Campbell
Filed 7/1/13 P. v. Campbell CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. ERIC SCOTT CAMPBELL, Defendant and Appellant. | F065150 (Super. Ct. No. CRF37435) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. James A. Boscoe, Judge.
Michael L.
Pinkerton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J.
Gates, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant, Eric Scott Campbell, of
460, subd. (a)); receiving stolen
property (Pen. Code, § 496, subd. (a));
subd. (a)(1)); possession of ammunition (§ 30305, subd. (a)(1)); and possession
of marijuana for purposes of sale (Health & Saf. Code, § 11359). The court suspended imposition of sentence
and placed appellant on five years’ probation, with various terms and
conditions, one of which was that he serve one year in county jail.
The “MINUTE
ORDER and ORDER GRANTING PROBATION†(minute order), signed by the court,
states, in relevant part, that appellant was convicted of first degree
burglary, “a violent felony within the meaning of [section 667.5, subdivision
(c)] ....â€
Appellant’s
sole contention on appeal is that the evidence was insufficient to support the
court’s finding that the instant first degree burglary was a violent felony
within the meaning of section 667.5, subdivision (c). The People concede the point, and we
agree. We order the erroneous finding be
stricken, direct the trial court to issue an amended minute order, and
otherwise affirm.
FACTS
On December
3, 2011, Sarah Campbell (Sarah)
name="_ftnref3" title="">[2] was at the home of her father, Gary Hartman,
when she noticed several of her father’s firearms were missing. She informed the Tuolumne County Sheriff’s
Department (TCSD) of the missing weapons.
Hartman had last noticed the firearms were in his house approximately
one month prior. Sarah and Hartman
suspected appellant, Sarah’s estranged husband, had taken the guns.
On a
Tuesday or Wednesday in early December or late November of 2011, appellant and
a friend took several firearms to a gun store in Jamestown for appraisal. They
left the firearms with a store employee, Michael Petersen, and appellant
returned the following Monday and retrieved them. Petersen had heard from a friend who had
connections to Hartman that some firearms belonging to Hartman had been
stolen. Petersen told his friend about
the guns appellant had brought to the store, and advised his friend to call the
Sheriff’s Department.
On January
5, 2012, Hartman told TCSD Detective Deborah Moss that a friend, Stephen Flud,
had returned three of the missing guns, and that Flud had stated he had
obtained the guns from appellant. The
detective arranged for Hartman to place a telephone call to appellant, which
was recorded.
Detective Moss testified she later
spoke with appellant and asked him if he remembered telling Hartman he took the
guns and that he was “in a pinch.†Appellant
responded, “‘Whatever.’â€
name="_ftnref4" title="">[3]
Thereafter,
on January 12, 2012, a search warrant was executed at appellant’s
residence. Items found in the search
included a firearm, which did not belong to Hartman, ammunition, slightly less
than two pounds of processed marijuana, and a pay/owe sheet.
DISCUSSION
First degree burglary qualifies
as a “violent felony†under section 667.5, subdivision (c) if “it is charged
and proved that another person, other than an accomplice, was present in the
residence during the commission of the burglary.†(§ 667.5, subd. (c)(21).) Here, as the parties agree, there was no
evidence supporting this factor. Moreover,
there was no evidence to support the designation of the instant burglary as a
violent felony on any other basis.
name="_ftnref5" title="">[4] Therefore, as the parties also agree, the
statement in the sentencing hearing minute order that the instant first degree
burglary was a violent felony was erroneous.
We will order the violent felony reference stricken and direct the trial
court to issue an amended minute order.
DISPOSITION
The
reference in the “MINUTE ORDER and ORDER GRANTING PROBATION†of June 19, 2012,
to the instant first degree burglary as a violent felony within the meaning of
Penal Code section 667.5, subdivision (c) is ordered stricken. The trial court is directed to prepare an
amended minute order which does not identify the instant first degree burglary
as a violent felony. In all other
respects the judgment is affirmed.
name="_ftn1" title="">* Before
Gomes, A.P.J., Detjen, J. and Peña, J.
name="_ftn2" title="">[1] All
further statutory references are to the Penal Code unless otherwise noted.
