People v. Haynes CA2/8

Filed 2/10/14 P. v. Haynes CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B243226

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA091758) v.

JIMMIE HAYNES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J. Ferrari, Judge. Affirmed in part and reversed in part.

Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Defendant and appellant Jimmie Haynes was convicted of being a felon in possession of ammunition and two counts of petty theft with a prior, both based on a single theft. The People conceded defendant’s contention that one of the two petty theft convictions must be reversed because subdivisions (a) and (b) of Penal Code section 666 describe different sentencing factors, not different crimes.1 We agree and reverse the conviction on count 3.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established that a Wal-Mart Loss Prevention Agent observed defendant take several packages of batteries from a display case, put them in his backpack and walk out of the store without paying. Defendant was detained and the police notified. In a search of defendant’s person, police found an unfired 9 mm bullet in defendant’s pocket. Defendant had multiple state and federal prior convictions, including both theft offenses and serious or violent felonies. Defendant was charged in count 1 of an information with being a felon in possession of ammunition (§ 30305, subd. (a)(1)); count 2 charged petty theft with a prior in violation of section 666, subdivision (b); count 3 charged petty theft with a prior in violation of section 666, subdivision (a); one Three Strikes prior was also alleged (§ 1170.12, subds. (a)-(d), § 667, subd. (b)-(i)). A jury convicted defendant on all three counts, and the court found true the strike allegation. Defendant was sentenced to five years, four months in prison comprised of four years on count 1 (the two year mid-term, doubled pursuant to the Three Strikes law), plus a consecutive 16 months on count 2 (one third the 24 month midterm [see § 18, subd. (a)], doubled pursuant to the Three Strikes law); sentence on count 3 was stayed pursuant to section 654. Defendant timely appealed.