P. v. Bugenig
Filed 8/28/06 P. v. Bugenig 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
(Trinity)
| THE PEOPLE, Plaintiff and Respondent, v. ROBERTA CLARE BUGENIG, Defendant and Appellant. | C052266
(Super. Ct. No. 05F039)
|
On March 15, 2005, defendant Roberta Clare Bugenig obtained a rifle and for about three hours kept at bay law enforcement Officers Kavan Fritz, Dan Dias and Ron Whitman who, pursuant to previous notice and a writ of possession, had come to defendant's property to take possession of her house.
Defendant's conduct resulted in her being charged with one count of assault with a firearm upon a peace officer (Pen. Code, § 245, subd. (d)(1) -- count I)[1] and three counts of brandishing a firearm in the presence of a peace officer (§ 417, subd. (c) -- counts II-IV), each count specifying a different officer.[2] Attached to each count were allegations of being armed with a firearm (§ 12022, subd. (a)(1)) and use of firearm (§ 12022.5, subd. (a)).
A jury convicted defendant of the three brandishing counts and found true all of the firearm allegations, but deadlocked on the assault charge and it was dismissed.
Defendant was sentenced to the low term of 16 months on count II, enhanced by the low term of three years for the firearm use. Sixteen month terms were imposed for counts III and IV and ordered to run concurrently with count II.
On appeal, defendant contends, and the People agree, that only one conviction for brandishing is permissible, and that all of the firearm findings must be dismissed. We too agree and shall remand with directions.
DISCUSSION
I
In In re Peter F. (2005) 132 Cal.App.4th 877, the juvenile court sustained four counts of brandishing under subdivision (a)(1) of section 417 based upon the minor's having waved a knife in a threatening manner on two separate occasions, each occasion with two people present. (Id. at pp. 878-879.) On appeal, the appellate court concluded that only one count of brandishing could be sustained for each incident regardless of the number of persons present. (Id. at p. 879.) The court explained: â€
