People v. Witt CA4/3

Filed 4/21/15 P. v. Witt 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G049414

v. (Super. Ct. No. 05CF2664)

JAMES DARRYL WITT, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed as modified. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland, Scott C. Taylor, Meredith S. White, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

James Darryl Witt appeals from a judgment after he pleaded guilty to conspiracy to commit burglary and grand theft, second degree burglary, grand theft, petty theft with a prior, assault with a deadly weapon, and battery causing serious bodily injury, and admitted he inflicted great bodily injury and suffered two prior prison terms. Witt argues the trial court should have stayed the sentences on four of his convictions and struck the sentence on a dismissed conviction. The Attorney General agrees with all but one of Witt’s contentions. We accept the Attorney General’s concessions. We agree with all but one of Witt’s claims and affirm the judgment as modified. FACTS Because Witt pleaded guilty, we take the facts from the preliminary hearing transcript. In March 2004, Kevin Okerstrom worked undercover as a loss prevention officer at Home Depot in Tustin. While in the store, Okerstrom saw Witt take two expensive faucets, place them in a shopping cart, and cover them with a rug. Okerstrom thought this was suspicious behavior and followed Witt. Witt gave the cart to another man, his accomplice, and they separated. Okerstrom followed the accomplice. The accomplice pushed the cart past the open cash registers and into the parking lot, where Okerstrom confronted him about the stolen merchandise. Okerstrom escorted the accomplice back towards the store as he pushed the cart. The accomplice spun away from Okerstrom and fled. Okerstrom initially chased him but stopped pursuant to store policy. Okerstrom returned to the store and called the police. Okerstrom took the shopping cart to the returns department and secured it so he could inventory the merchandise later. Okerstrom looked for Witt. He found Witt leaving the store through the garden department and confronted him just outside the exit. A witness saw Witt arguing with Okerstrom and watched as Witt threw Okerstrom to the ground and pounded his head into cement blocks twice before running away. When police arrived, they found Okerstrom lying on the ground bleeding profusely from his head. Okerstrom was transported to a hospital where he received