People v. Lamb

Opinion

WIENER, J.

Michael Lamb appeals from the judgment convicting him on 11 counts of first degree burglary (Pen. Code, § 459)

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and 1 count of stealing a firearm. Lamb claims that we must reduce his burglary convictions to second degree because the trial court failed to determine the degree of the crime before sentencing him contrary to the provisions of section 1192.

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We reject his argument and affirm the judgment.

[934]

Procedural Background

An amended 12 count complaint charged Lamb in count 2 with stealing a firearm (§ 487, subd. 3) and in the remaining counts with burglarizing an inhabited residence (§ 459). At a readiness conference before his municipal court arraignment Lamb signed a change of plea form stating “he desires to plead guilty to 11 Cts of 459 residential; 1 Ct of 487.3 [sic]” and acknowledged “he violated the aforementioned crimes of 459, 487.3 [sic] by entering inhabited residences with the intent to commit theft; stealing a firearm.” He understood the “maximum punishment which could be imposed as a result of a plea of Guilty [was] 16 years. ...” Lamb was willing to plead guilty because the prosecutor had promised a “8 year, 8 month lid. [Defendant] not precluded from arguing CYA.”

The court’s minutes reflect Lamb’s plea of guilty to “P.C. 459 1st x 11; 487.3 [sic], felony charges. Defendant waives 1538.5 rights. 8 year, 8 month lid.” The probation report says Lamb was convicted of “459 P.C. 1st Degree Burglary—11 Counts.”

The court sentenced Lamb to prison for the stipulated “8 year, 8 month lid”: the upper term of six years on count 1 and consecutive terms of sixteen months on counts 3 and 4. The court stayed execution of a two-year term on count 2 pursuant to section 654 and ordered the middle-term of four years on each of the remaining counts to be served concurrently. The abstract of judgment states each of Lamb’s burglary convictions was in the first degree.

Discussion