P. v. Moorehead
James Allen Moorehead (defendant) appeals from the judgment entered upon his convictions by jury of two counts of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b), counts 1 & 2),[1]as lesser included offenses of assault with a semiautomatic firearm on a peace officer ( 245, subd. (d)(2)), and one count of being a felon in possession of a firearm ( 12021, subd. (a)(1), count 3). As to counts 1 and 2, the jury found to be true the firearm-use enhancement within the meaning of section 12022.5. Defendant admitted the prior prison term allegation within the meaning of section 667.5, subdivision (b). The trial court sentenced him to an aggregate state prison term of 22 years four months. Defendant contends that (1) he was deprived of his rights to due process and to a jury trial under the California and United States Constitutions when the trial court sentenced him for an offense other than the one of which he was convicted; (2) there was insufficient evidence to support defendants convictions of assault with a semiautomatic firearm; (3) the consecutive sentences imposed under section 12022.53 were improper and must be vacated because that enhancement is inapplicable to the offenses of which defendant was convicted and the jury did not return a true finding on that enhancement; and (4) the prior prison term enhancement imposed under section 667.5, subdivision (b) must be vacated because the elements of that enhancement were not admitted, proven, or found true by the jury or the trial court.
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