People v. Black CA2/2

Filed 10/27/14 P. v. Black CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B249727

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA056966) v.

DARNELL BLACK,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Eric Harmon, Judge. Modified and affirmed.

Davina T. Chen, 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, Yun K. Lee and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE In an information filed on August 23, 2012, appellant Darnell Black was charged with two counts of second degree burglary in violation of Penal Code, section 211,1 involving two victims (counts 1 & 2) and with second degree commercial burglary in violation of section 459 (count 5).2 Appellant was also charged with seven prior felony convictions for which he served prison terms.3 Appellant pleaded not guilty, but a jury found him guilty of all three charges. Appellant admitted six of the prior prison term allegations. The court imposed the upper term of five years on count 1 and one-third the midterm on count 2, i.e., a consecutive sentence of one year. The court stayed the eight- month sentence on count 3 pursuant to section 654. The abstract of judgment shows that appellant’s sentence was enhanced by six 1-year terms for the six prior terms he admitted. Thus, appellant was sentenced to the total of 12 years in prison. Various fines and assessments were imposed and custody credits were awarded, none of which are challenged on appeal. This appeal is from the judgment. STATEMENT OF FACTS Appellant concedes that there is sufficient evidence showing that on July 30, 2012, he stole seven cell phones from a Target store in Lancaster. He does not challenge his conviction for the second degree robbery of Gerald Roberts (count 1), Target’s loss prevention officer. However, he contends he could not be convicted of the second degree robbery of Evan Ramsey (count 2), a Target protection specialist, because by the time