P. v. Brown
A jury convicted defendant of assault with a firearm (Pen. Code, 245, subd. (a)(2)),[1]during which he used a handgun ( 12022.5, subd. (a)) and inflicted great bodily injury ( 12022.7, subd. (a)), possession of a firearm by an ex-felon ( 12021, subd. (a)(1)) and discharge of a firearm in a school zone ( 626.9, subd. (d)). The jury further found that all three offenses had been committed to benefit a criminal street gang ( 186.22, subds (b)(1)(A) & (C)) and defendant had inflicted great bodily injury while discharging a firearm in a school zone. In bifurcated proceedings, the trial court found defendant had suffered a prior conviction for which he served a prison term, based on defendants admission. ( 667.5, subd. (b)) Defendant was sentenced to prison for 21 years. He appeals claiming the trial court misinstructed the jury about matters of which it took judicial notice in relation to the gang enhancement allegations, insufficient evidence supported the gang enhancement and great bodily injury true findings, his admission of his prior was taken without adequate advisements and waivers and sentencing error occurred. We reject all his contentions, save the sentencing one. As to that, we agree with defendant that the sentencing court violated section 654 by imposing enhancements for his use of a firearm and for his infliction of great bodily injury, while, at the same time, relying on both of those facts to impose a greater gang enhancement than it could have absent those facts. Court therefore affirm the convictions, the true findings and the sentences for the convictions and the findings, except for the sentences imposed for the findings attached to the assault with a firearm. As to those, Court reverse and remand the matter to the trial court to resentence defendant in a manner consistent with the views expressed in this opinion.
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