^{P. v. Lopez}

^{Filed 2/20/07  P. v. Lopez CA2/5}

^{NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS}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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

^{SECOND APPELLATE DISTRICT}

^{DIVISION FIVE}

                ^{APPEAL from a judgment of the Superior Court of Los Angeles County. William  W.  Hollingsworth, Judge.  Affirmed as modified.}

                ^{Russell Fong, under appointment by the Court of Appeal, for Defendant and Appellant.}

                ^{Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Kenneth J. Kao, Deputy Attorneys General, for Plaintiff and Respondent.}

            The jury found defendant Fabian Efrain Lopez guilty of attempted robbery and making criminal threats against his father, Rafael Lopez, in violation of Penal Code sections 664/211 and 422.^[1]  Defendant admitted suffering one serious or violent felony conviction under the three strikes law (§§ 1170.12, 667, subds. (b)-(i)), and that the same conviction was a prior serious felony within the meaning of section 667, subdivision (a).  The trial court sentenced defendant to a nine-year prison term for the criminal threats offense (the two-year middle term doubled pursuant to the three strikes law, plus the five-year serious felony enhancement), and a concurrent four-year term for the attempted robbery conviction (the two-year middle term doubled pursuant to the three strikes law).

            Defendant timely appealed from the judgment.  He contends (1) the trial court abused its discretion in admitting evidence of a prior crime--that defendant robbed his father in 2001 under similar circumstances to those of the charged offenses, and (2) section 654's bar against multiple punishments requires the staying of one of the two sentences imposed.  We find no trial error, but agree that the sentence runs afoul of section 654.  Accordingly, we order the trial court to stay the sentence on the attempted robbery conviction and otherwise affirm the judgment.

STATEMENT OF FACTS

            Defendant's father, Mr. Lopez, testified that in 2005 he shared a room with defendant in a Redondo Beach apartment.  On May 24, Mr. Lopez returned to his apartment from work at approximately 12:30 a.m.  Defendant was waiting by the apartment's entrance.  Mr. Lopez suggested that defendant have something to eat, shower, and rest because defendant had an appointment later that morning at a drug rehabilitation clinic.  Defendant had a substance abuse problem--indeed, the day before, Mr. Lopez saw defendant inject himself with narcotics.  Mr. Lopez decided to watch television in bed, but defendant told his father he wanted to go to a bar to drink and get high.  Mr. Lopez reminded defendant of the rehabilitation appointment.  Defendant responded they could go to the clinic after the bar.  When defendant asked for his father's car keys and wallet, Mr. Lopez said no.

            That night, instead of removing his keys and wallet out from his pockets upon entering his room as he usually did, Mr. Lopez kept them in his pockets because he suspected defendant had taken cash from his wallet the previous night, and he did not want his son to take anything else.  Defendant asked why his father had not placed his car keys and wallet in the â€