The People v. Macias CA4/3

Filed 8/29/13 P. v. Macias CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047599

v. (Super. Ct. No. 11CF1979)

AURELIO MACIAS, JR., OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed in part and reversed in part with directions. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood, Kristine A. Gutierrez, Felicity Senoski, and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Aurelio Macias, Jr., of active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); all further statutory references are to this code; count 2) and possession of a controlled substance (count 3). In a separate bench trial, the court found true allegations that defendant’s prior convictions in 2004 for first degree burglary, carjacking, and active participation in a gang, in 2000 for carrying a loaded firearm, and in 2001 for residential burglary in Kansas were serious and violent prior convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), that he had had served prior prison terms for the 2004 and 2001 convictions (§ 667.5, subd. (b)), and that all three prior convictions were serious felonies (§ 667, subd. (a)). After striking four of defendant’s prior strike convictions, the court sentenced defendant to a total of 17 years and 8 months, consisting of 32 months (double the low term) for count 2, a concurrent 32 months (double the low term) for count 3, which it then stayed, and three consecutive 5-year terms for the three prior serious felonies (§ 667, subd. (a)(1)); it also imposed then struck two 1-year terms under section 667.5, subdivision (b). Defendant contends his conviction on count 2 should be reversed because the evidence is insufficient to support it. We agree and thus need not discuss his claim the court erred in instructing the jury on active participation in a criminal street gang. Because defendant’s remaining conviction for possession of a controlled substance does not qualify as a serious felony under section 1192.7, the three 5-year terms for the prior serious felony enhancements are ordered stricken. In all other respects, the judgment is affirmed.