Jacobs

Defendant Rickey Jacobs was convicted by a jury of robbery (Pen. Code, §211), possession of stolen property (Pen. Code, § 496), and removing the serial numbers from a firearm (Pen. Code, § 12090). In addition, defendant was convicted of misdemeanor violations of carrying a concealed weapon (Pen. Code, § 12025) and a loaded firearm in a vehicle (Pen. Code, § 12031). The jury also found that defendant personally used a firearm in the commission of the robbery within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1).

At sentencing, the court found defendant to be ineligible for probation pursuant to Penal Code section 1203.06, subdivision (a)(1), and imposed the upper term of five years for the robbery. A two-year enhancement provided in Penal Code section 12022.5 was added for use of a firearm. The sentences on the remaining counts were ordered to run concurrently with the sentences imposed for the robbery.

Defendant appeals on the ground there was insufficient evidence for the jury to find he used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), and consequently the sentencing court erred in determining…