People v. Bowman CA3

Filed 7/25/16 P. v. Bowman CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sutter) ----

THE PEOPLE, C078851

Plaintiff and Respondent, (Super. Ct. No. CRF141477)

v.

FRANK BERNARDI BOWMAN,

Defendant and Appellant.

Defendant Frank Bernardi Bowman went to the duplex of some friends where he pointed a gun at two of the women inside (Jennifer Evans and Anita Kelley), verbally threatened Kelley, and then right after he left and went outside, fired a gun at the hood of Kelley’s truck. For these acts, a jury found defendant guilty of first degree burglary (count 1), criminal threats to Kelley (count 2), assault with a firearm on Evans (count 4), assault with a firearm on Kelley (count 6), possession of a firearm by a narcotics addict (count 7), grossly negligent discharge of a firearm (count 8), and misdemeanor drawing or

1

exhibiting a firearm (count 9). The jury also found that defendant had two prior strike convictions. The court sentenced defendant to 177 years to life in prison, which included the following terms: five consecutive terms of 25 years to life in prison for the current strikes (first degree burglary, criminal threats, two assault with firearms, grossly negligent discharge of a firearm), and 50 years for the prior serious felonies, calculated as two five-year terms attached to each current strike that the People had alleged as prior strikes. On appeal, defendant raises evidentiary and sentencing issues. We find merit only in the sentencing issues. As we will explain, the sentence must be vacated and the case remanded for the trial court to: (1) strike the prior serious felony enhancements that the People specifically elected not to charge; (2) impose a stay on one of the four terms of punishment associated with the burglary or the crimes against Kelley (there were two) or Evans because defendant entered the duplex with the intent to commit these crimes; and (3) exercise its discretion to sentence the current five-strike offenses either consecutively or concurrently, where the record shows that the court misunderstood its sentencing discretion. FACTUAL AND PROCEDURAL BACKGROUND The crimes here took place around 10 p.m. in June 2014 in a residential area of Yuba City at the duplex of Rhonda Mercado, her 12- or 13-year-old son, and her boyfriend Sergio Beltran. At that time, Mercado’s friends, Evans and Kelley, were visiting.1 Evans and Kelley had gone into the back room and smoked methamphetamine. Beltran went outside to smoke a cigarette when defendant drove up to the duplex, said “hi,” and went inside. Defendant peeked his head into the back room, said, “ooh,” upon