P. v. Aguilar CA2/2

Filed 4/9/13 P. v. Aguilar CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B234797

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA366018) v.

HERSON AGUILAR,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Judith L. Champagne, Judge. Affirmed.

Alan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Herson Aguilar appeals from the judgment of conviction following a jury trial in which he was convicted of four felonies: Possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1))1 (count 1); carrying a loaded firearm while having a prior felony conviction (§ 12031, subd. (a)(1)) (count 2); possession for sale of Phencyclidine (PCP) (Health & Safety Code, § 11378.5) (count 3); and possession of a firearm near a school (§ 626.9, subd. (b)) (count 4). As to all counts, the jury found true the allegation that appellant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(A). As to count 3, the jury also found true the allegation that appellant was personally armed with a firearm within the meaning of section 12022, subdivision (c). The trial court sentenced appellant to a total of 19 years in state prison as follows: On count 3, the base term, the court selected the midterm of four years doubled to eight years for a second strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)–(i)); plus five years for a prior serious felony conviction (§ 667, subd. (a)(1)); plus three years for the gang enhancement (§ 186.22, subd. (b)(1)(A)); plus three years for the firearm enhancement (§ 12022, subd. (c)). The court stayed the four-year sentences on counts 1 and 2, and ordered the six-year sentence on count 4 to run concurrently. The court imposed various fees and fines and awarded total custody credit of 882 days. On appeal, appellant requests that we conduct an independent review of the in camera hearing on his discovery motion made pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess motion). He also contends that the evidence was insufficient to support both his conviction for possession of PCP for sale and the true finding on the gang enhancement. We affirm.