People v. Garcia

Opinion

COMPTON, J.

Defendants were convicted by a jury of the commission of three felonies:

(1) assault with a deadly weapon;

(2) assault with a deadly weapon on a police officer; and

(3) possession of a sawed-off shotgun.

As to the assault on the police officer, the jury found that defendants had been armed with a deadly weapon.

On appeal the defendants make three claims of error in connection with matters affecting their sentences. The Attorney General concedes the merit of one of these claims and we find the other two also to be meritorious.

The essential facts of the case and their sufficiency to support the convictions are not disputed by the defendants. They were two of four occupants in an automobile from which shots were fired at another vehicle and its occupants. They were arrested after a high speed chase by police.during which shots were fired at the pursuing officers.

The occupants of the car were seen, during the chase, to throw weapons from the windows. A later search of the route turned up a 12 gauge shotgun, a sawed-off shotgun, a .22 semi-automatic rifle and various items

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of ammunition. Used and unused ammunition was found in the car and a clip of ammunition for the .22 was found in Escobedo’s pocket.

Penal Code section 12022, subdivision (a), provides for enhancement of the punishment of anyone armed with a firearm during the commission of a felony offense. That statute, however, specifically exempts from its operation an offense in which “such arming is an element of the offense.” Hence the Attorney General concedes that the judgment must be modified to vacate any enhancement based on the jury’s finding of defendants being “armed.”

The court, in sentencing the defendants, used the assault with a deadly weapon on the police officer as the principal term. It imposed consecutive subordinate terms for the assault with a deadly weapon and possession of the sawed-off shotgun.