People v. Turner CA1/1

Filed 9/15/15 P. v. Turner CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A142074 v. TERRY B. TURNER, (San Francisco County Super. Ct. No. SCN221345) Defendant and Appellant.

In this appeal, we are asked to decide whether the prosecution established beyond a reasonable doubt appellant was previously convicted of a serious felony pursuant to Penal Code section 667, subdivision (a).1 The purported prior felony offense is first degree burglary, the burglary of an inhabited dwelling. (§ 459.) If the prior offense was proven beyond a reasonable doubt, appellant’s commitment to state prison for an additional five years, imposed by the trial court, would be appropriate. We conclude the record supports the determination by the trial court the prior offense was a serious felony and affirm. STATEMENT OF THE CASE On March 7, 2014, the district attorney filed a second amended information charging appellant Turner with several felonies. Counts one and two charged appellant with violations of section 422 (terrorist threats). Count three charged a violation of

1 Unless otherwise stated, all statutory references are to the Penal Code.

section 273.5, subdivision (a) (infliction of corporal punishment on a cohabitant). Counts four, five, six, seven and nine charged violations of section 245, subdivision (a)(4) (aggravated assault). Count eight charged a violation of section 236 (false imprisonment). The amended information also alleged appellant suffered a prior strike conviction pursuant to sections 667, subdivisions (d)-(e), and 1170.12, subdivisions (b)-(c), and a prior serious felony conviction under section 667, subdivision (a)(1). The information further alleged appellant had three prior prison terms under section 667.5, subdivision (b). On March 20, 2014, the jury acquitted appellant of count two and count nine. The jury convicted appellant of all the remaining counts. Following defendant’s waiver of jury trial on all of the prior conviction-related allegations, in a bifurcated bench trial the court found true two prior prison term allegations, as well as the prior strike allegation and the prior serious felony allegation. The court granted appellant’s motion to dismiss the prior strike allegation. The court then sentenced appellant to state prison for a determinate term of eight years eight months. Appellant filed a timely notice of appeal. ANALYSIS A. Introduction. We do not summarize the facts supporting the jury’s verdict in this case because the sole issue is the five-year enhancement prior imposed by the trial court. In this appeal appellant claims the five-year enhancement imposed by the trial court must be reversed because the prosecution failed to establish by proof beyond a reasonable doubt appellant suffered a serious felony prior. B. Factual Background. The second amended information in this case alleged appellant was “previously convicted of the crime of FIRST DEGREE BURGLARY-RESIDENTIAL, violating