P. v. Madera

Filed 7/31/06 P. v. Madera CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle R. Rosenblatt, Judge. Affirmed in part, reversed in part, and remanded.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

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Mario Anthony Madera appeals from his conviction of assault with a firearm and possession of a firearm by a felon. He contends his trial counsel was ineffective in failing to object to the use of a probation report to establish his age; claims prosecutorial misconduct; and challenges his sentence as illegal. We reject his claim of ineffective assistance of counsel and conclude appellant failed to preserve the prosecutorial misconduct issue for appeal. Respondent concedes sentencing error in imposition of a five-year enhancement under Penal Code section 667, subdivision (a)(1)[1] based on a juvenile adjudication which does not qualify as a prior conviction; we reverse the enhancement on that basis. Finally, respondent argues we should remand the case for resentencing because the trial court failed to impose the consecutive mandatory sentences required by section 667, subdivision (c)(6). We agree.

FACTUAL AND PROCEDURAL SUMMARY

Elias Bayardo had a confrontation with appellant in Pasadena on April 25, 2004. While Bayardo was walking to his car, crossing El Molino, he saw a gray American four-door car approaching. He paused because he feared the car would strike him. The driver yelled an oath at Bayardo and he responded in kind, adding a common obscene hand gesture. The car stopped one block away and Bayardo was approached by the driver and appellant, who was the passenger. The driver demanded to know where Bayardo was from. Bayardo understood this to mean what gang affiliation Bayardo claimed. Bayardo responded â€