P. v. Eustice
Defendant Eddie Eustice was convicted after jury trial of first degree burglary (Pen. Code, 459, 460, subd. (a)),[1]attempted first degree burglary ( 664, 459, 460, subd. (a)), and willful failure to appear in court while released on bail ( 1320.5). The trial court sentenced defendant to four years in state prison, the sentence consisting of the middle term of four years for the burglary count and concurrent terms of two years each on the remaining two counts.
On appeal defendant contends that the burglary conviction must be reversed due to prejudicial instructional error. He further contends that the failure to appear conviction must be reversed for various reasons, including due to the insufficiency of the evidence to support it. The Attorney General concedes that the failure to appear conviction must be reversed due to the insufficiency of evidence, and that defendant cannot be retried on that count, and Court agree with the concession. However, Court find no prejudicial instructional error. Accordingly, Court reverse the failure to appear conviction, modify the judgment by striking the concurrent sentence imposed for that conviction, and affirm the judgment as so modified.
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