P. v. Balverde
A jury convicted defendant of four counts of assault with a firearm upon a peace officer (Pen. Code, 245, subd. (d)(1) counts 1 through 4), unlawful taking of a vehicle (Veh. Code, 10851, subd. (a) count 5), receiving a stolen motor vehicle (Pen. Code, 496d, subd. (a) count 6), possession of a firearm by a convicted felon (Pen. Code, 12021, subd. (a) count 8), two counts of second degree robbery (Pen. Code, 211, 212.5, subd. (c) counts 10 & 12), and assault with a firearm (Pen. Code, 245, subd. (a)(2) count 11). The jury found true allegations that defendant discharged a firearm (Pen. Code, 12022.53, subd. (c)) on counts 1 through 4 and 10; personally used a firearm (Pen. Code, 12022.53, subd. (b)) on counts 1 through 4, 10, and 12; and personally used a firearm (Pen. Code, 12022.5) on count 11. Defendant was sentenced to state prison for 46 years eight months, with 376 days of custody credit and 56 days of conduct credit.
On appeal, defendant contends (1) his convictions for assaulting the peace officers are not supported by sufficient evidence of his present ability to inflict harm on them, (2) his count 12 robbery conviction is not supported by sufficient evidence of his identity as the robber, (3) his count 6 conviction of receiving a stolen vehicle must be reversed because he was convicted in count 5 of taking the same vehicle, and (4) he is entitled to two additional days of presentence custody credit. The Attorney General concedes the last two points. Court modify the presentence credits and remand for resentencing on count 5.
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