People v. Felix CA6

Filed 12/20/13 P. v. Felix CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039363 (Santa Clara County Super. Ct. Plaintiff and Respondent, Nos. C1240115 and C1246127)

v.

JORGE ARMANDO FELIX,

Defendant and Appellant.

Defendant Jorge Armando Felix appeals the trial court’s imposition of concurrent sentences for second degree burglary (Pen. Code, § 459) and petty theft with a prior (Pen. Code, §§ 484, 666, subd (b)(1)).1 He argues that his sentences violate section 654’s prohibition against double punishment. He also argues that the trial court erred by including both offenses in its restitution fund fine calculation under section 1202.4, subdivision (b)(2). We agree on both points and will modify the judgment accordingly. I. BACKGROUND On November 8, 2012, defendant was charged with second degree burglary and petty theft with a prior theft conviction in case No. C1240115. According to the information, the offenses involved defendant entering a Home Depot store on July 1, 2012 with the intent to steal, and stealing merchandise from the store. The information

1 All statutory references are to the Penal Code.

also alleged a prior strike conviction and a prior prison term. (§ 667, subds. (b)-(i); § 667.5, subd. (b).) On January 8, 2013, defendant pleaded no contest to the information and admitted the prior strike. Defendant also entered a no contest plea in case No. C1246127 to misdemeanor petty theft with a prior theft conviction (§§ 484, 666) and giving a false name to a peace officer (§ 148.9). These offenses occurred on August 26, 2012 at a Food Maxx store. Defendant was sentenced in both cases on February 15, 2013. In case No. C1240115, the court denied defendant’s motion to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (trial court has authority under section 1385, subdivision (a) to strike a prior conviction allegation brought under the three strikes law), but did strike the section 667.5 allegation under section 1385, and sentenced defendant to a doubled lower term of 32 months for the second degree burglary count and a concurrent term of 32 months for the petty theft with a prior. The court imposed a $960 restitution fund fine under section 1202.4, subdivision (b)(2), and it imposed and suspended a commensurate $960 parole revocation fine under section 1202.45. Defendant did not object in the trial court to the concurrent sentences or fines. In case No. C1246127, the court imposed a 30-day county jail sentence concurrent to C1240115, with credit for time served. Defendant filed timely notices of appeal from both judgments.