People v. Hubbard CA5

Filed 2/24/14 P. v. Hubbard CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, F066249

v. (Super. Ct. No. F11904691)

TANYA MARIE HUBBARD, OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. John J. Hardesty, 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, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Cornell, Acting P.J., Detjen, J., and Poochigian, J.

A jury convicted appellant, Tanya Marie Hubbard, of attempted second degree robbery (Pen. Code,1 §§ 211, 212.5, subd. (c), 664; count 2), second degree burglary (§§ 459, 460, subd. (b); count 3), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 4), receiving a stolen vehicle (§ 496d, subd. (a); count 5), and assault with a deadly weapon (§ 245, subd. (a)(1); count 6). The court imposed a prison term of four years, consisting of two years on count 6 and consecutive eight-month terms on each of counts 2 and 4, and on a conviction in a separate case. The court imposed concurrent terms on counts 3 and 5. On appeal, appellant contends (1) the evidence was insufficient to support her count 6 aggravated assault conviction, and (2) the eight-month term imposed on count 2 constituted an unauthorized sentence that must be reduced to six months. We reject appellant’s first contention, find merit in the second, modify the judgment accordingly, and affirm the judgment as modified. FACTS2 On August 12, 2011, Natalie Longhat was employed by a grocery store as a “[s]ervice clerk” and was at work when she saw appellant and another woman in the store.3 Appellant “put something in her bag,” and Longhat formed the opinion “she was stealing.” Shortly thereafter, appellant’s companion left the store while appellant remained, and Longhat approached her co-worker, Kevin Douglass, and told him, “this girl is stealing.” At that point, appellant “flew out the door” and Longhat “went out the door after her.”