People v. RODOLA

[1507]

Opinion

HOLLENHORST, Acting P. J.

A jury found defendant guilty of first degree burglary in violation of Penal Code section 459.

1

Defendant subsequently admitted that he had suffered seven prior “strike” convictions (§§ 667, subds. (c) and (e), 1170.12, subd. (c)), three prior serious felony convictions (§ 667, subd. (a)), and four prison priors (§ 667.5, subd. (b)). Defendant was sentenced to state prison for a total indeterminate term of 40 years to life. This was composed of a term of twenty-five years to life under the “Three Strikes” law and five years for each of the three prior serious felony convictions. Defendant appeals on three separate grounds.

Statement of Facts

The facts are not in dispute. On December 22, 1996, defendant was caught in the act of burglarizing a residence. A woman observed defendant go into her neighbor’s backyard. She called the police who apprehended defendant while he was walking away from the rear of the house. A police officer advised defendant of his constitutional rights pursuant to

Miranda

v.

Arizona

(1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974]. Defendant waived those rights and admitted that he planned to burglarize the residence. He further admitted that he had cut the screen on the window but had not been able to enter the house because a washer and dryer pushed against the window prevented the window from opening wide enough for him to get into the house.

Discussion

I.

CALJIC No. 2.90

*

II.

Felony Status of Grand Theft of a Firearm

Section 667, subdivision (a) provides for a five-year enhancement for each prior serious felony conviction. A “serious felony” is defined as a serious felony listed in subdivision (c) of section 1192.7.