People v. Shaw

Opinion

RACANELLI, P. J.

Defendant Conser Lee Shaw appeals from the judgment entered against him after a jury found him guilty of robbery (Pen. Code, § 211), robbery in an inhabited residence (Pen. Code, § 213.5) and first degree burglary (Pen. Code, §§ 459, 460, subd. 1). Four prior serious felony conviction enhancements were found to be true (Pen. Code, §§ 667, subd. (a), 1192.7, subd. (c)), and he was sentenced to a total of 24 years in state prison.

1

[684]

Facts

*

Discussion

I

Defendant first contends the denial of his Penal Code section 995 motion to strike the serious felony enhancements was prejudicial error. He argues that under

People

v.

Superior Court (Mendella)

(1983) 33 Cal.3d 754 [191 Cal.Rptr. 1, 661 P.2d 1081], the enhancements should have been dismissed because no evidence to support them was adduced at the preliminary hearing. Defendant further reasons that such failure to dismiss was prejudicial because the enhancements and other charges against him had been previously dismissed under Penal Code section 859b, and section 1387 would have barred another refiling.

The People respond that defendant should have challenged the denial of his section 995 motion by a timely writ petition; and that because the prior convictions were adequately proved at trial, no prejudice can be shown, and defendant is precluded under

People

v.

Alcala

(1984) 36 Cal.3d 604 [205 Cal.Rptr. 775, 685 P.2d 1126] and

People

v.