People v. Vasquez CA5

Filed 11/3/14 P. v. Vasquez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F066953

Plaintiff and Respondent, (Super. Ct. No. BF140216A ) v.

JESSIE ARTURO VASQUEZ, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Lynette Gladd Moore, 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, Darren K. Indermill and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Jessie Arturo Vasquez of making criminal threats (Pen. Code,1 § 422; counts 1, 5, & 6), misdemeanor driving while under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 2), first degree residential burglary (§ 460, subd. (a); count 4), and misdemeanor vandalism (§ 594, subd. (b)(2)(A); count 7); the jury acquitted Vasquez of assault with a deadly weapon (§ 245, subd. (a); count 3). With respect to count 4, the jury found true the allegation that another person was in the residence during the burglary (§ 667.5, subd. (c)(21)). In addition, the court found true the allegations that Vasquez had served three prior prison terms (§ 667.5, subd. (b)). The court sentenced Vasquez to a total prison term of six years four months as follows: the middle term of four years for count 4, plus one year for the prior prison term; a consecutive eight-month term for count 1; and a consecutive eight-month term for count 5. Vasquez was sentenced to a concurrent two-year term for count 6, and two concurrent 30-day terms for counts 2 and 7. Vasquez’s sole contention on appeal is the court should have stayed, pursuant to section 654, the terms it imposed for counts 5, 6, and 7. We agree and modify the judgment to correct the sentencing error. As modified, the judgment is affirmed. FACTS2 On December 14, 2011, around 6:00 p.m., Alba Linares was at home in her bedroom and her cousin, Malky Gonzalez, was in the living room watching television, when Linares heard something that sounded like somebody knocking on the door. When she heard the knock again, she went out to the living room and asked Gonzalez if the sound was coming from the television. After she went into the living room, Linares heard a breaking noise and saw Vasquez had broken the window. He was holding an ax