People v. Harris CA2/7

Filed 11/4/14 P. v. Harris CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B252916

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA090098) v.

FRANKLIN DEVON HARRIS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Dorothy L. Shubin, Judge. Affirmed. William W. Lee, 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, Senior Assistant Attorney General, James William Bilderback II and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Franklin Devon Harris appeals from the judgment entered following his conviction by a jury of first degree burglary. On appeal, Harris contends the trial court erred by failing to strike a one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).1 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND On the morning of June 19, 2013, Laura Simmons was alone in her residence when Harris entered without her consent. Harris was arrested and charged in an information with first degree burglary with a person present (§ 459, 667.5, subd. (c)). The information specially alleged Harris had suffered a prior serious or violent felony for first degree burglary (L.A.S.C. case No. GA0742992) within the meaning of the three strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1) and had served two separate prison terms for felonies, first degree burglary (case No. GA074299) and receiving stolen property (case No. GA069725) under section 667.5, subdivision (b). Harris pleaded not guilty and denied the special allegations. The jury found Harris guilty as charged and found true the special allegation a person other than an accomplice was present in the residence. In a bifurcated proceeding, Harris waived his right to trial on the prior conviction allegations and admitted them; the trial court found them true. Harris was sentenced to four years (the two-year lower term doubled under the three strikes law) for first degree burglary, plus five years for the prior serious felony enhancement. Without referring to either the 2008 first degree burglary conviction or the 2007 receiving stolen property conviction, the trial court stated it was imposing “an additional one year pursuant to Penal code section 667.5[, subdivision] (b) for a total of ten years [in] state prison. . . .There is a second one-year prior. So what I will do is stay that. So there’s two one-year priors. And I’m imposing one and staying the other.”