Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09CF0501 Dan McNerney, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Orlando Garcia was found guilty after a jury trial of possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1); all further statutory references are to this code unless otherwise stated), possession of ammunition by a felon (§ 12316, subd. (b)(1), possession of methamphetamine for sale (Health & Saf. Code, § 11378), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and participating in a criminal street gang (§ 186.22, subd. (a)). The jury also found defendant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
The court found defendant’s previous conviction for violating Vehicle Code section 23110, subdivision (b) qualified as a serious felony and that defendant served a prison sentence for this violation (§ 667.5, subd. (b)). It sentenced defendant to a term of 11 years. This included a doubling of the sentence of transporting methamphetamine pursuant to the “one strike” provision of section 667, subdivisions (d) and (e)(1) and adding five years for the prior serious felony under section 667, subdivision (a)(1). It also imposed various fees, fines and assessments.
Defendant contends there was insufficient evidence to support the finding his violation of Vehicle Code section 23110, subdivision (b) qualified as a prior serious felony under section 1192.7. We disagree and affirm the judgment. To the extent the facts relating to the prior conviction are relevant we will include them in our discussion.
DISCUSSION
Vehicle Code section 23110, subdivision (b) provides: “Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm at such vehicle or occupant thereof is guilty of a felony and upon conviction shall be punished by imprisonment in the state prison.” Section 1192.7, subdivision (c)(24) includes in the definition of “serious felony” “[a]ny felony in which the defendant personally used a dangerous or deadly weapon.” The issue thus is whether defendant personally used a dangerous or deadly weapon when he violated Vehicle Code section 23110, subdivision (b).
Defendant argues the evidence submitted “during the bifurcated court trial [was] insufficient to prove [he] personally threw or projected anything capable of doing serious bodily harm.” He cites People v. Rodriguez (1998) 17 Cal.4th 253 for the proposition that if the earlier conviction may have been based on aiding and abetting, the “serious felony” provisions would not apply. (Id. at p. 261.) Where the record did not disclose personal conduct, rather than aiding and abetting, the sentencing enhancements of section 667 should not be applied. (People v. Rodriguez, supra, 17 Cal.4th at p. 262.)
But here, as pointed out by the Attorney General, the record does disclose that defendant personally threw the missile that provided the basis for his prior conviction. The information filed in the earlier case, which was admitted and to which defendant pleaded guilty, charged defendant did “willfully and unlawfully, maliciously, and with intent to do great bodily injury, throw and project... missiles... at a vehicle and occupant(s) thereof on a highway.” The charge was not for aiding and abetting. And significantly, in the Tahl (People v. Tahl (1967) 65 Cal.2d 719) form initialed by defendant, and also admitted, he acknowledged that “[o]n May 27, 2002, in Orange County, I did willfully and unlawfully project a substance capable of doing harm to a vehicle on a highway.” (Italics added.) Defendant admitted that he threw the substance. In this respect, the case does not differ from People v. Sohal (1997) 53 Cal.App.4th 911, where the court held that the personal conduct requirement was satisfied (id. at p. 916) because the defendant’s lawyer had stipulated the defendant in that case was present in a laundromat where the crime took place and the defendant “struck [his victim] with a metal pipe” (id. at p. 914).
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., MOORE, J.