Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F06969
RAYE, P. J.Following a drive-by shooting, defendant was convicted by jury of three counts of attempted murder (Pen. Code, §§ 664/187, subd. (a)), two with enhancements for personal discharge of a firearm and discharge of a firearm causing great bodily injury (§ 12022.53, subds. (c) & (d)) and one with only an enhancement for personal discharge of a firearm (§ 12022.53, subd. (c)); discharge of a firearm from a motor vehicle (§ 12034, subd. (d)), also with firearm enhancements; and possession of a firearm by a felon (§ 12021, subd. (a)(1)). Defendant was sentenced to 84 years 4 months to life in prison.
All further unspecified statutory references are to the Penal Code.
The victims and witnesses to the shooting were unable to positively identify the shooter. His identity was provided by Jeff Sengon, who identified defendant as the shooter in a police interview. Sengon refused to testify at trial so his testimony at the preliminary hearing, at which he claimed not to remember any events of the shooting, was read to the jury, and the videotape of his police interview was played as an inconsistent statement. On appeal, defendant contends presenting this evidence violated his confrontation rights and trial counsel was ineffective in failing to object. He also contends counsel should have moved for a mistrial after the prosecutor included an incriminating statement by Johnny Truong in opening statement and Truong failed to testify; it was error to admit Sengon’s testimony at the preliminary hearing for Truong; and the sentence on possession of a firearm by a felon must be stayed under section 654. We affirm.
FACTS
The Crime
Teng Lor lived with his parents and nine siblings on 20th Avenue. In 2005, when he was 14 years old, he rode his bicycle to the store and bought a soda. While there, three Asian males demanded his bike and pushed him off, scraping his knee. One of them, later identified as Johnny Truong, said, “ABS... Asian Boyz, this is my block... I rule this block, and you can’t live on my block.”
Teng went home crying and told two of his older brothers what had happened. The three Lor brothers went to look for those who had confronted Teng. When the Lors found them, Truong and his companions took off running and Truong left a bicycle behind. Teng took the bike home.
The older Lors and a friend followed Truong to a house owned by African-Americans. They saw him on the porch using a phone. They thought he might be calling the police, so they left and went home.
A group was congregating at the Lors’ to go bowling. As they were in the front yard discussing cars, two cars, a red Prelude and a silver or gray Civic, drove by, made a U-turn, and came back past the house. Defendant popped out of the sunroof of the red Prelude and asked “what did you do” or “why did you jump my cousin.” Defendant was angry; he pulled out a semiautomatic firearm and began shooting.
Johnson Her was hit in the knee and the chest. He spent a month in the hospital and had surgery. Kou Chang was shot through his ankle. A bullet grazed Joe Lee’s leg, drawing blood.
Eight shell casings were recovered; they all came from the same gun. No fingerprints were found.
Initially, no one was able to identify the shooter. Two years later, Teng Lor saw Truong, the boy who had jumped him, at high school. He told his brother. The brother fought Truong and then told the principal, who called the police. After the police spoke with Truong, they generated a photographic lineup with defendant’s picture in it. Johnson Her thought defendant looked like the shooter; his hair, skin color, and thinness were all similar, but he was not certain.
Jeff Sengon’s Identification and Testimony
After Her tentatively identified defendant as the shooter, Detective Jeffrey Beezley interviewed Sengon. Sengon initially denied being at the shooting. Beezley threatened to put him in a lineup and told Sengon one of the victims would pick him out because he looked different. When Sengon continued to deny that he knew who the shooter was, Beezley told him to stop lying. The detective had two lists, one of witnesses and one of accessories; he told Sengon that with every lie, he got closer to being on the accessory list. Sengon then identified defendant as the shooter.
The People called Sengon as a witness at the preliminary hearing. He testified he knew Truong and defendant. He testified he did not remember any specifics of the incident, answering “I don’t remember” to all questions about the shooting. Sengon recalled speaking to the detective but could not recall what he said. Sengon said he had previously refused to answer questions because he was scared; he was scared of “everybody, ” but not defendant. He was scared something might happen to his family. At the preliminary hearing, Sengon was scared of “anybody, ” the district attorney’s office, and the police. He admitted marijuana had affected his memory.
Over defendant’s objection, the videotape of Sengon’s interview with Detective Beezley was played to refresh his recollection and as an inconsistent statement. The tape did not refresh Sengon’s recollection much.
On cross-examination, Sengon continued not to remember anything about the shooting. He did testify that after he spoke with Beezley, the detective crossed his name off the list of those to be charged, which took the pressure off Sengon. Sengon did recall he had identified defendant as the shooter. He thought the shooter would get in a lot of trouble.
At trial, the People again called Sengon as a witness. Sengon was scared to testify and asserted his Fifth Amendment privilege. He was offered immunity but still refused to testify. The trial court threatened Sengon with contempt, but he would not testify. Sengon continued to refuse to testify after being held in contempt. The trial court declared him an unavailable witness. Sengon’s testimony from the preliminary hearing was read to the jury. The tape of the police interview where Sengon identified defendant as the shooter was played.
Jury Deliberation and Verdict
On the third day of deliberations, the jury told the court it was deadlocked. The court sent the jury home but ordered it to return the next day and continue deliberations. The next day the jury remained deadlocked. The court asked if additional argument would help, and one juror said yes. The court asked the jury to specify what issues would be helpful to be argued. One of the points the jury identified was: “Convince us that the information received from Jeff Sengon’s interrogation interview is trustworthy & credible.”
Less than an hour after further argument, the jury reached a verdict, finding defendant guilty on all counts and all the enhancements true.
DISCUSSION
I. Denial of Right of Confrontation and Ineffective Assistance of Counsel: Admission of Sengon’s Preliminary Hearing Testimony and Police Interview
Defendant contends the People’s case rested primarily on hearsay evidence that he had no opportunity to cross-examine. He contends his trial counsel was ineffective in failing to object to the admission of this evidence. Specifically, he contends he had no opportunity to cross-examine Sengon’s identification of him as the shooter that occurred during the police interview. Although Sengon was present during the preliminary hearing, he claimed not to remember anything about the shooting. Defendant contends Sengon’s claimed inability to remember was in effect a complete refusal to testify, making Sengon unavailable for cross-examination.
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish constitutionally ineffective assistance of counsel, “‘a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant....’” (People v. Lewis (2001) 25 Cal.4th 610, 674.) The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.)
Defendant’s claim of ineffective assistance of counsel is premised on the assertion that Sengon’s police interview was inadmissible under Crawford v. Washington (2004) 541 U.S. 36, [158 L.Ed.2d 177] (Crawford). Crawford held that out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. (Id. at pp. 68-69.) “The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourteenth Amendment, guarantees the right of a criminal defendant ‘to be confronted with the witnesses against him.’ The right of confrontation includes the right to cross-examine witnesses.” (Richardson v. Marsh (1987) 481 U.S. 200, 206 [95 L.Ed.2d 176, 185].) Accordingly, to determine whether counsel was ineffective in failing to object we must determine whether admission of the interview tape violated defendant’s confrontation rights.
It is undisputed that Sengon’s preliminary hearing testimony and police interview were testimonial and he was unavailable at trial. While Crawford declined to provide a comprehensive definition of “testimonial, ” it held the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Crawford, supra, 541 U.S. at p. 68.) Sengon was unavailable at trial as he refused to testify. (People v. Malone (1988) 47 Cal.3d 1, 23.) Because Sengon was unavailable, his preliminary hearing testimony was admissible under Evidence Code section 1291, provided defendant “had the right and opportunity to cross-examine [Sengon] with an interest and motive similar to that which he has at the hearing.” (Evid. Code, § 1291, subd. (a)(2).) Crawford has left these principles unchanged. (People v. Seijas (2005) 36 Cal.4th 291, 303.) The tape of the police interrogation was admissible as an inconsistent statement under Evidence Code section 1235 once the trial court determined, implicitly by overruling the defense objection, Sengon’s professed failure to remember anything was deliberately evasive. Sengan’s inexplicable complete lack of recall provided a reasonable basis for this finding. (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220 [as long as there is a reasonable basis for concluding witness’s lack of memory is evasive and untruthful, admission of prior statements is proper].) Whether Sengon’s prior testimony and statements to the police were admissible, therefore, depends on whether defendant had the opportunity to cross-examine him.
The United States Supreme Court suggested a witness’s failure to remember might affect the defendant’s confrontation right in California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489]. There, the court held “the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” (Id. at p. 158.) The court noted a “lurking” question of whether the declarant’s “apparent lapse of memory so affected [the defendant’s] right to cross-examine as to make a critical difference in the application of the Confrontation Clause.” (Id. at p. 168.) The court declined to answer the question, finding it not ripe for decision. (Id. at p. 169.)
The court returned to this question in United States v. Owens (1988) 484 U.S. 554 [98 L.Ed.2d 951] (Owens). In Owens, a federal corrections officer had been severely beaten and suffered memory loss. While in the hospital, he identified the defendant as his attacker. At trial, he admitted he did not recall seeing his attacker and could not explain the basis of his identification. (Id. at p. 556.) The court found no violation of the confrontation clause in admitting the earlier out-of-court identification. “‘[T]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”’ [Citations.]” (Id. at p. 559.) “The weapons available to impugn the witness’ statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.” (Id. at p. 560.) “[W]hen a hearsay declarant is present at trial and subject to unrestricted cross-examination, ” “the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness’s demeanor satisfy the constitutional requirements. [Citation.]” (Ibid.)
Defendant contends Owens is distinguishable because here Sengon completely refused to testify. He argues Sengon’s refusal to answer questions was analogous to a persistent assertion of the Fifth Amendment right, which was found to effectively bar the opportunity for cross-examination in Douglas v. Alabama (1965) 380 U.S. 415, 419 [13 L.Ed.2d 934, 937-938]. We disagree. Although Sengon refused to testify at trial, he testified at the preliminary hearing and repeatedly professed lack of memory. Defendant had an opportunity to cross-examine Sengon at the preliminary hearing. “The circumstance of feigned memory loss is not parallel to an entire refusal to testify.” (People v. Gunder (2007) 151 Cal.App.4th 412, 420.)
In People v. Perez (2000) 82 Cal.App.4th 760 (Perez), Monica Gutierrez, a witness to a gang related drive-by shooting, identified the defendants to the police. Called as a witness at trial, she repeatedly answered “I don’t remember” or “I don’t recall” to virtually all questions about the shooting and what she told police. Her prior statements to the police were admitted under Evidence Code section 1235. (Perez, at p. 763.) On appeal, one defendant contended Gutierrez’s testimony should have been stricken and her prior statements not admitted because she could not be effectively cross-examined. The court found no merit to these arguments. (Id. at p. 764.) Relying on Owens, the court found no violation of the confrontation clause. “The witness Gutierrez was not absent from the trial. She testified at length at trial and was subjected to lengthy cross-examination. The jury had the opportunity to observe her demeanor, and the defense cross-examined her about bias.... This was all the constitutional right to confrontation required. [Citations.]” (Perez, at p. 766.)
Defendant’s characterization of Sengon’s answers at the preliminary hearing as a complete refusal to testify is incorrect. While Sengon answered “I don’t remember” over 80 times on direct examination, in response to virtually all questions relating to the crime, he did not refuse to answer questions. He testified he knew defendant and Truong, and about his fear of testifying. He testified he spoke with Detective Beezley but did not remember what he told him. On cross-examination, Sengon again claimed he did not remember the shooting, but did testify he believed Beezley would charge him unless he told the detective what he wanted to hear. Sengon further testified Beezley took his name off the list of those to be charged only after he identified defendant.
We recognize this case is different from Owens and Perez in that the jury did not view Sengon’s demeanor but only heard his testimony and cross-examination. That concern, however, is not due to Sengon’s feigned memory loss and his repeated “I don’t remember” responses. Instead, the lack of face-to-face confrontation is present whenever the prior testimony of an unavailable witness is admitted at trial under Evidence Code section 1291. “Although important, the constitutional right of confrontation is not absolute. [Citations.] ‘Traditionally, there has been “an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination....” [Citation.]’ [Citation.] Pursuant to this exception, the preliminary hearing testimony of an unavailable witness may be admitted at trial without violating a defendant’s confrontation right. [Citation.]” (People v. Herrera (2010) 49 Cal.4th 613, 621.) When the requirements of Evidence Code section 1291 are met, a defendant’s constitutional right of confrontation is not violated by the admission of former testimony. (Herrera, at p. 621.)
Because defendant had an opportunity to cross-examine Sengon at the preliminary hearing, admission of his prior testimony and the tape of his statement to the police as an inconsistent statement did not violate his confrontation rights. (People v. Wilson (2005) 36 Cal.4th 309, 343.) Under Crawford, the prior opportunity to cross-examine a witness is “dispositive” of the admissibility of his testimonial statements. (Crawford, supra, 541 U.S. at pp. 55-56.)
Counsel was not ineffective in failing to object to the admission of Sengon’s prior testimony and statements.
II. Ineffective Assistance of Counsel: Prosecutor’s Opening Statement
In his opening statement, the prosecutor described at some length Truong’s interview with Detective Beezley. Truong eventually admitted he was in the red Prelude during the shooting. “Johnny Truong says, We pull up, Michael Nguyen pops out of the sunroof and says, Why did you mess with my cousin, and then opens fire on them and we take off.” Truong also told the detective about Sengon.
The People called Truong as a witness at trial. Like Sengon, Truong asserted his Fifth Amendment rights and refused to answer any questions, even after he was granted use immunity and then held in contempt. The court declared Truong unavailable as a witness. No prior testimony or statements by Truong were admitted. The only evidence admitted at trial that suggested Truong had identified defendant was Beezley’s testimony that after his conversation with Truong, he generated a photographic lineup that included defendant’s picture. This evidence was admitted without objection.
Defendant contends trial counsel was ineffective in failing to move for a mistrial once it was clear Truong would not testify. He asserts Truong’s statement was hearsay that he was unable to confront. He contends the prosecutor’s statement about Truong’s identification of defendant was a vital part of the People’s case and so prejudicial that it is highly unlikely the jury could put it out of its mind during deliberations.
Acknowledging that not all variances between the description of evidence to be presented and the actual evidence is error, defendant relies on dicta in Frazier v. Cupp (1969) 394 U.S. 731 [22 L.Ed.2d 684] (Frazier). “It may be that some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable.” (Id. at p. 736.)
In Frazier, the prosecutor summarized testimony he expected from a codefendant, but the codefendant asserted his privilege against self-incrimination and did not testify. Defendant’s two motions for mistrial were denied. (Frazier, supra, 394 U.S. at pp. 733-734 .) On appeal, defendant claimed his confrontation rights were violated because the codefendant’s statement came before the jury as the equivalent of testimony and added substantial weight to the government’s case. The court rejected the contention, finding the paraphrase of the statement came in only during opening statement, the jury was told opening statements were not evidence, and the statement was not a vitally important part of the prosecution’s case. (Id. at p. 735.) “[I]t does not seem at all remarkable to assume that the jury will ordinarily be able to limit its consideration to the evidence introduced during the trial. At least where the anticipated, and unproduced, evidence is not touted to the jury as a crucial part of the prosecution’s case, ‘it is hard for us to imagine that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not appraise the evidence objectively and dispassionately.’ [Citation.]” (Id. at p. 736.)
Here, before opening statements, the jury was told that remarks by the attorneys during such statements were not evidence and it must base its decision only on evidence. This instruction was repeated at the close of trial. Truong’s identification of defendant was not mentioned after the opening statement. While the identity of the shooter was the key issue at trial, evidence of this fact was established with certainty by Sengon’s statement to police. Both attorneys focused exclusively on Sengon’s identification of defendant in their closing arguments. In the list of points the jury provided for supplemental argument, there was no mention of Truong; instead, the jury focused on the credibility of Sengon in his police interview.
State and federal courts following Frazier have almost uniformly found no confrontation clause violation in circumstances where the prosecutor was unable to prove facts recited in good faith during opening statement, and where the jury was properly instructed that the statements of counsel are not evidence. (See, e.g., People v. Hernandez (1970) 11 Cal.App.3d 481, 488-491; United States v. Campbell (6th Cir. 2003) 317 F.3d 597, 606-607; United States v. Akin (7th Cir. 1977) 562 F.2d 459, 464-466.) We conclude the same here.
Since a defense motion for a mistrial would not have succeeded, counsel was not deficient in failing to make the motion. “Counsel may not be criticized for failing to bring a motion that would have been futile.” (People v. Lewis (1990) 50 Cal.3d 262, 289.)
III. Admission of Sengon’s Testimony from Truong’s Preliminary Hearing
Over defense objection, the People introduced into evidence portions of Sengon’s testimony at a preliminary hearing in the case against Truong. It was offered as an inconsistent statement to Sengon’s testimony at defendant’s preliminary hearing. Defendant contends the trial court erred in admitting this evidence because it was not inconsistent, it was not presented at defendant’s preliminary hearing when Sengon testified, and it violated defendant’s confrontation rights because he was not able to cross-examine the testimony. We find it was error to admit the testimony, but because the testimony was inconsequential, the error was harmless.
At both preliminary hearings, Sengon testified he was afraid. At defendant’s preliminary hearing, Sengon testified he had been called to testify previously and refused to answer questions because he did not “feel too safe.” He was scared of everybody, but not of defendant. He was scared something might happen to his family and was scared for their safety. He was scared the day of the preliminary hearing; he was scared of “people, ” of “anybody, ” and scared of the district attorney’s office and of police officers. At Truong’s preliminary hearing, Sengon testified he feared for his family’s life. He feared “Everybody. Anybody.” If he testified truthfully he would fear for his life or that of a member of his family. He explained he said he did not remember partially because he was afraid, but also because he really did not remember.
The People contend these statements are inconsistent because at Truong’s preliminary hearing, Sengon did not deny he was afraid of defendant and specified his fear stemmed from his testifying truthfully about the shooting. At both hearings, Sengon testified he was afraid of everybody and anybody. At Troung’s preliminary hearing, he was not asked specifically whether “everybody” included defendant. “In enacting section 1235 of the Evidence Code, the Legislature has retained the fundamental requirement that the witness’ prior statement in fact be ‘inconsistent with his testimony at the hearing’ before it can be admitted.” (People v. Sam (1969) 71 Cal.2d 194, 210, italics omitted.) While Sengon’s testimony at Truong’s preliminary hearing was more detailed, it was not inconsistent; at all times Sengon maintained he was afraid to testify and feared for his and his family’s safety. The trial court erred in admitting Sengon’s testimony at Truong’s preliminary hearing as an inconsistent statement.
Further, defendant contends this testimony was inadmissible under Evidence Code section 1294 as an inconsistent statement of an unavailable witness. To be admissible at trial under section 1294, Sengon’s statement from Truong’s preliminary hearing first should have been introduced into evidence at Sengon’s preliminary hearing. (Evid. Code, § 1294, subd. (a).) It was not.
The People retort the testimony was not offered under Evidence Code section 1294, but as an inconsistent statement under Evidence Code section 1235. A witness’s prior inconsistent statement may be admitted at trial, but only if “offered in compliance with [Evidence Code] Section 770.” (Evid. Code, § 1235.) Under that provision, an inconsistent statement is not admissible unless the witness either testified and was given “an opportunity to explain or to deny the statement” or “has not been excused from giving further testimony in the action.” (Evid. Code, § 770, subds. (a) & (b).) Sengon, of course, did not testify at trial. At defendant’s preliminary hearing, Sengon was asked if he testified at Truong’s preliminary hearing. His prior statement, however, was not then admitted into evidence, nor was Sengon given an opportunity to explain or deny it; the prosecutor asked Sengon only if he testified, but not about the substance of his testimony. Because neither of the conditions of Evidence Code section 770 had been met, Sengon’s statement from the Truong preliminary hearing was not admissible as a prior inconsistent statement.
The error in admitting Sengon’s testimony from the Truong preliminary hearing, however, was harmless because such testimony was largely consistent with his testimony at defendant’s preliminary hearing, which provided ample evidence that Sengon was fearful of testifying against defendant. Indeed, defendant fails to show how admission of this evidence prejudiced him; instead, he argues the People cannot show it was not prejudicial. A judgment shall not be reversed for the erroneous admission of evidence unless the error resulted in a miscarriage of justice. (Evid. Code, § 353; see also Cal. Const., art. VI, § 13.) There was no miscarriage of justice here. Even if we view admission of this evidence as a violation of defendant’s confrontation rights, and thus subject to the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711], we find no prejudice as the error did not contribute to the verdict (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [89 L.Ed.2d 674, 684] [an otherwise valid conviction should not be set aside for confrontation clause violations if, on the whole record, the constitutional error was harmless beyond a reasonable doubt]; People v. Jennings (2010) 50 Cal.4th 616, 652).
IV. Section 654: Felon in Possession of a Firearm
Defendant contends his sentence on count five, felon in possession of a firearm, must be stayed under section 654 because his possession of the firearm was part of the same course of action as the attempted murders and there was no evidence he possessed the firearm before the shooting.
Section 654, subdivision (a) provides, in pertinent part, “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” This section precludes imposition of multiple punishments for conduct that violates more than one criminal statute but that constitutes an indivisible course of conduct. (People v. Perez (1979) 23 Cal.3d 545, 551-552.)
In the context of a defendant charged as a felon in possession of a firearm and for another crime in which he used the firearm, multiple punishment is improper where the evidence shows that, at most, “fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense....” (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) On the other hand, “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 (2002) 103 Cal.App.4th 1139, 1145 (Jones).) Where the defendant already had the firearm in his possession when he arrived at the scene of the crime, a justifiable inference may be drawn that the defendant’s possession of the weapon was not merely simultaneous with the subsequent crimes, but continued before, during, and after those crimes. (Ratcliff, supra, 223 Cal.App.3d at p. 1413.) “Section 654 therefore does not prohibit separate punishments.” (Ratcliff, at p. 1413.)
“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] 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.” (Jones, supra, 103 Cal.App.4th at p. 1143.)
Given defendant’s retaliatory action in accusing those gathered at the Lors’ of jumping his cousin and his immediate, unprovoked shooting, the court could draw the logical inference that defendant possessed the firearm before he went to the Lors’ residence. (See People v. Wynn (2010) 184 Cal.App.4th 1210, 1217-1218.) Thus, substantial evidence supports the finding that defendant possessed the firearm before the shooting. The trial court did not err in failing to stay the sentence on count five.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J. MAURO, J.