California Court of Appeal, Second District, Fifth Division
As Modified on Denial of Rehearing March 21, 2014.
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APPEAL from a judgment of the Superior Court of the County of Los Angeles, Antonio Barreto, Jr., Judge. Affirmed in part, reversed in part, and remanded. (Los Angeles County Super. Ct. No. SA079419).
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James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael C. Keller and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Richard Garcia (defendant) was convicted of shooting a firearm in a grossly negligent manner (Pen.Code, § 246.3, subd. (a)). The jury found true allegations that defendant personally used a firearm in violation of section 12022.5, subdivisions (a) and (d), the crime was gang related within the meaning of section 186.22, subdivision (b), and defendant had two prior convictions within the meaning of section 667.5, subdivision (b).
We hold that, as defendant contends and the Attorney General concedes, convictions for the predicate offenses of other gang members were not within three years of each other as required by the statute. We also hold that because the jury was not instructed that a predicate offense may be proved by the commission of a crime, defendant's alleged commission of a crime cannot serve as a predicate offense for the gang enhancement. We therefore reverse the true finding on the gang enhancement allegation; and apart ...