People v. Sosa CA4/3

Filed 11/27/13 P. v. Sosa 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G047793

v. (Super. Ct. No. 12CF1966)

DANIEL JIMENEZ SOSA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Daphne Sykes Scott, Judge. Affirmed as modified. Gideon Margolis, 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 and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

Daniel Jimenez Sosa appeals from a judgment after a jury convicted him of attempted robbery with personal use of a deadly weapon for the benefit of a criminal street gang, assault with a deadly weapon for the benefit of a criminal street gang, and active participation in a criminal street gang. The trial court found he suffered a prior strike, a prior serious felony conviction, and a prior prison term, and sentenced him to 15 years in prison. Sosa contends the trial court erred by imposing both a five-year enhancement for a prior serious felony conviction and a one-year enhancement for a prior prison term because both enhancements resulted from the same prior offense. We agree and modify the judgment accordingly. We affirm the judgment as modified. FACTS On the night of June 30, 2012, Franklin Garcia rode his bike on a sidewalk alongside Bristol Street in Santa Ana when he noticed Sosa and another man walking towards him. As the men drew closer to Garcia, Sosa abruptly stepped in front of Garcia’s bike, forcing him to brake. Sosa held a screwdriver to Garcia’s abdomen and demanded money. Garcia jumped off his bike and ran to a nearby 7-Eleven store where he saw a police officer in a parked police car. Garcia told the officer what had happened and pointed out Sosa and his companion, who were still on the sidewalk. The officer pursued and apprehended Sosa as he tried to escape over a fence. Sosa’s tattoos and police records identified him as a member of Los Comps, a Santa Ana based street gang. An information charged Sosa with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) (count 1));1 assault with a deadly weapon (§ 245, subd. (a)(1) (count 2)); street terrorism (§ 186.22, subd. (a) (count 3)); and false representation to a peace officer (§ 148.9, subd. (a) (count 4)). The information alleged Sosa committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and as to count 1, Sosa personally used a deadly weapon, a screwdriver (§ 12022, subd. (b)(1)). The information also alleged Sosa suffered a strike prior (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) &