People v. Sherman CA2/2

Filed 1/15/14 P. v. Sherman CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B244564

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA391680) v.

TERAL SHERMAN,

Defendant and Appellant.

THE COURT:*

A jury convicted appellant Teral Sherman of two counts of second degree burglary (Pen. Code, § 459)1 and one count of second degree robbery (§ 211). In a bifurcated proceeding, the trial court found true the allegation that appellant had suffered one prior serious felony conviction (§ 667, subd. (a)(1)) and one prior conviction (strike) within the meaning of California’s “Three Strikes” law. (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i).) The trial court sentenced appellant to 15 years in state prison comprised of the

* BOREN, P. J ., ASHMANN-GERST, J., FERNS, J.†

† Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

1 All further statutory references are to the Penal Code unless otherwise stated. 1

upper term of five years for the robbery, doubled pursuant to the Three Strikes law, plus five years for the prior serious felony conviction. The trial court imposed a concurrent sentence of four years for one count of burglary. A consecutive sentence of four years for the second count of burglary was stayed pursuant to section 654. BACKGROUND A. Factual Background On October 8, 2011, at approximately 6:00 p.m., Oscar Iniguez was working in the ice cream department of a Rite-Aid store in the City of Lynwood. The store was equipped with surveillance cameras that recorded activity at the store’s entrance and in the ice cream department. Appellant entered the store wearing sunglasses that sat on his forehead and a white T-shirt with a logo in the middle. Appellant ordered ice cream from Iniguez. When the ice cream was ready, appellant came around the counter to the area restricted to employees only. Appellant punched Iniguez in the face and told him to open the cash register. Appellant’s sunglasses fell to the floor behind the counter. Iniguez did not know how to open the cash register and moved to the far end of the ice cream department. Appellant dropped the cash register onto the floor, breaking it open. He then grabbed some bills that had fallen from it and left the store. Los Angeles County Deputy Sheriff Andrew Wyse arrived at the Rite-Aid store and recovered the sunglasses from the floor behind the counter in the area restricted to employees. The sunglasses were submitted to the crime lab for DNA analysis. Salvador Silva told Deputy Wyse that appellant pointed a handgun at Silva when he tried to stop appellant from leaving the area after the robbery. On December 11, 2011, at approximately 5:00 p.m., Los Angeles Police Department Officer Cody Halchishak and his partner Officer Juan Martinez, responded to a burglary in progress at a 7-Eleven store. The store was boarded up with plywood and was not open for business. The officers saw that a piece of plywood had been pried open. Officer Halchishak looked inside and saw appellant placing cigarettes and alcohol inside two black trash bags. The officers set up a perimeter outside the store and saw appellant exit the store where the plywood had been pried away. Appellant was arrested and