P. v. Gallardo
Filed 3/1/12 P. v. Gallardo CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS L. GALLARDO,
Defendant and Appellant.
B228628
(Los Angeles
County
Super. Ct.
No. LA048566)
APPEAL from
a judgment of the Superior Court
of
County, Susan M. Speer, Judge. Affirmed.
Susan K.
Shaler, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Paul M. Roadarmel, Jr. and Dana M. Ali, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant and appellant
Carlos L. Gallardo appeals from the judgment entered following a jury trial
that resulted in his convictions for second
degree murder, attempted murder, shooting from a motor vehicle, and possession
of a firearm by a felon. Gallardo
was sentenced to a prison term of 72 years to life, plus 20 years.
Gallardo contends: (1) the trial court erred by denying his
request to instruct the jury on self-defense; and (2) his concurrent sentence
for being a felon in possession of a firearm should have been stayed pursuant
to Penal Code section 654.
name="_ftnref1" title="">[1] Discerning no error, we affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
Jaime Gutierrez and Efrain Telles were employed as security
guards at the Gentleman’s Players Club, a Sun Valley establishment featuring
nude or semi-nude exotic dancers. On March 13, 2005, Gutierrez and Telles were both on duty. At approximately 1:00 a.m., a group of 10 to
20 men and women arrived at the club in two vehicles, a Hummer limousine and a
white Escalade (hereinafter the “Hummer group”
. The Escalade belonged to the victim,Francisco Herrera Jr.
At roughly the same time, appellant
Gallardo arrived in his white convertible Mustang, accompanied by four or five
men. The Mustang’s top was down. Gutierrez and Telles were both familiar with
Gallardo, who was a regular club patron.
Gutierrez’s forehead was tattooed with the name of a local
“ ‘Harpy’s.’ ”
As the two groups waited to enter
the club, several men from the Hummer group argued with Gallardo and one or
more of his companions, “over the girls.”
Telles stepped between the men, told them he did not want problems at
the club, and asked that they take their argument elsewhere. The men ceased arguing and appeared to “calm
down.” Gutierrez, who was working at the
club door, subsequently performed a routine pat-down of both groups for weapons
before allowing them into the club.
Gutierrez and Telles then switched places, with Gutierrez moving to the
club’s interior.
Inside the club, the Hummer group
sat near the back, and Gallardo’s group sat nearby. Gallardo dragged a large lounge chair to the
area where the Hummer group was seated, and placed it very close to, and in
front of, a bald-headed, one-eyed man who was with the Hummer group. Because Gallardo was “invading the other
person’s personal space,” Gutierrez immediately intervened and ordered him to
move the chair. Gallardo complied. Thereafter, the two groups kept giving each
other “looks,” and there appeared to be tension building between them.
At approximately 3:30 a.m., the club
closed and both the Hummer group and Gallardo’s group exited to the parking
lot. Gutierrez and Telles monitored the
exiting patrons outside the club. The
Hummer was parked in the middle of the street directly in front of the club,
and the Escalade was parked at the curb on the other side of the Hummer. Some members of the Hummer group were getting
into the Hummer, while others were standing next to the vehicles and talking.
Meanwhile, Gallardo and his
companions entered his Mustang. Gallardo
drove out of the club’s lot, parked at the edge of the driveway, stepped out of
the car, opened the Mustang’s trunk, and appeared to search for something
inside. It appeared to both Gutierrez
and Telles that Gallardo put something from the trunk in his waistband. Both Gutierrez and Telles suspected that the
object was a gun. Telles warned
Gutierrez to “watch his back.” Because
“[s]omething didn’t feel right,” Gutierrez took cover behind a car, while at
the same time keeping a clear view of the Mustang.
Gallardo reentered the Mustang and
drove to the middle of the street. He
caused the Mustang to “burn rubber,” apparently by holding the brake while
simultaneously pressing the gas pedal.
The Mustang’s engine was loud and the tires smoked and kicked up gravel from
the street. Gallardo’s front seat
passenger leaned forward, so that his chest was almost touching his knees. Gallardo extended his right arm across the
passenger side of the car, toward the Escalade.
At the same time, Gutierrez and Telles heard gunfire coming from the
Mustang. Neither Gutierrez nor Telles
saw the gun. Gallardo immediately drove
rapidly toward San Fernando Road. Gutierrez
and Telles heard “return fire” coming “[f]rom the vicinity of the Escalade.”
Herrera, who had been standing in
the street, was shot and fell to the ground.
Several men from the Hummer placed him in the Escalade and drove him to
the hospital. He died from a single
gunshot to the chest, which pierced his heart.
The trajectory of the bullet was consistent with a standing victim being
shot by a person seated in a vehicle.
A Los Angeles Police Department
detective found six .25-caliber bullet casings at the scene in the street. Two additional .25-caliber bullet casings
were found in the Mustang the next day.
was recovered from the victim’s body.
All the casings and the bullet were determined to have been fired from
the same gun.
Five .9-millimeter bullet casings
were also found in the street at the crime scene. Another .9-millimeter casing was found on the
Escalade’s driver’s side floorboard. All
the .9-millimeter casings were determined to have been fired from the same gun.
Gutierrez and Telles identified
Gallardo as the shooter at trial.
Gutierrez had also identified Gallardo in a pretrial photographic
lineup.
A recording of the incident, taken
from the club’s surveillance cameras, was played for the jury. The first visible reaction to the shooting by
a bystander, as shown in the recording, appeared to occur when the Mustang was
driving away.
Gallardo did not present evidence.
2.
Procedure.
Gallardo’s first trial ended with a hung jury, and the court
declared a mistrial. At Gallardo’s
retrial, he was convicted of the second degree murder of Herrera, a lesser
included offense of first degree murder (§ 187, subd (a)); the attempted murder
of John Doe (§§ 664, 187, subd. (a)); shooting from a motor vehicle (former
§ 12034, subd. (c)); and possession of a firearm by a felon (former §
12021, subd. (a)(1)).
name="_ftnref3" title="">[3] The jury found the allegations that Gallardo personally and
intentionally discharged a handgun in commission of the murder, attempted
murder, and shooting from a motor vehicle offense not true. It also found the allegation that the
attempted murder was willful, deliberate, and premeditated, not true. The trial court denied Gallardo’s new trial
motion and sentenced him to an indeterminate term of 72 years to life in
prison, plus a consecutive determinate term of 20 years. It imposed a restitution fine, a suspended
parole restitution fine, a court security fee, and
ordered Gallardo to pay victim restitution.
Gallardo appeals.
DISCUSSION
1.
The trial court did not err by
refusing to instruct the jury on self-defense.
a.
Gallardo requested that the trial court instruct the jury on
eyewitnesses’ account[s was] that the Mustang fired first.” Although there was evidence Telles and
Gutierrez had, at the preliminary hearing or first trial, denied knowing which
shots were fired first, the “core of their testimony” was that “the Mustang
shot first.” The court also reasoned
that Gallardo’s “state of mind has not been brought into evidence if he was
fearful and shot back even [in] imperfect self-defense or self-defense.” The court concluded there was no basis upon
which the jury could find a self-defense theory applied.
Gallardo contends that the trial
court erred by refusing to instruct on self-defense, in violation of his rights
to due process and a determination of every material issue presented by the
evidence. He urges that the purported
error requires reversal of not only his convictions for murder and attempted
murder, but also for his conviction for possession of a firearm by a
felon. We disagree.
b. Discussion.
A trial court must instruct on general
principles of law that are closely and openly connected to the facts before the
court and that are necessary for the jury’s understanding of the case,
including defenses on which the defendant relies or that are not inconsistent
with the defendant’s theory of the case.
(People v. Boyer (2006) 38
Cal.4th 412, 468-469; People v. Salas
(2006) 37 Cal.4th 967, 982; People v.
Johnson (2009) 180 Cal.App.4th 702, 707; People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) However, a court is not obliged to instruct
on theories that lack substantial evidentiary support. (People v. Burney (2009) 47 Cal.4th 203, 246; People v. Johnson, supra, at p. 707;
cf. People v. Villanueva (2008)
169 Cal.App.4th 41, 49.) A trial
court “need not give instructions based solely on conjecture and
speculation.” (People v. Young (2005) 34 Cal.4th 1149, 1200.) Substantial evidence is evidence sufficient
to deserve consideration by the jury, that is, evidence that a reasonable jury
could find persuasive. (
35 Cal.4th 69, 102; People v. Ross
(2007) 155 Cal.App.4th 1033, 1049-1050.)
In deciding whether an instruction is required, a court does not
determine the credibility of the defense evidence, but only whether there was
evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People
v. Salas, supra, at p. 982; People v.
Villanueva, supra, at p. 49; People
v. Cole (2007) 156 Cal.App.4th 452, 483-484.) We independently review the question of
whether the trial court erred by failing to instruct on a defense. (People
v. Johnson, supra, at p. 707; People
v. Oropeza, supra, at p. 78; cf. People
v. Cook (2006) 39 Cal.4th 566, 596.)
Doubts about the sufficiency of the evidence to warrant an instruction
should be resolved in the defendant’s favor.
(People v. Moye (2009) 47 Cal.4th
537, 562; People v. Tufunga (1999) 21
Cal.4th 935, 944.)
Homicide is
justifiable when committed in self-defense.
(§ 197, [¶] 1.) A defendant
acts in self-defense when he (1) reasonably believed he was in imminent danger
of suffering bodily injury; (2) reasonably believed that the immediate use of
force was necessary to defend against that danger; and (3) used no more force
than was reasonably necessary to defend against that danger. (People
v. Villanueva, supra, 169 Cal.App.4th at pp. 49-50;
1413, 1427; People v. Viramontes (2001)
93 Cal.App.4th 1256, 1261; CALCRIM No. 505.)
When deciding whether the defendant’s beliefs were reasonable, all the
circumstances “as they were known to and appeared to the defendant” must be
considered. (CALCRIM No. 505.) “To require instruction on [self-defense],
there must be evidence from which the jury could find that appellant actually
had such a belief. This evidence may be
present even though appellant did not testify or make a statement admitted at
trial.” (People v. Viramontes, supra, at p. 1262.)
In the
instant case, the trial court correctly declined to instruct on self-defense
because there was no substantial evidence supporting the defense. The evidence showed Gallardo argued with
persons in the Hummer group before entering the club. Gallardo acted provocatively toward one
member of that group by moving his chair into the man’s personal space while
inside the club. Immediately after
leaving the club Gallardo appeared to retrieve a firearm from his trunk. He again acted aggressively by “burning
rubber” near the Escalade. Next he, or
another passenger in the Mustang, fired shots at the Escalade without apparent
provocation. There was no evidence
Gallardo reasonably believed he was in imminent danger of suffering bodily
injury at the time shots were fired from the Mustang. To the contrary, the evidence suggested he
was not afraid of the Hummer group,
as evidenced by his antagonistic conduct.
There was no evidence regarding his mental state, either circumstantial
or direct. There was no showing he
believed someone in the Hummer group was armed and about to fire upon him. Contrary to his argument, there was no
evidence that someone in the Mustang fired first because someone in the Hummer
group “threatened imminently to fire first.”
Gallardo
correctly argues that the evidence showed two guns were fired at the scene, one
from the Mustang and one from the Escalade.
He also points out that at the preliminary hearing, Telles and Gutierrez
testified, inconsistent with their eventual testimony at the second trial, that
they did not know whether the first shots were fired from the Escalade or from
the Mustang. Gutierrez testified at the
preliminary hearing that he saw someone shoot from the Escalade, but he did not
know whether the people from the Escalade or the Mustang fired first. Telles likewise testified at the preliminary
hearing that he did not remember which side fired first. At trial, an officer testified that he
interviewed Gutierrez shortly after the shooting, and Gutierrez told him that
the first shots were fired from the Mustang; however, due to an oversight, the
police report memorializing the interview did not state that the driver of the
Mustang fired first. Gallardo further
hypothesizes that the earlier confrontation between the two groups, prior to
entering the club, gave him reason to believe the Hummer group would fire upon
him. Gallardo urges that based upon the
foregoing evidence, jurors could have inferred he reasonably believed he was in
imminent danger of suffering bodily injury, justifying the immediate use of
deadly force in self-defense.
We do not
agree. There was consistent and ample
evidence at trial that the first shots were fired from the Mustang. There was
no evidence, either at trial or in the form of prior inconsistent statements
made at prior proceedings, that the first shots were fired from the
Escalade. The fact the witnesses
previously stated they did not know, or did not recall, who fired the first
shots is not, on the record here, substantial evidence that the first shots
were actually fired by a person in the Escalade. Lack of knowledge is not the same as
affirmative evidence an occupant of the Escalade fired first. There was no evidence suggesting Gallardo
fired due to a reasonable belief he was in imminent danger. No evidence suggested the victim or anyone in
the Hummer group was about to attack Gallardo.
There was, for example, no evidence Gallardo shot because he observed someone
in the Escalade point a gun at him, or because someone made a verbal
threat. In short, the self-defense
theory was supported only by conjecture and speculation. (People
v. Young, supra, 34 Cal.4th at p. 1200.)
Nor do we
agree that Gallardo could reasonably have believed he was in danger based on
the earlier interactions between the two groups that evening. The initial confrontation outside the club
was a verbal argument only, quickly quelled by the security guard. There was no showing anyone in the Hummer
group made any type of threat during that argument. Gallardo, not the Hummer group, was
responsible for the other two confrontations that evening, that is, the chair
incident with the one-eyed man and the “burning rubber” incident. Gallardo’s conduct in these incidents,
including his act of “burning rubber” right before the shooting, tended to show
he was not in fear of any imminent
harm. There was no evidence that anyone
in the Hummer group responded to Gallardo’s aggressive conduct with threats.
470, cited by Gallardo, does not compel a contrary conclusion. There, one of the defendants testified that
the victim punched him and threatened to kill him. In self-defense, the defendant pulled a knife
from his pocket and stabbed the
victim. (Id. at p. 477.)
The trial court declined to give a self-defense instruction, apparently
because it did not find the defendant’s testimony credible. (Ibid.) Lemus concluded
the trial court erred by declining to instruct on self-defense. (Id. at
p. 475.) The court
observed that the fact defense evidence is not believable does not justify
“ ‘the refusal of an instruction based thereon, for that is a question
within the exclusive province of the jury.’ ” (Id.
at p. 477.) As is readily apparent,
Lemus has no application here. Unlike in Lemus,
there was no testimony that the victim, or anyone in his group, threatened
to kill Gallardo or attacked him. The
trial court in the instant matter did not refuse the requested instruction
because it believed the defense evidence was implausible; to the contrary, it found there was no evidence supporting the instruction. There was no instructional error.
2.
Section 654 did not preclude the
imposition of a concurrent sentence for Gallardo’s possession of a firearm
conviction.
The trial court sentenced Gallardo pursuant to the Three
Strikes law, as follows: 45 years to
life on count 1, second degree murder; a consecutive term of 27 years to life
on count 2, attempted second degree murder; a concurrent term of 25 years to
life on count 3, possession of a firearm by a felon; a term of 25 years to life
on the shooting from a motor vehicle count, stayed pursuant to section 654; and
enhancements pursuant to section 667, subdivision (a)(1). The trial court expressly reasoned that
Gallardo “had a different criminal objective” in the firearm possession crime.
Gallardo contends that pursuant to section 654,
sentence on count 3, felon in possession of a firearm, should also have been stayed. Gallardo urges that he had but a single,
indivisible objective in possessing the gun and firing it: to shoot the person with whom he had had a
disagreement earlier in the evening. In
his view, “all four counts arose from a single course of conduct” and his
“status as a felon did not change that.”
Section 654, subdivision (a),
provides in pertinent part that 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.” Section 654 precludes
multiple punishment for a single act or a course of conduct comprising
indivisible acts. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143;
168 Cal.App.4th 443, 458; People v.
Moseley (2008) 164 Cal.App.4th 1598, 1603.)
“ ‘Whether a course of criminal conduct is divisible . . . depends
on the intent and objective of the actor.’
[Citations.] ‘[I]f all the
offenses were merely incidental to, or were the means of accomplishing or
facilitating one objective, defendant may be found to have harbored a single
intent’ ” and therefore may be punished only once. (People
v. Jones, supra, at p. 1143; People
v. Latimer (1993) 5 Cal.4th 1203, 1208.)
If the defendant harbored multiple or simultaneous objectives, he or she
may be punished for each violation committed in pursuit of each objective, even
though the violations share common acts or were part of an otherwise
indivisible course of conduct. (
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.
(People v. Jones, supra, 103
Cal.App.4th at p. 1143; People v. Garcia (2008)
167 Cal.App.4th 1550, 1564.) The trial
court’s findings will not be reversed on appeal if there is
them. (People v. Jones, supra, at p. 1143; People v. Perry (2007) 154 Cal.App.4th 1521, 1525;
Cal.App.4th at p. 1603.) “We review the
trial court’s determination in the light most favorable to the respondent and
presume the existence of every fact the trial court could reasonably deduce
from the evidence.” (
Whether a violation of former
section 12021, forbidding ex-felons from possessing firearms, constitutes a
divisible transaction from the offense in which the felon employs the firearm
depends on the facts and evidence in each individual case. (People
v. Jones, supra, 103 Cal.App.4th at p. 1143.) Where the evidence shows a possession only in
conjunction with the primary offense, then punishment for the illegal
possession of the firearm is improper. (
Thus, multiple punishment is improper where the evidence demonstrates,
at most, that “ ‘fortuitous circumstances put the firearm in the defendant’s hand[s]
only at the instant of committing another offense . . . .’ [Citation.]”
(Id. at p. 1144;
People v. Garcia, supra, 167
Cal.App.4th at p. 1565; People v.
Ratcliff (1990) 223 Cal.App.3d 1401, 1412; People v. Bradford (1976) 17 Cal.3d 8, 22; People v. Venegas (1970) 10 Cal.App.3d 814, 821.) On the other hand, “ ‘ “where the evidence
shows a possession distinctly antecedent and separate from the primary offense,
punishment on both crimes has been approved.” ’ ” (People
v. Jones, supra, at p. 1143.)
Our opinion in People v. Jones, supra, 103 Cal.App.4th 1139, forecloses Gallardo’s
argument here. In Jones, we concluded that “when an ex-felon commits a crime using a
firearm, and arrives at the crime scene already in possession of the firearm,
it may reasonably be inferred that the firearm possession is a separate
and antecedent offense, carried out with an independent, distinct intent from
the primary crime. . . .
[S]ection 654 will not bar punishment for both firearm possession by a
felon (§ 12021, subd. (a)(1)) and for the primary crime of which the
defendant is convicted.” (
In Jones, defendant Jones and another man drove to the home of Jones’s
ex-girlfriend, Kyshanna Walter. The
driver rang the girlfriend’s doorbell and asked to speak to her. Upon being informed she was not available, he
and Jones drove off. Fifteen minutes
later, the men returned and slowly drove past Walter’s home. Jones fired several shots at the house. (People
v. Jones, supra, 103 Cal.App.4th at pp. 1141-1142.) Jones was convicted of shooting at an
inhabited dwelling and being a felon in possession of a firearm. The trial court imposed sentence on both
counts. On appeal, Jones argued that,
because his possession of the gun was incidental to and simultaneous with the
primary offense of shooting at an inhabited dwelling, section 654 precluded the
imposition of sentence on both offenses.
(People v. Jones, supra, at
p. 1142.) We rejected this
contention. We explained, “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.” (Id. at
p. 1145.) It was a reasonable inference
that Jones’s possession of the firearm was antecedent to and separate from the
primary offense of shooting at an inhabited dwelling. (Id. at
p. 1147.) “It strains reason to assume
that Jones did not have possession for some period of time before firing shots
at the Walter home. Any other
interpretation would be patently absurd.
Jones committed two separate acts:
arming himself with a firearm, and shooting at an inhabited
dwelling. Jones necessarily had the
firearm in his possession before he
shot at Kyshanna’s house . . . . It was therefore a reasonable inference that
Jones’s possession of the firearm was antecedent to the primary crime. [Citation.]
Section 12021 is violated whenever a felon intentionally has the weapon
in constructive or actual possession.
[Citation.] Jones necessarily
must have had either actual or constructive possession of the gun while riding
in the car, as evidenced by his control over and use of the gun during the
shooting. Jones’s violation of section
12021 was complete the instant Jones had the firearm within his control prior
to the shooting. [Citation.]” (People
v. Jones, supra, at p. 1147.)
Further, the evidence “supported an inference that Jones harbored
separate intents in the two crimes.
Jones necessarily intended to possess the firearm when he first obtained
it, which . . . necessarily occurred antecedent to the shooting. That he used the gun to shoot at Kyshanna’s
house required a second intent in
addition to his original goal of possessing the weapon. Jones’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.]”
(Ibid.)
Jones is indistinguishable from the
case at bar. The evidence was sufficient
to show Gallardo came to the Gentleman’s Players Club with a gun in the trunk
of his car. He owned the Mustang; he
obviously had knowledge of, and control over, the gun as evidenced by the fact
that he retrieved it from the trunk just prior to the shooting. Gallardo necessarily had possession for some
period of time before he entered the
club and before he retrieved the gun from the trunk. He committed two separate acts: arming himself with the gun, and using the
gun, or allowing an accomplice to use the gun, in the shooting. It was therefore a reasonable inference that
his possession of the gun was antecedent to the primary crime. (See People
v. Jones, supra, 103 Cal.App.4th at p. 1147; People v. Ratcliff, supra, 223 Cal.App.3d at p. 1413.) Certainly the evidence did not suggest that
fortuitous circumstances put the firearm in Gallardo’s hand only at the instant
of committing the shooting. (See
p. 13 [defendant wrested away an officer’s revolver when stopped for speeding,
and shot at the officer with it]; People
v. Venegas, supra, 10 Cal.App.3d at pp. 820-821 [evidence suggested
defendant obtained gun in a struggle shortly before shooting with it].)
The evidence likewise suggested Gallardo had separate
intents. Just as in Jones, Gallardo necessarily intended to possess the firearm when he
first obtained it, prior to the
shooting and the conflict with the Hummer group. That he used the gun to shoot at the Hummer
group, or furnished it to an accomplice to do so, necessarily required a
original goal of possessing the weapon.
(People v. Jones, supra, 103
Cal.App.4th at pp. 1147-1148.)
Gallardo argues that he arrived at the club with four
or five companions, “any one of whom might have been the possessor of the
firearm.” He argues that it was not
certain he actually retrieved the gun from the trunk. He points out that the security guards saw
him open the trunk and retrieve something, but neither saw that the item was a
gun. But, as noted, whether section 654
applies is a question of fact for the trial court, and its findings will not be
reversed on appeal if they are supported by substantial evidence. The testimony of the security guards provided
sufficient evidence that Gallardo retrieved a gun from the trunk, even though
they did not actually see a firearm.
They testified that Gallardo’s actions of looking in the trunk and
putting an item in his waistband strongly suggested to them that Gallardo was
arming himself. Moreover, Gallardo was
searched before he entered the club, lending credence to the theory that he
retrieved the gun from the trunk after the club closed.
Finally, we observe that the purpose of section 654 is
to ensure that punishment is commensurate with a defendant’s culpability. (People
v. Jones, supra, 103 Cal.App.4th at p. 1148.) “This concept ‘works both ways. It is just as undesirable to apply the
statute to lighten a just punishment as it is to ignore the statute and impose
an oppressive sentence.’
[Citation.] Section 12021
uniquely targets the threat posed by felons who possess firearms. [Citation.]”
(Ibid.) There is no reason why a felon who chooses to
arm himself in violation of former section 12021 should escape punishment for
that offense because he then uses the firearm to commit a second offense. (People
v. Jones, supra, at
p. 1148.) Punishment for both the
possession of a firearm by a felon and the murder and attempted murder is
commensurate with Gallardo’s culpability and furthers the legislative goal of
discouraging firearm possession by felons.
(See ibid.)
DISPOSITION
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
name="_ftn1" title="">[1] All further undesignated statutory
references are to the Penal Code.
name="_ftn2" title="">[2] Gallardo
had dropped the Mustang off at his cousin’s house after the shooting, and took
her truck in its place.
