People v. Serrano-Aguilera CA5

INTRODUCTION

Defendant Jesus Enrique Serrano-Aguilera (defendant), a convicted felon, was arrested for unlawfully possessing a firearm. The arresting officer testified that defendant admitted he was a gang member and that he was delivering the firearm to another gang member. There was no evidence defendant was promoting, furthering, or assisting specific felonious criminal conduct of the other unidentified gang member or any other gang member. Last year, the California Supreme Court held a gang member does not violate Penal Code1 section 186.22, subdivision (a) (section 186.22(a)) by committing a felony alone. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1128 (Rodriguez).) Applying this rule here, we reverse defendant’s conviction on count 2. Defendant also claims the trial court improperly denied his motion for a continuance and trial counsel failed to effectively articulate the necessity of the continuance. Finally, defendant claims the section 186.22, subdivision (b)(1) enhancement was submitted to the jury on an “unlawful theory.” We disagree with these contentions and affirm the remainder of the judgment.

FACTS

Defendant was charged with unlawful possession of a firearm as…