P. v. Zapata
A jury found defendant Marcus Zapata guilty of three counts of second degree robbery (counts 1-3; Pen. Code,[1] § 211), evading a peace officer (count 4; Veh. Code, § 2800.2, subd. (a)), assault with a firearm (count 5; § 245, subd. (a)(2)), attempted second degree robbery (count 6; § 664/211), misdemeanor resisting arrest (count 7; § 148, subd. (a)(1)), and attempted murder (count 9; § 664/187, subd. (a)). The jury also found true allegations defendant personally used a firearm in the commission of counts 1, 2, 3, and 6. (§ 12022.53, subd. (b).)
Sentenced to 23 years and 8 months in state prison,[2] defendant appeals, contending (1) his conviction for robbery of Wells Fargo Bank (count 1) must be reversed because robbery of a bank is not a crime; (2) there is insufficient evidence to support his conviction for assault with a firearm (count 5); (3) there is insufficient evidence to support his conviction for attempted murder; and (4) the trial court’s failure to stay his sentence for resisting arrest (count 7) violated section 654.
We shall reverse defendant’s convictions for robbery of Wells Fargo Bank (count 1) and assault with a firearm (count 5), stay his sentence for resisting arrest (count 7) and otherwise affirm the judgment. The reversals do not affect the length of defendant’s sentence since the sentence on count 1 had been stayed and the sentence on count 5 had been made concurrent. In addition the stayed sentence on count 7 had been made concurrent.
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