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People v. Canela

California Court of Appeal, First District, Fifth Division

March 11, 2014

The PEOPLE, Plaintiff and Respondent,
v.
Jesus CANELA, Defendant and Appellant.

[As Modified on April 2, 2014.]

[CERTIFIED FOR PARTIAL PUBLICATION][*]

Superior Court of the County of Contra Costa, No. 51105162, Leslie Landau, Judge.

Page 704

[Copyrighted Material Omitted]

Page 705

COUNSEL

Jeffrey A. Glick, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Juliet B. Haley, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

Jones, P.J.

A jury convicted appellant Jesus Canela of several crimes, including second degree robbery (Pen.Code, §§ 211, 212.5, subd. (c) (Count 1)) [1] and evading a peace officer and driving in the direction opposite to traffic (Veh.Code, § 2800.4 (Count 4)). The jury found true gang and great bodily injury sentencing enhancements (§§ 186.22, subd. (b), 12022.7, subd. (a)) and the trial court sentenced appellant to state prison.

On appeal, appellant contends: (1) the prosecutor used peremptory challenges to exclude African-Americans from the jury panel and the court erroneously denied his Batson/Wheeler [2] motion; (2) there was insufficient evidence to support the true findings on the gang enhancement (§ 186.22, subd. (b)) and the great bodily injury enhancement (§ 12022.7, subd. (a)); (3) the court erred by imposing a $41 " theft offense fine" (theft fine) pursuant to section 1202.5; and (4) he is entitled to one additional day of presentence credit.

In the published portion of the opinion, we conclude appellant personally inflicted great bodily injury " in the commission" of Count 4 within the meaning of section 12022.7, subdivision (a). In the unpublished portion of the opinion, we conclude the court did not err by denying appellant's Batson / Wheeler motion and substantial evidence supports the section 186.22 gang enhancement. We also conclude the amount of the section 1202.5 theft fine must be reduced and appellant is entitled to 957 days of presentence credit.

We modify the judgment to: (1) impose a theft fine of $10 and penalty assessments on that fine in the amount of $26 ...


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