The People v. Verkuilen CA4/3

Filed 9/26/13 P. v. Verkuilen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047649

v. (Super. Ct. No. 10HF1698)

JAMES ROBERT VERKUILEN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Derek Guy Johnson, Judge. Affirmed in part and reversed in part; remanded for resentencing. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant James Robert Verkuilen of two counts of first degree residential burglary (Pen. Code, §§ 459, 460; all further statutory references are to this code). Defendant admitted a previous violent felony conviction (§§ 667, subds. (a)(1), (d) & (e)(1), 1170.12, subds. (b) & (c)(1)) and five separate prison term enhancement allegations (§ 677.5 subd. (b)). The trial court sentenced him to 15 years and 8 months. This included a consecutive sentence on the second first degree residential burglary conviction. The court also enhanced the sentence by five one-year terms for the prison term allegations, but stayed imposition of those terms. Defendant appeals, contending the court erroneously believed it lacked discretion in imposing the sentence for the second burglary consecutively and by staying, rather than striking, the five one-year prison term sentences. We disagree with his first contention; the two separate burglaries do not qualify for concurrent sentencing under the “Three Strikes” law. Both we and the Attorney General agree with defendant that the enhancements cannot be stayed; we remand the case for the trial court to determine whether to impose or strike the five one-year terms.