P. v. Fuentes























Filed 1/14/13 P. v. Fuentes
CA2/3













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. BERNARDO FUENTES, Defendant and Appellant.

B234530 (Los Angeles County Super. Ct. No. BA365862)

APPEAL from a
judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Anne H. Egerton, Judge.
Affirmed.

Marta I. Stanton,
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, Susan Sullivan Pithey and David Zarmi,
Deputy Attorneys General, for Plaintiff and Respondent.



>_________________________











Bernardo Fuentes appeals the judgment entered following his conviction
by jury of href="http://www.mcmillanlaw.com/">assault with a firearm on a peace officer
in which he personally discharged a firearm, and possession of a firearm by a
felon. (Pen.
Code, §§ 245, subd. (d)(1), 12022.53,
subd. (c), former § 12021, subd. (a)(1).)href="#_ftn1" name="_ftnref1" title="">>[1] Fuentes contends the
judgment should be modified to reflect a stay pursuant to section 654 of the
concurrent term imposed for possession of a firearm by a felon. Fuentes also requests an href="http://www.fearnotlaw.com/">independent review of the in camera hearing on his >Pitchess motion (Pitchess v. Superior
Court (1974) 11 Cal.3d
531). (See People v. Mooc (2001)
26 Cal.4th 1216, 1228-1232.)

Fuentes’s sentencing contention fails because the evidence reveals
Fuentes possessed the firearm prior to the assault. (People v.
Bradford (1976) 17 Cal.3d 8, 22.) With respect to the Mooc request, review of the in camera
hearing reveals no abuse of the trial court’s discretion. We therefore affirm the judgment.

>FACTS AND PROCEDURAL
BACKGROUND

1.
The prosecution’s evidence.href="#_ftn2" name="_ftnref2" title="">[2]

On December 16, 2009, at approximately 1:00 a.m., Sheriff’s Deputies Byron
Cwierz and Robert Lindsey were on patrol on
Wilmington
Avenue between 108th Street and Santa
Ana Boulevard
in Los Angeles when they saw Fuentes walking on Santa Ana Boulevard. Fuentes reached into his
waistband and appeared “to manipulate some type of object in there.” Believing Fuentes had a firearm, the deputies
stopped the patrol vehicle near Fuentes.
When Cwierz asked Fuentes
to approach, Fuentes looked at the patrol car and ran. Cwierz chased Fuentes on
foot and repeatedly ordered him to stop.
Lindsey followed in the patrol vehicle.

When Cwierz got within 30 feet of
Fuentes, Fuentes produced a handgun, turned and
pointed it at Cwierz. Cwierz yelled,
“Drop the gun,” and began to fire at Fuentes.
Fuentes immediately fired two or three rounds at Cwierz and continued
running. Cwierz took cover behind a car
and saw Fuentes run to a residence, fire one more round and then enter the
home. Cwierz fired a total of 16 shots.

Deputy Oscar Barragan searched
the residence and found Fuentes in a bedroom.
A .38 caliber revolver containing four expended cartridges was found in
the attic. Fuentes
suffered a grazing gunshot wound to the back of his head and a gunshot wound to
the thigh. As
Detective Dean Camarillo escorted Fuentes to paramedics, Fuentes said he was
sorry for shooting at the deputy.

2.
Defense evidence.

Fuentes testified he
was walking to his home on East 107th Street when he saw the deputies.
Fuentes ran because he was on probation, he had been smoking marijuana
and he was carrying a firearm for his safety.href="#_ftn3" name="_ftnref3" title="">>[3] Fuentes claimed the deputies exited the
patrol vehicle and immediately started shooting at him, striking him in the
back of his head and his thigh. Fuentes
testified he fired only warning shots and did not point the gun at the
deputies.

DISCUSSION

1. Because Fuentes possessed the
firearm before he used it to assault Deputy Cwierz, the term imposed for
possession of a firearm by a felon need not be stayed.

Fuentes contends he possessed the firearm only as a means of
accomplishing the assault upon Deputy Cwierz.
Because these offenses were not separated in time or place and constituted
a continuous course of conduct against a single victim, Fuentes asserts he
cannot be punished for both. (>People v. Perez (1979) 23 Cal.3d 545, 551-554.) He claims the judgment should be modified to
reflect a stay, pursuant to section 654, of the concurrent term imposed for
possession of a firearm by a felon.href="#_ftn4"
name="_ftnref4" title="">[4]

Fuentes’s claim is not persuasive.
In People v. Bradford, the
seminal case in the area, the defendant disarmed a highway patrol officer and then
used the officer’s weapon to fire at the officer and a passing motorist. name="SR;5610"> Bradford held imposition of consecutive sentences for assault with a
firearm on a police officer and possession of the firearm by a felon violated
section 654.href="#_ftn5" name="_ftnref5"
title="">[5] Bradford reasoned that “ ‘where the evidence shows a possession distinctly
antecedent and separate
from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a
possession only in conjunction with the primary offense, then punishment for
the illegal possession of the firearm has been held to be improper where it is
the lesser offense.’ [Citation.]” (People v. Bradford, supra, 17 Cal.3d
at p. 22, quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821.)

name="SR;12767">The instant name="sp_999_3">name="citeas((Cite_as:_2001_WL_1217249,_*3_(Ca">case is easily
distinguished from Bradford. Here, when the deputies first noticed
Fuentes, he was manipulating an object in his waistband. Subsequent events showed this object to be a
firearm. Also, Fuentes testified that,
before he came into contact with the deputies, he was carrying a firearm for
his safety. Thus, the evidence shows
Fuentes possessed the firearm prior to the assault on Deputy Cwierz. Consequently, because
Fuentes’s possession of the firearm was “ ‘antecedent [to] and separate’ from”
its use in assaulting Deputy Cwierz, section 654
does not require a stay of the term imposed for possession of a firearm by a
felon.name="citeas((Cite_as:_2005_WL_859019,_*6_(Cal">
(People v. Bradford, supra, 17 Cal.3d at p. 22; People
v. Jones (2002) 103 Cal.App.4th
1139, 1148-1149.)

2. >Independent review of the in camera hearing.


The trial court granted Fuentes’s motion for
discovery of the police personnel records of Deputies Lindsey and Cwierz
regarding complaints of excessive force, dishonesty and any evidence of
misconduct amounting to moral turpitude. (See Pitchess v. Superior Court, supra, 11 Cal.3d 531.) The trial court conducted an in camera
hearing on August 24, 2010, but determined there were no records to be
disclosed. Fuentes requests an
independent review of the in camera hearing to determine if any citizen complaints were incorrectly
withheld. (See >People >v. >Mooc, supra, 26 Cal.4th at
pp. 1228-1232.)

Examination of the
sealed reporter’s transcript of the in camera hearing reveals the trial court
committed no abuse of discretion in finding no discoverable police personnel
material in the deputies’ personnel records.


DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We concur:







KITCHING,
J.









ALDRICH,
J.