People v. Luna CA4/3

Filed 12/30/14 P. v. Luna CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G050272

v. (Super. Ct. No. FWV1300011)

ISMAEL LUNA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of San Bernardino County, Colin J. Bilash, Judge. Affirmed in part and remanded for resentencing. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Parag Agrawal and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Ismael Luna appeals following his conviction on charges of burglary and possession of a firearm and ammunition. He argues the burglary charge should have been severed from the remaining charges, a lack of substantial evidence to support the weapons and ammunition charges, and that the abstract of judgment does not match the court’s oral pronouncement of sentence. We agree the court failed to explicitly state whether it intended to sentence defendant to an additional four years based on his priors or to strike those priors, and therefore remand for resentencing. The remainder of defendant’s arguments, however, are without merit, and we therefore affirm the judgment in all other respects. I FACTS In the early morning of December 17, 2012, Alexandra Franco and her daughter returned to their home in Ontario. She saw a Jeep, later identified as belonging to defendant, parked on a side street adjacent to her home in a driveway area. Upon entering the home, she heard noises coming from a bedroom, and upon looking under the door, she saw two sets of feet in the room. She grabbed her daughter and her purse and left the house. After she left, Franco saw defendant and another man run out of the back of the house, jump a fence and go toward the Jeep. She called 911 and followed the Jeep to try to get the license plate number, which she was unable to do. Later, it came to light that Sandra Stevens, Franco’s neighbor, had seen defendant’s Jeep driving up and down the block slowly. She later identified defendant as the driver. Joseph Vincent, another neighbor, saw defendant and another man in the Jeep that morning and had direct contact with them. Vincent, too, later identified defendant in a photo lineup.