P. v. Hetherington
Filed 8/15/06 P. v. Hetherington CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Sacramento)
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| THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JOE HETHERINGTON, Defendant and Appellant. |
C049528
(Super. Ct. No. 02F02210, 04F06938)
|
In case No. 04F06938, a jury convicted defendant Anthony Joe Hetherington of first degree burglary (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496, subd. (a)). The trial court found defendant had a prior serious felony conviction.
In case No. 02F02210, defendant pled no contest to grand theft of a firearm (Pen. Code, § 487, subd. (a)) and was placed on five years' probation on May 24, 2002. On February 25, 2005, the trial court revoked defendant's probation in case No. 02F02210.
The trial court reduced the receiving stolen property count to a misdemeanor. Defendant was sentenced to 13 years and eight months: a middle term of four years for the burglary conviction, doubled to eight years for his prior strike, plus a five-year enhancement for the prior serious felony conviction, a consecutive 60-day term in county jail for the receiving stolen property count, and a consecutive term of eight months for the probation violation.
On appeal, defendant contends the trial court's decision to impose a consecutive sentence on the misdemeanor count was the product of a misunderstanding of the relevant law. He also claims trial counsel was ineffective for failing to make a motion to strike his prior strike conviction. We find the trial court failed to exercise its discretion when it sentenced defendant to a consecutive term for the misdemeanor count. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On August 10, 2004, at around 1:46 a.m., 10-year-old A.Z. woke up to a man's nose poking through her bedroom door. The man, whom she later identified as defendant, ran down the stairs and out of the house. A.Z.'s mother, T.Z., was working on her computer at around 1:40 a.m. when she saw a strange man on the stairs. T.Z. also identified defendant as the intruder.
Sacramento County Sheriff's Deputy Shawn Galyean was dispatched to the home of M.Z. and T.Z. on Yellow Pine Way. He found defendant lying face down on the ground with a garage door opener and other items within arm's reach. Deputy Galyean pressed the garage door opener, and it opened the garage of a home on Yellow Pine Way. The resident at the home on Yellow Pine Way, James Applegate, woke up and identified the garage door opener and the other items found near defendant as his. The items were taken from Applegate's truck, which had been opened.
DISCUSSION
I
Defendant contends the trial court's decision to sentence him consecutively for the possession of stolen property conviction reflected a misunderstanding of the relevant law. The Attorney General concedes the issue. We accept the concession.
On the first day of the sentencing hearing, the trial court asked if he could sentence defendant concurrently on the burglary and possession of stolen property counts. The district attorney responded, â€
