(Super. Ct. Nos. CM034122 & CM034831)
The opinion of the court was delivered by: Duarte , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Codey Lee Palmer guilty of possession of a firearm by a felon (Pen. Code,*fn1 § 12021, subd. (a)(1); count 1), possession of a short-barreled shotgun (§ 12020, subd. (a)(1); count 2), and exhibiting a firearm (§ 417, subd. (a)(2); count 3).*fn2 The jury found not true gang enhancement allegations (§ 186.22, subd. (b)(1)) attached to counts 1 and 2. Outside the presence of the jury, defendant admitted his prior strike conviction and prior prison term.
The trial court sentenced defendant to an aggregate term of eight years four months in state prison, allocated as follows: count 2, six years (three years doubled); count 1, 16 months concurrent with count 2; count 3, a consecutive effective term of 16 months (1/3 the midterm of two years, doubled), and a consecutive one-year term for the service of a prior prison term.*fn3
On appeal, defendant first contends that count 3 as charged incorrectly conflated the misdemeanor section 417 charge with the alternate penalty provision contained in section 186.22, subdivision (d) (section 186.22(d)), which resulted in charging error such that count 3 failed to allege a crime.*fn4 He also raises several sub-issues related to that claim. He further contends that trial counsel was ineffective for failing to object to the charging error and resulting sub-issues; and that section 654 requires that we stay sentence on counts 1 and 3.
The People agree that the sentence on count 1 should be stayed.
We agree with the parties as to count 1. As we will explain, we find no prejudicial error upon consideration of defendant's remaining contentions.*fn5 Accordingly, we shall affirm.
On February 17, 2011, about 2:00 a.m., Robert Binsfield, David Barker and Mitchell Engstrom were walking to a party after drinking at a bar in Chico. Binsfield stopped to talk with other friends while Barker and Engstrom continued walking. Binsfield heard yelling and cursing, looked around a corner and saw defendant jogging toward him holding a shotgun. Defendant yelled at Binsfield something like, "You want to go" or "You want some of this." Binsfield ran and hid behind a parked car.
Officer Curtis Prosise was in his patrol car within a block of where defendant had threatened Binsfield when he received a dispatch call of a Hispanic male, wearing a white T-shirt, carrying a shotgun, and yelling "Chapman" and "Norte." Prosise drove to the area, saw defendant and shined his spotlight on him. Defendant fled and Prosise pursued him. As defendant ran, Prosise heard metal striking the asphalt, but Prosise did not stop. With the aid of another officer, he took defendant into custody. Prosise then returned to where he had heard the metallic sound and found a loaded shotgun with the stock and barrel modified.
The parties stipulated that the Nortenos were a criminal street gang and testimony by a gang expert established that defendant was a member of the Chapman Town Nortenos. The expert further testified that defendant's conduct in yelling gang terms while carrying a shotgun in public view would benefit the Norteno street gang by "instilling fear in their rivals and instilling fear in their victims and witnesses." Further, a higher-profile crime of this nature would receive significant media coverage which would also benefit the gang by scaring people.
Defendant rested without presenting any evidence. He argued that the evidence failed to establish his identity as ...