Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. INF057301, Richard A. Erwood, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
A jury found defendant Robert Anthony Trejo guilty of first degree murder (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise stated) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). On count 1, the jury also found defendant personally discharged a firearm causing the victim’s death (§ 12022.53, subd. (d)). In a bifurcated trial, the court found defendant had suffered two prior strike convictions (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and a prior serious felony conviction (§ 667, subd. (a)), plus had served two prior prison terms (§ 667.5, subd. (b)). Based on the verdicts and findings, the court sentenced defendant to an aggregate state prison term of 132 years to life.
Defendant seeks reversal of his conviction, arguing the trial court erred in denying his motion for a mistrial based on prosecutorial misconduct, and his trial attorney rendered ineffective assistance in failing to request a jury instruction on voluntary intoxication. Alternatively, he attacks the sentence, claiming the court erred by using a prior juvenile adjudication as a prior strike conviction, and by refusing to stay the sentence on count 2 under section 654, subdivision (a). Finding all of these contentions lacking in merit, we affirm.
FACTS
Around 5:30 p.m. on a mid-January day, a man wearing dark clothing approached three teenagers standing outside a unit of an apartment complex. The man said, “Hey, homie, ” and began firing a handgun. Ryan Dague, one of the teenagers, was struck by the bullets and fell to the ground. The gunman approached Dague, shot him again, and then walked quickly away. Dague died from his gunshot wounds.
Joseph and Manuel Garcia, two other tenants, heard shooting and saw a person dressed in dark clothing running or jogging through the complex. Joseph Garcia testified the man was carrying a handgun. Manuel Garcia observed the man’s face. The police showed him two photographic lineups, each containing a picture of defendant. After reviewing the second lineup, Manuel Garcia pointed to defendant’s picture and said it looked like the person he saw on the evening of the murder. At trial, Manuel Garcia identified defendant as the man he saw just after the shooting.
Vivian Diaz, a cousin of Rosemary Delao, defendant’s girlfriend, lived in the complex. A few minutes after the shooting, defendant encountered Diaz and entered her family’s apartment. He sat on the couch rubbing his hands on his pants, shoes, and the furniture. He told one family member “they ‘blasted on some kid.’” Later, he told another family member, “[s]ome little white boy got shot.” When Diaz asked defendant to step outside and get some air, he “said no because there was [sic] two cops in front of the apartment.”
Diaz gave defendant a ride to Delao’s house. As he left Diaz’s apartment, defendant threw his sweatshirt on the couch. One family member testified defendant also said, “‘Viva la raza.’”
At Diaz’s direction, a family member later threw the sweatshirt in a trash dumpster. Samantha Curiel, another member of the Diaz household, called the police and informed them of the sweatshirt’s location.
That night defendant spoke with Delao. At trial, Delao testified defendant told her that he had gone to the complex to visit his brother, heard shots, and saw someone chasing the victim, and that the victim fell down. Otherwise, Delao denied telling the police or Diaz that defendant made other statements about the killing.
Sergeant Coe testified he questioned Delao. Coe claimed Delao told him defendant refers to himself in the third person and on the night after the shooting defendant said “that fool was shooting... and that he shot him a lot of times, ” and disclosed several other details about the murder. Delao also told Coe that two months earlier defendant had said “God has put him here... to... rob people and kill people and spend the rest of his life in prison.” Diaz testified that in a conversation the day after the shooting, Delao said defendant had claimed he walked into the apartment complex and when he saw the teenagers, God told him that was the one, so he began shooting.
Delao also told Diaz the location of the gun. Diaz repeated this information to Curiel who again contacted the police and informed them of where it could be found.
DNA testing of the sweatshirt indicated defendant was a possible contributor. A reddish-brown spot on the sweatshirt was also analyzed. The spot tested presumptively positive for blood. DNA analysis determined Dague could not be excluded as a possible contributor.
A criminalist analyzed the gun. Casings from test firing the weapon matched the casings found at the crime scene. The gun was also subjected to DNA analysis, resulting in a finding defendant was a possible contributor to DNA found at 12 of 15 locations tested. Michael Nalley, Delao’s brother, testified he and defendant occasionally spent time drinking together. Nalley had owned a gun similar to the one confiscated by the police, and discovered his weapon was missing around the Thanksgiving holiday preceding Dague’s homicide.
The police arrested defendant on an unrelated matter two days after the shooting. While defendant was being held in the city jail, an officer observed him seeking the attention of another inmate and overheard him saying “187” when the inmate passed by his cell.
Once the police informed defendant he was being charged with Ryan Dague’s murder, defendant replied, “‘What do you guys have?’ and ‘Whatever you guys think you have on the sweatshirt’....” During a subsequent interrogation, defendant initially claimed he had been home except for one hour in the early afternoon of the day Dague was killed. Later, defendant said he went to an apartment complex adjacent to that where the shooting occurred to visit his brother. The trial testimony showed defendant’s brother actually lived in the apartment complex where Dague was killed. Defendant then claimed that when he heard the shooting, he jumped a six-foot fence between the two apartment complexes and ran into Diaz. He also initially denied, but then admitted, leaving a sweatshirt at Diaz’s apartment.
Defendant testified in his own defense. He denied being involved in Dague’s murder or making any of the statements attributed to him. Defendant claimed that around 5:00 p.m. the day of the shooting, he went to visit his brother. Finding no one home, he began to leave. He heard shots coming from the adjacent apartment complex and climbed a six-foot fence to find out what was happening. Encountering Diaz standing outside her apartment using the telephone, defendant entered the apartment. While there he commented “maybe it was one of them white boys that got shot down there on the corner.” Before entering the apartment, defendant removed his sweatshirt because he was perspiring, but left on his black denim jacket because it was cold. When he left the apartment, defendant forgot to take the sweatshirt with him.
After being arrested two days later on an unrelated charge, defendant used a jail cell telephone to make some calls. He then learned the police were looking for him in relation to a murder. Seeing an acquaintance returning from a court appearance, defendant told him “they were trying to wash me up or lock me up for 187.”
DISCUSSION
1. The Denial of Defendant’s Mistrial Motion
a. Background
At the beginning of trial, defense counsel noted his client’s tattoos, including one on his left cheek that he obtained after being taken into custody. Counsel noted “this is not a gang case” and the tattoos on defendant “are not gang related, ” and requested “nothing be said about the tattoos.” The prosecutor responded the recent facial tattoo “would be an ID issue, ” indicated “one of the possible motives” for the murder was race, and stated “if the defendant takes the stand, ... it may become an issue depending how the evidence comes out....” The court ruled the prosecutor could mention the facial tattoo “with respect to the identity issue, ” but that an Evidence Code section 402 hearing would be required “if you start going into the motivation for the crime....”
Before defendant took the stand, defense counsel again mentioned his client’s tattoos, stating he had “no problem if the D.A. discusse[d]” the “prominent tattoo on his left cheek, ” but asked “that... other tattoos... not be mentioned.” The prosecutor replied “[a]s I understand it, ... I can inquire as to the meaning and the significance of the tattoo on his left cheek, but no other tattoos.... That’s agreeable.”
On direct examination, defendant described the tattoo on his cheek as “14th [C]entury Aztec tribal art” that meant his “birth date.” On cross-examination, the prosecutor asked defendant whether the tattoo is “actually the Aztec signal for [the] number 13....” Defendant said no. After further questions about defendant’s knowledge of Aztec number symbols, the prosecutor asked whether the facial tattoo is “a Sureno gang tattoo.” The court sustained a defense objection and struck defendant’s denial. The prosecutor asked further questions about when defendant obtained the tattoo and how the marking indicated his birth date. She then asked defendant, “you got that tattoo... as a symbol that goes to the Mexican Mafia; right.” Defendant denied it and the court again sustained defense counsel’s objection and struck the answer.
Defense counsel requested a hearing outside the jury’s presence where he moved for a mistrial, arguing the prosecutor’s repeated references to gangs constituted misconduct because “[t]here is no evidence whatsoever... any gang was involved in any way in this case” and that the “allegations” defendant “belongs to a mafia or a gang... are so prejudicial that we cannot unring the bell in this case.” The prosecutor first argued her question was relevant to show motive “because he wants to go to prison, and he’s setting it up... to gain points with... the groups there in prison.” She further claimed Dague’s homicide was “a racially motivated shooting.”
The court rejected both explanations. But, after taking a recess to review several cases on the issue, the court decided to deny the mistrial request. Instead, it admonished the jury “[t]here was a reference made... in one of the questions about the Mexican Mafia. I am going to order you to disregard that comment. The question was objected to, and I sustained the objection, and you are not to consider that comment for any purpose.”
b. Analysis
Defendant first contends the trial court abused its discretion by denying his motion for a mistrial. He claims “the prosecutor’s reference to the Mexican Mafia was extremely inflammatory and prejudicial and the harm could not be cured by the court’s admonishment to the jury to disregard the comment, particularly since the prosecutor’s questions inferred the tattoo stood for the number 13 and for Sureno, a gang.”
The legal principles applicable to this issue are well settled. “‘A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.]’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) Since “[a] motion for mistrial is directed to the sound discretion of the trial court” (People v. Jenkins (2000) 22 Cal.4th 900, 985), on appeal, “we apply the deferential abuse of discretion standard [citation].” (People v. Wallace, supra, 44 Cal.4th at p. 1068.)
The objectionable questions, occurring “after the trial was well along, permit[ted] the judge to view the situation from retrospective advantage.” (People v. Woodberry (1970) 10 Cal.App.3d 695, 709.) Here, except for the prosecutor’s references to the Sureno and Mexican Mafia gangs, no other mention of gangs or gang activity had occurred during trial. Defendant cites to the fact the prosecutor asked whether the tattoo stood for the Aztec symbol for the number 13. But absent further evidence tying that number to the criminal street gang culture, it is unlikely the jurors understood the implication of that line of questioning.
As respondent notes, in addition to admonishing the jury to disregard the prosecutor’s reference to the Mexican Mafia, the trial court also sustained defense objections to the prosecutor’s queries about whether the tattoo indicated membership in either the Sureno gang or the Mexican Mafia and struck the answers to those questions. Both at the beginning of trial and before jury deliberations, the court gave CALCRIM No. 222, which states “[n]othing that the attorneys say, ” including “[t]heir questions[, ] are... evidence” and “[d]o not assume that something is true just because one of the attorneys asked a question that suggested it was true.” In addition, the court twice gave the portion of this instruction addressing rulings on evidentiary objections: “During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses.... If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose.” Absent a contrary showing, we presume the jury followed the foregoing instructions. (People v. Holloway (2004) 33 Cal.4th 96, 151; People v. Osband (1996) 13 Cal.4th 622, 714.)
Therefore, we conclude the trial court did not abuse its discretion by giving the admonition and denying the motion for mistrial.
2. Ineffective Assistance of Counsel
a. Background
Delao testified she saw defendant around 4:30 p.m. on the day of the shooting. She admitted defendant “drinks a lot” and had been drinking that day. On direct examination, Delao claimed “[defendant] wasn’t drunk, ” and denied recalling that she told a police officer she thought he was drunk. But on cross-examination, she testified he seemed to have been drinking quite a bit and was under the influence of alcohol.
At the completion of the prosecution’s case-in-chief, the court and counsel discussed jury instructions on lesser included offenses. The judge stated his “tentative take” was to instruct on “murder with premeditation/deliberation, murder 2, [and] possibly voluntary manslaughter.” Defense counsel commented he “d[id not] think there will be any lesser included offenses, ” but “[u]ntil I re-talk with my client to see what we are going to do, I can’t really discuss... whether or not we are going to ask for... or if there is a basis for lesser included offenses that could be requested.”
The next day, before defendant took the witness stand, the court again raised the issue. Defense counsel stated, “At this point I believe the instructions for murder first and second should be given, and there is some evidence [on] which I think perhaps voluntary manslaughter may be given, based on the testimony of intoxication by [Delao].... So if the jury makes a finding that he was there at the shooting, perhaps they can then go to the evidence of voluntary intoxication. [¶] I am not ready at this point to argue that. I put that out as a hypothetical.... But as of right now and the state of the evidence, I believe only the first- and second-degree instructions ought to be given.”
The prosecutor argued “voluntary intoxication... does not apply to manslaughter.” The trial court disagreed, stating “I think the intoxication, if there was substantial evidence of the intoxication, ... can reduce the crime to voluntary manslaughter because it could eliminate the element of malice.... [¶] However, I don’t think right now there has been substantial evidence to give the lesser included offenses. So in looking over the instructions and reading some of the cases, it would appear to me now that the jury should only be instructed on first-degree murder, second-degree murder, and not guilty.” Defense counsel responded, “If I bring out more competent evidence regarding the intent and also as to voluntary intoxication, then we can bring it up. As of right now I don’t think there is sufficient evidence as the Court indicated.” The trial court replied, “[d]epending upon what your evidence shows, next week we can readdress that issue.” After both parties rested, defense counsel stated “I believe our defense solely rests on that he was not there when this occurred; that he had nothing to do with it.”
b. Analysis
Citing the references to voluntary intoxication as a basis to reduce his offense to voluntary manslaughter, defendant contends his trial counsel’s comments reflect he “misunderstood the applicability of voluntary intoxication to negate the specific intent to kill and reduce first degree murder to second degree murder, ” thereby precluding “the jury... from considering whether [his] intoxicated state prevented him from premeditating, deliberating, and forming the intent to kill.” Thus, he argues trial counsel’s failure to request the jury be instructed with CALCRIM No. 625 on voluntary intoxication constituted ineffective assistance of counsel. We disagree.
“To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s action was, objectively considered, both deficient under prevailing professional norms and prejudicial. [Citation.]” (People v. Hinton (2006) 37 Cal.4th 839, 876.) The burden of establishing these elements is on the defendant. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
“‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citation.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” [Citation.]’ [Citation.]” (People v. Hinton, supra, 37 Cal.4th at p. 876.) This deference concerning tactical decisions applies where defense counsel declines to request the jury be instructed on a particular point of law. (People v. Dennis (1998) 17 Cal.4th 468, 527.)
CALCRIM No. 625 allows a jury to “consider evidence... of the defendant’s voluntary intoxication... in a limited way, ” such as “whether the defendant acted with an intent to kill” or “with deliberation and premeditation....” However, “an instruction on voluntary intoxication, explaining how evidence of a defendant’s voluntary intoxication affects the determination whether defendant had the mental states required for the offenses charged, is a form of pinpoint instruction that the trial court is not required to give in the absence of a request. [Citation.]” (People v. Bolden (2002) 29 Cal.4th 515, 559; see also People v. Saille (1991) 54 Cal.3d 1103, 1120.)
The record reflects defendant’s trial attorney did consider the possibility of requesting an instruction on the effect of his intoxicated condition, but ultimately chose not to do so. Contrary to defendant’s argument, the reason for declining to seek the instruction resulted from a decision to proceed solely on theory defendant “had nothing to do with” Dague’s murder, not trial counsel’s misconception concerning the scope of a voluntary intoxication defense. Such an approach precludes an ineffective assistance of counsel claim. In People v. Wader (1993) 5 Cal.4th 610, the Supreme Court rejected an analogous claim where defense counsel failed to request an instruction on voluntary intoxication. “Defendant’s version of events was that he specifically intended not to kill the victim when he shot her. According to defendant, he did harbor a specific intent when he fired the third and fatal shot-to scare the victim, and nothing more. An instruction on voluntary intoxication as negating specific intent would have been inconsistent with defendant’s theory of the case. Accordingly, we cannot say that defense counsel had no rational tactical purpose in not requesting an instruction on intoxication.” (Id. at p. 643.) The appellate record reflects the same is true in this case.
Furthermore, the record negates a finding defense counsel’s failure to request the instruction prejudiced defendant. A defense attorney’s omission does not amount in ineffective assistance of counsel where the appellate record shows his or her request would have been futile. (People v. Waidla (2000) 22 Cal.4th 690, 735-736; People v. Ferraez (2003) 112 Cal.App.4th 925, 934.)
While there was some evidence defendant had been drinking before the shooting and may have been under the influence it was not very persuasive. The only person to so testify was Delao and she made conflicting statements on the state of his inebriation. Defendant did not claim he was under the influence and the testimony given by Diaz and other members of her household appeared to negate any intoxication theory. As a result, the trial judge expressed his opinion the evidence of defendant’s alcohol use was not sufficient to support giving the instruction. Nor do we agree with defendant’s claim the trial judge erred in so finding. (People v. Williams (1997) 16 Cal.4th 635, 677-678 [no error in refusal to instruct on voluntary intoxication as a defense unless “there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent’”].) Given the evidence and the court’s comments, the failure of defense counsel to request an instruction on voluntary intoxication did not prejudice defendant.
3. Use of Defendant’s Juvenile Conviction as a Strike Prior
One of the prior strike convictions found true by the trial court arose from a juvenile adjudication defendant suffered when he was 16 years old. Defendant now contends “reliance on the juvenile adjudication... to increase his sentence for the present offenses beyond the statutory maximum violated his right to equal protection of the laws under the Fourteenth Amendment because, as a juvenile charged with a serious felony, he had been deprived of the right to a jury trial....”
The Attorney General notes, this argument has already been rejected. Defendant acknowledged in his opening brief his claim was “akin to” an issue before the California Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007. After defendant filed his brief, the Supreme Court issued its decision in Nguyen declaring “we agree... that the Fifth, Sixth, and Fourteenth Amendments, as construed [by the United States Supreme Court] in Apprendi [v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]], do not preclude the sentence-enhancing use, against an adult felon, of a prior valid, fair, and reliable adjudication that the defendant, while a minor, previously engaged in felony misconduct, where the juvenile proceeding included all the constitutional protections applicable to such matters, even though these protections do not include the right to jury trial.” (People v. Nguyen, supra, 46 Cal.4th at p. 1019.)
In his reply brief, defendant claims Nguyen does not resolve the same issue, claiming “[i]t does not appear from Nguyen that an equal protection argument was ever raised, much less considered....” We disagree.
Nguyen expressly refers to the Fourteenth Amendment in its holding. While it is true the decision’s focus concerned the effect of the United States Supreme Court’s ruling in Apprendi on the constitutionality of using juvenile adjudications as prior convictions, Nguyen noted that, with the exception of the case being decided, “all California Court of Appeal panels to address the issue in a published opinion, both before and after Apprendi, have squarely held that the Fifth, Sixth, and Fourteenth Amendments permit the use of prior juvenile adjudications to enhance the sentences for subsequent adult offenses, even though there is no right to a jury trial in juvenile proceedings.” (People v. Nguyen, supra, 46 Cal.4th at p. 1020.)
Nguyen’s explanation of the rationale for these appellate court decisions also negates defendant’s attempt to distinguish that decision. “Prior juvenile adjudications substantially satisfy all the reasons... why prior convictions may be employed to increase the maximum punishment for a subsequent adult offense without the need for jury findings in the later case. Like prior adult criminal convictions, such prior juvenile judgments do not involve facts about the current offense that were withheld from a jury in the current case, but instead concern the defendant’s recidivism..., a basis on which courts, acting without juries, traditionally have imposed harsher sentences. Moreover, the prior criminal misconduct establishing this recidivism was previously and reliably adjudicated in proceedings that included all the procedural protections the Constitution requires for such proceedings-indeed, every substantial safeguard required in an adult criminal trial except the right to a jury. Use of such reliably obtained juvenile judgments of prior criminality to enhance later adult sentences does not offend an adult defendant’s constitutional right to a jury trial in an adult criminal proceeding. Conversely, it makes little sense to conclude, under Apprendi, that a judgment of juvenile criminality which the Constitution deemed fair and reliable enough, when rendered, to justify confinement of the minor in a correctional institution is nonetheless constitutionally inadequate for later use to establish the same individual’s recidivism as the basis for an enhanced adult sentence. Such a determination would preclude a rational and probative basis for increasing an adult offender’s sentence-that he or she was not deterred from criminal behavior by a youthful brush with the law-unless juveniles were afforded a right to jury trial, which the Constitution does not require.” (People v. Nguyen, supra, 46 Cal.4th at pp. 1021-1022; see also People v. Fowler (1999) 72 Cal.App.4th 581, 585-586.) In light of this reasoning, we find defendant’s equal protection claim unavailing.
As the Attorney General notes, People v. Nguyen, supra, 46 Cal.4th 1007 is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, we conclude the trial court properly considered defendant’s prior juvenile adjudication for sentencing purposes in this case.
4. Section 654
At sentencing, the trial court imposed a consecutive 25-years-to-life sentence on count 2, rejecting defendant’s assertion the sentence on this count must be stayed under section 654. Claiming “the record is devoid of any evidence placing the gun in [his] possession before the shooting took place, ” defendant repeats his section 654 argument on appeal.
Section 654, subdivision (a) declares “[a]n act or omission that is punishable in different ways by different provisions of law” cannot “be punished under more than one provision.” In Neal v. State of California (1960) 55 Cal.2d 11, the Supreme Court declared the statute applies “‘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 “[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act... depends on the intent and objective of the actor.” (Id. at p. 19.) Thus, “[i]f 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.” (Ibid.; see also People v. Deloza (1998) 18 Cal.4th 585, 591 [“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct”].)
Where a trial court imposes separate terms, it implicitly finds the defendant held more than one criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) “‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments, ] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’ [Citation.]” (People v. Coleman (1989) 48 Cal.3d 112, 162.) A “‘finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.’ [Citation.]” (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.) “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. [Citation.]” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
The record supports the trial court’s refusal to stay the sentence for defendant’s conviction under section 12021, subdivision (a)(1). The parties agree the case law concerning when a trial court may separately punish a conviction under this statute depends on whether “‘the evidence shows a possession distinctly antecedent and separate from the primary offense....’ [Citation.]” (People v. Bradford (1976) 17 Cal.3d 8, 22, quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821.) Thus, “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.” (People v. Jones, supra, 103 Cal.App.4th at p. 1145.)
Here, Nalley testified he owned a gun similar to the one identified as the murder weapon, defendant spent time with him, and he discovered the gun missing nearly two months before Dague’s murder. Diaz testified Delao told her defendant said before the shooting he walked along a street, “asked [a] guy for a cigarette, ” but “God told him he was not the one....” Defendant then told Delao that he entered the apartment complex and ran into the teenagers, at which point “God told him that was the one.” Thus, there was evidence supporting a finding defendant’s possession of the firearm preceded his use of that weapon to murder Ryan Dague. We find the record supports the trial court’s sentence on count 2.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., FYBEL, J.