PEOPLE v. >MESA >

















Filed
7/13/10







CERTIFIED FOR PUBLICATION





COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

THE PEOPLE, Plaintiff and Respondent, v. TOMMY ANGEL MESA, Defendant and Appellant.

D056280 (Super. Ct. No. RIF137046)

APPEAL from
judgments of 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.[1]

In separate incidents, Tommy Angel
Mesa, a gang member, shot and severely wounded two complete strangers. He used the same gun in both incidents, and
later was found in possession of the gun
and several rounds of ammunition. Mesa
was convicted of two counts of assault with a firearm, three counts of being a
felon in possession of a 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 allegations true.

Mesa
does not challenge his convictions on the substantive counts or the sufficiency
of the evidence supporting the enhancements.
Nonetheless, Mesa raises a
number of sentencing issues. First, he
contends, and the Attorney General agrees, that with respect to one of the
assault convictions, the trial court erred in imposing the gang enhancement. As Mesa
points out, Penal Code[2]section
1170.1, subdivsions (f) and (g), prevented the trial court from imposing the
gang enhancement along with either the firearm enhancement or the great bodily
injury enhancement.

Secondly,
he contends the trial court erred in imposing consecutive sentences on the three
firearm possession convictions. He
argues the record shows he had continuous possession of the firearm and that,
in light of that continuous possession, section 654 required that imposition of
sentencing be stayed on two of the firearm possession counts.

We
agree. A felon's continuous possession
of a 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 criminal street gang. We disagree with this contention. The criminal street gang statute punishes
conduct and intentions that 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. We disagree with
this contention as well. Where, as here,
a felon has possession of both a firearm and ammunition that is 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 member of the
Coroneros set of the Corona Varios Locos criminal street gang.

On the
evening of April 27, 2007,
Ghalen W. was asleep next to his four-year-old son in the apartment in Corona
where he lived with his two other sons and their mother. April 27 was prom night and Ghalen's oldest son
Jeron was at home that evening with his prom date. At around 10
p.m., Jeron woke Ghalen up and asked him to go outside with him and
his date so that they could meet his date's mother. Jeron told his father a group of guys were
hanging around outside the apartment.

Ghalen went
outside his apartment and saw a group of five or six Hispanic males, including Mesa. Ghalen told 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 and said: "Why are
you walking tough in my neighborhood, Holmesâ€