P. v. Mitchell
A jury convicted appellant Tyrone Augusta Mitchell of attempted murder (Pen. Code, 187, 664;[1]count 1), assault with a semiautomatic weapon ( 245, subd. (b); count 2), being a felon in possession of a firearm ( 12021, subd. (a)(1); count 3), being a violent felon in possession of a firearm ( 12021.1, subd. (a); count 4), carrying a loaded firearm while actively participating in a criminal street gang( 12031, subd. (a)(2)(C); count 5) and possession of stolen property ( 496, subd. (a); count 6). The jury also found true various enhancement allegations, including that in committing the count 1 offense appellant discharged a firearm ( 12022.53, subd. (c)) and, in so doing, proximately caused great bodily injury ( 12022.53, subd. (d)). In a separate proceeding, appellant admitted allegations that he had suffered a felony conviction in 1997 that qualified as both a strike[2]and a serious felony conviction ( 667, subd. (a)), and that he served a prison term for that conviction within the meaning of section 667.5, subdivision (b). The jury acquitted appellant of possession of cocaine for purposes of sale (Health & Saf. Code, 11351.5, subd. (a)(1)), charged in count 7.
On appeal, appellant contends: (1) the evidence was insufficient to support appellants conviction of carrying a loaded firearm while actively participating in a criminal street gang, as charged in count 5; (2) the court erroneously imposed sentence on count 7; and (3) appellants conviction of the count 3 offense cannot stand because that offense is a necessarily lesser included offense of the count 4 offense. Court reverse appellants convictions on counts 3 and 5, vacate the sentence imposed on count 7 and in all other respects, affirm.
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