People v. Flores

[1813]

Opinion

GILBERT, J.

Here we hold, among other things, that a prior conviction for attempted arson is a “serious felony” under Penal Code section 1192.7 for which a five-year enhancement is proper.

1

[[]]

*

[[Facts]]*

[[]]*

A jury convicted Henry David Flores of assault with a deadly weapon. (§ 245, subd. (a)(1).) The trial judge found Flores had two prior felony convictions, within section 667, subdivision (a). One of the convictions was for section 455, attempt to bum. (People v. Flores (Super. Ct. Santa Barbara County, 1989, No. 176641).) [[]]*

[[]]*

Discussion

I.

Flores contends the five-year enhancement for his attempted arson conviction in People v. Flores,

supra,

No. 176641, is improper because attempted arson under section 455 is not a “serious felony” under section 1192.7, subdivision (c)(14) and (27). Flores argues that only an attempted arson conviction under sections 664 (general attempt statute) and 451 may enhance punishment of a recidivist offender under section 667, subdivision (a). He adds that section 455 defines “attempt” behavior more broadly than the general attempt statute (§ 664) because section 455 includes acts “preliminary thereto, or in furtherance thereof’ attempts to bum.

2

In February 1994, the time of Flores’s present criminal offense, section 667, subdivision (a) provided: “[A]ny person convicted of a serious felony

[1814]