People v. Herrera CA2/8

Filed 11/12/15 P. v. Herrera CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B259685

Plaintiff and Respondent, (Los Angeles County Super. Ct. Nos. VA135738, VA131989, v. VA130697)

JUAN DAVID HERRERA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Larry S. Knupp, Judge. Affirmed as modified.

Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Juan Herrera contends the trial court improperly imposed double punishment in violation of Penal Code1 section 654 by sentencing him for possession of a firearm by a felon and for possession of ammunition. We find his contention has merit, and modify the judgment accordingly. FACTS Because Herrera pled no contest, the facts are summarized from the preliminary hearing transcript. On June 22, 2014, Los Angeles County Sheriff’s Department Deputy Juan Solorzano saw Herrera and co-defendant Samuel Bernal in a vehicle at the Good Nite Inn in Whittier. Deputy Solorzano contacted the two men and searched the vehicle. We set forth the deputy’s testimony regarding the search as it is critical to Herrera’s current appeal. It provides, in pertinent part: “Q: What did you find in the vehicle? “A: In the back seat I found an empty marijuana container. In the trunk I found a . . . safe. The safe contained a gun, meth, two U.S. passports that didn’t belong to Mr. Herrera or Mr. Bernal, California I.D. that belonged to somebody else. Numerous shaved keys and I think two iPads and two mini iPads, also a meth pipe. “[¶] . . . [¶] “Q: I’m going to ask you about these items specifically. As to the gun, what type of gun was it? “A: It was a Colt Python. “Q: Did it appear to be operable? “A: Yes. It was in very good condition. “Q: Was it loaded with any ammunition? “A: Yes, it was it was fully loaded. “Q: What do you mean ‘fully loaded’? “A: I think it’s five or six rounds.