Fear Not Law Articles: P. v. Vela

P. v. Vela

Filed 1/17/07 P. v. Vela 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Sutter)

----

THE PEOPLE,

Plaintiff and Respondent,

FRANCISCO VELA,

Defendant and Appellant.

C052018

(Super. Ct. No. CRF052727)

A jury convicted Francisco Vela of attempted robbery (Pen. Code, §§ 211, 664), attempted grand theft (Pen. Code, §§ 487, 664), public intoxication (Pen. Code, § 647, subd. (f)), and sustained two prior prison term allegations. (Pen. Code, § 667.5, subd. (b).) Defendant was sentenced to five years in prison: an upper term of three years for the attempted robbery count, a stayed 18-month term for attempted grand theft, and two one-year terms for the prior prison terms.

On appeal, defendant contends the attempted grand theft conviction should be reversed because it is a lesser included offense of the attempted robbery conviction, the upper term sentence violates Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and the sentence for attempted grand theft was unauthorized. We shall reverse the attempted grand theft conviction, vacate its sentence, and affirm the judgment in all other respects.

BACKGROUND

On November 5, 2005, Cesario Salas gave his friend Sinforiano Rincon a ride to the corner of Percy Avenue and Woodbridge, which is across the street from Salas's house in Yuba City. As Rincon walked down Percy Avenue towards his home, defendant grabbed him from behind and took his cap off. Defendant said, â€

Description	A jury convicted Defendant of attempted robbery (Pen. Code, SS 211, 664), attempted grand theft (Pen. Code, SS 487, 664), public intoxication (Pen. Code, S 647, subd. (f)), and sustained two prior prison term allegations. (Pen. Code, S 667.5, subd. (b).) Defendant was sentenced to five years in prison: an upper term of three years for the attempted robbery count, a stayed 18 month term for attempted grand theft, and two one year terms for the prior prison terms. On appeal, defendant contends the attempted grand theft conviction should be reversed because it is a lesser included offense of the attempted robbery conviction, the upper term sentence violates Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), and the sentence for attempted grand theft was unauthorized. Court reverse the attempted grand theft conviction, vacate its sentence, and affirm the judgment in all other respects.
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