P. v. Gerolaga
Filed 9/7/06 P. v. Gerolaga CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. SALVADOR DAVID GEROLAGA, Defendant and Appellant. |
F048560
(Super. Ct. No. 1081513)
OPINION |
APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
STATEMENT OF THE CASE
On December 7, 2004, the Stanislaus County District Attorney filed an information in superior court charging appellant Salvador David Gerolaga with possession of a firearm by an ex-felon (Pen. Code, § 12021, subd. (a)) to assist a criminal street gang (§ 186.22, subd. (b)(1)) with three prior prison terms (§ 667.5, subd. (b)).
On the same date, appellant was arraigned, pleaded not guilty to the substantive count, and denied the special allegations.
On June 9, 2005, jury trial commenced.
On June 17, 2005, the court denied appellant's motion for acquittal (Pen. Code, § 1118.1) and appellant admitted the truth of the three prior prison terms alleged in the information (§ 667.5, subd. (b)).
On the same date, the jury returned verdicts finding appellant guilty of the substantive count and finding the gang enhancement allegation to be true.
On July 15, 2005, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of 10 years in state prison. The court imposed the upper term of three years on the substantive count, a consecutive term of four years on the gang enhancement, and three consecutive one-year terms for the prior prison terms. The court awarded 451 days of custody credits, imposed a $2,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45).
On August 3, 2005, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
At 1:00 a.m. on September 18, 2004, Ceres Police Detectives Dennis Perry and Trenton Johnson stopped a vehicle with an expired registration. Both Johnson and Perry were members of the Ceres Police Department Gang Enforcement Unit. The stop took place in a darkened area near an orchard and the detectives found two occupants in the vehicle. A woman was seated behind the steering wheel and appellant was seated in the front passenger seat. Appellant had been convicted of second degree burglary, a felony, on February 10, 1997.[1] Detective Perry approached the driver and Detective Johnson stood on the passenger side of the car.
When Detective Perry crouched down to speak with the driver, he looked inside the vehicle, saw appellant in the passenger seat, and said, â€
