People v. Saephan CA5

Filed 11/10/15 P. v. Saephan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F069474 Plaintiff and Respondent, (Super. Ct. No. CRM030105) v.

FOUSENG CHOY SAEPHAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Marc A. Garcia, Judge. Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

* Before Levy, Acting P.J., Kane, J. and Poochigian, J.

-ooOoo- INTRODUCTION A jury convicted appellant Fouseng Choy Saephan of being a felon in possession of a firearm (Pen. Code,1 § 29800, subd. (a)(1); count 1) and carrying a loaded firearm in public (§ 25850, subd. (c)(1); count 2). In a bifurcated proceeding, appellant admitted he had suffered a prior serious or violent felony conviction in 1991. He was sentenced to two years in prison on count 1 and eight months on count 2, with both sentences doubled based on the past strike. The sentence on count 2 was consecutive to count 1, but it was stayed pursuant to section 654. On appeal, appellant raises three issues. First, we agree with both parties that the trial court erred when it accepted appellant’s admission of the prior felony conviction from 1991 without providing the required advisements under Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Boykin-Tahl). We reverse the prior conviction finding and remand for further proceedings. We find merit in appellant’s second claim. He asserts the evidence was insufficient to sustain the conviction for count 2, contending no evidence established that he possessed the loaded firearm in an incorporated city or in a prohibited area of an unincorporated territory as required for conviction under section 25850, subdivision (a). We agree and reverse the conviction in count 2. Finally, we find unpersuasive appellant’s argument that count 1 should be reversed because the trial court abused its discretion when it admitted into evidence information about appellant’s conviction in 2009 for possession of a firearm as a felon. We find no prejudice. We reverse the judgment in part but otherwise affirm.