P. v. Ryall
A jury found defendant Michael Leslie Ryall guilty of misdemeanor elder abuse (Pen. Code, 368, subd. (c); further undesignated statutory references are to this code), misdemeanor assault ( 240), misdemeanor threatening with a firearm ( 417, subd. (a)(2)), and felony possession of a firearm by a previously convicted felon ( 12021, subd. (a)). In a bifurcated trial, the court found true a special allegation that he served a prior separate prison term ( 667.5, subd. (b)). The trial court sentenced him to an aggregate prison term of three years. On appeal, defendant makes the following contentions:
(1) the trial court erred by admitting witness testimony that defendant touched the gun, (2) the trial court failed to give the jury a unanimity instruction sua sponte regarding defendants possession of the gun, (3) a statement by the prosecution during closing argument impermissibly shifted the burden of proof to the defense, (4) defendant got two separate convictions for a single count, thus requiring modification of the judgment, (5) the evidence used to prove the prior prison term was insufficient, and (6) the cumulative effect of the foregoing errors requires reversal of the judgment. The People concede defendants fourth contention. We accept that concession and strike defendants conviction for misdemeanor threatening with a firearm. Agreeing with defendants fifth contention that the evidence is insufficient to prove the prior prison term allegation, we reverse the judgment as to that special allegation and strike the one-year sentencing enhancement related thereto. In all other respects, Court affirm the judgment.
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