P. v. Gomez
A jury convicted Jose Robert Gomez (appellant) of three counts of second degree robbery (Pen. Code, 211) (counts 1-3), attempted second degree robbery ( 664/211) (count 4), first degree burglary ( 459) (count 5), and the unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) (count 6). The jury found true the allegation that in the commission of counts 1, 2, 3, and 4, appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). The jury found true the allegation that the victim was present in the residence during the commission of the burglary in count 5 within the meaning of section 667.5, subdivision (c). The trial court found true the allegations that appellant had suffered three prior strike convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and one prison prior within the meaning of section 667.5, subdivision (b). After denying appellants Romero[3]motion, the trial court sentenced him to a total of 95 years to life in state prison. The sentence consisted of 25 years to life on count 1 and 10 consecutive years for the firearm use in that count, an identical consecutive sentence in count 3, and a consecutive sentence of 25 years to life in count 5. Concurrent sentences of 35 years to life were imposed in count 2 and count 4. The court imposed and stayed a term of 25 years to life in count 6 pursuant to section 654.
Appellant appeals on the grounds that: (1) count 5 and the special finding under section 667.5, subdivision (c) should be reversed because appellants conviction for burglary rests on insufficient evidence; (2) reversal of count 2 is required because the trial court failed to sua sponte instruct the jury that attempted robbery was a lesser included offense of robbery; and (3) the trial court abused its discretion in denying appellants Romero motion. The judgment is affirmed.
Comments on P. v. Gomez