P. v. Negron

Filed 8/15/06 P. v. Negron CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant, Agapito Tafoya Negron, of first degree burglary (count I/Pen. Code, § 459),^[1] possession of stolen property (count II/§ 496, subd. (a)), and contributing to the delinquency of a minor (count III/§ 272). In a separate proceeding, Negron admitted a serious felony enhancement (§ 667, subd. (a)), a prior prison term enhancement (§ 667.5, subd. (b)), and allegations that Negron had two prior convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i)). On November 4, 2005, the court sentenced Negron to an aggregate term of 31 years to life on count I as follows: 25 years to life on the substantive offense, a 5-year serious felony enhancement, a one-year prior prison term enhancement, a stayed term on count II, and a concurrent 6-month term on count III. On appeal, Negron contends the court erred in imposing the prior prison term enhancement. We will find merit to this contention and strike this enhancement. In all other respects, we will affirm the judgment.

FACTS

In early May 2005, Negron had his 10-year-old nephew, Peter C., knock on the doors of apartments in Bakersfield and call him on a walkie-talkie if no one answered the door.

On May 9, 2005, Marcia Hirst went to check on her mother's apartment while her mother was hospitalized and noticed that it appeared to have been broken into. As Hirst inspected the apartment, Negron walked into the kitchen through the back door. Negron turned around and left when Hirst yelled at him. Negron's fingerprints were found on the exterior of the door leading from the apartment's backyard to a porch. His fingerprints and palm prints were found on the porch side of a door leading from the porch to the kitchen.

On May 11, 2005, a detective went to Negron's sister's house and searched a car belonging to Negron's sister. Inside the car the detective found a computer and a monitor that belonged to Hirst's mother and a pair of walkie-talkies. The monitor had Negron's fingerprints on it.

DISCUSSION

Negron contends that because the serious felony and the prior prison term enhancements were based on the same underlying conviction the court should have stricken the prior prison term enhancement. Respondent concedes and we agree.

In People v. Jones (1993) 5 Cal.4th 1142, the Supreme Court held that when a prior prison term enhancement and a serious felony enhancement are available for the same prior offense only the greatest enhancement will apply. (Id. at p. 1151.) Here, since Negron's serious felony enhancement and his prior prison term enhancement were both based on the same prior conviction, in accord with Jones we conclude that the court erred in imposing the prior prison term enhancement.

DISPOSITION

The judgment is modified to strike the prior prison term enhancement imposed by the court. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

^* Before Vartabedian, Acting P.J., Hill, J., and Kane, J.

^[1] All further statutory references are to the Penal Code.