People v. Espinoza

Opinion

EPSTEIN, J.

Introduction

Rudolfo Espinoza challenges his conviction of attempted second degree burglary. He raises evidentiary and instructional issues, and challenges his sentence under the “Three Strikes” law. In the published portion of this opinion we conclude that when a current felony is an attempt crime and

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sentencing is in the context of the Three Strikes law, that law supersedes the general statute for punishment of attempts and governs the sentence that must be imposed. We find no error and affirm.

Factual and Procedural Summary

The facts pertinent to this appeal are undisputed and may be briefly summarized. Frank Fullbright and his daughter, Franchessa Denison, watched a man try to pry open a parked car while a second man, appellant, stood about 10 feet away. The two men ducked twice when cars passed by. Ms. Denison called 911, and police responded. The men fled when the police arrived. There were pry marks and scratches on the car, and a screwdriver was inserted in the passenger doorjamb. Another screwdriver was found near the rear tire.

Appellant was charged with attempted second degree burglary of a vehicle in violation of Penal Code sections 664 and 459.

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The object crime of the burglary was larceny. Two prior strikes and two prior prison terms were alleged. (§§667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)

At trial, Mr. Fullbright was asked on direct examination, “[D]o you recall telling the officer that [one] of the suspects would stand up periodically and look around, as if he were a lookout?" Defense counsel objected to this as an “improper question.” The objection was sustained on the grounds of inadequate foundation. After laying a foundation, the prosecutor reiterated the question. This time there was no objection. Mr. Fullbright answered affirmatively. Ms. Denison testified that she “saw [two] men attempting to break into a car." Defense counsel objected to Ms. Denison’s statement as calling for speculation. This objection was overruled.