The People v. Reyes CA4/3

Filed 9/20/13 P. v. Reyes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G047099

v. (Super. Ct. No. 09WF1907)

CARLOS FERNANDO REYES, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed. Gregory L. Cannon, 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, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Carlos Fernando Reyes of: (1) premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a), count 1, all further statutory references are to the Penal Code), and that defendant personally discharged a firearm in the commission of this offense (§ 12022.53, subd. (c)); (2) assault with a firearm (§ 245, subd. (a)(2), count 2), with personal use of a firearm (§ 12022.5, subd. (a)); (3) possession of a firearm by a felon (§ 12021, subd. (a)(1), count 3), and that this offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)); (4) shooting at an occupied vehicle (§ 246, count 4); and (5) active participation in a criminal street gang (§ 186.22, subd. (a), count 5). The court sentenced defendant to a life term on count 1 with a 20-year enhancement under section 12022.53, a concurrent term of seven years on count 2 (§ 245, subd. (a)(2)), a concurrent term of two years on count 3 (§ 12021, subd. (a)(1)), struck the punishment for the true finding the offense was committed for the benefit of a criminal street gang, and stayed sentence on counts 4 and 5 (§ 654). The court imposed a $200 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a $200 parole revocation fine (§ 1202.45). Defendant raises two issues in his appeal; insufficient evidence to sustain either his conviction for active participation in a criminal street gang, count 5, or the true finding that possession of a firearm by a felon was committed for the benefit of a criminal street gang enhancement to count 3. We disagree with his contentions and affirm the judgment.