P. v. Beltran
A jury convicted defendant, David Beltran, of first degree murder (Pen. Code, § 187, subd. (a))[1] and torture (§ 209), both of which were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)). In connection with the murder, the jury further found that a principal used a firearm, discharged a firearm and discharged a firearm causing death (§ 12022.53, subds. (b), (c), (d) & (e)(1)). Defendant was sentenced to prison for two consecutive terms of 25 years to life. He appeals claiming there is insufficient evidence to support the jury’s finding that he committed these crimes to benefit a criminal street gang. We agree with him and, therefore, reverse the gang enhancement true findings and the firearm use enhancement true findings (which are dependent on the crimes being committed to benefit a street gang) and their sentences and instruct the trial court to amend the abstract of judgment and minutes of the sentencing hearing to reflect this. The parties agree that the trial court incorrectly calculated defendant’s actual presentence time served, therefore, we will direct the trial court to award credit for 1,325 days and to reflect this in the minutes of the sentencing hearing and the abstract of judgment. Otherwise, we affirm.
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