People v. Fisher CA3

Filed 6/24/14 P. v. Fisher CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C074582

Plaintiff and Respondent, (Super. Ct. No. 62112580A)

v.

ROBERT HENRY FISHER,

Defendant and Appellant.

A first amended information accused defendant Robert Henry Fisher of second degree burglary (count 1; Pen. Code, § 459; unless otherwise stated, statutory references that follow are to the Penal Code); attempted vehicle theft (count 2; § 664, Veh. Code, § 10851, subd. (a)); receiving stolen property (count 3; § 496, subd. (a)); possession of ammunition (count 4; § 30305, subd. (a)(1)); and bringing drugs into a jail (count 5; § 4573). As to counts 3 and 5, the information alleged that defendant committed the

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offenses while released on bail or on his own recognizance. (§ 12022.1.) As to counts 1, 2, 3, and 5, the information alleged that defendant had suffered two prior felony convictions for which he served prison terms. (§ 667.5, subd. (b).) The People moved to dismiss these allegations during trial after discovering that the certified records of defendant’s convictions showed one was for a misdemeanor and the other was more than five years old. The trial court granted the motion. A jury convicted defendant on counts 1 and 5 and found the on-bail enhancement as to count 5 true. The jury acquitted defendant on counts 2 and 3 and failed to reach a verdict on count 4, as to which the trial court declared a mistrial. Sentenced to a term of five years eight months in county jail (§ 1170, subd. (h)), defendant contends the trial court erred prejudicially as to count 1 by failing to instruct the jury sua sponte on simple trespass (§ 602.5, subd. (a)) as a lesser included offense of burglary under the pleading test. We conclude substantial evidence did not warrant such instruction and affirm the judgment.