People v. Upton CA4/2

I.

FACTS AND PROCEDURAL BACKGROUND2

In an information filed on October 30, 1996, the People alleged defendant

committed an assault on a peace officer with a semiautomatic firearm (§ 245,

subd. (d)(2), count 1), drew or exhibited a firearm in the immediate presence of a peace

officer (§ 417, subd. (c), count 2), drew or exhibited a deadly weapon to a peace officer

to resist arrest (§ 417.8, count 3), and was a felon in possession of a firearm (former

§ 12021, subd. (a)(1), count 4). With respect to count 1, the People alleged defendant

We granted defendant’s request for judicial notice of the record in his direct appeal from the 1997 judgment in case No. E021749, and on our own motion we took judicial notice of defendant’s appeal from 2002 postjudgment orders in case No. E032020. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

3 personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d),

which if found true would cause count 1 to become a serious felony within the meaning

of section 1192.7, subdivision (c)(8). Finally, the People alleged defendant suffered two

prior Arizona convictions for armed robbery and aggravated assault, which…