P. v. Garcia
A jury found defendant and appellant James Garcia guilty of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1), count 1) and of possessing stolen property ( 496, subd. (a), count 4). The jury also found true the allegation that the crimes were committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(A).) Defendant admitted that he had a prior serious felony conviction, within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), as well as section 667, subdivision (a)(1). The trial court sentenced defendant to a total term in state prison of 14 years, including the upper term of three years on count 1, doubled to six years as a result of the prior strike conviction, plus three years for the gang enhancement, and a consecutive five years for the prior serious felony conviction. As to count 4, the court sentenced defendant to four years, plus three years for the gang enhancement; however, it stayed the sentence on count 4, pursuant to section 654. On appeal, defendant contends that his trial attorney provided ineffective assistance of counsel (IAC) by failing to object to an expert witnesss opinion that defendant possessed a stolen firearm with the specific intent to benefit a street gang. He thus claims that his conviction (although he does not specify which conviction) should be reversed. Defendant also filed a supplemental brief, contending that the court erred in imposing the upper term, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). Court disagree and affirm.
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