P. v. Smith
P. v. Smith
Filed 8/7/08 P. v. Smith CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KYLE SMITH,
Defendant and Appellant. |
D051959
(Super. Ct. No. SCD201937) |
APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed as modified with directions.
A jury found Kyle Smith guilty of residential burglary (Pen. Code, 459, 460)[1](count 1) and possessing stolen property ( 496, subd. (a)) (count 3). Smith waived his right to a jury trial on allegations of a prior strike conviction ( 667, subds. (b)-(i), 1170.12, 668) and a prior serious felony conviction ( 667, subd. (a)) and in a bifurcated hearing the court found them true. The court sentenced him to nine years in prison: twice the two-year lower term for residential burglary, a concurrent term for receiving stolen property, and five years for the prior serious felony conviction. Smith appeals, contending that because his conviction of receiving stolen property is based on the same conduct as his conviction of residential burglary, section 654 requires execution of the sentence for receiving stolen property be stayed.[2]
BACKGROUND
On September 30, 2006, Smith and two companions burglarized Jack Lutman's home. Some of the property taken in the burglary was found at Smith's home.
DISCUSSION
A defendant may be convicted both of burglary and of receiving property stolen in the burglary. (People v. Landis (1996) 51 Cal.App.4th 1247, 1253-1254.) Section 654, however, requires that execution of the sentence for receiving stolen property be stayed. (People v. Landis, supra, at p. 1254.)
DISPOSITION
The judgment is modified by staying execution of the sentence for receiving stolen property. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
McINTYRE, J.
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[1] Statutory references are to the Penal Code.
[2] The People contend Smith cannot be convicted of stealing and receiving the same property and the case must be remanded to the trial court with directions to strike the conviction of receiving stolen property. Smith was not convicted of stealing; he was convicted of burglary.
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