People v. Espinosa CA2/7

INTRODUCTION

Alberto Antonio Espinosa appeals from a judgment of conviction entered after a jury found him guilty of assault with a firearm (Pen. Code,1 § 245, subd. (a)(2)) and also found true the allegations that Espinosa committed the crime for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that he personally used a firearm (§ 12022.5, subd. (a)). The trial court sentenced Espinosa to state prison for a total of 18 years, consisting of the upper term of four years, plus 10 years for the criminal street gang enhancement and four years for the personal firearm use enhancement. Espinosa argues that substantial evidence does not support the jury’s finding on the criminal street gang enhancement. Espinosa also argues that he did not receive a fair trial because one of the prosecution’s witness revealed to the jury that Espinosa previously had been on probation and arrested. We affirm the conviction but reverse the sentence because of an unauthorized sentence, and remand the matter for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On February 15, 2011 Christina Perez, Daniel Canas, and their baby daughter were…