PEOPLE v. MESAAppellant's Petition for ReviewCal.August 24, 2010IN THE SUPREME COURTOF THE STATEOF CALIFORNIA ) THE PEOPLE OF THE STATE ) OF CALIFORNIA, ) ) Supreme Court Plaintiff and Respondent, ) No. ) V. ) Court of Appeal ) No. D056280 TOMMY ANGEL MESA, ) ) Superior Court Defendant and Appellant. ) No. RIF137046 ) ) APPEAL FROM THE RIVERSIDE COUNTY SUPERIOR COURT HONORABLEHELIOS J. HERNANDEZ, JUDGE Ste Goofy thee kdpor ay Soh mye PETITION FOR REVIEW AUG 24°0 RICHARD DE LA SOTAecasiick Lach OY E State Bar No. 45003) ~~ P.O. Box 77757 Corona, CA 92877 (310) 406-5752 Attorney for Appellant, Tommy Angel Mesa By appointmentofthe Court of Appeal under the Appellate Defenders, Inc. cow \\ assisted case system TOPICAL INDEX PAGE ISSUES PRESENTED FOR REVIEW ]. DOES PENAL CODE SECTION 654 BAR SEPARATE SENTENCING FOR VIOLATING SECTION 186.22, SUBDIVISION (a) (ACTIVE PARTICIPATION IN A CRIMINAL STREET GANG) ONE ELEMENT OF WHICH IS THAT THE DEFENDANT PROMOTE, FURTHER, AND ASSIST FELONIOUS CRIMINAL CONDUCT BY MEMBERS OF THE GANG, AND FOR THE UNDERLYING FELONY OFFENSE USED TO SATISFY THAT ELEMENT OF THE GANG PARTICIPATION CHARGE?cccccreecee eter teetetterienneeneenene 2 NECESSITY OF REVIEW........ cece cence cece nee eeenent ees 2 STATEMENT OF THE CASE...... ccc ccc cececence ene ee aneetieeey 5 STATEMENT OF FACTS... cece ceceener een nner n ee ene rae6 ARGUMENT I. SECTION 654 BARS SEPARATE SENTENCING FOR VIOLATING SECTION 186.22, SUBDIVISION (a) AND THE UNDERLYING FELONY OFFENSE THAT SUPPLIES PROOF OF THE “PROMOTE/FURTHER/ ASSIST” ELEMENT OF THAT CHARGE...................000657 CONCLUSION... occ c cece nereee nee eas 13 CERTIFICATION OF WORD COUNT. ..... ccc cece ceceeee nee 14 APPENDIX AQ... 0.cccEEEEEE EEE ee 15 TABLE OF AUTHORITIES PAGE(S) CASES In re Jose P. (2003) 106 Cal.App.4"" ASB ccc cece enter ee ee tener ene e es 7 Neal vy. State of California (1960) 55 Cal.2d 11...ceceeee ees 7,8 People v. Adams (1975) 14 Cal.3d 629..........cccc cece cece nee erent eee eens 8 People v. Adams (1982) 137 Cal.App.3d 346......... ccc cece eee eee ee 8, 10 People v. Beamon(1973) 8 Cal.3d 625.0... ....ccccce cece enereteen 8 People v. Harrison (1989) 48 Cal.3d 321.00... cece eee etterBy TT People v. Herrera (1999) 70 Cal.App.4" 1456...0ccece3, 4, 10, 11, 12 People v. Latimer (1993) 5 Cal.4" 1203 .........ccccccceeeeeeeeeeeeeeeeeeen 11,12 People v. Liu (1996) 46 Cal.App.4" 1119..........ccccceeeeeeeeeeeneeeerenneneeen 7 People v. Ngoun (2001) 88 Cal.App.4"" 432.......cccccccccceeessteertttereeeeen 9 People v. Osband (1996) 13 Cal.4 622.0 cicccccccccccceeeeeeeceeeeeeeeeeeeeeeeens 8 People v. Perez (1979) 23 Cal.3d 545.0... cece cece cere nen e eee tena ee rene: 8 People v. Sanchez (2009) 179 Cal.App.4" L297 ccc cc eee ene eee eres 3,5, 12 People v. Scott (1994) 9 Cal.4™ 331 ..ccccccccecceeceeceeeeeeeeeeeteeeeeenneneneaes 8 People v. Vu (2006) 143 Cal.App.4" 1009....000...ccccccccceeeeeeeeeeneeees 4,12 STATUTES Penal Code Section 186.22, subd. (a)............cccccece eect ee eeeeeee 1, 2, 3, 4,5, 6, 9, 10 Section 186.22, subd. (b)......... cece cece nee e een ee eee e ee ne eee e enna ee enas 6 Section 245, subd. (a)(2)........ ccc cccce cece ene e enn e rete ee nae nets 1,2,3,5,6 Section 654.0... ccc cccc cece e eee eeeeeeeeeeeeeaes2,3, 4,7, 8, 10,11, 12 Section 12021 ........ 0c. ccc cece cece cece eevee nese eeeaeeeeseneenneesess 1,2, 3,5, 6 RULES California Rules of Court Rule 8.500(b)(L)scccccccccceceesceceseevetecceeeceaeeeusseevevseenteveeeeesnees 2 INSTRUCTIONS CALCRIM NO. 1400 .....ccccccccccccccececsecsecccccecsesscecececeuetsseeseeeutttttseteceeees 9 ill IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, upreme Court No, Plaintiff and Respondent, ourt of Appeal V. 0. D056280 TOMMY ANGEL MESA, Superior Court No. RIF137046 Defendant and Appellant. N e e N a e e e e e e e e e e e e e e e e e e ” Z O APPEAL FROM THE RIVERSIDE COUNTY SUPERIOR COURT HONORABLEHELIOS J. HERNANDEZ, JUDGE PETITION FOR REVIEW TO THE HONORABLE RONALD GEORGE, CHIEF JUSTICE OF CALIFORNIA, AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Tommy Angel Mesa, defendant and appellant, respectfully petitions this court for review following the published decision ofthe Court of Appeal, Fourth Appellate District, Division One, D056280,filed on July 13, 2010, affirming the trial court’s imposition of separate sentences for appellant’s convictions for violating Penal Code' sections 186.22, subdivision (a) (active participation in a criminal street gang) as well as for violating sections 245, subdivision (a)(2) (assault with a firearm) and section 12021 (ex-felon in possession ofa firearm) even though appellant’s convictions for violating ' Unless otherwise specified, all further statutory references are to the Penal Code. sections 245, subdivision (a)(2) and 12021 supplied the only evidence of one of the elementsofthe street gang offense -- that appellant promoted, furthered, or assisted felonious criminal conduct by members ofthe gang in which appellant was alleged to have been an active participant. Thetrial court, in other words, punished appellant twice for committing a single act by imposing separate sentences for appellant’s violation of section 186.22, subdivision (a) and for his violations of sections 245, subdivision (a)(2) and 12021 because it sentenced appellant for a crime that required for proofof one ofits elements the commission of an underlying offense, and it sentenced appellant for the commission of the underlying offense as well. A copy of the Court of Appeal’s opinionis attached to this petition as Appendix “A.” ISSUES PRESENTED FOR REVIEW 1. DOES PENAL CODE SECTION 654 BAR SEPARATE SENTENCING FOR VIOLATING SECTION 186.22, SUBDIVISION (a) (ACTIVE PARTICIPATIONIN A CRIMINAL STREET GANG), ONE ELEMENT OF WHICH IS THAT THE DEFENDANT PROMOTE, FURTHER, AND ASSIST FELONIOUS CRIMINAL CONDUCT BY MEMBERSOF THE GANG, AND FOR THE UNDERLYING FELONY OFFENSE USED TO SATISFY THAT ELEMENT OF THE GANG PARTICIPATION CHARGE? NECESSITY OF REVIEW The various decisions of the Courts of Appeal that have considered this issue are in irreconcilable conflict with one another. Review ofthis issueis, therefore, necessary to secure uniformity of decision and settle important questions oflaw. (Cal. Rules of Court, rule 8.500(b)(1).) b o Appellant was convicted of two counts each of assault with a firearm in violation of section 245, subdivision (a)(2), being an ex-felon in possession of a firearm in violation of section 12021, and being an active participant in a criminal street gang in violation of section 186.22, subdivision(a) arising out of two separate, unrelated shooting incidents. The Court of Appeal, Fourth Appellate District, Division One, affirmed the trial court’s decision to sentence appellant for his violations of section 186.22, subdivision (a) separately and consecutively to the sentences the court imposed for the violations of section 245, subdivision (a)(2) and 12021 even though proof that appellant committed the latter two offenses supplied the only proofof one of the elements ofthe 186.22, subdivision (a) charge -- that appellant promoted, furthered and assisted felonious criminal conduct by members of the gang in which appellant was alleged to have been an active participant. In People v. Sanchez (2009) 179 Cal.App.4" 1297, the Court of Appeal, Fourth Appellate District, Division Two, considered the exact question presented by this case and cameto the opposite conclusion. The court ruled in that case that since the commission of the underlying felonies (two counts of robbery) supplied the only proof ofthe “promote/further/assist” element of the gang participation charge, sentencing for the gangparticipation violation separate from the robbery convictions was barred by section 654. (/d. at p. 1316.) While this case and Sanchez are the two most recent decisions onthis issue that directly conflict with one another, the conflict itself goes back even further. In People v. Herrera (1999) 70 Cal.App.4" 1456, for example, the defendant, a gang member, and his companion committed a drive-by shooting at a house that was associated with a rival gang in retaliation for an earlier shooting committed by members of the rival gang. Two people were injured as a result. (/d. at p. 1461.) The defendant was convicted of two counts of attempted murder and one count of being an active participant in a criminal street gang. (/d. at p. 1462.) The court held that because the focus of section 186.22, subdivision (a) is on the defendant’s objective to promote, further and assist felonious criminal conduct by membersofhis gang, the section requires a separate intent and objective from the underlying felony, which wastheintent to kill. That being the case, the court reasoned, the perpetrator of the underlying felony could have “two independent, even if simultaneous, objectives” which would negate the applicability of section 654. (People v. Herrera, supra, 70 Cal.App.2d at pp. 1467-1468.) In People v. Vu (2006) 143 Cal.App.4" 1009 the defendant and another person killed the victim in the mistaken belief that the victim was a member ofa rival gangthat had, on an earlier occasion, attacked Vu and others in his gang. (/d. at pp. 1011, 1013-1014.) Thetrial court sentenced Vu to concurrent terms for murder and conspiracy to commit murder and imposed a consecutive eight-month term for a gang participation charge. (/d. at p. 1013.) The samecourt that decided Herrera (Fourth Appellate District, Division Three) came to a conclusion on the sameissue in Vu that cannot be reconciled with the holding in Herrera. In Vu, the court decided that section 654 precluded separate sentencing for the gang participation charge and the underlying felony because the defendant had but a single objective in committing the murder, the conspiracy to commit murder and the gang charges. The objective wasto avengethe earlier attack on the defendant and his fellow gang members sothat the intent to kill and the intent to promote the gang were “dependent on, and incidentto the other.” Section 654, therefore, precluded separate punishment for the gangparticipation charge. Ud. at p. 1034.) Division One’s decision in this case is legally unsound. The underlying felonies of which appellant was convicted supplied the proofof one ofthe elements of the gang participation charge. Since appellant was convicted of, and sentenced for, a crime that required the commission of an underlying offense and ofthe underlying offense itself, his intent and objective in committing the gang participation crime hadto be the sameashis intent and objective in committing the underlying felonies. It negates the operation of section 654 to hold otherwise. This court should grantreview to resolve the conflict between this case and People v. Sanchez, supra, 179 Cal.App.4" 1297, as well as the conflict created by the other cases that have considered the sameissue, and to affirm section 654’s application to the situation presentedby this case. STATEMENT OF THE CASE Appellant was convicted of a numberofoffenses stemming from his shooting and seriously wounding two people in twoseparate, unrelated incidents -- Galen White on April 27, 2007 and Alvin Pierre on April 29, 2007. Asit relates to this petition, appellant was convicted of two counts of assault with a firearm in violation of section 245, subdivision (a)(2) (Counts 2 and 6), two countsof being an ex-felon in possession ofa firearm in violation of section 12021 (Counts 3 and 7), and two counts ofactively participating in a criminal street gang in violation of section 186,22, subdivision (a) (Counts 4 and 8). One count of assault with a firearm (Count 2), one count of being an ex-felon in possession of a firearm (Count 3), and one count of being a participant in a criminal street gang (Count 4) related to the April 27 shooting of Galen White, and the other three counts (Counts 6, 7, and 8) related to the April 29 shooting of Alvin Pierre. (2 CT 389-390; 4 RT 741-746.) Allegations that appellant committed the crimes charged in Counts 2 and 3 for the benefit of a criminal street gang within the meaning ofsection 186.22, subdivision (b) were found true, but the jury deadlocked on the same allegations with respect to Counts 6 and 7. (2 CT 389-390; 4 RT 741-746.) The court later granted the prosecution’s motion to dismiss the section 186.22, subdivision (b) allegations as to Counts 6 and 7. (2 CT 470-471; 4 RT 764-768.) The trial court sentenced appellant to an aggregate determinate term of 39 years, eight monthsin state prison. The sentence included twoterms of eight months each for appellant’s convictions ofviolating section 186.22, subdivision (a) consecutive to the sentences the court imposed for appellant’s convictions for violating sections 245, subdivision (a)(2) and 12021. STATEMENT OF FACTS For purposesofthis petition, the Court of Appeal’s opinion accurately describes the facts ofthe case. Briefly, on April 27, 2007, the defendant accosted a man named Galen White and asked him, “Why are you walking tough in my neighborhood?” (1 RT 94-95, 107.) When Mr. White said he wasn’t from that neighborhood, appellant pulled out a handgun andfired it three times at Mr. White, striking him oncein the left side. (1 RT 101-104, 109.) On April 29, 2007, appellant said, “What the fuck are you looking at?” to some people in a passing car. (1 RT 198, 200-201.) When he saw Alvin Pierre, who happenedto be passing by on his bicycle, looking at him, appellant asked Mr.Pierre the same thing. Appellant then shot Mr. Pierre 6 from about 10 feet away, the shot striking Mr. Pierre in the groin and destroying his left testicle. (1 RT 202-206, 209-210.) Appellant wasarrested on May 30, 2007, and the gun that was used in both shootings was foundin the closet in which he was hiding when he was confronted bythe police. (2 RT 323, 325, 352.) ARGUMENT 1. SECTION 654 BARS SEPARATE SENTENCING FOR VIOLATING SECTION 186.22, SUBDIVISION (a) AND THE UNDERLYING FELONY OFFENSE THAT SUPPLIES PROOF OF THE “PROMOTE/FURTHER/ASSIST” ELEMENT OF THAT CHARGE Section 654, subdivision (a), in pertinent part, provides as follows: “An act or omission that is punishable in different ways by different provisions of law shall be punished underthe 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 “expressly prohibits multiple sentences where a single act violates more than onestatute.” (Jn re Jose P. (2003) 106 Cal.App.4™ 458, 468.) In that situation, “the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, [but] the trial court may impose sentence for only one offense -- the one carrying the highest punishment.” (People v. Liu (1996) 46 Cal.App.4" 1119, 1135.) Section 654 also precludes multiple punishment where a defendant commits more than one act violating more than one statute whenthe acts comprise an “indivisible course of conduct” with a single intent or objective. (Neal v. State ofCalifornia (1960) 55 Cal.2d 11, 19.) On the other hand, separate punishment for each offense is permitted when the defendant has more than one criminal objective, even if the offenses constituted parts of an indivisible course of conduct. (People v. Beamon(1973) 8 Cal.3d 625, 637-639.) “Whether the course of criminal conductis divisible and therefore gives rise to more than one act within the meaning of section 654 dependson the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses, but not for more than one.” (Neal v. State of California, supra, 55 Cal.2d atp. 19.) If all the offenses are “merelyincidental to, or were the means of accomplishing orfacilitating one objective, [the] defendant may be found to have harbored single intent and therefore may be punished only once.” (People y. Harrison (1989) 48 Cal.3d 321, 335.) The issue in any case where the applicability of section 654 is atissue, therefore, is whether the defendant entertained single or multiple criminal objectives in committing the crimes for which he suffered convictions. (People v. Adams (1975) 14 Cal.3d 629, 635.) “The defendant's intent and objective are factual questionsfor 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.” (People v. Adams (1982) 137 Cal.App.3d 346, 355.) Thetrial court’s express or implied findings on this issue will be upheld on appealif they are supported by substantial evidence. (People v. Osband (1996) 13 Cal.4" 622, 730.) A court acts in excess ofits jurisdiction when it erroneously stays or fails to stay a sentence pursuant to section 654. Any such sentenceis unauthorized. (People v. Scott (1994) 9 Cal.4" 331, 354, fn. 17.) As a result, “Te}rrors in the applicability of section 654 are corrected on appeal regardless of whether the point wasraised by objection in the trial court or assigned as error on appeal.” (People vy. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.) To prove a violation of section 186.22, subdivision (a) the prosecution must show three things: That (1) the defendant actively participated in a criminal street gang (2) with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and that (3) he must have willfully promoted, furthered, or assisted in felonious criminal conduct by membersofthe that gang. (§ 186.22, subd. (a).) The “promote/further/assist” element of the offense has been held to be satisfied by the defendant’s own commission of a felony offense. A gang member who commits a felony, in other words, also promotes, furthers and assists felonious criminal conduct (his commission ofthat felony) by a gang member (himself) for the purpose of determining if there has been a violation of section 186.22, subdivision (a). (People v. Ngoun(2001) 88 Cal.App.4" 432, 436.) In this case, the court used CALCRIM No. 1400to instruct the jury that the “promote/further/assist” element of the gang participation charge was satisfied by appellant’s commission (either as a perpetrator or as an aider and abettor) of the underlying felonies of assault with a firearm or possession of a firearm by an ex-felon. (2 CT 359-360; 3 RT 637-639.) The prosecutor argued that appellantsatisfied that element of the gang participation charge in the same way. “In this situation we’re dealing with a crime he committed himself. How do we know heactively participated? The circumstances ofhis offense.” (Supp. RT 99-100.) In this case, then, appellant could only have been convicted of the gang participation charge if the jury found that he promoted, furthered, and assisted felonious criminal conduct by gang members, and it could only have madethat finding based upon the evidence that he committed the underlying felonies of assault with a firearm and possession of a firearm by an ex-felon. No other evidence waspresented as to that element ofthe offense. To impose separate punishments consistent with the terms of section 654, “There must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.” (People v. Adams, supra, 137 Cal.App.3d at p. 355.) Giventhis factual and procedural background, the answerto the question whether there was evidence that supported a finding that appellant harbored a separate intent and objective for every crime for which he was sentenced has to be answeredin the negative. For a numberof reasons, Division One’s conclusion that there was such evidence does not withstand scrutiny. First, the opinion relies upon the decision in People v. Herrera, supra, 70 Cal.App.4" 1456.) (Opn., Appendix A,p. 21.) In Herrera, the defendant and a fellow gang member,in retaliation for an earlier shooting by members of a rival gang, drove by a house associated with the rival gang and fired a numberofshots, injuring two people. The court upheld separate sentencing for the defendant’s convictions of attempted murder and gangparticipation. The Herrera court reasoned that since section 186.22, subdivision (a) required a different intent (to participate actively in a gang) than the intent necessary for the commissionofthe underlying felony (the intentto kill), the perpetrator of the underlying crime could have a separate intent from that necessary for the gang participation charge, “precluding applicationof section 654.” (/d. at p. 1468.) Whileit is true that a violation of section 186.22, subdivision (a) requires for its proof a showingofan intent different than that necessary for an underlying crime, that fact is irrelevant for purposes ofsection 654 analysis. A properanalysis of an issue involving section 654 should focus, not on the statutory elements ofthe particular crime, but on the defendant’s intent and objective. Section 654 bars multiple punishment even where a defendanthas “multiple criminal objectives” if those objectives were not “independent,” 10 but “merely incidental to” each other. (People v. Harrison, supra, 48 Cal.3d at p. 335.) For example, a defendant who kidnaps a womanand drivesherto an isolated area where he rapes herhasto entertain two separate intents to be convicted of both kidnapping and rape -- he hasto intend to take the victim from one place to another against her will and he hasto intend to force her to have intercourse with him. However, since the kidnapping is the means by which the rape is accomplished andis incidental to its commission, the defendant’s multiple criminal objectives are not independent of one another and section 654 bars separate sentencing for both the kidnapping and the rape. (People y. Latimer (1993) 5 Cal.4""1203, 1216.) In addition, the Herrera court asserted that if section 654 were to apply to the situation presented by this case, the gang participation charge would become a nullity (People v. Herrera, supra, 70 Cal.App.4"at p. 1468), an assertion echoed by the court below (Opn., Appendix A, p. 22). That is simply not the case. First, there is nothing to prevent the prosecution from proving the “promote/further/assist” element ofthe gang participation charge in some way other than relying on the defendant’s commission ofthe underlying offense. Second, the Herrera court’s resolution ofthe issue is basically that a court would be justified in imposing separate sentencesfor gang participation and the underlying felony necessary for the proofof the gang participation charge if the crimes had different statutory elements.If that were the correct analysis, section 654 would neverapplyto bar separate sentencing. The truth is that the Herrera court’s analysis (and, by extension, the analysis of the court below) is would nullify the operation of section 654. Moreover, Division One’s finding that appellant had two motives in shooting the two victims -- “to both harm the individual victims and to demonstrate to the entire community the power of |appellant’s] gang” (Opn., 1] Appendix A,p. 22) -- belies its conclusion that appellant had two separate, independent objectives. Assumingthat the court below wascorrect in its assessment of appellant’s intent and that he simultaneously intendedto harmhis victims and to assert the power of the gang in which he wasalleged to haveactively participated, it is apparent that those intents cannotbesaid to have been “independent”of each other for purposes of section 654 analysis. If appellant shot his victims to assert the powerof his gang, then the two objectives were clearly not independent of one another, but the one was incidental to the other. By that reasoning, the shooting was the means by which appellant asserted the powerofthe gang in the same waythat the kidnapping in Latimer was the means by which the defendantin that case accomplished the act of rape. In either case, section 654 bars separate sentencing for both crimes. Finally, and most importantly, the only way the jury in this case could have found appellant guilty of the gang participation charge wasby finding that he committed the underlying offenses -- assault with a firearm and possession of a firearm. The commission ofthose offenses supplied the proof of one of the elements of the gang participation charge and turned appellant's gang membership, which,ofitself, was not a crime, into a criminal offense. “!The] crucial point is that, here, as in Herrera and Vu, [appellant] stands convicted of both (1) a crime that requires, as one ofits elements, the intentional commission of an underlying offense, and (2) the underlying offenseitself.” (People v. Sanchez, supra, 179 Cal.App.4" at p. 1315.) Since the proof of the commissionof the one offense depended uponthe commission ofthe other, appellant’s intent and objective in committing the one must have been the sameasit was in committing the other. (/d. at p. 1314.) 12 CONCLUSION For the reasonsset forth above, appellant respectfully submits that his petition for review should be granted. Dated: August 20, 2010 Respectfully submitted, “> Lo. wpe peceeOAC wlA Richard de la Sota State Bar No. 45003 Attorney for Defendant and Appellant Tommy Angel Mesa CERTIFICATION OF WORD COUNT ], Richard de la Sota, hereby certify that, according to the word processing program used to prepare this document,this petition for review contains 3,732 words. Executed at Corona, California, on August 20, 2010. WoMELd . Richard de la Sota 14 APPENDIX A 15 Filed 7/13/10 CERTIFIED FOR PUBLICATION COURTOF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D056280 Plaintiff and Respondent, V. (Super. Ct. No. RIF137046) TOMMY ANGEL MESA, Defendant and Appellant. APPEAL fromjudgmentsof the Superior Court of Riverside County, Helios J. Hernandez, Judge. Affirmed in part; reversed in part with instructions. Richard de la Sota, 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, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.” In separate incidents, Tommy Angel Mesa, a gang member, shot and severely wounded two complete strangers. He used the same gunin both incidents, and later was found in possession ofthe gun and several rounds of ammunition. Mesa was convicted of two countsof assault with a firearm, three counts of being a felon in possession ofa firearm, one count of being a felon in possession of ammunition, and two counts of actively participating in a criminal street gang. With respect to the assault convictions, the jury found true great bodily injury and personal firearm allegations. With respect to one of the assault convictions and one of firearm possession counts, the jury found gang participation allegationstrue. Mesadoesnot challenge his convictions on the substantive counts or the sufficiency of the evidence supporting the enhancements. Nonetheless, Mesa raises a numberofsentencing issues. First, he contends, and the Attorney General agrees,that ° Cristin Morneau, a certified law student, presented oral argument. 16 with respectto one ofthe assault convictions, the trial court erred in imposing the gang enhancement. As Mesa points out, Penal Code’section 1170.1, subdivsions (f) and (g), preventedthetrial court from imposing the gang enhancement along with either the firearm enhancementor the great bodily injury enhancement. Secondly, he contendsthetrial court erred in imposing consecutive sentences on the three firearm possession convictions. He argues the record shows hehad continuous possession ofthe firearm andthat, in light of that continuous possession, section 654 required that imposition of sentencing be stayed on two of the firearm possession counts. Weagree. A felon's continuouspossession ofa single firearm does not permit multiple punishments for violation of the statute that prohibits felons from possessing a firearm. Mesa also argues section 654 prevents separate punishments for assault and for participation in a criminalstreet gang. We disagree with this contention. The criminal street gang statute punishes conductand intentionsthat are separate from the conduct and intentions that give rise to culpability for assault with a firearm. Finally, Mesa argues he should not have been punished for both possessing a firearm and possessing ammunition. Wedisagree with this contention as well. Where, as here, a felon has possession of both a firearm and ammunitionthatis not in the firearm, separate punishments may be imposed. Accordingly, we reverse Mesa's convictions in part and remand for further proceedings. FACTUAL BACKGROUND The record shows Mesa was a memberofthe Coronerosset of the Corona Varios Locos criminalstreet gang. Onthe evening of April 27, 2007, Ghalen W.wasasleep nextto his four-year-old son in the apartment in Corona wherehelived with his two other sons and their mother. April 27 was prom night and Ghalen's oldest son Jeron wasat homethat evening with his prom date. At around 10 p.m., Jeron woke Ghalen up and asked him to go outside with himandhis date so that they could meethis date's mother. Jeron told his father a group of guys were hanging around outside the apartment. Ghalen wentoutside his apartmentand saw a group offive or six Hispanic males, including Mesa. Ghalentold his son and his date to stay near the apartment while Ghalen went to see if the date’s mother had arrived. As Ghalen walked toward the street, Mesa confronted him andsaid: "Whyare you walking tough in my neighborhood, Holmes?" Ghalen believed this statement meant Mesa and the others were members of a gang and he wasin theirterritory. Ghalen told Mesa he wasnotfrom the area, hoping that would satisfy Mesa. It did not. Mesa responding by saying: "But you're still walking tough in my neighborhood." Ghalen then explained he wasjust there for his son's prom; Mesa repeated the statement "You'restill walking tough in my neighborhood.” As Mesa continued walking towards Ghalen, Ghalen remembered oneofthe doors ofhis car, which wasinfront of him, was unlocked. Mesa pulled out a gun, pointed it at Ghalen and began shooting as Ghalen dove into his car. Ghalen heard three shots fired and felt ; All further statutory referencesare to the Penal Code unless otherwise specified. 17 severe pain. Mesa looked in the back windowofthe car and began running. Ghalen had been shotin the side and the bullet traveled through his body and exited on the left side of his torso. Twodays after Ghalen wasshot, on April 29, 2007, Alvin Pierre wasriding his bike to a shopping center in Corona. As Pierre rode into the parking lot, he heard Mesa say: "What the fuck are you looking at?" Pierre rode past Mesa, got off his bike near a store and tried to ask Mesa what he had said. Before Pierre could complete a sentence, Mesapulled out a gun and shot Pierre in the groin. The bullet entered Pierre's left leg, traveled through his scrotum, and exited fromhis right leg. Pierre's shattered left testicle had to be removed. Police arrested Mesa in his home on May 30, 2007. Officers found Mesa, wearing a bullet proof vest, hiding in a closet. When Mesa wasfound, he was wearing an empty gun holster and had a .45 caliber magazine in his front pocket with 10 rounds of .45 caliber ammunition in it. The police also found a handgunin the closet; a ballistics expert testified shell casings found nearthe scene of the Ghalen and Pierre shootings had been fired from the handgun. Police also found a duffel bag in the closet, and in the duffel bag they found a .22 caliber rifle loaded with seven rounds of ammunition and 46 rounds of additional ammunition. TRIAL COURT PROCEEDINGS With respect to the Ghalen shooting, Mesa was charged with attempted murder, assault with a firearm, being a felon in possessionofa firearm, and being a participant in a criminal street gang. (Counts 1-4.) With respect to the Pierre shooting, Mesa was charged with similar counts of attempted murder, assault with a firearm, being a felon in possessionofa firearm, and being a participant in a criminal street gang. (Counts 5-8.) In addition, with respect to the circumstances which existed at the time ofhis arrest on May30, 2007, Mesa was charged with an additional countofbeing a felon in possession ofa firearm (count 9) and one count of being a felon in possession of ammunition (count 10). All three firearm possession counts identified a .45 caliber handgunasthe firearm Mesa unlawfully possessed. The jury could not reach verdicts on either the Ghalen or Pierre attempted murder counts, and the trial court dismissed those counts pursuant to section 1385. Asto both the Ghalen and Pierre shootings, the jury found Mesa guilty of assault with a firearm, being a felon in possessionof a firearm, and participating in a criminal street gang. With respect to his arrest, the jury found Mesa guilty on the third count of firearm possession and the ammunition possession count. In addition to the substantive crimes for which he was found guilty, the jury found true a numberof special circumstance allegations. With respect to both assault convictions, the jury found Mesa had committed great bodily harm and had personally used a firearm. With respect to the Ghalen shooting and Mesa’'s possession ofa firearm during the shooting, the jury found true gang enhancementallegations. Mesa admitted the truth of two prison sentences. Thetrial court imposed a total sentence of 39 years 8 months. Thetotal term imposed included 23 years in consecutive sentences on the enhancements the jury found 18 true with respect to the assault on Ghalen: three years for the great bodily injury enhancement, 10 years for the personal use of a firearm enhancement, and 10 years for the gang enhancement. Mesa waseligible for a full strength 10-year gang enhancement, rather than the otherwise applicable two-, three- or four-year enhancement, "only because he 'use[d] a firearm which use [was] charged and proved as provided in . . . Section 12022.5.' [Citation.]" (People v. Rodriguez (2009) 47 Cal.4th 501, 509.) With respect to the Ghalenfelon in possessionofa firearm count, the trial court imposed a consecutive sentence of eight monthsplus 16 months on the gang enhancement. Thetrial court imposed consecutive eight-month sentences on the remaining two firearm counts and an eight-month consecutive sentence on the ammunition possession count. Onthe two gang participation counts, the court imposed consecutive eight-month sentences. DISCUSSION In his first argument on appeal, Mesa contends and, as weindicatedat the outset, the Attorney Generalagrees,the trial court erred in imposing sentence onall three enhancements foundtrue with respect to the assault on Ghalen. In People v. Rodriguez, supra, 47 Cal. 4th at page 509, the court held that, where, as here, the 10-year enhancement for gangparticipation is based on a defendant's use ofa firearm in commission of the underlying offense, the trial court may not also impose a separate enhancementfor the personaluseof a firearm under section 12022.5, subdivision (a). The court held that, under those circumstances, imposition of both enhancementsis barred by section 1170.1, subdivision (f), which provides in pertinent part: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weaponor a firearm in the commission of a single offense, only the greatest of those enhancementsshall be imposed for that offense." (People v. Rodriguez, supra, 47 Cal.4th at p. 509.) Asthe court in People v. Rodriguez determined, given these circumstances, the proper remedy is "no/ to strike the punishmentundersection 12022.5 but to reverse the trial court's judgment and remand the matter for resentencing. [Citation.] Remand will give the trial court an opportunity to restructure its sentencing choicesin light of our conclusion that the sentence imposed here violated section 1170.1's subdivision (f)."_ (/d. at p. 509.) n Next, Mesa contendsthetrial court erred in imposing consecutive sentences onall three felon in possession ofa firearm convictions. We agree with Mesa. Section 654, subdivision (a), provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished underthe | As Mesapointsout, section 1170.1, subdivision (g), provides a similar limitation when,as here, a great bodily injury enhancementhas been foundtrue. 19 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 punishmentfor a single act or for a course of conduct comprising indivisible acts. 'Whether a course ofcriminal conduct is divisible . . . depends on the intent and objective ofthe actor.’ [Citations.] '[I]f all the offenses were merely incidental to, or were the means of accomplishingorfacilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ [Citation.]" (People v. Evers (1992) 10 Cal.App.4th 588, 602.) In People v. Spirlin (2000) 81 Cal.App.4th 119, 130, the court found that where, as here, the evidence showed the defendant had the same handgunonthree separate occasions, but there was no evidence which suggested he everlost possession ofthe weapon, the defendant could only be punished oncefor violation of section 12021. In People v. Spirlin the defendant used a gunin two separate robberies committed within one month. Six days after the last robbery, the defendant was arrested and found with the same gun. His wife told police he had the gun for a couple monthsbefore his arrest. In determining only one punishment could be imposed, the court stated: "The key inquiry here is whether defendant's objective and intent in possessing the handgunonall three occasions were the same, thus making the crime oneindivisible transaction subject only to one punishmentundersection 654. [Citation.] Section 12021 does not require any specific criminal intent; general intent to commit the proscribedactis sufficient. [Citation.] The act proscribed by section 12021 is possessionof a firearm by a convicted felon. [Citation.] Possession may be either actual or constructive as long it is intentional. [Citation.] 'The proof need not conform to the exact date laid in the information,it being sufficient to prove the commissionofthe offense at any timepriorto the filing of the information withinthe statutory period—the commission ofthe act here charged is not the kind that does not constitute a crime unless committed on a specific date; timeis not of the essence or a material ingredient of the offense ....' [Citation.|" (People v. Spirlin, supra, 8\ Cal.App.4th at p. 130.) The court concluded the defendant completed the offense once he took possession of the gun, and in light of the fact there was no suggestionin the record he ever lost possession, he could not be said to have completed separate violations ofsection 12021 whenhe committed the robberies. While the court found that what the defendant did with the gun "i.e. commit the robberies, were 'separate and distinct transaction|s] undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon’[citation], the same cannotbesaid ofhis continuous possession of the weapon. In other words, defendant's intent to possess the weapon as a felon did not change each time he committed a robbery or when he was arrested and the gun confiscated." (People v. Spirlin, supra, 81 Cal.App.4th at pp. 130- 131.) Weagree with the holding and reasoning in People v. Spirlin. The conduct proscribed by section 12021, i.e. the actual or constructive possessionofa firearm by a felon, is by its nature continuous. Asthe court in People v. Spirlin suggested, that being the case, where possessionof a firearm hasnot beeninterrupted,there is no acceptable rationale by which such continuous possession can be divided so that separate intention or objectives can be identified. Thus, we decline the Attorney General's suggestion that we depart from People v. Spirlin. Here, as in People v. Spirlin, there is no evidence Mesaeverlost actual or constructive possession ofthe .45 caliber handgun which wasthe subject of his three convictions for violation of section 12021. Thus, under section 654 he may only be punished for one of those convictions. Ul Next, Mesa contendsthat under section 654 he could not be punished for both assaulting a victim with a firearm and participation in a criminal street gang. Accordingly, he contendsthetrial court erred in imposing consecutive eight-month sentences for the two criminal street gang convictions. We disagree with this contention. A. The California Street Terrorism and Prevention Act The California Street Terrorism and Prevention Act (the Street Gang Act), section 186.20 et seq. was enacted in 1988. (Stats. 1988, ch. 1242, § 1.) In adopting the Street GangAct, the Legislature made a numberof findings, including the following: "[T]he State of California is in a state of crisis which has been caused by violent street gangs whose membersthreaten, terrorize, and commit a multitude of crimes against the peacefulcitizens of their neighborhoods. These activities, both individually and collectively, present a clear and present dangerto public order and safety and are not constitutionally protected. The Legislature finds that there are nearly 600 criminal street gangs operating in California, and that the numberof gang-related murdersis increasing. The Legislature also finds that in Los Angeles County alone there were 328 gang-related murders in 1986, and that gang homicides in 1987 have increased 80 percent over 1986. It is the intent ofthe Legislature in enacting this chapter to seek the eradication of criminalactivity by street gangs byfocusing upon patterns ofcriminal gang activity and upon the organized nature of street gangs, which together, are the chiefsource ofterror created bystreet gangs. The Legislature further finds that an effective means of punishing and deterring the criminal activities of street gangs is through forfeiture of the profits, proceeds, and instrumentalities acquired, accumulated, or used by street gangs." (§ 186.21.) Giventhese findings, the Legislature enacted section 186.22, subdivision (a), which makes it a crime to participate in street gang activity. Section 186.22, subdivision (a), states: "Any person whoactivelyparticipates in any criminal street gang with knowledgethat its members engage in or have engaged in a patternofcriminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by membersofthat gang, shall be punished by imprisonmentin a county jail for a period not to exceed one year, or by imprisonmentin the state prison for 16 months, or two or three years.” Wethink it is worthwhile at the outset to recognize that in both its findings and in describing prohibited conduct, the Legislature was plainly focused on patternsofgang activity and the consequent ferrorthose patternsof activity engender. Thus,it is not surprising that the courts which have considered the issue have consistently held that section 186.22, subdivision (a), may be applied to both the aiders and abettors of gang crimes and where the evidence supports the gang connectionto the crime, the direct perpetrators of crimes. (See People v. Sanchez (2009) 179 Cal.App.4th 1297, 130; People v. Salcido (2007) 149 Cal.App.4th 356, 368; People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) Where a direct perpetrator has committed a crime as a meansof asserting the powerof and respect for the gang, the direct perpetratoris just as culpable under section 186.22, subdivision (a), as any aider and abettor. (People v. Salcido, supra, 149 Cal.Ap.4that p. 368.) Here, the shootings Mesa committed were part of a larger pattern ofgangactivity, and plainly that pattern created the sort of terror which was the focus of the Legislature's efforts in adopting the Street Gang Act. Moreover, the evidence of the manner in which Mesa's crimes were carried out, including in particular Mesa's statements to the victims, showsthey were committed as a meansofasserting the gang's power and commanding respect. As we explain morefully below, nothing in section 654 prevented Mesa from being punished for both the grievous harm he did to Ghalen and Pierre and forthe separate terrorall of his gang activity, including the shootings, engenderedin his community. B. People v. Herrera, People v. Vu, & People v. Sanchez In Peoplev. Sanchez (2009) 179 Cal.App.4th 1297, 1310-1313, the court recently considered a claim similar to the one Mesa makesandin the course of doing so set forth the developmentin Court of Appeal opinions ofa body of law interpreting the requirements of section 654 when,as here, a defendant has been punished for both violating section 186.22, subdivision (a), and a separate criminal statute: "The earliest case dealing with the application of section 654 in the context of a gang participation charge is People v. Herrera (1999) 70 Cal.App.4th 1456 (Fourth Dist., Div. Three). "In Herrera, two gangs engagedina series ofretaliatory shootings. In the most recent one, shots were fired at a house occupied by membersofthe defendant's gang. One ofthemthen drove and picked up the defendant, who explainedto his girlfriend that this "home boys were after the guys."' [Citation.] The defendant and his cohort then drove by a house identified with the rival gang, made a U-turn, and drove by again,firing shots both times. Onthe first pass, two people were hit. (Citation. | "As result, the defendant was convicted of (among other things) one count of gang participation and two counts ofattempted murder. [Citation.] The court held that section 654 did not require the trial court to stay the gang participation term. It explained: '"[Ml]ultiple punishment . .. may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives. [Citations.]" [Citation. ] "'The characteristics of attempted murder andstreet terrorism are distinguishable .... In the attempted murders, Herrera's objective was simply a desire to kill. For these convictions, the identities (or gang affiliations) of his intended victims were irrelevant.’ [Citation.] At this point, the court noted that there was'sufficient [evidence] to establish the specific intent to kill required for both counts ofattempted murder. [Citations.]' [Citation.] "It continued: ‘{U]nder [Penal Code] section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminalstreet gang. However, he does not needto have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant's objective to promote, furtheror assist the gang in its felonious conduet, irrespective of who actually commits the offense. For example, this subdivision would allow convictions against both the person whopullsthe trigger in a drive-by murder and the gang member wholater conceals the weapon, even though the latter memberneverhad thespecific intent to kill. Hence, section 186.22, subdivision(a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime maythus possess "two independent, even if simultaneous, objectives[,]" thereby precluding application ofsection 654. {Citation.|' [Citation.] Atthis point, the court found sufficient evidence that the defendant ‘intended to aid his gang in felonious conduct, irrespective of his independent objective to murder.' [Citation.] "Finally, the court added: '[I]f section 654 were held applicable here,it would render [Penal Code] section 186.22, subdivision (a) a nullity whenever a gang member was convicted ofthe substantive crime committed in furtherance of the gang. "[TJhe purpose ofsection 654'is to insure that a defendant's punishment will be commensurate with his culpability.’ [Citation.]" (Citation.] We do notbelieve the Legislature intended io exempt the most culpable parties from the punishmentunderthe street terrorism statutes.’ [Citation.]" (People v. Sanchez, supra, 179 Cal.App.4th at pp. 1310-1311.) Followingits discussion of People v. Herrera, the court in People v. Sanchez noted: "Herrera was followed by the Fourth District, Division Three in People v. Ferraez (2003) 112 Cal.App.4th 925 and bythe Sixth District in Jn re Jose P. (2003) 106 Cal.App.4th 458. They both indicated that multiple punishment for gang participation and for the underlying offense is permissible as long as the underlying offense requires a different specific intent. (Ferraez, at p. 935 [possession of drugs with the intent to sell]; Jose P., at pp. 470-471 [robbery].) Thus, they addedlittle to Herrera’s analysis. "Thereafter, however, the Fourth District, Division Three decided People v. Vu (2006) 143 Cal.App.4th 1009. The authorof Herrera was a concurring panel memberin Vu. There, the defendant and other membersof his gang conspired to kill the victim under the mistaken impression that he was a memberofa rival gang. [Citation.] The defendant was convicted of (among other things) gang participation and conspiracy to commit murder. [Citation. ] "The court held that section 654 required the trial court to stay the gang participation term. [Citation.] It stated: ‘Herrera is distinguishable because the defendant was charged with a courseof criminal conduct involving two gang-related, drive-by shootings in which two people were injured. [Citation.]. .. "Under Neal, Vu committed different acts, violating more than onestatute, but the acts of conspiracy and street terrorism constituted a criminal course of conduct with a single intent and objective. That single criminalintent or objective was to avenge [a fellow gang member's killing by conspiring to commit murder. Although that intent or objective could be parsed further into intent to promote the gang andintent to kill, those intents were not independent. Each intent was dependenton, andincidentto, the other.’ [Citation.]" (People v. Sanchez, supra, 179 Cal.App.4that p. 1312, fn. omitted.) In People y. Sanchez the court rejected the reasoning and holding in Peoplev. Herrera and accepted the holding, but not the reasoning, of the court in People v. Va. In People v. Sanchez the defendant was convicted of both committing a robbery with a 23 confederate and participating in a street gangin violation of section 186.22, subdivision (a). In finding that he could not be punished for both crimes, the court stated: "Here, the underlying robberies werethe act that transformed mere gang membershrp—which, by itself, is not a crime—into the crime ofgang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies. Gang participation merely requires that the defendant 'willfully promote{d], further[ed], or assist[ed] in any felonious criminal conduct by members ofthat gang... .' [Citation.] It does not require that the defendantparticipated in the underlying felony with the intent to benefit the gang. [Citations. | "In our view, the crucial pointis that, here, as in Herrera and Vu, defendant stands convicted of both (1) a crimethat requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself. Thus, the most analogousline of cases involves convictions for both felony murder and the underlying felony. It has long beenheld that section 654 bars multiple punishment under these circumstances. [Citations.] The logic is that the underlying felony'is a statutorily defined elementof the crime of felony murder' [citation], and thus the underlying felony is 'the same act which madethe killing first degree murder.’ [Citation. ] "Mostsignificantly for our purposes, multiple punishment for both felony murder and the underlying felony is barred even whenthere is evidence the killing was intentional and premeditated [citation]; thus, the trial court cou/d have found that the defendant had the intent and objective ofkilling in connection with the murder, as well as the separate intent and objective of taking property in connection with an underlying robbery." (People v. Sanchez, supra, 179 Cal.App.4th at p. 1315.) C. Our Resolution With due respect to our colleagues who decided People v. Sanchez, we believe the court in People v. Herrera hasthe better of this dispute. First, from a practical perspective, it seems somewhat incongruoustous to hold, as the court in People v. Sanchez did, that althoughthe direct perpetrator of a gang crime may be foundguilty of violating section 186.22, subdivision(a), he may not be punished for that crime because of the bar imposed bysection 654. (See People v. Sanchez, supra, 179 Cal.App.4th at pp. 1308, 1315-1316.) We of course agree with the court in People vy, Sanchez, as well as the courts in People v. Salcido (2007) 149 Cal.App.4th 356 and People v. Ngoun (2001) 88 Cal.App.4th 432, that a direct perpetratoris just as culpable as an aider and abettorfor violation of section 186.22, subdivision (a). However, rather than ignoring the Legislature's obvious intention that direct perpetrators be punished as well as aiders and abettors, we would draw fromthat intention an inference that in enacting section 186.22, subdivision (a), the Legislature meant to recognize an independent crime—gangparticipation—rather than a species of dependent criminal culpability. Secondly, we are unpersuaded by the court's reliance in People v. Sanchez on the rule in felony-murder cases. In a felony-murder case wherethere is only onevictim,the element of malice is found by way ofthe fact the homicide occurred during the commission of a dangerous felony. Where the underlying felony is robbery, there is but oneact, "the act of robbery . .. which made the homicide first degree murder." (People 24 v. Mulqueen (1970) 9 Cal.App.3d 532, 547.) Multiple punishmentis not permissible underthose circumstances because there was only one act and more importantly only one criminal objective. (/bid.) Mesa's culpability under the Street Gang Act is quite different. Violation of section 186.22. subdivision (a), does not depend solely on the commission of the underlying offense. Rather, it depends on both the commission of the underlying offense and the separate act ofactively participating ina gang. Thus, unlike felony murder, liability under section 186.22, subdivision (a), necessarily depends on conduct distinct from the conduct which givesrise to liability for any underlying offense. Significantly, liability underthe statute and liability for an underlying offense will in most instances involve distinct criminal objectives and quite distinct impacts. Here, the record supports the inference the shootings were intended to both harmthe individual victims and to demonstrate to the entire community the power of Mesa's gang. The distinct nature of these objectives and consequences can be seen vividly in the behavior of Ghalen's son Jeron. Jeron plainly knew the danger Mesa's gang posed to him andto his prom date before any shots were fired. The pattern of Mesa's gang activity clearly had already had its impact. The fear Mesa and his fellow gang members created in the mind of that young man andhis date on the evening of their prom wasthe very focus ofthe Legislature in enacting the Street Gang Act. (See § 186.21.) Importantly, Mesa would have and could have reinforced those fears by committing any numberofdifferent and lesser offenses against Jeron's father or his property and still been liable under section 186.22, subdivision (a). Mesa chose to assault Ghalen with a firearm. The shots Mesafired had a direct and devastating impact on Ghalen; however, in light of the express purposes of the Street Crime Act, we cannot turn a blind eye to the separate and unique impact Mesa's shots no doubt had on Jeron, his date and anyoneelse in the vicinity who witnessed the shooting or later heard about it. They plainly had to have beenterrorized by the shooting and their fear of the gang had to have been amplified. The sameis true with respect to the shooting of Pierre. Pierre not only suffered grave harm, but any of the shopkeepers, their employees or members of the public who witnessed the shooting were no doubt terrorized by the act. It is that terror which the Legislature expressly addressed in section 186.21. In this sense, separate punishment under section 186.22 is far closer to the well- recognized exception to section 654 which permits multiple punishment when a defendant's conduct has injured more than onevictimthan it is to the felony-murderrule, relied uponby the court in People v. Sanchez. (See e.g. People v. Williams (1992) 9 Cal.App.4th 1465, 1473.) In sum, wesee nothing in section 186.22, subdivision (a), or section 654 which suggests Mesa should not be punished both for the broader crimesof instilling terror in a community by way of the multiple acts of his gang and the distinct and more grievous crimes of wounding Ghalen and Pierre. Thus, we find no violation of section 654 in punishing Mesa for both assault with a firearm and violation ofsection 186.22, subdivision(a). IV Finally, Mesa argues that he could not be punished for both possessing a firearm and possessing ammunition. Wefind noerror. Arguably, Mesa could not be punished for both possessing a firearm and possessing the ammunition in the firearm. (See People v. Lopez (2004) 119 Cal.App.4th 132, 137.) Here, however, the record shows that Mesa wasin possessionof both a weapon and a fair amount of ammunition which wasnot in the weapon. Under these circumstances, his possession of a weapon and ammunition were distinct enough to permit separate punishment. DISPOSITION The judgments of conviction are affirmed in part and reversed in part and remanded forfurther proceedings consistent with the views we have expressed. BENKE,Acting P. J. WE CONCUR: NARES,J. AARON,J. 26 DECLARATION OF SERVICE Case Name: TOMMY ANGEL MESA No. D056280 1, the undersigned, say: | am over 18 years of age, employed in the County of Riverside, California, in which county the within-mentioned delivery occurred, and not a party to the subject cause. My business address is P.O. Box 77757, Corona, California. Myelectronic notification address is delasota45003@gmail.com. I served the PETITION FOR REVIEW of whicha true and correct copy of the documentfiled in the causeis affixed, by placing a copy thereof in a separate envelope for each addressee named hereafter, or by sending a copyelectronically, addressed to each such addressee respectively as follows: Attorney General 110 W. “A” St., Ste 1100 P.O. Box 85266 San Diego, CA 92186-5266 (Served electronically and by mail) Riverside County District Attorney Attn: Appeals Division 4075 Main Street Riverside, CA 92501 Tommy Mesa #P85323 P.B.S.P. B06 226 P.O. Box 7000 Crescent City, CA 95532 Riverside County Superior Court Attn: Appeals Division 4100 MainStreet Riverside, CA 92501 Appellate Defenders, Inc 555 West Beech St., Suite 300 San Diego, CA 92101-2939 (Served electronically) California Court of Appeal Fourth District, Division One 750 B Street, Suite 300 San Diego, CA 92101 Each envelope was then sealed and with the postage thereon fully prepaid deposited in the United States mail by me at Corona, California, on August 23, 2010. Electronic service was madeto the parties specified above pursuant to California Rules of Court, rule 2.260(f)( )(A0-(D) by attaching a copy of this brief and the proof ofservice to e-mail messages addressed, respectively, to eservice@adi-sandiego.com and ADIEService@doj.ca.gov and sent from myelectronic notification address on the same date. I declare under penalty of perjury that the foregoingis true and correct. Executed on August 23, 2010, at Corona, California. oo < cl ro ene LoA, Richard de la Sota
