People v. Barrientos CA2/5

Filed 1/25/16 P. v. Barrientos CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B262424

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA093670) v.

VICTOR BARRIENTOS, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Stan Blumenfeld, Judge. Affirmed as modified. Law Offices of Sarah A. Stockwell, Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

The District Attorney in Los Angeles charged defendant Victor Barrientos, Jr. (defendant) with (a) carrying a concealed firearm in a vehicle after suffering a prior felony conviction, in violation of Penal Code section 25400; (b) possessing an assault weapon (namely, a semi-automatic high capacity magazine), in violation of Penal Code section 30605; and (c) being a felon in possession of a firearm, in violation of Penal Code section 29800. The District Attorney alleged that the three charged offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang as described in Penal Code section 186.22, subdivision (b). The amended information filed against defendant further alleged that he had served a prior prison term as described in Penal Code section 667.5. The charges against defendant arose out of an incident on June 20, 2014, when a Burbank police officer initiated a traffic stop of a vehicle in which defendant was a passenger. The officer ordered defendant out of the vehicle, and a second officer recovered a loaded nine-millimeter semi-automatic pistol from the front pocket of defendant’s pants during a pat-down search.1 Testimony by the arresting officer and the prosecution’s gang expert established that defendant and another passenger in the vehicle were members of the Pacoima Brownstone Paxton criminal street gang, and the gang expert opined that defendant possessed the recovered pistol for the benefit of the gang. Before giving the case to the jury, the trial court dismissed the counts of the amended information charging violations of Penal Code sections 25400 and 30605. That left the Penal Code section 29800 charge (felon in possession of a firearm) and the criminal street gang allegation as the sole matters for decision by the jury. The jury found defendant guilty on the felon in possession of a firearm charge and found the gang allegation true. Defendant admitted the truth of the prior prison term allegation. The trial