P. v. Tafolla
Defendant drove up to Leon Culpepper (Culpepper), a high school teacher, and Bo bo, Culpeppers former student. While holding a nine-millimeter semiautomatic gun pointed at the ceiling of his car, defendant asked them, You guys gang bang. He then drove off, and Culpepper reported the incident to authorities. Defendant was subsequently arrested. A search warrant executed at his residence resulted in the police discovering a nine millimeter bullet in his bedroom.
A jury found defendant guilty of being a felon in possession of a gun, found true a gang enhancement allegation of possessing the gun for the benefit of a criminal street gang, and found him guilty of being a felon being in possession of ammunition. (Pen. Code, 12021 subd. (a)(1); 186.22, subd. (b); 12316, subd. (b)(1).) Defendant was found not guilty of the criminal offense of participating in a criminal street gang and found it not true that defendant possessed ammunition for the benefit of a street gang. ( 186.22, subds. (a) & (b).)
On appeal, defendant asserts numerous errors. He claims he was denied his right to have his retained counsel of choice. He also maintains his trial counsel rendered ineffective assistance in several instances: (1) when she conceded the possession charges in closing argument, (2) when she failed to object to his wifes testimony on marital privilege grounds, and (3) when she failed to object to his wifes testimony and the searching officers testimony on speculation grounds. He also contends that the trial court committed several sentencing errors: (1) erroneously imposed the upper term for Count 1 and the gang enhancement, (2) violated the dual use prohibition when it imposed concurrent sentences on counts 1 and 3, and (3) wrongfully imposed a habitual criminal enhancement.
Court conclude that the trial court erred in imposing the upper term and remand the matter for further proceedings in accordance with Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham).Court find no other errors and thus in all other respects, Court affirm the judgment.
Comments on P. v. Tafolla