P. v Gardea CA5
Appellant Jesus Roberto Gardea was convicted by a jury of one count of assault by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(4) and one count of misdemeanor battery, a violation of section 243, subdivision (a). He was sentenced to an aggregate term of ten years, based on the second strike term of eight years, plus two consecutive one-year terms for two prior prison term enhancements (§ 667.5, subd. (b)).
Gardea contends the evidence is insufficient to sustain the section 245, subdivision (a)(4) conviction. He also contends that his prior strike conviction subsequently was reduced to a misdemeanor and therefore, can no longer be used to enhance his sentence.
We affirm the section 245, subdivision (a)(4) conviction, but agree that under People v. Buycks (2018) 5 Cal.5th 857 (Buycks), one of the prior prison term enhancements must be stricken since the underlying felony conviction was reduced to a misdemeanor.
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