P. v. January
Defendant Jamal January appeals from his conviction of having a concealed firearm in a vehicle (Pen. Code,[1] 12025, subd. (a)(1)) and the jurys true finding that the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). Defendant contends the evidence was insufficient to support the true finding on the gang enhancement. We disagree. Defendant also contends that because the People did not prove he participated in felonious gang conflict distinct from the weapons offense, his conviction of the weapons offense must be reduced to a misdemeanor. Although we agree that the evidence did not support elevating the weapons offense to a felony under section 12025, subdivision (b)(3), defendant admitted a prior felony conviction which independently served to elevate the weapons offense to a felony, under section 12025, subdivision (b)(1). Defendant also challenges his sentence on the grounds that (1) applying section 186.22, subdivisions (a) and (b), violated the rule against multiple punishment under section 654; (2) the one-year enhancement for a prior prison term conviction must be stricken; and (3) the imposition of the aggravated term for his firearm offense violated his constitutional right to a trial by jury. We agree that the one year term under section 667.5, subdivision (b), must be stricken because it was based on the same prior conviction that supported the imposition of a five year enhancement under section 667, subdivision (a). Court find no other errors, and in all other respects Court affirm the judgment.
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