P. v. Capela

Filed 4/4/06 P. v. Capela CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977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

SIXTH APPELLATE DISTRICT

After a jury trial, defendant Barth Dennis Capela was convicted of one count of attempted robbery in the second degree (Pen. Code, §§ 664/211-212.5, subd. (c))[1] and other offenses relating to an early-morning attack on a man in Gilroy. Defendant was sentenced to a total term of 19 years in prison; in addition, the trial court imposed two 30-day sentences for two misdemeanor assault convictions and granted credit for time served.

On appeal, defendant asserts various claims of error, including the following: (1) the admission into evidence of a knife found in defendant's car immediately after his arrest was prejudicial error; (2) the court erred in excluding evidence that defendant sought to introduce through testimony from a prison inmate; (3) there was instructional error; (4) there was sentencing error; and (5) defendant was denied due process because the court allegedly denied him access to a law library and refused to appoint advisory counsel. We conclude that the court committed sentencing error by imposing two consecutive one-year enhancements under section 667.5, subdivision (b), and by imposing two 30-day sentences for the two assault convictions in violation of section 654. We otherwise conclude that there was no error and will affirm the judgment as modified to correct the sentencing error.

In a petition for writ of habeas corpus (H029557), which this court previously ordered to be considered with this appeal, defendant argues that the charge of attempted robbery in the information was â€