People v. Smith CA2/4

Filed 8/26/14 P. v. Smith CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B249351

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA121955) v.

DEL LAMONT SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Reversed and remanded. Mark S. Givens, 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 Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Del Lamont Smith was charged with first degree residential burglary (Pen. Code, § 459)1 and making criminal threats (§ 422). In his first trial, in which he represented himself, the jury deadlocked on the burglary count and acquitted on the criminal threats count. Before the retrial on the burglary count, in which appellant again represented himself, the trial court denied appellant’s request for a transcript of the first trial. On retrial, the jury convicted appellant of the lesser included offense of attempted first degree residential burglary (§§ 664/459), and found true four prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)(1)), and one prior prison term (§ 667.5, subd. (b)). The trial court sentenced him to a term of 30 years to life in prison (25 years to life under the Three Strikes law, plus 5 years for the serious felony conviction under section 667, subd. (a)(1)), and struck the prior prison term. On appeal, appellant contends that the trial court erred in denying his request for the transcript of the first trial. We agree. (People v. Hosner (1975) 15 Cal.3d 60 (Hosner) [declaring that such error is reversible per se].) We therefore reverse the judgment.