P. v. Ivaschenko
After a jury trial, defendant Andrei Ivaschenko was convicted of (1) possession of a firearm, within 10 years of a prior conviction of battery (Pen. Code, 12021, subd. (c)(1)), (2) carrying in public a loaded concealable firearm not registered and owned by the bearer (Pen. Code, 12031, subd. (a)(2)(F) [hereafter section 12031(a)(2)(F)]), (3) driving while under the influence of alcohol (Veh. Code, 23152, subd. (a)), and (4) driving when he had a blood alcohol percentage higher than 0.08 (Veh. Code, 23152, subd. (b)). In a separate trial, the court found true enhancement allegations that defendant had two prior convictions within 10 years of driving under the influence of alcohol. (Veh. Code, 23546.) He appeals from the order of five years of informal probation granted on the condition, inter alia, that he serve 300 days in the county jail and have his drivers license revoked for three years. Defendant contends that the trial court erred: (1) in refusing to give a requested defense instruction on lack of mens rea, (2) in permitting him to be convicted of carrying a loaded firearm in the absence of substantial evidence of guilt of that offense, and (3) in permitting him to be convicted of carrying in public a concealable loaded firearm he did not own, in the absence of substantial evidence that the firearm, a rifle, was concealable. Finding merit only in the lattermost contention, Court shall reduce that conviction to the included misdemeanor of carrying a loaded firearm in public and, as modified, affirm the judgment (order of informal probation).
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