People v. Jennings CA2/1

Filed 7/28/15 P. v. Jennings CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B254656

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA401298) v.

KYLE JENNINGS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Jose Sandoval, Judge. Modified and affirmed with directions. Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jason Tran, Supervising Deputy Attorney General, and Jonathan M. Krauss, Deputy Attorney General, for Plaintiff and Respondent. _________________________________

Defendant Kyle Jennings appeals from the judgment entered following a jury trial in which he was convicted of two counts of first degree burglary, one of which the court later reduced to second degree burglary; three counts of second degree burglary of vehicles; and one count of receiving stolen property. Defendant contends his sentence violates Penal Code section 6541 and the trial court miscalculated his credits. We agree in part with defendant’s section 654 contention and stay the sentence on one of the second degree burglary convictions. Given the Attorney General’s concession regarding the miscalculation of presentence credits, we further modify the judgment to reflect the correct credits. BACKGROUND Count 1: burglary of the garage About 4:30 a.m. on August 8, 2012, Joseph Augusta entered the gated parking structure beneath his apartment building and noticed two men inside the apartment manager’s van. Augusta made eye contact with them and told them to leave. Both men ran out of the garage. As Augusta walked toward his own car, defendant emerged from between Augusta’s car and the one next to it. Augusta told defendant to leave. Defendant complied, but returned while Augusta was speaking with the 911 dispatcher. Defendant had a towel wrapped around one hand and was extending that arm as if pointing a gun at Augusta. Augusta drew his own gun and aimed at defendant, who dropped to the ground, but subsequently fled. The lock and security panel for the garage gate had been broken. An unfamiliar pickup truck had been left in the garage, parked directly behind Augusta’s car. Counts 2, 3, and 4: burglary of vehicles in the garage Maxim Olevsky (count 2), the manager of the apartment building, testified his van was parked in the garage beneath the apartment building and locked. After the burglary,