P. v. Santana

Filed 1/16/07  P. v. Santana CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Luis Santana appeals from a judgment sentencing him to 26 years, 8  months in state prison for attempted murder, intimidating a witness, and burglary.  Defendant argues the following sentencing errors:  (1) the trial court improperly imposed a full strength consecutive sentence on the witness intimidation count; (2) the trial court improperly imposed a sentence of one year, eight months on the burglary charge when it was unclear whether the offense was first or second degree burglary; (3) defendant was entitled to but not given credit for time served on the burglary charge; and (4) imposition of the upper term on the attempted murder count violated Blakely v. Washington (2004) 542 U.S. 296.  We agree the sentence on the burglary charge was improperly calculated but affirm the judgment in all other regards.

I.  Factual and Procedural Background[1]

As this appeal involves only sentencing issues, we briefly summarize the underlying charges and procedural history.  At approximately 1:10 p.m.on August 25, 2002, three individuals were at a gas station in Santa Rosa when they were confronted by a group of approximately 14 members of the Sureño street gang.  Believing the three individuals to be members of the rival Norteño street gang, the Sureño gang members launched a vicious attack, seriously injuring two of the individuals and leaving them for dead.  One victim suffered ten to twelve stab wounds, and the other suffered a deep puncture wound to the right side of his torso, was struck repeatedly with a black baton‑ type device, and was hit by a vehicle as the attackers fled.  During the melee, defendant was inadvertently stabbed by one of his fellow gang members.  At the time of the attack, defendant was serving a five‑ year suspended sentence for burglary in case no.  SCR‑ 28428.

A few hours after the attack, defendant was questioned by the police and claimed to have been at a wedding reception, where he became extremely intoxicated and cut his arm on a piece of glass.  A witness to the attack, who had arrived at the gas station in a vehicle driven by defendant, reported that after the attack, defendant told her to tell the police the same story--that he cut his arm on a piece of glass.  He said to her, â€