P. v. Pacheco
A jury convicted defendant of carjacking (Pen. Code, 215, subd. (a)) with personal use of a firearm (Pen. Code, 12022.53, subd. (b)) and being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)). The trial court found true allegations that defendant had a prior serious felony under Penal Code sections 1170.12 and 667, subdivision (a) and had served a prison term (Pen. Code, 667.5, subd. (b)). Sentenced to 26 years in prison, defendant appeals. He contends it was error (1) to instruct with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 376; (2) to impose five-year and one-year enhancements based on the same prior felony conviction; and (3) to record his sentence on the abstract as the upper term on count 1 when the court imposed the middle term. The Attorney General concedes the second and third errors. Court follow other courts in finding no defect in CALCRIM No. 376.
Court modify the judgment to strike the one-year prison term enhancement, direct the court to amend its minute order of December 18, 2007, to show imposition of the middle term, order the abstract corrected, and otherwise affirm.
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