We note appellant, a felon, possessed the gun 

about two hours before the assault on Officer Reyes, and such possession was at a 

location different from the location of the assault. Additionally, the court must decide 

whether these felonies arose from “‘the same set of operative facts,’” which 

determination involves an inquiry into whether or not the felonies share “common acts or 

criminal conduct that serves to establish the elements of the current felony offenses” and 

a weighing of “the extent to which common acts and elements of such offenses unfold 

together or overlap, and the extent to which the elements of one offense have been 

satisfied, rendering that offense completed in the eyes of the law before the commission 

of further criminal acts constituting additional and separately chargeable crimes.” 

(People v. Lawrence, supra, 24 Cal.4th 219, 229, 233; cf. People v. DeLoza (1998) 18 

Cal.4th 585, 599; People v. Garcia (2008) 167 Cal.App.4th 1550, 1566–1567.) In this 

regard, we observe the offense of possession of a firearm by a felon had been completed 

before appellant assaulted Officer Reyes. The assault offense was additional to the 

possession offense, and both offenses were separately chargeable. The commission of 

these offenses did not “unfold” nor did they “overlap,” because appellant’s possession of 

the gun at the party was wholly unconnected in time, space, and intent with his 

possession of the gun in assaulting Officer Reyes. 

 The parties do not address the matter of how the consecutive sentence, if 

mandatory, is to be calculated. In making this calculation, we are guided by People v.

Nguyen (1999) 21 Cal.4th 197, in which our Supreme Court concluded, in the context of 

a second striker, that the provision of section 1170.1, subdivision (a), which fixes the 
12 

consecutive subordinate terms at one-third the middle term, applies to a mandatory 

consecutive sentence under the Three Strikes law. Noting under the Three Strikes law, 

“[t]here shall not be an aggregate term limitation for purposes of consecutive sentencing 

for any subsequent felony conviction” (§§ 667, subd. (c)(1), 1170.12, subd. (a)(1)), the 

Court explained this provision of section 1170.1 simply “defines the length of individual 

subordinate terms” and thus, is not an aggregate term limitation. (People v. Nguyen, 

supra, at pp. 205, 207.) Accordingly, the term of appellant’s consecutive sentence on 

count 3, if mandated, shall be 16 months, or one-third of four years, which is double the 

two-year middle term for his strike. 

 Lastly, we conclude section 654 is inapplicable to appellant’s sentences under the 

Three Strikes law. Section 654 proscribes multiple punishment for an indivisible course 

of conduct which is incident to a single intent and objective (Neal v. State of California

(1960) 55 Cal.2d 11, 19). The trial court erroneously concluded such a situation existed 

here because the same conduct underlies appellant’s conviction for possession of a 

firearm by a felon and his conviction for assault with a semiautomatic firearm on Officer 

Reyes. The record establishes that prior to assaulting Officer Reyes, appellant already 

was in possession of the gun and he did not possess the gun simply for the purpose of 

assaulting Officer Reyes. Section 654 therefore does not bar separate punishment for 

these offenses. (See, e.g., People v. Bradford (1976) 17 Cal.3d 8, 22; People v. Mesa

(2012) 54 Cal.4th 191, 193–195; People v. Jones (2002) 103 Cal.App.4th 1139, 1142–

1149.) 
13 

DISPOSITION 

 The sentence on count 3 is reversed and the matter is remanded to the trial court 

with directions to resentence appellant on count 3 consistent with the views expressed in 

this opinion. In all other respects, the judgment is affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

_____________________, J. *

 FERNS 

We concur: 

____________________________, P. J. 

 BOREN 

____________________________, J. 

 CHAVEZ 

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.