Opinion
F048059
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. EFREN FREDDY GARIBAY, Defendant and Appellant.
Michelle Guardado, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Efren Freddy Garibay was convicted of carrying a concealed and loaded gun and doing so for the benefit of a criminal street gang, of actively participating in a criminal street gang and of resisting arrest. On appeal, he contends (1) insufficient evidence supported the finding that he was carrying the gun for the benefit of the gang; (2) insufficient evidence supported his conviction for actively participating in a gang; (3) the trial court abused its discretion by admitting evidence of a prior offense; (4) the trial court abused its discretion by admitting a photograph of gang graffiti; and (5) punishment for carrying a concealed weapon, carrying a loaded firearm and being an active participant in a gang violated the multiple punishment ban of Penal Code section 654. We affirm the judgment and stay the sentence on count 2.
All statutory references are to the Penal Code unless otherwise noted.
PROCEDURAL SUMMARY
On October 8, 2004, the Merced County District Attorney charged defendant with carrying a concealed weapon (§ 12025, subd. (a)(2); count 1); carrying a loaded firearm (§ 12031, subd. (a); count 2); actively participating in a criminal street gang (§ 186.22, subd. (a); count 3); and misdemeanor resisting a public officer (§ 148; count 4). As to counts 1 and 2, it was further alleged that defendant committed these crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
A jury found defendant guilty as charged and found true the gang enhancements on counts 1 and 2. The trial court sentenced defendant to three years on count 1, plus three years for the gang enhancement; three years on count two, plus three years for the gang enhancement, to be served concurrently with the term in count 1; two years on count three to be served concurrently; and six months on count four to be served concurrently.
FACTS
At about 1:15 a.m. on March 23, 2004, Deputy Sheriff Sharrock saw defendant, a Hispanic adult male, walking on the sidewalk. The deputys headlights illuminated a red bandana hanging out of defendants left rear pants pocket. The deputy contacted defendant and asked him where he was coming from. Defendant said he was walking home from the park, which was nearby. The deputy knew the particular park was a gang "hangout" and he also knew defendant was walking in the opposite direction of his home. Defendant told the deputy that he claimed the Norteño gang and had been an active member of the Delhi Locs gang for two years. Defendant showed the deputy his gang tattoos. Defendant denied carrying any illegal items, but when the deputy asked if he could search him, defendant refused. The deputy told him that because he admitted being a gang member, the deputy was going to pat him down to search for weapons for the deputys safety. At that point, defendant turned and ran. As the deputy chased him, the deputy heard a metallic object hit the sidewalk. He made a mental note of the location. After he and other deputies caught defendant and took him into custody, the deputy returned to the area where he had heard the metallic object hit the sidewalk. He found a .380 caliber semiautomatic Bursa handgun. The handgun contained four live rounds of ammunition inside the magazine.
Gang Evidence
Sergeant Soria testified as the prosecutions gang expert. He explained that Livas was a Norteño gang in Livingston that had about 80 to 90 members and was a part of the northern Nuestra Familia created in response to the southern Mexican Mafia and its Sureño gangs. Norteño gangs claimed the color red and the number "14" because the letter "N" is the 14th letter of the alphabet. Sureño gangs claimed the color blue and the number "13" for the letter "M." The primary activities of the Livas gang were assault with a deadly weapon, robbery, terrorist threats, and shooting at houses or cars.
In Sorias opinion, defendant was an active participant of the Livas gang. Soria based his opinion on his contacts and reports, defendants continuous involvement and activities over the years, the gang tattoos he continued to get, and his several admissions and self-classifications when questioned, booked or incarcerated. Defendants various tattoos included "Livingston x4," "Livas," "209," the local area code, "sk," meaning scrap killer, "14,"and dots across his fingers representing the number "14." "Scrap" was a derogatory term for a Sureño gang member. Soria testified he had taken a photograph of defendants tattoos in 1999 when defendant was involved in a fight. In 2004, the dot tattoos were more prominent than they had been in 1999, indicating defendant had enhanced them and had continued his involvement in the gang.
Soria said it was not uncommon for a member of one Norteño gang to claim membership in a different Norteño gang for protection, but the gang member would nevertheless maintain loyalty to his original gang.
Soria explained that on the night of March 23, 2004, defendants acts indicated he was an active gang member. Soria cited the manner in which defendant was carrying the weapon and displaying the red bandana. He was showing everyone he was a Norteño gang member. He was showing his colors and he was prepared to use the weapon if necessary.
Soria opined that defendants crime was committed at the direction of, in association with, or for the benefit of a criminal gang. Soria said that Delhi had a "big problem" with rival Sureño and Norteño gangs fighting over the town. The way that defendant carried himself and his possession of the weapon were not only for his protection but also for committing a violent act if he came upon a rival gang member. The gang would benefit from his carrying a gun because word would spread through his own gang, rival gangs, and the community. When it was heard that members of a gang carried guns, the reputation of the gang would benefit; people would know that Livas would not simply submit, but would meet violence with violence. This reputation revolved around respect.
Soria also believed defendant committed the crime with the specific intent to further the gangs criminal activity. He based his opinion on defendants history and on his act of carrying the weapon while displaying the gang colors. Soria said:
"Again, it goes back to just his history, the way he carried himself that day, carrying the weapon, just on those facts alone tells me that he wasnt carrying it just to carry it from one place to another. He was carrying it to tell everyone that Im a gang member, Im out there. If Im going to take care of business, Im going to take care [of] it, and Im going to protect my town if I have to. Because they believe that that is their town."
Soria was shown a photograph of gang-related graffiti on a wall. Soria had taken the picture at the high school a few years earlier. The graffiti said, "187 on scrapas," a reference to section 187 and murder, "Livas Norte," "Livingston 209," and "Killa Cali," to signify the Livas gang members were the killers of California. The letter "S" was crossed out in the graffiti as a sign of disrespect for Sureños.
Another photograph included defendant and four other Livas gang members. Three of them were wearing red shirts and one of them was making an "L" hand sign for Livas. Although defendant was wearing a white shirt with the number "14" in blue, Soria explained that defendant could wear whatever color he wanted because of his stature within the gang; he would not be harmed because everyone knew who he was. Soria believed one of the other men in the photograph had been convicted of burglary. Some of the other photographs showed defendant wearing red shorts.
Soria testified to predicate offenses committed by other Livas gang members. In 2002, Raul Maldonado was convicted of attempted murder, shooting at an inhabited vehicle, assault with a deadly weapon, and felony possession of a firearm with a gang enhancement. Maldonado shot the victim in the face. The victim was not a gang member but he was wearing blue. In 1999, Victor Estrada was convicted of terrorist threats, and Luis Zurita was convicted of robbery.
Defense Evidence
Private Investigator Anaya previously had been a deputy sheriff for 20 years. Anaya testified that it is possible for a gang member to commit a crime that is not for the benefit of a gang. He said that many crimes are crimes of opportunity, which directly benefit the perpetrator and are not necessarily intended to promote or benefit anyone else. Anaya testified that "Livas" is a nickname for the town of Livingston, just as "Frisco" is a nickname for San Francisco. He had heard law enforcement officers use the term "Livas."
In Anayas opinion, defendants possession of the firearm was not to benefit a gang because defendant was alone and in a residential area. He was walking down the street fully clothed and not displaying his tattoos openly, and he was not making any verbal threats or showing any gang signs. Furthermore, there was no one present to witness any type of intimidation.
DISCUSSION
I. Active Participation in a Gang
The Street Terrorism Enforcement and Prevention Act (STEP Act, §§ 186.20-186.33) creates both a substantive offense under section 186.22, subdivision (a) and a sentence enhancement under section 186.22, subdivision (b)(1). (In re Jose P. (2003) 106 Cal.App.4th 458, 466.) The substantive gang offense of actively participating in a criminal street gang under section 186.22, subdivision (a) requires proof that the defendant (1) actively participated in a criminal street gang with knowledge that its members engaged in, or have engaged in, a pattern of criminal gang activity, and (2) willfully promoted, furthered, or assisted in felonious criminal conduct by members of the gang. (People v. Robles (2000) 23 Cal.4th 1106, 1111, 1115; In re Jose P., supra, 106 Cal.App.4th at p. 466.) This provision "`applies to the perpetrator of felonious gang-related criminal conduct.... [Citation.]" (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
Defendant contends there was insufficient evidence to support his conviction for actively participating in a gang because there was no evidence that he knew his fellow gang members participated in criminal activity. He maintains there was no evidence that he knew any of the three men who committed the predicate offenses or was aware of their crimes.
By its plain terms, section 186.22, subdivision (a) applies only to a defendant who has knowledge that the members of his or her criminal street gang "engage in or have engaged in a pattern of criminal gang activity." "A requirement of knowledge is not a requirement that the act be done with any specific intent. [Citations.] The word `knowing as used in a criminal statute imports only an awareness of the facts which bring the proscribed act within the terms of the statute. [Citation.]" (People v. Calban (1976) 65 Cal.App.3d 578, 584.) Under section 186.22, subdivision (e), a "`pattern of criminal gang activity" is established by two statutorily enumerated offenses occurring within a three-year period, so long as at least one offense occurred after 1988, "and the offenses were committed on separate occasions, or by two or more persons." Thus, to violate section 186.22, subdivision (a), a defendant must be aware that his or her gang members participated in at least two offenses meeting the statutory requirements within a three-year timeframe. The charged offense can serve as one of the predicate offenses. (People v. Loeun (1997) 17 Cal.4th 1, 8.) To prove a state of mind such as knowledge, "[r]eliance on circumstantial evidence is often inevitable ...." (People v. Lewis (2001) 26 Cal.4th 334, 379.) "Knowledge, like intent, is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise." (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.) Contrary to defendants assertion, the prosecution need not prove the defendant had knowledge of the predicate offenses. (People v. Gamez (1991) 235 Cal.App.3d 957, 975, disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.)
In evaluating whether sufficient evidence supports a conviction, our task is to determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence must be reasonable, credible, and of solid value. (People v. Killebrew (2002) 103 Cal.App.4th 644, 660.) We also presume the existence of every fact the lower court could reasonably deduce from the evidence in support of its judgment. (Ibid.)
Here, defendant admitted to the deputy that night that he was an active gang member, and he had also admitted his gang membership several times in the past. He had engaged in activity that resulted in his being booked or jailed on several occasions. He was already wearing gang tattoos in 1999. He had a history of gang associations and was photographed with four other gang members in 1999. One of those other gang members had been convicted of burglary. Another photograph included several Livas graffiti references to murder, such as section 187, killing scraps and being the killers of California. At the time of his arrest, he had many gang tattoos, some of which had been enhanced since 1999. One tattoo labeled him as a scrap killer. This evidence together supported the inference that defendant was not only aware of, but even promoted, his gangs violent behavior. Moreover, the circumstances surrounding defendants offense further suggested he was aware of his gangs criminal activity. That night, he was walking the neighborhood around a known gang hangout late at night, flying his gang colors and carrying a loaded semiautomatic gun. Despite his explanation, he apparently was not walking home. He was walking in the opposite direction of his house and therefore had another purpose in walking the neighborhood while armed and parading his gang affiliation. From all of this evidence, the jury reasonably could have inferred that defendant was aware of the gangs criminal activity. Substantial evidence supported the conviction under section 186.22, subdivision (a).
We also note that although there was no evidence defendant was aware of the predicate crimes (and no necessity for such evidence), it is not unlikely that, in a gang of only 70 to 80 members in a small town actively engaged in a heated territorial conflict, defendant was in fact aware of the crimes committed by his fellow gang members.
II. Gang Enhancement
A gang sentence enhancement under section 186.22, subdivision (b) increases the punishment for certain gang-related crimes. It requires proof that the defendant committed the crime (1) for the benefit of, at the direction of, or in association with a criminal street gang (2) with the specific intent to promote, further or assist in any criminal conduct by gang members. (In re Jose P., supra, 106 Cal.App.4th at p. 466.)
Defendant argues there was insufficient evidence to support the gang enhancement because he was merely carrying a gun while displaying a red bandana. He asserts there was no evidence that his act benefited the gang or that he had the specific intent to promote, further or assist in criminal gang behavior. He points out that he was alone, his gun was not visible, he was not displaying gang tattoos or signs, and there was no one present to observe him or to be intimidated by him. He argues that Sorias opinion was based on speculation that he would have used the gun if necessary.
The standard of review for a claim of insufficient evidence as to section 186.22, subdivision (b)(1), is the same as for section 186.22, subdivision (a). (People v. Duran (2002) 97 Cal.App.4th 1448, 1456.)
Defendant is correct that gang membership alone cannot prove a specific intent to promote, further or assist in criminal conduct by gang members (People v. Gardley, supra, 14 Cal.4th at p. 623); however, in this case, defendants conduct went beyond mere membership. He had just left a known gang hangout. He was flaunting his gangs color and his gangs authority in a gang area of a town in the midst of a territorial gang dispute. Moreover, the gang expert opined that carrying a weapon and being ready to meet a gang confrontation with violence was the way gang members earned and maintained respect. This evidence supported the inference that defendant was advertising his gangs dominance and inviting gang conflict, and that he was prepared to respond with violence in order to promote, further or assist in the criminal conduct of his gang. It further supported the conclusion that his conduct benefited the gang by enhancing the gangs reputation. Sufficient evidence supported the gang enhancement.
III. Reference to Defendants Prior Act
The trial court allowed the prosecutor to cross-examine the defense gang expert, Anaya, regarding whether he had considered certain facts in concluding defendant was not actively participating in a criminal street gang on the night in question. The following occurred:
"[PROSECUTOR:] Did you consider an incident three years ago where your client was in a car with a fellow Livas gang member; your client was wearing a red shirt and he had with him a loaded 12-gauge shotgun when stopped by the CHP? When the CHP officer asked him if he was a gang member, he said, `Yes, Norte, and showed him gang tattoos? [¶] Did you take that incident into account when you made your decision — or your opinion that he was not an active participant in a criminal street gang?
"[ANAYA:] I was not informed of that information, no."
Defendant contends the trial court abused it discretion by admitting the evidence of his prior possession of a loaded shotgun. He argues the evidence that Anaya did not consider defendants prior weapon possession was cumulative and was not necessary to show Anaya was ill prepared or not credible because there was ample evidence already establishing his deficiencies as an expert witness. Defendant asserts that the prosecutor was allowed essentially to testify that appellant had violated section 12031, subdivision (a)(2)(C) only one year earlier and had done so in the company of another gang member. This evidence, he contends, was far more prejudicial than probative and its admission violated his due process right to a fair trial. Defendant states this was a close case and the error cannot be found harmless under any standard. He points out that there was no other evidence that he knew the members of his gang participated in criminal activity or that he willfully promoted, furthered or assisted in criminal gang activity. He argues reversal is required.
We disagree for three reasons. First, questions by counsel do not constitute evidence. (See People v. Holloway (2004) 33 Cal.4th 96, 151.) Accordingly, the jury was instructed that the statements and questions of counsel are not evidence. (CALJIC No. 1.02.) It is presumed that the jury understood and followed the instructions. (People v. Guerra (2006) 37 Cal.4th 1067, 1115.)
The jury was instructed: "Statements made by the attorneys during the trial are not evidence. However, if the attorneys have stipulated or agreed to a fact, you must regard that fact as proven as to the party or parties making the stipulation. [¶] If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. [¶] Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken by the court; treat it as though you had never heard of it."
Second, we believe the evidence of defendants prior possession of a weapon while in the presence of another gang member, although prejudicial, was highly probative of his knowledge of the criminal activities of the gang and of his intent. Although evidence of a defendants affiliation with a criminal street gang is inadmissible to show the defendants criminal disposition or propensity to commit crimes (People v. Ruiz (1998) 62 Cal.App.4th 234, 240; Evid. Code, § 1101, subd. (a)), gang affiliation evidence is admissible to prove facts other than the defendants criminal propensity, such as knowledge and intent (People v. Funes (1994) 23 Cal.App.4th 1506, 1518; Evid. Code, § 1101, subd. (b)). Here, defendants knowledge and intent were relevant to the gang crime charged in count 3 and the gang enhancement allegations in counts 1 and 2. In our opinion, the trial court would not have abused its discretion by admitting the evidence.
Finally, any error was nevertheless harmless. As we have explained, the evidence was sufficient to show that appellant was carrying a loaded weapon for the benefit of the gang and with the intent to promote the gang that night. The prosecutors question did not result in reversible error.
IV. Photograph of Graffiti
Defendant asserts that the trial court abused its discretion by admitting the photograph of gang graffiti because the references to murder were more prejudicial than probative and should have been excluded pursuant to Evidence Code section 352. He argues the reference to section 187 had no probative value and served only to frighten the jurors into speculating what defendant might have done with the weapon that night.
Evidence Code section 352 is not designed to avoid the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) All evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more prejudicial it becomes. Rather, the prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little affect on the issues. In applying Evidence Code section 352, "prejudicial" is not synonymous with "damaging." (Ibid.)
In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jurors, motivating them to use the information not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. In that case, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose. (People v. Branch (2001) 91 Cal.App.4th 274, 286; see also People v. Harris (1998) 60 Cal.App.4th 727, 737 [a defendant must be tried for what he did, not for who he is].)
In engaging in this Evidence Code section 352 weighing process, the trial court must strike a balance between the probative value of the evidence and the danger of undue prejudice. The court must consider the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relative to the main or only a collateral issue, and the necessity of the evidence to the proponents case as well as the reasons recited in Evidence Code section 352 for exclusion. (People v. Houston (2005) 130 Cal.App.4th 279, 304.) We review the trial courts admission of such evidence for an abuse of discretion, and will uphold it unless the trial court acted in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.)
In this case, the graffiti was relevant to show the existence of the gang, the criminal inclinations and activities of the gang, and the gang-related and criminal meaning of some of defendants tattoos. The prosecution was required to show that defendant was aware of the gangs criminal activities. The graffitis references to murder and to "scraps" supported the inference that he was aware of the gangs crimes and the repetition of the criminal elements on his tattoos strengthened that inference. In sum, the evidence was relevant and highly probative as to the gang allegations and the trial court carefully limited the prosecution to a single photograph of graffiti. There was no abuse of discretion and no due process violation.
The court stated: "Ive heard various argument from both counsel for and against the remaining doc — pictures which each depict various places around the community of Livingston and that have, in essence, graffiti. The Courts concern is theres a number of pictures, they all show graffiti. And so, therefore, theres an inference or a focus on graffiti, which is not a charge and that hes not being charged for. I understand what the People are attempting to convey. [¶] Its — again, the number of pictures will subliminally go through the jurors minds because its working through my mind right now as Im seeing graffiti after graffiti after graffiti. [¶] I think what you can do is you can limit it as to one of those pictures. Get rid of the rest of them. And then you can rely primarily on testimony. Youve got a picture of at least the graffiti that has `209 that does the linking that you essentially want to do without unduly prejudicing the defendant with multiple pictures of various graffiti. In essence, providing the same type of evidence that youre attempting to do. So I think if you pick one of those, then that will be fine."
V. Multiple Punishment
Defendant lastly contends the offenses in counts 1, 2 and 3 were based on the same act of carrying a loaded firearm and were committed with the same intent — to benefit the gang. Accordingly, he maintains the sentences on counts 2 and 3 must be stayed pursuant to section 654. He argues that the gang enhancements attached to counts 1 and 2 reveal that those two offenses were committed with the same intent as the gang offense in count 3.
Section 654 prohibits multiple punishment for a single act or an indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789-790.) "`Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished ... not for more than one [of the offenses]." (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a defendant held multiple criminal objectives is a factual issue that we will uphold on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Section 654, subdivision (a) provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
In count 1, defendant was convicted of carrying a concealed weapon (§ 12025, subd. (a)(2)). In count 2, he was convicted of carrying a loaded firearm (§ 12031, subd. (a)). The People concede, and we agree, that these offenses were committed by a single act and with a single intent and thus the sentence on count 2 should be stayed under section 654. The People argue, however, that Count 3, actively participating in a criminal gang (§ 186.22, subd. (a)), required a separate intent from the underlying felony. Again, we agree.
In People v. Herrera (1999) 70 Cal.App.4th 1456, the court held that a defendant could be punished for both attempted murder and a gang crime arising from his participation in a gang-related shooting. "The characteristics of attempted murder and street terrorism are distinguishable, even though aspects of one may be similar to those of the other. In the attempted murders, [the defendants] objective was simply a desire to kill. For these convictions, the identities (or gang affiliations) of his intended victims were irrelevant...." (Id. at pp. 1466-1467.) The court continued: "In contrast, section 186.22, subdivision (a), encompasses a more complex intent and objective.... [¶] Section 186.22, subdivision (a) punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself. Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to 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 defendants objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense." (Id. at p. 1467, fns. omitted.)
Citing Herrera, In re Jose P., supra, 106 Cal.App.4th 458 rejected the claim that a minor could not receive an additional sentence for committing a gang offense under section 186.22, subdivision (a) where he was punished for a home invasion robbery that was enhanced under the gang enhancement of section 186.22, subdivision (b). The court stated: "The minors intent and objective in violating section 186.22[, subdivision] (a) necessarily must have been participation in the gang itself. Evidence of that intent was abundant.... [¶] His intent and objective in committing the robbery was to take the property located in the home. Application of the enhancement does not alter the fact that he must also have had the intent to take the property. While he may have pursued the two objectives simultaneously, the objectives were nevertheless independent of each other. Therefore, section 654 does not bar punishment for both the gang crime and the robbery." (Id. at p. 471.)
Here defendants intent and objective in violating section 186.22, subdivision (a) was to participate in the gang. Though he had the intent to benefit a criminal street gang, his intent and objective in carrying the loaded and concealed firearm was to possess the weapon. Thus, as in Jose P., while defendant may have had two objectives in carrying the gun, these objectives were independent and thus his punishment was not barred by section 654.
DISPOSITION
The judgment of conviction is affirmed. The sentence on count 2, carrying a loaded firearm (§ 12031, subd. (a)) is stayed.
We Concur:
LEVY, Acting P.J.
HILL, J.