People v. Guerrero CA2/4

INTRODUCTION

A jury convicted defendant Manuel Guerrero of discharging a firearm with gross negligence (Pen. Code, § 246.3, subd. (a)1 (count 1), carrying a loaded firearm (§ 25850, subd. (a)) (count 2), and possession of a firearm by a felon with prior convictions (§ 29800, subd. (a) (count 3). Guerrero admitted five prior conviction (alleged pursuant to § 667.5, subd. (b)). The court sentenced Guerrero to a total of seven years and eight months in state prison, consisting of seven years as to count 1 (a three-year base term plus one year for each of the prior convictions, with two prior convictions merging into one for sentencing purposes (§ 667.5, subd. (b)); plus an eight-month sentence on count 2, to run consecutively to the sentence in count 1. The court imposed a 16-month sentence on count 3 but ordered the sentence stayed pursuant to section 654. On appeal, Guerrero contends that there was insufficient evidence to support his conviction on count 2 of carrying a loaded firearm, and that even if we disagree, the sentence on count 2 should be stayed pursuant to section 654 because there was no evidence of possession of a gun separate from his discharging a gun. Because we…