People v. Estrada CA2/6

Filed 11/2/26 P. v. Estrada CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX THE PEOPLE, 2d Crim. No. B342903 (Super. Ct. No. TA158712) Plaintiff and Respondent, (Los Angeles County) v. MARCO ESTRADA, Defendant and Appellant. Marco Estrada appeals from the judgment after a jury convicted him of two counts of assault with a semiautomatic firearm (Pen. Code,1 § 245, subd. (b), counts 1 and 2), and felon in possession of a firearm (§ 29900, subd. (a)(1), count 4). The jury also found true enhancements that he personally used a firearm in the commission of counts 1 and 2 (§ 12022.5, subds. (a) & (d)). The jury found Estrada not guilty of discharging a firearm with gross negligence (§ 246.3, subd. (a), count 3). In a bifurcated trial, the jury found Estrada had a prior strike pursuant to the 1 All statutory references are to the Penal Code. “Three Strikes” law. (§§ 667, subds. (b)–(j), 1170.12.) The jury also found true circumstances in aggravation that he committed the offenses while on probation or parole, and previously performed unsatisfactorily on probation or parole. (Cal. Rules of Court,2 rule 4.421(b)(4) & (5).) The trial court sentenced Estrada to 22 years in state prison. Estrada contends the evidence of counts 1 and 2 was insufficient. He also contends the trial court erred when it: (1) failed to impose the low term based on childhood trauma (§ 1170, subd. (b)(6)(A)), (2) failed to dismiss multiple firearm enhancements (§ 1385, subd. (c)(2)(B)), (3) imposed consecutive sentences for counts 1 and 2 (rule 4.425), and (4) failed to stay count 4 (§ 654). We affirm. FACTUAL AND PROCEDURAL HISTORY Assault on I.D. (count 2) I.D. lived in an apartment in Los Angeles. She knew the neighbors in unit 2223 next door, and knew “[s]ome of them” by name: Estrada’s sister, mother, and stepfather J.V.3 The two families did not “get along.” At approximately 8:00 or 8:30 p.m., Estrada shot a firearm into the air. I.D. ran to unit 2223. Her son was visiting Estrada’s sister there, and I.D. was concerned he might have been shot. When she arrived at unit 2223, the back door was open. Estrada was standing by the door, about five or six feet from her. I.D. could see into the apartment and did not see other people 2 All rule references are to the California Rules of Court. 3 We refer to the victims by their initials to protect their privacy. (Rule 8.90(b)(4).) 2 inside. Estrada pointed a black semiautomatic handgun at I.D., pointed between her chest and head. She asked if her son was in the apartment. Estrada said, “No,” and said, “I’m going to kill you, stupid ass bitch.” While pointing the firearm at her, he told her, “Shut the fuck up, bitch,” and “Shut the fuck up, bro.” I.D. told Estrada not to disrespect her or talk to her like that. She then returned to her apartment. Assault on J.V. (count 1) About 30 minutes after the assault on I.D., Police Officer Jordan Cummings and his partner drove by the apartments. J.V. was standing outside the apartments and flagged down the officers. He made the shape of a firearm with his hand, pointing first at his head and then at unit 2223. J.V. said there was a “guy with a gun.” Others were also outside and “everyone [was] yelling that he has a gun.” J.V. told police the man held a firearm to J.V.’s head. He said the guy was “[i]nside.” An officer asked, “Is anybody else inside?” J.V. responded, “Only one guy inside.” Officers were told the man ran out the back door of the residence and was running “[o]ut back.” Investigation After speaking to J.V., police did a protective sweep of the apartment complex but did not find Estrada. No firearm was located. Outside the back door of unit 2223, police found a spent nine-millimeter Luger casing sitting on top of the dirt. Estrada was arrested approximately a month later. Trial Cummings testified that he spoke to I.D. who “was in a state of panic.” She told him she heard the gunshot while on the 3 other side of the building. But when Cummings asked if she “physically watched him shoot the gun,” she replied, “Yes, sir, I did. I’m not going to lie.” She said she had been walking to her vehicle parked behind the complex when she saw Estrada standing outside at the back of the apartment unit. She said, “[H]e had a handgun and it was pointed straight up at the sky, and he fired a round.” She told police “she then ran to the front entrance of 2223, the neighbor’s unit, to warn Mr. Estrada’s step-father about the suspect.” I.D. gave a different version at trial. She testified she was inside her kitchen cooking when she heard the gunshot but did not see it. She testified that about 20 minutes after the gunshot she went next door and Estrada pointed the firearm at her. But she also testified she “immediately” went next door to find her son. She did not see anyone else with a firearm that night. Cummings said the spent casing police located was corroded and looked “ ‘super old.’ ” He testified, however, that rounds can be fired even if they are corroded. He testified it was consistent with having been fired from a semiautomatic firearm that night but he could not tell when. He testified the apartment complex was in a “high crime area” and many people in or around the complex have been found with firearms. J.V. did not testify at trial. His gestures and statements were introduced through Cummings’s testimony and body-worn camera footage. At the conclusion of the prosecution’s case, the trial court denied a motion for acquittal (§ 1118.1). Sentencing Estrada filed a sentencing memorandum that included a request to dismiss the prior strike. (People v. Superior Court 4 (Romero) (1996) 13 Cal.4th 497.) The court impliedly denied the motion by imposing the strike. The court sentenced Estrada to the upper term of nine years for count 1 (§ 245, subd. (b)), doubled to 18 years based on the strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). For count 2 (§ 245, subd. (b)), the court imposed a consecutive sentence of four years (one-third the middle term, doubled for the strike). The court stayed the enhancements for personal use of a firearm (§ 12022.5, subds. (a) & (d)). The court imposed a concurrent sentence of eight months for count 4 (§ 29900, subd. (a)(1)). The total prison sentence was 22 years. The court also resolved a violation of probation case (case No. TA156139) by terminating probation without imposing additional custody time or other sanctions. DISCUSSION Sufficiency of the evidence Estrada contends the convictions for counts 1 and 2 were not supported by substantial evidence. We are not convinced. 1. Standard of review “To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value. . . . 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.” (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) “In deciding the sufficiency of the evidence, a reviewing 5 court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “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.” (Zamudio, supra, 43 Cal.4th at p. 357.) “We ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]’ . . . ‘[I]t is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt.’ ” (Id. at pp. 357–358.) “However, ‘[a] reasonable inference . . . “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.” ’ ” (People v. Davis (2013) 57 Cal.4th 353, 360.) The People must prove the identity of the perpetrator beyond a reasonable doubt. (People v. London (1988) 206 Cal.App.3d 896, 908.) Identity may be established by circumstantial evidence. (See People v. Gray (2005) 37 Cal.4th 168, 202.) 2. Assault with a semiautomatic firearm The jury was correctly instructed that assault with a semiautomatic firearm requires: “1. The defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the 6 present ability to apply force with a semiautomatic firearm to a person.” (CALCRIM No. 875, modified; see People v. Cruz-Partida (2022) 79 Cal.App.5th 197, 207 (Cruz-Partida).) Pointing a loaded firearm at another person “in a menacing manner” or “under threatening circumstances” is sufficient for assault with a deadly weapon. (People v. Hartsch (2010) 49 Cal.4th 472, 506–508; Cruz-Partida, supra, 79 Cal.App.5th at pp. 207–208.) “[D]isplaying a gun . . . is sufficient to provide the mens rea for an assault charge where there is animus between the defendant and the targeted party and/or the surrounding circumstances are fraught.” (Cruz-Partida, at p. 210.) “ ‘[A]n assault is not committed by a person’s merely pointing an (unloaded) gun in a threatening manner at another person.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 147 (Penunuri), quoting People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 (Rodriguez).) “However, the fact that the gun was loaded may be inferred from circumstantial evidence, and we will uphold an assault conviction if the inference is reasonable.” (Penunuri, at p. 147.) In Penunuri, it was reasonable for the jury to conclude the gun “was the same gun that was used to kill [others] a few hours later, and was therefore loaded at the time of the assault.” (Ibid.) Accordingly, pointing the gun at the victim’s head constituted sufficient evidence of assault with a firearm. (Id. at pp. 142, 147.) Similarly, in Rodriguez, putting the barrel of a handgun to the victim’s chin and threatening to kill him, together with evidence the defendant shot and killed another person the previous day (probably with a different firearm) were sufficient for the jury to conclude the firearm was loaded. (Rodriguez, at pp. 12–13.) 7  3. Assault on I.D. Estrada pointed a handgun at I.D. from five or six feet away and threatened to kill her. The jury could credit I.D.’s statement that minutes earlier she saw Estrada shoot a handgun into the air.4 From this evidence, the jury could conclude the firearm was still loaded. (Penunuri, supra, 5 Cal.5th at p. 147.) The jury could also conclude from Estrada’s actions and threatening statements that he had the present ability to apply force. (Rodriguez, supra, 20 Cal.4th at p. 12.) This evidence is sufficient to establish assault with a semiautomatic firearm. (Id. at p. 5; Penunuri, at p. 147.) 4. Assault on J.V. Substantial evidence also supports the conviction of assault with a semiautomatic firearm on J.V. Estrada’s identity as the assailant of J.V. was established by circumstantial evidence. (See People v. Gray, supra, 37 Cal.4th at p. 202.) The jury could reasonably conclude that the assaults on the two victims occurred just minutes apart. Police drove by the apartments about 30 minutes after the assault on I.D. J.V. flagged them down and gave a gesture of a firearm to his head. Police were told the suspect had run out the back and responded by doing a protective sweep. Based on Cummings’s testimony and the jurors’ view of the body-worn video, they could reasonably conclude the assault on J.V. had just occurred. J.V. referred to the assailant as male. He said the man was “[i]nside” and there was “[o]nly one guy inside.” He pointed to unit 2223, the apartment of Estrada’s family, the same location 4 The acquittal on count 3, discharge of a firearm with gross negligence, does not establish that the jury rejected the evidence that he shot the firearm into the air. 8 where Estrada assaulted I.D. She identified Estrada and testified he was the only male she saw inside the apartment and the only person she saw with a firearm. There was no evidence that the other male possibly present in unit 2223, I.D.’s son, was seen with a firearm or would have had a motive to assault J.V. This evidence supports a reasonable inference that the same person, Estrada, committed two similar assaults minutes apart at the same location. The theoretical possibility that a different male inside the apartment of Estrada’s family assaulted J.V. with a handgun minutes after Estrada assaulted I.D. “does not warrant the judgment’s reversal.” (Zamudio, supra, 43 Cal.4th at p. 358.) This case is unlike People v. Blakeslee (1969) 2 Cal.App.3d 831, which found insufficient evidence of identity to support a murder conviction. There, “no one saw defendant with a weapon” the night of the murder. (Id. at p. 838.) In contrast here, I.D. saw Estrada shoot a handgun and then threaten her with it within minutes of the assault on J.V. The other elements were established as discussed regarding count 2. The firearm was loaded when Estrada shot it into the air, and it is a reasonable inference it was loaded when he contemporaneously assaulted J.V. (Penunuri, supra, 5 Cal.5th at p. 147.) Holding a firearm to J.V.’s head was by its nature “menacing” and “threatening.” (People v. Hartsch, supra, 49 Cal.4th at pp. 507–508.) This conclusion is supported by J.V.’s reaction of flagging down police officers to report it. We conclude substantial evidence supports count 1. Forfeiture Estrada challenges several aspects of his sentence. The Attorney General contends Estrada forfeited these issues by 9 failing to object in the trial court. As discussed below, we find forfeiture of one asserted error—the trial court’s failure to state reasons for imposing a consecutive sentence for count 2. (People v. Scott (1994) 9 Cal.4th 331, 352–353.) We conclude Estrada did not forfeit the remaining issues because he raised them sufficiently in the trial court. The sentencing was continued so Estrada could obtain additional records to “establish childhood trauma.” Counsel advised the court that the records were relevant because “the [R]ules of [C]ourt and [P]enal [C]ode 1385 and 1170([b]) say that prior victimization and childhood trauma . . . are mitigating circumstances which justify striking enhancements or selecting low term as opposed to mid term or high term.” Estrada then filed a sentencing memorandum that raised the sentencing issues now on appeal. At the sentencing hearing on December 12, 2024, trial counsel said he would “just restate [his] position from [his] sentencing memorandum.” The court stated it reviewed the sentencing memorandum, the probation report, and the “packet” attached to the sentencing memorandum, which included a psychological evaluation from clinical psychologist Kele Kirschenbaum, Psy.D., and a mitigation report from senior paralegal Wendy Segoviano. Estrada did not forfeit the arguments in his sentencing memorandum by failing to object when the court did not adopt his positions. (People v. Craig (2026) 117 Cal.App.5th 1165, 1175–1176; People v. Gonzalez (2024) 103 Cal.App.5th 215, 225– 227.) Selection of high term Estrada contends the trial court erred when it failed to 10 impose the low term based on childhood trauma. (§ 1170, subd. (b)(6)(A).) We disagree. The court was authorized to impose the high term for count 1 based on the factors in aggravation found by the jury, i.e., that he committed the offenses while on probation or parole, and performed unsatisfactorily on probation or parole. (§ 1170, subd. (b)(2); rule 4.421(b)(4) & (5).)5 However, if the defendant “has experienced psychological, physical, or childhood trauma,” and it “was a contributing factor in the commission of the offense,” the court must impose the low term “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice.” (§ 1170, subd. (b)(6)(A).) Dr. Kirschenbaum’s evaluation outlined the abuse Estrada suffered as a child. It stated that “an argument with his girlfriend and an interaction with his stepfather triggered symptoms stemming from Mr. Estrada’s long history of abandonment and abuse,” leading to “the behaviors that led to his current arrest.” Segoviano’s report also discussed Estrada’s childhood abuse. Assuming such abuse contributed to Estrada’s criminal conduct, it would be sufficient to establish “a qualifying trauma, which would appear to meet the statute’s threshold requirement for triggering the lower term presumption.” (People v. Salazar (2023) 15 Cal.5th 416, 419.) But the trial court retains discretion to impose the high term if the aggravating factors outweigh the mitigating factors and the low term would be contrary to the interests of justice. (§ 1170, subd. (b)(6).) 5 The court imposed subordinate terms of one-third the middle term for count 2 (consecutive) and 4 (concurrent). (§ 1170.1, subd. (a); People v. Nguyen (1999) 21 Cal.4th 197, 207.) 11  The trial court acknowledged Estrada’s difficult childhood and noted that he sought mitigation. It said, “[H]e has had a terrible childhood, but at some point we all become adults and we all have to take responsibility for our own actions.” The court’s concern was that Estrada was convicted in 2013 for “the same type of conduct” (assault with force likely to produce great bodily injury), served seven years in prison, and when released on parole was convicted of “another gun case.” The court said it “gave him a break” in the later case by placing him on probation with 240 days in county jail. But six months later, he committed the current offenses. The court noted that Estrada was not 18 or 21 or 25, but was “well into his 30’s with children of his own that he does not seem to consider when he picks up guns and goes shooting them and pointing them and assaulting people with them.” The court found that Estrada’s actions in “pointing guns” at his neighbor and a relative “are a direct threat to the community.” Estrada does not challenge the manner in which the trial court exercised its discretion under section 1170, subdivision (b)(6), but contends the trial court misunderstood its sentencing obligations. We are not persuaded and “ ‘cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of [its] discretion.’ ” (People v. Ochoa (2020) 53 Cal.App.5th 841, 852.) The record here shows the court was aware of the scope of its discretion. Estrada’s sentencing memorandum, which the trial court read, requested the low term pursuant to section 1170, subdivision (b)(6), and quoted the pertinent statutory language. The memorandum noted that Segoviano’s and Dr. Kirschenbaum’s reports “establish that Mr. Estrada suffered abuse, neglect, exploitation, and sexual violence 12 as a child, and endured psychological trauma as an adult. Dr. Kirschenbaum’s report additionally explains how this trauma was a contributing factor to the commission of the offense.” We agree with People v. Nielsen (2026) 119 Cal.App.5th 816, 825, that the trial court was not required to make express findings regarding the requirements of section 1170, subdivision (b)(6).6 As in Nielsen, Estrada fails to meet his burden to show the court misunderstood its sentencing discretion. (Nielsen, at pp. 823, 825.) Multiple enhancements The trial court stayed imposition of sentence for the enhancements that Estrada personally used a firearm in the commission of counts 1 and 2 (§ 12022.5, subds. (a) & (d)). Estrada contends the trial court erred when it failed to dismiss at least one of these enhancements. (§ 1385, subd. (c)(2)(B).) We again disagree. “[T]he court shall dismiss an enhancement if it is in the furtherance of justice to do so.” (§ 1385, subd. (c)(1).) “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove [certain] mitigating circumstances. . . . Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court 6 The suggestion in People v. Fredrickson (2023) 90 Cal.App.5th 984, 987, 992, that the trial court must make an “express finding” regarding the application of section 1170, subdivision (b)(6) and that the record must “affirmatively show” the court considered it, is dictum because the defendant there did not make an initial showing the statute applied. (Nielsen, at pp. 827–828.) 13 finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (§ 1385, subd. (c)(2).) Estrada contends several of the statutory mitigating circumstances were present, including: “The current offense is connected to prior victimization or childhood trauma” (§ 1385, subd. (c)(2)(E)), and “Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B).) Despite the seemingly mandatory language that multiple enhancements “shall be dismissed,” (§ 1385, subd. (c)(2)(B)), trial courts retain discretion to impose the enhancements if dismissal would endanger public safety. (People v. Anderson (2023) 88 Cal.App.5th 233, 239–241.) The court here considered the probation report, which summarized Estrada’s prior criminal history, including grand theft from the person of another, obstructing a public officer, violating a restraining order, and a seven-year prison sentence for terrorist threats and assault by means of force likely to produce great bodily injury with a great bodily injury enhancement. As noted in the probation report, when Estrada committed the crimes here, he was on probation for possession of a controlled substance with a firearm. The court commented on Estrada’s history of weapons offenses, and the threat his conduct posed to the community. There is no “rebuttable presumption” that the court must dismiss an enhancement “that can only be overcome by a finding that dismissal endangers public safety.” (People v. Walker (2024) 16 Cal.5th 1024, 1033.) Rather, “if the court does not conclude that dismissal would endanger public safety, then mitigating 14 circumstances strongly favor dismissing the enhancement.” (Id. at p. 1036, italics added.) The court must ultimately “determine whether dismissal is in furtherance of justice.” (Ibid.) We review denial of a motion to dismiss sentence enhancements for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374; People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) We presume the court “ ‘ “acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ ” (Carmony, at pp. 376–377.) No abuse of discretion has been shown because Estrada’s threat to the community and prior criminal record constitute “substantial, credible evidence of countervailing factors that ‘. . . neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.’ ” (People v. Walker, supra, 16 Cal.5th at p. 1029.) Consecutive sentences Estrada contends the trial court erred when it imposed consecutive sentences for counts 1 and 2. We conclude otherwise. 1. Exercise of discretion The trial court has discretion to impose consecutive or concurrent sentences. (People v. Bradford (1976) 17 Cal.3d 8, 20.) Consecutive sentences may be imposed where, as here, “[t]he crimes involved separate acts of violence or threats of violence.” (Rule 4.425(a)(2).) Consecutive sentences may be based on multiple victims, even when committed in a single incident. (People v. Calhoun (2007) 40 Cal.4th 398, 400–401, 408 [collision killed two occupants of same car].) “[T]he naming of separate victims in separate counts is a circumstance on which a trial court may properly rely to impose consecutive sentences.” (People 15 v. Caesar (2008) 167 Cal.App.4th 1050, 1061.) In addition, to impose consecutive sentences, the court may consider any factors in aggravation or mitigation, whether or not stipulated to or found true at trial, that were not used to impose the upper term or to otherwise enhance the sentence. (Rule 4.425(b).) The only factors in aggravation used to impose the upper term were Estrada’s probation status and unsatisfactory probation performance. The court could thus rely on other factors in aggravation listed in the probation report, including that Estrada posed a serious danger to society, and had numerous prior convictions. The trial court did not abuse its discretion. 2. Statement of reasons Estrada also contends the trial court erred by failing to state reasons for the consecutive sentences, as required by rule 4.406(b)(4). Estrada forfeited this issue by failing to request a statement of reasons in the trial court. (People v. Scott, supra, 9 Cal.4th at p. 353 [reasons for upper term and consecutive sentences].) Forfeiture applies because “[r]outine defects in the court’s statement of reasons are easily prevented and corrected if called to the [trial] court’s attention.” (Ibid.) Moreover, the failure to state reasons is harmless because it is not “ ‘ “ ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.’ ” ’ ” (People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1638.) The trial court calibrated the components of the sentence to reach an appropriate total term, selecting the upper term for count 1, running count 2 consecutive, and declining to dismiss the strike, but staying the enhancements, imposing a concurrent sentence for count 4, and imposing no additional custody time for 16 violation of probation. It is thus unnecessary to remand for a statement of reasons. (Ibid.) 3. Ineffective assistance of counsel We reject Estrada’s contention that failure to request a statement of reasons constituted ineffective assistance of counsel. Estrada has not shown that counsel rendered deficient and prejudicial performance. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 (Strickland).) “Competent counsel is not required to make all conceivable motions” but “should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances.” (People v. Freeman (1994) 8 Cal.4th 450, 509.) Counsel’s sentencing memorandum requested concurrent sentences and laid out sentencing provisions, facts, and argument in support of that position. Estrada has not shown that counsel’s failure to request a statement of reasons for imposition of consecutive sentences was below “ ‘the range of competence demanded of attorneys in criminal cases.’ ” (Strickland, supra, 466 U.S. at p. 687.) Nor has Estrada shown prejudice. Although the prosecution requested a sentence of 32 years, the court stayed the firearm enhancements and imposed a sentence of 22 years. It is not reasonably probable that if counsel had requested a statement of reasons, the court would have reduced the sentence by imposing a concurrent sentence. Section 654 stay Estrada contends the trial court erred when it failed to stay the sentence for count 4 pursuant to section 654 and instead imposed a concurrent sentence of eight months. We again 17 disagree. “An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) “ ‘Although section 654 speaks in terms of an “act or omission,” it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time.’ ” (People v. Clair (2011) 197 Cal.App.4th 949, 958–959.) “If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268, citing People v. Beamon (1973) 8 Cal.3d 625, 639.) “[W]hether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination.” (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.) “A trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.) Multiple punishment for possession of a firearm and use of the firearm is prohibited where it is possessed “only in conjunction with the primary offense” but not where possession is “distinctly antecedent and separate from the primary offense.” (People v. Bradford, supra, 17 Cal.3d at p. 22.) For example, 18 section 654 bars multiple punishment where “the firearm came into the defendant’s possession fortuitously ‘at the instant of committing another offense.’ ” (People v. Jones (2002) 103 Cal.App.4th 1139, 1145.) But “multiple punishment is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent.” (Id. at p. 1144.) Jones upheld multiple punishment for being a felon in possession of a firearm and shooting at an inhabited dwelling because “Jones committed two separate acts: arming himself with a firearm, and shooting at an inhabited dwelling.” (Id. at p. 1147; accord, People v. Wynn (2010) 184 Cal.App.4th 1210, 1216–1218.) Similarly here, substantial evidence established that Estrada possessed the firearm and shot it into the air before using it to assault I.D. and J.V. His assaults “required a second intent . . . ‘something more than the mere intent to possess the proscribed weapon,’ ” i.e., to threaten I.D. and J.V. (People v. Jones, supra, 103 Cal.App.4th at p. 1147.) The trial court properly declined to stay count 4. DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED. BALTODANO, J. We concur: CODY, P. J. YEGAN, J. 19  Laura Walton, Judge Superior Court County of Los Angeles ______________________________ Keith Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.