People v. Hidalgo CA2/4

Filed 5/27/15 P. v. Hidalgo CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B252675

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA067967) v.

ELBERT ERNESTO HIDALGO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Susan M. Speer, Judge. Affirmed as Modified. Jeffrey J. Douglas, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jonathan J. Kline and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Elbert Ernesto Hidalgo of first degree residential burglary (Pen. Code, § 459)1 and possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)). In a bifurcated proceeding, the trial court found that defendant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)). The trial court struck one of defendant’s prior strikes, and sentenced him to a term of 22 years in state prison. He appeals from the judgment of conviction, contending that the trial court erred in (1) ordering him shackled during trial, and (2) staying rather than striking his prior prison terms in sentencing. We modify the judgment to strike the prior prison terms and otherwise affirm.

BACKGROUND Because the evidence supporting defendant’s convictions is not relevant to the issues on appeal, we only briefly summarize it. Defendant lived in an apartment building a few hundred feet away from the apartment on Victory Boulevard in which Graciela Lara lived with her one-year-old daughter. On May 19, 2011, Lara heard a knock on her door. She did not answer. After she heard two more knocks, she went to the door, but no one was there. As she walked back to the bedroom, she heard the window opening. She opened the curtains and observed defendant with his hands on the open window and window sill. The window screen had been removed. Lara screamed, closed the window, and called 911. Defendant fled. Lara participated in the drawing of a composite sketch of the burglar, and on May 26, 2011, identified defendant’s photograph in a photo lineup.