P. v. Rios
A jury convicted Austin Rios of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b); all further undesignated section references are to the Penal Code), shooting at an inhabited dwelling ( 246), and possession of marijuana for sale (Health & Saf. Code, 11359). The jury found, pursuant to section 12022, subdivision (a)(1), that at the time of the shooting Rios was armed with a firearm, and that, pursuant to section 186.22, subdivision (b)(1), the shooting was done for the benefit of a criminal street gang. The trial court denied Rios motion for a new trial and, applying section 186.22, subdivision (b)(4)(B), sentenced him to 15 years to life for violating section 246, plus a consecutive one year term pursuant to section 12022, subdivision (a)(1), and a concurrent 16 month term for possessing marijuana. The court stayed a concurrent six year term for violation of section 245. Rios appeals, contending that the trial court erred prejudicially by (1) answering a jury question during deliberations without consulting Rios counsel; (2) failing to instruct the jury that the prosecution had violated discovery rules; (3) overruling Rios hearsay objection to a statement contained in a report that Rios had admitted that he was a gang member; and (4) imposing a one year sentence pursuant to section 12022. He also maintains that substantial evidence does not support his conviction for violation of section 246.
Court agree with Rios that the court erred in imposing a one-year sentence under section 12022. Court disagree with his other contentions.
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