P. v. Trujillo
Defendant was convicted after jury trial of obliterating the identification information of a firearm (Pen. Code, 12090).[1] The jury also found true an allegation that defendant committed the offense for the benefit of or in association with a criminal street gang. ( 186.22, subd. (b)(1).) The trial court sentenced defendant to seven years in state prison. On appeal defendant contends: (1) the prosecutor improperly used peremptory challenges to exclude Hispanics from the jury; (2) the evidence is insufficient to support the finding that he obliterated the serial number on a firearm; (3) the trial courts instruction to the jury that it may presume he obliterated the firearms serial number simply because he possessed the firearm unconstitutionally relieved the prosecution of its burden of proof; (4) the evidence is insufficient to support the finding that he possessed the firearm for the benefit of or in association with a criminal street gang; and (5) imposition of the upper term based on facts not found true by a jury beyond a reasonable doubt violated his right to due process. The Attorney General concedes both contentions (2) and (3), and Court agree with the concessions. Accordingly, Court reverse the judgment and Court not discuss the remaining contentions.
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