P. v. Smith
A jury convicted defendant of second degree murder (Pen. Code, 187, subd. (a)), during which he discharged a firearm, proximately causing death (Pen. Code, 12022.53, subds. (b), (c), (d) & (e)). The jury also convicted him of possessing cocaine base and marijuana for sale (Health & Saf. Code, 11351.5, 11359), possessing cocaine (Health & Saf. Code, 11377) and possessing a sawed-off shotgun (Pen. Code, 12020, subd. (a)). The jury found that each of these offenses had been committed to benefit a criminal street gang (Pen. Code, 186.22, subd. (b)(1)) and the possession for sale of cocaine had occurred within 1000 feet of a high school. (Health & Saf. Code, 11353.6, subd. (b).) Defendant was sentenced to prison for 11 years, plus 15 years to life plus 25 years to life. He appeals, claiming his motion for severance should have been granted, certain evidence should not have been admitted, his conviction of count III (possession of cocaine) is improper, insufficient evidence supports some of the convictions and a true finding and sentencing error occurred. The People agree that defendants conviction for possession of cocaine is in error and, therefore, we reverse it. Court also agree with defendants contention that insufficient evidence supports the true finding that he possessed cocaine
for sale within 1000 feet of a high school. Therefore, Court reverse that finding and its attendant four year sentence. Court also direct the trial court to correct errors in the abstract of judgment and minutes of the sentencing hearing. Otherwise, Court reject defendants contentions and affirm.
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