People v. Vasko CA3

Filed 3/25/22 P. v. Vasko CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Amador) ----

THE PEOPLE, C094305

Plaintiff and Respondent, (Super. Ct. No. 20CR29876)

v.

SEAN MICHAEL VASKO,

Defendant and Appellant.

Defendant Sean Michael Vasko appeals the trial court’s judgment sentencing him to two years of local prison time for felony firearm concealment. He contends the trial court prejudicially erred when it failed to instruct the jury on the elements necessary to elevate the punishment for his firearm concealment conviction to a wobbler1 offense, but

1 A “wobbler” is an offense that is “chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor.” (People v. Park (2013) 56 Cal.4th 782, 789, italic omitted.)

1

nonetheless sentenced him to the elevated term in violation of the federal Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435]. In light of this error, defendant requests we modify the judgment to reduce this conviction to a misdemeanor and remand his case for resentencing. The People agree the trial court prejudicially erred requiring the requested relief. We concur with the parties, and accordingly, will modify the judgment as requested and remand for resentencing. BACKGROUND I The People’s August 21, 2020 complaint charged defendant with carrying a concealed firearm on his person (Pen. Code, § 25400, subd. (a)(2); count one),2 carrying a loaded firearm, not registered owner (§ 25850, subd. (c)(6); count two) and resisting or obstructing a peace officer (§ 148, subd. (a)(1); count three). Count one was elevated to a felony under section 25400, subdivision (c)(6) on the basis that “the firearm and unexpended ammunition were in the immediate possession of, and readily accessible to, the defendant . . . and . . . the firearm was not registered to the defendant.” Following defendant’s preliminary hearing where he was held to answer on the charges, the complaint was deemed an information and the matter was set for a jury trial. At that trial, the People presented evidence that Officer Carlo Sgroi observed defendant riding a bicycle without a front light on the side of a highway shortly after midnight. The officer stopped defendant and learned from dispatch that defendant might be armed with a handgun. After backup arrived, Officer Sgroi told defendant of his intent to search him for weapons. In response, defendant fled on foot into an area with brush, but was later apprehended by officers. No weapons were located on defendant, but a search of the brush area revealed a semiautomatic handgun, a magazine with