Filed 12/7/05 P. v. Miloslavich 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(San Joaquin)

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Defendants Andre Charles Miloslavich (Miloslavich) and Rachel Storrs (Storrs) were convicted by a jury of first degree robbery (Pen. Code, § 211) of a victim who was at least 65 years old (Pen. Code, § 667.9, subd. (a)). The jury also found Miloslavich committed a prior serious felony (Pen. Code, § 667, subd. (a)), served a prior prison term (Pen. Code, § 667.5), and had two prior convictions within the meaning of the three strikes law (Pen. Code, §§ 667, subd. (d) and 1170.12, subd. (b)). Miloslavich was sentenced to state prison for 25 years to life plus aggregate enhancements of seven years. Storrs was sentenced to state prison for five years.

Both defendants appeal. Miloslavich contends the trial court improperly considered a prior juvenile adjudication as a strike, abused its discretion in refusing to strike the prior juvenile adjudication, and imposed a sentence that amounts to cruel and unusual punishment. Storrs contends there is insufficient evidence to support her conviction and the court erred in failing to instruct the jury with CALJIC No. 2.72. We affirm the judgments.

Facts and Proceedings

Seventy-nine-year-old Gregorio G. lived alone in the Doyle Garden Apartments in Stockton, California. On August 30, 2003, he went to a store to cash a check and purchase some food after which he had approximately $300 in cash. After Gregorio returned home, Storrs entered his apartment through the open front door and asked him for money to buy a burrito. Gregorio was familiar with Storrs from her previous visits to her grandmother who lived nearby. She called him â€