People v. Alvarez CA5

Filed 10/28/13 P. v. Alvarez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F065502 Plaintiff and Respondent, (Stanislaus Super. Ct. No. 1439161) v.

PEDRO ALVAREZ ALVAREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna Reeves, Judge. Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Poochigian, J. and Detjen, J.

FACTS Background Defendant was charged with battery on a peace officer (count I – Pen. Code,1 § 243, subd. (c)(2)); three counts of assault with a semiautomatic weapon (counts II, III and IV - § 245, subd. (b)); negligent discharge of a firearm (count V - § 246.3, subd. (a)); and three counts of felony resisting arrest (counts VI, VII, and VIII - § 69). As to the assault with a semiautomatic weapon counts, it was alleged (1) that defendant personally used a firearm (§ 12022.5, subd. (a)); (2) that defendant had suffered a prior serious felony conviction as described in section 667, subdivision (a). As to all counts, it was alleged defendant suffered a prior serious felony conviction as described in section 667, subdivision (d). The jury returned verdicts of guilty as to the counts of assault with a semiautomatic weapon and negligent discharge of a firearm (counts II, III, IV, and V). The jury found the firearm use allegations on counts II, III and IV to be true. (§ 12022.5, subd. (a).) The jury returned verdicts of not guilty as to the battery on a peace officer and felony resisting arrest counts (counts I, VI, VII and VIII). The jury also returned verdicts of not guilty as to the lesser included offenses of those counts, with one exception. As to resisting a peace officer (§ 148, subd. (a)(1)), a lesser included offense of count VII (§ 69), the jury was unable to reach a verdict and a mistrial was declared. The court found the prior convictions under section 667, subdivisions (a) and (d) to be true. The court sentenced defendant to a total prison term of 22 years 4 months. On count II, defendant was sentenced to the midterm of six years, doubled pursuant to section 667, subdivision (d), plus four years on the firearm use enhancement. The same