Filed 10/10/18 P. v. Timmons CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Victim R.S. was shot in the leg while listening to music in his apartment, and defendant Johnny Timmons was identified as the suspect. Several days later, sheriff’s deputies executed a search warrant at defendant’s residence and located a loaded .38-caliber revolver and a tin can containing .32- and .38-caliber ammunition.

Defendant was charged with one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2))[1] (count 1), one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 2), and three counts of possession of ammunition by a felon (§ 30305, subd. (a)(1)) (counts 3–5). Relevant to our resolution of the issues raised on appeal, defendant was charged with possession of .38-caliber ammunition in count 3, .32-caliber ammunition in count 4, and .380-caliber ammunition in count 5.

The jury convicted defendant of the firearm and ammunition possession counts (counts 2–5), but deadlocked on the assault count (count 1), resulting in a mistrial and then dismissal of count 1 by the prosecutor. In a bifurcated proceeding, the trial court found true that defendant committed the offenses while out on bail in Kern Superior Court case No. MF11909A (§ 12022.1, subd, (b)), suffered two prior serious and/or violent felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), and served seven prior prison terms (§ 667.5, subd. (b)).

During the sentencing hearing, the trial court denied defendant’s motion to strike his prior strike convictions but granted his motion to strike as to five of the seven prior prison term enhancements. On count 2, the court sentenced defendant to the upper term of three years, doubled to six years under the Three Strikes law, plus an additional two years for committing a felony while out on bail (§ 12022.1, subd. (b)), stayed, and an additional two years for serving two prior prison terms (§ 667.5, subd. (b)), for a total determinate prison term of eight years.[2] On count 4, the court imposed a concurrent sentence of three years (upper term), doubled to six years. On counts 3 and 5, the court sentenced defendant on each count to the upper term of three years, doubled to six years and stayed pursuant to section 654.

On appeal, defendant claims his convictions are unsupported by substantial evidence. He also claims he was improperly convicted of multiple counts of ammunition possession and requests the multiple counts be consolidated into a single count of ammunition possession. Finally, he claims the trial court erred in failing to stay his sentence on count 4 pursuant to section 654.

The People point out that in count 5, defendant was charged with possession of .380-caliber ammunition and the jury convicted him of possession of .380-caliber ammunition. In the absence of any evidence that .380-caliber ammunition was located in defendant’s residence, the People state, and defendant agrees, that count 5 should be dismissed as unsupported by substantial evidence. The People also concede that defendant’s possession of different calibers of ammunition supports only one count of possession of ammunition. They contend, however, that defendant’s convictions for possession of a firearm and possession of .32- and .38-caliber ammunition are supported by substantial evidence, and that the trial court did not err in failing to stay defendant’s sentence on count 4 under section 654.

We reverse defendant’s conviction on count 5 for possession of .380-caliber ammunition as unsupported by substantial evidence. We also accept the People’s concession as to the proper unit of prosecution for possession of ammunition and consolidate count 3 with count 4. We find substantial evidence supports defendant’s remaining convictions for possession of a firearm and ammunition by a felon, however, and we reject defendant’s argument that section 654 requires his sentence for possession of ammunition be stayed.

FACTUAL SUMMARY[3]

Victim R.S. lived in a one-bedroom apartment with his girlfriend, J.G., and their three young children. Defendant lived in a two-bedroom house in the same Kern County town, along with his live-in caregiver and former girlfriend, T.D. On the night of February 18, 2016, victim R.S. was shot in his rear left calf while listening to music in the living room of his apartment. Someone called 911 and paramedics transported R.S. to the hospital. He received treatment, but the bullet remains in his leg.

Approximately one week later, sheriff’s deputies executed a search warrant at the residence of defendant and T.D. No one was home initially but, after T.D. arrived, she let deputies in with a key and secured the dog.

Inside the house, sheriff’s deputies located a nylon bag partially tucked under the cushioned armrest of the couch. The bag contained a .38-caliber revolver fully loaded with five unspent .38-caliber rounds and some loose ammunition.[4] Deputies also located a tin can on a nearby coffee table containing seven .38-caliber rounds and four .32-caliber rounds, along with some glass pipes. No usable fingerprints were obtained.

Kern County Sheriff’s Deputy Andrew Chaidez responded to the scene of the shooting and also participated in executing the search warrant at defendant’s residence. During the course of the investigation, he interviewed R.S., J.G., and T.D.

I. Testimony of R.S.

R.S. was in custody at the time of trial due to his failure to appear in compliance with the prosecutor’s subpoena, and he was a reluctant witness. R.S. testified he was alone in the living room listening to music the night of the shooting. He was drinking alcohol and had ingested enough methamphetamine to get high. He testified that although he did not see the front door open, the door opened, he heard a “bang,” and he fell to the floor crying. R.S. said that at the time, J.G. was in the bedroom with the children asleep and she came running out after he was shot. R.S. stated he did not see anyone and did not know who shot him. He also denied shooting himself or having a gun, and he testified neither he nor J.G. hid a gun.[5]

R.S. said that at the time, he had been friends with defendant for approximately 10 months. Two or three weeks prior to the shooting, R.S. was accused of breaking into defendant’s house and taking some things. A verbal altercation between the two ensued and sheriff’s deputies came to defendant’s house. R.S. testified the accusation against him was untrue, and he and defendant were still friendly after the accusation. R.S. also testified defendant used a wheelchair, but was able to walk short distances.

Chaidez testified R.S. was reluctant to cooperate the night of the shooting and during an interview five days later. R.S. expressed fear of retaliation, but told Chaidez he and defendant were listening to music together in his apartment when defendant shot him in the leg with a revolver. R.S. stated he was shocked that defendant shot him and he thought their dispute was over. He identified defendant in a photo lineup as the individual who shot him and signed the lineup.

At trial, R.S. denied telling Chaidez he feared retaliation, but testified he was aware of rumors he was a snitch. R.S. denied telling Chaidez he and defendant were listening to music when defendant pulled a revolver and shot him. He denied defendant was at his apartment, denied defendant shot him, and denied signing the lineup. He admitted identifying defendant in a lineup, but denied it was the same lineup presented at trial and denied the signature on the lineup presented was his. He also testified that Chaidez told him they already knew who shot him but did not tell him which person in the lineup was the suspect. He subsequently testified that Chaidez asked him to circle defendant’s lineup photo.

II. Testimony of J.G.

J.G. was also in custody at the time of trial due to her failure to appear in compliance with the prosecutor’s subpoena. J.G. testified that defendant had been by earlier on the day of the shooting. After she put the children to bed, she left the bedroom and was in the living room when defendant knocked on their door. J.G. testified that she and R.S did not use drugs that night, but the three of them sat around after defendant came over and talked about partying or getting high. As they were sitting there, they heard a gun go off. R.S. jumped up, hysterical, and fell to the floor. Defendant looked panicked and got up. J.G. described the shooting as occurring under a table they were sitting on. She testified she did not see a gun that night and had never seen defendant with a gun.

After R.S. was shot, J.G. ran next door to her mother’s apartment. She did not see defendant leave their apartment after the shooting, but when she was returning from her mother’s apartment, she saw defendant running off. She testified that defendant sometimes uses a wheelchair, but he was not in his wheelchair that night. Defendant called the next day to see how R.S. was and to find out if he was “in the clear.” He also stated, “I can’t go down for this.”

J.G. admitted that she told Chaidez she was in the bedroom when she heard a noise, and when she went into the living room, R.S. had been shot. She also admitted that prior to testifying, she told the prosecutor she was in the bedroom with the children when the shooting occurred and when she came out after hearing the gunshot, she saw defendant running off. She testified she had lied in part, and she was in the living room when the gunshot occurred. She said she was panicky and scared the night of the shooting, and she was still scared but was doing her best and telling the truth. She also testified she was receiving threats that if she or R.S. testified, they would be put on a hit list and there would be problems for her family. She stated she half believed and half disbelieved the threats.

J.G. testified on cross-examination that two weeks before the shooting, she, R.S. and their children were at defendant’s house. R.S. left, and she and the children fell asleep. R.S. later woke her up and told her it was time to go, and they left. She then testified her daughter actually woke up because R.S. was knocking on the door, she let him in the house and they left. J.G. said that shortly before that, there was a dispute between defendant and R.S. The police later showed up at their residence and searched it for stolen property, but they did not find anything.

III. Testimony of T.D.

T.D. testified that she had known defendant for almost eight years and they used to date, but by the time of the crimes, they were just friends and she was defendant’s live-in caregiver. She testified defendant has problems breathing and with his legs, and he uses a wheelchair. She stated defendant does not walk; he is able to take a few steps, but then runs out of breath. She also stated he is able to stand with a walker or a cane and is able to use the walker to pull himself up from the bed to get into his wheelchair.

T.D. testified that defendant had lived in their house for three and one-half years and she had lived there for three years. She testified her sister T. also lived there for a period of time but left in January 2016, and her sister K. and K.’s three children lived there for a period of time but left around February 26, 2016, or February 27, 2016. T.D. said K. slept in the living room and K.’s children slept with T.D. in her bedroom. She also said that when she spoke with Chaidez, K. was no longer there, but K.’s things were and K. came and went. T.D. said she and defendant let K. store her things in a shed. T.D. admitted she told Chaidez only she and defendant lived in the house, and she testified only she and defendant had keys to the house.

DISCUSSION

I. Sufficiency of the Evidence

A. Count 5—Felon in Possession of .380-caliber Ammunition

The prosecutor charged defendant in count 5, and he was convicted of, possession of .380-caliber ammunition by a felon. As set forth, ante, the People point out, and defendant concurs, that the conviction on count 5 is unsupported by substantial evidence and should be dismissed.

“The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense” (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence, as discussed below (People v. Zamudio (2008) 43 Cal.4th 327, 357). Inasmuch as the prosecutor presented no evidence that defendant possessed .380-caliber ammunition, his conviction for count 5 is not supported by substantial evidence and must be reversed.

B. Counts 2, 3 and 4—Felon in Possession of Firearm and Ammunition

1. Standard of Review

On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether, after 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. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Zamudio, supra, 43 Cal.4th at p. 357.) “In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (Ibid.) “‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt.’” (People v. Nguyen, supra, at pp. 1055–1056.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio, supra, at p. 357.)

2. Analysis

Section 29800, subdivision (a)(1), proscribing possession of firearms by felons, provides: “Any person who has been convicted of, or has an outstanding warrant for, a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.”[6] Section 30305, subdivision (a) (1), proscribing possession of ammunition by felons, provides: “No person prohibited from owning or possessing a firearm under Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and Institutions Code, shall own, possess, or have under custody or control, any ammunition or reloaded ammunition.”

The parties stipulated that defendant is prohibited from possessing firearms and ammunition, but defendant contends the evidence was insufficient to prove that he had actual or constructive possession of the firearm and ammunition. Citing People v. Redrick (1961) 55 Cal.2d 282, 287 and People v. Bledsoe (1946) 75 Cal.App.2d 862, 864, defendant contends that mere proximity to the firearm and ammunition, or mere access to the location in which the items were found, is insufficient to demonstrate constructive possession.[7] The People disagree.

Criminal possession of a firearm or ammunition may be established by actual possession or constructive possession. (In re Charles G. (2017) 14 Cal.App.5th 945, 951; People v. Williams (2009) 170 Cal.App.4th 587, 625.) “Actual possession means the object is in the defendant’s immediate possession or control.… Constructive possession means the object is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) “‘[M]ore than one person may possess the same contraband.’” (People v. Miranda (2011) 192 Cal.App.4th 398, 410, citing People v. Williams, supra, at p. 625.) “‘The inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation].’” (People v. Busch (2010) 187 Cal.App.4th 150, 162, quoting People v. Jenkins (1979) 91 Cal.App.3d 579, 584; accord, In re Charles G., supra, 14 Cal.App.5th at p. 951 [Possession “encompasses having a weapon in one’s bedroom or home or another location under his or her control, even when the individual is not present at the location.”].)

In this case, defendant’s convictions do not rest on mere proximity or access to the firearm and ammunition. “Possession may be imputed when the contraband is found in a place which is immediately accessible to the joint dominion and control of the accused and another” (People v. Miranda, supra, 192 Cal.App.4th at p. 410; accord, People v. Busch, supra, 187 Cal.App.4th at p. 162), and the firearm and ammunition were located in plain sight in a common area of defendant’s residence. Although T.D. testified her sister K. had been staying at the house and slept in the living room, she also testified K. was staying with a friend by the time the search warrant was executed, and she and defendant allowed K. to store her things in a shed. Further, T.D.’s other sister, T., had moved out by the time R.S. was shot. T.D. told Chaidez that only she and defendant lived in the house and she testified that only she and defendant had keys. Based on this evidence, a reasonable jury could have concluded that only defendant and T.D. resided in and had access to the house, which is a sufficient basis upon which to impute constructive possession.[8] (People v. Miranda, supra, at pp. 404, 410 [the defendant’s presence in a car from which a shotgun was thrown was sufficient to impute constructive possession, despite his claim he did not know there was a shotgun in the car and did not know what the rear passengers were throwing from the car]; accord, People v. Busch, supra, at p. 162.)

Moreover, the firearm recovered from the residence was a .38-caliber revolver, there was .38-caliber ammunition in the tin along with the .32-caliber ammunition, and R.S. told Chaidez that defendant shot him in the leg with a revolver. From this evidence, a reasonable trier of fact could infer that the revolver located in defendant’s residence was the revolver used to shoot R.S. Although defendant portrays himself as “feeble and infirm,” and unlikely to have ventured out to commit crimes, J.G. testified that defendant was not using his wheelchair that night and R.S. testified that although defendant used a wheelchair, he was capable of getting out of the chair and climbing up stairs. Thus, notwithstanding defendant’s argument, the evidence hardly compels the conclusion that defendant was essentially housebound and incapable of committing the charged crimes.

Based on the foregoing, we find substantial evidence supports defendant’s convictions for possession of a firearm and ammunition, and we reject his claim to the contrary.

II. Propriety of Multiple Convictions for Ammunition Possession

Defendant was charged with and convicted of three counts of violating section 30305, subdivision (a)(1). As discussed in the previous section, defendant’s conviction on count 5 must be reversed for lack of substantial evidence, leaving two convictions for possession of ammunition. Relying on In re Carleisha P. (2006) 144 Cal.App.4th 912 (Carleisha P.), defendant contends that his possession of different types of ammunition supports only one count of violating section 30305 and he was improperly convicted of multiple counts. The People agree.

In Carleisha P., the minor challenged her multiple convictions for possessing different types of ammunition. The Court of Appeal interpreted the word “ammunition” in section 12101, subdivision (b), under which the minor was convicted. Recognizing the principle that “‘[a] single crime cannot be fragmented into more than one offense,’” (Carleisha P., supra, 144 Cal.App.4th at p. 919), the court concluded “that, consistent with its technical meaning, ordinary usage and general legislative usage, the word ‘ammunition’ in section 12101, subdivision (b), prohibits the possession of any quantity of live ammunition. Hence, a minor’s possession of one or more bullets, whether of the same or different types, constitutes only a single offense.” (Id. at p. 923, fn. omitted.) The court also stated, “Even if we were not confident in this conclusion, we would hold the statute was at least ambiguous on this point and apply the rule of lenity in [Carleisha P.’s] favor.”[9] (Carleisha P., supra, at p. 923.)

The People concede that the reasoning of Carleisha P. applies here and under either the plain language of the statute or the rule of lenity, defendant was improperly convicted of multiple counts of ammunition possession. The People’s concession is well founded. Defendant’s conviction on count 3 is reversed and count 4 is deemed to encompass the jury’s determination that defendant possessed .32- and .38-caliber ammunition.

III. Section 654

A. Background

Finally, defendant argues the trial court erred in imposing a concurrent sentence for count 4, rather than staying the sentence under section 654, which bars multiple punishment for the same act or omission. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) As defendant contends, it is error for a trial court to impose a concurrent sentence if section 654 applies. (People v. Jones (2012) 54 Cal.4th 350, 353.) The proper procedure if the statute applies is to impose a sentence but stay its execution, despite little practical difference between a concurrent sentence and a stayed sentence. (Ibid.)

Defendant did not object to his sentence in the trial court, but because a sentence imposed in contravention of section 654 is an unauthorized sentence, the error may be raised on appeal even in the absence of an objection. (People v. Brents (2012) 53 Cal.4th 599, 618.) On appeal, “[a] trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld … if supported by substantial evidence” (ibid.), that is, evidence which is reasonable, credible and of solid value (People v. Armstrong (2016) 1 Cal.5th 432, 450).

The statutory purpose underlying section 654 “is to ensure that a defendant’s punishment will be commensurate with his culpability.” (People v. Correa (2012) 54 Cal.4th 331, 341 (Correa).) To that end, the statute prohibits courts from imposing multiple punishment for the same act or omission but, as the California Supreme Court recently observed, the application of section 654 can leave courts with more questions than answers. (Corpening, supra, 2 Cal.5th at p. 312.) This is because “[n]either the text nor structure of section 654 resolves when exactly a single act begins or ends, for example, or how to take account of the fact that virtually any given physical action may, in principle, be divided into multiple subsets that each fit the colloquial definition of an ‘act.’” (Ibid.)

As the court explained in Corpening, determining “[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘“intent and objective”’ or multiple intents and objectives.” (Corpening, supra, 2 Cal.5th at p. 311.)

B. Trial Court’s Implied Determination Supported by Substantial Evidence

When, as here, there is no “explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it.” (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045, citing People v. Tarris (2009) 180 Cal.App.4th 612, 626–627.) In this case, the trial court impliedly determined section 654 does not apply to defendant’s conviction for possession of the .32-caliber ammunition because it did not stay the sentence for count 4, and we must affirm that determination if it is supported by substantial evidence, as previously stated. (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Mejia, supra, at p. 1045.)

In People v. Lopez (2004) 119 Cal.App.4th 132, 134–135 (Lopez), cited by both parties, the defendant was caught with a loaded handgun and convicted, in relevant part, of possessing a firearm and possessing ammunition. The defendant claimed the trial court erred in failing to stay his sentence for ammunition possession under section 654. (Lopez, supra, at p. 134.) The Court of Appeal agreed, explaining, “In resolving section 654 issues, our California Supreme Court has recently stated that the appellate courts should not ‘parse[] the objectives too finely.’ [Citation.] To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and section 654 precludes multiple punishment.” (Id. at p. 138, italics added.)

Although not cited by the parties, the Court of Appeal in People v. Sok (2010) 181 Cal.App.4th 88, also concluded that the trial court erred in failing to stay the defendant’s sentence for ammunition possession where the defendant was sentenced for possessing a firearm and the ammunition was loaded in the firearm. The court found “no evidence in the record that would support the trial court’s implied factual finding that [the defendant] had different or multiple objectives in possessing the loaded firearm and possessing the ammunition in the gun itself.” (Id. at p. 100.)

Defendant does not argue that his possession of the loaded firearm and his possession of additional ammunition, including ammunition of a different caliber, “were completed ‘by a single physical act’” (Corpening, supra, 2 Cal.5th at p. 311), but he claims he had a single intent and objective in possessing a loaded firearm and additional ammunition: to “possess[] a firearm capable of firing bullets .…” Defendant also argues that the holding in Lopez, which applies to the .38-caliber rounds loaded in the revolver, should apply to the additional ammunition found in the tin can on the coffee table. Defendant does not cite any authority for this proposition but asserts that the fact the ammunition was loaded in the firearm was not key to the holding in Lopez. We disagree; as we have emphasized in quoting the holding from Lopez above, the fact that the ammunition was loaded in the firearm was integral to the holding.

Here, as the People contend, the ammunition separately located in the tin can included .32-caliber ammunition intended for a weapon other than the .38-caliber revolver recovered by deputies. With respect to the .38-caliber ammunition located in the can, the People contend that the possession of extra ammunition evidences a separate objective to reload the revolver for use on a future occasion.

Defendant argues that his possession of a .32-caliber firearm is purely speculative and he points out that “a bullet, by itself, does not pose a threat to anyone.” These contentions overlook the nature of the offense. Defendant is prohibited by law from possessing ammunition, irrespective of whether he also possesses a firearm within which to load the ammunition or what plans he might have for the ammunition. (§ 30305, subd. (a)(1).) As the court pointed out in Lopez, “[t]he Legislature has wisely declared that specified people should not possess firearms and/or ammunition. The obvious legislative intent is to prohibit these persons from combining firearms with ammunition.” (Lopez, supra, 119 Cal.App.4th at p. 138, italics added.)

Here, defendant possessed a fully loaded firearm and, separately, .32- and .38-caliber ammunition. This plainly constituted an act separate from, and not merely incidental to, possessing the loaded firearm. The trial court could have reasonably concluded that defendant’s possession of additional .32-caliber and .38-caliber ammunition outside of the fully loaded .38-caliber revolver supports the existence of a separate intent and objective to facilitate defendant’s ability both to reload the revolver once the ammunition inside was spent and to load a separate weapon of a different type. That deputies did not locate a .32-caliber weapon is immaterial; this separate intent and objective is reasonably inferable from defendant’s possession of the ammunition, a conclusion that draws further support from the trial court’s decision to impose the concurrent sentence at issue on count 4, the possession of .32-caliber ammunition.

As well, the trial court’s imposition of sentences for both possessing the loaded firearm and separately possessing additional ammunition in the tin can is commensurate with defendant’s culpability. Although defendant challenges the People’s reliance on Correa for this proposition, we agree that the reasoning in Correa supports the People’s point as to defendant’s increased culpability. The defendant in Correa was found with a cache of weapons and was convicted of seven counts of being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1). (Correa, supra, 54 Cal.4th at p. 334) The California Supreme Court considered whether section 654 barred multiple punishments for multiple convictions of violating the same statute. (Correa, supra, at p. 334.) The court concluded section 654 does not bar the imposition of multiple sentences in this situation. (Correa, supra, at p. 334.) As previously stated, the court noted, in relevant part, that “the purpose of section 654 is to ensure that a defendant’s punishment will be commensurate with his culpability” (id. at p. 341), and observed that “a felon who possesses several firearms is more culpable than one who possesses a single weapon” (id. at p. 342). By parity of reasoning, a felon who possesses both a loaded firearm and additional ammunition of the same caliber and of a different caliber is more culpable than one who possesses only a loaded firearm. (Ibid.)

Accordingly, we decline defendant’s invitation to find the holding in Lopez applicable to his possession of additional ammunition outside of the loaded revolver and we conclude the trial court did not err in impliedly determining that section 654 does not bar defendant’s concurrent sentence for ammunition possession.[10]

DISPOSITION

Defendant’s conviction on count 5 for possessing .380-caliber ammunition is reversed. Defendant’s separate conviction on count 3 is reversed and deemed consolidated with count 4. Except as modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and deliver it to the appropriate authorities.

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MEEHAN, J.

WE CONCUR:

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HILL, P.J.

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POOCHIGIAN, J.