P. v. Her
Filed 09/5/06 P. v. Her 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. JOE HER, Defendant and Appellant. |
F048301
(Super. Ct. No. 29368)
OPINION |
APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge.
Sandra Uribe, 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, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found defendant Joe Her guilty of carrying a loaded firearm within a public place (Pen. Code,[1] § 12031, subd. (a)(1); count 1), possessing a firearm with an obliterated serial number (§ 12094, subd. (a); count 2), resisting, delaying, or obstructing a peace officer (§ 148; count 3), carrying a concealed weapon (§ 12025, subd. (a)(2); count 4), and participating in a criminal street gang (§ 186.22, subd. (a); count 5). The jury also found true the criminal street gang enhancement alleged in counts 1 and 4
(§ 186.22, subd. (a)). Defendant was sentenced to a total prison term of seven years eight months: the upper term of three years on count 1, plus four years for the gang enhancement, a concurrent term of six months on count 3, and a consecutive term of eight months on count 5. The court stayed defendant's sentence on counts 2 and 4 under section 654.
On appeal, defendant contends: (1) the evidence was insufficient to support his conviction for carrying a loaded firearm in a public place; (2) his trial counsel rendered ineffective assistance by failing to request the court to instruct the jury with CALJIC No. 2.50; (3) section 654 bars punishment on the gang enhancement attendant to count 1; and (4) the court's imposition of the upper term violated his constitutional rights under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We will reject defendant's contentions, and affirm the judgment.
FACTS
At defendant's trial, Merced Police Officer Rodney Court testified that he has been a police officer for 17 years. On November 25, 2004, he was assigned to patrol the south district of the city, around the 1300 block of West Third Street. Officer Court was familiar with this area of Merced, and described it as consisting of â€
