Fear Not Law Articles: P. v. Valencia

P. v. Valencia

Filed 8/2/07 P. v. Valencia CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

JESUS ALVAREZ VALENCIA,

Defendant and Appellant.

B194479

(Los Angeles County

Super. Ct. No. VA092548)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Modified and Affirmed.

Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and Respondent.

Jesus Alvarez Valencia appeals from the judgment entered following a jury trial in which he was convicted of four counts of first degree burglary (Pen. Code, 459). In a bifurcated proceeding, the jury found that appellant had suffered three prior serious or violent felonies within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a) - (d) and 667, subds. (b) - (i)) and three prior serious felonies within the meaning of Penal Code section 667, subdivision (a)(1). For the first burglary conviction, he was sentenced to prison for 25 years to life plus five years consecutive for each of the three prior serious felony enhancements. The sentences on the remaining three counts were ordered to run concurrently. He contends one of the enhancements under Penal Code section 667, subdivision (a)(1) must be reversed as two of the three prior serious felony convictions came from the same case. Respondent agrees. For reasons stated in the opinion, we reverse one of the three serious prior felony enhancements.

FACTUAL AND PROCEDURAL SUMMARY

Appellant does not challenge the sufficiency of evidence to support his convictions and it will suffice to observe that on four separate occasions in 2005, appellant entered different locked residences in Downey while its occupants were away and took jewelry, cash, electronics and other belongings. In each case, appellant ransacked the residence and left his fingerprints.

Relative to the prior serious felony convictions, evidence established that appellant had been convicted on July 21, 1993 in case number 93 NF1363 of first degree burglary and on July 22, 1993 in case number 93 HF0577 of first degree burglary and attempted first degree burglary.

DISCUSSION

Appellant contends it was error to impose separate five-year enhancements based on the two prior convictions in case number 93 HF0577 in that the two cases were not brought and tried separately. We agree.

Penal Code section 667, subdivision (a)(1) provides in pertinent part, [A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. . . . [T]he requirement in [Penal Code] section 667 that the predicate charges must have been brought and tried separately demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt. (In re Harris (1989) 49 Cal.3d 131, 136.) Here, two of the prior convictions were sustained in a single case, case number 93 HF0577, and the prosecution failed to establish that these two charges were brought and tried separately.

DISPOSITION

The judgment is modified by striking the prior felony conviction enhancement for attempted first degree burglary found true pursuant to Penal Code section 667, subdivision (a) from case number 93 HF0577 and in all other respects the judgment is affirmed. The trial court is directed to forward a certified

copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J

We concur:

EPSTEIN, P.J.

MANELLA, J.

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Description	Jesus Alvarez Valencia appeals from the judgment entered following a jury trial in which he was convicted of four counts of first degree burglary (Pen. Code, 459). In a bifurcated proceeding, the jury found that appellant had suffered three prior serious or violent felonies within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a) - (d) and 667, subds. (b) - (i)) and three prior serious felonies within the meaning of Penal Code section 667, subdivision (a)(1). For the first burglary conviction, he was sentenced to prison for 25 years to life plus five years consecutive for each of the three prior serious felony enhancements. The sentences on the remaining three counts were ordered to run concurrently. He contends one of the enhancements under Penal Code section 667, subdivision (a)(1) must be reversed as two of the three prior serious felony convictions came from the same case. Respondent agrees. For reasons stated in the opinion, Court reverse one of the three serious prior felony enhancements.
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