People v. Austin CA6

Filed 11/13/15 P. v Austin CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041449 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1355430)

v.

EDWARD LEON AUSTIN,

Defendant and Appellant.

Defendant Edward Leon Austin was convicted by jury trial of one count of making criminal threats (Pen. Code, § 422),1 one count of felony false imprisonment (§§ 236, 237), five counts of grand theft of a firearm (§§ 484, 487, subd. (d)), one count of first degree robbery (§§ 211, 212.5, subd. (a)), and one count of first degree burglary (§§ 459, 460, subd. (a)). The court also found true multiple prior convictions. Defendant was sentenced to a total term of 175 years to life plus 63 years in prison. On appeal, defendant challenges his five convictions for grand theft of a firearm. He argues that these five convictions all stemmed from the same theft. Therefore, under People v. Bailey (1961) 55 Cal.2d 514 (Bailey), he insists that four of his grand theft convictions must be reversed. We agree and reverse the judgment.

1 Unspecified statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND The Information On April 4, 2014, defendant and codefendant, Amber Sapp, were charged by a second amended information with first degree robbery (§§ 211, 212.5, subd. (a), count 1), first degree burglary (§ 459, count 2), assault with a firearm (§ 245, subd. (a)(2), count 3), making criminal threats (§ 422, count 4), false imprisonment (§ 236, count 5), and five counts of grand theft (§§ 484, 487, counts 6-10). As to count 1, it was also alleged that the victim was 65 years of age or older (§ 667.9, subd. (a)), and that defendant was armed with a handgun (§ 12022.53, subd. (b)). As to counts 2 through 5, it was alleged that defendant personally used a handgun (§ 12022.5, subd. (a)). The information further alleged that defendant had seven prior strike convictions (§§ 667, subds. (b)-(i)) and two prior serious felony convictions (§ 667, subds. (a), (b)). The Crime On January 8, 2013, two individuals rang the doorbell of victim John Sheehan’s house. Sheehan’s live-in helper and roommate, Marcelle Gourley, answered the door. Sheehan heard voices and saw Gourley walk towards him after answering the door. Someone grabbed Sheehan’s cane and pushed him and Gourley to the floor. Sheehan heard a male voice say: “Stay right down there, old man, and you won’t get hurt.” Sheehan was unsure if the individuals were armed. At trial, he testified that he thought he saw a weapon. Sheehan said that Gourley was taken to a different part of the house. Sheehan managed to pull himself off the floor, and he saw two individuals take his television set off the wall. He could not see their faces. Eventually, Sheehan heard Gourley say that the intruders had left. Gourley called the police. Sheehan also spoke with the 911 operator, but could not recall if he had told them that the individuals had threatened to