People v. Olivas CA5

Filed 1/22/15 P. v. Olivas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068158 Plaintiff and Respondent, (Kern Super. Ct. No. TF005913A) v.

EUSEBIO SERGIO OLIVAS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION Defendant was sentenced to four years in prison for committing a battery resulting in serious bodily injury. (Pen. Code,1 § 243, subd. (d).)2 His sentence was enhanced pursuant to section 12022.7, which provides for additional punishment when the defendant inflicts great bodily injury in the commission of a felony. (§ 12022.7, subd. (a).) Defendant contends the great bodily injury enhancement does not apply to the crime of battery resulting in serious bodily injury. We agree and order the enhancement stricken. BACKGROUND Defendant was charged with second degree robbery (count 1 - § 212.5, subd. (c)); battery resulting in serious bodily injury (count 2 - § 243, subd. (d)); threatening to commit a crime which would result in death or great bodily injury (count 3 - § 422); and dissuading a witness (count 4 - § 136.1, subd. (a)(1).) The information also alleged that in committing counts 1 and 2, defendant personally inflicted great bodily injury on the victim. (§ 12022.7.) As to each count, it was alleged that defendant had suffered one prior conviction described in sections 667, subdivisions (c)–(j) and 1170.12, subdivisions (a)–(e); and six prior convictions described in section 667.5, subdivision (b). As to counts 1 through 3, the information alleged defendant had also suffered one prior conviction described in section 667, subdivision (a). The court eventually dismissed the prior conviction allegations under section 667, subdivisions (a) and (e), as to counts 1 through 3.