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People v. Hickerson3/14/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendants Robert Hickerson and Dale Neal were convicted by a jury of several counts of attempted robbery, burglary, false imprisonment, assault and illegal possession of a firearm by an ex-felon, all arising out of a botched robbery of a sporting goods store by the two men and a third participant, Michael Hamilton. On appeal, defendants contend the trial court erred by (1) failing to instruct the jury that defendants could not be found guilty for assault with a semiautomatic firearm if the crime was not the natural and probable consequence of the robbery, (2) imposing the upper term of nine years on the assault with a semiautomatic firearm conviction, (3) imposing an enhancement for arming in relation to their convictions for assault with a semiautomatic firearm, and (4) failing to give a unanimity instruction with regard to the charge of ex-felon with a firearm because two guns were found at the crime scene. Defendants also contend the prosecutor committed misconduct in his argument concerning aiding and abetting, and that there is insufficient evidence to support their convictions for being ex-felons with a firearm and for having committed assault with a deadly weapon (tear gas). Defendants also ask this court to correct several errors in the abstract of judgment. In a supplemental brief, Hickerson requests that we stay the two-year term imposed for the on-bail enhancement allegation under Penal Code section 12022.1.
We affirm defendants' convictions for assault with a deadly weapon (tear gas) and assault with a semiautomatic weapon, but modify defendants' sentences to remove the one-year enhancement for arming on the count for assault with a semiautomatic firearm. We reverse defendants' convictions for possession of a firearm by an ex-felon. We also stay Hickerson's on-bail enhancement and correct clerical errors in the abstract of judgment.
Procedural History
Defendants were charged by indictment in counts 1 and 3 with second degree robbery (§ 212.5, subd. (c)); in counts 2, 4, 6, and 8 with assault with a semiautomatic firearm (§ 245, subd. (b)); in counts 5, 7, and 9 with false imprisonment by violence, menace, fraud, and deceit (§ 236); in count 10 with burglary (§ 459); in count 11 with using tear gas and tear gas weapons (§ 12403.7, subd. (g)); and in counts 12 through 14 each defendant was charged with being an ex-felon in possession of a firearm (§ 12021, subd. (a)(1)). The indictment also included allegations that each defendant personally used a firearm during the commission of the offenses within the meaning of sections 12022.53, subdivision (b), and 12022.5, subdivision (a)(1), and that defendants each had served prior prison terms within the meaning of section 667.5, subdivision (b). The indictment also alleged that Hickerson was on bail when the crimes were committed (§ 12022.1).
Prior to trial, the court granted Hickerson's section 1118.1 motion for acquittal on the personal gun use allegations. The court also granted the prosecution's motion to amend count 4 to allege assault with a deadly weapon (tear gas) in violation of section 245, subdivision (a)(1). Defendants were found guilty as charged, except as to count 1 in which the jury convicted defendants of the lesser charge of attempted robbery. As to Hickerson, the jury found true the allegations that he was armed with a firearm during the
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