People v. Kegin CA5

Filed 2/3/14 P. v. Kegin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F064193

Plaintiff and Respondent, (Super. Ct. Nos. BF134556A & BF136273A) v. OPINION JASON OSROY KEGIN,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge.

Rita Barker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Gomes, Acting P.J., Franson, J. and Peña, J.

Pursuant to a plea agreement, defendant Jason Osroy Kegin pled no contest to one count of robbery (Pen. Code,1 § 212.5) in case No. BF134556A. On February 15, 2011, pursuant to his plea bargain, defendant was placed on probation and ordered to serve one year in the county jail. On April 5, 2011, defendant was charged with several felony counts and enhancements stemming from a shooting which occurred on March 26, 2011, in case No. BF136273A. After a trial by jury, defendant was convicted of assault with a firearm (§ 245, subd. (a)(2)), and being a felon in possession of a firearm (former § 12021, subd. (a), now § 29800, subd. (a)(1)). The jury also found true a special allegation that defendant had personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)) and had personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). The jury acquitted defendant of an attempted murder (§§ 664, 187, subd. (a)) charge. In a bifurcated proceeding, the trial court found true allegations that defendant suffered a prior strike within the meaning of the three strikes law, and he had previously been convicted of a serious felony within the meaning of section 667, subdivision (a). The trial court sentenced defendant to a total term of 26 years on the shooting charges. In addition, the court found defendant in violation of his probation on the robbery case and sentenced him to a concurrent three-year term. On appeal, defendant contends the trial court erred in denying his motion for a mistrial and imposing an unauthorized sentence. We find no error. FACTS On March 24, 2011, Mario Dardon was working as a security guard at the Vallarta Market on Niles Point Road in Bakersfield. During the morning hours, Dardon’s attention was drawn to defendant as he was leaving the store. He recalled defendant had a distinctive bump on his face. Dardon stopped defendant to speak with him about taking some items from the market. Defendant denied taking anything and a physical struggle