Filed 8/12/19
                        CERTIFIED FOR PARTIAL PUBLICATION*
                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                              (Shasta)
                                                ----

    THE PEOPLE,

                  Plaintiff and Respondent,                           C085360

          v.                                                 (Super. Ct. Nos. 16F2193,
                                                                16F2518, 16F4167)
    DOUGLAS JEREMIAH STOUT,

                  Defendant and Appellant.


       APPEAL from a judgment of the Superior Court of Shasta County, Daniel E.
Flynn, Judge. Reversed in part and affirmed in part.

      Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein,
Keith P. Sager, Deputy Attorney General, for Plaintiff and Respondent.


        In case No. 16F4167, a jury convicted defendant Douglas Jeremiah Stout of
attempted carjacking, attempted kidnapping, criminal threats, carrying a loaded firearm
with the intent to commit a felony, possession of a firearm by a felon, assault with a
semiautomatic firearm, and possession of ammunition by a felon. The jury also found




* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts I, II, IV, V, VI, and VII.

                                                 1
true allegations that defendant personally used a firearm in the commission of specified
felonies. The trial court found true prior prison term and on-bail enhancement allegations
and imposed a total state prison term of 35 years 4 months, encompassing three different
cases.
         Defendant now contends (1) the trial court erred in instructing the jury that the
prosecution did not need to prove the exact dates of the crimes, (2) his count 8 conviction
for possession of a firearm by a felon must be reversed because he cannot be convicted of
two such offenses where there was no break in possession, (3) the firearm use
enhancement on the count 4 conviction for carrying a loaded firearm with the intent to
commit a felony must be stricken, (4) the trial court should have stayed sentence for
attempted carjacking, and (5) the trial court miscalculated defendant’s sentence by two
months. In supplemental briefing, defendant argues (6) the matter should be remanded
for the trial court to exercise its discretion whether to strike the firearm use enhancements
pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620).
         In the published portion of this opinion, we agree with defendant and the Attorney
General that the firearm use enhancement on the count 4 conviction for carrying a loaded
firearm with the intent to commit a felony must be stricken. Penal Code section 25800,
subdivision (a)1 punishes the passive or static act of carrying a firearm with the intent to
commit a felony; the offense is complete when the firearm is carried with that intent.
The fact that defendant used the firearm to commit other felonies does not mean he used
it in the commission of the section 25800 felony.
         In the unpublished portion of the opinion, we conclude the asserted instructional
error was harmless, one of defendant’s convictions for possession of a firearm by a felon
must be reversed, we will remand to allow the trial court to exercise its discretion




1 Undesignated statutory references are to the Penal Code.


                                               2
whether to strike the firearm use enhancements pursuant to Senate Bill 620, and we will
direct the trial court on remand to stay sentence on the count 1 conviction for attempted
carjacking and its associated firearm use enhancement, unless the trial court decides to
strike the enhancement. We also identify a clerical error in the abstract of judgment.
Because the trial court must recalculate the aggregate sentence on remand (People v.
Buycks (2018) 5 Cal.5th 857, 893), we do not address defendant’s fifth contention that
the trial court miscalculated defendant’s sentence.
                                    BACKGROUND
       A.N. testified that around 1:00 pm on June 28, 2016, she drove to a shopping mall
in Redding to pick up medication at a pharmacy. Parking near the store entrance, A.N.
saw a man (defendant) standing by the entrance and talking on a cell phone. She noticed
his teeth were decayed. She passed defendant on her way into the store.
       After getting her prescription, A.N. walked to her car. Feeling that someone was
standing very close behind her, she turned and saw defendant less than a foot away. She
asked him what he was doing, and he answered: “Get in your car or I will fucking kill
you.” He was pointing a black and silver semiautomatic handgun at her stomach.
Fearing for her life, she said “The fuck you will,” and pushed him away with one hand,
causing him to stumble backward. Defendant departed east toward Water Works Park.
       A.N. called 911. An officer took down her description of the suspect, which
included his “poor teeth.” The next day, she spoke to an investigator and identified
defendant immediately from a photo lineup, calling her identification “very, very, very
certain”; she mentioned that he had been wearing “cool-guy sunglasses” with amber
lenses. She later identified him in a different photo lineup a defense investigator showed
her.
       In the early afternoon on June 28, Misty M. came home for lunch to her house
near Water Works Park. A red Neon in front of her car slowed down as it approached her
driveway. A man, later identified as defendant, ran down the driveway and jumped into

                                             3
the Neon. Thinking her house had been burglarized, Misty M. followed the Neon. She
pulled alongside and slightly in front of the Neon to block it and repeatedly asked, “What
the fuck are you doing in my driveway?” The driver said they were there to see an
individual named Dave who lived in another house on the property. Misty M. saw
defendant in the passenger seat. She photographed the Neon’s license plate, the driver,
and defendant before moving her car to let them leave.
       Misty M. flagged down Redding Police Officer Rex Berry who had been
dispatched to investigate the incident involving A.N. Misty M. described the incident at
her premises and e-mailed Officer Berry her photographs of the Neon, along with a link
to a photo of defendant. On June 29, officers spotted defendant and arrested him. A
body search found a loaded silver and black semiautomatic handgun in his left shorts
pocket.
       Defendant did not testify at trial. He presented an alibi defense through Dannoll
G., the manager of a sporting goods store in Redding.
       According to Dannoll G., he encountered defendant (whom he might have seen in
his store, but did not know well) at a barbecue event on June 28 or June 29; he was
“pretty sure” it was the 28th. Six or seven people, including himself and defendant, were
at the barbecue.
       Around 1:00 or 2:00 p.m., they ended the barbecue because “thunderheads” were
coming in. They went rafting and kayaking on the river. Dannoll G. remembered
defendant was there in part because he was inept at kayaking and needed help. A
thunderstorm, and possibly hail, hit them on the river. Defendant was with them when
they got off the river, but Dannoll G. was not sure whether defendant returned to town
with them.
       Later, defendant called Dannoll G. more than once at work and asked if he
remembered that defendant was with them that day. Dannoll G. originally answered that
he remembered defendant was with them, but did not remember the date. Defendant also

                                            4
said he had a GMC truck available if Dannoll G. was looking for one; Dannoll G.
assumed defendant was trying to sell the truck, not to offer it as a gift. Dannoll G. said he
had paperwork which he had told investigators would confirm the date, but he did not
bring it to court.
       In rebuttal, Redding Police Detective Paul Slagle testified that when he
interviewed defendant on June 29, defendant never mentioned seeing Dannoll G.,
attending a barbecue, going down the river, or getting rained on the day before.
Detective Slagle said defendant claimed he was at a friend’s house but did not provide
specific timelines and Slagle did not believe defendant mentioned a friend’s name.
The parties stipulated that Detective Slagle had researched the local weather on June 28.
The weather service showed it had been 104 degrees and sunny, with no rain or hail
anywhere in the area. Shelby C., a friend of defendant, testified that she picked him up
and gave him rides several times on June 28, but did not recall picking him up near the
barbecue location or the river.
       In case No. 16F4167, the jury convicted defendant of attempted carjacking
(§§ 215, subd. (a)/664 -- count 1), attempted kidnapping (§§ 207, subd. (a)/664 -- count
2), criminal threats (§ 422 -- count 3), carrying a loaded firearm with the intent to commit
a felony (§ 25800 -- count 4), possession of a firearm by a felon (§ 29800, subd. (a) --
counts 5 and 8), assault with a semiautomatic firearm (§ 245, subd. (b) -- count 6), and
possession of ammunition by a felon (§ 30305, subd. (a)(1) -- count 7). The jury also
found true allegations that defendant personally used a firearm in the commission of the
felonies charged in counts 1, 2, 3, 4, and 6 (§§ 12022.5, subd. (a), 12022.53, subd. (b)),2



2 The section 12022.53, subdivision (b) allegation, which provides for a 10-year
enhancement for gun use in the commission of specified felonies and attempted felonies,
was pleaded as to counts 1, 2, and 3. The section 12022.5, subdivision (a) allegation,
which provides for a range of enhancements from three to 10 years for gun use in the
commission of any felony or attempted felony, was pleaded as to counts 1, 2, 3, 4, and 6.

                                             5
and the trial court found true allegations as to all counts that defendant had served five
prior prison terms (§ 667.5, subd. (b)) and had committed the current offenses while
released on bail in case Nos. 16F2193 and 16F2518 (§ 12022.1).3
       The trial court imposed a total state prison term of 35 years 4 months,
encompassing all three cases. As to case No. 16F4167, the sentence consisted of the
following: on the count 6 conviction for assault with a semiautomatic firearm, the upper
term of nine years, plus 10 years for the firearm use enhancement (§ 12022.5, subd. (a));
on the count 1 conviction for attempted carjacking, 10 months (one-third the middle
term), plus three years four months for the firearm use enhancement (one-third the term);
on the count 5 conviction for possession of a firearm by a felon, eight months (one-third
the middle term); on the count 8 conviction for possession of a firearm by a felon, eight
months (one-third the middle term); five years for the prior prison term enhancements;
and four years for the on-bail enhancements. In case No. 16F2518, the trial court
imposed eight months (one-third the middle term) for possession of a billy club, and in
case No. 16F2193, the trial court imposed one year (one-third the middle term) for
receiving a stolen vehicle with a prior conviction. All sentences were run consecutive.
The trial court stayed the remaining counts and allegations in case No. 14F4167 pursuant
to section 654.




As to count 3, the section 12022.53 allegation was erroneous because the statute does not
cover the offense of making criminal threats. The trial court struck the jury’s finding on
that allegation at sentencing.
3 Defendant had already entered pleas in both cases. In case No. 16F2193,
defendant pleaded no contest to receiving a stolen motor vehicle with a prior (§§ 496d,
subd. (a)/666.5) and admitted one prior prison term, in return for the dismissal of a charge
of theft of a motor vehicle with a prior and of two prior prison term enhancements. In
case No. 16F2518, defendant pleaded no contest to possession of a billy club (§ 22210) in
return for the dismissal of five prior prison term enhancements and an on-bail
enhancement.

                                              6
                                       DISCUSSION
                                              I
       Defendant contends the trial court erred in instructing the jury pursuant to
CALCRIM No. 207 that the prosecution need not prove the exact date on which the
crimes were committed, even though he raised an alibi defense. We conclude the error
was harmless beyond a reasonable doubt. The totality of the circumstances made clear
the prosecution had to prove the crimes were committed on the date for which defendant
offered his alibi, and in any event the jury could not reasonably have credited the alibi
evidence.
       At the jury instruction conference, after the trial court noted the court and counsel
“had the necessary preliminary discussions about the proposed jury instructions,” the trial
court asked if counsel objected to any instruction the court intended to give or if the court
had refused any instruction they wanted. Both counsel said no.
       The trial court gave CALCRIM No. 207 as follows: “It is alleged that the crimes
occurred on or about June 28th and June 29th, 2016. The People are not required to
prove that the crimes took place exactly on those days but only that they happened
reasonably close to those days.” The trial court also gave CALCRIM No. 3400 as
follows: “The People must prove that the defendant committed the crimes charged. The
defendant contends he did not commit the crimes charged on June 28, 2016 and that he
was somewhere else when these crimes were committed. The People must prove that the
defendant was present and committed the crimes with which he is charged. The
defendant does not need to prove he was elsewhere at the time of the crime. [¶] If you
have a reasonable doubt about whether the defendant was present when the crime was
committed, you must find him not guilty.”
       In argument, both counsel stated repeatedly that the offenses charged in counts 1
through 6 were committed on June 28, and those charged in counts 7 and 8 (which



                                              7
defendant conceded) were committed on the next day. Both counsel also stressed that
defendant’s defense to counts 1 through 6 was alibi.
       The parties agree CALCRIM No. 207 should not have been given on these facts,
and we agree with the parties. The trial court should not instruct the jury that the
prosecution does not have to prove the exact date of the crime when the evidence shows
the crime was committed at a specific time and place and the defendant has presented
evidence he was elsewhere on that date. (People v. Jennings (1991) 53 Cal.3d 334, 358-
359; CALCRIM No. 207.)
       The Attorney General asserts defendant’s claim of error is forfeited because he did
not object below and the instruction at issue is a correct statement of law. (Cf. People v.
Lee (2011) 51 Cal.4th 620, 638 [trial court has no duty to revise or improve on accurate
statement of law sua sponte].) We disagree. CALCRIM No. 207, though generally
correct, did not accurately state the law that applied in this case. Considered in isolation,
it could have misled the jury on a point critical to the defense. Therefore we also agree
with defendant that his claim is not forfeited. (§ 1259 [instructional error affecting the
defendant’s substantial rights may be raised first on appeal].)
       On the merits, however, defendant’s claim fails because the error was harmless
beyond a reasonable doubt. The evidence established conclusively and without dispute
that the conduct charged in counts 1 through 6 occurred on June 28. The prosecutor in
effect told the jury to hold him to the burden of proving that defendant committed those
acts on that date. CALCRIM No. 3400 made the same point: if the jury had a reasonable
doubt that defendant was present on June 28, when the crimes were committed, it must
acquit. The jury could not have failed to understand that to convict defendant of those
crimes it must reject his alibi defense.
       Finally, the evidence establishing defendant’s guilt was strong, and his alibi was
weak. The victim and Misty M. identified him with certainty. When interviewed just
after his arrest he failed to mention seeing Dannoll G., attending a barbecue, going down

                                              8
the river, or getting rained on the day before. His alibi witness’s recollection of the date
of the barbecue and river trip was uncorroborated and apparently suggested by defendant
in his after-the-fact phone calls. And the witness’s account of the weather on June 28
was refuted by the evidence.
         Under the circumstances, the instructional error was harmless beyond a reasonable
doubt.
                                               II
         Defendant next contends his count 8 conviction for possession of a firearm by a
felon on June 29 must be reversed because the offense is a continuing one, and there was
no evidence of a break between his possession of a firearm on June 28 when he
brandished it at A.N. (count 5) and his possession of the same firearm the next day when
he was arrested. The Attorney General agrees that one of the two convictions of this
offense must be reversed, and so do we.
         The offense defined in section 29800, subdivision (a)(1) is committed when a
felon “owns, purchases, receives, or has in his possession or under custody or control any
firearm.” The offense is a continuous one because it is complete as soon as the elements
are met. (Wright v. Superior Court (1997) 15 Cal.4th 521, 525-526 & fn. 1; accord,
People v. Mason (2014) 232 Cal.App.4th 355, 365 (Mason).) Where an offense is
continuing, only one violation occurs even if the conduct extends over an indefinite
period. (Mason, at p. 365.) Thus, if evidence shows a felon possessed a firearm on
different dates but does not show the possession was other than continuous during that
period, the conduct constitutes a single continuing offense that does not conclude until
the possession ceases. (Id. at pp. 366-367.)
         A.N. described defendant’s firearm as a silver and black semiautomatic handgun,
and so did the arresting officers. There is no evidence that defendant ceased to possess
that gun at any time during the period from June 28 to June 29 or that he possessed two
different guns on those dates. However, the trial court sentenced on both counts

                                               9
because count 8 was “a separate date, separate time, separate circumstances [from
count 5] . . . albeit the same firearm.” That was error.
       Under the logic of Mason, supra, 234 Cal.App.4th at pages 366-367, one of
defendant’s convictions for possession of a firearm by a felon must be reversed.
We reverse the conviction on count 8.
                                             III
       Defendant argues the firearm use enhancement (§ 12022.5) on the count 4
conviction for carrying a loaded firearm with the intent to commit a felony (§ 25800)
must be stricken. The Attorney General agrees, and so do we.
       Section 25800, subdivision (a) provides that “[e]very person who carries a loaded
firearm with the intent to commit a felony is guilty of armed criminal action.” The
section 12022.5, subdivision (a) enhancement applies to “any person who personally uses
a firearm in the commission of a felony or attempted felony . . . unless use of a firearm is
an element of that offense.” The question presented is whether defendant’s act of
carrying a loaded firearm with intent to commit a felony involved the use of the firearm
in the commission of the armed criminal action felony. By analogy to other appellate
decisions construing similar statutes, we conclude it did not.
       A gun use occurs in the commission of an offense if the use objectively facilitates
the offense. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1495.) In the case In re
Pritchett (1994) 26 Cal.App.4th 1754, 1757 (Pritchett), a jury found defendant Pritchett
guilty of felony possession of a short-barreled shotgun (former § 12020, subd. (a)), and
also found true a section 12022.5, subdivision (a) enhancement allegation that he
personally used a firearm in the commission of the felony. The enhancement was based
on Pritchett taking a sawed-off shotgun from a dresser drawer and striking his former
girlfriend on the head with the barrel of the gun. (Pritchett, at p. 1756.) The appellate
court directed the trial court to strike the enhancement (id. at p. 1758), reasoning:
“Although Pritchett used the shotgun as a club during his possession of it, he did not use

                                             10
it ‘in the commission’ of his crime of possession. Possession was complete without use
of the shotgun. In addition to possessing it, he did use it, but using it as a club in no way
furthered the crime of possession. [Fn. omitted.] [¶] At most, Pritchett used the shotgun
as an instrument of possession, or made ‘possessory use’ of the shotgun, in the
commission of his crime of possession. However, if possessory use is a legally
cognizable concept, it does not support a use enhancement because possessory use is an
element of the crime of possession of a deadly weapon.” (Id. at p. 1757, italics omitted.)
       Almost a decade later, People v. Arzate (2003) 114 Cal.App.4th 390 (Arzate)
involved a defendant who used a gun hidden in his car to attempt to murder a police
officer during a traffic stop. (Id. at pp. 392-393.) Among other things, the jury found
Arzate guilty of carrying a concealable and concealed firearm in his vehicle (former
§ 12025, subd. (a)(1)), and also found true an enhancement allegation that he personally
used a firearm as to that offense (stayed by the trial court). (Arzate, at pp. 398-399.) The
appellate court held: “[T]he offense of carrying a concealed firearm in a vehicle is
committed with the single passive act of carrying the firearm in a concealed fashion in a
vehicle. . . . [¶] . . . [¶] In the factual context of this case the gun use . . . [was] not
committed in the commission of the static offense of carrying a concealed weapon in a
vehicle. Accordingly, the jury’s true findings and the gun use enhancement imposed but
stayed on the concealed firearm count must be stricken.” (Id. at pp. 400-401, fns. &
italics omitted.)
       Like the provisions construed in Pritchett and Arzate, section 25800,
subdivision (a) punishes the passive or static act of carrying a firearm with the intent to
commit a felony, and the offense is complete when the firearm is carried with that intent.
The fact that defendant used the firearm to commit attempted carjacking, attempted
kidnapping, criminal threats, and assault with a semiautomatic firearm does not mean he
used it in the commission of the section 25800 felony. (See Arzate, supra,
114 Cal.App.4th at pp. 400-401; Pritchett, supra, 26 Cal.App.4th at p. 1757.) His use

                                                11
of the firearm did not objectively facilitate carrying a loaded firearm with the intent
to commit a felony. We will strike the section 12022.5 firearm use enhancement on
count 4.
                                              IV
       Defendant claims his sentence on the count 1 conviction for attempted carjacking
should have been stayed pursuant to section 654 because the assault with a semiautomatic
firearm (count 6) was the means by which he attempted the carjacking. The Attorney
General agrees, and so do we.
       Section 654 prohibits punishment for multiple crimes arising from a single
indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.)
Whether a criminal course of conduct is divisible depends on the defendant’s intent and
objective. If all of his acts were pursuant to a single intent and objective, he may be
punished only once. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) A defendant’s
intent and objective are factual questions for the trial court, and the court’s determination
will be upheld if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th
622, 730-731; People v. Bui (2011) 192 Cal.App.4th 1002, 1015.)
       At sentencing, the prosecutor argued counts 1 and 6 were separate offenses for
section 654 purposes: “I think there is [sic] separate actions based on [defendant]’s
actions. The mere fact of pointing the loaded weapon at [A.N.] -- because the jury did
find that he had a loaded weapon . . . . [¶] . . . that’s the [assault with a semiautomatic
firearm]. . . . That crime has been committed. Once he starts threatening her, pushing
her towards the car with that gun, separate and distinct actions on the part of [defendant],
and it’s a different crime and can be punished separately.” The prosecutor conceded,
however, that he could see how a court might say section 654 applied. Defense counsel
argued for application of section 654.
       The trial court agreed some of the counts were subject to section 654, but not as to
the assault with a firearm. The trial court stated: “I think [the prosecutor]’s assessment

                                              12
of the situation is correct. That the [assault with a semiautomatic firearm] was completed
when the gun was produced and pointed at the victim, loaded and ready to use as an
offensive weapon. The [attempted carjacking was] an additional offense . . . . But it
went beyond what was required to commit the first offense, although done in a relatively
short order.”
       The trial court’s analysis was erroneous for the reasons stated in People v. Nunez
(2012) 210 Cal.App.4th 625 (Nunez). There, the defendant was convicted of assault with
a deadly weapon and carjacking, based on the evidence that the victim was sitting in his
parked Jeep when the defendant “ ‘slammed’ ” the passenger-side window and screamed
at him; the victim got out and pushed the defendant back; the defendant swung a claw
hammer at the victim, striking him in two places; the victim lunged at the defendant but
missed; and the defendant got into the Jeep and drove away. (Id. at p. 628.) The trial
court ruled section 654 did not apply because once the victim exited the Jeep, the
defendant could have taken it without physically attacking the victim. (Nunez, at p. 628.)
The appellate court reversed. “[T]he [assault] was the sole means of committing the
carjacking. This course of criminal conduct was indivisible and the two crimes were
committed so close in time that they were contemporaneous if not simultaneous.” (Id. at
p. 629.) “It is apparent that appellant wielded the hammer to take the car. It is equally
apparent that the victim . . . was not going to peacefully surrender his car. Use of the
hammer was not a ‘gratuitous act of violence’ or an ‘afterthought.’ [Citation.] Nor was
use of the hammer motivated by animus unrelated to the taking of the automobile.”
(Id. at p. 630.)
       Here, defendant’s acts of assault with a firearm and attempted carjacking were
“contemporaneous if not simultaneous.” (Nunez, supra, 210 Cal.App.4th at p. 629.)
And the assault had no intent or objective “unrelated to the taking of the automobile”
(id. at p. 630); rather, the intent and objective of the assault was to take the automobile.



                                              13
Therefore, the trial court’s finding that the acts did not form an indivisible course of
conduct with a single intent and objective is not supported by substantial evidence.
       On remand, the trial court is directed to stay sentence on the count 1 conviction for
attempted carjacking and its associated firearm use enhancement, unless the trial court
decides to strike the enhancement. (See Part VI.)
                                              V
       Defendant contends the trial court miscalculated his sentence by two months.
Because the trial court will have to recalculate defendant’s aggregate sentence on remand
in a manner consistent with this opinion, we need not decide this contention.
                                             VI
       In supplemental briefing, defendant argues the matter should be remanded to allow
the trial court to exercise its discretion whether to strike the firearm use enhancements
pursuant to Senate Bill 620. The Attorney General agrees and we do too.
       Before Senate Bill 620 took effect on January 1, 2018, trial courts had no
discretion to strike or dismiss firearm use enhancements under sections 12022.5 and
12022.53. However, Senate Bill 620 amended those statutes to give trial courts that
discretion in the interests of justice (Stats. 2017, ch. 682, §§ 1-2), and that change in law
applies retroactively to all cases in which sentencing is not yet final. (People v.
Valenzuela (2018) 23 Cal.App.5th 82, 87-88.)
       We will remand the matter to allow the trial court to exercise its discretion with
regard to the firearm use enhancements on counts 1 and 6.
                                             VII
       Our review of the record disclosed a clerical error in the abstract of judgment.
Defendant was convicted on count 7 for possession of ammunition by a felon in violation
of section 30305, subdivision (a)(1). The trial court orally imposed the middle term of
two years on that count and then stayed the sentence pursuant to section 654. But the
abstract of judgment incorrectly indicates a conviction on count 7 for assault with a

                                              14
semiautomatic firearm in violation of section 245, subdivision (b). When the trial court
recalculates the aggregate sentence on remand and prepares an amended abstract of
judgment, it is directed to correct this clerical error in the abstract as well.
                                        DISPOSITION
       Defendant’s count 8 conviction for possession of a firearm by a felon is reversed,
and the section 12022.5 firearm use enhancement on the count 4 conviction for carrying a
loaded firearm with the intent to commit a felony is stricken. The remaining convictions
are affirmed. The matter is remanded to allow the trial court to exercise its discretion
whether to strike the firearm use enhancements on counts 1 and 6. On remand, the trial
court is directed to stay sentence on the count 1 conviction for attempted carjacking and
its associated firearm use enhancement, unless the trial court decides to strike the
enhancement. The trial court shall resentence defendant, prepare an amended and
corrected abstract of judgment, and forward a certified copy of the amended and
corrected abstract of judgment to the Department of Corrections and Rehabilitation.



                                                       /S/
                                                    MAURO, Acting P. J.



We concur:



    /S/
DUARTE, J.



    /S/
RENNER, J.



                                               15
