P. v. Gonzalez
Defendant Hector Manuel Gonzalez appeals after conviction, by jury trial, of two counts of residential burglary (Pen. Code, § 459),[1] one count of robbery (§ 211), and one count of false imprisonment (§ 236). He admitted three prior prison term allegations. (§ 667.5, subd. (b).) Defendant was sentenced to an 11-year, four-month prison term and ordered to pay a $6,600 restitution fine.
On appeal, defendant contends one of the burglary convictions must be reversed due to insufficient evidence that the residence was inhabited and because the trial court gave the wrong circumstantial evidence instruction. Defendant contends the robbery conviction must be reversed for three reasons: (1) because the jury might have convicted him even if it found he used force to escape, rather than to take the property; (2) because there was insufficient evidence that the victim had constructive possession of the property; and (3) because the trial court directed a verdict by telling the jury that a caretaker on duty has constructive possession of the homeowner’s property. Defendant also contends that pursuant to section 654, the trial court should have stayed the one-year term imposed for his robbery conviction and a portion of the restitution fine.
We agree that the term for defendant’s robbery conviction should have been stayed pursuant to section 654 and that the restitution fine should have been $4,000. We will order the judgment modified.
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