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P. v. Bough

P. v. Bough
02:28:2007

P


P. v. Bough


Filed 2/7/07  P. v. Bough 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NOT TO BE PUBLISHED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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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


(Sacramento)


----







THE PEOPLE,


          Plaintiff and Respondent,


     v.


ERIC DENTON BOUGH,


          Defendant and Appellant.



C051909


(Super. Ct. No. 02F09422)



     A jury convicted defendant Eric Denton Bough of second degree robbery (Pen. Code, § 211),[1] second degree burglary (§  459), assault with a firearm (§ 245, subd. (a)(2)), and misdemeanor destruction of evidence (§ 135).  The jury also found true allegations that defendant personally used a firearm in the commission of the robbery (§ 12022.53, subd.  (b)), burglary (§ 12022.5, subd. (a)(1)), and assault (§  12022.5, subds. (a), (d)).  The trial court sentenced defendant to 13  years in prison for the robbery, consisting of the middle term of three years plus an additional 10 years for the firearm enhancement.  Sentences on the remaining felony counts were stayed pursuant to section 654.[2]


     Defendant's sole contention on appeal is that the trial court prejudicially erred in failing to instruct the jury sua sponte on brandishing a firearm, a purported lesser included offense of the firearm enhancements.  We shall affirm.


FACTUAL AND PROCEDURAL BACKGROUND


     On October 31, 2002, defendant entered Guarantee Bank on Howe Avenue in Sacramento wearing striped overalls and a Mighty Ducks mask.  As he approached one of the bank tellers, he removed a gun from his pocket.  When he reached the teller's window, he laid the gun sideways on the counter and, with his hand on the gun, asked the teller for money.[3]  She gave him â€





Description A jury convicted defendant Eric Denton Bough of second degree robbery (Pen. Code, S 211), second degree burglary (S 459), assault with a firearm (S 245, subd. (a)(2)), and misdemeanor destruction of evidence (S 135). The jury also found true allegations that defendant personally used a firearm in the commission of the robbery (S 12022.53, subd. (b)), burglary (S 12022.5, subd. (a)(1)), and assault (S 12022.5, subds. (a), (d)). The trial court sentenced defendant to 13 years in prison for the robbery, consisting of the middle term of three years plus an additional 10 years for the firearm enhancement. Sentences on the remaining felony counts were stayed pursuant to section 654.
Defendant's sole contention on appeal is that the trial court prejudicially erred in failing to instruct the jury sua sponte on brandishing a firearm, a purported lesser included offense of the firearm enhancements. Court affirm.

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