P. v. Tisby
After a jury convicted appellant Frank George Tisby of first degree burglary, the trial court sentenced him to the upper term of six years for that offense, plus a 10-year enhancement for committing a violent felony for the benefit of a criminal street gang. Appellant contends the enhancement must be reduced to five years because the prosecution did not allege that a person other than an accomplice was present during the burglary. We agree. Although we reject appellant’s secondary contention that his attorney was ineffective for failing to prevent imposition of the upper term, we will modify the judgment to reflect a sentence of five years for the gang enhancement and to adjust appellant’s presentence credits accordingly. In all other respects, we affirm.
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