People v. Joachim CA1/4

Filed 6/4/15 P. v. Joachim CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A140719 v. DUANE SCOTT JOACHIM, (Contra Costa County Super. Ct. No. 51312354) Defendant and Appellant.

Duane Scott Joachim appeals from a judgment upon a jury verdict finding him guilty of first degree residential burglary (Pen. Code,1 §§ 459, 460, subd. (a) (count one)) and first degree residential robbery (§§ 211, 212.5, subd. (a) (count two)). The jury also found the special allegation that the victim of the residential burglary was present during the commission of the offense and that the offense was a violent felony (§ 667.5, subd. (c)(21)) to be true. In a bifurcated proceeding, the court found that defendant suffered a prior felony conviction and served a prior prison term (§ 667.5, subd. (b)). The trial court imposed the upper term of six years on the robbery count, a one-year term for the prior prison term allegation, and an eight-month consecutive term for a conviction in a Sonoma County case (People v. Joachim (Super. Ct. Sonoma County, 2013, No. SCR617792)). The court stayed the sentence on the burglary count pursuant to section 654, but did not impose a term on the count before staying it. Defendant contends that the matter must be remanded to allow the court to impose a term on the burglary

1 All further statutory references are to the Penal Code.

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count, and that the abstract of judgment incorrectly reflects an upper term on the burglary offense. We agree that the matter must be remanded to allow the court to exercise its sentencing discretion on the burglary count. In addition, we direct the court to correct certain clerical errors in the abstract of judgment relating to the Sonoma County case. I. FACTUAL BACKGROUND The underlying facts leading to the jury’s verdict are as follows: On February 16, 2011, Catherine Woodward returned to her home in San Ramon at around 1:45 p.m. She had locked the doors before she left, but had left the window in the downstairs office slightly open. When she entered her house, her dog was barking ferociously, which was unusual. She then heard a noise upstairs that sounded like someone was opening and closing drawers. She thought it was her son and proceeded to go upstairs. As she was walking up the stairs, defendant came out of her bedroom and ran towards her. Woodward said, “[W]hat the fuck are you doing in my house?” Defendant kept running toward her so she reached up to stop him and pushed his chest. Defendant grabbed Woodward by the shoulders and slammed her hard against the wall. Defendant ran out of the house toward the elementary school at the end of the street. Woodward chased after him, screaming, “stop that man.” Officer Montemayor, who was parked across the street from the elementary school, saw defendant and Woodward running. Montemayor detained defendant who was carrying a latex glove. Montemayor testified that latex gloves are often used by burglars to prevent fingerprints from being found at the scene. A police officer escorted Woodward to her home where she found a pillowcase full of things, including some of her jewelry on the floor of her bedroom. The drawers of her dresser had been opened and most of her jewelry was missing. In addition, approximately $100 that Woodward kept in her lingerie drawer was missing. At sentencing, the court found that section 654 was applicable and chose the residential robbery conviction for imposition of the principal term. The court imposed the upper term of six years on the robbery offense, reasoning that defendant had a long history of felony convictions, had suffered a prior prison term, had apparently made