People v. Casares CA5

INTRODUCTION

After forcing his way into an apartment on October 8, 2018, defendant Jesus Casares grabbed an 11- to 12-inch pointed nail and held it up as if to stab victim R.H.1 A jury convicted defendant of burglary, assault with a deadly weapon, and resisting a police officer and found true allegations a nonaccomplice was present during the crime and that the crimes were committed for the benefit of a gang. Defendant contends on appeal that (1) the evidence was insufficient to support his conviction for assault with a deadly weapon because defendant failed to “do anything” with the nail before he was disarmed by R.H., (2) the trial court erred in failing to define “deadly weapon” in its instruction to the jury, and (3) we should strike five 1-year prior prison term enhancements in light of recent amendments to Penal Code2 section 667.5, subdivision (b). In supplemental briefing, defendant contends that we should reverse the true finding on defendant’s five-year gang enhancements in light of recent amendments to section 186.22, overturn his conviction, and remand for retrial in light of recently enacted section 1109, which requires bifurcation of the gang enhancement when…