P. v. Mendoza

Filed 4/12/06 P. v. Mendoza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. James T. LaPorte, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Rex Williams, under appointment by the Court of Appeal, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Roberto Mendoza of making a criminal threat (Pen. Code, § 422; count 1);^[1] possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2); battery on a peace officer (§ 243, subd. (b); count 3); and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 4). In a separate proceeding, appellant admitted enhancement allegations made in connection with each of counts 1 and 2 that he had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). The court imposed a prison term of four years eight months, consisting of the three-year upper term on count 1, eight months on count 2 and one year on the prior prison term enhancement alleged in connection with count 1. The court stayed the prior prison term enhancement alleged in connection with count 2 and on each of counts 3 and 4 imposed concurrent one-year terms.

On appeal appellant contends (1) the court erred in failing to stay, pursuant to section 654, execution of sentence on counts 2, 3 and 4; (2) the court abused its discretion in imposing a consecutive sentence on count 2; (3) the imposition of the upper term on count 1 violated appellant's rights under the United States Constitution; and (4) the court erred in staying, rather than striking, the prior prison term enhancement alleged in connection with count 2. We will strike the prior prison term imposed in connection with count 2, stay execution of sentence on count 4 and in all other respects affirm.

FACTS

Maria Sanchez is appellant's wife. On February 2, 2005, she, appellant and the couple's four children were living together. That night at approximately 9:00 p.m. Sanchez took the children with her into the bedroom, closed the door and, in order to be safe from appellant, who had been acting strangely during the previous six weeks, put a chair and a box against the door.

Approximately two minutes after Sanchez closed and barricaded the door, appellant began hitting the door, pushing against it and screaming. Sanchez heard appellant say, â€