Does section 654 of the Criminal Code apply to stay imposition of punishment for the crime of being a felon in possession of a firearm?

Section 654 bars multiple punishment when a defendant is convicted of two or more offenses that are incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Whether section 654 applies in a given case is a factual question for the

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trial court to determine; we apply the substantial evidence standard of review to a trial court's findings on section 654. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.)

Defendant did not have a gun prior to the fight at the barber shop. He did not have a gun when he ran toward an exit of the mall. It was not until after defendant returned to the mall, that he had a gun. Defendant's possession of the gun was a distinct and separate act from the shooting. There was "no 'fortuitous circumstance[]' putting the weapon in [defendant]'s hand at the moment of the [shooting] such that the act of possession might in some meaningful way be indistinguishable from the [shooting]." (People v. Rosas (2010) 191 Cal.App.4th 107, 111.)

Defendant cites to People v. Bradford (1976) 17 Cal.3d 8, where the defendant wrested the gun from the victim and immediately used the weapon. Under this circumstance, there is no distinctly antecedent and separate possession. (Id. at p. 22.)

When a felon's possession of a gun is not fortuitous, as when the gun is wrested from the victim in a struggle, section 654 will not apply to stay imposition of punishment for the offense of being a felon in possession of a firearm. (People v. Vang (2010) 184 Cal.App.4th 912, 917.) Moreover, the offense of being a felon in possession of a firearm does not require that the weapon be loaded or fired (ibid.), as was the case here.