P. v. Jaime
Following a jury trial, Daniel Alfaro Jaime (appellant) was convicted in count 1 of throwing an item capable of causing great bodily injury at a vehicle or occupant, with the intent to cause great bodily injury, a felony violation of Vehicle Code section 23110, subdivision (b), and in count 2 of vandalism, a violation of Penal Code section 594, subdivision (a). A Penal Code section 186.22, subdivision (b) gang allegation was alleged as to both counts and found true as to count 1. A Penal Code section 186.22, subdivision (d) allegation was attached to and found true as to count 2.
The trial court sentenced appellant to the middle term of two years in prison on count 1, plus three years for the gang allegation. It also ordered and stayed a two-year term in count 2 and a three year gang enhancement.
Appellant contends that the trial court failed to instruct on the lesser included offense of throwing a substance at a vehicle or person in a vehicle; that the trial court erred when it added a three year gang enhancement to the vandalism charge; and that the trial court misunderstood its discretion to designate the vandalism count as a felony or misdemeanor. Court agree with appellants first and second contentions. Court reverse his conviction in count 1, order stricken the three year gang enhancement in count 2, and remand for further proceedings on both counts.
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