P. v. Ortiz
A jury found defendant and appellant Santiago Gabriel Ortiz guilty of possession of marijuana for sale (Health & Saf. Code, § 11359, count 1), carrying a loaded firearm by a gang member (Pen. Code, § 12031, subd. (a)(2)(C), count 2), street terrorism (Pen. Code, § 186.22, subd. (a), count 3), and being a felon in possession of a firearm (former Pen. Code, § 12021, subd. (a)(1), count 4).[1] The jury found true the allegations that counts 1, 2, and 4 were committed for the benefit of a criminal street gang, within the meaning of Penal Code section 186.22, subdivision (b)(1)(A).[2] Defendant stipulated to the fact that he had been previously convicted of two felonies. He also admitted that he had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced him to the upper term of three years on count 1, doubled pursuant to the strike, plus four years on the section 186.22, subdivision (b)(1)(A) enhancement. For count 2, the court imposed a consecutive one year four months. The court sentenced defendant to six years each on counts 3 and 4, plus one year four months on the gang enhancement on count 4, but stayed those terms under section 654. Thus, the total term imposed was 11 years four months in state prison. The court gave defendant credit for time served of 422 days (282 actual plus 140 conduct).
On appeal, defendant contends that the conviction on count 4 for being a felon in possession of a firearm (§ 12021, subd. (a)(1)) must be reversed because his predicate felony conviction had been reduced to a misdemeanor. We agree and reverse.
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