People v. Gibson

Filed 8/26/15 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B259909

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA408087) v.

SAVON GIBSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E. Edwards, Judge. Affirmed.

Michele A. Douglass, 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, Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

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* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of part 1 under the Discussion.

Appellant Savon Gibson challenges his conviction for one count of attempted robbery. We publish the portion of this opinion addressing his claim that insufficient evidence supported the trial court’s finding that a prior 2011 assault conviction constituted a strike under the “Three Strikes Law.” (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)1 In finding the conviction was a strike, the trial court admitted a certified prison packet (§ 969b) (969b packet) “by reference” only and did not retain it in the court’s records in violation of the Penal Code. Appellant was thereafter unable to obtain a copy for his appeal. But the error was harmless because we have reviewed a certified copy of the 969b packet, which demonstrated appellant’s prior assault conviction was, in fact, a strike. In the unpublished portion of this opinion, we reject appellant’s remaining contentions. We therefore affirm. PROCEDURAL BACKGROUND Appellant was charged with residential burglary (§ 459), attempted carjacking (§§ 215, subd. (a), 664), and attempted robbery (§§ 211, 664). It was also alleged he had one prior serious felony conviction (§ 667, subd. (a)(1)), one strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and one prior prison term (§ 667.5, subd. (b)). A jury acquitted him of burglary and attempted carjacking, but convicted him of attempted robbery. As discussed more fully below, the trial court held a bench trial and found the prior conviction allegations true. The court sentenced him to seven years eight months, consisting of the low term of 16 months for the attempted robbery, doubled to 32 months based on the prior strike, plus five years pursuant to section 667, subdivision (a)(1). STATEMENT OF FACTS On August 9, 2012, around 5:25 a.m., Dr. Tigran Khachatryan left his apartment and entered his building’s parking garage, intending to drive to work. He had locked his car the previous night, but left the sunroof tilted up. As he opened the rear passenger door, he noticed his white coat inside was crumpled, with the pockets emptied. He looked up and saw appellant sitting in the driver’s seat, staring at him. After a few