P. v. Wilkes
David Wilkes (appellant) was convicted by a jury of carjacking (Pen. Code, § 215, subd. (a), count 1);[1] assault with a semiautomatic firearm (§ 245, subd. (b), count 2); possession of a firearm by a felon (former § 12021, subd. (a)(1), count 3); grand theft of an automobile with a prior conviction (§ 666.5, count 4); unlawful driving or taking of a vehicle with a prior conviction (§ 666.5, count 5); and possession of ammunition by a felon (former § 12316, subd. (b)(1), count 6).[2] He was sentenced to 46 years, 4 months in prison.
On appeal, appellant raises nine issues: (1) the evidence was insufficient to prove carjacking; (2) the evidence was insufficient to prove that he used an automatic handgun; (3) the trial court prejudicially erred in not instructing the jury on assault with a firearm as a lesser included offense of assault with a semiautomatic firearm; (4) his conviction for unlawfully driving or taking a vehicle must be reversed because it is a lesser included offense of grand theft of an automobile; (5) the consecutive sentence for grand theft of an automobile must be stayed pursuant to section 654; (6) the concurrent sentence for assault with a firearm and the firearm enhancement must be stayed pursuant to section 654; (7) the abstract of judgment and clerk’s minutes must be amended to reflect the trial court’s stay of the sentence for possession of ammunition by a felon pursuant to section 654; (8) the trial court abused its discretion in finding no mitigating factors in imposing the sentence; and (9) the abstract of judgment and clerk’s minutes must be amended to reflect restitution and suspended parole revocation fines in the amount of $200 as orally pronounced by the trial court.
For the reasons set forth below, we affirm the judgment in part, reverse the judgment in part, and remand for resentencing.
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